Administrative Tribunals Research Articles

Moving to a More "Certain" Test for Tax Residence in Australia: Lessons for Canada?

Canada and Australia have superficially similar tests for determining the tax residence of individuals. Both have a common-law residence (or resides) test, "continuing attachment" rules (a statutory test in Australia), a 183-day type of test, and provisions focused on government officials. A key difference between the countries in this regard, despite broadly similar residence tests, is that litigation in Canada is rare whereas Australia, over the last decade, has seen at least 43 administrative tribunal, Federal Court, and High Court decisions with respect to tax residence. In response to the high levels of litigation resulting from concentrated Australian Taxation Office compliance programs, the Board of Taxation commenced a self-initiated review of the income tax residence rules for individuals in May 2016. The report subsequently submitted to government noted that the current rules were no longer appropriate and needed to be updated and simplified. Although the Australian government has not endorsed the board's recommendations, the board was directed to undertake further consultation in order to ensure that the proposed residence rules are appropriately designed and targeted, with a particular focus on integrity (that is, anti-avoidance) issues. A final report, sent to the government in April/May 2019, proposed a number of bright-line tests. These proposed tests are based in part on the approach adopted in the NZ and 2013 UK residence rules. In this paper, the author considers the similarities and shortcomings of the Canadian and Australian rules on individual tax residence according to the criteria of equity, simplicity, and efficiency (integrity), and then reviews the Board of Taxation's recommendations with an eye to whether the proposed Australian changes could provide guidance for any future Canadian reform, should the political circumstances so dictate in the future.

Why We Need Federal Administrative Courts

Apart from criminal proceedings and a small enclave of constitutional right, virtually all disputes between citizens and federal agencies are decided by agency-appointed tribunals, not judges. Typically, the tribunals’ decisions are reversible by the agency and then subject only to highly deferential judicial review. This “appellate review” regime originated well over a century ago. It found its canonical formulation in the Supreme Court’s foundational decision in Crowell v. Benson (1932) and, in 1946, was effectively codified in the Administrative Procedure Act. The model has since been overlaid with a blanket of administrative common law, and it has been subject to a great deal of improvisation outside the APA’s default provisions. Despite the constant tinkering, however, and despite widely shared misgivings about its constitutional foundations and practical operation, the appellate review model has proven immune to any serious challenge. This Essay mounts that challenge. It confronts the appellate review model with a stark but realistic and highly attractive alternative: a system of independent administrative courts, endowed with the institutional capacity and incentives to provide meaningful protection for citizens’ rights. Many countries in the world feature such a judiciary. Prominently, Germany’s system of administrative courts rests on constitutional commands that categorically forbid administrative tribunals and instead require that disputes between the executive and private citizens must always be adjudicated by an independent court. While we cannot simply import that model, we can replicate its essential features, well within the confines of the Constitution and our legal traditions. In fact, institutional reforms along “German” lines might help us recover foundational domestic legal traditions that were lost or abandoned in the adoption of the appellate review model.

Behind the State: Domestic Mechanisms and Procedures for the Implementation of Human Rights Judgments and Decisions

AbstractIt is the state to whom the supranational body directs its decision on a human rights violation, and it is the state who is found in violation and must provide the appropriate remedies. The state, however, is not a single entity: it is composed of the executive (and a web of different ministries and departments), the legislature, and the judiciary, including administrative bodies and tribunals. Depending on the type of reparations ordered, one, several, or all of these actors may be implicated. By tracking the mechanics of what happens in practical terms at the national level after decisions from UN treaty bodies and the regional human rights commissions and courts are adopted, findings from a three-year research project underscore that implementation is a multi-faceted process and whether implementation and ultimately compliance occurs can be explained, in part at least, by the regulatory, practical and technical processes in place to respond to those supranational decisions. By examining the role of these state actors and the procedures by which reparations are implemented and complied with at the national level, this article attempts to dissect the concept of ‘political will’. We conclude by providing some further thoughts on how litigators, states and supranational bodies themselves can adjust their methods accordingly.

