In this section
Homeless Law clients often 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.
Under s 3A of the IA, ‘special circumstances’ is defined as:
The IA does not define what constitutes a ‘mental or intellectual disability, disorder, disease or illness’.
‘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:
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, is threatened or coerced by another family member, or in any other way controlled or dominated by another family member in such a way as to cause fear for the safety or wellbeing of themselves or another person. Under s 5(1)(b) of the FVPA, family violence can also include behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour included in s 5(1)(a). The meaning of family member is defined under s 8 of the FVPA.
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:
Other factors such as poverty or financial difficulty do not fall under the definition of ‘special circumstances’. If your client presents solely with these issues, your client should consider alternative avenues to address their fines.
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.
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:
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.
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 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.
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:
The IR Guidelines refer to section 57 of the Drugs, Poisons and Controlled Substances Act 1981 in defining volatile substances.
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:
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.’
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:
The IR Guidelines include the following examples:
The IR Guidelines also outline the parameters of the reformulated test for special circumstances. The new definition of special circumstances requires either:
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:
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:
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.
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:
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:
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:
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.
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