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SNL2016 CHAPTER I-2.1

INDEPENDENT APPOINTMENTS
COMMISSION ACT

Amended:

 

Schedule Amended:
36/16 s2; 47/16 s2; 2016 c42;
2016 cP-41.001 s31 (not in force-not included);
2016 cR-15.2 s32 (not in force-not included);
2016 cS-13.002 s25 (not in force-not included)

CHAPTER I-2.1

AN ACT TO ESTABLISH AN INDEPENDENT APPOINTMENTS COMMISSION AND TO REQUIRE A MERIT-BASED PROCESS FOR VARIOUS APPOINTMENTS

(Assented to May 24, 2016)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Independent Appointments Commission Act .

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Definitions

        2. In this Act

             (a)  "appointment" means the appointment of a person under the authority of a statutory provision or to an entity listed in the Schedule;

             (b)  "commission" means the Independent Appointments Commission established in section 6;

             (c)  "merit-based process" means a process established by the commission in consultation with the Public Service Commission for the purpose of executing their respective duties under this Act;

             (d)  "minister" means the minister

                      (i)  responsible for the administration of the Act under the authority of which an appointment may be made, or

                     (ii)  to whom an entity is accountable further to its establishment;

             (e)  "minister responsible for the administration of this Act" means the minister appointed under the Executive Council Act to administer this Act; and

             (f)  "Public Service Commission" means the commission appointed under section 5 of the Public Service Commission Act .

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PART I
PURPOSE AND EFFECT

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Purpose

        3. The purpose of this Act is to

             (a)  require a merit-based process for appointments; and

             (b)  establish an independent commission to provide recommendations for appointments in accordance with that process.

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Recommendations to be considered

        4. The Lieutenant-Governor in Council or a minister, as appropriate, shall consider the recommendations of the commission in making an appointment.

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Effect of requirement to consider recommendation

        5. Notwithstanding another provision of this Act, the requirement to consider a recommendation under section 4 shall in no way affect, alter or fetter the discretion of the Lieutenant-Governor in Council or the minister to exercise an authority to appoint a person under the applicable Act or another authority.

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PART II
INDEPENDENT APPOINTMENTS COMMISSION

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Commission established

        6. (1) The Independent Appointments Commission is established.

             (2)  The commission is an independent, non-partisan body whose mandate is to provide non-binding recommendations respecting appointments to the Lieutenant-Governor in Council or the minister, as appropriate, following a merit-based process.

             (3)  The commission shall consist of 5 members appointed by the Lieutenant-Governor in Council on resolution of the House of Assembly.

             (4)  The Lieutenant-Governor in Council shall designate one of the members of the commission to be chairperson.

             (5)  The members of the commission may elect from among their number one person as vice-chairperson who may act in the absence of the chairperson.

             (6)  A commissioner shall not be remunerated for his or her duties under this Act but a commissioner shall be paid the expenses actually and reasonably incurred by him or her in carrying out those duties in accordance with Treasury Board guidelines.

             (7)  The commission shall adopt rules of procedure and keep records of its proceedings.

             (8)  Acts done by the commission shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment or qualifications of a person purporting to be a member of the commission, be as valid as if the defect had not existed.

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Tenure of office

        7. (1) A commissioner shall be appointed for a term of 3 years, and may be reappointed for one additional 3 year term, to be served consecutively.

             (2)  Where a commissioner is reappointed under subsection (1), he or she shall be reappointed in the manner referred to in subsection 6(3).

             (3)  A commissioner holds office during good behaviour, but may be removed by the Lieutenant-Governor in Council on resolution of the House of Assembly.

             (4)  Where the House of Assembly is not sitting and a commissioner cannot act due to accident, illness, incapacity or death, the Lieutenant-Governor in Council may appoint a person to act in his or her place, but that appointment shall be confirmed on resolution of the House of Assembly within 10 sitting days of the House next sitting.

             (5)  With the exception of the first members appointed to the commission and the reappointment of those members, if granted, this Act applies to the appointment of the members of the commission.

             (6)  A commissioner shall, when appointed, take an oath that he or she will be impartial in the carrying out of duties under this Act.

