Making Sense of Fines Reform Practice Resources - Homeless Law in ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Making Sense of Fines
Reform
Date: Tuesday 14 November 2017
Time: 9.30am – 4.30pm
Venue: Supper Room – Melbourne Town Hall, Main Entrance, Swanston St, Melbourne
Practice Resources
Sponsored by
Agenda
Time Session Presented by
Opening and Garry Rothman
9:30am
Welcome to Country Wurundjeri Tribe
Deborah Glass OBE
9:50am Opening address Victorian Ombudsman
Overview of Brendan Lacota
10:10am infringements Principal Lawyer
system & key Moonee Valley Legal Service
reforms in context
11:10am Morning tea
Eddie Haddad
Manager
Panel Discussion Infringements Court
Fines Victoria,
payments systems, Brendan Facey
new sheriff’s powers, Executive Director
enforcement, and Infringement Management and Enforcement
family violence Services
11:40am reforms
Erin Anderson
Facilitator: Assistant Director, Policy and Strategy
Garry Rothman Infringement Management and Enforcement
Financial Counsellor Services
Odyssey House
Lucy Adams
Manager and Principal Lawyer
Justice Connect Homeless Law
12:40pm Lunch with entertainment provided by Uncle Kutcha Edwards
Dr Jean Ker-Walsh
Transurban and
1:50pm Customer and Communities Advocate
financial hardship
Transurban
Maria Turnbull
Financial Counsellor
Odyssey House
Panel Discussion Patricia Roake
Manager, Work and Development Permit Scheme
2pm Work and Infringement Management and Enforcement
Development Permits Services
Marie Baird
Senior Content Innovation Coordinator
Victoria Legal Aid
2
Infringements Working Group - Practice Resources 2017
Paula Novotna
Solicitor, Work and Development Order Service
Legal Aid NSW
Gordana
WDP Participant
3pm Afternoon Tea
Shifrah Blustein
Project Lawyer
Short Talks WEstjustice
Fines and Family Tony Vong
Violence Program Manager, Permits and Review
City of Melbourne
3:15pm Internal Reviews
Imogen Taylor
Penalty Enforcement Fines Reform Implementation Manager
Special Magistrates’ Court of Victoria
Circumstances Barry Johnston
Judicial Registrar
Magistrates’ Court of Victoria
Garry Rothman
4:15 Wrap up Financial Counsellor
Odyssey House
3
Infringements Working Group - Practice Resources 2017
Contents
Presenters and Panellists .......................................................................................... 6
Acknowledgements .................................................................................................... 9
Preface ........................................................................................................................ 10
1. Your client and taking instructions .............................................................. 11
2. Finding the Fines ............................................................................................. 15
3. Special Circumstances.................................................................................... 17
4. What are your client’s options? ................................................................... 19
a. Internal Review ..................................................................................................................... 20
b. Nominate Another Driver ..................................................................................................... 21
c. Refer to Court ....................................................................................................................... 22
d. Enforcement Review (Formerly Revocation) ........................................................................ 23
e. Work and Development Permits .......................................................................................... 25
f. Family Violence Scheme ....................................................................................................... 27
g. Payment Arrangements ........................................................................................................ 29
h. Penalty Enforcement ............................................................................................................ 30
i. Community Work Permit ...................................................................................................... 33
5. Calling-in and Time Served ........................................................................... 34
6. Enforcement Powers...................................................................................... 36
a. Administrative Sanctions ...................................................................................................... 36
b. Sheriff’s powers .................................................................................................................... 36
7. Contacts and Resources................................................................................. 37
8. Precedents ....................................................................................................... 38
A. Request for summary of fines ............................................................................................... 38
B. Internal Review – Transport.................................................................................................. 39
C. Internal Review – Local Council ............................................................................................ 40
D. Request for supporting information ..................................................................................... 41
E. Application for Revocation (Pre-Fines Reform) .................................................................... 43
F. Request for Duty Lawyer Assistance ..................................................................................... 44
9. Appendices ...................................................................................................... 46
4
Infringements Working Group - Practice Resources 2017
A. Overview of Pre-Fines Reform options and sanctions .......................................................... 46
B. Interim Sheriff Time Served Scheme .................................................................................... 47
C. Fines Victoria Time Served Scheme ...................................................................................... 48
D. Non-Citizens Fact Sheet ........................................................................................................ 49
E. Magistrates’ Court Information on Applications to vary instalments and rehearing ........... 56
F. Application to vary infringements instalment order ............................................................ 59
G. Application for rehearing – infringements............................................................................ 60
5
Infringements Working Group - Practice Resources 2017
Presenters and Panellists
Deborah Glass OBE is the Victorian Ombudsman. She was appointed in March 2014 for a
term of 10 years. Deborah was raised in Melbourne where she studied law at Monash
University. Deborah practiced law briefly in the city, before joining a US investment bank in
Switzerland in 1985. She was appointed to the Hong Kong Securities and Futures
Commission at its inception in 1989, where she became Senior Director, instrumental in
raising standards in the investment management industry. Deborah moved to London in
1998 where she became the Chief Executive of the Investment Management Regulatory
Organisation. In 2001, she joined the UK Police Complaints Authority, and in 2004 became a
Commissioner with the new Independent Police Complaints Commission of England and
Wales (IPCC). She was the Commissioner responsible for London, and for many high profile
criminal and misconduct investigations into police conduct. Deborah was appointed IPCC
Deputy Chair in 2008, carrying operational responsibility for the IPCC's regional
Commissioners, and was awarded an OBE in the 2012 New Year Honours List.
