Enforcement review

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).

IMPORTANT TIMEFRAMES

An application for enforcement review cannot be made after the expiry of a 7 day notice. If your client presents with a 7 day notice, it is extremely important to make any enforcement review application before the notice expires, as after this, your client’s options are very limited.

(Note: For 7 day notices served prior to 31 December 2017, an enforcement review can still be applied for up until the warrant is executed.)

Grounds for enforcement review

The grounds on which an enforcement review can be made, are the same as those available for internal review.

The grounds for enforcement review are:

• there was a mistake of law (for example, because no offence was committed);
• there was a mistake of identity (for example, because your client did not commit the offence);
• the client has special circumstances (except if the special circumstances are family violence and your client has made a Family Violence Scheme Application);
• the conduct of the client should be excused having regard to any exceptional circumstances;
• that the person was unaware of the notice having been served and that service of the infringement notice was not served by personal service (‘person unaware’)

How to make an application for enforcement review

An application for enforcement review can be made either by your client or by a third party such as a lawyer on behalf of your client. An application for enforcement review can be made online, in person or by writing to the Director of Fines Victoria. Applications for enforcement review made via post, should be sent to:

Fines Victoria
PO Box 14487
Melbourne VIC 8001

The application must:

• be in writing;
• include the authority of the client;
• clearly state the grounds for review;
• must be accompanied by evidence such as a letter from a doctor, psychologist or housing worker; and
• provide current address for service;

(See s 32(3) FRA).

Your client will need to provide clear evidence that they did not commit the offence or had a valid reason for committing the offence or had mitigating circumstances. If your client is applying on the grounds of special circumstances, see this page for the specific information that your application should include.

After an application is submitted, Fines Victoria can ask your client for further information. If your client does not provide this information by the due date (including any extension granted), the Director of Fines Victoria can either accept the late information or make their decision without this further information (s 34 FRA).

If an application for enforcement review is urgent, and there is insufficient time to obtain the reports, you can apply to Fines Victoria for a three-month stay of enforcement while you collect supporting materials. Even where an extension of time is not expressly requested, Fines Victoria will also generally ask for more information if they are unable to assess the application and give you 14 days to respond.

While the Director of Fines Victoria is reviewing an enforcement application, any enforcement action that has already been applied before the application was received may continue, but no further enforcement action, that has not yet commenced can be applied. (s 36 FRA).

Timing and number of applications

An application must be made after the issuing of a Notice of Final Demand and until a 7-day notice expires, a land charge is recorded, an attachment of earnings or debt direction is made or a vehicle is seized under a vehicle seizure and sale notice. Therefore it is imperative to act quickly to submit an enforcement review application.

If the application is made on the basis that the client was unaware of the notice being served, it must be made within 14 days of the applicant becoming aware of the infringement notice (s 33(3) FRA.

A person can make:

• one application for enforcement review in relation to any one infringement offence (s 33(1) FRA) unless the application is made on the basis of special circumstances;
• if the application is made on the basis of special circumstances, two applications can be made (s 33(2) FRA).

When is the option to apply for enforcement review not available?

An application for enforcement review cannot be made in the following circumstances:

• after the expiry of a 7 day notice (unless the 7 day notice was issued prior to 31 December 2017) ; or
• if your client’s fines are in relation to an excessive speed, drink or drug-driving offence (see s 31 FRA), sections 89A to 89D of the Road Safety Act 1986 (Vic); sections 61A and 61BA of the Marine (Drug, Alcohol and Pollution Control) Act 1988 (Vic); or
• if your client’s fines relates to a safety work infringement (see s 95 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 (Vic));
• if your client’s fines are a registered court fine; or
• if the basis of your client’s special circumstances is family violence and your client has already made a Family Violence Scheme application.

An application using the ‘person unaware’ ground, cannot be made if:

• the infringement notice was personally served; or
• your client has not updated their authorised address with VicRoads within 14 days of moving (s 33(4) FRA); or
• if the offence falls within any of the legislation set out in s 31(2) FRA.

If your client has drink-driving, drug-driving or excessive speed infringements, your client is still eligible to apply for a waiver or reduction of fees and payment arrangement or extension of time to pay the outstanding fines, or a Work and Development Permit.

What happens if the application for enforcement review is successful?

If your client’s application for enforcement review is successful, the Director of Fines Victoria will:

• cancel the enforcement of the infringement fine; and
• within 21 days of making the decision, the Director will serve a written notice of cancellation on your client and the enforcement agency (s 37 FRA).

Within 90 days of receiving this notice of cancellation, the enforcement agency must:

• withdraw the infringement notice and take no further action; or
• withdraw the infringement notice and issue an official warning; or
• refer the fine to the Magistrates’ Court for hearing (note, referral of the fine to the Magistrates’ Court is not automatic, as it was under the old regime. The enforcement agency must ‘opt-in’ to this referral).

The enforcement agency must notify your client of its decision (s 38 FRA).

If the successful application for enforcement review was made on the grounds that your client was unaware of the notice being served:

• the registration of the fine will be cancelled;
• any additional fees and costs added to the infringement penalty will be waived;
• the matter will be referred back to the enforcement agency who may take further action (such as issuing an official warning, commence proceedings in the Magistrates’ Court, issue a new infringement notice or enter into a payment plan with your client) (s 38(2) FRA)

What happens if the application for enforcement review is unsuccessful?

If your client’s application for enforcement review is unsuccessful, the Director of Fines Victoria will commence or continue enforcement action. Within 21 days of making its decision, the Director must serve a written confirmation of the outcome of the review on the applicant and the enforcement agency (s 37 FRA).

Within 21 days of receiving written confirmation of the unsuccessful outcome, your client must:

• pay the infringement fine; or
• apply for a payment arrangement; or
• apply for a work and development permit (if eligible); or
• apply for the Family Violence Scheme (if eligible); or
• if application was based on special circumstances, apply for a second enforcement review based on special circumstances (noting that can apply for enforcement review based on special circumstances a maximum of two times).

(s 40 FRA)

There is no process for objecting to an enforcement review decision, but your client has a right to seek judicial review of the decision under administrative law.