- 35 days from the date specified in the correspondence requesting the additional information, or
- the date when the additional information is provided. [30]
An applicant has 14 days, from receipt of the request, to respond to the enforcement agency’s request for additional information. [31]
If the applicant is unable to provide the additional information, they may ask the agency for an extension of time. The enforcement agency may refuse or grant the extension of time and must advise the applicant of that decision in writing. If an enforcement agency decides to grant the applicant’s request for an extension of time, it must inform the applicant (in writing) of its decision and the period of the extension. [32]
If the applicant fails to provide the requested information within the relevant period, the enforcement agency may complete its review without the additional information. If the additional information is received out of time, the agency may decide to accept the late information provided and complete the internal review. [33]
5.3 Step 3: assess whether the grounds for internal review apply to the facts
The grounds for internal review reflect the purposes of internal review in the infringement system. These are to ensure:
- where there has been an error in exercising legal power by the agency, the notice can be withdrawn, and
- where the notice was valid but it was issued to the wrong person, or where the person was not aware that the notice had been issued, the notice can be properly issued to, and received by, the correct person, and
- where the notice was valid but circumstances in the applicant’s life means that enforcement of the infringement notice is not appropriate on fairness or equity grounds, the notice can be withdrawn.
5.3.1 Grounds for review
All applications for internal review must include at least one ground for review, as contained in section 22(1) of the Infringements Act.
The grounds are:
- contrary to law
- mistake of identity
- special circumstances
- exceptional circumstances, and
- person unaware.
Further detailed information about each of these grounds, guidance around evidentiary requirements and options for enforcement agencies after an internal review has been considered is available in section 6: Grounds for internal review of these Guidelines.
5.3.2 The general requirements of decision making in internal review
Decision makers may take a range of factors into account when applying the internal review grounds to the set of facts before them in the application.
Enforcement agencies may choose to structure the decision-making process by producing a set of questions for decision makers to consider whether there is sufficient evidence to allow the application to be granted. These questions may be designed to help meet administrative law requirements.
For example, a decision maker may consider:
- if required, evidence that supports a connection between the ground being claimed and the condition or circumstance that the applicant is purporting to rely on (considering particularly the standard of proof required and whether a link is demonstrated)
- whether the evidence is authentic, current (where applicable) and provided by an appropriate person (for example, a health practitioner)
- whether the applicant has provided further information, where possible, and when requested to do so and is the further information reliable in the circumstances, and
- whether there are other relevant factors or information of a general nature which may not be able to be evidenced by documentary proof.
Enforcement agencies can refer to section 6: Grounds for internal review of these Guidelines for details of the specific kind of evidence outlined for each ground of internal review.
5.4 Step 4: notify the applicant and give reasons for the decision
5.4.1 Notification
Once the enforcement agency has made its internal review decision, it must serve the applicant with a written notice of the outcome within 21 days. [34]
Under the Infringements Act, written notice can be served:- personally
- by post, or
- by email or other electronic means if the recipient meets certain criteria (that the recipient is 16 years of age or older, consents to receive notice electronically and has nominated an electronic address) or if the electronic address of the recipient is contained in a database prescribed under the Infringements Regulations (if any) [35]
- if notice of a review outcome is not served within 21 days, the infringement notice will be deemed to have been withdrawn. [36]
Under the Infringements Act, a document sent by post is deemed to have been served 7 days after the date of the document. A document sent electronically is deemed to have been served at the time it was sent unless it was sent after 4pm, in which case it will be taken to have been received on the next business day.
Documents sent by post are also deemed to have been received even if they are returned undelivered. [37] That protection does not exist if the notice or request is sent by email alone, even if the request for review was received via email and the applicant requested that the notice of outcome be sent to their email address. This is important if the agency needs to rely on service having occurred to move to the next step in the infringements lifecycle. For this reason, agencies may require a postal address as well as an email address from applicants.
5.4.2 Giving reasons for the decision
While there is a requirement for notifying the applicant of the decision, there is no clear legislative requirement to provide reasons for a decision. However, the principles of procedural fairness may require enforcement agencies to provide the applicant with reasons for the outcome of a decision.
Reasons may be sent automatically as part of the decision sent to the applicant or be available only on request by the applicant. Enforcement agencies should develop a policy on the provision of reasons and establish consistent practice.
Notification could include a section indicating why the decision maker reached their conclusion. It may refer to matters such as:
- validity issues (for example, timelines or standing)
- failure to provide information to support the review ground
- failure to provide information required to establish the nexus between the disability or disadvantage claimed and the conduct involved in the offence, and
- withdrawal of the application or referral of the matter to court.