Deborah is committed to ensuring fair and reasonable decision making in the Victorian public
sector, and to improving public administration. She holds a firm belief in public sector
integrity and the protection of human rights.
Lucy Adams is the Manager and Principal Lawyer of Justice Connect Homeless Law,
Victoria's specialist legal service for people who are homeless or at risk of homelessness.
Homeless Law works to prevent homelessness and reduce the negative impact of the law on
people experiencing homelessness. In 2013, Lucy undertook a Churchill Fellowship,
travelling to nine international cities and speaking with 60 experts about homelessness and
the regulation of public space. There are few things she loves more than working together to
reduce the heavy burden of infringements on clients, services and the justice system. Lucy
has been a long serving member of the Infringements Working Group, having been
convener for several years.
Erin Anderson is the acting Assistant Director of Policy & Strategy in Infringement
Management and Enforcement Services (IMES). Erin's team advises on legislation and
policy development for the end-to-end infringement system in Victoria. Erin has been a long
serving member of the Infringements Standing Advisory Committee alongside infringements
stakeholders including financial counsellors and community solicitors.
Marie Baird is Senior Content Innovation Coordinator at Victoria Legal Aid and project
manager for the VLA and CLC collaborative WDP pilot project. She has a background in
CLC and financial counselling sector development and management of community
development and education projects. In 2015 Marie was awarded a scholarship by the
Centre for Social Impact to complete postgraduate study in social design, innovation and
cross-sectoral collaboration. Marie was at the forefront of putting together the IWG
infringements event today.
Shifrah Blustein is a project lawyer at WEstjustice and co-convenor of the Infringements
Working Group. She has worked in CLCs as well as advocacy and community development
roles for eight years. In collaboration with the Infringements Working Group, she
coordinated the legal, financial counselling and family violence sectors’ response to the
Department’s proposed family violence stand-alone scheme. This advocacy contributed to
significant favourable amendments to the original scheme.
6
Infringements Working Group - Practice Resources 2017
Uncle Kutcha Edwards was born on the banks of the Murrumbidgee River at Balranald,
New South Wales, of the Mutti Mutti people and is among the many of the Stolen
Generations. He has worked through his music, to tell people about himself and share his
unique journey, one that is also the journey of all Australians. What Kutcha shares with
people is a connection, a belonging. His music and stories are the songs of his journey, his
people's journey, and these are his gift to connect with and inspire others. Uncle Kutcha has
performed with bands Blackfire and Black Arm Band and is now an acclaimed solo artist who
collaborates with many recognized musicians. Uncle Kutcha had many years’ experience
working with men recovering from addiction at the Ngwala Galliamble Men’s rehab
Brendan Facey is the Executive Director of Infringement Management and Enforcement
Services at the Victorian Government Department of Justice, and more broadly known in the
public arena as the Sheriff of Victoria. Brendan’s positions in the Department oversee the
management of the end-to-end infringement system in Victoria, including enforcement of
unpaid infringement penalties through the Infringements Court, enforcement of outstanding
Court warrants by Sheriff’s Officers, asset confiscation operations and policy development.
He is also responsible for delivering and monitoring the Victorian Government’s Road Safety
Camera Program.
Gordana is a financial counselling client and is currently a Work and Development Permit
participant.
Eddie Haddad has been the Manager of the Infringements Court since 2011. He holds the
powers of an Infringements Registrar. Eddie is primarily responsible for the strategic
development and operational management of the Infringements Court. He has responsibility
and oversight for approximately 50 staff who deal with, amongst other things, the lodgement
of fines by enforcement agencies and applications for revocation and payment orders from
members of the public.
Judicial Registrar Barry Johnstone has been a registrar for 27 years, both in country and
city locations. He obtained a law degree at Deakin University and was admitted to practice in
2005. Mr Johnstone worked for a very short time on secondment to the Victorian
Government Solicitors Office. Mr Johnstone was senior registrar at Ringwood Court before
being appointed a Judicial Registrar. Mr Johnstone (along with Angela Soldani) was one of
the first Judicial Registrars appointed in any jurisdiction in 2006. He has been on the court's
Civil Practice Committee for 22 years. In his judicial registrar role he can deal with civil
matters, Personal Safety Intervention Order applications, VOCAT applications and criminal
matters. The criminal jurisdiction he deals with is mainly made up of traffic matters and
council prosecutions.
Dr Jean Ker-Walsh is the Transurban Customer and Communities Advocate. She has
extensive career experience as a broadcast journalist, political media adviser and strategic
communications consultant. She is a past Director and Chair of the Board of Hanover
Welfare Services, now Launch Housing, and is an active member of Grandmothers Against
Detention of Refugee Children. Jean is also a Moderator in the not-for-profit Cranlana
Programme for development of wisdom in leadership.
Brendan Lacota is the Principal Lawyer at Moonee Valley Legal Service, a generalist
community legal centre in Melbourne's inner north-west. Brendan has significant experience
in fines practice and applying human centred design to find solutions for legal problems. His
work in fines and human centred design recently resulted in the launch of FineFixer, a
7
Infringements Working Group - Practice Resources 2017
simple web-tool for people to understand their fines and take action. Brendan has
contributed to and coordinated the development of the resources for today’s event.
Paula Novotna is a specialist Fines Solicitor from Legal Aid NSW’s Work and Development
Order Service. Paula leads the strategic expansion of the WDO scheme in the South
West/Western Sydney region, which includes Mt Druitt and Liverpool, the two highest fines
debt postcodes in NSW.
Patricia Roake is the Manager, Work and Development Permit scheme of the Infringement
Management and Enforcement Services at the Department of Justice and Regulation.
