Enforcement review for special circumstances

If your client has been served with a Notice of Final Demand, they may apply to the Director of Fines Victoria for a review of the decision of the enforcement agency to serve the infringement notice and enforce that notice under s 32 of the Fines Reform Act 2014 (Vic) (FRA).

The most common basis for enforcement review for Homeless Law clients is on the basis of ‘special circumstances’. Under s 3A of the Infringements Act 2006 (Vic) (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) where that condition contributes to the person having a significantly reduced capacity to:
  • understand that conduct constitutes an offence; or
  • control conduct that constitutes an offence;
• homelessness that contributes to the person having a significantly reduced capacity to control conduct which constitutes an offence; or
• family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (Vic) where the person is a victim of family violence and the family violence contributes to the person having a significantly reduced capacity being unable to control conduct which constitutes an offence; or
• Long-term circumstances experienced by the person that:
  • make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice; and
  • do not solely or predominantly relate to the person’s financial circumstances.

The definition of ‘special circumstances’ is discussed in further detail under Special circumstances, exceptional circumstances and supporting documentation.

How to make an application for enforcement review if the client has ‘special circumstances’

An application for enforcement review on the basis of special circumstances may be made by a person acting on the applicant’s behalf, such as a lawyer, case worker, parent or guardian, medical practitioner, financial counsellor or psychiatrist.

The application does not need to be accompanied by a statutory declaration. An application form can be downloaded from Fines Victoria.

The critical part of a special circumstances application is to satisfy the definition of ‘special circumstances’ under s 3A of the IA, in particular articulating the causal connection between the person’s condition and how that contributed to that person’s reduced capacity to understand and/or control the conduct that constitutes an offence.

As such, Homeless Law lawyers should write a letter accompanying the application form which explains 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 contributed to that person’s reduced capacity to understand or control the conduct that constituted the offences.

The below template letter provides an example of how this causal connection between a person’s condition and the offending conduct can be explained when applying for enforcement review on the basis of special circumstances.

If the special circumstances application relies on the long term circumstances category (s 3A(e) of the IA) Homeless Law lawyers should write an accompanying letter which explains that:

• The person is currently experiencing circumstances that are long-term in nature;
• The circumstances make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice; and
• The circumstances do not solely or predominantly relate to the person’s financial circumstances.

Other information that may be included in the cover letter accompanying the application for enforcement review includes:

• any rehabilitative or restorative treatment undertaken by the client;
• the client’s weekly income and expenses; and
• how payment of the outstanding amounts would exacerbate the client’s condition or cause further hardship.

It is also extremely important to provide support letters or reports for the application (see supporting documentation).

Advising your client about key considerations

Before making the application, make sure you give the client clear advice regarding key considerations such as the risks of going to court. Once the advice has been given to the client, you should ensure you have obtained their express instructions to lodge the application.

• Guilty plea and criminal record. If your client wants to make an application for enforcement review based on special circumstances, you must advise them that if the matter proceeds to court, it involves entering a guilty plea. Though this is less likely under the new fines system, enforcement agencies still have the option of taking the matter to court if enforcement review is successful. They have 90 days when Fines Victoria serves a notice of enforcement cancellation to decide whether to issue a charge and summons. This means that it is important to advise your client that findings of guilt may show up on criminal record checks if the enforcement agency proceeds to charge them following successful enforcement review. This will be particularly significant for clients with no previous criminal record, clients who may be seeking employment and clients with temporary visa status. Note that there is no risk of going to court for an internal review based on special circumstances.
• Notification of unsafe drivers. If you make an application for review on the basis of special circumstances for the client, the police, an enforcement agency or the court are likely to notify VicRoads of any condition disclosed in the application that may affect your client’s ability to drive (eg mental health concerns or substance dependence). This may prompt VicRoads to require tests to be completed to determine the client’s fitness to hold a licence (see section 27 of the Road Safety Act 1986 (Vic) and regulation 80(1) of the Road Safety (Drivers) Regulations 2019 (Vic)). VicRoads may then require your client to undergo a medical test or assessment (medical review) to confirm that your client can safely drive. The medical review process involves a client attending an appointment with their doctor and asking them to complete a VicRoads template report, within one month of receiving notification from VicRoads. You should make your client aware of the risk that if the client has refused or failed to undergo the medical review, VicRoads can vary, suspend or cancel their licence.
• Demerit points which have accrued for a road safety infringement can be removed if the infringement is withdrawn or where the client is found not guilty of the infringement. However, where your client is successful in proving special circumstances under an internal or enforcement review application, their demerit points will still accrue (ss 73(1)(bb) and s 78 Road Safety (Driver) Regulations 2019). Demerit points also accrue if your client pays for their fines, including by way of payment plan. If there are more than the allowed number of demerit points over a period of time, this may result in your client’s license being suspended. More information about demerit points is available from the  VicRoads’ website.
• Excessive speeding and DUI. For infringements where withdrawal or revocation is not an option (ie fines for excessive speeding (25km/h+) or fines for driving under the influence of drugs or alcohol), please discuss other options with your client. These options include:
  1. Making an application for waiver or reduction of fees under s 9of the FRA and making an application for a payment arrangement under s 42 of the FRA for the remaining amount (if a payment arrangement is manageable).
  2. Applying for a Work and Development Permit.