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Thursday, June 3, 2010

Foreign Decisions-Part..II Contd..

In a case  , the Constitutional Bench of South Africa observed as follows.In this case the Bench was analysing the implication of delegation of power in case of delegated legislation. It referred to these decisions to seek some guidance only.The following citation may be skipped through.It is  given only for the sake of completeness and pertains to the delegation of powers in the case of sub-ordinate legislation.[Blogger]

Although decisions in foreign jurisdictions should never be slavishly adopted, [See for example Bernstein and Others v Bester and Others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at para 133 (per Kriegler J); Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) at para 33.] a brief examination reveals that there is much that is similar between our law on delegation and the decisions of foreign courts. I consider that the manner in which they have dealt with similar issues on this aspect provides helpful guidance. In particular, a large number of common-law jurisdictions have adopted the presumption against sub-delegation contained in the maxim delegatus delegare non potest, subject generally to the exception that Ministers may freely of necessity delegate within their own departments.  This has become known as the “Carltona principle” The English Court of Appeal in Carltona above n 22 at 563 held that in order to allow the smooth functioning of government, Ministers are always entitled to have their functions exercised by officials in their departments as it is the Minister that remains responsible to Parliament. This rule is however confined to delegation within government departments. 
[See also Lewisham Borough Council and Another v Roberts [1949] 1 All ER 815 at 829 and Wade and Forsyth Administrative Law 8 ed (Oxford University Press, New York 2000) at 325.] 

In England [King-Emperor v Benoari Lal Sarma [1945] AC 14; Jackson, Stansfield and Sons v Butterworth [1948] 2 All ER 558 at 564-66. See also Craig Administrative Law 5 ed (Sweet and Maxwell, London 2003) at 523 and De Smith, Woolf and Jowell De Smith, Woolf and Jowell’s Principles of Judicial Review (Sweet and Maxwell, London 1999) at 227 and 233] Australia[R v Lampe and Others; Ex Parte Madalozzo (1963) 5 FLR 160; Long v Knowles [1968] Tas SR 46. See also Pearce and Argument Delegated Legislation in Australia 2 ed (Butterworths, Australia 1999) at 269-70 and Skyes, Lanaham, Tracey and Esser General Principles of Administrative Law 4 ed (Butterworths, Australia 1997) at 34.] and New Zealand,[ Geraghty v Porter [1917] NZLR 554; Hawke’s Bay Raw Milk Producers’ Co-operative Co Ltd. v New Zealand Milk Board [1961] NZLR 218.  ] the position is that delegation is less likely to be implied if a power is legislative in nature or if the decision involves the exercise of a wide discretion .[ The only time the Supreme Court of Canada has considered the sub-delegation of legislative powers was in Reference as to the Validity of the Regulations in Relation to Chemicals [1943] SCR 1 where it found that emergency war-time legislation permitted the delegation of regulation-making power. This decision should however be confined to the exceptional circumstances of the case. See Dussault and Borgeat Administrative Law: A Treatise 2 ed, Volume I (Carswell, Toronto 1985) at 416. The majority of Canadian authors argue that legislative powers are less likely to be delegated by implication. See id at 416 Jones and De Villars Principles of Administrative Law 3 ed (Carswell, Toronto 1999) at 140; Mullan Administrative Law 3 ed (Carswell, Toronto 1996) at 194.] 

In Canada the Supreme Court has regularly held that an authority cannot enact regulations that effectively turn the exercise of a power that was meant to be dealt with by it through regulation into a discretionary administrative power to be exercised by itself or another body.[ See Vic Restaurant Inc v City of Montreal [1959] SCR 58; City of Verdun v Sun Oil Company Ltd [1952] 1 SCR 222; Brant Dairy Company Ltd et al v Milk Commission of Ontario et al 30 DLR (3d) 559 (SCC). ]

The extent of delegation and the degree of control retained by the delegator have also been examined.[ See for example Credite Suisse and Another v Waltham Forest LBC [1997] QB 362; Cohen v West Ham Corporation [1933] Ch 814 at 826-27; R v Board of Assessors of Rates and Taxes of the City of Saint John (1965) 49 DLR (2d) 156; Labour Relations Board of Saskatchewan v Speers and Regina Undertakers Employees Federal Union[1948] 1 DLR 340. 

According to Wade and Forsyth "

[t]he vital question in most cases is whether the statutory discretion remains in the hands of the proper authority, or whether some other person purports to exercise it.” Wade and Forsyth above n 28 at 316. ] In Allingham and Another v Minister of Agriculture and Fisheries [[1948] 1 All ER 780.]for example, a committee had the wartime power to order farmers to grow certain crops on specific fields. With respect to one farmer they left the decision of which field should be used to their executive officer. The exercise of power was held to be invalid, but the Court noted that there would have been no problem if the committee had acted itself on the recommendation of the officer. There are also a number of Canadian and English decisions that suggest that it is impermissible to set as an administrative condition, compliance with the regulations of a private bodyn Ellis v Dubowski [1921] 3 KB 621 it was held that a County Council could not delegate its power to decide whether a film could be shown by declaring that any film approved by the British Board of Film Censors, a private body, could be shown. Similarly, a Canadian Court has held that a by-law requiring owners to build fences around their swimming pools that contained the additional requirement of the consent of neighbouring landowners, impermissibly delegated the municipal council’s power to private land owners.[Re Davies and Village of Forest Hill [1965] 1 OR 240. 

The court in Michie v M.D. of Rocky View No 44 et al (1968) 64 WWR 178 (Alta) at 182-83 declared invalid permits issued on the condition that they complied with requirements set by a private entity. The delegation has been found to be unlawful in each of these cases although the fact that the body is private has never been the reason given for the decision.]

AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)

It is to be observed that the position is almost similar to the approach adopted by Supreme Court  of India 

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