Patricia’s position in the Department is to lead the ICT system design, planning, and the
strategic management of the end-to-end program operations of the Work and Development
Permit Program in Victoria.
Patricia has worked in both the public and private sectors, she has led teams and sections in
strategy, digital enabled transformation, policy implementation, driven service delivery
transformation, customer service delivery operations, case management and stakeholder
communications and engagement activities. For the past 10 years Patricia has worked in
the public sector helping to improve the effectiveness of federal and state government
programs.
Garry Rothman is the senior financial counsellor at Odyssey House Victoria specialising in
addictions. He has over 15 years of experience in this role. Garry was a founding member of
the Infringements Working Group in 2004 and the Attorney General’s Infringements Standing
Advisory Committee. Garry has been the recipient of the Virginia Noonan Award.
Imogen Taylor is currently the Magistrates' Court Fines Reform Implementation Manager.
She commenced her career in the Magistrates' Court in 2002. She has held a number of
positions; most recently as the Manager of the Magistrates' Court Infringement Support Unit
and before that, she was the Committal Coordinator at the Melbourne Magistrates' Court.
Maria Turnbull is a specialist financial counsellor of 14 years working with people affected
by addictions, specifically gambling as well as alcohol and other drugs. Maria has chaired
the FCRC for 3 years and chaired the Gambling Issues Working Group for 6 years. She is a
recipient of the Jan Pentland Prize and the Community Services Award from Parkinson's
Victoria. Maria has played a significant role in the development and implementation of the
Work and Development Permit scheme. This has involved assisting the Department with the
roll out of the WDP scheme and assisting them with implementation and feedback, input and
evaluation of the new processes. Maria was recently admitted as a solicitor.
Tony Vong is the Program Manager, Permits and Review at the City of Melbourne. Apart
from being responsible for the issuing of 25 thousand (parking, fundraising and advertising)
permits p.a. and contributing to Council’s strategic policy development for these areas, Tony
oversees both the internal review and prosecutions functions. In 2014, in partnership with
the United Nations Global Compact Cities Programme, Tony led a working group involving
representatives from state government agencies, local councils and community agencies
and produced a ‘Model Operating Policy for Enforcement Agencies’ and a ‘What you need to
know’ brochure on Special Circumstances. Tony is a member of the Infringements Standing
Advisory Committee
8
Infringements Working Group - Practice Resources 2017
Acknowledgements
The Infringements Working Group would like to thank:
Victorian Ombudsman, Deborah Glass OBE for the key note address
Our panellists and presenters
Garry Rothman for facilitating
Melbourne City Council for providing the venue
The Department of Justice and Regulation for assistance with catering
The Neighbourhood Justice Centre for filming and audio visual support
Victoria Legal Aid for assistance with the Welcome to Country
Transurban for assistance with the entertainment
Marie Baird, James Tresise, Tanja Golding, Shifrah Blustein and Brendan Lacota for
preparing this resource
We would also like to thank Ashurst for printing these resources.
9
Infringements Working Group - Practice Resources 2017
Preface
These practice resources are intended to be a practical guide to infringements matters for
financial counsellors and community lawyers.
The Victorian infringements system is currently in a state of significant change. While the
Infringements Act 2006 (Vic) remains the core governing legislation, over the past three
years the Fines Reform Act 2014 (Vic) and the Fines Reform and Infringements Acts
Amendment Act 2016 (Vic) have both been passed.
At present only the Infringements Act 2006 and subordinate regulations are in force.
However, a number of social justice initiatives including: work and development permits,
improved time served scheme, family violence as a special circumstance, and changes to
court powers were moved into the Infringements Act 2006 and commenced on 1 July 2017.
The remaining fines reform changes are intended to commence on 31 December 2017 with
the family violence scheme to commence on 31 May 2018. From 31 December 2017, the
infringements system will be governed by both the Infringements Act 2006 (Vic) and the
Fines Reform Act 2014 (Vic).
At the time of printing, a further bill the Fines Reform Amendment Bill 2017 (Vic) is before
parliament and a number of subordinate regulations are also currently under review. The
Fines Reform Amendment Bill 2017 (Vic) introduces a potential further extension to the
default commencement of the Fines Reform Act 2014 (Vic) to 31 May 2018. At this stage it
appears likely that the government will extend the commencement date of 31 December
2017, but this is yet to be confirmed.
Where there are material differences in practice between the current law and known
changes, these will be identified throughout the materials.
While every effort has been made to ensure their accuracy, these resources have been
produced prior to commencement of many fines reform initiatives and are produced on the
basis of currently published bills and guidelines.
These are subject to change after publication.
Disclaimer: These resources are intended to be a guide only and are not intended to be a
substitute for legal advice. All efforts have been made to ensure the information in these
resources is accurate and current as at 3 November 2017. You should not act on the
basis of the information in these resources without first getting legal advice.
10
Infringements Working Group - Practice Resources 20171. Your client and taking instructions
When meeting with a client, you need to seek the following information and documentation.
The client is unlikely to have access to or a recollection of all of this information – this list is
intended to be a guide only.1
Authority to act
Ask client to sign an ‘Authority to Act’ form (as it will be required to obtain information
regarding the client's fines, for contacting support agencies and for submitting
reviews on behalf of the client)
Personal information about the client
Full name (including middle name)
Any previous names (including spelling variations) or aliases
Current address and any contact phone numbers
Previous addresses (particularly those that might have been given by client when the
fines were incurred, check when client updated their current address with VicRoads)
Date of birth2
Driver's licence number3
Vehicle registration number
Photocopy of identification documents (i.e. HealthCare card, driver's licence,
Medicare card)
Alternative contact details (relatives, friends, etc.)
