Vehicle and Traffic (Review of Decisions) Regulations 2010

Vehicle and Traffic (Review of Decisions) Regulations 2010

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 Vehicle and Traffic Act 1999 .

26 July 2010

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

LARA GIDDINGS

Minister for Infrastructure

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Vehicle and Traffic (Review of Decisions) Regulations 2010 .

2.   Commencement

These regulations take effect on 11 August 2010.

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;

eligible person, in relation to an administrative decision, means the person specified in column 4 of a table in Schedule 1 as an eligible person in relation to the decision;

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.

3A.   Certain decisions not to be taken to be administrative decisions

[Regulation 3A Inserted by No. 5 of 2017, s. 13, Applied:01 Jun 2017] In this Act, a reference to an administrative decision does not include a reference to a decision –

(a) to issue an offensive advertising notice in relation to a vehicle; or

(b) to refuse to register a vehicle because there is an offensive advertising notice in relation to the vehicle; or

(c) to cancel the registration of a vehicle because there is an offensive advertising notice in relation to the vehicle.

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 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 eligible person in relation to 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 9 .

(2)  An eligible person in relation to 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 or Part 3 of Schedule 1 .

(2)  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.

(3)  A waiver under subregulation (2) is incapable of being retracted.

(4)  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.

(5)  An application –

(a) may be in any form; but

(b) must clearly state –

(i) the administrative decision to which it relates; and

(ii) the applicant’s reasons for seeking the review.

(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.   Withdrawal of applications

(1)  An application may be withdrawn at any time.

(2)  An application is taken to have been withdrawn if the applicant fails to comply with a notice under regulation 6(6) within 2 months after being given the notice.

8.   Time within which applications to be made

(1)  An application is to be lodged with the reviewing authority within 28 days after the day on which 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 in the circumstances of the particular case.

9.   Effect of applications

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

10.   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 consult with any representatives of, or organisations in, a sector of the transport industry if –

(i) the administrative decision under review relates to matters that are of general importance to that sector; and

(ii) it is possible to do so without prejudice to the applicant.

(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 the decision is able to be varied and the variation is appropriate in the circumstances; 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 the period specified in paragraph (a) 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)  The period in which a determination may be made may be extended for one further period not exceeding 28 days if the reviewing authority gives notice of the extension to the applicant within –

(a) the 14-day period specified in subregulation (6)(a) ; or

(b) if notice of an extension has not been given under paragraph (a) and further information has been requested under regulation 6(6) , the 14-day period specified in subregulation (6)(b) .

(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 to have the decision reviewed and the procedure for applying for a review.

PART 3 - External Review of Decisions

11.   Right of appeal

A person who is aggrieved by a finding or determination of the reviewing authority in relation to an application made by that person may apply to the Magistrates Court (Administrative Appeals Division) for a review of the finding or determination 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 .

12.   Orders on appeal

(1)  After hearing an application for a review against a finding under regulation 10(2) , the Magistrates Court (Administrative Appeals Division) may, by order –

(a) affirm the finding; or

(b) set aside the finding.

(2)  If subregulation (1)(b) applies, the Magistrates Court (Administrative Appeals Division) may, by order and with or without directions, remit the matter for reconsideration by the reviewing authority in accordance with any directions or recommendations of the Court.

PART 4 - Miscellaneous

13.   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)  An application, notice or document sent by post is not taken to have been lodged, served 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.

14.   Savings and transitional

(1)  In this regulation –

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

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

(2)  An application made to the reviewing authority under the superseded regulations before the commencement day 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 took effect.

(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 may be 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 took effect.

SCHEDULE 1 - Administrative Decisions and Eligible Persons

Regulations 3 , 4 , 6 and 11

PART 1 - Administrative decisions under Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2021

[Part 1 of Schedule 1 Amended by S.R. 2014, No. 11, Applied:05 Feb 2014] [Part 1 of Schedule 1 Amended by S.R. 2017, No. 115, Applied:01 Jan 2018] [Part 1 of Schedule 1 Substituted by S.R. 2021, No. 27, Applied:01 Jun 2021]

PART 2

[Part 2 of Schedule 1 Rescinded by S.R. 2014, No. 12, Applied:10 Feb 2014] .  .  .  .  .  .  .  .  

PART 3 - Administrative decisions under Vehicle and Traffic (Vehicle Operations) Regulations 2014

[Part 3 of Schedule 1 Amended by S.R. 2014, No. 12, Applied:10 Feb 2014] [Part 3 of Schedule 1 Substituted by S.R. 2014, No. 73, Applied:01 Jul 2014]

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

Notified in the Gazette on 4 August 2010

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