Fines and infringements

There are a number of stages in the infringements process, and your options change according to the stage the matter has reached. Before you decide what to do, look at all the available options to see which one best fits your particular situation. Whatever you choose to do, be aware of the time limits involved; if you wait too long, it may be too late to take the option that is best for you.

If you are unsure what to do, you can ask for help from a financial counselling service (see Chapter 5.4: Financial counselling services) or from a community legal centre or Victoria Legal Aid (see Chapter 2.4: Legal services that can help).

The options available to you at various stages of the infringements system process are to:

1 do nothing (not recommended);

2 pay the fine;

3 ask the enforcement agency to internally review its decision to issue the infringement notice (i.e. ask for the notice to be withdrawn or for an official warning to be issued through an internal review);

4 nominate another driver (for certain vehicle offences);

5 negotiate a payment plan (i.e. ask for more time to pay or arrange to pay the fine by instalments);

6 dispute the fine and take the matter to the Magistrates’ Court;

7 apply to have the enforcement of the fine reviewed by Fines Victoria (i.e. cancelled) after the fine has been registered with Fines Victoria – this is also called ‘enforcement review’;

8 apply to withdraw the fine under the Family Violence Scheme at any stage;

9 apply for a work and development permit.

Some of these options are only available at certain stages of the infringements process or for certain fines. Some have different results depending on when they are put into effect.

For more information, see the infringements process table on the next page.

Before deciding which option is best for your situation, it is important to be clear about exactly how much money you owe in fines. You can find out how much money you owe from Fines Victoria (see ‘Contacts’ at the end of this chapter). You may also have other infringement notices outstanding that you are not aware of (e.g. if you have moved house and not received infringement notices).

If you request this information, you may be asked to supply the information list on page 103:

NOTE: LICENCE-LOSS INFRINGEMENTS

• your full name (including middle name) and any previous names you have been known by;
• your date of birth;
• your current address and any previous addresses where you might have received infringe­ ment notices;
• your driver licence or vehicle registration number.

You should request your debtor summary C and D reports as this represents the most detailed and accurate summary of your fines. Sometimes, the online fines summary available through Fines Victoria’s website (www.online.fines.vic.gov.au) does not accurately reflect all your fines.

Be careful about providing your current address to staff working at Fines Victoria. This information could be given to the sheriff who may then take action against you to execute any outstanding enforcement warrants (see ‘What happens if I take no action?’, below). If you are not comfortable providing your current address to Fines Victoria, you can offer to provide the following information and documentation to help them search for your outstanding fines:

• your driver licence number for any parking or traffic infringements;
• a photocopy of identification documents;
• where possible, details of where, when and what types of fines or infringement notices you may have incurred, including an ‘obligation number’ (this number is on the infringement notice).

If someone else (e.g. a financial counsellor) is obtaining information for you, you must sign a form authorising that person or organisation to obtain it on your behalf. Be mindful that a person with the authority to act on your behalf may disclose your current address.

If fines are less than 49 days old, they may not be registered with Fines Victoria yet, so you need to write to the relevant enforcement agency (e.g. the Victorian Government Department of Transport or the relevant local council) for details of unpaid fines. The relevant enforcement agency is identified on the infringement notice or penalty reminder notice. The following table summarises the infringements process, and your options for dealing with your outstanding fines at each stage of the process.

This is not recommended. The effects of doing nothing become progressively more severe as the infringement process progresses. At each successive stage, you become liable to pay more as extra costs are added to the original penalty (see ‘What happens after an infringement notice is issued?’ and ‘Summary of options’, above). Also, notices of final demand and enforcement warrants do not expire. For this reason, it is not recommended that you take no action.

Enforcement measures (including wheel clamping and licence suspension) may also be taken against you. If you do not take any action, eventually you can have your car seized and sold. You may also be arrested and, in very limited circumstances, sentenced to serve time in prison. The consequences of not taking any action in response to outstanding fines are described in further in ‘What happens if I take no action?’, below.

If an infringement notice is for excessive speeding or for a drug-driving or drink-driving offence, doing nothing could have more serious consequences. As well as having the penalty enforced through the infringements system, you will have a conviction recorded against you and lose your licence for a set period (for more information, see ‘1 Infringement notices’ in Chapter 6.8: Driving offences).

You can pay the fine and any added costs at any stage of the infringements process until an enforcement warrant is executed. However, the longer you wait to pay the fine, the more expensive it will be. It also becomes more difficult to negotiate payment arrangements that suit your circumstances.

You can pay the penalty within the time indicated on the infringement notice, which is usually 21 days (but check the notice). Check when this time period starts: it may run from the date the notice was issued, or from the date you received the notice at home. If you have paid the penalty within the time limit, no further action should be taken by the agency that issued the notice. The notice should tell you where and how you can pay the penalty (e.g. cheque, cash or EFTPOS). Make sure you get a receipt from the agency as proof of your payment.

If you wait until the 21-day period has expired and a penalty reminder notice has been sent to you by the enforcement agency, you can still pay the penalty within 14 days. However, there will be additional costs added at this stage. You can also pay the penalty after the enforcement agency has referred the matter to Fines Victoria and a notice of final demand has been issued.

If you decide to pay the penalty, but do not have enough money to pay the full amount within the time limit, see ‘Arrange a payment plan with the enforcement agency’ and ‘Apply to Fines Victoria for a payment arrangement’, below. You may also be able to apply to have any additional fees (that have been added by Fines Victoria) waived (see ‘Requests to waive additional fees’, below).

