Administrative Tribunals Research Articles

Working of Administrative Tribunals

Working of Administrative Tribunals

On Surveying the Whole Legal Forest

I am always amazed by newspaper reports of the way that geologists and space scientists draw complex conclusions about the origin or nature of a planet from data sent back by a probe of one tiny part of the planet's surface. They seem to have a lot of confidence in their underlying theories. The same is not true for sociolegal scholars. We don't have full-fledged theories about how legal systems actually work, and hence it seems risky to make big generalizations about a system as a whole based on a study of one or two legal institutions or processes. Making generalizations about the in action for whole legal systems is especially risky if the subject is the United States, with its 50 different state legal systems, from Mississippi to Montana to Massachusetts, and with its proliferation of different kinds of courts, law enforcement bodies, police departments, administrative tribunals, and regulatory agencies, state, federal and local. Small wonder that most empirical sociolegal scholarship is relatively narrowly focused on specific legal policy areas and processes. While these case studies are immensely valuable, occasionally it seems worthwhile to use the scholarly close-ups of particular clumps of trees to draw some wide-angle conclusions, however tentative, about the shape and dynamics of the legal forest. That, however quixotic the effort, is what I sought to do in Adversarial Legalism: The American Way of Law (hereinafter AL). But just as Don Quixote needed the skeptical realism of Sancho Panza, the essays on AL in this issue, paying close attention to text, empirical detail, and analytic precision, serve as a reminder of the pitfalls attending the quest for generality. Yet I am not quite willing to don the Quixote costume. In this essay I will argue that AL, even if a bit ambitious, is reasonably realistic, and that the questions raised by the other essays raise meaningful but not

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘co...

A Discussion of the Duty & Jurisdiction of the Courts to Review Administrative Decisions

The courts have always recognised that judicial review should not amount to the court exercising an administrative discretion legally reposed in a decision-maker. The orthodox view is that the court's role, in performing judicial review of administrative decisions, is to assess whether a decision is legal rather than whether it constitutes the right or preferable outcome. The above statement made by Brennan J in Attorney General v Quin[2]appears to highlight this limitation on the function of the courts in judicial review. However, establishing the appropriate ambit of judicial review of discretionary administrative decision-making has proven to be one of the most contentious and problematic areas of administrative law. Courts and academic writers alike have sought relentlessly, yet with little success, to resolve the seemingly intractable dilemma of the limits of judicial review and the appropriate institutional relationship between the courts and the administrative branch of government. This article will firstly examine the accuracy of Brennan J's statement by comparing it with the views of other experts. Importantly, the reasoning preventing courts from making judgements based on the validity of the facts will be analysed. The degree to which merits review and legal review overlap, or whether such a distinction exists at all, is also a valid issue for discussion. This is often where the confusion lies in the courts given the fine line, and difficulty in defining between, which facts form the merits of the case and which facts go to the legality of the issue. Finally, the essay will discuss what advantages lie in leaving merits review for administrative tribunals and whether in rectifying decisions based on the merits of the case, courts are breaching the separation of powers doctrine. Conversely, what advantages lie in allowing the courts the flexibility to apply merits review will be considered in determining what the courts' role should be in this review process.

Tamas v Victorian Civil and Administrative Tribunal and Others

Tamas v Victorian Civil and Administrative Tribunal and Others

Privative Clauses! The Last Hurrah?

[Extract]The effectiveness of privative clauses have bedevilled the common law ever since the Year Books. In recent times, it has been generally accepted that whenever Parliament creates an inferior tribunal, the courts retain an inherent right to supervise and control it, and any person aggrieved by a decision of the tribunal has a right to ask the court to exercise those powers. This article examines whether it is beyond the capacity of the Parliament – both State and Commonwealth – to confer upon an administrative tribunal the power to make authoritative and conclusive decisions as to the limits of its own jurisdiction.

The Devil Is in the Disclosure: The Role of R. v. Stinchcombe in Establishing Appropriate Disclosure Rules for Administrative Tribunals

This article examines disclosure rules for administrative tribunals in light of the decision of the Supreme Court of Canada in R. v. Stinchcombe. The pre- and post-Stinchcombe administrative law cases relating to document disclosure are discussed with a view to determining the effect that Stinchcombe has had on the administrative process. It is argued that Stinchcombe has had a significant impact on judicial and legislative opinions regarding the importance of document disclosure on procedural fairness in administrative decision-making. However, the application of Stinchcombe in administrative law cases has been neither complete nor unanimous. The appropriateness of the principles of Stinchcombe in the context of proceedings before an administrative tribunal are discussed with specific regard to proceedings before the Alberta Energy and Utilities Board.

Developments in Administrative Tribunals in the Last Two Years

Special issue on Administrative Law - update on the developments in administrative tribunals during the past two years - developments in the Commonwealth sphere - developments of judicially led ama...

