UNDERSTANDING SUBSIDIARY (DELEGATED) LEGISLATION
SUBSIDIARY
(DELEGATED) LEGISLATION
Subsidiary
legislation is defined in s.3 of the Interpretation Act 1948 and 1967 to mean
“any proclamation, rule, regulation, order, notification, by-law or other
instrument made under any Enactment or aother lawful authority and having
legislative effect”.
Under Article
44 of the Federal Constitution, the Parliament has full power to make laws and
it can grant to some other person or body the power to make orders, regulations
or rules which have the force of law.
In practice,
Parliament cannot discharge this duty fully for the following reasons:
- Pressure on
Parliamentary time and future development
- Technicality of
subject matter
- Flexibility
- Emergency powers
Example:
Employment Act
1955, Section 60J provides: "The Minister may, by
regulation … provide for the entitlement of employees to, and for the payment
by the employer of – (a) termination benefits; (b) lay-off benefits; and (c)
retirement benefits." Accordingly, the Minister made the regulation known
as "Employment (Termination and lay-Off Benefits) Regulation 1980.
If a parent statute is repealed, and in the absence of any saving clause
to the contrary, the subsidiary legislation automatically cease to exist. This
question was considered by the High Court in Daihatsu (Malaysia) Sdn Bhd v
Pendakwa Raya [1987] 1 MLJ 88. The appellants were charged under a by-law for
using their premises for the trade of a motor car dealer without license from
the Petaling Jaya Municipal Council. The magistrate convicted and fined them
for the offence. The appeal was on the ground that the magistrate had erred in
law when he held that by-law was valid. The high court allowed the appeal,
ruling that the by-law made by the Council in pursuant to an Enactment ceased
to be valid on repeal of a section of that Enactment by the Local Government
Act 1976.
Main types
of delegated legislation:
Regulations or
orders
- Regulations, also called 'rules' or 'orders', are
created by government departments and are the most popular form of
delegated legislation.
- They are
often statutory instruments and are normally cited by calendar year and
number, for example, P.U.(A) 188/2004, and by a short title,
Banking and Financial Institutions (Licence Fee) (Licensed Institution)
Order 2004.
By-laws
- By-laws are rules made by a governmental
authority subordinate to Parliament, such as a local authority
or independent statutory corporation, for the regulation,
administration or management of a certain district, undertaking, property,
etc.
- They are binding only on the persons
who come within this restricted scope.
- They are
statutory instruments only if the enabling or parent Act authorizing them
to be made declares them to be.
UNDERSTANDING SUBSIDIARY (DELEGATED) LEGISLATION
Reviewed by Kamaruddin Mahmood
on
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terima kasih sangat-sangat sbb upload notes ni. I'm currently searching about subsidiary legislation for my assignment. Can you upload notes about the effectiveness of parliamentary controls over subsidiary legislation too? It will be a great help for me! ^^
BalasPadam