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Panel

        8. The chairperson of the commission shall appoint a panel of 3 commissioners to review potential appointees for each appointment.

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Recommendations of commission

        9. (1) The commission shall provide recommendations respecting appointments in accordance with a merit-based process.

             (2)  Subsection (1) does not apply to

             (a)  a renewal or extension of an appointment where that appointment was made further to a merit-based process in accordance with this Act; or

             (b)  an appointment which, in the opinion of the Lieutenant-Governor in Council or the minister, as appropriate, must be made due to urgent or extenuating circumstances.

             (3)  Where an appointment is made further to urgent or extenuating circumstances as referred to in paragraph (2)(b), the minister responsible for the administration of this Act shall report on the circumstances of that appointment in the manner required by section 13.

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Duties and powers of commission

      10. (1) The commission shall

             (a)  together with the Public Service Commission, administer a merit-based process for appointments; and

             (b)  recommend 3 persons for those appointments.

             (2)  Notwithstanding paragraph (1)(b), where, in the opinion of the commission, it is not possible to recommend 3 persons for an appointment, the commission may recommend fewer than 3 persons but in that case it shall report to the Lieutenant-Governor in Council or minister, as appropriate, outlining its efforts to comply with paragraph (1)(b).

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Support of commission

      11. (1) The Public Service Commission shall support and advise the commission in the execution of its duties and the conduct of its business.

             (2)  In addition to subsection (1), the Public Service Commission shall do those other things that are requested by the commission, where those things are required by the commission in the exercise of its duties under this Act.

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Duties of Public Service Commission

      12. The Public Service Commission shall

             (a)  advertise and otherwise effectively distribute information respecting appointments and receive applications for appointments where vacancies exist;

             (b)  solicit and accept applications and expressions of interest for appointments on an ongoing basis;

             (c)  create and maintain a list of potential appointees based on paragraphs (a) and (b); and

             (d)  further to a merit-based process, provide to the commission a list of all potential appointees, including a list of recommendable potential appointees.

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PART III
GENERAL

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Report required

      13. (1) The minister responsible for the administration of this Act shall report annually to the Legislature those appointments exempted from the operation of this Act under the authority of paragraph 9(2)(b).

             (2)  Where the House of Assembly is not in session at the time a report is required to be presented under subsection (1), section 19.1 of the House of Assembly Act applies as if the report were a report of an officer of the House of Assembly.

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Attempt to influence

      14. (1) A person shall not, directly or indirectly, try to influence improperly the commission or an employee of or assistant to the commission with respect to the recommendation of himself or herself or another person for an appointment under this Act.

             (2)  A person who violates subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $500 and in default of payment to imprisonment for a term not exceeding 30 days.

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Schedule

      15. (1) When the House of Assembly is not in session, the Lieutenant-Governor in Council may, by order, amend the Schedule by adding to it but not deleting from it, but the order shall not continue in force beyond the end of the next sitting of the House of Assembly.

             (2)  An order made under subsection (1) is subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act.

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Review

      16. (1) The minister responsible for the administration of this Act shall, every 5 years, perform a review of this Act and consider the areas in which it may be improved and report his or her findings to the Lieutenant-Governor in Council.

             (2)  Within 3 days of the submission of the report under subsection (1) the minister shall

             (a)  table the report in the House of Assembly; or

             (b)  where the House of Assembly is not then sitting, table the report as if it were a report of an officer of the House of Assembly under section 19.1 of the House of Assembly Act.

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Protection from liability

      17. A person is not liable for anything done or omitted to be done in good faith in the exercise or performance of a power, duty or function conferred by or under this Act.

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Transitional

      18. Nothing in this Act affects an appointment made before the coming into force of this Act.

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RSNL1990 cP-43 Amdt.

      19. (1) Section 3 of the Public Service Commission Act is amended by adding immediately after subsection (1) the following:

         (1.1)  This Act applies to the appointments under the statutory authority or to entities listed in Schedule C in the manner referred to in sections 20 to 27.

             (2)  Subsection 4(1) of the Act is amended by deleting the phrase "This Act does not apply to" and substituting the phrase "Except as provided in sections 20 to 27, this Act does not apply to".

