Road Safety Remuneration Tribunal Rules 2013

Road Safety Remuneration Tribunal Rules 2013

EXPLANATORY STATEMENT

 (issued by the authority of the President of the Road Safety Remuneration Tribunal)

Authority

Section 113 of the Road Safety Remuneration Act 2012 (Cth) (the Act) authorises the making of the rules of the Road Safety Remuneration Tribunal (RSRT).

Under section 113 of the Act, the President of the RSRT (President) may, by legislative instrument, after consulting the other RSRT Members, make procedural rules in relation to:

(a) the practice and procedure to be followed by the Tribunal; or

(b) the conduct of business in relation to matters the Tribunal is authorised to deal with.

Without limiting (a) and (b) above, the procedural rules may provide for the following:

(a) the requirements for making an application to the Tribunal;

(b) the circumstances in which a lawyer or paid agent may make an application or submission to the Tribunal on behalf of a person who is entitled to make the application or submission;

(c) the form and manner in which, and the time within which, submissions may or must be made to the Tribunal;

(d) the procedural requirements for making decisions of the Tribunal;

(e) the form and manner in which the Tribunal gives directions and notifies persons of things;

(f) who is notified by the Tribunal of things;

(g) the manner in which conferences are to be conducted.

Consultation on the Rules

As required by the section 113 of the Act, the President has consulted with all  Members of the RSRT on the Road Safety Remuneration Tribunal Rules 2013 (Rules).

In addition, pursuant to section 17 of the Legislative Instruments Act 2003 (Cth) the President consulted with persons (or their representatives) who are likely to be affected by the instrument. Further information on this process is outlined below.

Process of consultation

A consultation process on a draft of the Rules commenced on 10 December 2012. As part of this process, the President sought comment on the draft from any interested persons with comments and suggestions to be received by 22 January 2013.

In order to inform parties, the President wrote to certain organisations representing persons interested in the work of the RSRT. The President also notified all subscribers to the RSRT’s website of the release on the website of the draft Rules for comment. These processes are further described below.

Notifying relevant organisations

On 10 December 2012, the President contacted the following organisations by letter to notify them of the release of the draft Rules and to seek comment:

• Australian Business Industrial
• Australian Chamber of Commerce and Industry
• Australian Council of Trade Union
• Australian Industry Group
• Australian Livestock and Rural Transporters Association
• Australian Logistics Council
• Australian Manufacturing Workers’ Union
• Australian Municipal, Administrative, Clerical and Services Union
• Australian Road Transport Industrial Organisation
• Australian Security Industry Association Limited
• Australian Trucking Association NSW
• The Australian Workers’ Union
• Business SA
• Construction, Forestry, Mining and Energy Union
• Local Government and Shires Association of New South Wales
• Long Haul Drivers Association
• Master Builders Australia Limited
• NatRoad
• National Road Freighters Association
• National Union of Workers
• Transport Workers' Union of Australia
• Waste Contractors & Recyclers Association of NSW
• Wesfarmers Limited
• Western Australian Shire Councils, Municipal  Road Boards, Health Boards, Parks, Cemeteries and  Racecourse, Public Authorities, Water Boards Union
• Woolworths Limited

The President selected these organisations on the basis of their previous interest in matters relating to the RSRT (expressed through either submissions to relevant submission processes, or as being major representatives of persons who are likely to be affected by the instrument) and/or because they represent persons to whom the Rules may apply, including drivers, employers, hirers and supply chain participants in the road transport industry.

Website release of draft Road Safety Remuneration Tribunal Rules 2013

A draft of the Rules was also posted on the RSRT’s website on 10 December 2012 for comment. All subscribers to the RSRT’s website subscription service were informed of the release of the draft through email.

Comments on Rules

The Australian Industry Group, Australian Business Lawyers, the Road Freight Transport Industry Council and the Australian Chamber of Commerce and Industry made submissions. One party, the Australian Chamber of Commerce and Industry, indicated it had no feedback to provide at this time. The other three submissions were generally supportive of the content of the draft Rules, with some amendments proposed. These proposals were considered and, as appropriate, amendments were made to the draft rules.