Details of any fines
Obtain copies of the fines and/or details as to where, when and what types of fines
they may have incurred (i.e. infringement notices or court-imposed fines).4
Obtain copies of any correspondence and court documents relating to the
infringements.
If the fine is a court-imposed fine, determine if the client attended the hearing and
whether they were represented.
Confirm with the client whether they admit to the commission of the offences (and if
so, any factors that are relevant to the client committing the offences) or if they have
any other valid excuse or defence.
Is the client currently on any payment arrangement to deal with their fines or have
they made any previous applications for review?
1 This checklist is gratefully adapted from the checklist developed by Justice Connect Homeless Law
2 Note: very important for obtaining client information from the new Fines Victoria website
https://online.fines.vic.gov.au/
3 Note: very important for obtaining client information from the new Fines Victoria website
https://online.fines.vic.gov.au/
4 Note: obtaining the ‘date of offence’ is very important for obtaining client information from the new
Fines Victoria website https://online.fines.vic.gov.au/
11
Infringements Working Group - Practice Resources 2017Elements of special circumstances and eligibility for other applications
Note: For more information on the definition of ‘special circumstances’ and the criteria to be
addressed in your client’s support letter please refer to the ‘Special Circumstances’ section
below at part 3.
Does the client have or has the client previously had the following?
a mental or intellectual disability, disorder, disease or illness;
a serious addiction to drugs, alcohol or other volatile substance;
homelessness (which includes the client living in crisis accommodation, transitional
accommodation or having inadequate access to safe and secure housing); or
family violence (where the client is a victim of family violence) (Note: As well as being
grounds for special circumstances there is a new stand-alone Family Violence
Scheme that may be more beneficial to your client - details below).
Did the client suffer from these conditions or circumstances at the time the offences
were committed?
For mental or intellectual disability, disorder, disease or illness or serious addiction to
drugs, alcohol or other volatile substance, did those circumstances result in the client
being unable to understand that his or her conduct constituted an offence, or being
unable to control that conduct? If so, how?
For homelessness or family violence, did those circumstances result in the client
being unable to control that conduct? If so, how?
Obtain the names and contact details of all doctors, psychiatrists, psychologists,
hospitals, case workers, housing workers, housing support services or counsellors
who have treated or who are treating the client and obtain the client's consent to
contact them with a request for a letter or report (see Authority to Act above).
Has the client suffered from mental or intellectual disability, disorder, disease or illness?
Obtain details of the nature of the condition, when it was diagnosed, the status of the
condition at the time of the offences, the current status of the condition and any steps
taken to address the condition (such as counselling, medication).
Has the client been admitted to a public hospital or emergency mental health
service? Consider making a Freedom of Information application to access discharge
reports.
Has the client been taking medication to treat any mental health condition (e.g.
antidepressants)?
Has the client suffered from substance addiction?
Obtain details of the addiction, when it started, the status of the addiction at the time
of the offences, the current status of the addiction and any steps taken to address the
addiction (such as rehabilitative treatment).
Has the client participated in any rehabilitation programs or is the client planning to
undertake a program to address these problems?
Has the client experienced homelessness?
What is the client's housing history?
12
Infringements Working Group - Practice Resources 2017 Has the client spent time in crisis centres, transitional accommodation, refuges,
boarding homes, caravan parks, friends’ homes or on the streets?
Has the client spent time in other housing that could be considered unsafe and
inadequate, that is did that housing damage their health, threaten their safety,
marginalise the person, etc? See section 4 of the Supported Accommodation
Assistance Act 1994.
Has the client experienced family violence?
Note: these questions are important for both special circumstances and the new family
violence scheme
Obtain a brief summary of the client’s circumstances of family violence. Was the
client experiencing family violence at the time the offences were committed?
Have any family violence intervention orders been applied for or made by the
Magistrates’ Court? If so, when and who applied (i.e. was the application made by
Victoria Police on the client’s behalf?)
Have any changes been laid against the perpetrator of the family violence? If so,
what was the outcome?
If your client was the driver or otherwise admits to the offence, did the family violence
‘result in’ and/or ‘substantially contribute to’5 the client being unable to control the
conduct which constitutes the offence?
If your client was not the driver;
(a) was the client the registered operator of the vehicle; and
(b) did the family violence substantially contribute to the client being unable to
nominate the driver?
Was the client supported by a family violence worker, case worker/social worker, a
medical practitioner or a community welfare service provider?
Financial Hardship
Obtain details of the client’s financial situation, including weekly income and
expenses (such as accommodation, food, electricity, gas, telephone, transport,
medical, personal and miscellaneous expenses), assets and debts.
Where possible take a copy of the client’s Health Care Card and/or Centrelink
Income Statement (Note: the Work and Development Permit Application includes the
grounds of ‘acute financial hardship’).6
Was the client dealing with any other life issues at the times the fines were incurred
(e.g. poor physical health, relationship break up, physical/sexual abuse)?
Elements relevant to the Sheriff and Magistrates’ Court
Why were the infringements incurred?
5 Note: the language used is ‘results in’ for special circumstances and ‘substantially contributed to’ for
the family violence scheme.
6 Acute financial hardship’ is defined in the WDP guidelines as receipt of certain Centrelink benefits
and/or by satisfying the Low Income Test (eligibility for a low income health care card). Guidelines
currently available at
http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/work+and+development+per
mit+scheme)
13
Infringements Working Group - Practice Resources 2017 What life issues is the client dealing with now or at the time of the offending?