Overview Under the Infringements Act, you can ask the enforcement agency to review its decision to issue a fine at any time before the fine is registered with Fines Victoria (which is typically 49 days after the infringement notice is served on you). This process is intended to be a simple and accessible way to request that an impartial person within the enforcement agency reviews the decision to issue the fine.

An internal review may be requested where:

• the decision to issue the infringement notice was contrary to law (e.g. a parking ticket was issued when you had complied with the relevant parking regulations);
• there was a mistake of identity;
• you have special circumstances, or exceptional circumstances, that mean you should not have to pay the fine (see ‘Special circumstances’ and ‘Exceptional circumstances’, below);
• you were unaware of the infringement notice having been served or the notice was not served by personal service:
  • applications for internal reviews based on this ground must be made within 14 days of the applicant becoming aware of the infringement notice,
  • note that an application for an internal review on this ground does not result in a cancellation of the infringement, instead it gives the person an extra 21 days to consider their options for dealing with the infringement.

An application for an internal review can be made on more than one of the grounds listed above. A young person (i.e. under 18 years of age) can apply for an internal review. Note that it is not possible to apply for an internal review for drug-driving or drink- driving offences, for boating offences, or for excessive speeding offences (i.e. more than 130 km per hour or 25 km per hour over the speed limit).

Internal review process

Each internal review is conducted by an officer who was not involved with issuing the infringement. Reviews must be completed within 90 days of the enforcement agency receiving the application; although, this can be increased by up to 35 days if the agency seeks additional information.

If you cannot supply such additional information within 14 days of being asked to do so by the enforcement agency, you can request an extension of time. The agency can take additional information into account in deciding your application, even if you provide it out of time. However, the agency is not obliged to consider extra information supplied out of time, so request an extension of time if needed.

Once an enforcement agency receives an application for an internal review, it must suspend any enforcement action until it has completed the internal review and advised you of the outcome.

The agency may decide to cancel the fine and instead issue you with an official warning. If the agency withdraws or cancels the notice, no further action will be taken against you.

If the agency does not withdraw or cancel the notice, you need to consider your options, such as paying the fine, paying the fine by instalments, obtaining an extension of time in which to pay the fine, or contesting the fine by referring the matter to court. Note that unless you have applied for an internal review based on special circumstances, an agency may refuse your application for an internal review and refer the matter to court (see ‘Going to court’, below). This is a risk you need to be aware of if you apply for an internal review on grounds other than special circumstances.

If you opt to pay the fine, you should pay by the due date on the agency’s notice of its decision or, if no due date is specified, pay within 14 days of receiving notice of the agency’s decision. You can also apply for a work and development permit (see ‘Option 9: Apply for a work and development permit’, below).

Note that if you do nothing, the infringement will be registered with Fines Victoria. You can then apply for an enforcement review based on any of the grounds outlined below including special circumstances if special circumstances apply (see ‘Option 7: Apply for an enforcement review from Fines Victoria’, below).

Public transport fines issued to young people and people seeking asylum – extended internal review options

The Department of Transport has established a program recognising that young people experiencing disadvantage and people seeking asylum can be harshly impacted by public transport fines. Under the program:

• people on a Bridging Visa E or people living in Australia without a visa; and
• young people under 18 (but some exceptions may be made for young people over 18) experiencing educational disadvantage or disengagement, disability, family violence or family disadvantage, housing instability, mental health concerns (not necessary to have a diagnosis), addiction or financial hardship

can request that their ticketing or feet on seats fine be withdrawn and replaced with an official warning. A support agency working with the young person or person seeking asylum should fill out the form confirming the person meets the eligibility criteria. Contact Transport Regulatory Operations Youth At Risk Program (see ‘Contacts’ at the end of this chapter) to request the form or make an application.

Special circumstances

Overview

For the purposes of the infringements system, special circumstances are:

• a mental or intellectual disability, disorder, disease or illness or a serious addiction to drugs, alcohol or a volatile substance, that contributes to the person having a significantly reduced capacity to:
  • understand that conduct is an offence, or
  • control conduct that constitutes an offence;
• homelessness or family violence that contributes to the person having a significantly reduced capacity to control conduct that constitutes an offence.

This requires a causal link between the person’s special circumstances and the offence; this is called the ‘nexus’. It does not, however, require that the special circumstance is the only contributing factor to the offence, just that it has a significant contribution.

Special circumstances: Homelessness

‘Homelessness’ is defined in regulation 7 of the Infringements (General) Regulations 2006 (Vic).

A person is homeless if they are:

• sleeping rough;
• couch surfing;
• living in crisis or transitional housing;
• living in accommodation provided under the Supported Accommodation Assistance Act 1994 (Cth);
• unable to adequately access safe, secure housing. If you are applying to have your fines cancelled because you were homeless at the time you were fined, you need to show that your homelessness contributed to you having a significantly reduced capacity to control the behaviour that led to the issue of the fine.

Special circumstances: Family violence

‘Family violence’ is defined in section 5 of the Family Violence Protection Act 2008 (Vic). Family violence is behaviour by a person towards a family member that is physically or sexually abusive, emotionally or psychologically abusive, or economically abusive, or is threatening or coercive, or is in any other way controlling or dominating and causes the family member to fear for their own safety or wellbeing or that of another family member.

Family violence is also behaviour that causes a child to hear or witness, or otherwise be exposed to the effects of, the behaviour outlined above.

If you are applying to have your fines cancelled because you were experiencing family violence at the time you were fined, you need to show that the family violence you experienced contributed to you having a significantly reduced capacity to control the behaviour that led to the issuing of the fine.

