Proving special & exceptional circumstances

New Internal Review Guidelines (IR Guidelines) have been produced by the Department of Justice and Community Safety (introduced in August 2022) which provide guidance on the way the Department interprets categories of special circumstances. The Guidelines were developed to guide internal review, not enforcement review, however, it is likely they are equally applicable in terms of how Fines Victoria will assess enforcement review applications.

Mental disability, disorder, disease or illness

The IR Guidelines specify that, in accordance with s 4 of the Mental Health Act 2014 (Vic) and the definition of ‘disability’ contained in the Disability Discrimination Act 1992 (Cth) a mental disability, disorder, or disease or illness means a diagnosed medical condition that is characterised by a disturbance of thought, mood, perception, or memory. This may include:

• a total or partial loss of a person’s mental functions; or
• a disorder, disease or illness that affects a person’s thought processes, perception of reality, emotions, or judgment, or that results in disturbed behaviour.

The IR Guidelines include an inexhaustive list of examples including bipolar disorder, depression and anxiety, psychosis, schizophrenia, severe mood disorder, antisocial personality disorder, borderline personality disorder, post-traumatic stress disorder, and attention deficit and hyperactivity disorder.

Intellectual disability, disorder, or disease

The IR Guidelines specify that in accordance with the definitions of ‘disability’ and ‘intellectual disability’ in s 3 of the Disability Act 2006 (Vic) and the Disability Discrimination Act 1992 (Cth), an intellectual disability, disorder or disease means a disorder or malfunction that results in a person learning differently to a person without the disorder or malfunction. This includes:

• the coexistence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, which became manifest before the age of 18 years, or
• cognitive impairment, including a neurological condition or acquired brain injury, or a combination of both, which:
  • is, or is likely to be, permanent, and
  • causes a substantially reduced capacity in at least one of the areas of self-care, self-management, or mobility.

The IR Guidelines include an inexhaustive list of examples including autism spectrum disorder, dementia, motor neuron disease, Parkinson’s disease, stroke, Huntington’s disease, and acquired brain injury.

Serious addiction to drugs, alcohol or volatile substance

The IR Guidelines state that a person is considered to have a serious addiction to drugs, alcohol or volatile substances if that person has ‘a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring any time in the same 12-month period:

• tolerance, as defined by either of the following:
  • a need for markedly increased amounts of the substance to achieve intoxication or the desired effect, or
  • markedly diminished effect with continued use of the same amount of the substance.
• withdrawal, as manifested by either of the following:
  • the characteristic withdrawal syndrome for the substance, or
  • the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.
• the substance is often taken in larger amounts or over a longer period than intended.
• there is a persistent desire or unsuccessful efforts to cut down or control substance use.
• a great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects.
• important social, occupational, or recreational activities are given up or reduced because of substance use.
• the substance use is continued despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance (for example, current cocaine use despite recognition of cocaine-induced depression or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).’

The IR Guidelines refer to section 57 of the Drugs, Poisons and Controlled Substances Act 1981 in defining volatile substances.

Homelessness

The IR Guidelines refer to the Infringement Regulations to outline the criteria to determine if a person is homeless. The IR Guidelines list a number of common examples of homelessness, including where a person is:

• without conventional accommodation, for instance, sleeping in parks or on the street, squatting, living in cars or in improvised dwellings
• moving from one form of temporary accommodation to another for example, refuges, emergency hostel accommodation, or temporary space in the homes of family and friends
• living in temporary accommodation because of unsafe living conditions (such as family violence) or inability to afford other housing
• living in a caravan park due to their inability to access other accommodation, or
• living in boarding houses on a medium to long-term basis

Family violence

The IR Guidelines refer to the Family Violence Protection Act 2008 in defining a person who is a victim of family violence. The IR Guidelines also refer to the 2016 Royal Commission into Family Violence, and note that the Commission, ‘recognised the difficulties faced by victims within the infringements framework and considered that there are a range of car-related debt issues that arise in circumstances of family violence.’

Long term conditions/circumstances

The IR Guidelines provide guidance on when a person will be considered to have long term conditions or circumstances making it impracticable for them to pay or otherwise deal with the fine. The IR Guidelines state that this category is intended to apply to fine recipients who have ‘long-term and extremely serious circumstances that:

• may not have been present at the time of offending, and
• are particularly disabling or incapacitating in nature, and
• result in the person being unable to pay or otherwise deal with their infringement fine.’

The IR Guidelines include the following examples:

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

Agency considerations

The IR Guidelines also outline the parameters of the reformulated test for special circumstances. The new definition of special circumstances requires either:

1. a connection or nexus between the special circumstances category and the offending behaviour; or
2. the existence of a long-term condition that makes it impracticable for the person to deal with their fine.

According to the IR Guidelines, as (1) above requires the relevant condition or circumstances to have contributed to the applicant having a significantly reduced capacity to either understand the conduct constituting the offence or control that conduct, the condition or circumstance needs to be only a factor or cause, but need not be the only factor or cause, resulting in a reduced ability to control or understand the behaviour. This also allows an applicant to have some capacity to control or understand their behaviour, as long as the condition/circumstances significantly or considerably reduced that capacity.

The IR Guidelines include some examples of this, including:

• the applicant overstaying in a parking spot while sleeping in a car because the applicant was experiencing homelessness;
• the applicant not realising an offence was being committed because their mental health condition was triggered in the situation; and
• the applicant failing to vote or complete a census because the applicant was experiencing homelessness and did not receive correspondence about an election or the census.

In establishing a long-term condition or circumstances in (2) above, the IR Guidelines state that the applicant’s condition or circumstances:

‘should be persistent, continuing indefinitely or for the foreseeable future, or continuing for an extended period of time (for example, a number of years). For a circumstance to be long-term in nature it is not required to be permanent. The condition may not have been present at the time of the offending, and it does not have to be linked to the offending.’

Additionally, the IR Guidelines state that the condition or circumstance must be linked to the applicant’s impracticability to deal with the fine, and ‘impracticable’ is to have its ordinary definition. This means the condition or circumstance needs to be ‘particularly disabling or incapacitating in nature’. The IR Guidelines apply the ordinary definition of ‘disabling’, and outline that the disabling effect of the condition or circumstance must involve it ‘impact[ing] a person’s ability to deal with their fines but is not limited to a ‘disability’’. The IR Guidelines outline the following examples:

• a person cannot undertake WDP activities because they are unable to participate in relevant activities
• a person does not have capacity to instruct a lawyer, financial counsellor or advocate to act on their behalf
• a person cannot keep track of or manage their fines because of the long-term, severe condition or circumstance.

Financial circumstances can be considered in this assessment, but the long-term condition or circumstance itself must be the main cause of the incapacity to deal with the fine.

Evidentiary requirements

The IR Guidelines outline the required evidence to establish specific categories of special circumstances. In establishing a long-term condition or circumstances, the IR Guidelines state that a variety of relevant professionals could provide a report to establish the ‘severe or debilitating condition/circumstances’, and the following information may support the application:

• the professional’s qualification and relationship and the period of engagement;
• a summary of the applicant’s circumstances;
• whether the condition or circumstance is long-term; and
• whether, in the opinion of the practitioner, the condition or circumstances makes it impracticable for the applicant to deal with their infringement.

Along with such a report, evidence that the applicant receives assistance through the National Disability Insurance Scheme or a Disability Support Pension may also support the application.

Under s 22(1)(c) of the IA and under s 32(1)(c) of the FRA, a person is eligible to apply for internal or enforcement review if they believe 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. 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, 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).