For arrest and bail, do any of the following apply:
o Does the client have a mental or intellectual impairment, disorder, disease or
illness; or
o Do ‘special circumstances’ apply to the client; or
o Having regard to your client’s situation, would imprisonment be excessive,
disproportionate or unduly harsh?
o Is the client a victim of violence that substantially contributed to the person
being unable to control the conduct which constituted the offending?
Obtain details of the client’s financial and personal circumstances.
o Is the client likely to be able to comply with an instalment order/payment
arrangement/time to pay order?
o Is the client likely to be able to comply with a community work permit/order?
14
Infringements Working Group - Practice Resources 20172. Finding the Fines
The next step is working out what fines are out there, and what stage they are at.
Even if the client has brought in some paperwork, it is good practice to do a thorough check
to make sure there are no other fines floating about.
Contact the enforcement agency
The Enforcement Agency is usually the agency that issued the fine in the first place.
However, for fines issued by Victoria Police, VicRoads, Traffic Camera Office or toll ways,
after commencement of fines reform the Enforcement Agency will be Fines Victoria (formerly
Civic Compliance Victoria).
Common Types of fines Enforcement agency
Parking fines Local council
Public transport fines – no ticket, no concession card, Department of Economic
feet on seats, smoke on rail premises, open liquor on Development, Jobs, Transport
rail premises etc. and Resources
Fines Victoria
Victoria Police fines – drunk in public, offensive
language/behaviour
Fines Victoria
VicRoads fines
Fines Victoria
Traffic Camera Office
Fines Victoria
Toll way – CityLink or Eastlink
Obtain a list of fines online
Visit https://online.fines.vic.gov.au/ to obtain a list of fines online.
Click “Your Fines” (Note: otherwise the website just prompts you to pay your fine. If you are
being prompted to pay your client’s fine you are looking in the wrong place).
You will need an obligation or infringement number; and
For driving fines/Fines Victoria:
Date of offence
Drivers licence number
Vehicle Registration Number
For other fines:
Offence Date
Date of Birth
15
Infringements Working Group - Practice Resources 2017Contact Fines Victoria (formerly Civic Compliance)7
If it is not possible to use the website you should be able to continue to contact Fines
Victoria directly for a list of outstanding infringements.
Fines Victoria can provide details of fines that are at enforcement stage (Final Notice of
Demand has been issued) or warrant stage.
To get a list of outstanding fines, you can:
Call: you will need the client with you to provide verbal authority to discuss your
matters.
Send a written request to Fines Victoria: You will need to provide the following
information:
Client’s signed authority
Client’s name
Client’s date of birth
Current address and previous known addresses
Any known obligation numbers
If relevant, client’s drivers licence number and client’s vehicle registration
number
See Precedent A for an example written request for a fines summary.
Tip: Client’s may have multiple accounts with Fines Victoria under different dates of birth or
where the client’s name has been misspelt. It is good practice to call Fines Victoria to
confirm you have obtained details of client’s fines from all the client’s accounts.
7Although requesting a written list of outstanding infringements has often been ‘best practice’ in the
past - you may wish to consider using the website as the timeframes for sanctions have considerably
shortened under the Fines Reform Act 2014.
16
Infringements Working Group - Practice Resources 20173. Special Circumstances
What are special circumstances?
Section 3 of the Infringements Act 2006 defines ‘special circumstances’ to mean:
a) a mental or intellectual disability, disorder, disease or illness where the disability,
disorder, disease or illness results in the person being unable:
i) to understand that conduct constitutes an offence; or
ii) to control conduct that constitutes an offence; or
b) a serious addiction to drugs, alcohol or a volatile substance within the meaning of
section 57 of the Drugs, Poisons and Controlled Substances Act 1981 where the
serious addiction results in the person being unable:
i) to understand that conduct constitutes an offence; or
ii) to control conduct that constitutes an offence; or
c) homelessness determined in accordance with the prescribed criteria (if any) where
the homelessness results in the person being unable to control conduct which
constitutes an offence; or
d) family violence within the meaning of section 5 of the Family Violence Protection Act
2008 where the person is a victim of family violence and the family violence results in
the person being unable to control conduct which constitutes an offence;
‘Homelessness’ is defined in section 7 of the Infringements (General) Regulations as a
person who satisfies one or more of the following:
a) the person is living in crisis accommodation; or
b) the person is living in transitional accommodation; or
c) the person is living in any other accommodation provided under the Supported
Accommodation Assistance Act 1994 (Cth); or
d) the person has inadequate access to safe and secure housing as defined in section 4
of the Supported Accommodation Assistance Act 1994 (Cth).
Proving special circumstances
To evidence special circumstances, you must obtain a support letter from a doctor,
psychiatrist, psychologist, case worker, housing worker, or counsellor. The letter should
be written on organisational letterhead, define the writer’s qualification and be signed
and dated.
The support letter must address:
whether the client suffers from mental illness, substance addiction, or homelessness
and define the illness, addiction, or type of homelessness;
how long the client has been experiencing mental illness, addiction, or
homelessness;
whether the mental illness, substance addiction, homelessness affect the client’s
ability to control or understand the conduct that lead to them incurring the fines; and
whether the client has undergone any treatment, rehabilitation or counselling or
sought any housing assistance.
When relying on family violence as a special circumstance, support letter must address:
17
Infringements Working Group - Practice Resources 2017 the writer’s qualification, relationship to client, and period of engagement with the
client;
a summary of the client’s circumstances;
whether the client was experiencing family violence at the time the offence was
committed; and
whether, in the writer’s opinion, it is more likely than not that the client’s
circumstances involving family violence resulted in the client’s inability to control the
conduct constituting the offence.
