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 s 22 of the Infringements Act 2006 (Vic) (IA).
An internal review may be requested on one or more of the following grounds:
Note that your client cannot apply for an internal review or have their infringement withdrawn if the infringement is for excessive speeding, drink-driving or drug-driving offences under ss 89A-89D of the Road Safety Act 1986 (Vic) (RSA). However, a client may be able to apply for an extension of time if they were unaware of the notice have been served and that service of the infringement notice was not by personal service under s 67 or s 89B of the RSA.
An enforcement agency may withdraw an infringement notice by serving a withdrawal notice at any time before the fines is registered with Fines Victoria. 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 (s 18 IA).
There is no express provision for a person to apply for withdrawal of the fine under s 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 s 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.
The application for internal review must:
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 cannot apply for an internal review however may be able to apply for enforcement review.
A client may request an internal review on the basis that they were unaware of the notice having been served and service of the infringement notice was not by personal service (s 22(1)(d) IA). An application on the ground of person unaware must be brought within 14 days of your client becoming aware of the infringement and must be accompanied by a written statement stating the grounds on which the decision should be reviewed.
If the application is made on this basis only, then the enforcement agency will just specifically review whether it is more likely that, more than 14 days before applying for review, the person was in fact aware that the infringement notice had been served. An enforcement agency will not consider this basis if the person did not update their authorised address (within the meaning of s 163A(3) IA) within 14 days of changing address: (s 22(4) IA). For many clients suffering homelessness, this will not be satisfied, in which case the client would be better off making an application for internal review on the basis of special or exceptional circumstances under s 22(1)(a) or (b) IA.
For more information see [6.6] of the Internal Review Guidelines Fines and Enforcement Services.
Applications on the grounds of special circumstances or exceptional circumstances should be in writing. The application should include the following information:
If your client is relying on homelessness as a special circumstance, you need to provide a letter from a case worker, or (preferably) a representative from an agency funded under the Supported Accommodation Assistance Act 1994 (Cth) (SAAA).
Each report should be signed and dated within the last 12 months, although older reports may be acceptable in the case of conditions that do not change over time (e.g. an intellectual disability).
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) (s 24 IA).
If the enforcement agency does not comply with these requirements, the infringement is considered to have been withdrawn (s 24(4) IA).
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 (s 23 IA). 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 enforcement agency confirms the decision to serve the infringement notice in relation to an application made on the basis of special circumstances, then the person served with the infringement notice must either:
However if the person does not take any of these options, enforcement will continue and the fine will be registered with Fines Victoria. You can then apply for an enforcement reviewon the basis of special circumstances.
If the agency makes a decision to grant the application on the basis that the person was unaware of the infringement notice being served more than 14 days before applying for internal review, then the person must, within 21 days of receiving the notice, either (s 25(5) IA):
However, if the agency makes a decision to refuse the application on the basis that the person was aware of the infringement notice being served, then the person will be served with a notice of the outcome of the review and be advised that the penalty must be paid within 14 days of receipt of notice of the outcome (s 25(6) IA).
If an application is made on grounds other than special circumstances, an enforcement agency under s 25(1) of the IA can decide to:
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 (s 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.
The Director of Fines Victoria has published guidelines for enforcement agencies setting out the purposes of internal review and obligations of enforcement agencies in performing the internal review function under s 53A IA.
It may be helpful to refer to these guidelines in any application for internal review as they step through the process and key considerations for enforcement agencies.
The Director’s Guidelines state that, in regards of internal enforcement agency review:
Decision makers may take a range of factors into account when applying the internal review grounds to the set of facts before them in the application.
Enforcement agencies may choose to structure the decision making process by producing a set of questions for decision makers to consider whether there is sufficient evidence to allow the application to be granted. These questions may be designed to meet administrative law requirements.
For example, a decision maker may consider:
Further, regarding applications for internal review on the basis of special circumstances, the Director’s Guidelines state that:
The applicant is required to demonstrate, that it is more probable than not, that the special circumstances resulted in their inability to understand that their conduct constitutes an offence, or that they are unable to control that conduct.
Decision makers should also consider the reasonableness of asking for particular information. For instance, proving homelessness is in effect proving a negative, that is proving you do not have something. This can be difficult to do and this difficulty of proof is a relevant factor in deciding the reasonableness of requiring written evidence.
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