Administrative Tribunals Research Articles

Answering Queries about Access to Law Court Documents

AbstractThis article by Dr Peter Clinch gives details of where to find not just law reports but also other documents relating to cases. It covers a wide range of courts, from the High Court through to Coroners Courts and Administrative tribunals

The Road to the Promised Land Runs Past <i>Conway</i>: Administrative Tribunals and <i>Charter</i> Remedies

In the 30 years since the Canadian Charter of Rights and Freedoms was proclaimed, one of the most litigated issues has been the role of administrative tribunals in deciding Charter claims. Early Supreme Court jurisprudence suggested that only the provincial superior courts had the jurisdiction to decide Charter claims and remedy a Charter breach. Over time, and in concert with the expansion of the administrative state in Canada, the Supreme Court recognized that administrative tribunals could in fact decide Charter questions. However, the issue of whether they could remedy a Charter breach became bogged down by the test from Mills v. R.: tribunals and courts had to analyze the tribunal’s jurisdiction on a case-by-case basis by examining the remedy being sought, as opposed to analyzing jurisdiction on an institutional basis, which would examine the tribunal's statutory mandate and function.

Comcast/NBCU: The FCC Provides a Roadmap for Vertical Merger Analysis

The FCC’s analysis of the Comcast-NBCU transaction fills a gap in the contemporary treatment of vertical mergers by providing a roadmap for courts and litigants addressing the possibility of anticompetitive exclusion. The FCC identified the factors any judicial or administrative tribunal would likely consider today in analyzing whether a vertical merger would lead to anticompetitive input or customer foreclosure, and a range of economic methods potentially relevant to applying that template to the facts of a transaction. Notwithstanding the difference between administrative adjudication under a public interest standard and judicial decision-making under the Clayton Act, the legal framework and economic studies the Commission employed promise to influence the approach that antitrust tribunals will now take in evaluating vertical mergers.

The influence of climate change litigation on governments and the private sector

In recent years, the number of court cases around theworld raising the issue of climate change hasincreased dramatically, especially in jurisdictions that have not yet adopted effective national responsesto climate change, such as Australia and the United States. In these countries, litigation provides analternative path to encourage mitigation of the causes and adaptation to the effects of climate change.In Australia, much of the litigation, particularly the early climate change cases, has taken place in statecourts or administrative tribunals, and has focused on applying existing legislation to require governmentdecision-makers to consider future climate-associated risks in planning decisions. The influence of thesecases have been wide reaching, leading to the revision or formulation of government policies on miningand coastal management. Other cases, particularly within federal courts, have been less successful, buthave nonetheless highlighted areas in need of law reform. In the United States, recent high-profile casestargeting major sources of greenhouse gas emissions including power stations have raised novel argumentsbased on common law public nuisance grounds and the public trust doctrine. This article examines theextent to which climate change litigation, mainly in Australia, but also in the United States, has influencedgovernment decision-makers, legislatures, and polluters to curb emissions and adapt to the impacts ofclimate change.

The influence of climate change litigation on governments and the private sector

In recent years, the number of court cases around theworld raising the issue of climate change has increased dramatically, especially in jurisdictions that have not yet adopted effective national responses to climate change, such as Australia and the United States. In these countries, litigation provides an alternative path to encourage mitigation of the causes and adaptation to the effects of climate change. In Australia, much of the litigation, particularly the early climate change cases, has taken place in state courts or administrative tribunals, and has focused on applying existing legislation to require government decision-makers to consider future climate-associated risks in planning decisions. The influence of these cases have been wide reaching, leading to the revision or formulation of government policies on mining and coastal management. Other cases, particularly within federal courts, have been less successful, but have nonetheless highlighted areas in need of law reform. In the United States, recent high-profile cases targeting major sources of greenhouse gas emissions including power stations have raised novel arguments based on common law public nuisance grounds and the public trust doctrine. This article examines the extent to which climate change litigation, mainly in Australia, but also in the United States, has influenced government decision-makers, legislatures, and polluters to curb emissions and adapt to the impacts of climate change.

Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law

Focusing on arbitral decisions on human rights claims arising in the employment context, this paper looks at the nature of the expertise of administrative tribunals and its role in determining the standard of judicial review. The author notes that arbitrators are considered to have expertise in labour relations, and that this has been a key factor in the high level of deference generally shown by courts to their decisions. However, despite the expansion of arbitral jurisdiction over human rights matters in unionized workplaces, the courts, applying a “correctness” standard of review, have refused to grant deference to arbitrators with respect to their interpretation and application of human rights legislation, in part on the basis that they are not expert in the area. The author takes issue with this view, contending that arbitrators have in fact acquired significant expertise in interpreting human rights statutes in the context of the employment relationship, and that recognition of such expertise should lead to a reappraisal of the level of curial deference. In this regard, he argues, it would be open to the courts to deem arbitrators to possess the requisite expertise in human rights, thereby justifying a more deferential “reasonableness” standard of review.