If provided, a statement of reasons should include an explanation of:
- the power the decision maker is exercising, including the delegation or authority and the relevant section of the Act
- the steps in the reasoning process that led to the decision, linking the facts to the decision. The applicant should be able to understand how the decision was reached, and
- why facts were or were not accepted. [38]
Reasons are not required to be extensive or overly detailed but are an important tool to support the transparency of decision making and fairness of the internal review system.
Using template letters
An enforcement agency can develop standard wording to incorporate into a statement of reasons—for example, setting out the legislative provisions, the relevant policy or guidelines, and general questions to be determined for a decision of the kind in question. A template like this can help the decision maker express and respond to all relevant legal and policy criteria and explain how a discretionary power was exercised.
In this way, template letters can be useful tools in decision writing, however they need to be adapted for the circumstances. The template should be used as a guide or framework for the decision and must be adjusted according to the circumstances of each application. It is a good idea to have a section in the template letter which allows the decision maker to enter free text that relates to the facts of the specific application being considered.
Ideally, the reasons for decision should properly explain:
- the evidence considered
- the findings of fact and how these were reached, and
- how the law applies to the facts in the specific case.
6. Grounds for internal review
An internal review application must specify at least one ground of review. The grounds of review are set out in the Infringements Act. The following section provides further guidance about the considerations which may support each ground, evidential support which an agency may receive or request and the options available to an agency after consideration of the ground.
6.1 Contrary to law
The contrary to law ground can be used if a person believes that the decision to serve the infringement notice was unlawful. For example, this may arise where:
- the infringement notice is not valid (for instance, it is incomplete, or it does not otherwise comply with the formal legal requirements for an infringement notice) [39] , or
- an infringement officer has acted unlawfully, unfairly, improperly, or beyond their authority in taking that action or decision.
Note that the examples in this section are not exhaustive.
6.1.1 Agency considerations
If an applicant makes this claim, the enforcement agency needs to consider:
- whether the officer was authorised to make the decision to serve the infringement notice
- whether the agency complied with all the procedural requirements (as required by legislation)
- whether the officer complied with all the legal requirements for issuing the infringement
- whether the issuing officer made a mistake in deciding to issue the notice
- whether the issuing officer acted improperly or unfairly in deciding to issue the notice, and
- whether all the relevant signs (if applicable) were clear and visible (for example, were parking signs and signage relating to non-smoking areas and liquor licences visible?)
- any evidence provided, on which the applicant has a defence.
6.1.2 Evidentiary requirements
Applications for internal review that are made on the ground of contrary to law should (where appropriate) be accompanied with supporting evidence. This may include photographs of parking signage, witness statements or other evidence that goes to establishing facts.
6.1.3 Possible outcomes
An enforcement agency may make the following decision on reviewing an application for internal review based on the grounds of contrary to law:
- confirm the decision to serve an infringement notice
- withdraw the infringement notice and serve an official warning [40]
- withdraw the infringement notice
- withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as applicable)
- in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
- waive all or any prescribed costs, or
- approve a payment plan.
In some cases, it may be appropriate to do a combination of the actions above, in so far as this is possible.
6.1.4 If the application is refused
For applications made on the grounds of contrary to law, the following options are available to the applicant if the application is refused:
- pay the infringement and any prescribed costs by the due date
- where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
- apply to the enforcement agency for a payment plan
- apply to the Director, Fines Victoria for a payment arrangement
- elect to have the matter heard in Court (Magistrates’ or Children’s Court)
- make an application to the Director, Fines Victoria under the Family Violence Scheme, or
- if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant. [41]
6.2 Mistake of identity
The mistake of identity ground is intended to apply where a person claims that they were not the person who committed the infringement offence.
Examples could include where the person claims:
- they are not the person named on the infringement notice
- they were not in the location at the time of the offence and therefore could not have committed the offence
- they have had their identity stolen.
This ground is not available in circumstances where the operator of a vehicle has been served with a traffic or parking infringement notice and they allege that they are not liable for the offence and cannot reasonably ascertain the identity of the person who was responsible for the offence. Such circumstances should be more appropriately addressed by lodging an unknown user nomination statement.
6.2.1 Agency considerations
The relevant factors decision makers may consider are:
- how was the person identified at the time the infringement notice was issued?
- was there a statutory or procedural requirement for the issuing officer to confirm identity, and, if so, is there evidence this requirement was met?
- did the conduct of the applicant contribute to misidentification at the point of issue? Was the applicant’s conduct unreasonable in the circumstances (for instance, did the applicant intentionally provide another person with their identification)?
- is there any evidence that there was conduct by an authorised officer or a third person that resulted in misidentification (for instance, this might include failure by the authorised officer to follow or document compliance with procedural requirements)?
