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As conclusion it can be said that if the subordinate or delegated legislation goes beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground. It is a mechanism to curb down the exploitation of power by the administrative authority as we all know that “power corrupts and absolute power corrupts absolutely”. However in this field there is lack of development and there is no substantial change in the concept all though the changing nature of the current legislative method has widen the horizon of the power of the authority by giving them power to act according to the need of the time even sometimes travelling beyond the restrictions.
RETROSPECTIVE EFFECT
EXCLUSION OF COURTS
imply certain restrictions on the general power to make subsidiary legislation. One such implied restriction is that regulations should not have retrospective effect unless the parent Act expressly or by necessary implication confers a power to that effect.Parliament can enact laws with retrospective effect, but a subordinate legislator has to act within the limits of the power to delegated to him, and a mere general power to make regulations within retrospective effect. The reason for this rule is that retrospective legislation disturbs the vested rights of people, and this only the legislature should do.
implied restriction read by the courts into the general power to make regulations is that jurisdiction of the courts should not be excluded through subordinate legislation and that access to the courts is not to be denied save by clear words in the statute. It’s guard the right of the citizens to have recourse to them to settle their dispute.
UNREASONABLENESS
FINANCY LEVY
Cannot be imposed through administrative regulation under the general power to make regulations except when the Parent Act specifically and expressly confers for that purpose.
One can challenge the validity of the SL on the ground that it is unreasonable.
The test of ‘unreasonableness’ can be applied by the courts to subsidiary legislation.
The principle was enunciated in Kruse v Johnson in relation to bye-laws made by local bodies.
Case McEldowney v Forde. The Minister had power to make regulations for making further provisions for ‘the preservation of peace and the maintenance of order’. He made a regulation saving that any person who became a member of ‘an unlawful association’ was to be guilty of an offence.
Executive could justify a charge upon the subject only if it could show in clear terms that Parliament had authorized the particular charge.
Atkin stated that “The circumstances would be remarkable indeed which would be induce the Court to believe that legislature had sacrificed all the well-known checks and precautions, and not in express words, but merely implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject”.
SUBSIDIARY LEGISLATION ULTRA VIRES PARENT ACT
the subsidiary legislation goes beyond the scope of the authority conferred by the Parent Act. Any rule or regulation by the public authority must not contradict with the Parent Act which enacted by parliament.
If the subsidiary legislation against with the Parent Act means that all the rule or regulation are invalid.
Case of Ghazali v Public Prosecutor
PARENT ACT ULTRA VIRES FEDERAL CONSTITUTION
SUBSIDIARY LEGISLATION ULTRA VIRES FEDERAL CONSTITUTION
Subsidiary legislation contradicts with the Federal Constitution.
Should refer to constitutional law to assess whether the subsidiary legislation concerned contravenes the provision of the Federal Constitution
Case of:
Osman v Public Prosecutor (1968)
This happen when the Parent Act has provision which contradict with the provisions of the Federal Constitution.
If there is any law that contravenes with the constitution, the latter will prevail
Case of:
Johnson Tan Han Seng v Public Prosecutor
Substantive ultra vires refers to the scope, extent and range of power can refer by the statue to make subsidiary legislation. It is based on the principle that legislative power belongs to the parliament and that any other subordinate agency has no power to legislate except to the extent allowed by the Parent Act.
MANDATORY
DIRECTORY
Mandatory means subsidiary legislative must need consultation with specific body, opportunity for affected persons to file for objections and pre-publication of draft rules.
Directory means public bodies need not follow the procedure or in easy words non-compliance with the procedure will not make the subsidiary legislative invalid.
Procedural ultra vires is how the power is exercised beyond the power given. In whatever situations encounter by the people, there must be a certain procedure that needs to be followed so that will not reach to an invalid decision.
Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280 delegated legislation required the Minister of Labour to consult ‘any organization … appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’ about the establishment of a training board. The Minister failed to consult the Mushroom Growers’ Association which represented about 85 per cent of all mushroom growers.
Ultra vires is a Latin term, meaning "beyond powers". The term is usually used to refer acts taken by a corporation or officers of a corporation that are taken outside of the powers or authority granted to them by law or under the corporate charter.