Developments in Administrative Tribunals in the Last Two Years

The Commonwealth led the way towards the judicially-led tribunal which led to the creation of the large amalgams in New South Wales and Victoria. The creation of Victoria Civil and Administrative Tribunal (VCAT) has increased its independence and enabled the tribunal to function efficiently, and the Commonwealth tribunal follows the VCAT model.

Producing Multi-Media Teaching/Learning Materials for Teaching Legal Ethics and Professional Responsibility in Australian Law Schools: And the Lesson Is … Soldier On

The post-war expansion of government programs has seen the establishment of numerous tribunals to make decisions, or to hear appeals from government decisions, in areas as diverse as planning, migration and guardianship. At the same time, the need to regulate occupational groups has led to a proliferation of industry-specific disciplinary tribunals. All of these can be considered to be administrative tribunals, although no clear line separates them from “court- substitute” tribunals which adjudicate disputes relating to private rights and liabilities.

PROLIFERATION OF INTERNATIONAL ORGANIZATIONS LEGAL ISSUES

Preface. Proliferation of International Organizations: an Exploratory Introduction N.M. Blokker. The Attitude of States towards the Proliferation of International Organizations I. Seidl-Hohenveldern. Co-ordination between Universal and Regional Organizations C. Dominice. The World Court, the WHO, and the UN System N.D. White. Techniques to Avoid Proliferation of International Organizations - The Experience of the World Bank I.F.I. Skibata. The Proliferation of Arms Control Organizations P.C. Szasz. The Proliferation of International Institutions Dealing with International Environmental Matters G. Loibl. Organizational Proliferation and Centralization under the Treaty on European Union A. von Bogdandy. The Proliferation of Law-Making Organs: A New Role for the International Law Commission? R. van Alebeek. The Proliferation of Administrative Tribunals P.C. Szasz. The International Court of Justice and other International Courts H. Thirlway. The Proliferation of International Judicial Organs: the Role of the International Court of Justice D.W. Prager. The Dispute Settlement System of the World Trade Organization: Institutions, Process and Practice F. Feliciano, P.L.H. Van den Bossche. Comments T.A. Mensah. Comments C. Rozakis. Flexibility and the International Labour Organization D. Devlin. The European Union and the Concept of Flexibility: Proliferation of Legal Systems within International Organizations I.F. Dekker, R.A. Wessel. Extending the European Family of Nations: The Response of the Council of Europe to Growing Membership R. Lawson. The Primary Model Rules of Accountability of International Organizations: The Principles and Rules Governing their Conduct or the Yardsticks for their Accountability K. Wellens. Views from Practice L.D. Johnson. The World Bank Inspection Panel: A Model for Other International Organizations? S. Schlemmer-Schulte. Final Remarks H.G. Schermers. Index.

Ethics Review for Sale? Conflict of Interest and Commercial Research Review Boards

Research review boards, established to protect the rights and welfare of human research subjects, have to ensure that conflicts of interest do not interfere with the ethical conduct of medical research. Private, commercial review boards, which increasingly review research protocols, are themselves affected by a structural conflict of interest. Within the regulatory setting, procedural conflict-of-interest rules are essential because of the absence of clear substantive rules in research review and the reliance on the fairness and good judgment of institutional review board members. Current guidelines and regulations lack adequate conflict-of-interest rules and provide insufficient details on the substantive rules. Because commercial review boards are similar to administrative courts and tribunals, rules of administrative law on bias are applied to determine when a conflict of interest jeopardizes the purposes of research review; administrative law has always judged financial conflicts of interest severely. The structure of private review tends to breach a core principle of administrative law and procedural justice. Reform of the research review system will reinforce public trust in the process.

Decision 'Tariff 22' of the Canadian Copyright Board and Internet Law Related Issues

On October 27, 1999, the Copyright Board of Canada issued its “Tariff 22” decision regarding the legal implications of distributing music over the Internet. The Board had to decide for the first time whether the transmission of music from a server — where the work is rendered available to the user — qualifies as a communication to the public by telecommunication. It concluded that “an Internet communication occurs at the time the work is transmitted from the host server to the computer of the end user, regardless of whether it is played or viewed at that time, or later, or never”. The “Tariff 22” decision is considered to be one of the most important decisions of the decade rendered by an administrative tribunal. It provides a valuable lexicon of new technological terms relating to the Internet, and examines the application of Copyright to works transmitted by new means of telecommunication. Even if the Board’s decision is not a binding authority, it constitutes as an important precedent in terms of legal analysis, and has been referenced by individuals in the Canada and abroad.