INTERNAL SYSTEM OF LABOR DISPUTES SETTLEMENT WITHIN INTERNATIONAL FINANCIAL ORGANIZATIONS

The article analyzes provisions of the statutory and procedural acts (Statutes, Rules, Staff Manuals etc.) adopted within the international financial institutions (International Monetary Fund, World Bank, Inter-American Development Bank, Asian Development Bank, African Development Bank) regarding the settlement of disputes emerging between the staff and the administration. It is emphasized that dispute prevention and resolution is today attracting more and more attention, as the effective prevention and resolution of labour disputes is critical for sound and productive employment relations worldwide. It is noted that the internal justice systems of these financial institutions are aimed primarily at resolving work-related issues and claims in order to ensure a harmonious and respectful working environment. It has been established that the internal mechanism for resolving labor disputes has a two-tier system, which includes informal (Ombudsman, mediation service, etc.) and formal levels (administrative review, Administrative tribunals, etc.). It is paid attention to the fact that administrative tribunals serve as the independent judicial forums for the resolution of employment disputes arising between international financial organizations and their staff members and application may be filed only after the exhausting all available channels of administrative review. It is indicated that all the resolution of labor disputes within the informal level is operational confidential and voluntary. Attention is drawn to the fact that, unlike the United Nations, the administrative tribunals established in the system of international financial institutions are single-level, and their decisions are final and are not subject to further appeal. The relevant conclusions have been drawn.

Canadian Administrative Law: The Case for Judicial Humility

For decades, the Supreme Court of Canada has contemplated the appropriate standard of judicial review of decisions by administrative tribunals. The Court has grappled with the tension between the role of, and relationship between, courts and tribunals. The author, who has been both a judge and a tribunal member, argues for an attitude of humility towards these administrative bodies. With this approach, the author argues, even those most skeptical of tribunals might recognize their value as less formal, more expeditious, more expert, and binding dispute resolution mechanisms that complement—rather than detract from or compete with—courts. They may come to appreciate tribunals as the court’s institutional justice sibling, pursuing similar ends through different means.

Supreme Court of Pakistan Judges Hand Book, Role, Powers and Functions of the Chief Justice and the Judges of the Supreme Court of Pakistan

The Constitution of Pakistan establishes the Supreme Court, five High Courts ‎and ‎the Federal Shariat Court as part of the Judicature.‎ ‎ Administrative courts ‎and ‎tribunals are established under Article 212 of the Constitution of Pakistan. ‎The ‎Supreme Court of Pakistan is the apex court of the country exercising ‎original, ‎appellate, review and advisory jurisdiction as well as various ‎administrative ‎functions. Article 190 of the Constitution provides that all executive ‎and judicial ‎authorities throughout Pakistan shall act in aid of the Supreme Court. ‎Almost ‎similar powers and functions are exercised by the High Courts at the ‎provincial ‎level, however appeal against the decisions of a High Court lies to the ‎Supreme ‎Court of Pakistan. The jurisdiction of the Federal Shariat Court extends ‎to ‎examining and deciding the question whether or not any law or provision of law ‎is ‎repugnant to the injunctions of Islam, as laid down in the Holy Quran and ‎Sunnah ‎of the Holy Prophet.‎ ‎ ‎ Role, powers and functions of the Chief Justice and Judges of the Supreme Court ‎of Pakistan are described in the Constitution of Pakistan, Supreme Court Rules ‎‎1980 and other Acts. Relevant provisions are compiled herewith.‎

'I Lost My Talk': Indian Residential Schools, Copyright, Archives and Commissions of Inquiry

People give statements to commissions of inquiry, courts, administrative tribunals, police and other government bodies. Who owns the copyright in those statements? What practical value is there in copyright ownership in those contexts? This paper examines in detail the copyright issues relating to the statements that survivors of Indian Residential Schools gave to Canada's Truth and Reconciliation Commission. As related background, the paper gives a detailed review of the Supreme Court of Canada's order to destroy statements given by survivors to the Independent Assessment Process. This paper examines copyright cases from Canada, England, the United States and Australia dealing with interviews generally, statements and indigenous peoples. This paper is one of a series by the author examining the many legal issues relating to Indian Residential Schools and the Indian Residential Schools Settlement Agreement.

