Timeframes – warrants, enforcement and expiry

Administrative sanctions can be applied after a notice of final demand is issued

If a notice of final demand has been issued, an enforcement warrant is not required for the Director of Fines Victoria to direct VicRoads to suspend or not renew your client’s vehicle registration or driver licence pursuant to s 89 of the Fines Reform Act 2014 (Vic) (FRA). Further, the Director of Fines Victoria can also direct VicRoads not to allow your client’s registration to be transferred into another person’s name and prohibit a new vehicle from being registered in your client’s name. This can happen in respect of infringement fines, court fines or registered collection and enforcement orders.

Similarly, the Director of Fines Victoria can make either an attachment of earnings direction or attachment of debt direction after a notice of final demand has been issued (before an enforcement warrant is issued). These directions have the effect of garnishing the wages or amounts in your client’s bank account in order to pay outstanding amounts against a registered infringement fine, court fine or registered collection enforcement order (see Part 7 of the FRA). If an attachment of earnings or debts direction is made, your client can no longer apply for a Work or Development Permit, make an FVS application or apply for enforcement review (see ss 10B(2)(b), 10O(b) and 32(4)(c) of the FRA . As such, it is important that your client takes action as soon as possible after being issued with a notice of final demand to preserve possible review avenues.

In addition to these Director imposed sanctions, if an enforcement warrant has been issued Police and the Sheriff have the power under s 140 of the FRA to remove your client’s number plates. This also can result in police ordering VicRoads to suspend your client’s registration pursuant to ss 142(b) and 143 of the FRA.

Note that if these enforcement actions occur, this does not mean that an enforcement warrant has been executed.

Removal of vehicle driver and vehicle sanctions

The Director of Fines Victoria may only direct VicRoads to remove the driver and vehicle sanctions under s 91 of the FRA if:

Full payment is made
A payment arrangement is entered into
An attachment of earnings or debt direction is made
For infringements, a successful application for enforcement review is made
Property sufficient to cover the outstanding amount is seized
The client is arrested
All warrants have been recalled and cancelled
The Director in its discretion considers the enforcement measures are no longer appropriate, including but not limited to, any impact that that sanction has on a third party (for example a dependent child or family member).

When will a person receive an enforcement warrant?

A registrar may issue an enforcement warrant under s 106(2) of the FRA upon application by the Director of Fines Victoria if either:

the client has received a notice of final demand and the client has failed to comply with the notice by either:
- defaulting in the payment of a registered fine as specified in the notice; or
- failing to take any other action specified in the notice within the time specified in the notice; or
the client has defaulted in the payment of a payment arrangement entered into under Part 5 of the FRA (note however that in most cases the enforcement will simply resume at the point in the enforcement lifecycle it was at when the payment arrangement commenced, see s 57(2)); or
the client failed to report as required under s 152(b) of the FRA to the community corrections centre specified in a community work permit imposed on the client; or
the client is subject to any other unsatisfied enforcement warrants that are in force.

What happens when an enforcement warrant is issued?

Pursuant to s 107 of the FRA, rr 8 and 9 of the Fines Reform Regulations 2017 (Vic) (FRR) and r 9 of the Infringement Regulations 2016 (Vic) (IR) when an enforcement warrant is issued, the warrant must specify that the following fees are payable in addition to the fine (fees as at 12 October 2018):

an enforcement warrant fee of 3.94 fee units ($56.93);
a penalty reminder notice fee of 1.74 fee units ($25.14); and
a collection fee of 9.01 fee units ($130.19).

If an enforcement warrant has been issued to your client, it is important to advise your client that pursuant to s119(1) of the FRA, an enforcement warrant cannot be executed unless your client has first been issued with a seven-day notice that has expired. In addition, if the person authorised to execute the enforcement warrant is the sheriff, a final demand for payment must be made before the warrant is executed (s 121(1)). Further under s 121(2) of the FRA, the sheriff is prohibited from executing a warrant if the client has:

made the first payment under a payment arrangement; or
has not rejected a proposed payment arrangement made under s 45(5) of the FRA; or
has applied for a payment arrangement which has not been determined; or
has applied for an enforcement review which has not been determined; or
is the subject of an application for a work and development permit which has not been determined; or
has applied for an attachment of earnings or debt direction, which has not been determined.

The only exception to this is where the sheriff has reasonable grounds to believe that property will be disposed of or removed prior to the warrant being executed. In that case, the sheriff can seize property prior to the expiry of the 7 day notice but only if a final demand for payment is made (s 120(1)).

It should be noted however that pursuant to s 106(3)(a) of the FRA, the obligation to issue a 7 day notice does not apply to enforcement warrants issued when a person fails to report under their Community Work Permit. Those warrants when issued authorise the sheriff or police to arrest a person and bring them before court within 24 hours to be dealt with according to law, subject to a direction that they be administratively arrested and bailed pursuant to ss 106(4) and (5) and 111 of the FRA.

What enforcement action can be taken once an enforcement warrant is issued?

Parts 11 and 12 of the FRA relating to the detention, immobilisation, seizure and sale of motor vehicles and the removal of number plates applies regardless of whether or not a seven-day notice has been served on your client (ss 126(1) and 139(1) of the FRA).

Parts 11 and 12 of the FRA authorise the sheriff or a police officer or a Commissioner to, without any further notice and regardless of whether the original fine was related to a driving or parking offence:

detain, immobilise, tow or seize your client’s car pursuant to ss 127, 128, 129 of the FRA
sell your client’s car after it is seized pursuant to s 132 of the FRA
remove number plates from your client’s car pursuant to s 140 of the FRA and, if the number plates are removed, the Director of Fines Victoria may direct VicRoads to suspend the registration of the car (if this has not already been done) under s 142;

Additionally, the Director of Fines Victoria may direct VicRoads at any time to not renew or suspend the driver licence or vehicle registration of your client pursuant to s 89 of the FRA.

If any of these enforcement actions is taken against your client, you should advise your client to contact you immediately so that you can take immediate steps to apply for enforcement review, apply for a Work and Development Permit, apply for a payment plan or pay the fine in full.

When does an enforcement warrant expire?

Pursuant to s 124 of the FRA an enforcement warrant remains in force until either:

the amount outstanding under the enforcement warrant is paid in full;
the enforcement warrant is recalled and cancelled under s 108 of the FRA on the application of the Director of Fines Victoria; or
the enforcement warrant is executed.

Even if the enforcement warrant is recalled and cancelled under s 108 of the FRA the registrar may issue a fresh enforcement warrant if the underlying fines or infringements are continuing (see s 108(3) of the FRA) unless otherwise directed by the Director of Fines Victoria.

You should advise your client of this risk and, when closing the matter, advise them to seek legal assistance immediately if they receive an enforcement and collection order, enforcement warrant or seven day notice in the future.

Not a lawyer?

Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.