Law Reform Commission Reports: Recent Releases

I like to look for law reform commission reports when doing legal research.

Law commissions consult widely with stakeholders, sometimes compare how other jurisdictions have dealt with the same problem and they frequently dig into the history of an issue.

Here are a few reports released in the past few weeks.

• Alberta Law Reform Institute Final Report on Estate Administration: “In our Final Report on Estate Administration, ALRI makes a number of recommendations for reform (…) The objective of these reforms is to create clear, rational and accessible legislation that will provide guidance to estate representatives who are responsible for administering an estate. In keeping with this objective, our report starts by providing a clear description of the role of the estate representative, beneficiaries and the court. The estate representative ensures the timely, efficient, and effective transfer of the estate property to the beneficiaries. The beneficiaries monitor the estate administration process. Generally, where a court is involved, it is at the front-end of the process. The court confirms who has authority to administer an estate and who requires notice. It does not, except where there are disputes, approve the plan for distributing the assets of the estate. In order to carry out the role of the estate representative, certain qualities must be demonstrated. To avoid any confusion as to what is expected of an estate representative, our report expressly states the core duties of this position. Particularly important in the context where a layperson is acting as estate representative, this report expands on these core duties by providing a detailed task list (…) Finally, this report emphasizes the importance of communication to the estate administration process. Effective communication between the estate representative, the beneficiaries, and creditors is the key to a beneficiary-driven rather than a court-driven process. For this reason, it is a core duty of the estate representative and at the heart of many of the activities on the detailed task list.” The report also examines the legislative framework on the issue in other Canadian provinces, Australia and the United States.
• British Columbia Law Institute Report on Assisted Living: “Assisted living is a form of rental housing where meals, light housekeeping, and certain personal care services are provided to residents in addition to accommodation. It is intended for seniors and persons with disabilities who require some personal services, but not 24-­‐hour care. While the number of assisted living dwelling units in B.C. has increased greatly over the past decade, the respective rights and obligations of residents and operators of assisted living facilities remain uncertain in many areas. The BCLI / CCEL [Canadian Centre for Elder Law] report contains reform recommendations to address these deficiencies in the existing framework, which were also identified and criticized in the Ombudsperson’s comprehensive report on seniors’care in B.C. issued in 2012.” [from the press release]
• English and Scottish Law Commissions Joint Report on Level Crossings: “The legislation governing level crossings is complex and antiquated, much of it dating back to the nineteenth century when the main railways were constructed under individual local Acts, called special Acts. Today, the relevant legislative provisions are contained in a combination of public general Acts, private Acts, bye-laws, and subordinate legislation in the form of Orders and Regulations, many of which have been amended heavily over the years. Some of the Acts have been partially repealed and some of their provisions have become spent or obsolete. It is not always clear which legislative provisions apply and which take precedence.” Among the report’s recommendations: provide tools to support safety under health and safety regulations, including level crossings plans, enforceable agreements between railway operators and other duty holders, and a power for the Secretary of State to issue directions if necessary; improve the balance of convenience to all level crossing users by imposing a statutory duty upon railway and highway operators to consider the convenience of all users when carrying out their obligations in respect of level crossings; improve efficiency and level crossing management by imposing a statutory duty on highway and railway operators to make arrangements to co-operate with each other in carrying out their obligations in respect of level crossings.
• Australian Law Reform Commission Issues Paper on Serious Invasions of Privacy in the Digital Era: The Commission is looking for public input to help it develop draft recommendations for reform to be released in a Discussion Paper due at the end of February 2014. The Commission has been asked by the Australian Attorney General to look at ways the law might prevent or redress serious invasions of privacy. The Commission will be looking at detailed legal design of a statutory cause of action for serious invasions of privacy, including: legal thresholds, the effect of the implied freedom of political communication, jurisdiction, fault elements, proof of damages, defences, exemptions, whether there should be a maximum award of damages, whether there should be a limitation period, whether the cause of action should be restricted to natural and living persons, whether any common law causes of action should be abolished, access to justice, and the availability of other court ordered remedies.
• New Zealand Law Commission Issues Paper on Legal Framework for Burial and Cremation: “Our cultural landscape has also changed dramatically. These changes can lead to new tensions and may require innovative approaches in order to accommodate the range of public and private interests. For example, our society places particular emphasis on personal autonomy and the right to self-determination, but alongside this there is a growing acknowledgment of the place of tikanga Māori [indigenous customary law] and the importance of connections to places and people. Irrespective of their ethnic origins and ancestry many New Zealanders share these values and are looking for ways to affirm their own connections to the land when they die.” The Issues Paper asks questions such as: Is it possible for a person’s body to be buried on private land? Or for mourners to arrange the burial or cremation of a loved one without any professional assistance? Are all those providing funeral and cremation services accountable to a professional standards body? Are families obliged to follow any instructions we might leave about what we wish to happen to our bodies after death? And what happens if a serious disagreement arises among the bereaved about the final arrangements?
• English Law Commission Consultation Paper on Data Sharing Between Public Bodies: “The problems with data sharing between public bodies may originate from a number of causes other than a deficit in substantive law, such as: a lack of guidance or education; insufficient technology; cultural blocks; inadequate organisation; or excessive sanctions. At this stage, we are carrying out a scoping exercise. The objective of this exercise is not to propose any reform to the current legal framework but to investigate the root causes of the reported obstacles to data sharing between public bodies. Once these causes are identified, we will decide whether a full law reform project is needed, and will make recommendations accordingly (…) We are also clear that there would only be a problem if it is legitimate data sharing that is being prevented. There are legal aspects to this but it also raises matters of principle. Sharing cannot be legitimate if it is unlawful. The laws of data protection and confidentiality place limits on lawful sharing …There are also questions as to whether public bodies should have the legal power to share data even where the sharing is not prevented by these prohibitions. There are important ethical limits on what the state should know about individuals at all; and further, on how information should be disseminated between different institutions within the state. “

There is always a chance that a law commission has looked at a legal issue you may be working on. Slaw.ca collaborator Ted Tjaden has a section on how to find law reform commission reports on his legal research writing website.