Waiting for Godot: Canadian Administrative Law in 2019

The first half of my “year in review” paper covers the Supreme Court’s much-anticipated trilogy of decisions on the standard of review of administrative action (Part I); some of the key points at issue in the trilogy which have been addressed recently by Canadian courts (Part II); and the Court’s 2019 administrative law jurisprudence, such as it is (Part III). The remaining Parts of my paper focus on first-instance and appellate jurisprudence (and occasional political controversies) relating to three broad themes: the role of the Federal Courts (Part IV), the role of the superior courts (Part V) and the role of administrative tribunals, with a particular emphasis on independence (Part VI). Briefly, the major themes are, first, that the Trilogy threatens to underwhelm, especially in light of the last year of Supreme Court of Canada administrative law jurisprudence, which has been characterized by a tendency to overlook points of general importance raised by public law litigation. Second, although standard of review continues to dominant Canadian discussions about administrative law, there are important issues relating to the role of the federal courts, the superior courts and administrative tribunals which are likely to occupy the Supreme Court of Canada and the country’s administrative law community in the coming years.

The Denial of Oral Hearings by International Administrative Tribunals as a Factor for Lifting Organizational Immunity before European Courts

Although formally provided for in particular statutes, certain international administrative tribunals continue to hold oral hearings—if at all—only on the rarest of occasions. With specific attention to the International Labour Organization Administrative Tribunal, the present paper aims 1) at recapitulating essential holdings of the European Court of Human Rights with regard to the right to access to a court in the context of employment-related claims against international organizations; and 2) at examining the relevance of oral hearings in the determination of proportionality of organizational immunity. The analysis shows that, in principle, the denial of oral hearings by international administrative tribunals results in the duty of states to afford individuals access to a court. In the realm of international law, a conflict with the obligation to grant immunity ensues. As yet, domestic courts have remained reluctant to overrule immunity on human rights grounds.

Quantitative Methods and Mergers Effects in Competition Policy: The Brazilian Case

The article aims to discuss the use of quantitative methods in quantifying merger effects as evidence, taking the particularities of the Brazilian experience and considering both technical, institutional and policy issues. Therefore, the article investigates evolution and patterns in the Brazilian institutional framework and jurisprudence in terms of technical aspects and adequacy of implementation, policy issues regarding the acceptance within the administrative tribunal and the main challenges imposed. The information collected considered all the merger cases, as far as we know, in which quantitative methods were applied by Administrative Council of Economic Defense (CADE) in order to measure, estimate or imply the merger’s potential anticompetitive effect on prices. Among the conclusions we find that the models are employed in few complex cases and mostly to sustain some restriction by the authority. We also note that the authority seems concerned about sensibility analysis, in some cases revealed by the combination of the use of different methods and/or competitive models.

Dare to Diverge: Time for Administrative Law in Hong Kong to Stand on Its Own Two Feet

Abstract Hong Kong’s system of administrative law has drawn strength and durability from its English counterpart, on which it was heavily modelled. Too often, however, there is a slavish acceptance of the pre-eminence of English law and a tendency to conservativism and a lack of innovation. This article argues that Hong Kong courts and legislators must dare to diverge from English law where an alternative path would prove more credible or appropriate. Three prisms are deployed through which to argue that a misplaced emulation of English law can result in a poor legal framework. First, it is shown that a failure to properly conceptualize error of law as a ground of judicial review has resulted in a ground that, locally, is in a state of incoherence and disarray and that the admission or non-admission of a distinction between jurisdictional and non-jurisdictional errors urgently requires clarification from the Court of Final Appeal. Second, it is proposed that the English-inspired incorporation of a specific time limit in the rules for applying for judicial review should be abolished in the interests of access to justice and legal certainty, drawing on the experience of jurisdictions such as New Zealand, Canada, and Scotland. Finally, it is explained why the antiquated system of administrative tribunals in Hong Kong, redolent of the unreformed English tribunal system of decades past, needs comprehensive structural and procedural redesign. Courts and legislators must dare to diverge in these areas, with Hong Kong’s administrative law standing on its own two feet, where minds are focused on a genuine, locally crafted improvement of standards prevailing in administrative law and public administration.

