Vehicle and Traffic (Review of Decisions) Regulations 2000

Vehicle and Traffic (Review of Decisions) Regulations 2000

I, the Lieutenant-Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Vehicle and Traffic Act 1999 .

7 August 2000

W. J. E. COX

Lieutenant-Governor

By His Excellency's Command,

P. A. LENNON

Minister for Infrastructure, Energy and Resources

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Vehicle and Traffic (Review of Decisions) Regulations 2000 .

2.   Commencement

These regulations take effect on the day on which the Vehicle and Traffic Act 1999 commences.

3.   Interpretation

In these regulations –

administrative decision means a decision specified in column 2 of a table in Schedule 1 ;

applicant means a person who makes an application;

application means an application under Part 2 for the review of an administrative decision;

decision-making authority, in relation to an administrative decision, means whichever of the following authorities made the decision:

(a) the Registrar;

(b) the Commission;

notice means notice in writing;

reviewing authority, in relation to an application, means whichever of the following authorities is required by regulation 6(1) to consider the application:

(a) the Secretary of the Department;

(b) the Commission.

PART 2 - Internal review of decisions

4.   Right of review

A person who is aggrieved by an administrative decision may apply to have it reviewed if the person is specified in column 4 of the relevant table in Schedule 1 as an eligible person in relation to the decision.

5.   Notice of decisions

(1)  As soon as practicable after making an administrative decision, the decision-making authority must give each person who is eligible to apply for a review of the decision notice of –

(a) the decision; and

(b) the person’s right to apply for a review of the decision; and

(c) the application procedure and the name of the reviewing authority; and

(d) the effect of regulation 8 .

(2)  A person who is eligible to apply for a review of an administrative decision is entitled, on request, to receive from the decision-making authority a written statement of the reasons for the decision.

6.   Applications for review

(1)  An application is to be made in writing and lodged with –

(a) the Secretary of the Department in the case of an administrative decision specified in column 2 of the table in Part 1 of Schedule 1 ; or

(b) the Commission in the case of an administrative decision specified in column 2 of the table in Part 2 of Schedule 1 .

(2)  An application made to the incorrect reviewing authority is not invalidated by that error and in any such case the application is to be passed to the correct reviewing authority as soon as practicable.

(3)  An application need not be in a particular form but it must clearly identify the administrative decision and state the applicant’s reasons for seeking the review.

(4)  Notwithstanding subregulation (1) , a reviewing authority may waive the requirement for an application to be made in writing if it is satisfied in the circumstances of a particular case that it is an unreasonable or unnecessary requirement.

(5)  A waiver under subregulation (4) is incapable of being retracted.

(6)  A reviewing authority may, by notice, require an applicant to give it any information or evidence that the reviewing authority reasonably considers is necessary for a proper consideration of the applicant’s application.

(7)  An application may be withdrawn at any time.

(8)  An application is taken to have been withdrawn if the applicant fails to comply with a notice under subregulation (6) within 2 months after being given the notice.

7.   Time within which applications to be made

(1)  An application is to be lodged with the reviewing authority within 28 days after notice is given to the applicant under regulation 5 .

(2)  A reviewing authority may consider a late application if satisfied that it would be fair to do so.

8.   Effect of applications

An application does not set aside the administrative decision to which it relates or stay the operation of the decision.

9.   Consideration of applications

(1)  A reviewing authority must consider each application that is made to it and, in so doing –

(a) must observe the rules of natural justice; and

(b) must ensure that any employee or agent engaged in the review process –

(i) was not involved in making the administrative decision under review; and

(ii) is not under the direct control of a person who was involved in making the administrative decision under review; and

(c) may engage an independent mediator to assist in the review process; and

(d) may, if the administrative decision under review relates to matters that are of general importance to a sector of the transport industry and it is possible to do so without prejudice to the applicant, consult with any representatives of, or organisations in, that industry sector.

(2)  If a reviewing authority finds that an application is frivolous or vexatious it must give the applicant immediate notice of that finding but is not required to take any further action.

(3)  In any other case, the reviewing authority must make a determination to –

(a) affirm the administrative decision; or

(b) vary the administrative decision (if it is capable of variation); or

(c) set aside the administrative decision.

(4)  If subregulation (3)(b) applies, the administrative decision as varied forms part of the determination for the purposes of these regulations.

(5)  If subregulation (3)(c) applies –

(a) the reviewing authority must make a new administrative decision in place of the decision that has been set aside; and

(b) the new administrative decision forms part of the determination for the purposes of these regulations.

(6)  A determination under this regulation is to be made within –

(a) 14 days after the application is lodged; or

(b) if within that period the reviewing authority gives the applicant notice in accordance with regulation 6(6) that further information or evidence is required, 14 days after the reviewing authority is given the further information or evidence.

(7)  A 14 day period for making a determination may, on the reviewing authority giving notice to the applicant within that period, be extended once by a further period not exceeding 28 days.

(8)  If a determination is not made within the period provided by subregulation (6) or, if applicable, the further period provided by subregulation (7) , the reviewing authority is taken to have made a determination to affirm the administrative decision to which the application relates.

(9)  The reviewing authority must give an applicant notice of a determination as soon as practicable after it has been made or, in a case to which subregulation (8) applies, taken to have been made.

(10)  A notice under subregulation (2) or (9) is to –

(a) give reasons for the finding or determination; and

(b) if applicable, inform the applicant of the applicant’s right of appeal and the procedure for instituting an appeal.

PART 3 - External review of decisions

10.   Right of appeal

(1)  A person who is aggrieved by a finding or determination of the reviewing authority in relation to an application made by that person may appeal to a magistrate if the application related to –

(a) an administrative decision specified in the table in Part 1 of Schedule 1 ; or

(b) the administrative decision specified in item 6 in the table in Part 2 of Schedule 1 .

