ULUP2024

SUBSIDIARY
LEGISLATION
PM Dr Haslinda Mohd Anuar
Senior Lecturer
School of Law
Definition

■ S3 of the Interpretation Act 1948 an 1967 – subsidiary

legislation is defined as meaning ‘any proclamation,
rule, regulation, order, notification, bye-law, or other
instrument made under any Act, Enactment, Ordinance
or other lawful authority and having legislative effect’
■ The definition emphasises two aspects of subsidiary
legislation
– It is made under an Act of the legislature
– It has legislative effect
Types and characteristics of
subsidiary legislation
■ The most common used expression is ‘regulation’
■ In a few statutes, the expression ‘rule’ is used instead
of ‘regulation’.
■ The term ‘order’ and ‘notification’ are used when
power is conferred to do some specified act, e.g to
grant exemption from the operation of the Act, along
with the general power to make regulations.
■ The term ‘bye-law’ is used more appropriately for
legislation by municipal or such other bodies.
Types and characteristics of
subsidiary legislation
■ Not every order, notification etc is subsidiary
legislation – regarded as administrative in nature
■ De Smith, ‘A distinction often made between
legislative and administrative acts is that between the
general and the particular’.
■ A directive is administrative in nature if it is issued to
a specific body on policy matters
Factors that contribute to its
developments
■ The modern state discharges multifarious functions; it has to come to
manage a large part of the socio economic life of the people
– Need for more and more legislation.
– This puts a great pressure of work on the legislature which has to
discharge, besides legislating, other functions as well, such as,
holding debates on matters of national importance, discussing the
budget etc.
– The legislative is not able to cope with the legislative programme
fully.
– The legislative saves time by confining itself to broad principles in
the law it enacts leaving the details to be formulated by the
concerned administrative authorities
Factors that contribute to its
developments
 If a law were to contain all the details, it would become very
prolix and cumbersome, and the common man might find it
difficult to understand.
◦ The detail tend to become technical and complex and only
professional experts specialised in the subject matter can work
them out, rather than legislators who are generalists and not
specialists.
◦ It may not be possible to work out the necessary details before a
legislation is enacted
◦ It may be thought advisable to consult the interests affected in
framing details under a law, and the administration may be
depended upon to do so.
Factors that contribute to its
developments
■ The system of delegated legislation has the advantage of flexibility,
elasticity, expedition and experimentation.
– Many socio economic schemes, at the stage of legislation, are
experimental in nature.
– If details were to be included within the statute, then each time a
change becomes necessary therein, the legislature will have to
pass an amending legislation.
– Through delegated legislation, it is possible to effect necessary
changes in the details from time to time so as adapt them
constantly to unforeseen and unknown future contingencies, and
rapidly utilise the experience gained without recourse being had
to the legislature to enact an amending legislation.
Factors that contribute to its
developments
■ There is a need to meet emergency situations.
– The legislature cannot be convened at a short notice,
nor can it churn out legislation at the spur of the
moment.
– It is prudent and expedient to arm the administration
with some stand-by power enabling it to take action at
a short notice by promulgating necessary rules and
regulations according to the needs of the situations
Control over subsidiary
legislation
■ 4 types of controls;
– Judicial control
– Legislative control
– Publication control
– Consultation of interest
Judicial control

■ The courts exercise control over subsidiary legislation

on a number of grounds;
1. Whether parent act which delegates the power of
subsidiary legislation is itself constitutional or
not?
2. Whether the subsidiary legislation is
constitutional or not?
3. Whether the subsidiary legislation is ultra vires
the parent act or not?
Judicial control

1. Whether parent act which delegates the power of

subsidiary legislation is itself constitutional or not?
– If the statute is unconstitutional then it cannot be
the source of any delegated legislation.
– Johnson Tan Han Seng v PP (1977) 2 MLJ 66
Judicial control

2. Whether the subsidiary legislation is constitutional

or not?
– The court will strike down delegated legislation if
it comes in conflict with a constitutional
provision.
– Osman v PP [1968] 2 MLJ 137
– PP v Khong Teng Khen [1976] 2 MLJ 166
– Teh Cheng Poh v PP [1979] 1 MLJ 50
 Judicial control
3. Whether the subsidiary legislation is ultra vires the parent
act or not?
– Subsidiary legislation can be challenged before the courts
on the ground that it is ultra vires the parent act,
– 2 types of ultra vires;
1. Substantive ultra vires – the delegated legislation goes
beyond the scope of the authority conferred by the
parent act
2. Procedural ultra vires – the prescribed procedure is not
complied with while making delegated legislation.
Judicial control

