Apply for an infringement review

Applications for internal review that are made on the ground of contrary to law should (where appropriate) be accompanied with supporting evidence. This may include photographs of parking signage, witness statements or other evidence that goes to establishing facts.

For applications made on the grounds of contrary to law, the following options are available to the applicant if the application is refused:

• pay the infringement and any prescribed costs by the due date
• where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review 
• apply to the enforcement agency for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court)
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.

Applications for internal review on the ground of mistaken identity should (where appropriate) be accompanied by supporting evidence. Examples of supporting evidence for mistake of identity include the applicant’s birth certificate, driver’s licence or passport which shows:

• a different person than the one who received the infringement notice in the applicant’s name, or
• evidence that the applicant could not have committed the conduct because they could not have been in the relevant location.

An enforcement agency may make the following decision on reviewing an application for internal review based on the grounds of mistake of identity:

• confirm the decision to serve an infringement notice
• withdraw the infringement notice and serve an official warning
• withdraw the infringement notice
• withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as applicable)
• in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
• waive all or any prescribed costs, or
• approve a payment plan.

In some cases, it may be appropriate to do a combination of the actions above, in so far as that is possible.

For applications made on the grounds of mistake of identity, the following options are available to the applicant if the application is refused:

• pay the infringement and any prescribed costs by the due date
• where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
• apply to the enforcement agency for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as applicable)
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.

The Infringements Act defines special circumstances in relation to a person as:

• a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness contributes to the person having a significantly reduced capacity —
  
  (i) to understand that conduct constitutes an offence; or
  (ii) to control conduct that constitutes an offence; or
• a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981 where the serious addiction contributes to the person having a significantly reduced capacity —
  
  (i) to understand that conduct constitutes an offence; or
  (ii) to control conduct which constitutes an offence; or
• homelessness determined in accordance with the prescribed criteria (if any) where the homelessness 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 (External link) where the person is a victim of family violence and family violence contributes to the person having a significantly reduced capacity to control conduct which constitutes the offence
• circumstances experienced by the person that
  
  (i) are long-term in nature; and
  (ii) make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice under this Act or the Fines Reform Act 2014 (External link); and
  (iii) do not solely or predominantly relate to the person's financial circumstances.

These definitions are expanded upon below.

Mental disability, disorder, disease or illness

In accordance with section 4 of the Mental Health Act 2014 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:

• a total or partial loss of a person’s mental functions, or
• a disorder, disease or illness that affects a person’s thought processes, perception of reality, emotions, or judgement, or that results in disturbed behaviour.

Examples of mental illnesses include, but are not limited to:

• 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.

Intellectual disability, disorder, or disease

In accordance with the definitions of ‘disability’ and ‘intellectual disability’ in section 3 of the Disability Act 2006 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 coexistence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, which became manifest before the age of 18 years, or
• cognitive impairment, including a neurological condition or acquired brain injury, or a combination of both, which:
  is, or is likely to be, permanent, and
  causes a substantially reduced capacity in at least one of the areas of self-care, self-management, or mobility.[46]

Examples of cognitive or intellectual disabilities include, but are not limited to:

• autism spectrum disorder
• dementia
• motor neurone disease
• Parkinson’s disease
• stroke
• Huntington’s disease, and
• acquired brain injury.

Serious addiction to drugs, alcohol or volatile substance

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:

• tolerance, as defined by either of the following:
  a need for markedly increased amounts of the substance to achieve intoxication or the desired effect, or
  markedly diminished effect with continued use of the same amount of the substance.
• withdrawal, as manifested by either of the following:
  the characteristic withdrawal syndrome for the substance, or
  the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.
• the substance is often taken in larger amounts or over a longer period than intended.
• there is a persistent desire or unsuccessful efforts to cut down or control substance use.
• a great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects.
• important social, occupational, or recreational activities are given up or reduced because of substance use.
• the substance use is continued despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance (for example, current cocaine use despite recognition of cocaine-induced depression or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

Volatile substance – definition

Section 57 of the Drugs, Poisons and Controlled Substances Act 1981 defines volatile substances as:

• plastic solvent
• adhesive cement
• cleaning agent
• glue
• dope
• nail polish remover
• lighter fluid
• gasoline
• any other volatile product derived from petroleum, paint thinner, lacquer thinner, aerosol propellant, or anaesthetic gas, and
• any substance declared volatile by the Governor in Council from time to time.

