Subsidiary Legislation

Nurul Nadhirah Binti Mohd Nidzam – 2017806978

Natasha Binti Mohd Ismail – 2017806912
Yasmin Ariffah Binti Harizal - 2017806954
LWB03C
Prepared for : Madam Nurul Huda bt Ahmad
Question 1, June 2014 All
Question 1, December 2014 Subsidiary
Legislation
Question 3, June 2015
Questions
Question 1, December 2015 are found
Question 3, June 2016 in Part B
Question 1, December 2016
Question 1,
June 2014,
Part B
 Parliament enacted the Private Hospital Act 2009 (Fictitious) with
reference to the operation of private hospitals in Malaysia. Section 2
of the Act empowers the health minister to make rules for the
purpose of controlling the management and operation of private
hospitals. Based on this provision the minister made rules known as
Private Hospitals Rules 2011. The rules provide inter alia:
 Rule 1 : All newly established private hospitals can only employ
Subsidiary local doctors
Legislation  Rule 3 : An annual fee of RM5000 will be imposed on the renewal
of practice license on all private hospitals in Malaysia and;
 Rule 4 : The above rules are applicable to all private hospitals
established since 2010.
The Malaysian Private Hospitals Association is dissatisfied with the
above rules. Analyse the facts above and advise the association
accordingly.
 Definition
Subsidiary legislation is defined as the delegation of legislative
powers by the legislative. The legislative power is delegated to
another person or body other than the Parliament. It is an important
Subsidiary aspect of modern administrative proves. Furthermore, it makes the
administration effective and efficient.
Legislation However, public authority may not act outside its powers. There are
instances of corruption of power that may be found and thus there
is an introduction to controlling mechanisms for such effect. Any
breach of these control mechanisms would be grounds for judicial
review.
  Whether the act of employing local doctors only is considered
Issue 1 : reasonable?
 Unreasonableness
Unreasonableness is when a person can challenge the validity of the subsidiary
Rule 1: legislation on the ground that it is unreasonable. This means that the provisions
made by the subsidiary legislation are unreasonably made which makes it
All newly invalid. Reasonability is subjective and thus the case of Kruse v Johnson can be
used as a guideline to refer on the grounds of unreasonableness.
established Kruse v Johnson
private hospitals This case concerns a bye-law passed by a local authority which forbade music to

can only employ play in shops at a housing area. An owner of a shop challenged the bye-law on
the ground that it was unreasonable.
local doctors The court held that it was reasonable and valid because it could avoid nuisances
in the residential area.
However, the judge mentioned on the guidelines to ensure what is reasonable
and what is not unreasonable that is:
“The court should jealously watch the exercise of these powers and guard
against their unnecessary or unreasonable exercise to the public disadvantage”
 Rule 1 – Unreasonable
Rule 1 is unreasonable as private hospitals will only be able to employ
domestic doctors and not employ any other international doctors.
International doctors are exposed to many sorts of different
Rule 1: medicines that are different from the ones in Malaysia and thus if only
local doctors are chosen then the medicine in Malaysia will not
All newly develop. The future of medicine in Malaysia will not be better and
established many people in the country will not get the help they can to get
cured. Therefore it is unreasonable to only employ local doctors as
private hospitals there will be no development in medicine in Malaysia.

can only employ Applying to the case of Kruse v Johnson, it can be seen that it would
be a public disadvantage to allow only local doctors to be employed
local doctors as the public will not be able to get better medicine from other
doctors who are more specialised in the areas of medicine that are
international and experts on certain areas of medicine. Therefore,
rule 1 is unreasonable as it only employs local doctors as there will be
no development in medicine in Malaysia.
  Whether the Health Minister can impose RM5,000 on the renewal
Issue 2 : of practice license on all private hospitals in Malaysia?
 Financial Levy

Rule 3: A financial levy cannot be imposed through administrative

regulation under the general power to make regulations except
An annual fee of when the Parent Act specifically and expressly confers for that
power. The court has a task to ensure whether the charge imposed
RM5000 will be was financial levy or not.
imposed on the AG v Wilts United Dairies
renewal of The Food Controller was empowered to “…make orders regulating
or giving directions with respect to production, manufacture,
practice license treatment, use… of any article”. Under this power, Controller issued
on all private an order that no one shall deal with any milk product without
licence. The appellants brought this case to the court because they
hospitals in were ordered to pay the Controller a levy per gallon of milk
Malaysia and; purchased. It was held that the levy imposed was not valid because
there was no express provision in the Parent Act which allowed such
a levy to be charged and this provision cannot be implied.
Rule 3:
An annual fee of Rule 3 – Financial Levy

