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.
Under s 3 of the IA, ‘special circumstances’ is defined as:
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:
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:
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.
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. If you have any issues with negotiating a waiver, please contact the Homeless Persons’ Liaison Officer at email@example.com.
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Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.