Course: Administrative Law

Title: Date: 2019- 5-16

1st Point of Whether or not the ministers decision being an absolute discretion is
Paragraph 2 open to challenge in court?
Case: Persatuan Aliran Kesedaran Negara
,mmm
- The construction and operation of cinemas and public entertainment
premises is not a matter which is falling under t 4 categories of
unreviewable discretions: prerogative of mercy, not an exercise of
power under A145, it’s not related to doctrine of pleasure and it’s not a
preventive detention matter.
Therefore, the minister’s decision is reviewable.

2nd point of Ouster clause:

Paragraph 2 is the provision tat t parliment included in the statue
to say tat no actions or decision make by the minister shall be
questioned, challenge or review by any court under any ground.
This’s an attempt to make whatever decisions tat they make to be
unreviewable, to ADD ON to this. BUT,
the law in UK, India & M’sia had developed to the extent tat
eventhough there’s such a clause in t statue,
It doesn’t mean tat the court is completely kitab from review.
This is beCoz, the court said if these happened tat parliment will keep
making statue with ouster clause and the court will hv no restrictions or
no power at all to come in and review administrative decisions.
And tat will be detrimental to the pp like us.
So tat The court would actually devise away to say tat although there’s
a ouster clause in the our secong paragraph, the court can still review if
there’s an error of law.
The error of law is ....
Relevant case:
a. Syarikat Melayu Kelantan
b. Transport Union Workers

1st ISSUE
Implied substantive limitations : Abuse of discretions : Improper
Purpose
Cases:
a. Sydney Municipal Council v Campbell
b. Pengarah Tanah & Galian, WP v Sri Lempah Enterprise

Implied substantive limitations : Abuse of discretions :

2nd ISSUES Unreasonableness
It’s an unreasonable as determining
tat men betw. 65 to 70 must pay for the fair and not women (Prescott v
Birmingham Corporation)
it’s as unreasonable as to impose a condition to change the freehold
land title to a 99 year lease code. (PEngarah Tanah & Galina, WP v
Sri Lempah Enterprise)
It’s also unreasonable as imposing the numbers of speakers tat u can
allow in yr assembly where u had ald had determine the 9 period of the
assemble (Chai Choon Hon v Ketua Polis Daerah Kampar)

Some of u might argue tat u also had taken into account irrelevant
considerations.
Because the color of the building dosen’t affect health & safety of the
pp who goes into the cinemas.
It didn’t propose to build it in woods or whatever it’s very easy to
caught fire and also causes a lot of problem

3rd issues Implied substantive limitations : Non-exercise of discretions : fettering

discretions
Becoz you’re a minister of Arts, culture and communications,
you’re not suppose to be tight down to a policy issued by the home
minister.
Cases related:
H Lavender v Minister of Housing
The minister of Housing should have the power to decide whether u
had to approve tat piece of land to mining. WHILE
The minister of Agriculture said, nonono, tat this’s good quality land
tat we must reserve under the policy for agricuture.
Maybe also non-application of mind as he doesn’t think much just do it

Conclusion: can Lastly,

he successfully 1. eventhough there’s an Absolute discretion in the case of Aliran
challenge? Persatuan Aliran Kesedaran Negara tat said if the minister decides
*Summarise* wrongfully, unfairly, in bad faith, you can still challenge.
2. It’s not something which is an reviewable discretion,
3. For Ouster clause, the case of Syarikat Kenderaan Melayu Kelantan
and Transport Union Workers said
the court is not excluded if there’s an Error of Law.
It has been a deems of discretion, improper purpose, it has been abuse
of discretion, unreasonableness as well as taking into account irrelevant
considerations.
It hs been none exersise of discretion based on fettering discretion as
well as non application of mind.
4. In Conclusion, Mr. Tom Kurus can apply for certiorari to quashed
the decision made by the Minister of Arts, Culture and
Communications.