6.2.2 Evidentiary requirements
Applications for internal review on the ground of mistaken identity should (where appropriate) be accompanied by supporting evidence. Examples of supporting evidence for mistake of identity include the applicant’s birth certificate, driver’s licence or passport which shows:
- a different person than the one who received the infringement notice in the applicant’s name, or
- evidence that the applicant could not have committed the conduct because they could not have been in the relevant location.
6.2.3 Possible outcomes
An enforcement agency may make the following decision on reviewing an application for internal review based on the grounds of mistake of identity:
- confirm the decision to serve an infringement notice
- withdraw the infringement notice and serve an official warning
- withdraw the infringement notice
- withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as applicable)
- in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
- waive all or any prescribed costs, or
- approve a payment plan.
In some cases, it may be appropriate to do a combination of the actions above, in so far as that is possible.
6.2.4 If the application is refused
For applications made on the grounds of mistake of identity, the following options are available to the applicant if the application is refused:
- pay the infringement and any prescribed costs by the due date
- where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
- apply to the enforcement agency for a payment plan
- apply to the Director, Fines Victoria for a payment arrangement
- elect to have the matter heard in Court (Magistrates’ or Children’s Court, as applicable)
- make an application to the Director, Fines Victoria under the Family Violence Scheme, or
- if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant. [42]
6.3 Special circumstances
An applicant may lodge an internal review application on the ground that special circumstances apply to them.
This provision of the Infringements Act is designed to divert those with special circumstances from the infringements system at the earliest opportunity. This category was introduced in 2006 as:
‘A ground for seeking a review of a notice (is) that the person has ‘special circumstances’ that affected the behaviour at the time of the offence. This is a critical change to filter the vulnerable in the community out of the infringements system. People with special circumstances are disproportionately, and often irrevocably, caught up in the system. ’ [43]
There are several categories of ‘special circumstances’ as defined in the legislation – further detail on those categories and the evidence which may be required to rely on each category is set out below. “Special circumstances” is practically and conceptually distinct from “exceptional circumstances”, discussed in section 6.4: Exceptional circumstances of these Guidelines.
6.3.1 Special circumstances categories
The Infringements Act defines special circumstances in relation to a person as:
- a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness contributes to the person having a significantly reduced capacity —
- (i) to understand that conduct constitutes an offence; or
- (ii) to control conduct that constitutes an offence; or
- (i) to understand that conduct constitutes an offence; or
- (ii) to control conduct which constitutes an offence; or
- (i) are long-term in nature; and
- (ii) make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice under this Act or the Fines Reform Act 2014 (External link) ; and
- (iii) do not solely or predominantly relate to the person's financial circumstances. [44]
These definitions are expanded upon below.
6.3.1.1 Mental disability, disorder, disease or illness
In accordance with section 4 of the Mental Health Act 2014 (External link) and the definition of ‘disability’ contained in the Disability Discrimination Act 1992 (External link) (Cth) a mental disability, disorder, or disease or illness means a diagnosed medical condition that is characterised by a disturbance of thought, mood, perception, or memory. This may include:
- a total or partial loss of a person’s mental functions, or
- a disorder, disease or illness that affects a person’s thought processes, perception of reality, emotions, or judgment, or that results in disturbed behaviour. [45]
Examples of mental illnesses include, but are not limited to:
- bipolar disorder
- depression and anxiety
- psychosis
- schizophrenia
- severe mood disorder
- antisocial personality disorder
- borderline personality disorder
- post-traumatic stress disorder, and
- attention deficit and hyperactivity disorder.
6.3.1.2 Intellectual disability, disorder, or disease
In accordance with the definitions of ‘disability’ and ‘intellectual disability’ in section 3 of the Disability Act 2006 (External link) and the Disability Discrimination Act 1992 (Cth), an intellectual disability, disorder or disease means a disorder or malfunction that results in a person learning differently to a person without the disorder or malfunction. This includes:
- the coexistence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, which became manifest before the age of 18 years, or
- cognitive impairment, including a neurological condition or acquired brain injury, or a combination of both, which:
- is, or is likely to be, permanent, and
- causes a substantially reduced capacity in at least one of the areas of self-care, self-management, or mobility. [46]
Examples of cognitive or intellectual disabilities include, but are not limited to:
- autism spectrum disorder
- dementia
- motor neurone disease
- Parkinson’s disease
- stroke
- Huntington’s disease, and
- acquired brain injury.
6.3.1.3 Serious addiction to drugs, alcohol or volatile substance
A person is considered to have a serious addiction to drugs, alcohol or volatile substances if that person has a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring any time in the same 12-month period:
- tolerance, as defined by either of the following:
- a need for markedly increased amounts of the substance to achieve intoxication or the desired effect, or
- markedly diminished effect with continued use of the same amount of the substance.
