Infringements

Infringements

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Application for enforcement review if the client has ‘special circumstances’

If your client has been served with a Notice of Final Demand, they may apply to the Director of Fines Victoria for a review of the decision of the enforcement agency to serve the infringement notice and enforce that notice under s 32 of the Fines Reform Act 2014 (Vic) (FRA).

The most common basis for enforcement review for our clients is on the basis of ‘special circumstances'. Under s 3 of the Infringements Act 2006 (Vic) (IA), ‘special circumstances' is defined as:

  • a mental or intellectual disability, disorder, disease or illness or a serious addiction to drugs, alcohol or a volatile substance within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) where that condition results in the person being unable to: 
    • understand that conduct constitutes an offence; or
    • control conduct that constitutes an offence; 
  • 'homelessness' that results in the person being unable to control conduct which constitutes an offence; or 
  • family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (Vic) 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.

The definition of 'special circumstances' is discussed in further detail here.

How to make an application for enforcement review if the client has 'special circumstances'

An application for enforcement review on the basis of special circumstances may be made by a person acting on the applicant's behalf, such as a lawyer, case worker, parent or guardian, medical practitioner, financial counsellor or psychiatrist.

The application does not need to be accompanied by a statutory declaration. An application form can be downloaded from Fines Victoria here.

The critical part of a special circumstances application is to satisfy the definition of 'special circumstances' under s 3 of the IA, in particular articulating the causal connection between the person's condition and how that meant that the person was unable to understand and/or control the conduct that constitutes an offence.

As such, Homeless Law lawyers should write a letter accompanying the application form which explains that:

  • the person experiences one or more of the relevant conditions (i.e. mental illness, substance dependence, homelessness and/or family violence);
  • they experienced that condition at the time of the offences; and
  • the condition meant that the person was unable to understand or control the conduct that constituted the offences. 

This template letter provides an example of how this causal connection between a person's condition and the offending conduct can be explained when applying for enforcement review on the basis of special circumstances.

Other information that may be included in the cover letter accompanying the application for enforcement review includes:

  • any rehabilitative or restorative treatment undertaken by the client;
  • the client's weekly income and expenses; and
  • how payment of the outstanding amounts would exacerbate the client's condition or cause further hardship.

It is also extremely important to provide support letters or reports for the application (see supporting documentation).

Where your client has a mixture of Notices of Final Demand, some of which are eligible for enforcement review 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:

  • a letter applying for enforcement review on the basis of special circumstances; and
  • a letter applying for a payment order and variation of prescribed fees for matters that are not eligible for enforcement review.

The application should be sent to:

Fines Victoria
GPO Box 1916
Melbourne VIC 3001

Advising your client about key considerations

Before making the application, make sure you give the client clear advice regarding key considerations such as the risks of going to court. Once the advice has been given to the client, you should ensure you have obtained their express instructions to lodge the application.

  • Guilty plea and criminal record. If your client wants to make an application for enforcement review based on special circumstances, you must advise them that if the matter proceeds to court, it involves entering a guilty plea. Though this is less likely under the new fines system, enforcement agencies still have the option of taking the matter to court if enforcement review is successful. They have 90 days from Please also advise your client that findings of guilt may show up on criminal record checks. This will be particularly significant for clients with no previous criminal record, clients who may be seeking employment and clients with temporary visa status. Note that there is no risk of going to court for an internal review based on special circumstances.
  • Notification of unsafe drivers. If you make an application for review on the basis of special circumstances for the client, the police or the court are likely to notify VicRoads of any condition disclosed in the application that may affect your client's ability to drive (eg mental health concerns or substance dependence). This may prompt VicRoads to require tests to be completed to determine the client's fitness to hold a licence (see section 27 of the Road Safety Act 1986 (Vic) and regulation 78(1) of the Road Safety (Drivers) Regulations 2009 (Vic)). Please ensure you look at the most recent version of the legislation. VicRoads may then require your client to undergo a medical test or assessment (medical review) to confirm that your client can safely drive. The medical review involves a client attending an appointment with their doctor and asking them to complete a VicRoads template report, within one month of receiving notification from VicRoads. We should make clients aware of the risk that if the client has refused or failed to undergo the medical review, VicRoads can vary, suspend or cancel their licence.
  • Demerit points. If an enforcement review is successful and a fine is withdrawn or an official warning issued, no demerit points are accrued. However if an enforcement review is successful but the enforcement agency opts to take the matter to court via charge and summons, demerit points will be added to the record after the court hearing. If there are more than the allowed number of demerit points over a period of time, this may result in your client's licence being suspended. More information about demerit points is available from VicRoads website. Note that if an internal review based on special circumstances is successful, no demerit points are accrued.
  • Excessive speeding and DUI. For infringements where withdrawal or revocation is not an option (ie fines for excessive speeding (25km/h+) or fines for driving under the influence of drugs or alcohol), please discuss other options with your client. These options include:
  1.  
    1. Making an application for waiver or reduction of fees under s 9 of the FRA and making an application for  a payment arrangement under s 42 of the FRA for the remaining amount (if a payment arrangement is manageable.
    2. Applying for a Work and Development Permit.