Traffic (Review of Decisions) Regulations 2000

Traffic (Review of Decisions) Regulations 2000

I, the 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 Traffic Act 1925 .

G. S. M. GREEN

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 Traffic (Review of Decisions) Regulations 2000 .

2.   Commencement

These regulations take effect on the day on which the Traffic Amendment (Accreditation and Miscellaneous) Act 1997 commences.

3.   Interpretation

In these regulations –

Act means Traffic Act 1925 ;

applicant means a person who makes an application;

application means an application to the Commission under Part 2 for the review of a prescribed decision;

notice means notice in writing;

prescribed decision means a decision of the Commission specified in column 2 of Schedule 1 .

PART 2 - Internal review of decisions

4.   Right of review

A person who is aggrieved by a prescribed decision may apply to the Commission for a review of the decision in accordance with this Part if the person is specified in column 3 of Schedule 1 as an eligible person in relation to the decision.

5.   Notice of decisions

(1)  As soon as practicable after making a prescribed decision, the Commission 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

(d) the effect of regulation 8 .

(2)  A person who is eligible to apply for a review of a prescribed decision is entitled, on request, to receive from the Commission 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 the Commission.

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

(3)  Notwithstanding subregulation (1) , the Commission 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.

(4)  The Commission may require an applicant to give it any information or evidence that it reasonably considers necessary for a proper consideration of the applicant's application.

7.   Time within which applications to be made

(1)  A person's application for the review of a prescribed decision is to be lodged with the Commission within the period of 28 days immediately following the day on which notice of the decision is given to the person under regulation 5 .

(2)  The Commission is not required to consider an application lodged after the 28 day period but it may consider a late application if it is satisfied in the circumstances of a particular case that it would be fair to do so.

8.   Effect of applications

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

9.   Consideration of applications

(1)  The Commission 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 engaged in the review process –

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

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

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

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

(2)  If an application is found to be frivolous or vexatious the Commission must give the applicant immediate notice of that finding but it is not required to take any further action on the application.

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

(a) affirm the prescribed decision; or

(b) if it is appropriate in the circumstances to do so, vary the prescribed decision; or

(c) set aside the prescribed decision.

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

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

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

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

(6)  A determination under this regulation is to be made within the period of 14 days immediately following the day on which the application is lodged with the Commission.

(7)  The 14 day period for making a determination may, on the Commission giving notice to the applicant before the end of 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 Commission is taken to have made a determination to affirm the prescribed decision to which the application relates.

(9)  The Commission 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 Commission in relation to an application made by that person may, if the application related to a decision specified in Schedule 2 , appeal to a magistrate.

(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 the period of 28 days immediately following the day on which 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 time 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 Commission; 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)  The Commission 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 of the Commission 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 directions, remit the appellant's application to the Commission for reconsideration and determination.

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

(a) affirm the determination; or

(b) if it is appropriate in the circumstances to do so, vary the determination; 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) remit the appellant's application to the Commission, with or without directions, for reconsideration and redetermination.

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

13.   Costs of appeal

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

(2)  Costs awarded under subregulation (1) may be recovered as a debt due to the person to whom they are awarded.

14.   Magistrate's orders final

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

15.   Commission to comply with orders

The Commission 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, served on 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, serve 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 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 served or given until the time when it would have been delivered in the ordinary course of post.

SCHEDULE 1 - Prescribed decisions and eligible persons

Regulations 3 and 4

SCHEDULE 2 - Appealable decisions

Regulation 10

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

Notified in the Gazette on 21 June 2000

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