- the characteristic withdrawal syndrome for the substance, or
- the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.
Volatile substance – definition
Section 57 of the Drugs, Poisons and Controlled Substances Act 1981 defines volatile substances as:
- plastic solvent
- adhesive cement
- cleaning agent
- glue
- dope
- nail polish remover
- lighter fluid
- gasoline
- any other volatile product derived from petroleum, paint thinner, lacquer thinner, aerosol propellant, or anaesthetic gas, and
- any substance declared volatile by the Governor in Council from time to time.
6.3.1.4 Homelessness
The criteria for determining if a person is homeless is prescribed by the Infringements Regulations.
A person is considered homeless if they —
- are living in crisis accommodation, or
- are living in transitional accommodation, or
- are living in any other accommodation provided under the Supported Accommodation Assistance Act 1994 (External link) (Cth), or
- have inadequate access to safe and secure housing as defined in section 4 of the Supported Accommodation Assistance Act 1994 (Cth).
Common examples include where a person is:
- without conventional accommodation, for instance, sleeping in parks or on the street, squatting, living in cars or in improvised dwellings
- moving from one form of temporary accommodation to another for example, refuges, emergency hostel accommodation, or temporary space in the homes of family and friends
- living in temporary accommodation because of unsafe living conditions (such as family violence) or inability to afford other housing
- living in a caravan park due to their inability to access other accommodation, or
- living in boarding houses on a medium to long-term basis. [48]
6.3.1.5 Family violence
The definition of special circumstances includes a person who is a victim of family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (FVPA).
‘Family violence’ is:
(a) behaviour by a person towards a family member of that person if that behaviour:
- (i) is physically or sexually abusive
- (ii) is emotionally or psychologically abusive
- (iii) is economically abusive
- (iv) is threatening
- (v) is coercive
- (vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person, or
(b) causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
‘Family violence’ also includes the following behaviour:
- assaulting or causing personal injury to a family member or threatening to do so
- sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour
- intentionally damaging a family member’s property, or threatening to do so
- unlawfully depriving a family member of the family member’s liberty, or threatening to do so, or
- causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
Behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.
The Royal Commission into Family Violence report, [49] tabled in Parliament on 30 March 2016, recognised the difficulties faced by victims within the infringements framework and considered that there are a range of car-related debt issues that arise in circumstances of family violence.
In making recommendations 112 and 113, the Royal Commission considered that family violence arose in circumstances where:
- victims committed infringement offences (including parking and traffic offences) while experiencing family violence (for example, escaping violence), or
- perpetrators of family violence incurred infringements while driving a vehicle registered in the victim’s name and the victim was unable to nominate due to safety fears.
6.3.1.6 Long term condition/circumstances making it impracticable to deal with the fine
A person will be considered to have conditions or circumstances which are long term in nature and which make it impracticable for them to pay or otherwise deal with the fine in a very narrow category of cases. [50]
This sub-ground of ‘special circumstances’ is intended to apply only to a very small cohort of fine recipients who have long-term and extremely serious circumstances that:
- may not have been present at the time of offending, and
- are particularly disabling or incapacitating in nature, and
- result in the person being unable to pay or otherwise deal with their infringement fine. [51]
The legislative test excludes any circumstances that solely or predominantly relate to the person's financial circumstances. The infringements system contains other mechanisms for dealing with financial hardship, including payment plans, payment arrangements and the work and development permit scheme.
Examples include but are not limited to:
- a person undergoing long term involuntary mental health care, for example a Community Treatment Order or a period of involuntary inpatient treatment, that makes them unable to attend courses, treatment, or counselling, or to pay
- a person with a severe physical or intellectual disability that makes them unable to attend courses, treatment, or counselling, or to pay
- people who are sleeping rough, isolated and highly transient, and are unlikely to resolve their circumstances in the foreseeable future, and are unable to deal with their fine in any way.
6.3.2 Agency considerations
The definition of ‘special circumstances’ in the Infringements Act requires either:
- a connection or nexus to be made between the special circumstances category and the offending behaviour, or
- the existence of a long-term condition that makes it impracticable for the person to deal with their fine.
6.3.2.1 Establishing the nexus for special circumstances linked to offending behaviour
The decision maker must be satisfied that the special circumstances contributed to a significantly reduced capacity to understand that the applicant’s conduct constituted an offence, or to control that conduct.
Applicants need to show that the special circumstances have contributed to a significantly reduced capacity to understand that the conduct constitutes an offence or control that conduct.