Antonetto v. Italy

The right to a court would be illusory if the internal legal order of a State permitted a definitive and obligatory judicial decision to remain inoperative to the detriment of a party. The execution of a judgment or decision is an integral part of the case. The effective protection of justice and the re-establishment of legality require the administration to comply with a decision pronounced by a supreme administrative tribunal. Moreover, the necessity to search for a fair balance between the requirements of the general interest of the community and the imperative to safeguard the fundamental right of the individual to respect for property must be based on the interference in question respecting the principle of legality and not being arbitrary. The refusal of national authorities to execute a judicial decisions on no legal basis excuses a need to determine a fair balance.

ZM v. Permanent Delegation of the League of Arab States to the United Nations

643International organizations — Immunity — Jurisdictional immunity — Foreign national employed as secretary by international organization — Contract of employment — Dispute — Whether subject to jurisdiction of national courts — Absence of any headquarters agreement governing the position — Whether international organization under any duty to establish administrative tribunal to settle such disputes — Whether entitlement of international organization to jurisdictional immunity dependent upon establishment of such a tribunalInternational organizations — Immunity — Jurisdictional immunity — Scope — Whether absolute — Whether having erga omnes effect for third States — Whether scope of immunity dependent upon headquarters agreement or rule of customary international law — Whether immunity in private contract disputes dependent upon establishment of an internal dispute settlement procedure — The law of Switzerland

The principle of toxicopy and its integration into the administrative proceedings in Austria*: Das Toxikopie-Prinzip und seine Einbindung in das Verwaltungsverfahren in Österreich

Toxicopy can be understood as an analogon to placebo but within any setting. Placebo is state-of-the-art since decades with relevant consequences: Only those effects may be considered as being pharmacon-specific, that go beyond non-pharmacological (“Placebo”) effects. Placebo — theory is a limitation for the applicability of Morgans Canon (4), which is/was accepted within medicine like an axiom: When searching for the causes of disease physiological causes need to be ruled out, before other especially psychological etiologies can be taken into consideration. Toxicopy principle could be confirmed in different settings all over the world, in old and young, male and female, rich and poor and in different cultures. Therefore Morgans Canon is falsified. Toxicopy principle is accepted as state-of-the-art and part of stand court rulings of the Austrian administrative tribunal. The plant law in Austria — and in Germany — provides for the protection of citizens against health hazards caused by plants, regardless of their etiologies. Therefore, non-toxicological threats must also be considered in plant approval proceedings in future.

Administration of Justice: Administrative Tribunals and Criminal Justice System

Administration of Justice: Administrative Tribunals and Criminal Justice System

Sovereignty Over Natural Resources: Balancing Rights and Duties. By Nico Schrijver Cambridge University Press, 1997

Journal Article Sovereignty Over Natural Resources: Balancing Rights and Duties. By Nico Schrijver Cambridge University Press, 1997 Get access Francisco Orrego Vicuña Francisco Orrego Vicuña Judge and Vice President World Bank Administrative Tribunal; Member of the Panels of Conciliators and Arbitrators of ICSID Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, Volume 14, Issue 1, Spring 1999, Pages 284–288, https://doi.org/10.1093/icsidreview/14.1.284 Published: 01 March 1999

The Federal Court of Canada: A History, 1875-1992

The Federal Court of Canada, which existed from 1875 to 1971 under the name Exchequer Court of Canada, occupies a special place in the court structure of Canada. It was founded principally to adjudicate legal disputes in which the Canadian government was involved; since its change of name in 1971 it has become primarily an administrative appeal court dealing with the review of decisions made by federal administrative tribunals in addition to its existing jurisdictions, admiralty, intellectual property, tax, and other areas. As a federal court within the nation, its very existence has provoked discussion and debate as the various provincial court systems claim a position of primacy within our society for the adjudication of legal disputes. Central to this history of the Court is an examination of the judges who have sat on its bench. Bushnell investigates who the judges have been and examines their work, with particular focus on the judges' views of the proper approach to decision-making. His study contains a wealth of information, much of which may not be widely known in the profession. As such, The Federal Court of Canada constitutes a rich source both for those with a legal background and for those with an interest in the working and history of legal institutions.

Interface of the Anti-dumping and Countervailing Duty Laws, Administrative Tribunal and Economic Analysis: the Injury and Causality Tests in Canada

In the consequence analyzing methods which are frequently used by the Canadian administrative tribunal, there are dualistic approximation method which uses the trend analysis and unitary approximation method which uses economic analysis. The disadvantage of the dualistic approximation method is that it cannot separate the effect out of dumping and the effect of dumping. In the contrary, the unitary approximation method includes methods like the countable partial equipoise model and computation model which could overcome the similar question. This thesis made comments on the advantages and disadvantages of the above two economic analysis by way of analyzing the Canadian case used in the damage arbitration process. And found that both the two methods could enhance the objectivity, transparency and fairness in the damage arbitration, meanwhile, the countable partial equipoise model is more practical under the restriction of time and resources. Especially, this thesis definitely brought forward the conjunction between the trade regulation and the economic analysis in the process of the damage arbitration of the Canadian administrative tribunal.