Proving special & exceptional circumstances

Special circumstances, exceptional circumstances and supporting documentation

Homeless Law clients generally meet the definition of ‘special circumstances’ as defined under the Infringements Act 2006 (Vic) (IA) or ‘exceptional circumstances’, making them eligible to apply for an internal review (for infringements and reminders) or enforcement review (including where there is an enforcement warrant).

Your client may also be able to apply under the Family Violence Scheme (FVS).

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

What constitutes ‘special circumstances’?

Under s 3 of the 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) (DPCSA) 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 s 5 of the Family Violence Protection Act 2008 (Vic) (FVPA) 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 IA 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 and Regulation 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 r 7 of the Infringement Regulations 2016 (Vic) (IR). For the purposes of the IA, a person is homeless if either:

• 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) (SAAA); or
• the person has inadequate access to safe and secure housing within the meaning of s 4of the SSSA 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.

The meaning of ‘family violence’ under s 5 of the FVPA includes situations where a family member is subject to physical, sexual, emotional, psychological or economic abuse or is threatened or coerced by another family member.

It is important that applications for internal review or enforcement review on the basis of special circumstances satisfy the definition of ‘special circumstances’, which means 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.

Other factors such as poverty or financial difficulty do not fall under the definition of ‘special circumstances’. If your client presents with these issues, your client should consider referring to them in any internal review or enforcement review as they qualify as ‘exceptional circumstances’ and, if possible, explain how these circumstances excuse your client’s conduct.

What constitutes ‘exceptional circumstances’?

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).

Supporting documents

When making an application on your client’s behalf, you should provide sufficient supporting documents.

In the case of making an application to an enforcement agency for an internal review or to the Director of Fines Victoria for an enforcement review on the basis of special circumstances, it is essential that the supporting documents provide adequate information about:

• your client’s special circumstances (i.e. mental illness, substance dependence, homelessness and/or family violence); and
• how the client’s special circumstances resulted in them being unable to understand or control the conduct that constitutes the offence(s).

For applications made on the grounds of ‘exceptional circumstances’, supporting documents must establish that the conduct for which the infringement notice was served “should be excused” on the grounds of the client’s exceptional circumstances.

All supporting documents 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).

The Fines Online website has a general summary of the current accepted providers of supporting evidence for the different types of special circumstances, including family violence. We have discussed this in more detail below.

If your client’s ‘special circumstances’ application relies on their mental health issue or intellectual disability, your client will generally require a report from their general practitioner (GP) or psychiatrist. Reports from psychologists or psychiatric nurses will generally be accepted, but the Court has previously noted that it is ‘preferable’ for these reports to be accompanied by a report from a GP or psychiatrist. Supporting documents from other health professionals or caseworkers is also helpful, but not acceptable by itself unless it is co-signed by a doctor.

For an application relying on substance dependence, your client will need to provide a report from their GP, caseworker, psychiatrist, psychologist, or from their accredited drug treatment agency or counsellor.

If your client’s application relies on homelessness, your client will need a letter or report from a caseworker, social worker or housing support worker, another representative from an approved agency or recognised health or community welfare service provider (for example, agencies funded under the SAAA), general practitioner or psychiatrist.

For the ground of family violence as a special circumstance, your client will need to provide a report from their caseworker, social worker, financial counsellor, health professional, school principal or school welfare coordinator.

In order to obtain these reports or letters, 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.

You should also ask 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 at homelesslaw@justiceconnect.org.au.