Under the reformulated test, the decision maker must be satisfied that:
- the person suffers from one of the conditions or circumstances that falls within the definition of special circumstances: mental or intellectual disability, disorder, disease or illness, a serious drug/alcohol/volatile substance addiction, homelessness, or family violence, and
- the condition or circumstances contributed to the applicant having a significantly reduced capacity to either understand the conduct constituting the offence or control that conduct. [52]
This means that the condition or circumstance needs to be a factor or cause, but not the only factor or cause, that reduced the applicant’s ability to control or understand the behaviour.
Additionally, the applicant may have some capacity or ability to control or understand their behaviour, but the applicant only needs to show that their condition/circumstances significantly or considerably reduced that capacity.
Examples of where the applicant’s special circumstances contributed to them having a significantly reduced capacity to understand or control their conduct includes:
- overstaying in a parking spot while sleeping in a car because the applicant was experiencing homelessness
- the applicant not realising an offence was being committed because their mental health condition was triggered in the situation
- failing to vote or complete a census because the applicant was experiencing homelessness and did not receive correspondence about an election or the census.
6.3.2.2 Establishing the long-term condition/circumstances ground
The decision maker must be satisfied that the applicant’s long-term condition makes it impracticable to deal with their fine in any way, including through paying in full, servicing a payment arrangement, completing activities under a work and development permit, or applying for the family violence scheme.
The applicant must show that:
- they have a long-term condition or circumstance
- the condition or circumstance makes it impracticable for them to deal with their fine, and
- the condition or circumstance do not solely or predominantly relate to financial hardship. [53]
For the condition or circumstance to be long term, it should be persistent, continuing indefinitely or for the foreseeable future, or continuing for an extended period of time (for example, a number of years). For a circumstance to be long-term in nature it is not required to be permanent. The condition may not have been present at the time of the offending, and it does not have to be linked to the offending.
The condition or circumstance must be linked to the impracticability to deal with the fine. ‘Impracticable’ is not defined in the Infringements Act, but the ordinary definition is that is that it is not capable of being put into practice, unachievable, unfeasible, or not possible within the means available. The condition or circumstance needs to be particularly disabling or incapacitating in nature. [54]
‘Disabling’ is defined as ‘making [a person] unable’, or ‘weakening or destroying the capability of [a person]’ to do something. [55]
The condition or circumstance needs to be disabling in that it impacts a person’s ability to deal with their fines but is not limited to a ‘disability’ (for example, the circumstance may be family violence, substance addiction, mental illness or homelessness, or physical or intellectual disabilities). Examples of where it is impracticable to deal with the fine includes where the person’s circumstances are such that they:
- cannot undertake WDP activities because they are unable to participate in relevant activities
- do not have capacity to instruct a lawyer, financial counsellor or advocate to act on their behalf
- cannot keep track of or manage their fines because of the long-term, severe condition or circumstance.
While financial circumstances can be considered, the long-term condition/circumstance must be the main cause of the incapacity to use any other option to deal with the fine, including to organise payment.
6.3.2.3 Using discretion around the currency of evidence
The currency of evidence should be considered when contemplating evidence of special circumstances. Generally, evidence provided by professionals or practitioners should be signed and dated within the last 12 months. However, enforcement agencies should take a case-by-case approach to this requirement depending on the condition or circumstance being relied on. For example, where the applicant relies on the ground of special circumstances and cites a lifelong intellectual disability, application of the 12-month rule may not be appropriate.
The following requirements for information may be given to professionals and practitioners to assist them in supporting an application for special circumstances:
- details of the individual providing the information including their name, position, and qualifications
- the relationship the individual has with the applicant (for example, treating physician, case worker, family violence case worker)
- a submission about the applicant’s condition (this may include particulars about the nature of the circumstances/condition), and
- an assessment of whether the applicant’s condition or circumstances impacted the offending conduct or impacts their ability to deal with the fine.
6.3.2.4 Evidentiary requirements
Applications for internal review on the ground of special circumstances should be accompanied by supporting evidence. Acceptable evidence is that which satisfies the decision maker that special circumstances exist. That is, the evidence should confirm:
- the existence of the relevant condition or circumstance, and
- the required connection (or nexus) between that condition and the offending conduct, or the condition and the impracticability to deal with the fine.
Evidence that is acceptable includes (but is not limited to) reports, letters, statements, submissions, statutory declarations, police reports, and family violence safety notices.
Taking a flexible approach to the evidence required ensures that vulnerable people are being diverted from the infringement system, in alignment with the aims of the special circumstances review ground.
Decision makers should also consider the reasonableness of asking for particular information. For instance, proving homelessness requires, in effect, that the person prove a negative i.e. that they do not have a home. This can be difficult to do, and this difficulty of proof is a relevant factor in deciding the reasonableness of requiring written evidence and the nature of that evidence.
