Update on Reforms in Other Jurisdictions (as of December, 2008)
Some of the more significant administrative justice reforms initiated or undertaken in other jurisdictions between July and December 2008 are summarized below, including:
- the federal Specific Claims Tribunal Act came into force;
- the Alberta Law Reform Institute released a consultation memorandum entitled Powers and Procedures of Administrative Tribunals; it proposes a model code of powers and procedures for administrative tribunals in Alberta;
- the Northwest Territories Securities Act came into force;
- the government of Queensland State in Australia continues its efforts to establish a new Civil and Administrative Tribunal; and
- two new tribunals, the First-tier and Upper Tribunals, were launched in the United Kingdom.
Earlier updates on reforms in other jurisdictions are available on the Publications and Research page.
A number of jurisdictions within Canada have reformed or are in the process of reforming their civil procedure and rules of court. These initiatives are beyond the scope of this summary. However, a comprehensive list of past and current civil reform initiatives in Canada is available at the Canadian Forum on Civil Justice website on the Inventory of Reforms page.
The Specific Claims Tribunal Act came into effect Oct. 16, 2008. The legislation creates an independent tribunal with the power to make binding decisions on the validity of and compensation for specific claims. Specific claims are claims made by First Nations with regards to Canada's obligations under historic treaties or in relation to Canada’s management of First Nations funds or other assets, including reserve land. It is anticipated the Specific Claims Tribunal will be fully operational by spring 2009.
In September 2008, the Alberta Law Reform Institute released a consultation memorandum entitled Powers and Procedures of Administrative Tribunals. The memorandum proposes a model code of powers and procedures for Alberta administrative tribunals in an effort to address the perceived shortcomings of the Administrative Procedures and Jurisdictions Act. Comments on consultation memoranda addressing issues related to the powers and procedures of administrative tribunals were requested by Dec. 31, 2008.
In response to a report released in June 2008 by the Workers Compensation Board entitled Extending Workers Compensation Coverage, the Government of Manitoba recently announced that a number of industries will be added to those currently requiring workers compensation coverage. Of particular note, is the extension of workers compensation coverage to agricultural workers. The extension was effective Jan. 1, 2009.
In December 2008, the Government of New Brunswick made legislative and regulatory changes to their property assessment appeal process. These changes were made in response to a report by the New Brunswick Office of the Ombudsman, entitled Residential Property Assessment Appeal Process in New Brunswick: Levelling the Playing Field. The amendments are aimed at enhancing fairness, accessibility and transparency in the assessment appeal process. Both the legislative and regulatory amendments came into effect Jan. 1, 2009.
The New Brunswick Human Rights Commission submitted recommendations to the Government of New Brunswick in December 2008. The report, entitled The New Brunswick Human Rights Commission: Future Directions, follows up on changes made to the New Brunswick Human Rights Act and the commission in 2004 and makes recommendations for further changes. The majority of these recommendations are concerned with the commission’s independence, impartiality and the appointments process.
The Northwest Territories Securities Act came into force in August and October 2008. The new act, intended to help harmonize securities regulation in Canada, was the result of a collaborative effort of the governments of Prince Edward Island, the Yukon, Nunavut and the Northwest Territories. All four jurisdictions have now enacted the uniform act.
The Administrative Review Council released Report No. 49, Administrative Accountability in Business Areas Subject to Complex and Specific Regulation in November 2008. The report focuses on accountability and transparency in the development of business rules and provides a framework of principles and suggested actions for government agencies, industry and other non-government entities involved in business regulation.
The government of the state of Queensland continues its efforts to establish a new Civil and Administrative Tribunal. In an effort to increase the community’s access to justice and improve the efficiency and quality of decision-making, the tribunal will amalgamate a number of existing tribunals and provide a larger administrative structure. The government appointed a panel of experts to provide advice on how best to implement an amalgamated civil and administrative tribunal. Thus far, the panel has provided two reports to the Government: Stage 1 Report on Scope and Initial Implementation Arrangements in June 2008; and Stage 2 Report on Legislative Amendments to Implement the Tribunal. The panel’s final report detailing the full operation implementation requirements was expected in March 2009. The tribunal was expected to be fully operational by December 2009.