Conclusion of consultation process and other subsequent changes

Following these processes, the President is satisfied that the feedback received has been incorporated in the proposed Rules as appropriate. The President does not believe that the Rules will have a substantial direct, or substantial indirect, effect on business or restrict competition.

The President is satisfied that the consultation processes adopted were suitable, having drawn on the knowledge of persons with expertise in fields relevant to the proposed instrument, and having ensured that persons likely to be affected by the proposed instrument have had an adequate opportunity to comment on its proposed content.

To note, following the consultation process, Schedules 1 and 2 of the draft Rules (which contained the proposed Forms for use by the RSRT) were removed. Instead, the proposed Rules now contain a definition of ‘approved form’ and a revised Clause (Clause 6 - Forms) which gives the President discretion to separately approve forms for the purpose of the Rules. This is similar to the approach taken in other Courts (see for example rule 2.04 in the Federal Magistrates Court Rules 2001 (Cth)).   

The change was made by the President in consideration of the administrative burden caused by the amendment of forms if attached to the Rules. In relation to this issue, particular consideration was given to the RSRT’s recent establishment and the possibility of future technological advancement for the forms (such as smart forms).

The approved forms will be published online, as with the Rules to ensure access of users to the approved Rules and Forms. 

Purpose

Arising from the commencement of the Road Safety Remuneration Act 2012 (Cth), the President, after consulting with the other RSRT Members and interested persons, has made procedural rules to the following effect:

Part 1—General

Rule 1 provides the name of the Rules.

Rule 2 provides the date these Rules commence.

Rule 3 specifies that these Rules are made under the Act.

Rule 4 contains definitions used in the Rules for “Act”, ‘approved form’ and “RSRT”.

There is a legislative note following that specifies other words and phrases are defined in the Act.

Rule 5 allows the RSRT to dispense with compliance with any of the requirements of the Rules before or after the occasion for compliance arises.

Rule 6 provides for the use of approved forms.

Subrule 6.1 provides that the President may approve a form for the purpose of these Rules.

Paragraph 6.2 (a) requires that, subject to the Rules, an approved form must be used to make an application.

Paragraph 6.2 (b) requires that notice must be given to the RSRT using the approved form.

Subrule 6.3 specifies an approved form for general applications for an application to the RSRT where no specific form is provided.

Paragraph 6.4 (a) requires that if the Rules require an approved form to be used, it is sufficient compliance if the document is substantially in accordance with the required approved form.

Paragraph 6.4 (b) requires that if the Rules require a form to be used, it is sufficient compliance if the document has only such variations as the nature of the case requires.

Rule 7 provides for lodging documents with the RSRT.

Subparagraph 7.1(a) (i) regulates the size and colour for documents lodged in hardcopy.

Subparagraph 7.1(a) (ii) regulates the layout of the documents lodged electronically.

Paragraph 7.1 (b) regulates the format of documents lodged in hardcopy and electronically.

Subrule 7.2 outlines the methods documents may be lodged with the RSRT.

Paragraph 7.2 (a) provides that documents can be lodged by physically delivering the document to a RSRT office during office hours.

Paragraph 7.2 (b) provides that documents can be lodged by email (see rule 20).

Paragraph 7.2 (c) provides that documents can be lodged by fax (see rule 21).

Paragraph 7.2 (d) requires that, if lodging a document via the RSRT’s website, then the document must be completed and submitted in accordance with the instructions accompanying the form on the website.

A legislative note following provides the RSRT’s website address and the website address where information about the location of RSRT offices can be found.

Subrule 7.3 regulates the heading format of the first page of a witness statement, statutory declaration or submission lodged with the RSRT.

Subrule 7.4 regulates the information and format at the foot of the first page of a witness statement, statutory declaration or submission lodged with the RSRT.