■ Substantive ultra vires

– Principle: legislative power belongs to parliament and that any
other subordinate agency has no power to legislate except to the
extent that legislative power is conferred thereon by parliament
making a law.
– S23(1) of the Interpretation Acts 1948 & 1967 – any subsidiary
legislation which is inconsistent wit an Act of Parliament ‘shall
be void to the extent of inconsistency’
– S25 of the Interpretation Act – subsidiary legislation shall be
deemed to be made under ‘all powers thereunto enabling,
whether or not it purports to be made in exercise of any
particular power or powers’
Judicial control

■ Subsidiary legislation made by the state government

must consistent with a federal law.
– City Council of George Town v Govt of Penang
[1967] 1 MLJ 169
– A75 PP – any subsidiary legislation made by the
state government inconsistent with a federal law
will be invalid.
Judicial control

■ A rule is invalid if it comes in conflict with a statutory

provision
– PP v Rajamah [1980] 2 MLJ 280
■ A clause in an order made by the Ipoh
Municipality under s62 of the Road Traffic
Ordinance 1958 was held to be invalid, for
while s67(7) prescribed a maximum fine of
RM100 for breach of an order made under s62,
the said clause prescribed punishment in excess
thereof.
Judicial control

■ Retrospectivity
– Regulations should not have retrospective effect unless the
parent act expressly or by necessary implication confers a
power to that effect.
– A7(1) FC – prohibition on enactment of ex post facto laws
– S20 of the Interpretation Acts 1948 & 1967 – subsidiary
legislation may be made to operate retrospectively ‘to any date’
which not earlier than ‘the commencement of the Act’ under
which it is made - Subject to the qualification that no person
shall be made or shall become liable to any penalty in respect of
any act done before the date on which subsidiary legislation was
published
Judicial control

■ Exclusion of courts
– Jurisdiction of the courts should not be excluded through
subordinate legislation and that access to the courts is not to be
denied saved by clear words in the statute.
– Chester v Bateson [1920] 1 KB 829
■ A war-time case, the court declared a regulation invalid
because it forbade property owner from having access to
courts, without the consent of the minister, to eject tenant
from their houses if they were employed in work connected
with war material. Court: such ‘an extreme disability can be
inflicted only by direct enactment of the legislature itself’.
Judicial control

■ Financial levy
– A charge or a financial levy cannot be imposed
through administrative regulation under the general
power to make regulations except when the parent act
specifically confers power for the purpose.
Judicial control

■ Unreasonableness
– The test of ‘unreasonableness’ was enunciated in Kruse v
Johnson [1898] 2 QB 91 – ‘if, for instance, they (bye-laws)
were found to be partial and unequal in their operation as
between different classes; if they were manifestly unjust; if
they disclosed bad faith, if they involved such oppressive or
gratuitous interference with the rights of those subject to
them as could find no justification in the minds of
reasonable men, the court might well say, ‘parliament never
intended to give authority to make such rules, they are
unreasonable and ultra vires’.
Judicial control

■ Arlidge v Islington Corporation [1909] 2 KB 127

– A bye-law obligated the landlord of a lodging-house ‘in
the month of april, may or june in every year’, to cause
every part of the premises to be cleansed. Penalty was
imposed for breach of the bye-law.
– Held: the bye-law to be invalid as being unreasonable as
it imposed an absolute duty on every landlord to cause
the premises to be cleansed without regard to the
position in which the landlord might be. He might be
quite unable to carry out the work without either
breaking a contract or committing a trespass
Judicial control

■ Procedural ultra vires

– The parent act may lay down certain procedures for the subordinate
legislator to follow while making subsidiary legislation.
– Non-compliance with the prescribed procedure may result in making
the subsidiary legislation ultra vires
– However it depends on whether the courts regards the procedural
requirement as mandatory or directory
– The subsidiary legislation is ultra vires if a mandatory procedural
norm is not complied with.
– Disobedience of a directory procedural rule results in an irregularity
not affecting the validity of the subsidiary legislation made.
Judicial control