Where there are grounds to apply for review due to family violence (i.e. special circumstances), you are also likely to be eligible to apply under the Family Violence Scheme (see ‘Option 8: Apply to the Family Violence Scheme’, below).

Special circumstances: Long-term circumstances

You can also apply for special circumstances on the basis that you are experiencing circumstances that are:

• long-term in nature (that is, circumstances that are persistent, continuing indefinitely, or for the foreseeable future, or continuing for an extended period of time such as several years);
• make it impracticable for you to pay the infringement penalty and any fees or utilise any of the other mechanisms to deal with your fines, such as a work and development permit (see ‘Option 9: Work and development permits’, below); and
• do not relate solely or predominantly to your financial circumstances.

The condition does not have to have been present at the time of the offending, and it does not have to be linked to the offending. This sub-ground of ‘special circumstances’ is intended to apply only to a small group of fine recipients who have long-term and extremely serious circumstances that were not necessarily present when the offence occurred and mean that they cannot address their fines in another way.

Examples of where it is impracticable to deal with the fine include where the person’s circumstances are such that they:

• cannot undertake work and development permit 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 or circumstance must be the main cause of the incapacity to use any other option to deal with the fine, including to organise payment. Examples include but are not limited to:

• a person undergoing long-term involuntary mental health care (e.g. they are subject to a community treatment order or a period of involuntary inpatient treatment) that makes them unable to attend courses, treatment or counselling, or to pay the fine;
• a person with a severe physical or intellectual disability that makes them unable to attend courses, treatment or counselling, or to pay the fine;
• a person who is sleeping rough, is isolated and highly transient, and is unlikely to resolve their circumstances in the foreseeable future, and is unable to deal with their fine in any way.

Special circumstances applications

Applications on the grounds of special circumstances should be in writing. To support your application, provide some or all of the following information:

• Provide a detailed explanation of your circumstances to explain why the infringement notice (or registered fine) should be cancelled.
• Provide details of any mental illness or intellectual disability, or any drug or alcohol addiction, your housing status (particularly if you have been homeless) or family violence that resulted in you being unable to understand that your conduct constituted an offence or made you unable to control the conduct. Examples of details include the nature of the condition, the status of the condition at the time of the offence, the current status of the condition, steps taken to address the condition (e.g. rehabilitative treatment) and, crucially, the link between your condition and the offence.
• Provide copies of recent reports written by relevant health, housing and other workers (e.g. a case worker, social worker, doctor and psychiatrist) that support your application. These reports should discuss the relevant special circumstances relied on, and the way in which the relevant circumstances contributed to the fines if you are relying on the nexus test, or the way your condition makes it impractical for you to deal with your fines if you are relying on the long- term circumstances test. You should ensure that the supporting letter is acceptable for the kind of circumstances you are relying on. Fines Victoria’s enforcement review application lists which types of medical professionals or support workers can provide evidence.
• Each report should be signed and dated within the last 12 months, although older reports may be acceptable in the case of conditions that do not change over time (e.g. an intellectual disability).
• If you are applying on the basis of a long-term circumstance, evidence that you receive assistance from the National Disability Insurance Scheme or the Disability Support Pension is likely to be of assistance and should be included.
• Provide information about other factors (e.g. an inability to pay) that are not special circumstances in their own right, but can be referred to in an application.

A lawyer from a community legal centre or a financial counsellor can help you write the application (see Chapter 2.4 and Chapter 5.4).

Exceptional circumstances

The term ‘exceptional circumstances’ is not defined in the legislation relating to infringements. However, ‘exceptional circumstances’ may include poverty, old age, physical health issues, vehicle breakdown, acute illness, or language and literacy difficulties that relate to the offence.

NOTE

Currently there are inconsistencies between various enforcement agencies in their assessment of applications for internal review, particularly in cases of special circumstances. However, there are now guidelines for enforcement agencies that aim to make decision-making more consistent (see www.justice.vic.gov.au/internalreview-guidelines-fines-and-enforcement-services).
Fines Victoria monitors internal reviews by enforcement agencies and has the power to make recommendations to enforcement agencies about internal reviews. As a result, it is hoped that the internal review process will be more consistent and transparent.

For some traffic and parking offences, if you are the registered owner of the vehicle but you were not the driver when the alleged offence took place, you can nominate the person who was driving when the offence occurred. You need to provide evidence (e.g. the name, address, date of birth, and/or driver licence number of the person who was driving) or a statutory declaration that the vehicle was stolen.

You cannot nominate another driver if you were issued an on-the-spot fine, or if you were charged with a drink-driving or drug-driving offence, or if your car was unregistered at the time of the offence.

In the case of an excessive speeding offence, you must make a nomination within 28 days of the infringement notice being issued. In the case of all other operator onus offences, a nomination must occur before the infringement is registered with Fines Victoria or the Children’s Court and a notice of final demand is issued (which is typically 49 days from the date of the infringement notice).

If the enforcement agency accepts your statement, it has 12 months to commence court action against the other driver instead of pursuing you.

The enforcement agency may refuse to accept your nomination; for example, if the person you nominate as the driver provides a statement that they were not the driver and the agency accepts their statement or if you provide insufficient detail. The agency has 12 months to commence court action against you from the date your nomination of another driver is refused.

If you were unaware of the fine and therefore did not nominate the driver in the required time frame, you may be able to apply to the Magistrates’ Court for an infringement extension. If successful, this will give you a further 28 days to deal with your infringement by nominating the responsible person (for more information, see www.mcv.vic.gov.au/ criminal-matters/driving-and-traffic-offences/ applying-infringement-extension). It is not possible to apply for an infringement extension for on-the- spot infringements.

