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A guide to internal reviews of HVNL decisions

17 August 2020

#Transport, Shipping & Logistics

Published by:

Rebecca Niumeitolu

A guide to internal reviews of HVNL decisions

If you are unhappy with certain decisions under the Heavy Vehicle National Law (HVNL) there is a scheme by which you can seek to have the decision set aside or substituted under Part 11.2 and 11.3 of the HVNL. This article provides a general guide for internal reviews process.

Step 1: Is a decision that has been imposed on you one that can be internally reviewed?

Not all decisions under the HVNL are ‘reviewable decisions’ that you can ask the National Heavy Vehicle Regulator (NHVR) to review.

To find out if the decision before you is one that can be internally reviewed, you can look at Schedule 3 of the HVNL. It lists all the decisions for which you can seek internal review. For example, the list includes the following ‘reviewable decisions’.

Step 2: Are you someone that can apply for internal review?

To apply for internal review, you must be a ‘dissatisfied person’. A dissatisfied person is:

  • the person that applies for an exemption, authorisation, approval or heavy vehicle accreditation or an amendment of one to the Regulator and is subject to the NHVR’s decision in relation to that application
  • the person that has an exemption, authorisation, approval or heavy vehicle accreditation that is amended, cancelled or suspended by the NHVR
  • a person that has an exemption, authorisation, approval or heavy vehicle accreditation that the Regulator determines not to give a replacement permit to
  • the owner of a thing or sample that the NHVR imposes a forfeiture decision on
  • the person subject to an improvement notice or prohibition notice by an authorised officer
  • a person adversely affected by a decision of a relevant road manager for a mass or dimension authority
  • a person that is otherwise a dissatisfied person within the national regulations that is subject to a reviewable decision.

Step 3: Are you within time to apply for a review of the reviewable decision?

The general rule is that you must apply for internal review within 28 days after:

  • you have been notified of the original decision
  • the day you receive the statement of reasons to the extent that the original decision was required to have them.

If the 28 day period has expired then you can apply to the NHVR for an extension of time. You can include in your extension of time application reasons for your delay, for example, if the delay was a result of factors beyond your control then that would weigh in favour of an extension of time.

Step 4: Check that you have a statement of reasons

Some reviewable decisions require the decision maker to provide reasons for original decision.

Requesting and obtaining a statement of reasons can be helpful to prepare the grounds for your internal review application as it offers insight into factors and materials the decision maker considered when making the original decision.

Step 5: Preparing your application to the Regulator

A review application must be:

  • in writing and set out the grounds for the review – the NHVR’s website has forms that you can complete for your review application. If you want to attach supporting documents you can attach them to these forms. When setting out grounds for the review it can be helpful to:
    • identify what your ideal result would be. The reviewer has the power to confirm, amend or substitute the original decision. Set out what you want the outcome of the review process to be and proceed with setting out reasons why the reviewer should make a decision in your favour. It can also be persuasive to include any documents that support your position, including documents that you are aware were before the original decision maker
    • attach the original decision for which you are seeking internal review.
  • accompanied by the prescribed fee for an internal review application – you can call the NHVR to clarify what fees apply to the internal review application.

Step 6: Lodging the application

The NHVR website and forms identify options for lodgement of an internal review application. Often original decisions will include details of where to lodge internal review applications, for example it may include details of local regulators which have delegated power to conduct internal reviews, such as Transport for New South Wales or Queensland Department of Transport and Main Roads.

Step 7: The review decision

The reviewer must give you notice of the review decision within the period prescribed by the HVNR (usually 28 days from the date of your application). If the reviewer does not give its decision within that period, the original decision is taken to be confirmed.

The review decision must include reasons for the decision and details for appeal.

Author: Rebecca Niumeitolu

  • This article was originally published in CoR Adviser. The article is © 2020 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rebecca Niumeitolu

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