Law of the International Civil service: A Venture into Legal Theory

AbstractThe employment relations of international organizations are governed by their constituent instruments, internal laws and practice, with no overarching legal regime governing international civil service as such. However, academics and international administrative tribunals refer to 'international civil service law', while the tribunals also apply the general principles of such law. There is uncertainty as to what the legal basis behind this is and whether this refers to a common legal regime applicable to international organizations. This contribution analyses the existence or the possibility of such a common legal regime. It introduces the notion of 'international civil service' as a legal institution and international civil service law as its legal regime. The author analyses the theoretical foundation and potential normative bases of this common legal regime, setting out an agenda for further research.

R. v. Conway: UnChartered Territory for Administrative Tribunals

R. v. Conway: UnChartered Territory for Administrative Tribunals

Quangos, coalition government and the ombudsmen

On 14 October 2010, it was announced that the Coalition Government would abolish 192 quangos (quasi-autonomous non-governmental organisations) (Cabinet Office 2010a). This included the Administrative Justice and Tribunals Council (AJTC) (Ministry of Justice 2010). On 20 October 2010, the Coalition Government outlined to Parliament the most far-reaching cuts to general public expenditure for many years. Included within these were 23% cuts to the Ministry of Justice over a four-year period (HM Treasury 2010, 10). Although the long-term implications of these developments are uncertain, what is already clear is that the new Coalition Government policies will pose significant challenges for the administrative justice system and the ombudsman community. This article will explore some of the key developments that have resulted from the immediate aftermath of the change of government insofar as they relate to the ombudsman community.

Disability and Occupational Assessment: Objective Diagnosis and Quantitative Impairment Rating

Industrial insurance originated in Europe in the nineteenth century and replaced the old system of negligence liability in the United States between 1910 and 1940. Today psychiatric disability assessments are performed by psychiatrists in the context of Social Security Disability Insurance applications, workers' compensation claims, private disability insurance claims, and fitness for duty evaluations. Expertise in the performance of psychiatric disability evaluations is required, but general psychiatric residency programs provide experience only with treatment evaluations, which differ fundamentally from independent medical evaluations as to role boundaries and the focus of assessment. Psychiatrists offer opinions regarding psychiatric impairments, but administrative or judicial tribunals make the actual determinations of disability. Social Security Disability Insurance evaluations and workers' compensation evaluations are discussed, as is the distinction between diagnoses, which are categorical, and impairment ratings, which are dimensional. Inconsistency in impairment ratings has been problematic in the United States and elsewhere in the workers' compensation arena. A protocol for achieving more consistent impairment ratings is proposed, one that correlates three commonly used global rating scales in a 3 × 5 grid, supplemented by objective psychological test data.

The Internal Dispute Resolution Regime of the United Nations – Has the Creation of the United Nations Dispute Tribunal and United Nations Appeals Tribunal Remedied the Flaws of the United Nations Administrative Tribunal?

Pursuant to General Assembly Resolution 59/283 dated 2 June 2005, the Secretary-General established the Redesign Panel on the United Nations system of administration of justice, which was charged with redesigning the system of the administration of justice at the UN. It was created to address the gravity of the issues that arose out of the immense challenges posed by the management of internal disputes at the UN. The Redesign Panel found that the system of internal justice at the UN was unprofessional, lacked independence, was ineffective, did not accord staff members their due process rights, and the staff had little confidence in the system. The UN is the body charged with the protection of the global order, and it is ironic that its internal justice system was found to be in manifest violation of the rights of its own employees. After years of efforts to reform the internal justice system, a new system of the administration of justice became operational at the UN on 1 July 2009. This paper discusses the establishment and the working of the newly established UN internal dispute resolution machinery. The paper is divided into three chapters. Chapter 1 sets out the context within which international administrative law works, and discusses two issues in particular, the rule of law and due process, and immunities. Chapter 2 deals with the old regime, and Chapter 3 deals with the newly established system. Chapter 2 and 3 not only discuss the working of the now abolished United Nations Administrative Tribunal, and the newly established United Nations Disputes Tribunal and United Nations Appeals Tribunal, but attempt to analyze the dispute resolution process from its very inception. The paper concludes that the newly established machinery at the UN is a genuine attempt to improve the internal dispute-resolution mechanism. However, in addition to a change in the machinery and rules, attitudes of managers and relevant UN staff, including the Secretary-General must change if significant improvement in the manner in which internal disputes are handled at the UN is to be achieved.

ADMINISTRATIVE TRIBUNALS AND ADJUDICATION by PETER CANE

<b><i>ADMINISTRATIVE TRIBUNALS AND ADJUDICATION</i> by PETER CANE</b>

Die Rechtswegspaltung in öffentlich-rechtlichen Streitigkeiten nichtverfassungsrechtlicher Art

German constitutional law guarantees effective recourse to the courts against all administrative measures. Remedies regarding administrative cases and controversies are divided between different branches of judicature. General administrative tribunals deal with most of the legal actions taken in administrative law cases. In addition, there are fiscal courts with jurisdiction over taxation, social security tribunals, and general courts of law that decide, in particular, on financial compensation with regard to administrative measures. Those different administrative courts apply a wide variety of different legal procedures and lack a general procedural code. The author analyses in detail the diversity of the administrative judiciary and their legal procedure. He criticises the absence of a general system of administrative adjudication and discusses possibilities of basic reform, including the unification of courts and the standardisation of procedural law.