On a case-by-case basis, decision makers may consider statements from the applicant, their lawyer, or other representatives that supplements evidence provided by a professional. This supplementary evidence may help clarify the link to the offending or the impracticability of dealing with the fines when the evidence from the professional or practitioner does not include those specific details.
A range of individuals, including professionals and practitioners, can provide evidence if the application is based on:
- a mental or intellectual disability disorder, disease or illness: evidence can be obtained from a medical practitioner, psychiatrist, psychiatric nurse or psychologist and can include a letter, statement or report that includes:
- the practitioner/counsellor’s qualification and relationship with the applicant and the period of engagement
- the nature, severity, and duration of the applicant’s condition and/or symptoms
- an assessment on whether the applicant was suffering from the relevant condition at the time the offence was committed, and
- whether, in the opinion of the practitioner, there is a connection between the applicant’s relevant condition and the applicant’s offending behaviour.
- practitioner/counsellor’s qualification and relationship with the applicant including the period of engagement
- the nature, severity and duration of the applicant’s relevant condition and/or symptoms
- whether the applicant was suffering from the relevant condition at the time the offence was committed, and
- whether, in the opinion of the practitioner, there is a connection between the applicant’s relevant condition and the applicant’s offending behaviour.
- the practitioner/case worker’s qualification and relationship and the period of engagement
- a summary of the applicant’s circumstances
- whether the applicant was homeless at the time the offence was committed, and
- whether, in the opinion of the practitioner, there is a connection between the applicant’s homelessness and the applicant’s offending behaviour.
- the practitioner/case worker’s qualification and relationship and the period of engagement
- a summary of the applicant’s circumstances
- whether the applicant was experiencing family violence at the time the offence was committed, and
- whether, in the opinion of the practitioner, there is a connection between the applicant’s circumstances involving family violence and the applicant’s offending behaviour.
- the professional’s qualification and relationship and the period of engagement
- a summary of the applicant’s circumstances
- whether the condition or circumstance is long-term, and
- whether, in the opinion of the practitioner, the condition or circumstances makes it impracticable for the applicant to deal with their infringement.
In addition to a report from a professional, evidence that the applicant receives assistance through the National Disability Insurance Scheme or a Disability Support Pension may also support the application.
6.3.2.5 Possible outcomes
An enforcement agency may make the following decision upon reviewing an internal review based on special circumstances:
- confirm the decision to serve the infringement notice [56]
- withdraw the infringement notice and serve an official warning, or
- withdraw the infringement notice.
Enforcement agencies should also note the power under section 17 of the Infringements Act to refer a matter to the Magistrates’ Court. This power must be exercised before the fine is registered with the Director, Fines Victoria (or where it is a non-registerable matter before the expiry of the date for commencing proceedings).
This power does not apply to infringement notices relating to offences to which the provisions listed in section 17(2) apply. The legislation that establishes those offences has separate processes for referring those matters to court.
For infringement notices relating to alleged offences by children, agencies wishing to exercise this power must do so before an enforcement order is issued under Schedule 3 of the Children, Youth and Families Act 2005 (External link) Where the infringement notice matter cannot be registered under that Schedule, the time limit on exercising the power is before the expiry of the period for commencing proceedings in relation to that matter.
6.3.2.6 If the application is refused
For applications made on the ground of special circumstances, the following options are available to the applicant where a decision maker refuses the application and confirms the infringement: [57]
- pay the infringement
- apply for a payment plan
- apply to the Director, Fines Victoria for a payment arrangement
- elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
- make an application to the Director, Fines Victoria under the Family Violence Scheme, or
- if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant. [58]
If an enforcement agency decides to refuse an application for internal review that has been made on the basis of special circumstances relating to family violence, the notification letter to the applicant should set out all the options available to the applicant, including their ability to apply to the Director, Fines Victoria under the Family Violence Scheme (FVS). See section 6.8: Family Violence Scheme (FVS) for further information about the FVS.
6.4 Exceptional circumstances
The exceptional circumstances ground provides decision makers with the discretion to determine whether the infringement is appropriate, taking into account the circumstances in which the offending conduct occurred.
6.4.1 Agency considerations
Agencies should consider whether the conduct for which the infringement notice was served should be excused because of exceptional circumstances relating to the infringement offence.
Unlike special circumstances, there is no legislative definition of what constitutes exceptional circumstances. The ground is intended to apply to one-off circumstances, all of which cannot be categorised. This category is designed to include circumstances where the applicant has enough awareness and self-control to be liable for their conduct but has a good excuse for that conduct.