             (3)  The Act is amended by adding immediately after section 18 the following:

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Protection from liability

   18.1 A person is not liable for anything done or omitted to be done in good faith in the exercise or performance of a power, duty or function conferred by or under this Act.

             (4)  The Act is amended by adding immediately after section 19 the following:

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Application of certain provisions

      20. (1) This section and sections 21 to 27 apply only to

             (a)  the appointment of a person under the authority of a statutory provision or to an entity listed in Schedule C; and

             (b)  to appointments listed in the schedule to theIndependent Appointments Commission Act.

             (2)  In the case of a conflict between the other provisions of this Act and this section and sections 21 to 27, this section and sections 21 to 27 apply.

             (3)  In this section and sections 21 to 27

             (a)  "appointment", except as otherwise provided, means the appointment of a person under the authority of a statutory provision or to an entity listed in Schedule C;

             (b)  "merit-based process" means a process established by the commission for the purpose of executing its duties under sections 21 to 27; and

             (c)  "minister", notwithstanding paragraph 2(i), means the minister

                      (i)  responsible for the administration of the Act under the authority of which an appointment may be made, or

                     (ii)  to whom an entity is accountable further to its establishment.

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Appointments to agencies, boards and commissions

      21. (1) The commission shall provide recommendations respecting appointments in accordance with a merit-based process.

             (2)  Subsection (1) does not apply to

             (a)  a renewal or extension of an appointment where that appointment was made further to a merit-based process in accordance with sections 21 to 27; or

             (b)  an appointment which, in the opinion of the Lieutenant-Governor in Council or the minister, as appropriate, must be made due to urgent or extenuating circumstances.

             (3)  Where an appointment is made further to urgent or extenuating circumstances as referred to in paragraph (2)(b), the circumstances of that appointment shall be included in the report required under section 17.

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Recommendations to be considered

      22. The Lieutenant-Governor in Council or a minister, as appropriate, shall consider the recommendations of the commission in making an appointment.

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Effect of requirement to consider recommendation

      23. Notwithstanding section 22, the requirement to consider a recommendation under that section shall in no way affect, alter or fetter the discretion of the Lieutenant-Governor in Council or the minister to exercise an authority to appoint a person under the applicable Act or another authority.

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Schedule C

      24. (1) The Lieutenant-Governor in Council may, by order, amend Schedule C.

             (2)  An order made under this section is subordinate legislation for the purpose of theStatutes and Subordinate Legislation Act.

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Additional powers and duties of commission

      25. In addition to the other powers and duties of the commission under this Act, the commission may,

             (a)  with respect to appointments,

                      (i)  advertise and otherwise effectively distribute information respecting appointments and receive applications for appointments where vacancies exist,

                     (ii)  solicit and accept applications and expressions of interest for appointments on an ongoing basis,

                    (iii)  create and maintain a list of potential appointees based on subparagraphs (i) and (ii), and

                    (iv)  further to a merit-based process, provide to the Lieutenant-Governor in Council or the minister, as appropriate, recommendations for appointments; and

             (b)  with respect to appointments as defined in the Independent Appointments Commission Act ,

                      (i)  support and advise the commission established under the Independent Appointments Commission Act in the manner contemplated by that Act,

                     (ii)  advertise and otherwise effectively distribute information respecting appointments and receive applications where vacancies exist,

                    (iii)  solicit and accept applications and expressions of interest for appointments on an ongoing basis,

                    (iv)  create and maintain a list of potential appointees based on subparagraphs (ii) and (iii), and

                     (v)  further to a merit-based process, provide to the commission established under the Independent Appointments Commissions Act a list of all potential appointees, including a list of recommendable potential appointees.

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Current appointments unaffected

      26. Nothing in sections 20 to 25 affects an appointment made before the coming into force of this section.

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Attempt to influence commission

      27. (1) A person shall not, directly or indirectly, try to influence improperly the commission, an employee of the commission or a chief executive officer with respect to the appointment of himself or herself or another person

             (a)  to an appointment; or

             (b)  to an appointment as defined in the Independent Appointments Commission Act .

             (2)  A person who violates subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $500 and in default of payment to imprisonment for a term not exceeding 30 days.