Tip: Your client may be better off using the proposed stand-alone family violence scheme.
You may wish to get one comprehensive letter in support - at this stage we suggest the letter
in support cover both the special circumstances and family violence scheme - but this may
change depending on how the scheme works in practice. A comprehensive support letter
must address whether:
“the client’s circumstances, outlined above, resulted in and/or substantially contributed to
both:
(a) an inability to control the conduct which constitutes the offence; and
(b) where the client was not the driver the family violence substantially contributed to the
client being unable to nominate the driver”.
See Precedent D for an example request for supporting information.
18
Infringements Working Group - Practice Resources 20174. What are your client’s options?
Your client’s options will depend on the both their personal circumstances and at what stage
your client’s fines are at in the infringements lifecycle.
The below illustration provides an overview of the infringements lifecycle, including your
client’s options, before and after the implementation of fines reform to help understand the
changes to the process. You can find an overview of the current options as Appendix A.
Note: If your client is not an Australian citizen please see Appendix D.
Current Infringement Process (168 days)
Infringement Stage (112 days) Enforcement Stage (56 days) Warrant Stage (5 years)
Final Infringement Warrant
Penalty Enforcement Order
Infringement reminder
Issued
Notice Reminder collection 28 + 14 days Sheriff serves ‘7 day
28 + 14 days Notice activities
(up to 28 notice’
28 + 14 days Notice of intension
days) to issue warrant
28 days
Non- (Non-legislative)
Sanctions are applied
legislative
Internal Review/Nomination Revocation
Payment Plan Payment Order
Refer to Court
Work and Development Permit
Fines Recovery model (77 days)
Infringement Stage (49 days) Enforcement Stage (28 days) Warrant Stage
+)
Infringement Penalty Notice of Enforcement Warrant Sheriff serves ‘7
Administrative
Notice Reminder Final Issued day notice’
sanctions can
Notice (PRN) Demand Sheriff sanctions
be applied
21 + 7 days
14 + 7 days 21 + 7
days
Internal Review/Nomination Enforcement Review
No Options
available after
Refer to Court expiry of 7 day
notice, even if
Payment Arrangement sanctions are not
yet applied
Work and Development Permit
Family Violence Scheme
19
Infringements Working Group - Practice Resources 2017a. Internal Review
An application for internal review must be made to the enforcement agency. You can only
apply for internal review once per infringement.
Tip: After the commencement of fines reform, you can choose to try an internal review with
the enforcement agency if you think the outcome will be more favourable to your client. You
can also try an enforcement review if the fine moves to the Fines Victoria stage regardless of
whether it was internally reviewed or not.
You can apply for internal review on the grounds that:
person unaware (new ground);
there was a mistake of law;
there was a mistake of identity;
the client has special circumstances (see section above); or
the conduct for which the infringement notice was served should be excused having
regard to any exceptional circumstances relating to the infringement offence.
‘Exceptional circumstances’ is not defined but can mean any extenuating personal
circumstances whether related to the offence or the personal circumstances of the client,
such as vehicle breakdown, medical emergencies, unavoidable delay, cultural or language
barriers that contributed to the offending, serious social or financial hardship, etc.8
The enforcement agency must respond within a prescribed time (currently 90 days) to the
internal review request. If they don’t, the fine is deemed withdrawn.
What can the enforcement agency decide on review?
Confirm the decision to serve the infringement notice;
Withdraw the infringement notice;
Withdraw the infringement notice and serve an official warning instead;
Withdraw the infringement notice and refer the matter to the Magistrates' or
Children’s Court as a charge and summons;
Waive prescribed costs;
Approve a payment plan; or
A combination of the above.
Note: If the internal review application was made on the grounds of special circumstances
and the enforcement agency denies the internal review, the agency is no longer required to
refer the matter to court as a charge and summons, although they can still do so.
Tip: If client has many fines at various stages and has provable ‘special circumstances’ it
may be more practical to wait for all fines to be registered with Fines Victoria. You can then
make a single Enforcement Review to deal with all the fines together at that stage.
An example internal review letter for transport is included at Precedent B and an example
local council review is included at Precedent C.
8Infringements Act 2006 Internal Review Guidelines, Attorney-General’s Department (Vic), gazetted
8 June 2017
20
Infringements Working Group - Practice Resources 2017b. Nominate Another Driver
Generally, infringement notices that aren’t issued in person are sent to the registered owner
of the vehicle.
If the registered owner was not the driver, they can nominate the person who was driving or
in possession/control of vehicle at the relevant time by:
Complete the nomination form sent with the infringement notice;
Nominate online at https://online.fines.vic.gov.au/ (go to Your Options -
Nominate); or
Ask Fines Victoria to provide the relevant form.
For an excessive speed offence, the owner has 28 days to nominate but can apply for an
extension of time if the infringement notice was not received. Extensions must be applied for
with 14 days of the person becoming aware of the notice.9 Failure to nominate will result in
an automatic conviction being recorded.
If your client cannot nominate because of family violence they may be eligible for the Family
Violence Scheme, see Part 4.F for more information.
9 s 89B, 89BA Road Safety Act 1989 (Vic).
21
Infringements Working Group - Practice Resources 2017c. Refer to Court
A client may object to having their matter dealt with under the infringements system and may
elect to have the matter heard in court.
This may be because the client believes they have a valid defence to the conduct, or they
simply wish to have their side of the story heard by a court.
If the client elects for the matter to be heard in court, the infringement will be withdrawn and
the matter will be heard as a charge and summons in the Magistrates' Court or Children’s
Court. The client will need to plead guilty or not guilty to the charge in court.