Some examples include circumstances where the applicant committed the offence due to unforeseen or unpreventable circumstances including medical emergencies, unavoidable or unforeseeable delay or vehicle breakdown.
The decision-making criterion is whether imposing the infringement is fair in the circumstances.
6.4.1.1 Considering exceptional circumstances on their merits
The Infringements Act does not define ‘exceptional circumstances.’ This means that while agencies may develop policies about what is considered an exceptional circumstance, these policies should not be so rigidly applied that they hinder review officers from considering the merits and circumstances of each application.
For example, an agency policy may state that being unaware of the law is not an exceptional circumstance. An applicant may then state that they were unaware of the law because English is their second language and they have recently migrated to Australia.
The decision maker should consider those specific circumstances and depending on other relevant information, the decision maker may choose to depart from the general policy and decide to withdraw the infringement and issue an official warning. This decision would be within the scope of their discretionary power.
Further, agencies must ensure that decision makers consider the specific circumstances raised in all valid applications, regardless of the offence type. The offence type may be relevant when determining if the infringement should be excused. For example, offences that do not create a significant risk to the public may be withdrawn more readily than offences that impact public safety. However, the type of offence must not prevent proper consideration of the circumstances raised in the application.
6.4.2 Evidentiary requirements
Applications for internal review made on the grounds of exceptional circumstances should (where appropriate) be accompanied by supporting evidence.
Decision makers can take any matter a reasonable person would consider as relevant information into account.
Examples of supporting evidence could include:
- medical evidence from medical practitioners
- invoices or receipts
- statutory declarations or affidavits
- witness statements
- photographs
- travel documentation
- police statements or records.
6.4.3 Possible outcomes
An enforcement agency may make the following decision after reviewing an application for internal review based on the grounds of exceptional circumstances:
- confirm the decision to serve an infringement notice
- withdraw the infringement notice and serve an official warning
- withdraw the infringement notice
- withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as appropriate)
- in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
- waive all or any prescribed costs, or
- approve a payment plan.
In some cases, it may be appropriate to do a combination of the actions above.
6.4.4 If the application is refused
For applications made on the grounds of exceptional circumstances, the following options are available to the applicant where a decision maker refuses the application and confirms the infringement:
- pay the infringement and any prescribed costs by the due date
- where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
- apply to the enforcement agency for a payment plan
- apply to the Director, Fines Victoria for a payment arrangement
- elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate)
- make an application to the Director, Fines Victoria under the Family Violence Scheme, or
- if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on their behalf. [59]
6.5 Financial hardship
While financial hardship is not a ground for review, enforcement agencies may consider such applications under the exceptional circumstances ground. It is open to enforcement agencies to implement an exceptional circumstances financial hardship policy. Alternatively, where a person is experiencing financial hardship and is unable to pay their outstanding fines, enforcement agencies should assist the applicant, where appropriate, to negotiate a payment plan.
6.5.1 Bankruptcy and insolvency
A person is responsible for their infringement fine even if they have been declared, or are seeking to be declared, bankrupt. A person who is declared bankrupt retains their rights to deal with the infringement notice including submitting a nomination statement or applying for internal review.
When a company is experiencing financial difficulties, it may be placed into external administration or liquidation. Companies that are in liquidation or under external administration may apply for internal review of their infringement fines.
An enforcement agency may consider a person’s bankruptcy status, or a company’s financial status, as evidence of financial hardship. It is also open to an enforcement agency to include a person’s bankruptcy status or a company’s financial status as a relevant consideration in any internal financial hardship policy that the enforcement agency may choose to implement.
Enforcement agencies should also consider the following:
- For individuals: if an individual is experiencing financial hardship and is unable to pay their outstanding fines, enforcement agencies should assist the applicant, where appropriate, to negotiate a payment plan. It will be up to the review officer to decide whether a payment plan is appropriate in a bankrupt person’s particular circumstances.
- For companies in liquidation or companies under external administration: enforcement agencies should require that these applications for internal review may only be made by the liquidator or administrator.
Once an insolvent company is deregistered, it ceases to exist, and infringement fines cannot be recovered. Internal review officers should complete an online ASIC search on a company to determine the company’s registration status before processing any application in the name of a company. For more information, visit the ASIC website (External link)
6.6 Person unaware
This ground of internal review enables an applicant to lodge an internal review application on the ground that they were unaware of the infringement notice. Service of the notice must not have been by personal service.
An application made on the ground of ‘person unaware’ must:
- be made within 14 days of the applicant becoming aware of the infringement notice (a person may evidence the date they became aware of the infringement notice by executing a statutory declaration)
- be made in writing
- state the grounds on which the decision should be reviewed
- provide the applicant’s current address for service, and
- may only be made once in relation to any one infringement offence.
