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Chapter 7 Delegated Legislation

Here are some key points on parliamentary control and judicial review of subsidiary legislation: Parliamentary control: - Ministers are accountable to Parliament and must answer questions regarding subsidiary legislation - Parent Acts often require draft regulations to be laid before Parliament, giving opportunity for debate/objections Judicial review: - Courts can determine if subsidiary legislation is ultra vires (beyond the scope) of powers delegated by parent Act - Legislation can be struck down if it is inconsistent with provisions of the Federal Constitution - Courts act as final check on exercise of delegated legislative powers

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301 views

Chapter 7 Delegated Legislation

Here are some key points on parliamentary control and judicial review of subsidiary legislation: Parliamentary control: - Ministers are accountable to Parliament and must answer questions regarding subsidiary legislation - Parent Acts often require draft regulations to be laid before Parliament, giving opportunity for debate/objections Judicial review: - Courts can determine if subsidiary legislation is ultra vires (beyond the scope) of powers delegated by parent Act - Legislation can be struck down if it is inconsistent with provisions of the Federal Constitution - Courts act as final check on exercise of delegated legislative powers

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athirah jamaludin
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CHAPTER 7

DELEGATED LEGISLATION
Definition of delegated legislation
■ Section 3 of Interpretation Act 1967
■ “any proclamation, rule, regulation, order,
notification, by-law, or other instruments made
under any Ordinance, Enactment, or other lawful
authority having legislative effect”
Importance
■ This category of law has become more important as the business of
government gets more complicated and expensive
■ An Act of Parliament or statute is brought into being by Parliament through
the parliamentary process which is long and involves several stages
■ Parliament now produces annually a very large output of new legislation in
the form of Acts of Parliament
■ This legislation is an attempt to regulate very complex matters such as
employment, social security, tax liability and economic management
Importance
■ It would be impossible to include in the Acts of Parliament all
relevant details of these subjects
■ The need to fill in and to vary the details of statute law is met by
conferring, usually on the minister concerned, a statutory power
to make regulations for defined purposes of the main statute
■ This is called subsidiary legislation or delegated legislation, since
the parent Act delegates to some executive authority power to
legislate in this way
Subsidiary Legislation
■ It is important because: -

– Legislation by Parliament and the State Legislatures is insufficient to


provide laws required to govern everyday matters
– Subsidiary legislation deals with the details about which legislature has
neither the time nor the technical knowledge to enact laws
– Legislature merely lays down the basic and main laws, leaving the
details to persons or bodies to whom they delegate their legislative
powers

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How it works?
■ Parliament & the State Assemblies may confer or delegate some of
their legislative powers to a person or body, usually the Yang di-
Pertuan Agong, a Minister or a local authority such as Town Council
■ E.g. the Insurance Act 1963 is passed by Parliament
■ Under section 45 of the Act, power is conferred on Minister to “make
regulations for carrying into effect the objects of this Act, and for
prescribing anything which under this Act is to be prescribed.
■ SL is in a fact, a law passed by a subordinate authority under powers
conferred upon it by an Act, commonly called the parent or enabling
Act.
DELEGATED LEGISLATION
PARLIAMENT

DELEGATES
AUTHORITY
SUBORDINATE BODY

THE YANG DI-PERTUAN AGONG


LOCAL COUNCIL (YDPA)

MINISTERS
PROFESSIONAL BODIES
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Advantages of Subsidiary Legislation

1. Flexibility
■ Its flexibility in circumstances which demand this
flexibility i.e currency control, import duties etc
■ Minister can act quickly but with the same authority
as legislature
Advantages of Subsidiary Legislation
2. Easy to rescind
■ A ministerial regulation can be easily rescinded by the minister if it
becomes impractical or outdated
■ Section 23 of Interpretation Act
■ Eleventh Schedule of the Federal Constitution provides :
■ “where an Ordinance or enactment confers power on any authority
to make subsidiary legislation, such subsidiary legislation may at
any time be amended, varied, rescinded, revoked by the same
authorithy and in the same manner by and which it was made”

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■ In contrast, an Act or Parliament or the State Assembly
can only be amended or repealed by another Act of the
same legislature, unless it has been expressly authorized
otherwise

■ Further, legislature is not in continuous session so that


any legislative initiatives must await for the next
parliamentary session unless parliament is convened for
emergency or special sessions
Advantages of Subsidiary Legislation
3. Fast
■ In the event sudden emergency caused by political, economic or
natural calamities when quick measures are required to meet the
contingency.
■ Under Article 150 of the Federal Constitution, the YDPA is empowere
to proclaim a state of emergency if he is satisfied that “ a grave
emergency exists whereby the security, or economic life, or public
order in the Federation or any part thereof is threatened.”
■ During the duration of emergency, the YDPA if satisfied that certain
circumstances render it necessary for him to take immediate action,
may promulgate laws which will be called Ordinances.
Limitation of Subsidiary Legislation
1. Lack of supervision
Such legislation is made under powers given by Parliament and it is considered
appropriate to some cases that Parliament should supervise the exercise of
those delegated powers

2. Ultra vires
The second main limitation is the doctrine of ultra vires. The power to make
delegated legislation is given for specified purposes and such legislation is invalid
if it exceeds the scope of the delegated power to legislate

3. Automatically repealed
If the parent statute is repealed, and in the absence of any saving clause to the
contrary, the subsidiary legislation automatically ceases to exist.
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Sub-Delegation
■ Sub-delegation occurs when a statute vests powers in one authority
and this authority delegates the power to another
■ An example of a sub-delegation authorized by the Federal Constitution
is Part X.
■ Several services commissions are established with powers to appoint,
confirm, replace, promote, transfer members of respective service
■ Sub-delegation occurs under Article 144(5B) which provides expressly
for the delegation of the function of the Public Services Commission to
a Board.
Control of Subsidiary Legislation

■ Consultation
■ Publicity
■ Parliamentary Control
■ Judicial review of Subsidiary Legislation
Padlet activities

■ Explain parliamentary control – through questioning the relevant minister during


parliament session & through the procedure in the Parent Act.
■ Explain judicial review of subsidiary legislation – judge will decide whether the law
made by the Minister is valid or not valid. – judge will check whether it contravene
any provision in the Federal Constitution, whether it is ultra vires.

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