Infringements

Infringements

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Special circumstances, exceptional circumstances and supporting documentation

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.

Homeless Law clients generally meet the definition of special circumstances as defined under the Infringements Act or exceptional circumstances, making them eligible to apply for an internal review (for infringements and reminders) or revocation of an enforcement order (including where there is an infringement warrant).

Your will need to obtain supporting documentation (see below) to prove that your client has special or exceptional circumstances. 

What constitutes 'special circumstances'?

Under section 3 of the Infringements Act, 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; and
  • 'homelessness' that results in the person being unable to control conduct which constitutes an offence.

The Infringements Act does not define what constitutes a "mental or intellectual disability, disorder, disease or illness". In February 2008, an information paper released by the Infringements System Oversight Unit of the Department of Justice stated that it would include a diagnosed intellectual disability and acquired brain injury, as well as diagnosed mental illnesses such as Alzheimer's disease, bipolar disorder, dementia, schizophrenia, anxiety, depression and other related conditions.

Homelessness is defined in regulation 7 of the Infringement Regulations 2006 (Vic). For the purposes of the Infringements Act, a person is homeless if:

  • the person is living in crisis accommodation; or
  • the person is living in transitional accommodation; or
  • the person is living in any other accommodation provided under the Supported Accommodation Assistance Act 1994 (Cth); or
  • the person has inadequate access to safe and secure housing within the meaning of section 4 of the Supported Accommodation Assistance Act 1994 (Cth) which includes where the only housing to which the person has access:
    • damages, or is likely to damage, the person's health; or
    • threatens the person's safety; or
    • marginalises the person through failing to provide access to:           
      • adequate personal amenities; or
      • the economic and social supports that a home normally affords; or
    • places the person in circumstances which threaten or adversely affect the adequacy, safety, security and affordability of that housing.

This definition may also include people living in rooming houses and caravan parks without any security of tenure.

It is important that applications for review or revocation on the basis of special circumstances satisfy the definition of 'special circumstances' i.e:

  • the person experiences one or more of the relevant conditions (i.e. mental illness, substance dependence and/or homelessness);
  • 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. 

Other factors such as domestic violence, poverty or financial difficulty do not fall under the definition of "special circumstances".  If your client presents with these issues, your client should refer to them in any internal review or revocation application as they qualify as "exceptional circumstances" and, if possible, explain how these circumstances excuse your client's conduct.

What constitutes 'exceptional circumstances'?

Under section 22 of the Infringements Act, a person is eligible to apply for internal review if he or she believes that the conduct for which the infringement notice was served should be excused having regard to any exceptional circumstances relating to the offence.

Exceptional circumstances are not defined in the Infringements Act. However, the term is likely to cover broader circumstances than those that amount to 'special circumstances'. Some examples may include:

  • personal circumstances, whether permanent or temporary, including poverty, age, domestic violence, financial difficulty, debilitating life events such as serious acute illness, language or literacy difficulties and cultural differences, which may excuse your client's conduct;
  • the relative gravity of the offending conduct; and
  • whether the offence is a first offence, or is the first offence committed in a time period determined by the agency (or first offence of a similar nature).

Supporting documentation

When making an application on a client's behalf, you should provide sufficient documentation to support the client's case. 

In the case of making an application to an enforcement agency for an internal review or to the Infringements Registrar for revocation of an enforcement order on the basis of special circumstances, it is essential that the supporting documentation provides adequate information about:

  • your client's circumstances (i.e. mental illness, substance dependence and / or homelessness); and
  • how the condition has resulted in him or her being unable to understand or control the conduct that constitutes the offence(s).

For applications made on the grounds of "exceptional circumstances", supporting documentation must establish that the conduct for which the infringement notice was served "should be excused" on the grounds of the client's exceptional circumstances.

If your client's "special circumstances" application relies on his or her mental health issue, intellectual disability or serious drug addiction, your client will generally require a letter or report from a GP or a psychiatrist.  Reports from psychologists will generally be accepted, but the Court notes that it is 'preferable' that a psychologist's report is accompanied by a report from a GP or psychiatrist.

Supporting documentation from a health professional, nurse or case manager is helpful, but not acceptable by itself unless it is co-signed by a doctor.

If your client relies on homelessness as a special circumstance, your client will need a letter or report from a case worker, social worker or housing support worker or another representative, from an agency funded under the Supported Accommodation Assistance Act 1994 (Cth) general practitioner or psychiatrist.

The documentation should be less than 12 months old (unless it is setting out details of a condition that does not change over time, such as an intellectual disability.)

A summary of the types of evidence required for special circumstances applications is available in this Magistrates' Court document.

In order to obtain these reports, you should put the request in writing and provide clear instructions of what information you need.  Below are template letters that you may use to make these requests for reports. 

You should request that any fees are waived due to the client's special circumstances and financial hardship.  If you have any issues with negotiating a waiver, please contact the Homeless Persons' Liaison Officer on 8636 4413.  

Getting medical reports for former Victoria Legal Aid clients

Victoria Legal Aid can check if they have medical (including psychological/psychiatric) reports, or other support material for Homeless Law clients that were formerly represented by Victoria Legal Aid. Homeless Law lawyers can send a very brief request along with a signed authority to the Melbourne Magistrates' Court Clerk. Victoria Legal Aid can then determine whether a grant of legal aid has been provided for a medical, psychiatric or psychological report. If not, then they will advise by return email. If so, they will let us know and recover the file from offsite (this usually takes 2-3 days), scan and send an electronic version of the reports or letters.

Advising your client about key considerations

When explaining the special circumstances process, please advise your client about the following key considerations before confirming their instructions:  

  • Guilty plea and criminal record. If your client instructs that they have special circumstances and that they would like to make an application for revocation on this basis, please advise them about the special circumstances process, including that, if that matter proceeds to court (which it likely will), it involves entering a guilty plea. Please also advise your client that findings of guilt can 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.
  • Notification of unsafe drivers. If we make an application for revocation 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) (see section 27 of the Road Safety Act 1986 (Vic) (please ensure you look at the most recent form of the legislation) and regulation 78(1) of the Road Safety (Drivers) Regulations 2009 (Vic) (please ensure you look at the most recent form of the legislation) which provide that a person may notify VicRoads if they are concerned about the ability of another person (licenced or learner) to drive). 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. Please note: If the client has refused or failed to undergo the medical review, VicRoads can vary, suspend or cancel their licence. We should make clients aware of this risk.
  • Demerit points. In relation to driving offences, please also advise your client that, to the extent that they have pending demerit points, these will be added to their record after the special circumstances 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.  See: https://www.vicroads.vic.gov.au/licences/demerit-points-and-offences/about-demerit-points
  • Excessive speeding and DUI. For infringements where withdrawal or revocation is not an option (ie. fines for excessive speeding or fines for driving under the influence of drugs or alcohol), please discuss other options with your client. These options may include confirming if a payment plan is manageable and if it is, identifying what amount your client is able to pay, and then applying for a payment order under section 76 of the Infringements Act 2006 (Vic). See: http://www.hlp.org.au/instalment/orders/variation