You may be able to enter into a payment plan either before or after a notice of final demand has been issued, or after a Magistrates’ Court hearing.

Arrange a payment plan with the enforcement agency

If you do not have enough money to pay the fine within the time limit and a notice of final demand has not been issued by Fines Victoria, try negotiating with the enforcement agency to enter into a payment plan. This will give you more time to pay the fine, or will allow you to pay by instalments (e.g. $20 per fortnight). People under the age of 18 can also apply for a payment plan at this stage. You can also seek to negotiate a payment plan directly with Fines Victoria.

Under the Infringements Act, if you have a Services Australia Health Care Card, a Services Australia Pensioner Concession Card, a Department of Veterans’ Affairs Concession Card or a Gold Card, you are automatically entitled to a payment plan (although the enforcement agency still has to agree to the terms of the plan). If you do not have one of these cards, you may still apply for a payment plan and the agency will consider your circumstances (e.g. financial hardship or illness) in deciding whether to agree to such a plan.

Once you apply for a payment plan, any enforcement action is suspended until the application is determined or the payment plan is cancelled.

To apply for a payment plan, write to the enforcement agency as soon as possible after you receive the infringement notice. In the letter, explain your financial circumstances, state how often you would be able to pay, and how much at a time. A financial counsellor can help you work out a payment schedule that you can afford. You may also apply for an instalment plan via telephone.

If the enforcement agency does not give you extra time to pay the fine, you need to decide whether you will pay or contest the fine. You can also apply to Fines Victoria for a payment arrangement instead of the enforcement agency (see ‘Apply to Fines Victoria for a payment arrangement’, below).

If the enforcement agency accepts your application but you do not make the agreed payments and it has been 14 days since a payment was due, the enforcement agency will send you a written notice stating that you have 14 days to make a payment. If you do not make a payment or cancel the payment plan, the infringement resumes at the stage it reached in the infringements process when the plan was first entered into. However, phone the agency to try to negotiate an alternative arrangement, such as making up the payment in the next instalment.

If the agency agrees to a payment plan and later withdraws your infringement notice, then the infringement penalty and any associated costs must be removed from your payment plan, or the money refunded if this is your only infringement.

Apply to Fines Victoria for a payment arrangement

You can also apply to Fines Victoria for a payment arrangement, provided that property has not been seized under an enforcement warrant, or a seven-day notice has not expired. Payment arrangements are also available for court fines and multiple infringements; both court fines and multiple infringements can be bundled together into one payment arrangement. A payment arrangement may give you an extension of time to pay the fine, or it may allow you to pay the fine by instalments. There are some particularities of certain court fines which can affect payment plans – these are discussed under ‘Dealing with court fines’.

An application for a payment arrangement can be made online at www.online.fines.vic.gov.au/Pay- by-instalments, or in person at Fines Victoria, or in writing (for address details, see ‘Contacts’ at the end of this chapter). An application must include your full name and current address, a description of your financial circumstances, and the reason you are applying for a payment arrangement.

Fines Victoria considers your financial circumstances (i.e. your income, expenses, payment history, and whether you are able to pay off the fine within a reasonable time) before deciding whether to make a payment arrangement. Fines Victoria will also consider your liabilities and financial responsibilities and if you have any dependants.

The payment arrangement application might also be refused if you have defaulted four or five times (depending on the exact circumstances) since 31 December 2017. If enforcement action (e.g. a wheel clamp) is already in place, an upfront 20 per cent payment is required. You will not be granted a payment arrangement if you owe more than $40 000 in fines.

Note that if you are not happy with the payment arrangement offered by Fines Victoria, you may ask Fines Victoria to offer a new payment arrangement with different terms and conditions.

If Fines Victoria makes a payment arrangement, the fine is ‘stayed’ (i.e. frozen or suspended) as long as you pay by the time set out in the arrangement or continue to make instalment payments according to the terms of the payment arrangement.

However, if you do not make the agreed payments, enforcement can resume. If you are struggling to keep up with the payment arrangement, you can apply to Fines Victoria for a variation of the payment arrangement. If you miss making any payments on time, try to negotiate with Fines Victoria to repay the amount so that the payment arrangement is not cancelled.

Although experiencing financial hardship is not technically grounds for a review, consider including in your application a request that the prescribed costs and fees added to the original penalty be waived due to any particular circumstances or hardship you may be experiencing. This may result in a significant reduction in the ultimate amount payable under a payment arrangement (see ‘Requests to waive additional fees’, below).

If Fines Victoria refuses to allow you to pay by instalments, and you do not pay the fine within the time limit (21 days from the issue of a notice of final demand), an enforcement warrant may be issued that permits a range of enforcement measures as if you had not taken any action (see ‘What happens if I take no action?’, below).

If you can’t pay, seek advice from a financial counsellor (see Chapter 5.4: Financial counselling services).

Payment arrangements and traffic offences

For a traffic offence where demerit points are part of the penalty, if you arrange to pay by instalments (or pay the fine in full after the time limit specified on the infringement notice) you are still considered to be liable for the offence without having been found guilty in court. The demerit points are still recorded against your licence; however, no conviction is recorded.

Requests to waive additional fees

Under section 9 of the FR Act, you may apply to Fines Victoria if you believe that you should not have to pay some or all of the extra costs that have been added during the infringements process and there are sufficient grounds to vary the amount of those costs.

