Infringements

Infringements

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Application for an extension of time, payment/instalment order or variation

Important changes from 1 July 2017

From 1 July 2017, the Infringements Act 2006 (Vic) will be changed as part of Victoria’s fines reform process, including new ‘social justice initiatives’ that will affect people experiencing vulnerability. Please be aware of these reforms in relation to any infringements and fines assistance that you are providing to your clients.

Justice Connect Homeless Law pro bono lawyers should read our further materials about the changes here (password needed), before doing any fines work after 1 July 2017. Please speak to your supervising lawyer, team leader or Homeless Law staff for more information.

Section 76 of the Infringements Act provides that a person with an enforcement order may apply to the Infringements Registrar for:

  • a payment/instalment order; and/or
  • an extension of time; and/or
  • a variation of the prescribed costs; and/or
  • a variation of the prescribed fees of an infringement warrant.

A payment order may provide that the time for payment be extended or that the fine be paid by instalments or both.

If your client has drink-driving, drug-driving or excessive speed infringements, your client is still eligible to apply for any of the above.

How to make an application for a payment order, fee waiver and/or extension of time

Generally, Homeless Law clients are experiencing financial hardship and if your client is applying for a payment order or extension of time under section 76 of the Infringements Act, he or she should also be advised to apply to the Infringements Registrar for variation of the prescribed costs or fees (section 76(1A)). 

If your client has drink-driving, drug-driving or excessive speeding fines, while your client will not be eligible to apply for revocation (section 63A), he or she is able to apply for a reduction of the amount outstanding under section 76(1A).  This can make a significant difference to the amount outstanding (sometimes almost halving it). 

An application for a payment order, fee waiver and/or an extension of time pursuant to section 76 and section 76(1A) of the Infringements Act may be made online, in person, by telephone or in writing.  Civic Compliance has produced a sample completion guide which provides detailed instructions on how to fill out this application form.

It will generally be appropriate for you to send a cover letter attached to the application detailing:

  • the person's full name and current address;
  • a statement setting out their financial circumstances and other vulnerabilities; and
  • the reason for making the application (including why the Infringements Registrar should reduce the overall amount of the fine).

The letter should also request that a copy of all correspondence in relation to the matter be sent to you.

If your client is applying for an instalment order, the application should also nominate a preferred date for instalments to be paid.  The minimum fortnightly payment accepted by the Infringements Court is $10. 

If your client receives a Centrelink benefit, he or she may be able to have instalments automatically deducted from Centrelink payments via Centrelink deductions.  The Centrepay Deductions Form is available from the Centrelink website.

Instalments can also be automatically deducted from your client's bank/financial institution or credit card account.  More information about this option can be obtained by calling Civic Compliance on 9200 8222.

Where your client has a mixture of outstanding enforcement orders, some of which are eligible for a revocation application and others which are not (for example because they are for excessive speeding or driving under the influence of drugs or alcohol), you should prepare separate letters:

The application should be sent to:

Infringements Registrar
Infringements Court
PO Box 14487
Melbourne City Mail Centre VIC 8001

Before making the application for a payment order and variation of prescribed fees, make sure you have obtained clear instructions from the client that (a) they want to proceed with the application; and (b) that the amount proposed (eg. $10 per fortnight) is manageable for them. 

Applying for consolidation of payment orders

Where your client has different payment orders, your client may wish to consolidate the payment of multiple fines and associated costs under a single payment order.

In relation to payment orders, where a person has a new infringement at the enforcement order stage then it is open for that person to apply for this infringement to be added to an existing payment order.  However, the Infringements Court seems to have a discretion as to whether to add the new infringement to an existing payment order or make it the subject of a new payment order.  In most cases, it will be preferable for clients to have a single payment order (both administratively and because there will be one minimum fortnightly amount payable rather than two) and, subject to your client's instructions, you should point this out in your negotiations with the Infringements Registrar. 

What can the Infringements Registrar decide?

Upon receiving an application for a payment order or variation of the prescribed costs or fees, the Infringements Registrar will take into account the following factors:

  • your client's income and expenses;
  • the amount outstanding;
  • the amount the client is willing to pay in each instalment;
  • the length of time it will take for your client to pay the fine; and
  • whether your client has previously defaulted on a payment order.

The Infringements Registrar has the discretion to do one or more of the following:

  • allow additional time for the payment of the fine or the balance of the fine;
  • make an instalment order;
  • make a payment order (which can include any outstanding costs that the sheriff has incurred in carrying out any sanction under the Infringements Act);
  • make an order varying the prescribed costs or fees and adjust the total of the fine;
  • adjourn the application; and
  • approach relevant financial institutions to establish the veracity of the financial circumstances outlined by the applicant (section 77).

While a payment order is in force and your client is complying with the order, execution of the enforcement order is stayed and, if an infringement warrant has been issued, the warrant may be recalled or may remain issued but unenforceable (section 77(5)) for the period of five years (section 94A).

What happens if your client defaults on payment?

If your client defaults on payment by more than 28 days of it being due, then your client may be issued with an infringement warrant.

If your client had previously been issued with an infringement warrant but it had been stayed because of the payment order and your client then defaults on payment by more than 28 days of it being due, then another infringement warrant may be issued against him or her (section 78).  If a seven day notice had been served on your client less than 6 months before the default, the warrant can then be executed without further notice.  If no seven day notice had previously been served or it was issued more than 6 months before the default, another seven day notice must be served on the person before the infringement warrant can be executed (section 78). 

When assisting your client to apply for a payment order, you should advise them of the consequences of default. 

When is the option to apply for an extension of time, payment/instalment order or variation not available?

An application for any of the above can be made at any time until an infringement warrant has been executed.  This means that an application can still be made if a warrant has been issued and a seven day notice has been served but before:

  • property has been seized (except for seizures made during a seven day notice period pursuant to section 89);
  • a notice of sale has been served pursuant to section 101(2) of the Infringements Act;
  • an attachment of earnings order or an attachment of debts order has been made (pursuant to Part 10);
  • an order under section 136 of the Infringements Act that land is subject to a charge has been made; and
  • a person has been arrested (section 64).

Once these enforcement actions have taken place, your client will have more limited options: see here for more details.

An application can, however, still be made if a seven day notice has been served or the person's driver's licence or vehicle registration has been suspended or their vehicle's wheels have been clamped.  If one of these things has happened it is important to act urgently - there is seven days to lodge the application and your client's options will be severely limited if the warrant is executed.