Victorian Consolidated Legislation

Essential Services Commission Act 2001 - SECT 56

Appeal panel

56. Appeal panel



(1) An appeal must be heard by an appeal panel consisting of 3 members-

   (a)  being a chairperson and 2 other persons appointed by the Registrar;
        and

   (b)  of which at least one must have knowledge of administrative law or of
        the law of procedure and evidence.

(2) An appeal panel is to be constituted from a pool of persons appointed by
the Governor in Council because of their knowledge of, or experience in, one
or more of the fields of industry, commerce, economics, law or public
administration.

(2A) When constituting an appeal panel, the Registrar must use his or her best
endeavours to constitute the appeal panel consisting of-

   (a)  a chairperson who has experience in conducting contested hearings; and

   (b)  at least one member who has technical or industry experience or
        knowledge relevant to the appeal.

(3) An appeal panel must be constituted within 7 working days after notice of
the appeal is lodged.

(4) An appeal must be heard and decided-

   (a)  in the case of an appeal under section 55(1)(a) or 55(1)(b), within 7
        working days of the appeal panel being constituted, or if the appeal
        panel requires further time, within a further period not exceeding 7
        working days; or

   (b)  in the case of an appeal under section 55(1)(c), within 30 working
        days of the appeal panel being constituted, or if the appeal panel
        requires further time, within a further period not exceeding 15
        working days.

(5) If an appeal panel requires further time under subsection (4), the
chairperson must notify the Registrar in writing.

(6) The appeal panel has such of the powers of the Commission under Part 3 as
are necessary to enable the appeal panel to determine whether the appeal
should be granted and may conduct a preliminary hearing to determine whether-

   (a)  the appeal is trivial or vexatious; or

   (b)  there is sufficient evidence supporting the grounds of the appeal; or

   (c)  the matters raised in the appeal are likely to have had a material
        impact on the outcome being appealed against.

(7) Without limiting subsection (6), the appeal panel-

   (a)  in the case of an appeal under section 55(1)(a), may in granting the
        appeal-

   (i)  cancel the requirement; or

   (ii) vary the requirement; or

   (iii) set aside the requirement and remit it to the Commission for
        amendment of the requirement in accordance with the decision and
        recommendations (if any) of the appeal panel;

   (b)  in the case of an appeal under section 55(1)(b), may in granting the
        appeal-

   (i)  forbid disclosure by the Commission of the information or document
        that is the subject of the appeal; or

   (ii) restrict the intended disclosure by the Commission of the information
        or document within limits specified by the appeal panel;

   (c)  in the case of an appeal under section 55(1)(c) on the ground
        specified in section 55(2)(c)(i)-

   (i)  may determine whether or not there has been bias; and

   (ii) if it determines that there has been bias, may set aside the
        determination of the Commission and remit it to the Commission for
        amendment of the determination in accordance with the decision and
        recommendations (if any) of the appeal panel; and

   (d)  in the case of an appeal under section 55(1)(c) on the ground
        specified in section 55(2)(c)(ii)-

   (i)  may affirm the determination of the Commission; or

   (ii) may vary the determination of the Commission in order to correct the
        error; or

   (iii) may set aside the determination of the Commission and remit it to the
        Commission for amendment of the determination in accordance with the
        decision and recommendations (if any) of the appeal panel.

(8) The Commission-

   (a)  is a party to an appeal; and

   (b)  is entitled to perform the role of a contradictor in an appeal if the
        Commission gives notice to all the other parties to the appeal that it
        intends to do so.

(9) Subject to subsection (10), the Commission must give an appeal panel such
information as the appeal panel may request.

(9A) Subject to subsection (10), a party to an appeal must give an appeal
panel any information that the appeal panel may request.

(10) An appeal panel can only consider evidence in accordance with the
regulations.

(11) On the hearing of an appeal under section 55(1)(a) or 55(1)(b), the
Commission bears the onus of establishing that the requirement or decision-

   (a)  was made in accordance with the law; and

   (b)  is reasonable having regard to all relevant circumstances.

(12) The Commission must take such action as is necessary to give effect to a
decision of the appeal panel.