Achieving Quality Outcomes in Community Titles Disputes: A Therapeutic Jurisprudence Approach

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result.Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

The Right to Home under the Victorian Charter

I n the recent decision of Hom eground Services v M oham ed ,' the Victorian Civil and Administrative Tribunal (‘VCAT’) dismissed an application for possession by a public housing provider as being incompatible with the Victorian Charter o f Hum an Rights and Responsibilities Act 2 0 0 6 (‘the Charter’). VCAT held that the applicant had acted unlawfully in giving a no-reason notice to vacate, and seeking a possession order based on that notice, in circumstances where the respondent would be made homeless through no wrong-doing or fault on his part.

What has Dunsmuir Taught?

In Dunsmuir the Supreme Court of Canada reassessed the “troubling question” of how courts should review decisions of administrative tribunals. The majority judgment of Bastarache and LeBel JJ. (writing also for McLachlin, Abella, and Fish JJ.), sought to simplify the judicial review process by reducing the standards of review from three to two, increasing reliance on precedent to determine which standard is appropriate, making explicit the significance of the nature of the question to the determination of the standard in every case, and re-labelling the “pragmatic and functional” test the “standard of review analysis.” In its recent judgment in Khosa the Supreme Court emphasized the simplifying intention of Dunsmuir, suggesting that “Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focused on substance, particularly on the nature of the issue that was before the administrative tribunal under review.”

Human Rights and Review of the Involuntary Status of Patients with a Mental Illness: Kracke after Momcilovic

Arguably, Australia's most significant judicial pronouncement on the human rights of those with mental illnesses was made in 2009 by Justice Bell, the then President of the Victorian Civil and Administrative Tribunal (“VCAT”). The decision is an exhaustive analysis of the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the involuntary status of a person subject to a community treatment order in Victoria. It occurred in the context of delays in the conduct of reviews of the status of a mentally ill person by Victoria's Mental Health Review Board (“the Board”). The outcome of the hearing was a declaration that the Board had breached the person's human rights to a fair hearing, even though the person's involuntary status on a community treatment order was not disturbed by VCAT. Whilst some important aspects of Justice Bell's decision concerning the general methodology to be applied when analysing human rights were overturned in the subsequent Court of Appeal decision of R v Momcilovic [2010] VSCA 50, the latter decision did not concern mental health and so leaves Kracke as the most detailed articulation and analysis of human rights within this difficult sphere.

Fórmulas complementarias de resolución de controversias jurídico-administrativas

Durante muchos años la reclamación administrativa ha tenido un valor muy pequeño para garantizar los derechos e intereses legítimos de los ciudadanos. En la actualidad, es necesario considerar y desarrollar nuevas alternativas, para, por un lado, establecer una vía administrativa eficaz, y, por otro, intentar reducir el atasco judicial que experimentan los Tribunales de Justicia. En este contexto, son ilustrativas las experiencias del Tribunal Administrativo de Navarra y del Consell Tributari del Ayuntamiento de Barcelona, que realizan una función muy importante para reducir el número de asuntos judiciales. En esta línea, es destacable, también, el Proyecto de Tribunal Administrativo de Andalucía, que se puede convertir en un órgano muy eficaz para resolver conflictos administrativos en determinadas materias.

National Trust of Victoria v Victorian Civil and Administrative Tribunal and Others

National Trust of Victoria v Victorian Civil and Administrative Tribunal and Others

From Advisory Opinions to Binding Decisions: The new Appeal Mechanism of the Un system of Administration of Justice

AbstractIn 2009 the United Nations launched a new two-tier system of administration of justice. The system is composed of two standing bodies, the United Nations Dispute Tribunal (UNDT) and the United Nations Appeals Tribunal (UNApT), the latter acting as an appeals mechanism against decisions of the UNDT. The former system foresaw the United Nations Administrative Tribunal (UNAT) as the sole body of administration of justice within the UN, while the International Court of Justice (ICJ) acted as review mechanism on the decisions of the UNAT. However, this review system was abolished in 1995 and, since then, no option was available to unsuccessful (or partially successful) staff members for having a UNAT judgment reviewed. The lack of any option for review led to criticisms and instances for reform of the whole system, which eventually led to the establishment of a Redesign Panel, which suggested the establishment of a two-tier system of administration of justice, with the aim of meeting the 'basic standards of due process established in international human rights instruments'. The recently established Appeals Tribunal should fill the gap created by the abolition of the ICJ competence to review the judgments rendered by the UNAT. This article evaluates the improvement to the system represented by the establishment of the United Nations Appeals Tribunal in three main steps. The first is the identification of the shortcomings of the previous review mechanism before the ICJ. The second is the overview of the problems of the former system of administration of justice within the UN. The third and final step is the analysis of the scope of jurisdiction of the new UNApT.