■ On consultation, the courts tend to treat a procedural norm

requiring consultation with a specified body as mandatory.
■ Banwarilal Agarwalla v State of Bihar AIR 1961 SC 849
– When a statute says that the rule-making authority
shall refer the draft rules to a statutory body and seek
its advice as to the expediency or suitability of the
proposed rules before finalising them, the rules made
without observing the procedure are ultra vires
Legislative control

■ Since it is the legislature which delegates legislative power to

the administration, it is primarily its obligation to supervise and
control the actual exercise of this power and ensure that the trust
reposed in the executive by it is properly executed and that no
unwarranted or improper exercise of the delegated power is
made.
■ 2 main stages in the scheme of parliamentary supervision;
– Laying of delegated legislation before the legislature
– Scrutiny of the delegated legislation by a parliamentary
scrutiny committee and debate or discussion on delegated
legislation on the floor of the House.
Legislative control

A. Laying procedure
– The idea is that if the legislature is to exercise any control, it
is necessary that it be informed of the delegated legislation
made or proposed to be made.
– The ‘laying’ procedure may either require;
■ Delegated legislation be laid before the House in draft
form – the House may know what the executive
proposed to do
■ Delegated legislation be laid after it has been made in
which case the delegated legislation becomes effective
before the legislature is informed of the same.
 Legislative control
■ Britain –
– The Statutory Instrument Act does not make laying obligatory. It only
lays down the procedure when the Act prescribes for a form of laying.
– 5 forms of laying;
1. Laying simpliciter
– The purpose of a simple laying formula is only informational.
– S4(1) of the Statutory Instruments Act 1946 – when such
formula is incorporated in a statute, a copy of the instrument
must be laid before each House before it comes into
operation.
– Eg – the Act may say simply that the statutory instrument
made under it ‘shall be laid’ before parliament.
Legislative control

2. Laying with annulment resolution

– Where an Act provides that a statutory instrument shall be
subject to annulment in pursuance of a resolution of either
House of parliament, the instrument is to be laid as required by
s4(1) of the Statutory Instrument Act
– If either House, within the period of 40 days beginning with the
day of laying, resolves that an Address be presented to Her
Majesty praying that the instrument be annulled, no further
proceedings are to be taken thereunder after the date of the
resolution.
– Note: the instrument comes into force first and the annulment
resolution is passed later.
Legislative control

3. Laying in draft subject to annulment

– S6(1) of the Statutory Instrument Act – the draft of the
instrument shall be laid and the instrument shall not be
made until after the expiration of 40 days beginning from
the day of laying.
– If within that period either Houses resolves that the
instrument be not made, no further proceedings are to be
taken thereon.
– Note: the instrument comes into force 40 days after laying
unless annulled in the meantime.
Legislative control

4. Laying subject to affirmative resolution

– A statute may provide that regulations will come into
force as soon as made, but will lapse unless expressly
approved by parliament within a stipulated time-
period.
– The government has to seek approval of the Houses if
it wants the rules to remain in force after the
stipulated period.
– If no action is taken, the rules will lapse automatically
Legislative control

5. Laying in draft subject to affirmative resolution

– The most effective parliamentary control over
subordinate legislation – the rules shall be laid in
draft form before the Houses of parliament and shall
not come into force unless the Houses pass the
necessary affirmative resolution.
Legislative control

■ Malaysia
– ‘laying’ provisions are not very common and occurs only in a few
statutes.
– 3 laying formula;
1. A simple laying formula
– S8(2) of the Summonses and Warrants (Special Provisions)
Act 1971 – ‘Any rules made under this section shall be laid
before each House of Parliament’
– S36(2) of the Financial Procedure Act – ‘Regulation made
under this section shall when made have full force and
effect and shall be laid before the Dewan Rakyat as soon as
possible after they are made’
Legislative control

– The laying procedure is informational in nature and is

only directory and failure to lay the regulations before
parliament does not affect their validity though it may
amount to a technical breach of the statute.
– After laying, no discussion or debate on the
regulations concerned is envisaged.
Legislative control