             (5)  The Act is amended by adding immediately after Schedule B the following:

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Schedule C

Entities

Agreement on Internal Trade Dispute Screener

Agreement on Internal Trade Roster of Panelists

Atlantic Lotto Corporation with respect to provincial representatives

C.A. Pippy Park Golf Course Limited with respect to ministerial appointments

Dental Monitoring Committee

Interprovincial Lottery Corporation Board of Directors with respect to provincial nominees

Municipal Assessment Agency with respect to taxpayer representatives

Newfoundland and Labrador Film Development Corporation

Newfoundland and Labrador Historic Commemorations Board

Newfoundland and Labrador Sports Centre Inc. with respect to 6 members and a chairperson appointed by Lieutenant-Governor in Council

Newfoundland and Labrador Tourism Board with respect to a ministerial appointment of a chairperson

Premier's Youth Advisory Committee

Provincial Advisory Council on Aging and Seniors

Provincial Advisory Council on Mental Health and Addictions

Provincial Advisory Council on the Inclusion of Persons with Disabilities

Provincial Cancer Control Advisory Committee

Provincial Council of the Rural Secretariat

Provincial Wellness Advisory Council

Regional Council of the Rural Secretariat - Avalon Peninsula

Regional Council of the Rural Secretariat - Burin Peninsula

Regional Council of the Rural Secretariat - Clarenville-Bonavista

Regional Council of the Rural Secretariat - Corner Brook-Rocky Harbour

Regional Council of the Rural Secretariat - Gander-New-Wes-Valley

Regional Council of the Rural Secretariat - Grand Falls-Windsor-Baie Verte-Harbour Breton

Regional Council of the Rural Secretariat - Labrador Region

Regional Council of the Rural Secretariat - St. Anthony-Port au Choix Region

Regional Council of the Rural Secretariat - Stephenville-Port aux Basques Region

Torngat Joint Fisheries Board with respect to the members appointed by the provincial minister

Torngat Wildlife and Plants Co-Management Board with respect to the members appointed by the provincial minister

URock Volunteer Award Selection Board

Statutory Appointments

Apprenticeship and Certification Act , subsection 5(1)

Architects Act, 2008 , subsections 6(1) and 15(4) with respect to ministerial appointments

Arts Council Act , section 6

Atlantic Provinces Harness Racing Commission Act , subsection 5(1)

Atlantic Provinces Special Education Authority Act (Nova Scotia ), paragraph 5(2)(b)

Buildings Accessibility Act , section 18 with respect to Lieutenant-Governor in Council appointments

Canadian Centre for Occupational Health and Safety Act , section 4 with respect to provincial appointments

Chartered Professional Accountants and Public Accountants Act , subsections 5(1) and 28(4) with respect to ministerial appointments

Chiropractors Act, 2009 , subsections 5(1) and 21(4)

Credit Union Act, 2009, Credit Union Regulations, 2009, subsection 40(1) with respect to ministerial appointments

Criminal Code , section 672.38

Crop Insurance Act , section 3

Dental Act, 2008 , paragraphs 5(2)(c) and 27(6)(b)

Denturists Act, 2005 , subsections 4(1) and 14(1) with respect to ministerial appointments

Dietitians Act , subsections 6(1) and 22(4) with respect to ministerial appointments

Dispensing Opticians Act, 2005 , subsections 5(1) and 13(4) with respect to ministerial appointments

Economic Diversification and Growth Enterprises Act , subsection 6(1)

Embalmers and Funeral Directors Act, 2008 , subsections 4(1) and 16(3) with respect to ministerial appointments

Endangered Species Act , subsection 6(3)

Engineers and Geoscientists Act, 2008 , subsections 5(1) and 21(4) with respect to ministerial appointments

Fatalities Investigations Act , subsection 13.1

Financial Services Appeal Board Act , section 3

Fish Processing Licensing Board Act , section 5

Fishing Industry Collective Bargaining Act , section 19.1

Forestry Act , section 58

Geographical Names Board Act , section 3

Government Money Purchase Pension Plan Act , section 12.1

Government Purchasing Agency Act , subsection 7(1)

Health Professions Act , subsection 9(1) and paragraph 35(4)(c) with respect to ministerial appointments