RM5000 will be In this situation, the Private Hospital Act 2009 (Parent Act) has not
expressly or specifically confer power upon Private Hospital Rules
imposed on the 2011 (Subsidiary Legislation) to impose such taxes or financial levy.
renewal of Thus, it makes Rule 3 substantive ultra vires as the subsidiary
legislation goes beyond the scope of the authority conferred by the
practice license Parent Act. The principle in the case of AG v Wilts United Dairies is
applicable to Rule 3 as both of the levy imposed had no express
on all private provision in the Parent Act which allowed such a levy to be charged
hospitals in and this provision cannot be implied.

Malaysia and;
  Whether the retrospective effect of rules that are applicable to all
Issue 3 : private hospitals established since 2010 is valid?
Rule 4:
The above
rules are Retrospective Law
applicable to The enforcement of the subsidiary legislation starts on date before
it is passed is a situation where the subsidiary legislation has a
all private backdated effect.
hospitals As a general rule, all subsidiary legislations that have retrospective
established effect are not valid.

since 2010.
Rule 4:
The above
rules are  Pursuant to Section 20 of the Interpretation Acts 1948 and 1967,
the retrospective effect is only valid under two circumstances
applicable to which are

all private 1) When there is an express provision or by necessary implication

in the Parent Act to do so
hospitals 2) When there is so, the effect of the regulation cannot be earlier
established than the date of commencement of the Parent Act
since 2010.
Rule 4 :
The above
rules are  Attorney General v Cold Storage (Singapura) Pte Ltd (1979) 1
MLJ 277
applicable to On 19/03/1977, the Singapore Finance Minister passed the
all private Singapore Port Local Authority (Property Tax) Order 1977. The order
hospitals was made under the Port of Singapore Authority Act 1964. The order
was assumed to be enforceable since 28th October 1976. Hence, it
established was challenged on the ground that it was retrospective.

since 2010.
  Syed Ibrahim Syed Mohd & Ors v Esso Production Malaysia
Rule 4 : Incorporated [2004] 1 CLJ.
The above The appellants in the case filed several claims against the
rules are respondent for overtime, rest day and annual leave payments
allegedly due to them under Part XII of the Employment Act 1955. It
applicable to was two years after they filed the claim that the trial took place. In
the meantime, the Minister passed a subsidiary legislation in
all private October 1997 which applied retrospectively to 1 st October 1974.
hospitals Both Labour Court and the High Court dismissed the claims by the
established appellants ruling that the Exemption Order applied in this case until
it was declared null and void. The Court of Appeal however allowed
since 2010. the appeal by the appellants saying that in order the subsidiary
legislation to have a valid retrospective effect, there must be an
express provision in the Parent Act to do so.
  Rule 4 – Retrospective effect
Rule 4 has a backdated effect as the enforcement of the subsidiary
Rule 4 : legislation starts on a date way before it is passed. Applying the
The above cases of
Attorney General v Cold Storage (Singapura) Pte Ltd (1979) 1 MLJ
rules are 277 and Syed Ibrahim Syed Mohd & Ors v Esso Production
applicable to Malaysia Incorporated [2004] 1 CLJ, Rule 4 is to be declared as null
and void. This is due to the fact that it did not comply with the
all private conditions under Section 20 of the Interpretation Acts 1948 and
hospitals 1967. In order for the subsidiary legislation to have a valid
retrospective effect, the effect of the regulation cannot be earlier
established than the date of commencement of the Parent Act. The
retrospective effect of Rule 4 is invalid as the effect of the regulation
since 2010. is to be established since 2010 which is earlier than the date of
commencement of the Parent Act, which was in 2009. Thus, the
retrospective effect to this rule is invalid and not applicable.
  In conclusion, the subsidiary legislation is not applicable as Rule 1
Conclusion is considered unreasonable, Rule 3 imposes financial levy and Rule
4 has an invalid retrospective effect.