In certain circumstances, Fines Victoria might agree to vary some of the additional costs that are attached to the fine. This same result might also be achieved by lodging an application for a payment arrangement, which could be lodged simultaneously with an application to waive additional fees (see ‘Apply to Fines Victoria for a payment arrangement’, above).

If Fines Victoria decides to vary the amount of costs you are ordered to pay, it must send you a notice setting out the new amount that you owe.

You have 21 days from the date of the notice in which to pay the original penalty and the new costs (or to apply to enter into a payment arrangement).

There is no formal application form to request Fines Victoria to waive the fees; instead, write a letter. When deciding whether to waive the fees, Fines Victoria will consider whether there were any administrative errors by the enforcement agency or by Fines Victoria that led you to being unaware of the infringement and hence incurring more costs. Fines Victoria will also consider whether there are any other relevant circumstances or hardships that mean you should not have to pay the extra costs. Note that Fines Victoria cannot waive costs ordered by a court in relation to a court fine.

If you believe you should not have to pay the fine, or should not have to pay the full amount, you may be able to elect to have the matter heard in the Magistrates’ Court. You may want to take this step if you did not commit the offence and the relevant enforcement agency will not withdraw the notice.

When the enforcement agency sent you the infringement notice or penalty reminder notice, they may have included a form to fill out to elect to have the matter referred to the court. If not, write to the agency to request a referral.

You cannot elect to have a matter heard in the Magistrates’ Court after it has been registered with Fines Victoria as a notice of final demand.

However, there are other ways fines can be heard in the Magistrates’ Court after a notice of final demand has been made. It is important to seek legal advice before electing to have your fines heard in the Magistrates’ Court. This is because the penalties in Magistrates’ Court proceedings can be more severe (see ‘Court penalties’, below).

Going to court is risky. Even if you think you did not commit the offence or you had a good excuse for committing the offence, you are at risk of being found guilty and being convicted. However, a conviction that originates as an infringement is immediately ‘spent’ (i.e. disappears and is not disclosed on a police check). For more information on spent convictions, see Chapter 3.9 Understanding criminal records. Nevertheless this is still risky for people living in Australia on a visa or in community detention.

Once you have received a notice of final demand, you or a person acting on your behalf can apply to Fines Victoria to review the decision of the enforcement agency that issued the infringement notice.
You can apply for an enforcement review if:

• the decision to issue the infringement notice was contrary to law; or
• the decision to issue the infringement notice involved a mistake of identity; or
• you have special circumstances; or
• you have exceptional circumstances; or
• you were unaware of the infringement.

It is not possible to apply for an enforcement review for drink-driving or drug-driving offences, or for boating offences, or for excessive speeding offences (i.e. any speed over 130 km per hour, or any speed that is 25 km per hour over the applicable speed limit).

Applying for an enforcement review

It is important to seek legal advice if you are considering this option. The procedure for applying for an enforcement review of outstanding fines varies according to your reason for making the application:

• If you did not commit the offence or had a valid reason for committing the offence, you should apply in writing for an enforcement review.
• If there were special or exceptional circumstances, you may apply for an enforcement review. The definition of special and exceptional circumstances is discussed in ‘Option 3’, above.
• If you did not receive the infringement notice or were unaware that the infringement notice had been served, you can apply to Fines Victoria to cancel the fine; applications must be in writing, must be made within 14 days of the applicant becoming aware of the infringement notice, and must explain why the fine should be cancelled. Note that enforcement review applications that are based on the grounds of the applicant being unaware of the infringement notice being served preserve the enforcement agency’s ability to issue a second infringement in accordance with the Infringements Act, and in most cases the infringement would be reissued.

Enforcement review applications

Under the FR Act, any person who has received a notice of final demand may apply to Fines Victoria for an enforcement review.

When determining an application for an enforcement review, Fines Victoria has the power to confirm the decision to serve the infringement notice, or, if satisfied that sufficient grounds exist, Fines Victoria can cancel the enforcement of the infringement and refer the matter back to the relevant enforcement agency.

After Fines Victoria has cancelled an enforcement review application, the enforcement agency must notify you (within 90 days) of whether it will withdraw the infringement, or issue an official warning, or commence proceedings in court. If an enforcement agency decides to commence proceedings in court, it has six months to do this.

You can check whether an enforcement agency has issued proceedings in court by contacting Fines Victoria or by searching for your name in the criminal list of the Electronic Filing Appearance System (EFAS) on the Magistrates’ Court’s website (www. mcv.vic.gov.au/efas-daily-court-list).

An application for an enforcement review can be made at any time until a seven-day notice expires, or a land charge is recorded, or an attachment of earnings or debt direction is made, or the person has become a declared director, or a vehicle is seized under a vehicle seizure and sale notice. Therefore, it is imperative to act quickly to submit an enforcement review application. Once an enforcement review application is lodged, enforcement action is put on hold until a decision is made. You can ask for a three-month extension of time to provide supporting material.

An application for an enforcement review must be in writing and should set out the grounds on which the review is sought. The application does not need to be in the form of a statutory declaration. Application forms are normally sent with the notice of final demand but can also be accessed on Fines Victoria’s website or completed online at https://online.fines.vic.gov.au/request-a-review.

An application for an enforcement review except on the basis of special circumstances can only be made once for any one infringement. An application for an enforcement review can be made a second time on the basis of special circumstances if the first application is rejected by Fines Victoria. An application for an enforcement review on the basis that you were unaware of the infringement must be made within 14 days of becoming aware of the infringement and cannot be made if you failed to update your address within 14 days of your address changing.

