Commentary on Sections Section 86 – Consultation before final determination following an appeal
156.This section applies if, following an appeal under sections 99 or 101, or following any further appeal, the Commissioner is directed by the Tribunal to determine under section 73 that D has failed to comply with a standard.
157.Before finally deciding what, if any, action to take based on the determination, the Commissioner must, in relation to each interested person, satisfy the requirements of subsections (2)(a) to (c).
158.Before settling the investigation report, the Commissioner must give each interested person a draft of the proposed investigation report and give D and any other interested person an opportunity to make representations. In the case of D, D may make representations about the proposals referred to in subsections (2) and (3) and in the case of any other interested person, they may make representations about the proposals referred to in subsection (3).
159.The Commissioner must have due regard to any representations made by D or any other interested person before doing anything to which the representations relate. The period for making representations is determined by the Commissioner but must not be less than 28 days.
160.An “interested person” in relation to an investigation by the Commissioner into whether D has failed to comply with a relevant requirement includes D and, where the investigation follows a complaint made under section 93, the person who made the complaint.