Rule 8 provides the requirement to serve documents lodged with the RSRT.

Subrule 8.1 requires that a person who makes an application or gives notice to the RSRT must serve a copy of it in accordance with the instructions on the approved form for the application or notice.

Subrule 8.2 provides that if an application is made for which no specific form is provided, the applicant may seek directions from the RSRT as to the requirements for service.

Rule 9 regulates the manner in which service is effected.

Subrule 9.1 requires that, unless provided by the Rules or directed by the RSRT, a person required to serve a document must serve the document as soon as practicable.

There is a legislative note following specifying that this rule does not apply to matters that fall within rule 10.

Subrule 9.2 provides the procedure for service of a document on an individual, a body corporate or an organisation or branch of an organisation by describing the manner for leaving, tendering, posting, transmission by fax or by email of a document.

Subrule 9.3 provides a definition of “registered office” and “secretary” in relation to a body corporate for the purpose of subrule 9.2.

Subrule 9.4 provides that for the purpose of postal service of a document, a certificate from a General Manager of the Australia Post Corporation or authorised person in writing stating that a letter which has been posted would in the normal course of post, have been delivered on a specified day is evidence of the facts stated.

Rule 10 provides that despite rule 9, service is not required for applications for road safety remuneration orders.

Rule 11 provides that if provision is made for personal, or other service of a document in a proceeding before the RSRT, on application of a person, the RSRT may make an order for substituted service or other service by letter, fax, email, public advertisement or another method.

Rule 12 provides for a document, other than a statutory declaration, to be signed by means of a facsimile of the signature.

Part 2—Appeals and reviews

Rule 13 provides for appeals.

Subrule 13.1 specifies that a person seeking to institute an appeal against a single RSRT Member must do so by lodging a notice of appeal in accordance with the approved form.

Subrule 13.2 specifies the documentation to be lodged with the notice of appeal.

Subrule 13.3 specifies the parties upon whom the applicant must serve a notice of appeal and accompanying documentation once the notice of appeal has been lodged.

Part 3— Disputes

Rule 14 provides a procedure for applications to be made by telephone by road transport drivers in relation to an application for a dispute under s.41, s.42 or s.43 of the Act.  

The legislative note following provides the RSRT’s website address to access the approved telephone numbers for making an application by telephone.

A second legislative note advises that a written application will be sent to the person who makes the telephone application.

A third legislative note advises that an application will not be processed until the written application has been returned to the RSRT.

Rule 15 provides a procedure for responding to an application for the RSRT to deal with a dispute.

Part 4—Practice

Rule 16 provides a procedure for filing a notice of a representative commencing or ceasing to act.

Subrule 16.1 requires a person who commences to act as a lawyer or paid agent of a party to a matter before the RSRT to lodge a notice in accordance with the approved form.

Subrule 16.2 requires a person who ceases to act as a lawyer or paid agent of a party to a matter before the RSRT to lodge a notice in accordance with the approved form.

Subrule 16.3 provides that a person who does not require permission to act as a lawyer or paid agent under subsections 91(2) and (3) of the Act is not required to comply with subrules 16.1 and 16.2.

Rule 17 provides for notices of discontinuance.

Subrule 17.1 specifies that an applicant may discontinue a matter before the RSRT by lodging a notice in accordance with the approved form.

Subrule 17.2 requires that, on lodging a notice under subrule 17.1, the applicant must serve a copy of the notice on the respondent as soon as practicable.

Rule 18 provides a procedure for an order for a witness to attend the RSRT.

Subrule 18.1 requires that a party seeking an order under paragraph 86(2) (a) of the Act requiring a person to attend may submit a draft order to the RSRT in accordance with the approved form.

Subrule 18.2 provides that if the order is made, service of the order must be effected by serving a copy of the signed order in accordance with rule 8.

Rule 19 provides a procedure for an order for production of documents.

