1) MUHAMMAD HAZIQ FIKRI BIN HISHAMUDDIN.

2019271186

2) ALYA DIYANAH BT SHAHRONNIZAL 2019420712

3) IZZAH SYAMIMIE BT ROSENI 2019287526

4) ANIS MAISARA BT ASMAWI 2019416718

TUTORIAL WEEK 3
EQPS: JUNE 2018
PART B: QUESTION 2

Under the Grab Car Act 2018 (fictitious), the Minister of Transportation is empowered to make
regulations regarding the registration of Grab Cars. The regulations need to be tabled in parliament
before the enforcement. The Minister made the following regulations:

Regulation 2: The owner of each successfully registered Grab Cars must pay RM2000
annually for transportation tax.

Regulation 4: The decision of the Minister is final and cannot be challenged in any courts of law.

Regulation 6: All Grab Cars must be imported, and national cars are not allowed to be used as Grabs
cars.

The above regulations were enforced on May 2018 but were not tabled in Parliament as required by
the said Act.

Danny wants to register his national car as a Grab Car to gain some additional income. He is not
satisfied with the regulations made by the Minister.

Advise Danny.

ANSWER

INTRODUCTION

According to Section 3 of the Interpretation Ac Act 1948 & 1967, subsidiary legislation can
be defined as ‘Any proclamation, rule, regulation, order, notification, by-law, or other instrument
made under any Act, Ordinance, or other lawful authority & having legislative effect’. Subsidiary
legislation also known as delegated or subordinate legislation is a law made through delegated powers
derived by the legislature, which is Parliament. Vadalism By-Laws 1993, Animal (fees) Rules 1952
are example of subsidiary legislation.

ISSUE

Whether Danny may challenge the Regulations made by Minister of Transportation.

RULE OF LAW

1. Procedural Ultra Vires

Administrators must follow certain procedures laid down by the parent statute in making
subsidiary legislation. There are two types of procedure which are mandatory procedure that must be
followed and directory procedure that need to be followed by the administrators in order to make
subsidiary legislation. Examples of mandatory procedure that must be followed are requirement of
consultation with a specified body, opportunity for affected persons to file for objections, pre-
publication of draft rules or gazette and subsidiary legislation must be tabled in parliament.

For example, in the case of agricultural, Horticultural and foresty industry training Board c
Aylesbury Mushroom. The Secretary of State proposed to introduce new regulations for the training
of agricultural workers. The invitation notice was not received but the regulation was made. The
respondent argued that it was bound by the regulations because the industry had not be consulted as
required. The court held that the regulations were not binding on the defendant as consultations is
required more that the mere giving of notice.

2. Financial Levy

Levy or tax cannot be imposed through subsidiary legislation unless it was permitted by
Parent Act. Whether the charge is imposed by the administrator is the financial levy or not is
determine by the court. The validity depends on the availability of express provision in the Parent Act
authorizing such charge to be imposed.

For example, in the case of AG v Wilts United Dairies, the appellant brought this case to the
court because they were ordered to pay the Controller a levy per gallon of milk purchased. The court
held that, the levy was imposed is not valid because there was no express provision in the Parent Act
that allowed such a levy to be charged.
 3. Exclusion of Court

An administrator must ensure that the subsidiary legislation passed must not exclude the
courts from making any judicial review. It must not contain any provision which does not allow any
interference from the courts, except if the Parent Act has expressly allowed the exclusion of the courts.
Besides, any parties should be given platform to challenge the subsidiary legislation. Administrator
should not include the provisions such as no appeal is allowed, and the decision or rule of
administrator is final and conclusive.

For example, in the case of Chester v Bateson, a regulation brought in under the 1914 Act
prohibited the bringing of possession proceedings against a munition’s worker without the consent of
the Minister. The court declared that such regulation is invalid because the prohibition was unlawful.

4. Unreasonable

Unreasonable can be defined as absurd or illogic or cannot be accepted by reasonable

minded. The validity of subsidiary legislation can be challenged on the ground of unreasonableness.
For example, in the case of Air India v Nergesh Mirza Air, Air India made a rule that any hostess
needs to retire on their first pregnancy after marriage. The Supreme Court held that the rule is
unreasonable which was extremely abhorrent to the notions of a civilized society.

APPLICATION

By applying Agricultural. Horticultural and Foresty Industry Training Board v

Aylesbury Mushroom, Danny may challenge the regulations made by minister of transportation for
Procedural Ultra Vires because the minister failed to table the subsidiary legislation in Parliament.
The regulations were enforced on May 2018 but were not tabled in Parliament as required by the said
Act.

By applying AG v Wilts United Dairies, Danny may challenge the regulations for financial
levy because the minister imposed the transportation tax, RM2000 for the owner of each successfully
registered Grab Cars. The levy imposed is not valid because there was not express provision in the
Parent Act which allowed such levy to be charged.

By applying Chester v Bateson, Danny may challenge the regulations for exclusion of court
because it was stated in the regulation that the decision of the minister is final and cannot be
challenged in any courts of law.
 By applying Air India v Nergesh Mirza Air, the regulations are unreasonable because
national cars are not allowed to be used as Grabs Cars which was extremely illogic to the notions of
the society.

CONCLUSION

Yes, Danny may challenge the regulations made by Mister of Transportations.