Health Research Ethics Authority Act, paragraph 3(2)(d)

Hearing Aid Practitioners Act, 2005 , subsections 4(1) and 13(4) with respect to ministerial appointments

Historic Resources Act , section 22

Human Rights Act, 2010 , section 36

Income and Employment Support Act , section 42

Labrador Inuit Land Claims Agreement, Part 12.8.2, 13.10.2

Lands Act , St. John's Urban Region Agriculture Development Area Regulations , subsections 3(3) and 7(2)

Law Society Act, 1999 , section 42(4) with respect to ministerial appointments and paragraph 65(2)(b)

Licensed Practical Nurses Act, 2005 , subsections 4(1) and 14(4) with respect to ministerial appointments

Livestock Insurance Act , section 3

Massage Therapy Act, 2005 , subsections 4(1) and 14(4) with respect to ministerial appointments

Medical Act, 2011 , paragraph 9(1)(b) and subsection 40(4) with respect to ministerial appointments

Medical Care Insurance Act 1999 , subsection 15(7) with respect to those persons not nominated by the medical or dental associations

Medical Care Insurance Act, 1999 , Physicians and Fee Regulations , paragraph 15(1)(b)

Mental Health Care and Treatment Act , section 57

Mineral Act , section 37

Muskrat Falls Project Land Use and Expropriation Act, Muskrat Falls Project Land Use and Expropriation Regulations , section 16

Natural Products Marketing Act , section 3

Natural Products Marketing Act, Egg Scheme, 2000 , subsection 4(4)

Natural Products Marketing Act, Milk Scheme, 1998 , subsection 4(6)

Natural Products Marketing Act, Newfoundland and Labrador Chicken Marketing Scheme , subsection 4(1.1)

Occupational Health and Safety Act , section 12

Occupational Therapists Act, 2005 , subsections 4(1) and 14(4) with respect to ministerial appointments

Optometry Act, 2012 , subsections 9(1) and 27(4) with respect to ministerial appointments

Petroleum and Natural Gas Act, Royalty Regulations, 2003 , paragraph 81(6)(b)

Pharmaceutical Services Act , section 42

Pharmaceutical Services Act, Pharmaceutical Services Regulations , paragraphs 8(2)(d) and (e)

Pharmacy Act, 2012 , subsections 6(1) and 36(4) with respect to ministerial appointments

Physiotherapy Act, 2006 , subsections 5(1) and 16(4) with respect to ministerial appointments

Private Training Institutions Act , subsection 4(3)

Professional Fish Harvesters Act , section 5, subsection 15(1) and section 20

Provincial Court Act, 1991 , paragraphs 16(2)(b), 19(1)(c) and 20(1)(c)

Psychologists Act, 2005 , subsections 4(1) and 15(4) with respect to ministerial appointments

Public Libraries Act , paragraph 3(c)

Public Safety Act , subsection 25(1)

Queen's Counsel Act , subsection 7(2) with respect to appointments not recommended by benchers

Regional Services Board Act, 2012 , subsection 6(2)

Registered Nurses Act, 2008 , paragraph 6(1)(b) and subsection 19(5) with respect to ministerial appointments

Royal Newfoundland Constabulary Act, 1992 , subsection 29(1)

Social Workers Act , subsection 12(1) and paragraph 24(4)(c)

Student Financial Assistance Act , Student Financial Assistance Administration Regulations , paragraphs 18(1)(b) and (e)

Teachers' Collective Bargaining Act , subsection 10(1)

Teachers Training Act , section 3

Urban and Rural Planning Act, 2000 , subsection 41(1)

Veterinary Medical Act, 2004 , subsections 7(1) and 33(1) with respect to ministerial appointments

Wilderness and Ecological Reserves Act , subsection 7(1)

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SNL2006 cR-7.1 Amdt.

      20. (1) Subsections 8(1), (2) and (5) of the Regional Health Authorities Act are amended by deleting the word "minister" wherever it occurs and substituting the words "Lieutenant-Governor in Council".

             (2)  Subsection 14(1) of the Act is repealed and the following substituted:

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CEO of a board

      14. (1) The Lieutenant-Governor in Council shall appoint, after consultation with the board, a chief executive officer for the authority and shall determine the terms and conditions of employment of that chief executive officer.