Homelessness

The criteria for determining if a person is homeless is prescribed by the Infringements Regulations.

A person is considered homeless if they —

• are living in crisis accommodation, or
• are living in transitional accommodation, or
• are living in any other accommodation provided under the Supported Accommodation Assistance Act 1994 (Cth), or
• have inadequate access to safe and secure housing as defined in section 4 of the Supported Accommodation Assistance Act 1994 (Cth).

Common examples include where a person is: 

• without conventional accommodation, for instance, sleeping in parks or on the street, squatting, living in cars or in improvised dwellings
• moving from one form of temporary accommodation to another ­ for example, refuges, emergency hostel accommodation, or temporary space in the homes of family and friends
• living in temporary accommodation because of unsafe living conditions (such as family violence) or inability to afford other housing
• living in a caravan park due to their inability to access other accommodation, or
• living in boarding houses on a medium to long-term basis.

Family violence

The definition of special circumstances includes a person who is a victim of family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (FVPA).

‘Family violence’ is:

(a) behaviour by a person towards a family member of that person if that behaviour:

• (i) is physically or sexually abusive
• (ii) is emotionally or psychologically abusive
• (iii) is economically abusive
• (iv) is threatening
• (v) is coercive
• (vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person, or

(b) causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

‘Family violence’ also includes the following behaviour:

• assaulting or causing personal injury to a family member or threatening to do so
• sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour
• intentionally damaging a family member’s property, or threatening to do so
• unlawfully depriving a family member of the family member’s liberty, or threatening to do so, or
• causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

Behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.

The Royal Commission into Family Violence report,[49] tabled in Parliament on 30 March 2016, 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.

In making recommendations 112 and 113, the Royal Commission considered that family violence arose in circumstances where:

• victims committed infringement offences (including parking and traffic offences) while experiencing family violence (for example, escaping violence), or
• perpetrators of family violence incurred infringements while driving a vehicle registered in the victim’s name and the victim was unable to nominate due to safety fears.

Long term condition/circumstances making it impracticable to deal with the fine

A person will be considered to have conditions or circumstances which are long term in nature and which make it impracticable for them to pay or otherwise deal with the fine in a very narrow category of cases.

This sub-ground of ‘special circumstances’ is intended to apply only to a very small cohort of fine recipients who have long-term and extremely serious circumstances that:

• may not have been present at the time of offending, and
• are particularly disabling or incapacitating in nature, and
• result in the person being unable to pay or otherwise deal with their infringement fine.

The legislative test excludes any circumstances that solely or predominantly relate to the person's financial circumstances. The infringements system contains other mechanisms for dealing with financial hardship, including payment plans, payment arrangements and the work and development permit scheme.

Examples include but are not limited to:

• a person undergoing long term involuntary mental health care, for example a Community Treatment Order or a period of involuntary inpatient treatment, that makes them unable to attend courses, treatment, or counselling, or to pay
• a person with a severe physical or intellectual disability that makes them unable to attend courses, treatment, or counselling, or to pay
• people who are sleeping rough, isolated and highly transient, and are unlikely to resolve their circumstances in the foreseeable future, and are unable to deal with their fine in any way.

An enforcement agency may make the following decision upon reviewing an internal review based on special circumstances:

• confirm the decision to serve the infringement notice[56]
• withdraw the infringement notice and serve an official warning, or
• withdraw the infringement notice.

Enforcement agencies should also note the power under section 17 of the Infringements Act to refer a matter to the Magistrates’ Court. This power must be exercised before the fine is registered with the Director, Fines Victoria (or where it is a non-registerable matter before the expiry of the date for commencing proceedings).

This power does not apply to infringement notices relating to offences to which the provisions listed in section 17(2) apply. The legislation that establishes those offences has separate processes for referring those matters to court.

For infringement notices relating to alleged offences by children, agencies wishing to exercise this power must do so before an enforcement order is issued under Schedule 3 of the Children, Youth and Families Act 2005 (External link) Where the infringement notice matter cannot be registered under that Schedule, the time limit on exercising the power is before the expiry of the period for commencing proceedings in relation to that matter.