6.6.1 Agency considerations
An enforcement agency must not consider an application made on the ground of ‘person unaware’ if the applicant has not updated their authorised address within 14 days of changing address. [60]
An ‘authorised address’ is:
- an address that is recorded in relation to a person in a register kept by a public statutory authority (including a Director under the Corporations Act 2001 (External link) ), if by law that person is required to notify that public statutory body of any change in that address. An example of a public statutory authority is VicRoads.
- in relation to a transport infringement, within the meaning of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 (External link) or a ticket infringement within the meaning of that Part, an address provided by a person to an authorised officer or police officer under section 218B of that Act after that officer has requested the person to state his or her name and address because the authorised officer or police officer believes on reasonable grounds that the person has committed a transport infringement or a ticket infringement, as the case requires.
The enforcement agency must suspend all other procedures (including enforcement action) until the agency has completed reviewing the person unaware application and the applicant has been sent advice of the outcome. [61]
6.6.2 Evidentiary requirements
Applications for internal review made on the grounds of person unaware should (where appropriate) be accompanied by supporting evidence. For example, copies of date-stamped passports, boarding passes, removalist invoices and mail theft reports made to Victoria Police.
6.6.3 Possible outcomes – if the application is granted
Where an enforcement agency grants an internal review application on the ground of person unaware, the applicant may: [62]
- pay the infringement
- apply for a payment plan
- apply to the Director, Fines Victoria for a payment arrangement
- apply for a review of the decision to serve an infringement offence under section 22(1)(a), (b) or (c) of the Infringements Act
- nominate another person for the infringement offence (in the case of traffic or parking offences)
- elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
- make an application to the Director, Fines Victoria under the Family Violence Scheme, or
- if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on their behalf. [63]
6.6.4 Possible outcomes – if the application is refused
If an application on the ground of person unaware is refused, the applicant must pay the infringement amount and prescribed costs (within 14 days of receiving the refusal notice). [64] The applicant will have the same alternative payment options available to them as are available for other grounds of review (that is, payment plans or arrangements, court referral or work and development permits (if eligible).
6.7 Work and Development Permits (WDPs)
The Work and Development Permit (WDP) scheme commenced on 1 July 2017 to provide vulnerable and disadvantaged people with a non-financial option to address their fine debt. The WDP scheme is administered by the Director, Fines Victoria. A WDP allows an eligible person to work off their fine debt by participating in certain activities and treatment. Enforcement agencies are encouraged to promote this scheme to vulnerable community members.
A person must undertake a WDP under the supervision of a sponsor. A sponsor is an organisation or a health practitioner accredited by the Director, Fines Victoria to support the WDP scheme. Only a sponsor may apply to the Director, Fines Victoria for a WDP on behalf of an eligible person.
An organisation or a health practitioner may apply to become a WDP sponsor to assist their clients to deal with their fine debt and to encourage engagement with services. If an eligible person is already engaged with an organisation or a health practitioner that is not yet a WDP sponsor, the organisation or health practitioner can contact the WDP Team to get information about becoming a sponsor (see details below).
Contact information
For more information, visit the Work and development permit scheme page, or contact the WDP team:
Phone: 1300 323 483
Hours: 9.00am to 4.00pm
Monday to Friday (except public holidays)6.8 Family Violence Scheme (FVS)
The Family Violence Scheme (FVS) is a specialised scheme to support people affected by family violence within the fines system. The scheme is administered by the Director, Fines Victoria. The scheme allows people to apply to Fines Victoria to have their infringement fines withdrawn if family violence substantially contributed to the offence or if it is not safe for them to name the responsible person.
Agencies should inform applicants about the scheme if family violence is mentioned in their application.
To access the Family Violence Scheme, a person must:
- have been issued an infringement notice for an offence, and
- show they are a victim survivor of family violence, and
- how that the family violence substantially contributed to the person not being able to:
- control the conduct that constituted the offence, or
- nominate the driver that committed the offence in a car registered to the victim, or
- reject a nomination.
A person can apply to the Family Violence Scheme at any time from first receiving the fine until:
- the fine has been paid, or
- a seven-day notice served on the person has expired or been waived, or
- particular enforcement action has been taken against them.
Contact information
To help decide if the FVS is a suitable option, a person may wish to seek legal advice from a lawyer or by contacting a local community legal centre via the Federation of Community Legal Centres (External link) or Victoria Legal Aid (External link)
For more information, visit the Work and development permit scheme page, or contact the FVS team:
Phone: 1300 019 983
Hours: 9.00am to 4.00pm
Monday to Friday (except public holidays)