LEGISLATION Norismizan binti Hj Ismail, Public Officers Law Seminar - - PowerPoint PPT Presentation

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LEGISLATION Norismizan binti Hj Ismail, Public Officers Law Seminar - - PowerPoint PPT Presentation

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LEGISLATION Norismizan binti Hj Ismail, Public Officers Law Seminar : Senior Counsel www.agc.gov.bn Understanding the Law Hjh Norazamiah binti Hj Hambali, 26 th and 27 th October 2016 Deputy Senior Counsel Public Officers Law Seminar:

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

LEGISLATION

Norismizan binti Hj Ismail, Senior Counsel Hjh Norazamiah binti Hj Hambali, Deputy Senior Counsel

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

SN SNAPSHO SHOT

  • Legislation 1: Know the Law
  • Why law is relevant
  • Types of legislation
  • When to legislate
  • Limits to legislative power
  • Basic principles of interpreting

legislation

  • Legislation 2: Exercise the Law
  • Exercise of powers
  • Law-making process
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

  • Why are laws relevant?
  • Types of legislation
  • Who has legislative power?
  • When is legislation needed?
  • Alternatives
  • Limits to legislative power
  • Statutory interpretation
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

Why are laws relevant?

Private in individual

  • Laws regulate the behavior of each member of society
  • Laws govern what an individual can or cannot do

Government

  • Government is also subject to law
  • Laws govern what a government can or cannot do
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

Types of legislation

Primary Legislation

  • Constitution – Article 83(3) : “makes any Orders whatsoever

which he considers desirable in the public interest”

  • Order/Acts – primary legislation, legal framework, substantive

policies and matters

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Q: When is the commencement date? Date of signing

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

“shall commence

  • n ….”
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

“date to be appointed.... notification in the Gazette”

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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LEGISLATION 1: KNOW THE LAW

Types of legislation

Subsidiary Legislation

  • Operational and technical details
  • Rules, Regulations, By-Laws, Notifications,

Orders, Proclamations

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

“same date as the …. Order” If not stated, date of publication

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

Who has legislative power

By His is Maje jesty th the Su Sultan and Yang Di-Pe Pertuan

  • Make an Order

By By Legi gisla lature

  • Make an Act
  • Legislative Council passes Bill
  • His Majesty assents to Bill =

Act By Min inis ister or r Sta Statutory body

  • Done under the authority of the

legislation – subsidiary legislation

  • Cannot be inconsistent with any

Order/Act

  • NO delegation to persons who are not

accountable eg. civil servants

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

When is legislation needed?

Checkli list: :

  • To re

regulate behavior

  • To ove

verride co common la law

  • To in

introduce ce certainty of f le lega gal l effe ffect

  • To ch

change exis istin ing le lega gal rig rights or r oblig ligations

  • To cr

create new rig rights or r oblig ligations

  • To im

impose a new power

  • To im

impose ta tax or r ch charge on pu publ blic fu funds

  • To ta

take on new in inte ternatio ional l oblig ligations

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

Alternatives?

Consider alternatives to legislation:

  • Status quo
  • Use existing law
  • Step up enforcement
  • Information and educational campaigns
  • Voluntary arrangements/contracts
  • Self-regulation
  • Codes/standards = quasi laws
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW

Limits to legislative powers

  • Separation of powers
  • Subject to rule of law – nobody is above the law
  • Constitution is supreme – inconsistency = void
  • Fundamental rights – should not legislate to deprive individuals of

fundamental rights

  • No discrimination
  • Everyone is equal before the law – equal protection of the law
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW Limits to legislative powers

WHAT TO AVOID

  • Judicial power should not be conferred on Executive or Legislature
  • Stopping due process applying
  • Arbitrariness
  • Retrospective legislation
  • Getting Government or persons out of bad deals
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW Limits to legislative powers

WHAT TO DO

  • Rule of law
  • Remember our international obligations
  • Laws must be published
  • Legislate with whole of Government perspective
  • Ensure the correct body carries out new power
  • Aim for proportionate legislative response
  • Punishment must fit the crime
  • Clearly define discretionary powers
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 1: KNOW THE LAW Statutory interpretation

  • Interpretation and General Clauses Act
  • Definition of certain words – can be found in parent Act or SL
  • Purposive interpretation
  • Canons of constructions
  • Legislative presumptions
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW

  • Exercise of powers
  • Source of power
  • Exercise of discretion
  • Delegation of powers
  • Judicial review
  • Law-making process
  • How to make legislation
  • Drafting instructions
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW Source of power

  • Primary and subsidiary legislation
  • Know the legislation
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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LEGISLATION 2: EXERCISE THE LAW Source of power

  • Example – Autoriti Monetari Brunei Darussalam (AMBD)
  • Autoriti Monetari Brunei Darussalam Order, 2010
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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LEGISLATION 2: EXERCISE THE LAW Source of power

  • Banking Order, 2006
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW Exercise of discretion

  • Discretion exists when decision-maker has power to make a

choice –

  • to act or not to act
  • to approve or not approve
  • to approve with conditions
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW Delegation of powers

  • General rule: Person named in the legislation must exercise the

statutory power and no one else unless permitted by –

  • express authorisation by specific legislation
  • pursuant to Interpretation and General Clauses Act (section

31A: Delegation of power of Minister)

  • Carltona Principle – Ministerial responsibility and

administrative necessity

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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LEGISLATION 2: EXERCISE THE LAW Delegation of powers

  • Delegation expressly provided by legislation
  • Section 2 of the Accountants Order, 2010
  • Section 7(4) of the Workplace Safety and Health Order, 2009
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW Judicial review

  • Principle: A court process whereby a person who feels

aggrieved by the decision, act or omission of a public body can seek redress from the High Court

  • Rationale: Ensures that public bodies act properly,

rationally and within the law

  • Grounds:
  • Illegality
  • Irrationality
  • Procedural impropriety
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

FORMULATION OF LEGISLATIVE SCHEME

FORMAL INSTRUCTION TO AGC TO PREPARE DRAFT LEGISLATION

LEGISLATIVE DRAFTING PROCESS INITIATED POLICY RECOMMENDATION AND WORKING PAPER TO PASS NEW LAW

APPROVAL IN PRINCIPLE OF MINISTRY OR AUTHORITY WHO HOLDS JURISDICTION/ RESPONSIBILITY FOR LEGISLATION

POLICY-MAKING PROCESS

LEGISLATIVE DRAFTING PROCESS

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

LEGISLATION 2: EXERCISE THE LAW

How to make legislation

  • Good to have time frame but DON’T COMMIT TO TIMING OF

LAW BEFORE AGC IS CONSULTED – BE REALISTIC!

  • How to make legislation:
  • READ: “Drafting Instructions Handbook” and “Practical

Approach on Preparation of Initial Draft”

  • Scheduling: Proper and realistic planning before making public

commitments that require legislation

  • Early engagement with drafters advisable
  • Drafting instructions
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

“QUALITY INSTRUCTIONS ESSENTIAL TO GIVING EFFECT TO POLICY INTENT IN LEGISLATION”

LEGISLATION 2: EXERCISE THE LAW

Drafting instructions

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

QUESTION AND ANSWER SESSION

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

norismizan.ismail@agc.gov.bn norazamiah.hambali@agc.gov.bn

THANK YOU