For applications made on the ground of special circumstances, the following options are available to the applicant where a decision maker refuses the application and confirms the infringement:[57]

• pay the infringement
• apply for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.[58]​​​​

If an enforcement agency decides to refuse an application for internal review that has been made on the basis of special circumstances relating to family violence, the notification letter to the applicant should set out all the options available to the applicant, including their ability to apply to the Director, Fines Victoria under the Family Violence Scheme (FVS). See section 6.8: Family Violence Scheme (FVS) for further information about the FVS.

Applications for internal review made on the grounds of exceptional circumstances should (where appropriate) be accompanied by supporting evidence.

Decision makers can take any matter a reasonable person would consider as relevant information into account.

Examples of supporting evidence could include:

• medical evidence from medical practitioners
• invoices or receipts
• statutory declarations or affidavits
• witness statements
• photographs
• travel documentation
• police statements or records.

An enforcement agency may make the following decision after reviewing an application for internal review based on the grounds of exceptional circumstances:

• confirm the decision to serve an infringement notice
• withdraw the infringement notice and serve an official warning
• withdraw the infringement notice
• withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as appropriate)
• in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
• waive all or any prescribed costs, or
• approve a payment plan.

In some cases, it may be appropriate to do a combination of the actions above.

A person is responsible for their infringement fine even if they have been declared, or are seeking to be declared, bankrupt. A person who is declared bankrupt retains their rights to deal with the infringement notice including submitting a nomination statement or applying for internal review.

When a company is experiencing financial difficulties, it may be placed into external administration or liquidation. Companies that are in liquidation or under external administration may apply for internal review of their infringement fines.

An enforcement agency may consider a person’s bankruptcy status, or a company’s financial status, as evidence of financial hardship. It is also open to an enforcement agency to include a person’s bankruptcy status or a company’s financial status as a relevant consideration in any internal financial hardship policy that the enforcement agency may choose to implement.

Enforcement agencies should also consider the following:

• For individuals: if an individual is experiencing financial hardship and is unable to pay their outstanding fines, enforcement agencies should assist the applicant, where appropriate, to negotiate a payment plan. It will be up to the review officer to decide whether a payment plan is appropriate in a bankrupt person’s particular circumstances.
• For companies in liquidation or companies under external administration: enforcement agencies should require that these applications for internal review may only be made by the liquidator or administrator.

Once an insolvent company is deregistered, it ceases to exist, and infringement fines cannot be recovered. Internal review officers should complete an online ASIC search on a company to determine the company’s registration status before processing any application in the name of a company. For more information, visit the ASIC website (External link)

Applications for internal review made on the grounds of person unaware should (where appropriate) be accompanied by supporting evidence. For example, copies of date-stamped passports, boarding passes, removalist invoices and mail theft reports made to Victoria Police.

Where an enforcement agency grants an internal review application on the ground of person unaware, the applicant may:[62]​​​​​​

• pay the infringement
• apply for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• apply for a review of the decision to serve an infringement offence under section 22(1)(a), (b) or (c) of the Infringements Act
• nominate another person for the infringement offence (in the case of traffic or parking offences)
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on their behalf.[63]

If an application on the ground of person unaware is refused, the applicant must pay the infringement amount and prescribed costs (within 14 days of receiving the refusal notice).[64] ​​​​The applicant will have the same alternative payment options available to them as are available for other grounds of review (that is, payment plans or arrangements, court referral or work and development permits (if eligible).

For more information, visit the Work and development permit scheme page, or contact the WDP team:

Email: WDP@justice.vic.gov.au (External link)

Phone: 1300 323 483

Hours: 9.00am to 4.00pm
Monday to Friday (except public holidays)

To help decide if the FVS is a suitable option, a person may wish to seek legal advice from a lawyer or by contacting a local community legal centre via the Federation of Community Legal Centres (External link) or Victoria Legal Aid (External link)

For more information, visit the Work and development permit scheme page, or contact the FVS team:

Email: fvs@justice.vic.gov.au (External link)

Phone: 1300 019 983

Hours: 9.00am to 4.00pm
Monday to Friday (except public holidays)