2. ‘laying’ with negative resolution

• S19(3) of the Control Imported Publications Act 1958 – ‘ All
regulations made by the minister under this section shall be
published in the Gazette, and, as soon as possible thereafter,
shall be laid before the Dewan Rakyat; and if, at the next
meeting of the Dewan Rakyat after the regulations are so laid
the Dewan Rakyat passes a resolution annulling the
Regulations or any part thereof, the whole or part, as the case
may be, of the regulations shall be void, but without prejudice
to the validity of anything previously done thereunder or to the
making of any new regulations, as from the date of notification
in the Gazette of the passing of the resolution’
Legislative control

– S17 of the Elections Act 1958, s20(1) of the Wage

Councils Act 1947, s7(3) and (4) of the
Telecommunications Act 1950 – provides for the
making of regulations by the minister. These
regulations are to be laid before Dewan Rakyat and
may be annulled by the House within 40 days.
Legislative control

3. ‘laying’ subject to affirmative resolution

• S15(1) of the Sales Tax Act – the minister has the power to
fix the rates of sales tax from time to time. S15(2) – ‘any
order made under subsection (1) of this section, at the next
meeting of the House of representative be laid on the table
of such House and shall, at the expiration of ten days from
being so laid or of such extended period as the House of
representatives may, by resolution, direct, cease to have
effect if insofar as it not confirmed by a resolution passed by
the House of representatives within the said ten days or, if
such period has been extended, within such extended period.
Legislative control

– S46(2) of the Exchange Control Act – ‘all such

regulations shall be laid down before the Dewan
Rakyat as soon as practicable after they are
made but shall not continue in force thereafter
unless approved by resolutions of the Dewan’.
Legislative control

B. Parliamentary Scrutiny Committee

• A parliamentary scrutiny committee to keep watch over the
exercise of subordinate law-making powers on behalf of the
House and make a report to it.
• This committee has been functioning in the House of Commons
since 1944 – emerged as a result of the recommendations of
the Donoughmore Committee which suggested the creation of
such a committee not as a ‘critic’ or ‘censor’ of the substantive
regulations but ‘to supply the private member with knowledge
which he lacks at presents, and thus enable him to exercise an
informed discretion whether to object or criticise himself’
Legislative control

■ Since 1973, this committee has been converted into a Joint

Committee on Statutory Instruments of both House of Parliament.
■ Each House appoints a committee of seven members and both these
committees then constitute the Joint Committee.
■ The committee is required to consider every instrument laid or laid in
draft before the Houses with a view to determining whether the
attention of the House should be drawn to it on any of the following
grounds;
– That it imposes a tax or charges or any payment to a public authority for any
licence or service rendered by it;
– That by virtue of the enabling statute it is excluded from challenge in the
courts;
Legislative control

■ That it appears to make some unusual or unexpected use of

the delegated power, or there appears to be a doubt whether
it is intra vires;
■ That it purports to have retrospective effect, where no such
express authority was conferred by the parent statute;
■ That there appears to have been some unjustifiable delay in
the publication or laying of the instrument;
■ That the instrument has come into force prior to ‘laying’ and
the speaker of the house has not been promptly notifies
thereof;
■ That for any special reason its form or purport requires
elucidation;
Legislative control

■ That the drafting appears to de defective; or

■ Any other ground which does not impinge on its
merit or on the policy behind it
– And to report its decision with the reasons
thereof in any particular case.
Legislative control

– If the committee finds any falling within its term of

reference, it will call for an explanation or observation
from the concerned departments, and may then report to
the houses.
– It is for any member to take up the matter on the floor of
the House; the member may raise the matter in a suitable
form; the committee’s task is at the end and the
committee as such does not take any action in the House.
– The committee has been characterised as the ‘watchdog’
of parliament on delegated legislation
– Malaysia parliament has not so far developed any
mechanism of a scrutiny committee.
Publication

■ ‘Ignorance of law is no excuse’ but this axiom can apply only

when the law is properly publicised so that people may have an
opportunity to know the law.
■ Britain –
– Statutory Instruments Act 1946 ensures an orderly and
systematic publication of the bulk of delegated legislation.
– S2(1) SIA - A statutory instrument is to be sent to the Queen’s
Printer as soon as it is made and is numbered, printed and
sold to the public.
– S4(2) SIA – statutory instruments must contain a statement on
their face of the date on which they will become operative
Publication