The Ministry of Justice issued a public consultation document on New Zealand Tribunals: The Government’s Preferred Approach to Reform. The consultation document proposes a new legislative framework to bring more consistency and introduce basic minimum standards. The consultation paper also proposes the development of a unified tribunal structure and comprehensive guidelines to ensure that new tribunals are not established in an ad hoc way and that the system remains strong and cohesive into the future. In response to the consultation document, a summary of submission was prepared by the ministry’s rribunal reform programme.
In December 2008, the New Zealand Law Commission issued a further study paper on Tribunals Reform. The paper examines a range of different options for reforming New Zealand’s system of tribunals. It proposes a new unified tribunal service led by a district court judge and a new legislative framework that will provide a consistent set of powers, rights of appeal and rules of procedure for all New Zealand’s tribunals.
As part of the continuing restructuring efforts begun with the Tribunals, Courts and Enforcement Act 2007, the United Kingdom launched two new tribunals in November 2008. Most tribunals, currently administered by the Tribunals Service, were transferred into the new First-tier and Upper Tribunals. The First-tier Tribunal has three chambers: health, education and social care; social entitlement; and war pensions and armed forces compensation. The Upper Tribunal is made up of a single chamber: tribunal appeals. Prior to the launching of the new tribunals, the senior president of tribunals published his Second Implementation Review. The review describes the implementation of the two new tribunals and outlines the next phase of implementation, including the addition of two new chambers to the Upper Tribunal: the lands chamber and the finance and tax chamber. The next phase of implementation is expected in April 2009.
The United Kingdom’s new Employment Act received royal assent in November 2008. Among other changes, the act confers on employment tribunals discretionary powers to amend awards if parties have failed to comply with a relevant code of practice; amends employment tribunals' powers by which they may reach a determination without a hearing; and allows employment tribunals to award compensation for financial loss in certain types of monetary claims.
The United Kingdom Law Commission issued a consultation paper entitled Administrative Redress: Public Bodies and the Citizen in July 2008. The consultation paper asked what mechanisms should be available for citizens seeking redress against a public body. As well as considering court-based remedies, the commission also considers the resolution of claims for loss suffered due to substandard administrative action via mechanisms outside the courts. In particular, the consultation paper suggests that public sector ombudsmen can play a crucial role in providing redress and that access to ombudsmen should be widened accordingly.
The Nuffield Foundation, a charitable trust that strives to advance social well-being through research and experimentation, continues with its funding initiative on administrative justice. As part of that initiative, the findings of two research projects on immigration and asylum appeals were discussed at a seminar at the foundation in November 2008. The first paper, from Robert Thomas at University of Manchester, focused on the procedure and determination of initial appeals in England and Wales. The second paper, from Sarah Craig and Maria Fletcher at the University of Glasgow, evaluated how the new procedures introduced in 2004 for review of immigration and asylum appeals operate in Scotland. Also as part of the funding initiative, professors Hazel Genn and Cheryl Thomas of University College London’s faculty of laws have been awarded a grant to conduct a study of judicial decision-making in tribunals. Findings are expected in the first half of 2010.
The American Bar Association’s Administrative Law and Regulatory Practice Section released two reports in November 2008. The first report, entitled Improving the Administrative Process: A Report to the President-Elect of the United States, outlines the section’s suggestions for improving the administrative process in the United States. Recommendations include the making of prompt appointments of well-qualified administrators, the rationalization and streamlining of rule-making procedures and supporting the reform of the adjudicative provisions of the Administrative Procedure Act. The second report, Achieving the Potential, the Future of Federal e-Rulemaking: A Report to Congress and the President, reviews the federal government’s e-Rulemaking Initiative, which was begun in 2002. As a result of this initiative, more than 170 rule-making entities in 15 cabinet departments and some independent regulatory commissions are now using a common database for rule-making documents, a universal docket management interface and a single public website for viewing proposed rules and accepting online comments. The report includes an explanation of these initiatives and recommendations regarding the future of e-rulemaking.