An application for an enforcement review on the basis of the fine being contrary to law, or mistake of identity, or exceptional circumstances, or on the basis that you were unaware of the fine cannot be made after you have submitted that the fine was incurred due to special circumstances. Therefore, if you have multiple grounds on which to seek an enforcement review, it is recommended that you first apply on the grounds other than having special circumstances.

Enforcement review applications where you have special circumstances

If you have special circumstances, you can apply to have the decision to give you an infringement notice reviewed. The definition of ‘special circumstances’ is the same as for an application for an internal review (see ‘Special circumstances’ under ‘Option 3’, above).

An application for an enforcement review on the grounds of special circumstances should include particular information and reports (see ‘Special circumstances applications’, above).

If an application for an enforcement review is urgent, and there is insufficient time to obtain the reports, you can apply to Fines Victoria for a three-month stay of enforcement while you collect your supporting materials. Even where an extension of time is not expressly requested, Fines Victoria usually asks for more information if it is unable to assess your application and gives you 14 days to respond. You can also ask for an extension of time to provide the relevant information and Fines Victoria can grant you up to three months additional time to provide this information.

NOTE

If your first application for an enforcement review is unsuccessful, you are entitled to apply a second time if you have special circumstances.

A medical report that is submitted with an enforcement enforcement agency (particularly Victoria Police) to have concerns about your driving ability and they may share their concerns with VicRoads. If the circumstances described in your application could be seen as affecting your fitness to drive, VicRoads may suspend or cancel your driver licence or ask you for evidence that you are medically fit to drive. VicRoads may also ask that you complete a medical review. If you fail to do this, VicRoads can vary, suspend or cancel your driver licence.

The effect of cancelling the enforcement of an infringement after an enforcement review

If your enforcement review application is successful, this does not mean you do not have to pay the fine. It simply means that Fines Victoria has stopped its action to enforce the fine and has referred the matter back to the enforcement agency for reconsideration. The agency then has 90 days to decide whether it:

• does nothing and thereby withdraws the infringement notice; or
• withdraws the infringement notice and issues an official warning; or
• issues a charge and summons to prosecute the fines in the Magistrates’ Court – if the agency elects to issue a charge and summons, it has six months to commence the proceeding.

If the enforcement agency withdraws the infringement notice, you do not have to appear in the Magistrates’ Court and do not have to pay the fine. If the enforcement agency elects to prosecute, it must advise Fines Victoria of the commencement of that proceeding and the Magistrates’ Court, which will list the matter for a hearing.

Administrative sanctions and enforcement review

After a notice of final demand is issued, Fines Victoria has broad powers to apply administrative sanctions, including suspending, not granting or not renewing a person’s driver licence or registration.

If your licence or registration has been suspended and you have applied for an enforcement review, you may request, as part of your application, that these administrative sanctions are lifted based on your circumstances pending your application being determined.

Note that if your enforcement review application is successful, Fines Victoria must direct VicRoads to cease any driver or vehicle sanctions.

The Family Violence Scheme is an option for people who have experienced family violence and who have accrued fines as a result of family violence.

An application can be made to the scheme for the fine to be withdrawn if family violence substantially contributed to the offence or it is not safe for you to name the responsible person.

Applications to the scheme can be made at any stage in the infringements process before:

• a seven-day notice expires; or
• an attachment of earnings or attachment of debt direction is made; or
• a land charge is recorded; or
• property is seized or a vehicle seizure and sale notice is issued; or
• the infringement is paid in full; or
• you have elected to go to court or the fine is referred to a court by an enforcement agency; or
• an application is made for an enforcement review on the basis of family violence special circumstances.

Certain types of offences cannot be dealt with under the scheme, including excessive speeding, drink- driving, drug-driving and boating offences.

Your application needs to establish that the family violence substantially contributed to your inability to control the conduct that constituted the offence, or that you were the registered operator of a vehicle but the family violence substantially contributed to you being unable to nominate a person as the driver.

For example, you might be eligible under the Family Violence Scheme if you were speeding or running red lights to escape a perpetrator of family violence. Similarly, you may be eligible for the scheme if a perpetrator of family violence accrued toll fines in your name and it was unsafe to nominate them or stop them from using your car.

Family violence can also include instances of elder abuse by children and grandchildren against older family members. (For information about elder abuse, see Chapter 9.2: Legal issues affecting older people.)

Applications are determined by a specialist trained family violence team within Fines Victoria.

To apply, complete the Family Violence Scheme application form. Your application needs to include at least one supporting document – this can be a document prepared by a relevant authority or professional, or a statutory declaration prepared by you if you do not have a relevant professional who can provide supporting material. The documents accompanying your application should establish the connection between the family violence and the fine.

When an application to the scheme is approved, the relevant fines are cancelled and any demerit points that have been deducted are reinstated. Hence, this option is far more attractive than special circumstances on the grounds of family violence. If the application is successful, there is no need for the applicant to attend court.

Where you are not the driver accumulating the fines, you can defer nominating another driver for up to six months. This allows you time to consider whether nominating another driver is a safe option. However, even if you decide not to nominate another driver, all the fines that are the subject of a successful application under the scheme will be cancelled.

The Director of Fines Victoria retains the power to send fines back to enforcement agencies for prosecution in limited circumstances, which could result in you being summoned to court. However, the Director of Fines Victoria has indicated that an applicant will be given an opportunity to withdraw their application before this occurs, which means there is very little risk of the matter being heard in court unless you agree to it. There is a small risk that Fines Victoria will notify the police if they assess that you are in immediate danger.