Disharmonization in the Regulation of Transgenic Plants in Europe

Disharmonization in the Regulation of Transgenic Plants in Europe

Perceptions of key stakeholders on procedural justice in the Consent And Capacity Board of Ontario's hearings

The Consent and Capacity Board (CCB) of Ontario is an independent administrative tribunal that adjudicates on matters of consent to medical treatment including involuntary admission to a psychiatric facility and findings of incapacity with regard to treatment decisions.This study explores the perspectives of multiple stakeholders on procedural justice in CCB hearings in Ontario. Using purposeful and snowball sampling, participants including CCB panel members and staff, patients, and other professionals (e.g., lawyers, psychiatrists) were recruited from different sites across the city of Toronto. Using focus groups (n = 10) and individual interviews (n = 14), data were collected from 44 participants including 6 patients and 38 other stakeholders who have participated in CCB hearings. Using thematic analysis, we identified five themes – (i) Inclusiveness (ii) Respect (iii) Fairness (iv) Finding and using one's voice, and (v) Balancing interests. Findings revealed that despite efforts by CCB panel members to conduct hearings in an inclusive manner, the legalistic nature of the proceedings, as well as patients' uncertainty regarding the benefits of testifying, may be perceived as barriers to patients' meaningful participation. There was a general belief that patients are respected during CCB hearings by physicians and panel members; however, patients and their lawyers had mixed perceptions about this issue. Almost all stakeholders, excluding CCB panel members, perceived that CCB hearings were not procedurally fair. Our findings indicate that CCB hearings, as currently conducted, are not perceived as procedurally just by many of the relevant stakeholders. This perception may improve by adopting a more informal and less adversarial hearing format as well as enhancing patients' education and understanding of the CCB hearings' processes and potential outcomes.

The role of lawyers in mediation: insights from mediators at Victoria's Civil and Administrative Tribunal

Mediation is an increasingly important part of legal practice with the institutionalisation of alternative or appropriate dispute resolution in our legal system. Mediation has been embraced by courts and may be part of pre-action requirements in some jurisdictions. How lawyers can best contribute to mediation has been discussed in the literature and is informed by ethical requirements. This article provides insights into the role of lawyers in mediation using interviews with sixteen mediators at the Victorian Civil and Administrative Tribunal of Victoria. It explores collaborative approaches that lawyers can adopt within the spectrum of roles that lawyers may take when representing a client in mediation developed by Olivia Rundle

PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

Insight and capacity to consent to electroconvulsive therapy.

To critically examine a recent decision of the Victorian Supreme Court that found that the Mental Health Tribunal and the Victorian Civil and Administrative Tribunal erred in the application of the capacity test in the Mental Health Act 2014 (Vic) and that compulsory electroconvulsive therapy would infringe upon the human rights of two patients who had no insight into their chronic schizophrenia. After considering the concepts of insight and capacity to consent to treatment, the paper concludes that the decision in NJE and PBU v Mental Health Tribunal [2018] VSC 564 is problematic clinically.

