TNAG-1688-FCO40-2338-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 226

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5.

"In accordance with the maxim delegatus non potest delegare, a

statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary-implication. There is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind." (See Halsbury's Laws of England, 4th Edition Vol. 1 para. 32.)

The principle involved may be illustrated by the New Zealand decision in Geraghty v. Porter (1917) N.Z.L.R. 554. In that case the Motor Regulation Act empowered the cvernor in Council to aeke regulations providing inter alia for the method by which car registration numbers were to be fixed and made distinguishable. A regulation purportedly made under the Act provided that the registration number should be fixed upon the vehicle in such manner as the registering authority in each district should require. It was held that as the effect of the regulation was to delegate to the registering authority one of the powers conferred upon the Governor in Council by the Act and there was nothing in the Act to authorise such delegation, the regulation was void and the act of the registering authority was a nullity. (See also the cases cited in De Smith Judicial Review of Administrative Action 3rd Edition p. 263 et seq.)

6.

The delegation under consideration is particularly offensive in that the Governor in Council has divested himself entirely of the power to establish the principlea in question and has no control over the formulation of those principles.

7.

It is my opinion that for all practical purposes the regulations are ultra vires and therefore void and the actions of the Censor and the Board of Roriev in purported exercise of the powers conferred by the regulations are of no legal effect. It will be necessary either to amend 6,7(1)(h) of the Oriinance to cmit the reference to principles prescribed by the regulations or to amend the regulations to set out the principles.

8.

As regards your specific question as to whether the Censor could attach a condition regarding the disclosure of the previous titles ay opinion, which is academic in so far as in the light of the above discussion he has no power to approve a film or to set conditions, is that the Censor could not sc act. The limits of Censorship under the legislation are not define so that the expression the "censoring of filas" in s.7(1)(h) must be given its ordinary dictionary meaning. The Shorter Oxford English Dictionary defines a Censor as "an official whose duty it is to inspect books journals plays etc. before publication to secure that they shall contain nothing immoral heretical or offensive or injurious to the State". The condition which you suggest be imposed is in no way related to the matters defined; the purpose of the condition is to see that the public are not misled. The tribunal must act only to further the purpose of the Ordinance and regulations and it may not have regard to irrelevant consi- derations even though the factors which it is to take into account are not contioled in the legislation; vide Associated Provincial Ficture Houses Lti, v. Wednesbury Corporation (1948) 1 K.3. 223.

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