Subrule 19.1 provides that a party seeking an order under paragraph 86(2) (c) of the Act for the production of documents or records or any other information, may submit a draft order to the RSRT in accordance with the approved form.

Subrule 19.2 provides that if the order is made, service of the order must be effected by serving a copy of the signed order in accordance with rule 8.

Rule 20 establishes a procedure for lodging documents by email.

Subrule 20.1 provides that, subject to subrule 20.2, a document that is required or permitted to be lodged by the Rules, may be lodged by emailing the document to any of the approved email addresses approved by the General Manager for the lodgement of documents electronically.

The legislative note following provides the website address on the RSRT website for approved email addresses for the lodgement of document electronically.

Subrule 20.2 requires that, if a matter has been allocated to a single RSRT Member, any document lodged by email must be sent to the email address of the RSRT Member’s chambers and, if a matter is to be dealt with by a Full Bench of the RSRT, any document lodged by email must be sent to the email address of the President’s chambers.

The legislative note following provides the website address for the list of email addresses of RSRT Members.

Subrule 20.3 provides the format and covering documentation necessary for documents lodged by email in accordance with rule 20. 

Subrule 20.4 sets out that a statutory declaration required to be lodged may be lodged electronically by sending a PDF or an image of the statutory declaration in accordance with subrule 20.3.

The legislative note following specifies that a statutory declaration must be signed and witnessed.

Subrule 20.5 requires that a document provided in accordance with rule 20 is not taken to be lodged until the General Manager complies with subrule 20.6.

Subrule 20.6 provides that the General Manager must send an acknowledgement of lodgement by email and that, once this has occurred, the document will be treated as having been lodged at the time it was received electronically.

Subrule 20.7 requires a person who lodges a document by email to retain a paper copy of the document and retain a paper copy of either the receipt indicating the document was delivered or the email showing the transmission details and to produce it as directed by the RSRT.

Rule 21 regulates the lodgement of documents by fax.

Subrule 21.1 provides that a document required or permitted to be lodged by the RSRT rules, may be lodged by fax sent to the fax number approved by the General Manager for the lodgement of a document by fax.

The legislative note following provides the address on the RSRT website showing approved fax numbers.

Subrule 21.2 regulates the format and covering documentation necessary for documents lodged by fax.

Subrule 21.3 requires a person who lodges a document by fax to keep a copy of the document and to produce it as directed by the RSRT or the General Manager.

Subrule 21.4 provides that if the RSRT or the General Manager directs that the original document be produced it must be endorsed with a statement that the document is the original of a document sent by fax and the date the document was sent by fax.

Part 5—Miscellaneous

Rule 22 provides the seal of the RSRT.

Subrule 22.1 provides the form of the seal of the RSRT.

Subrule 22.2 provides that there are to be such duplicates of the seal as the President directs.

Subrule 22.3 provides that a document to which a duplicate of the seal is affixed is taken to have the seal affixed to it.

Subrule 22.4 provides that the seal and duplicates of the seal are to be kept in such custody as the President directs and used only as authorised by the President.

Subrule 22.5 provides for the affixing of the seal by electronic means.

Rule 23 regulates the recovery of costs of providing copies of documents.

Subrule 23.1 allows the RSRT to recover the costs of providing copies of documents whether in the form of photocopies, fax transmission, electronic data, printed documents or otherwise.

Subrule 23.2 provides for the payment in advance of costs that the RSRT reasonably requires to be paid.

Statement of Compatibility with Human Rights

Prepared in accordance with part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

Road Safety Remuneration Tribunal Rules 2013

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Overview of the Legislative Instrument

Procedural rules for the newly established Road Safety Remuneration Tribunal made by the President under section 113 of the Road Safety Remuneration Act 2012 (Cth).

Human Rights Implications

The instrument does not engage any of the applicable rights or freedoms.

Conclusion

This instrument is compatible with human rights as it does not raise any human rights issues.

The Honourable Jennifer Acton

President of the Road Safety Remuneration Tribunal