– S3(2) SIA – the prosecution may prove that nevertheless of

the date reasonable steps has been taken to bring the
purport of the instrument to the notice of those likely to be
affected by it.
– Meaning that actual publication or knowledge of the
instrument is not necessary – what is necessary is that
either
■ the instrument had been published and issued before the
date of its infringement, or
■ Reasonable steps had been taken to bring its purport to
the notice of the persons likely to be affected by it
Publication

– Simmonds v Newell [1953] 1 WLR 826

■ A price order was not published. The prosecution did
not discharge the onus by proving that at the date of
its contravention ‘reasonable steps had been taken’
to bring its purport to ‘the notice of the public’.
■ Held: the defendant was not convicted for breach of
the order.
– Reg v Sheer Metalcraft Ltd [1954] 1 QB 586
■ Publication of an instrument is only directory, purely
a matter of procedure
Publication

– Under SIA, an instrument may become effective and

operative before its publication.
– Publication of the instrument in the manner
prescribed is a notice to every one of its existence
– lack of publication of an instrument thus only raises
the question of lack of notice of its existence, but
notice can be proved otherwise than publication.
Publication

■ USA –
– Before 1935 – no provision for publication of delegated
legislation
– Panama Refining Co v Ryan 293 US 388 (1935)
■ Supreme court found that because of inadequate
publicity none was aware that a regulation on which the
proceeding were based in the case had been revoked.

■ This disclosure led Congress to enact the Federal

Register Act 1935.
Publication

– The Act establishes a Federal Register and provides for

publication of rules therein
– Rules are not to be enforceable against a person having
no actual knowledge of them or unless published.
– S552(a)(1) Administrative Procedure Act 1946 – every
agency is required to publish in the federal register
‘substantive rules of general applicability adopted as
authorised by law, and statements of general policy or
interpretations of general applicability formulated and
adopted by the agency’ for the guidance of the public.
Publication

 S553(d) APA – substantive rules are to be published at least 30 days

before the effective date except ‘as otherwise provided by the agency
for good cause found and published with the rules’
■ This gives a discretion to the agency to bring into immediate
force rules which it thinks should be enforced immediately in the
public interest.
– S552(a)(1) APA – ‘except to the extent that a person has actual and
timely notice of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter required to
be published in the federal register and not so published’.
■ The approach seems to be regard publication of rules as directory
Publication

■ Malaysia -
– There is no general statutory provision in Malaysia
requiring publication of delegated legislation.
– Originally, s8(2) of the Interpretation Act 1967 requires
‘subsidiary legislation shall be published in either the
federal gazette or a state gazette;, but this provision was
removed by Act 40 of 1968.
– Gaming Tax Act 1972 –
■ S2(1) – the minister may impose a gaming tax ‘by order
published in the gazette’
■ S2(3) – the minister ‘may make regulations’
Publication

– Sales Tax Act 1972 –

■ S15(1) – the minister may fix rates of sales tax by an order published
in the gazette
■ S61 – the minister can make regulations.
– Q: whether the publication in the gazette mandatory or merely directory?
■ A distinction has to be drawn between a formula saying that an order
‘shall be made through publication in the gazette’ and another
formula saying that ‘regulations shall be made and published in the
gazette’.
– First situation – publication can be regarded as a pre-condition
of ‘making’ and hence ‘mandatory’
– Second situation – publication follows ‘making’ of the regulation
and hence it is only directory.
Publication

■ M Ratnavale v Govt of the Federation of Malaya [1963] MLJ 393

– S2 of the Delegation of Powers Ordinance 1952 authorised
the High Commissioner to delegate any of his statutory
powers to any officer ‘by notification in the gazette’. The
word ‘by notification’ were interpreted to mean that any
delegation can be made by ‘notification in the gazette’ and
not otherwise.
– Held: ‘the act of delegated legislation is only complete when
the instrument of delegation is contained in a notification
published in the gazette’ and that ‘notification itself must be
the operative act of delegation’.
Publication