You should read Fines Victoria’s ‘Guide to the Family Violence Scheme’ (see https://online.fines. v i c. g o v. a u / S u p p o r t / Fa m i l y – V i o l e n c e – S c h e m e ) and seek assistance from a community legal centre (see Chapter 2.4: Legal services that can help) or a financial counsellor (see Chapter 5.4: Financial counselling services).

Work and development permits (WDPs) are currently only available for infringement fines and are not available for court fines. Fines Victoria may approve, vary, suspend or cancel a WDP. A WDP enables you to pay off an unpaid fine through non- monetary means, such as:

• undergoing treatment by an accredited health practitioner;
• participating in community work;
• completing an approved educational course;
• receiving financial or other counselling;
• participating in a mentoring program (if you are under 25 years of age).

You may apply for a WDP if you:

• have a mental or intellectual disability, disorder or illness; or
• are addicted to drugs or alcohol; or
• are experiencing homelessness; or
• are experiencing acute financial hardship; or
• have experienced family violence.

Applications for WDPs are made by an ‘accredited agency’ or ‘accredited health practitioner’. This agency or practitioner effectively acts as your supervisor for the purposes of completing the WDP.

An application for a WDP can be made at any stage of the infringements process, except where:

• an infringement is paid;
• a seven-day notice has expired;
• an attachment of earnings 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
• an infringement has been registered with the Children’s Court.

The work-off rates for WDPs are:

• 6.6 penalty units per month for drug and alcohol counselling and medical treatment (for the 2023– 2024 financial year, this is $1269.25); and
• 0.3 penalty units per hour for all other activities (for the 2023–2024 financial year, this is $57.69).

Participants are only required to work off the original amount of each fine on the WDP, i.e the fees that have been added to fines included on a WDP will be waived once a participant has worked off the original value of each individual fine in full. If a participant ceases activities prior to the original fine amount being worked off, the fees will not be removed.

Once a WDP is in place, any enforcement of the fines included in the WDP is suspended. If you complete the WDP, the proportion of the fines worked off under the WDP will be considered dealt with. If you cannot complete the WDP, consider the other options listed above for dealing with the remainder of your unpaid fines or seek a waiver of your remaining fines under section 10F of the FR Act on the basis that you have substantially attempted to comply with the WDP and you have achieved the intended objectives of the WDP.

If you are interested in a WDP, seek legal advice (see Chapter 2.4: Legal services that can help) or advice from a financial counsellor (see Chapter 5.4: Financial counselling services) to find out whether you are eligible and if there are suitable accredited sponsors who can assist you.

Unfortunately, at the time of writing (1 September 2023), there is no centralised, publicly available list of accredited agencies that offer WDPs. There is also a limited number of sponsor agencies; however, it is expected that the number of sponsors available will increase over time. For the most up-to-date list of WDP sponsors, contact Fines Victoria on 1300 323 483.

What happens if I take no action?

If you take no action in relation to outstanding fines, they will eventually be enforced against you. After a notice of final demand is issued by Fines Victoria, you are vulnerable to a range of sanctions (see pts 6, 7, 8, 9, 10, 11, 12 FR Act).

Suspension of driver licence and vehicle registration

Under Part 8 of the FR Act, the sheriff may direct VicRoads to suspend a driver licence or suspend the registration of a person’s vehicle, whether or not the person’s infringement was a vehicle offence. This action can only be taken if you have been issued with a notice of final demand and you do not pay the outstanding fine or have taken no other action.The sheriff may also direct VicRoads to not renew a driver licence or vehicle registration, or to not transfer a registration. Where multiple enforcement warrants have been issued against you, Fines Victoria can make one direction about all of them. Fines Victoria must direct VicRoads to end your driver licence suspension if:

• you pay your fines in full; or
• you apply for and are approved for a payment arrangement; or
• you apply for an enforcement review and it is granted; or
• an attachment of earning debt direction is made; or
• sufficient property is seized to cover your fines; or
• you are arrested.

Attachment of earnings or debts direction

Under Part 7 of the FR Act, where the amount of your fines exceeds $1000, Fines Victoria has the power to make a direction that your employer, or someone who owes you money, pay that money to Fines Victoria.

An attachment of earnings direction is a direction to your employer to pay a proportion of your wages or benefits to Fines Victoria to satisfy your outstanding fines.

An attachment of debts direction is a direction that requires a third person who owes you money to pay Fines Victoria, instead of paying you, to pay off your outstanding fines.

Under the FR Act and FR Regulations, there is a protected level of income; an attachment of earnings or a debts direction cannot be applied to this income. Regulation 18 of the FR Regulations states that the protected level of income is ‘the weekly rate for a year commencing on 1 January that is 75 per cent of the maximum fortnightly basic rate of the JobSeeker Payment, payable on 1 January in that year to a person who:

• is partnered; and
• has turned 21 years of age; and
• is without dependant children.’

As at 1 July 2023, the partnered JobSeeker Payment is $686.00 per fortnight or $343.00 per week. Seventy- five per cent of this income is $514.50 per fortnight or $257.25 per week.

Section 68 of the FR Act enables a fine defaulter to apply within 14 days for a variation or cancellation of an attachment of earnings direction where the direction would cause them to experience financial hardship or would result in the fine defaulter’s earnings to fall below the protected level.

It is anticipated that Fines Victoria may pursue attachment of earnings and debt directions, including against Centrelink recipients. The protections in the Judgment Debt Recovery Act 1984 (Vic) for people considered ‘judgment proof ’ do not apply to infringements.

