TYPES OF EXTENDED

ULTRA VIRES
It can be divided into 2 categories :
A) Abuse of Power
B) Non- Exercise of Discretion

Extended Ultra Vires: Non

Exercise of Discretion
This is a situation where the authority on
whom or which a discretionary power is
conferred is deemed to have failed to
exercise such discretion.
This may arise when the authority itself
acts under dictation or authority not
applying its mind or the authority acts
mechanically or the authority fetters its
own discretion through self-imposed policy.

A ) Authority not applying

its mind

Authority must personally exercise the discretion conferred

to it and applies its own mind to the facts and
circumstances of each case before making its own decision.
The decision would turn out to be bad if the authority acts
without applying its mind to the case handed to it as the
authority has not exercised its discretion.
Section 20 of the Malaysian Industrial Relations Act 1967, it
is provided that the Minister has power to refer an industrial
dispute for adjudication to the Industrial Court. In the case
of Liew Fook Chuan v Menteri Sumber Manusia [1995], the
applicant was dismissed from service by his employer and
the Minister refused to refer his case to the Industrial Court.
The High Court rejected the Ministers order, concluded that
if the Minister have had considered fully on this case, he
would have come to a different conclusion than he had.

A case of non-application of mind also arises when an authority

does not act with due care and attention and with a sense of
responsibility.

In the case of Karpal Singh v Minister of Home Affairs [1998],

there was a preventive detention order issued against the
appellant and one out of six allegations of fact made against
him was admitted to be incorrect by the Minister who issued
the order the order to the appellant. The High Court quashed
the order on the ground that it had been made without care,
caution and a proper sense of responsibility

However, the Supreme Court reversed the High Courts

decision on appeal saying that the facts on which the Ministers
subjective satisfaction to issue an order of preventive detention
was based, were non reviewable by the court.

B) Authority acts under

Dictation

It is said the authority fails to apply its discretion when, instead

of considering the matter itself, the authority acts under
dictation from or at the behest of a superior officer.
In law, this can be referred as non-exercise of its discretion by
the authority and as the result, the action taken is invalid.
It seems that the authority purports to act in the matter itself
but the reality it is not doing so because it has not made the
decision on the basis of its own judgement
For example, the power to grant licences is conferred on an
official and she or he grants a licence to a person but later
cancels it at the direction of the government, the cancellation
would be bad
She or he did not apply her or his own mind to the matter of
cancellation because she or he just acted at the behest of the
government.
Administrative law does not permit this to be happened.

The principle is illustrated in the case of Simms Motor Units

Ltd v Minister of Labour and National Services [1946] where
the national service officer having discretion under the law
issued an order under the direction from the Minister.
The order, however was quashed by the court on the basis
that if the Minister wanted to lay down some policy, he
should have done so through rules and not through
administrative directions. The officer must exercise his own
mind and then act. This is because the Minister cannot by
instructions limit the duties or limit the discretion of the
officer.
In the case of Ansett Transport Industries (Operations) Pty
Ltd v Commonwealth [1977], it is laid down that to act
according to established government policy is not in itself
to act under dictation.

C) Authority acts
Mechanically

An authority which has been given discretion must apply its mind to
the facts and circumstances of the case.
It would constitute as Ultra Vires if it passes an order mechanically
without applying its mind on the case before it.
This principle is illustrated in the case of Emperor v Sibnath Banerjee
In this case, the Home Secretary issued a order of preventive
detention in a routine manner on the advice of police without himself
applying his own mind to the materials and satisfying himself,
independently of the police recommendation, whether an order of
preventive detention was called for in the circumstances of the case.
The Home Department followed a practice of issuing a detention
order automatically when the police recommended it and the Home
Secretary did not personally satisfy himself whether such an order
was justified in a specific case.
The Privy Council quashed the order saying that the Home
Secretarys personal satisfaction in each case was a condition
precedent to the issue of an order without which it would be invalid.

D) Authority fetters
Discretion
A version of non-application of mind by an authority arises
when it lays down a policy to regulate its exercise of discretion is
some matter and seeks to apply that policy inflexibly to all cases
irrespective of the merits of the case.
This is called fettering discretion and is usually invalid on the
ground that when a statute confers discretion on an authority to
decide individual cases, the authority is expected to consider
each case on its merits.
The courts do not approve of an authority fettering its discretion
by adopting a policy and applying its generally to all cases
irrespective of their merits.
A balance must be struck between the desirability of laying down
general policy and the duty of the authority concerned not to
fetter its discretion.
Such a balance is achieved when the authority lays down a
general policy for exercising its discretion but still at the same
time keeps its options open to consider whether in a particular
case that policy should be applied or not.

E) Administrative
Discrimination

Article 8 of Federal Constitution emphasises that all persons

are equal before the law hence it illegalises discriminatory
action by the administration.
Court may to quash an exercise of discretionary power
executed in a discriminatory manner.
The same result would apply under Article 12 of the
Singapore Constitution.
Discrimination is the antithesis of the Rule of Law.