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NLR 18/08 Amdt.

      21. Subsection 3(3) of the Regional Health Authorities Regulations, Newfoundland and Labrador Regulations 18/08, published under the Regional Health Authorities Act is amended by deleting the word "minister" and substituting the words "Lieutenant-Governor in Council".

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SNL2005 cR-15.1 Amdt.

      22. (1) Subsection 7(2) of the Rooms Act is repealed.

             (2)  Subsection 7(3) of the Act is amended by deleting the word "minister" and substituting the words "Lieutenant-Governor in Council".

             (3)  Subsection 10(1) of the Act is repealed and the following substituted:

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Chief executive officer

      10. (1) The Lieutenant-Governor in Council shall appoint, after consultation with the board, a chief executive officer of the corporation who shall hold office on the terms and conditions established by the Lieutenant-Governor in Council.

             (4)  Subsection 10(5) of the Act is amended by deleting the word "minister" and substituting the words "Lieutenant-Governor in Council".

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NLR 59/03 Amdt.

      23. The Waste Management Regulations, 2003 , Newfoundland and Labrador Regulation 59/03, published under the Environmental Protection Act , is amended by deleting the word "minister" in paragraph 3(1)(b) and subsections (2), (5) and (6) and substituting the words "Lieutenant-Governor in Council".

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RSNL1990 cW-11 Amdt.

      24. Section 6 of the Workplace Health, Safety and Compensation Act is repealed and the following substituted:

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Chief executive officer

        6. The Lieutenant-Governor in Council shall appoint, after consultation with the board of directors, a chief executive officer of the commission who shall devote the whole of his or her time to the performance of duties under this Act.

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Schedule

Entities

Marble Mountain Development Corporation Board of Directors

Public Service Pension Plan Corporation with respect to government appointees

Teachers' Pension Plan Corporation with respect to government appointees

Statutory Appointments

Auditor General Act , section 4

Business Investment Corporation Act, subsection 7(1)

Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act , section 10, with respect to provincial appointees, nomination for chairperson, designation of vice-chairperson and alternate

Centre for Health Information Act, subsection 6(1)

Child and Youth Advocate Act , section 4

Citizens' Representative Act , section 3

College Act, 1996, subsection 7(1) and section 10 except subsections 10(2), (3) and (4)

Elections Act, 1991 , section 4

Emergency 911 Act , subsection 12(1) except the directors referred to in paragraphs 12(3)(a) and (b) and subsection 12(4)

Energy Corporation Act , subsections 6(2) and 7(3)

Environmental Protection Act, Waste Management Regulations, 2003 section 3

House of Assembly Act , section 34

Housing Corporation Act , subsections 3(2) and 4(1) with respect to the chairperson

Human Rights Act, 2010, section 22

Hydro Corporation Act, 2007 , subsections 6(2) and 7(3)

Independent Appointments Commission Act , subsection 6(3)

Labour Relations Act , section 6

Legal Aid Act , paragraph 3(2)(a), except those members appointed under subsection 3(3)

Liquor Corporation Act , subsections 5(1) and (2)

Lobbyist Registration Act , subsection 23(1)

Memorial University Act , paragraph 22(2)(c) and subsection 48(1)

Pippy Park Commission Act , paragraph 4(1)(a) and subsection 12(1)

Public Service Commission Act , subsection 5(3)

Public Utilities Act , subsections 6(2) and 117(1)

Regional Health Authorities Act , subsections 8(1) and (2) and subsection 14(1)

Regional Health Authorities Act , Regional Health Authorities Regulations , subsection 3(3)

Research and Development Council Act , subsections 6(2) and 12(1)

Rooms Act , subsections 7(1) and 10(1)

Royal Newfoundland Constabulary Act, 1992 , subsection 4(1)

Status of Women Advisory Council Act , subsections 4(1) and 8(1)

Workplace Health, Safety and Compensation Act , subsection 4(1), paragraphs 4(2)(c) and (d), section 6 and subsections 22(1) and (2)

2016 cI-2.1 Sch; 36/16 s2; 47/16 s2; 2016 c42 s1