CAUTION: If found guilty, your client may be convicted of an offence. A finding of guilt in
court may be released on a police check.
Tip: Seek legal advice before electing to have a matter heard in court.
22
Infringements Working Group - Practice Resources 2017d. Enforcement Review (Formerly Revocation)
After commencement of fines reform, the process formerly known as revocation will become
enforcement review. An application for enforcement review can be made on the same
grounds as an internal review.
The grounds for enforcement review are:
person unaware (new ground);
there was a mistake of law;
there was a mistake of identity;
the client has special circumstances (see Part 3 above); or
the conduct for which the infringement notice was served should be excused having
regard to any exceptional circumstances relating to the infringement offence.
After fines reform, the application must be made to Fines Victoria.
Note: Enforcement Review can also be completed online at https://online.fines.vic.gov.au/
The application must:
be in writing;
include the authority of the client;
state clearly the grounds for your application; e.g. ‘This application is made on the
basis of special circumstances, namely homelessness’
must be accompanied by evidence such as a letter from a doctor, psychologist or
housing worker; and
be made after the issuing of a Notice of Final Demand but prior to the expiry of a
seven day notice or other sanctions or the fine has been paid.
See Precedent D for an example request for supporting information.
See Precedent E for an application of revocation on the basis of special circumstances. We
expect an application for Enforcement Review to be similar in format.
Warning: After fines reform commences, if a 7-day notice has been served, applications for
enforcement review must be made before the expiration of the 7-day notice.
Tip: If a client presents with a seven day notice you can submit an enforcement review
application with support documents to follow. However, if sufficient material is not able to be
obtained in time they may not be able to make a further application later.
Fines Victoria can:
Ask for more evidence
o You can request an extension of time to provide this
o If you have no more evidence, the Director must now make a decision on the
available evidence already provided
Find special or exceptional circumstances, or other ground for review
o The matter will then be referred back to the enforcement agency
After referral, the enforcement agency can:
23
Infringements Working Group - Practice Resources 2017 withdraw the infringement
withdrawn the infringement and issue an official warning
withdraw the infringement and proceed against the client by charge and summons
o Importantly if the enforcement agency does nothing, after 90 days the
infringements are deemed to be withdrawn.
If the enforcement agency proceeds by charge and summons your client should seek legal
advice. If the matter proceeds after a finding of special circumstances, your client may be
eligible for assistance by Victoria Legal Aid.
See Precedent F for a memo to VLA.
Note: At this stage the listing practice of the Magistrates’ Court after commencement of fines
reform is unclear. It is hoped that there will be some form of consolidated list (like the special
circumstances list) where fines are dealt with for multiple enforcement agencies in one
location rather than multiple mention dates throughout Victoria’s Magistrates’ Courts.
Note: Where CityLink and EastLink toll infringements are heard and dealt with by the
Magistrates’ Court, your client will be subject to a mandatory administrative cost of $40 per
toll offence on a finding of guilt, although this fee is not currently pursued by Transurban or
Eastlink. This is a judgment debt but is not reported to VEDA (the credit reporting agency).
You should advise your client to get legal advice if they are contacted by Transurban or
Eastlink about the administrative costs.
Note: Even if your client can prove special circumstances at Court, demerit points will still be
recorded.
Currently you may make two applications for revocation and further applications with leave
of the Magistrates’ Court.
After the commencement of fines reform, your client will be able to make two applications for
enforcement review on the grounds of special circumstances or one application on
exceptional circumstances grounds. Your client will not be able to seek leave to make a
further application for review.
24
Infringements Working Group - Practice Resources 2017e. Work and Development Permits
What is a Work and Development Permit (WDP)?
The Work and Development Permit scheme is a new option for vulnerable and
disadvantaged people to ‘work off’ Victorian fines. The scheme is currently administered
through IMES; after the commencement of fines reform it will be administered by Fines
Victoria.
Eligible people apply through an accredited sponsor to have unpaid fines expiated by
participating in an approved activity or treatment.
Currently, people can apply for a WDP up until an infringement warrant is executed and as
soon as a WDP is approved all enforcement action stops. The scheme is voluntary and
participants can opt out at any point to pay the remaining fine balance or to pursue another
option for dealing with the fine. If someone stops participating in the agreed activities or
treatment the WDP may be cancelled and enforcement action can resume.
After fines reform commences, WDPs will not be available after expiration of the 7-day
notice.
Who is eligible for a WDP?
WDPs are available to people with unpaid fines who are homeless, have a mental illness,
intellectual disability or cognitive impairment or are victims of family violence. Unlike other
options in the infringements system (i.e. special circumstances, internal review, and
revocation/enforcement review) the WDP scheme is also available to people experiencing
acute financial hardship.
Eligibility for WDPs also differs from special circumstances, internal review and
revocation/enforcement review because there is no requirement for a nexus between a
person’s condition or circumstances and the offending conduct.
Who can be an accredited WDP sponsor?
A WDP sponsor is an approved organisation or a health practitioner that supports a person
to undertake a WDP.
Organisation can include not-for-profits, government agencies and statutory bodies,
general practices, some for-profit organisations and interstate organisations
Health practitioners can include medical practitioners, nurses, psychologists
What’s an approved WDP activity or treatment?
A range of activities can be undertaken as part of a WDP including:
Unpaid work
Educational, vocational or life skills courses
Medical or mental health treatment
Counselling and therapy
Financial counselling
Drug and alcohol treatment
25
Infringements Working Group - Practice Resources 2017 Mentoring programs (if under 25)
Fines are worked off at different rates depending on the activity. For example, unpaid work
reduces the debt by around $45.00 for every hour worked. A medical or mental health
treatment plan, or drug and alcohol treatment, will reduce the debt by up to $1000 a month, if
the client complies with the plan.