■ Since majority of statutes do not require publication of regulations

made thereunder, reference needs to be made to the Interpretation
Acts 1948 & 1967 to assess the position in this regard.
■ S18(2) – publication in the official gazette of the federation ‘shall
constitute sufficient notice’ of any matter required to be published
in the gazette by or under any federal law – a declaratory in nature.
■ S19(1) – commencement of subsidiary legislation ‘shall be the
date provided’ in the subsidiary legislation or, where no date is so
provided, ‘the date immediately following the date of its
publication’ in the gazette.
Publication

■ S19(2) – the subsidiary legislation ‘shall come into

operation immediately on the expiration of the day
preceding their commencement
– Reading s19(1) & (2) together – the position appears to be that the
regulation-making authority may bring a regulation into immediate
effect as soon as it is made without publication
■ Proviso S20 – no person shall be liable to any penalty in
respect of any act done before the date which the subsidiary
legislation was published.
– The provision uses the word ‘publication’ and not publication in
the gazette.
Publication

■ The official gazette of the Malaysia federation is published in several

parts & 2 parts are relevant for publication of the subsidiary
legislation.
– Legislative Supplement A, published as and when necessary,
contains all Royal Proclamations, Orders, rules, regulations and
bye-laws
■ The instruments are serially numbered with the prefix PU(A)
– Legislative Supplement B, published as and when necessary,
contain all subsidiary legislation other than that which is
required to be published in the Legislative Supplement A.
■ The instruments are serially numbered with the prefix PU(B)
Consultation of interests

■ The rationale underlying the consultative technique is that in the

legislature, various interests are represented which can have their say
when the legislature legislates.
■ The process of exchange of ideas also helps the law-maker insofar as
it can gather the necessary information regarding the issue involved
and have a better appreciation of the situation so that the regulations
made by it have a better chance of coping and of the rules being
accepted and observed by the affected interests.
■ The administration can collect knowledge and data from the
concerned interests which can make it wise as regards the
significance, effect and practicability of the proposed subsidiary
legislation.
Consultation of interests

■ Britain –
– Britain has no general statutory provision for this purpose
– S1 of the Rules Publication Act 1893 – while making rules
which required to be laid before parliament, at least 40 days’
notice of the proposed rules be given in the London gazette and
the rule-making authority take into consideration, before finally
setting the rules, any written representations or suggestions
made by any interested public body.
– The government argued that consultation with concerned
interests had become a routine matter, that the departments
always carried on this process, and so no specific law was
needed for the purpose.
Consultation of interests

■ USA –
– The technique is used very widely in the rule-making process in
the USA.
– The APA lays down a general, minimal, obligatory procedural
requirement of prepublication for this purpose.
■ S553 – a general notice of not less than 30 days of the
proposed rule-making is to be published in the federal
register specifying the time, place and nature of the rule-
making proceedings, the authority under which the rules are
to be made, and either the terms or substance of the
proposed rules or description of the subjects and issues
involved.
Consultation of interests

■ Malaysia –
– Consultative technique is rarely prescribed as a formal statutory
requirement for regulation-making.
– It is to the terms of each statute therefore that one has to look to find
out what, if any, consultative procedure has been prescribed.
– Common technique;
1. The rule-making body may be required to consult an official body
– S36(1) of the Financial Procedure Act 1957 – YDPA to make
regulations after consulting the National Finance Council, an official
body.
– S132(1) of the Commodities Trading Act 1985 – the minister may
make regulations after consulting the Commodities Trading
Commission.
Consultation of interests

2. A statute may lay down that before a subsidiary

legislation is made, opportunity must be given to make
representations to a designated statutory body on
which the concerned interests may be represented.
• S99 of the Employees’ Social Security Act – the
minister cannot grant exemptions under s97 and 98
from the provisions of the Act unless ‘ a reasonable
opportunity’ has been given to the Social Security
Organisation (SOCSO).
Consultation of interests

3. In a number of statutes, regulation-making power has

been conferred, subject to the minister’s approval, on
statutory bodies in which the concerned are represented
• S43 of the Dental Act 1971 - The Dental Council where
Dental Surgeons are represented has power to make
regulations.
• s7 of the Port Authorities Act 1963 – for the purpose of
advising the authority, the minister may appoint for a
port, a Port Consultative Committee consisting of some
officials and such other persons whom he may appoint
from time to time.