Infringements

Infringements

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Apply for internal review and/or withdrawal by enforcement agency

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.

You may apply to the relevant enforcement agency on behalf of your client for a review of the decision to serve the infringement notice pursuant to section 22 of the Infringements Act. An internal review may be requested on one or more of the following grounds:

  • the decision was contrary to law (for example, because no offence was committed) or involved a mistake of identity (for example, because your client did not commit the offence);
  • 'special circumstances' apply to the person; or

An enforcement agency may withdraw an infringement notice by serving a withdrawal notice at any time before an enforcement order is made.  The enforcement agency may do this on the ground that an official warning should be served on the person rather than an infringement notice, proceedings are to be commenced or that the matter should be abandoned (section 18). 

There is no express provision for a person to apply for withdrawal of the fine under section 18. Accordingly, in many cases it may be more appropriate to apply for internal review of the decision to serve an infringement notice. However, given that the grounds for withdrawal differ between the two provisions, it may be useful to request withdrawal pursuant to section 18, either in addition to, or instead of an application for internal review, depending on what grounds for withdrawal are relevant to the client's circumstances.

Note that your client cannot apply for an internal review or have their infringement withdrawn if the infringement is for excessive speeding, drink-driving or drug-driving offences under sections 89A-89D of the Road Safety Act.

Making the application for internal review

The application for internal review must:

  • be in writing;
  • specify the grounds on which the application is made;
  • provide the client's address for service of the notice; and
  • be made before the infringement notice is registered with the Infringements Registrar.

The application should also include any supporting documentation.

The contact details of the review agency should be on the infringement notice (on the back of the fine).  Only one application can be made in relation to an infringement offence (i.e. if an application is made and rejected, another application cannot be made).

Here is a sample application to an issuing agency for internal review and/or withdrawal of an infringement, on the basis of special circumstances:

If the fine has progressed to enforcement stage, your client can apply for revocation.

What can an enforcement agency decide?

Once an application for internal review has been made, the enforcement agency must review the decision to serve an infringement notice on your client within the prescribed time of 90 days (with a further period of up to 35 days if additional information has been requested) and suspend any enforcement procedures until the review is complete and your client has been informed of the outcome in writing (which must be within 21 days of making the decision) (section 24).

If the enforcement agency does not comply with these requirements, the infringement is considered to have been withdrawn (section 24(4)).  

During the review process, the agency may request additional information from your client and suspend the review for up to 35 days while awaiting such information (section 23). If your client does not provide the requested information within 14 days then the agency may review the decision without that additional information (although it has the discretion to consider additional information submitted late).

If an application is made on the basis of special circumstances, then the enforcement agency may under section 25(2) of the Infringements Act either:

  1. withdraw the infringement notice;
  2. withdraw the infringement notice and issue an official warning in its place; or
  3. decline to withdraw the notice and refer the matter to open court where it will be dealt with under the Sentencing Act (i.e. under sections 25(2) and (3) of the Infringements Act if you make an application for review on the basis of your client's special circumstances and it is rejected, the matter will be referred directly to open court, not to the Special Circumstances List).

If an application is made on grounds other than special circumstances, an enforcement agency under section 25(1) of the Infringements Act can decide to:

  1. Confirm the decision to issue your client with an infringement notice.  If so, your client will need to pay the infringement notice within 14 days of receiving the written notice advising of the outcome of the review to avoid incurring additional costs and enforcement procedures.   Alternatively, your client can apply for a payment plan or elect to go to open court
  2. Withdraw the infringement notice and issue an official warning in its place which means that your client will not have to pay the fine but a record of the offence will be kept by the enforcement agency and may be used to decide what action to take against your client if he or she commits the same offence in the future.
  3. Withdraw the infringement notice and take no further action against your client.
  4. Withdraw the infringement notice and refer the matter to open court (or the Children's Court if your client is under 18 years of age).
  5. Waive some or all of the prescribed costs.
  6. Approve a payment plan.
  7. Do any combination of the above.

A person may apply for internal review even if they have already paid some or the entire amount of the fine. In such a case, if the review results in withdrawal of the infringement notice, then the amount paid will be refunded (section 18(5)).

 

An internal review must be carried out by a person not involved in the decision to issue your client with the infringement notice.

Practice tip

Unless a client's infringements are likely to be withdrawn at internal review on the basis of special circumstances (for example, where there are a small number of fines and the client does not have a history of infringements), it may be preferable for your client to wait until the matters progress to enforcement order stage before taking any further action.   This is because the processes enforcement agencies have for considering review applications on the basis of special circumstances are currently inconsistent and some agencies tend to err on the side of rejecting applications.    If the agency refuses to withdraw the infringement, the enforcement agency is required under section 25(3) of the Infringements Act to refer the matter to court and in practice these matters go to open court (i.e. the general list of the Magistrates' Court) rather than to the Special Circumstances List. 

Our clients generally benefit from having matters heard in the Special Circumstances List rather than open court due to the specialised nature of the Special Circumstances List.   At open court, there is a risk that higher penalties will be imposed, a conviction recorded against the person or liability for court costs imposed.  Alternatively, the court may convert the fines to community work, reduce the amount of the penalty or allow the person to pay by instalments.  While it is sometimes possible to consolidate open court matters with matters already listed in the Special Circumstances List, there is no guarantee that this will be successful. 

 

It is up to your client to decide which approach they would like to take.  You should advise them of the above considerations and explain that, if they wait until the infringements becomes an enforcement order, more costs will be added to the infringement before the application for revocation is made.

Attorney-General’s Guidelines and internal reviews

The Attorney-General's Guidelines to the Infringements Act state that:

the Infringements Act does not require that enforcement agencies consider 'special circumstances' at the issuing stage. However, if issuing officers are to exercise such discretions, then each enforcement agency must have a code of conduct to guide officers with the responsibility for issuing infringement notices in the discharge of their responsibilities.

 The code should take into account the nature of the business of the issuing agency and the role and functions of its issuing officers. The code should focus on principles of the infringements system with respect to fairness and the recognition of individual circumstances, and deal with the appropriateness of issuing infringements to people with obvious special circumstances.

If the enforcement agency that has issued the fine to your client has such a code of conduct, it may be helpful to refer to this code of conduct in any application for internal review.

The Attorney-General's Guidelines also state that:

each enforcement agency must develop procedures for the conduct of internal reviews of infringement notices as required by Part 2 of the Infringements Act 2006. Review officers conducting internal agency reviews must ensure that their discretionary powers are exercised in good faith and in a way that is consistent with the principles of the Act and these Guidelines. To help ensure the integrity of the review process, applications must be determined with reference to the written application and wherever possible, to any statement provided by the applicant and any other evidence, such as medical, psychological or case worker reports in the case of an application for Special Circumstances.

The review must also take into account the grounds upon which the application for review has been made (as set out in s22 of the Act) and whether, given the person's application, prosecution of the offence would be likely to be successful and/or, whether it is appropriate to continue the enforcement process.

 Further, at paragraph 8.2, the Attorney-General's Guidelines state that:

 the agency should consider the application in light of the circumstances identified by the alleged offender. If 'Special Circumstances' are considered to apply then the agency should withdraw the infringement notice, or withdraw the infringement notice and issue an official warning in its place (section 25(2)) of the Act).

 

 It may be useful to refer to these Attorney-General's Guidelines in your letter requesting internal review.