A Thinking on the structure and jurisdiction of Administrative Tribunals in Iran water law system

A Thinking on the structure and jurisdiction of Administrative Tribunals in Iran water law system

АДМІНІСТРАТИВНІ ЗВЕРНЕННЯ ДО ЄВРОПЕЙСЬКОГО СОЮЗУ: ЩОДО СПІЛЬНОЇ МОДЕЛІ АДМІНІСТРАТИВНОЇ ЮСТИЦІЇ

Purpose. The aim of this paper is to analyse the activity of the European agencies as a mechanism of control prior to the judicial review. This procedure is carried out by independent and impartial administrative tribunals. This model supposes to create specialized administrative organs that solve conflicts previous to the judicial procedure. The “agencies model” is mainly used in western countries with legal Anglo-Saxon reminiscences. In this paper we analyze the importance of these agencies and its possibilities for improvement in the near future. Method. To achieve this goal it is necessary to: 1) analysis the creative solutions of the agencies courts; 2) verify the performance of agencies through the information provided by themselves; 3) discuss the judicial decisions from a scientific perspective. This process has been implemented through direct contact with experts and professional actively involved at these European administrative courts. Results. EU law is haphazardly creating a system of administrative review that is in many cases a pre-condition to judicial review. This system is most evidently manifesting itself in the application of EU law by administrative agencies. For this purpose, some of the EU’s most important agencies have created specialised bodies known as boards of appeal. These objective and independent bodies have the power to review the decisions of the agency they form part on based on both questions of law and fact. The paper aims to establish a critical vision of the role that new judicial forms are developing and the importance of to reach a specialized criterion for solving technically increasingly complex issues. Conclusions. The board-of-appeal model has proven a successful one as it offers parties a low-cost and effective way of having their complaints resolved without having to go to the European Union Court of Justice. Lastly, there appears to be a need for the European Union to, as it is currently doing with administrative procedure, establish a common set of rules for this emerging remedy for reviewing European administrative acts.

Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty

Canada maintains a separate legal regime for immigration detainees who, until recently, were denied the right to seek release by way of habeas corpus. This denial of one of the most deeply entrenched rights at common law and under the Canadian Charter of Rights and Freedoms was justified by the proposition that the immigration detention scheme is “separate but equal”—that it provides an adequate remedy such that habeas corpus is not necessary. Perhaps unsurprisingly, this “separate but equal” regime has failed to provide basic procedural and substantive protections that are available in other Canadian legal regimes where liberty is at stake. However, in 2015, the Court of Appeal for Ontario reignited the availability of habeas corpus as a remedy to indefinite detention in the immigration context in Chaudhary v. Canada (Public Safety and Emergency Preparedness). By reversing a line of cases that had confined immigration detainees to review by an administrative tribunal and judicial review in the Federal Court, Chaudhary has opened the door to the superior courts for immigration detainees. This article provides a review of the immigration detention system in Canada, the applicable legislation, procedures, and case law, and canvasses the impact of Chaudhary on the rights of immigration detainees. It then considers the benefits of habeas corpus as a litigation strategy, the role it has played in debunking the “separate but equal” myth, and suggests other potential issues now ripe for further litigation.

L’alimentazione halal e le sfide alla laïcité francese: il caso dei menù alternativi nelle mense scolastiche

SOMMARIO: 1. Premessa metodologica - 2. Cenni storici sulle comunita musulmane francesi - 3. La re-invenzione di una tradizione? - 4. Mangiare halal a scuola: l’ affaire di Chalon-sur-Saone - 5. Conclusioni. Halal alimentation and the challenges against french laicite : the request of alternative menu in the school canteens ABSTRACT: The article will concern the debate about the balance between secularism and religious-driven prerogatives through a narrow focus on the diffusion of halal food in France. In particular, I will shed light on the increasing request of shari'a-compliant food by Muslims in some social spaces, for instance in the school canteens. My research will unfold its arguments in two sections. In the first one, I will address the recent development of halal market in France and try to frame the reasons of such burgeoning activities - revival of Islam or neoliberal marketing strategy? In the second part, I will consider the sentence of Dijon Administrative Tribunal, which in 2017 abolished the decision of the mayor of Chalon-sur-Saone of suppressing halal menu in the school canteens. The verdict might be read as an opinion favourable to Muslim’s prerogatives. Nonetheless, the rationale of the judgement does lie indeed in the defence of the “best interest of the child”, whereas the basic principles of French laicite were not put into discussion.