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.