Charges over and sale of real property

Charges over real property (i.e. land) are a last resort. However, if you owe a total of $2000 or more in infringements or court fines in your name – and if other enforcement action has been unsuccessful, or unsatisfactory, or is not possible or is not appropriate – the Director of Fines Victoria may apply to the Registrar of Titles for a land charge to be recorded against land that you own or co-own.

If the charge remains on the land for more than 28 days, Fines Victoria may serve a notice of intention to sell the land. If, within 14 days of the notice being served, no payment has been made and the amount owed under the warrant is still outstanding, the Director of Fines Victoria may apply to the Supreme Court for an order permitting the sale of the land.

Sale of land can occur even if the property is jointly owned. If a charge is recorded against real property you own or jointly own, it is essential that you seek legal advice urgently (see Chapter 2.4: Legal services that can help). Also consider seeking financial counselling (see Chapter 5.4: Financial counselling services).

In addition to the administrative sanctions listed above, once an enforcement warrant is issued, you are also vulnerable to further enforcement action (see pts 10, 11, 12 FR Act).

Detention, immobilisation and sale of vehicles

Part 11 of the FR Act gives the sheriff or a police officer the power to detain and immobilise a vehicle (e.g. by wheel-clamping the vehicle or towing it away) when an enforcement warrant has been issued against the registered owner. This action may be taken as long as an enforcement warrant has been issued, whether or not a seven-day notice has been served. If your vehicle is detained or immobilised, you have seven days to do one of the following to ensure that your vehicle is released:

• pay the outstanding fine plus any costs incurred by the detention, immobilisation or impoundment of the vehicle; or
• enter into a payment arrangement; or
• enter into an attachment of earnings order or an attachment of debts direction (see ‘Attachment of earnings or debts direction’, above).

Your vehicle must also be released if:

• an application for an enforcement review is granted by Fines Victoria – however, you cannot lodge an enforcement review application after your car is seized under a vehicle seizure and sale notice (this is different to a detention or immobilisation notice, which does not prevent the making of an enforcement review application);
• sufficient property is seized to satisfy the outstanding amount;
• you are arrested;
• all enforcement warrants are recalled and cancelled by Fines Victoria.

If none of the above actions occur within seven days, the sheriff may seize the vehicle and anything left in or on the vehicle and give you 14 days’ notice of an intention to sell the vehicle (or anything in or on the vehicle). Any money left from the sale of the vehicle – after the outstanding fines are paid and the costs of detaining and selling the vehicle are covered – is paid to the vehicle’s registered owner.

Part 11 of the FR Act applies if one or more enforcement warrants have been issued against the registered owner of a vehicle. This means that action taken to immobilise, detain or remove your vehicle can continue until all your outstanding warrants have been dealt with.

The FR Act specifically allows a vehicle to be sold, even when it is the owner’s primary mode of transport and is of any value. This specifically excludes the operation of section 42 of the Supreme Court Act 1986 (Vic), which would otherwise protect people from having their vehicle seized and sold.

Removal of number plates

Under Part 12 of the FR Act, if an enforcement warrant has been issued, the sheriff or a police officer has the power to remove the number plates from your vehicle and order the suspension of your registration. This has the effect of increasing the chance that you will be intercepted by police while driving and enable them to execute the enforcement warrant by arresting and bailing you to attend a section 165 hearing (see ‘6 Enforcement warrant hearings (“section 165 hearings”)’, below). If number plates are removed, a notice must be placed on the windscreen advising of the removal. Number plates must be returned if:

• payment is made in full; or
• a payment arrangement is made and typically a lump sum deposit is paid; or
• an attachment of earnings or debts direction has been made; or
• an application for an enforcement review is granted; or
• sufficient property is seized to cover your fines; or
• you are arrested.

Arrest and community work permits

You may be arrested under an enforcement warrant if you do not have enough personal property to cover the amount owed and there are no other means of dealing with the fine.

At this stage, you can either be bailed to appear in court under section 165 of the FR Act, or you may be eligible for a community work permit (CWP).

If you are bailed to appear in court, it is very important to seek legal advice before the court hearing (see Chapter 2.4: Legal services that can help). Also see ‘6 Enforcement warrant hearings (“section 165 hearings”)’, below.

If you are eligible for a CWP and agree to the terms, you can complete unpaid community work under supervision instead of going to court. You may not be eligible for a CWP if:

• your outstanding fines exceed 100 penalty units; or
• the sheriff thinks you do not have the capacity to perform unpaid community work (e.g. you have a physical, intellectual or mental disability that prevents you from doing the work required); or
• you have no fixed address; or
• you are likely to contravene the conditions of a CWP.

If you breach the CWP conditions without a reasonable excuse, you are guilty of an offence, which may lead to a court-imposed fine.

If you fail to comply with a CWP, you may have to go to court and the magistrate may decide to cancel the CWP and give you a different sentence (see ‘6 Enforcement warrant hearings (“section 165 hearings”)’, below).

Under a CWP, the number of hours you are required to work is calculated at the rate of 0.2 of a penalty unit per hour until the penalty is paid (unless the court sets a different number of hours). There is a minimum of eight hours to be worked and a maximum of 500 hours.

The FR Act sets out deadlines for completion of hours under a CWP (e.g. you have six months to complete 125 hours).

Therefore, you must have enough free time to commit to community work. You cannot be made to complete more than 20 hours of community work per week. However, you can request to work up to 40 hours per week if you can manage it and you want to work-off the debt more quickly.