INTRO FOR ESSAY LAW 309

         CHAPTER 2

The principle that can be used to solve this problem is the doctrine of ultra vires. This doctrine is one way how courts review decisions made by public bodies. It can be used to determine whether the subsidiary legislation made by public bodies is valid or not. Ultra vires means beyond the power and it can be classified into three which are procedural, substantive and extended ultra vires. Furthermore, procedure in making subsidiary legislative can be classified as mandatory and directory. Mandatory means SL 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; non-compliance with the procedure will not make the SL invalid. Besides that, substantive can be refers as scope, extent and range of power conferred by the statue to make SL. It can be classified as parent act ultra vires the federal constitution, SL ultra vires the federal constitution and SL ultra vires the parent act. Extend ultra vires also can be classified as retrospective effect, financial levy, outer clauses and reasonable.

         CHAPTER 3

The principle that can be used to solve this problem is the rules of natural justice. This rule is a procedural safeguard against improper exercise of power by a public body. It can be used to determine whether the administrator has actually complied with legal procedure before taking action or making any decision against someone. Rule of natural justice concern with ‘’process’’ that is used by administrator in making decision against an individual and it can be classified into two which are audi alteram partem and nemo judex in causa sua. In order to determine whether the administrator has made a valid decision, these two elements must be observed; if not decision can be challenged in court of law. Audi alteram partem means right of hearing or heard divide to two categories which are hearing and notice.  Hearing classified to rebuttal, acceptance and disclosure while notice classified to charge and time. Plus, nemo judex in causa sua means rules against bias that divide to three categories which are pecuniary bias, personal bias and policy bias.

3      CHAPTER 4

The principle that can be used to solve this problem is the discretionary power. Discretionary power is the power that conferred upon administrative bodies by the legislator via the statute. It involves right to choose between more than one possible course of action on which there is a room for reasonable people to hold differing opinion as which is to be preferred.’’ – Per Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan. Discretionary power divides into procedure, substantive and extended ultra vires. Procedures refer to any decision taken by authority that fails to observe the procedure norms stated by statue, and then decision can be challenged. Substantive refer to any decision taken by authority that exceed the power conferred by the statue in exercising their discretion. Extended can be refer as any decision taken by authority that abuse discretionary power or failure to exercise discretionary power. Abuse discretionary power divided to mala fide, irrelevant consideration, improper purpose, colourable exercise, unreasonableness, vague purpose and misdirection of fact and law. Failure to exercise discretionary power divided to acting under dictation, acting mechanically and fettering discretion.