(2)  A magistrate to whom an appeal is made under subregulation (1) has power to hear and determine the appeal.

(3)  An appeal under this Part is to be by way of a rehearing.

11.   Appeals procedure

(1)  A person’s appeal is to be instituted by a notice of appeal lodged with a district registrar of the Magistrates Court (Civil Division) within 28 days after notice of the finding or determination is given to the person under regulation 9(2) or (9) .

(2)  A notice of appeal lodged after that 28 day period is invalid.

(3)  The notice of appeal is to specify the parties to the appeal, the relevant finding or determination and any grounds of appeal.

(4)  On lodgment of the notice of appeal, the district registrar must –

(a) cause a copy of the notice to be given to the reviewing authority; and

(b) give the parties to the appeal notice of the time and place at which the appeal is to be heard.

(5)  The magistrate hearing an appeal or a party to an appeal may summon a person to appear and give evidence at the hearing of the appeal by serving that person with a summons.

(6)  The magistrate hearing an appeal –

(a) may adjourn the hearing from time to time or from place to place as the magistrate considers appropriate; and

(b) may inform himself or herself on any relevant matter in such manner as he or she considers appropriate; and

(c) must proceed without undue formality and is not bound by the rules of evidence; and

(d) must observe the rules of natural justice; and

(e) may order that the hearing or any part of it be held in private if the magistrate considers that it is appropriate to do so to protect personal or commercial confidentiality or on other reasonable grounds.

(7)  A decision-making authority or reviewing authority must, if directed to do so by the magistrate hearing an appeal, give the magistrate a statement of the reasons for making a decision, finding or determination.

(8)  A party to an appeal must, if directed to do so by the magistrate hearing the appeal, give the magistrate any document or information in the possession or under the control of that party.

(9)  A party to an appeal may be represented at the hearing by a legal practitioner or any other person.

(10)  A magistrate who has heard an appeal must cause a copy of his or her orders and any associated directions to be given to the parties to the appeal without undue delay.

12.   Orders on appeal

(1)  After hearing an appeal against a finding under regulation 9(2) , a magistrate may, by order –

(a) affirm the finding; or

(b) set aside the finding.

(2)  If subregulation (1)(b) applies, the magistrate may, by order and with or without other directions, direct the decision-making authority to make a new administrative decision in place of the administrative decision to which the appeal relates.

(3)  After hearing an appeal against a determination under regulation 9(3) , a magistrate may, by order –

(a) affirm the determination; or

(b) vary the determination (if it is capable of variation); or

(c) set aside the determination.

(4)  If subregulation (3)(c) applies, the magistrate may, by order –

(a) make a new determination in place of the determination set aside; or

(b) direct the decision-making authority, with or without any other directions, to make a new administrative decision in place of the administrative decision to which the appeal relates.

(5)  A magistrate hearing an appeal may make any additional orders that the magistrate thinks just.

13.   Costs of appeal

(1)  In this regulation,

party includes the Crown.

(2)  After hearing an appeal under this Part, a magistrate may make such order as to costs as the magistrate thinks just.

(3)  Costs so awarded may be recovered as a debt due to the party to whom they are awarded.

14.   Magistrate’s orders final

The orders of a magistrate on an appeal under this Part are final.

15.   Compliance with orders

A decision-making authority or reviewing authority must comply with an order or direction of a magistrate made or given under this Part.

PART 4 - Miscellaneous

16.   Service of documents

(1)  For the purposes of these regulations, an application, notice or other document may be lodged with or given to a person by –

(a) in the case of an individual –

(i) handing it to the person; or

(ii) leaving it at, or sending it by post to, the person’s postal or residential address or place or address of business or employment last known to the person seeking to lodge or give the document; or

(iii) sending it by way of facsimile transmission to the person’s facsimile number; or

(iv) sending it by way of electronic mail to the person’s electronic mail address; and

(b) in the case of a reviewing authority or any other person –

(i) leaving it at, or sending it by post to, the person’s principal or registered office or one of the person’s places of business; or

(ii) sending it by way of facsimile transmission to the person’s facsimile number; or

(iii) sending it by way of electronic mail to the person’s electronic mail address.

(2)  A document sent by post is not taken to have been lodged or given until the time when it would have been delivered in the ordinary course of post.

(3)  For the purposes of subregulation (1)(b)(i) , a police station or Service Tasmania shop is not taken to be an office, or place of business, of a reviewing authority.

17.   Savings and transitional

(1)  In this regulation –

commencement day means the day on which these regulations take effect;

superseded regulations means the Traffic (Review of Decisions) Regulations 2000 .

(2)  An application made to the Commission before the commencement day under the superseded regulations may continue to be considered, dealt with and determined in all respects and may, if applicable, be the subject of appeal in all respects as if –

(a) the application had been made under these regulations; and

(b) these regulations had taken effect on the same day as the superseded regulations.

(3)  Any appeal made to a magistrate before the commencement day under the superseded regulations may continue to be heard, dealt with and determined, and orders as to costs made, in all respects as if –

(a) the appeal had been made under these regulations; and

(b) these regulations had taken effect on the same day as the superseded regulations.

SCHEDULE 1 - Administrative decisions and eligible persons

Regulations 3 , 4 , 6 and 10

PART 1 - Administrative decisions under Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000

PART 2 - Administrative decisions under Traffic Act 1925

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 11 August 2000

These regulations are administered in the Department of Infrastructure, Energy and Resources.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations provide for the review of certain administrative decisions under the Vehicle and Traffic Act 1999 and the Traffic Act 1925.