Do WDPs work?
The Victorian WDP scheme is based on a similar program in NSW which has been running
for the past seven years. Since 2012, 74 179 WDOs have been approved in NSW, clearing
over $90 million in fines debt.
The ability for clients to undertake activities to work towards satisfying their debt is
motivating…It’s a double win for the client. They get to work off their debt without
being further financially compromised and they are more receptive to valuable
interventions to address their significant barriers.
- WDO provider
What do WDP sponsors need to do?
Step 1: Assess whether a client is eligible and suitable for a WDP
Step 2: Develop an appropriate activity or treatment plan with the client
Step 3: Apply for a WDP on behalf of the client via the online WDP portal
Step 4: Provide and/or supervise activities or treatment undertaken by the client
Step 5: Monitor activities and provide reports via the online WDP portal
Step 6: Maintain records e.g. proof of client eligibility and participation
To apply to become a WDP sponsor
Contact WDP Operations on 1300 323 483 or wdpoperations@justice.vic.gov.au
26
Infringements Working Group - Practice Resources 2017f. Family Violence Scheme
There is currently a proposed stand-alone Family Violence Scheme (FVS) before
Parliament. It is expected to commence on or around 31 May 2018.
The FVS responds to recommendations 112 and 113 by the Royal Commission by
addressing:
fines incurred as a result of family violence (a nexus between the infringement
and the family violence); and
the inability of client to elect to nominate fines as a result of family violence
(currently not adequately covered in an enforcement review on special
circumstances).
As currently drafted the FVS requires a separate application to enforcement review (your
client must choose one option or the other).
The application must be:
in writing;
state the grounds on which it is made, either;
o the fines were incurred as a result of family violence (where family
violence substantially contributed to the person being unable to control
the offending conduct); or
o where the person was not the driver and family violence substantially
contributed to the inability of person to elect to nominate driver;
provide an address for service;
refer to the fines to which the application relates; and
include supporting material (see above).
An FVS application must be made before:
the expiry of a seven day notice;
an attachment of earning direction or an attachment of debts direction has been
made;
a land charge has been recorded;
property has been seized under a vehicle seizure and sale notice; or
the fine has been paid.
If the application is successful the Director of Fines Victoria must generally do the
following (separate rules apply for operator onus fines where the client was not the driver
- see Note):
cancel the registration of each infringement and cease any enforcement action
waive any additional fees; and
direct the enforcement agency to withdraw the infringement and take no further
action.
27
Infringements Working Group - Practice Resources 2017Note: For operator onus fines where the applicant was not the driver there is a
slightly different proposed process that gives the client an option to request the
Director of Fines Victoria to suspend enforcement action. The Director may then
suspend enforcement action for up to six months.
The client can make a nomination (an ‘effective known user statement’) in this time.
What is more likely is that the client will not nominate (on the basis of family violence) or
do nothing. In those circumstances the Director of Fines Victoria will:
cancel the registration of each infringement and cease any enforcement action
waive any additional fees
direct the enforcement agency to withdraw the infringement and take no further
action.
Notify the applicant that the above has occurred.
Note: Despite the above, the FVS as currently drafted grants the Director of Fines Victoria
the power to cancel the enforcement of an infringement and refer matters back to the
Enforcement Agency (who may then take what action they consider appropriate including
proceeding by charge and summons).
The Director must consider the following when making this decision:
the number, frequency and nature of the client’s offences;
whether family violence ‘substantially contributed’ to the client being unable to control
the conduct that constitutes the offence;
Whether the client was the registered operator of the vehicle and was not the driver;
and
other FVS applications the client has made.
At this stage it is too early to give practical advice about how this will work.
28
Infringements Working Group - Practice Resources 2017g. Payment Arrangements
Currently known as either payment plans or payment orders, payment arrangements are
available at all stages of the infringements lifecycle.
Under fines reform all fines, including both infringements and court fines, will be eligible for a
single payment arrangement administered through Fines Victoria.10 This payment
arrangement can also include fines that have not been registered with Fines Victoria, for
example local government fines.
When deciding whether to offer a payment arrangement the Director can have regard to any
liabilities or financial responsibilities of the applicant, including any existing payment
arrangements, and how many dependants the applicant has.11
The Director can also impose conditions on the proposed arrangement, including:
Up-front payments
Minimum payments
Length of the arrangement
Conditions for consolidation of infringement and court fines or compliance with
existing court orders relating to any of the fines.
If your client is not happy with the proposed arrangement, they can object and request an
alternative offer.12
If your client is having difficulty obtaining a payment arrangement it may be helpful to provide
a budget, showing the person’s capacity to maintain the proposed payments.
To add additional fines to an existing payment arrangement your client will need to make a
new application.13
Where a payment arrangement is cancelled, enforcement can recommence from the same
point in the infringements lifecycle as the relevant fine had reached prior to start of payment
arrangement.14
Warning: Under fines reform, if your client has been served with a 7 day notice the
application for payment arrangement must be made prior to the expiry of the 7 days.15
10 Part 5 Fines Reform Act 2014 (Vic).
11 s 45 Fines Reform Act 2014 (Vic).
12 s 45 (5) & (6) Fines Reform Act 2014 (Vic).
13 s 51 Fines Reform Act 2014 (Vic).
14 s 57 Fines Reform Act 2014 (Vic).
15 s 42 (3) Fines Reform Act 2014 (Vic).
29
Infringements Working Group - Practice Resources 2017You can also read
