Infringements

This section sets out the information you should try to obtain from the client in the initial interview and in subsequent days.  It also provides some guidance about advice the client should be provided with at the initial interview (for example, regarding timeframes, urgency and potential options).

When you are attending clinics, you may want to take these checklists with you to make sure you get as much relevant information as possible:

• Checklist for taking instructions in infringement matters.

• Checklist for lawyers making a special circumstances application.

Instructions checklist

This instructions checklist provides guidance about the types of information you should try to obtain from the client at the initial interview.  You do not need to go through it in an exhaustive way, but it's a helpful prompt.  Often clients will not have clear memories or records of these details, but piece together what you can. 

1. Personal information about the client

• Full name (including middle name)
• Any previous names (including spelling variations) or aliases
• Current address and any contact phone numbers
• Previous address(es) (particularly those that might have been given by client when fine was incurred)
• Date of birth
• Driver's licence number
• Photocopy of identification documents (ie HealthCare card, driver's licence, Medicare card)
• A signed Authority to Act form
• Alternative contact details (relatives, friends, etc)

   

 2. Details of any fines

• Obtain copies of the fines and/or details as to where, when and what types of fines they may have incurred (ie infringement notices or court-imposed fines).
• Obtain copies of any correspondence and court documents relating to the infringements or fines.
• Determine the stage that each infringement is at (especially if the client has received any Seven Day Notices or whether the Sheriff has visited the client in regards to the infringements).
• Determine all relevant dates (including court dates that the client has attended or are coming up) for each fine. Ensure you comply with relevant timeframes and legislation relating to the infringements.
• If the fine is a court-imposed fine, determine if the client attended the hearing.

• Confirm with the client whether they admit to the commission of the offences (and if so, any factors that are relevant to the client committing the offences) or if they have any other valid excuse.

3. Elements of a special circumstances application or payment plan application

Generally, Homeless Law clients meet the definition of special circumstances and so you should ensure that you obtain all the information you need to apply for an internal review (for infringements and reminders) or revocation (for enforcement orders/warrants) on the basis of special circumstances.  If your client is relying on special circumstances, it means that your client is admitting to committing the offence and pleading guilty.

• Does the client have or has the client previously had the following:
  • ­a mental or intellectual disability, disorder, disease or illness; ­
  • a serious addiction to drugs, alcohol or other volatile substance; or
  • homelessness (which includes the client living in crisis accommodation, transitional accommodation or having inadequate access to safe and secure housing)?
• Did the client suffer from these conditions or circumstances at the time the offences were committed?
• Did they result in the client being unable to understand that his or her conduct constituted an offence, or to control that conduct? If so, how?
• If so, obtain details of the nature of the condition, the status of the condition at the time of the offences, the current status of the condition and any steps taken to address the condition (such as rehabilitative treatment).
• Obtain names and contact details of doctor or psychiatrist or psychologist treating the client and obtain client's consent to contact them with a request for a letter or report.
• Obtain names and contact details of other health care workers, social workers, housing workers, support workers, counsellors treating the client and obtain client's consent to contact them with a request for a letter or report.
• Has the client been taking medication to treat any mental health condition (eg anti­depressants)?
• If the client had or has problems with drugs or alcohol, has the client participated in any rehabilitation programs or is the client planning to undertake a program to address these problems?
• Obtain details of the client's weekly income and expenses (such as accommodation, food, electricity, gas, telephone, transport, medical, personal and miscellaneous expenses), assets and debts.
• What is the client's housing history? Has the client spent time in crisis centres, boarding homes, friends' homes, on the streets?
• Was the client dealing with any other life issues at the times the fines were incurred (eg relationship break up, physical/sexual abuse)?

Initial advice at the clinic

At the initial consultation, you should make sure that you provide your client with on-the-spot advice about the relevant timeframes, risks (including of enforcement) and possible options available (see step-by-step guide).

Obtaining further details of fines and infringements

In most cases, clients do not present complete documentation in respect of fines and it is not possible to obtain copies of the original infringement notice. 

If the client does provide copies of the infringement notice, it will contain details about:

• the offence;
• the infringement number;
• the name and address of the person presumed to have committed the offence;
• the relevant enforcement agency;
• the vehicle registration number (if relevant);
• the date the notice was issued, the time, date and place the offence occurred;
• the amount of the penalty;
• how to pay the penalty;
• the time limit of the payment (which must be at least 28 days from the date it is issued);
• a warning about further enforcement options and further costs that can be applied if the fine is not paid within the stated time limit; and
• other options for dealing with the fine including applying for a review or entering into a payment plan.

Once you have collated all the information and documentation you can from the client you should contact the Infringements Registrar requesting details of all outstanding fines. 

The Infringements Registrar is generally able to provide a record of enforcement orders, open court fines and infringement warrants, as well as a copy of certain infringements and penalty reminder notices.  You should check with the Infringements Registrar if there are particular agencies that they cannot provide the details of and contact those enforcement agencies directly. 

You may be able to make a request over the telephone (after providing a copy of your Authority to Act) to obtain these details, however, you may need to put the request in writing, in which case you can use the below templates.   

• Letter to enforcement agency seeking details of fine
• Letter to Infringements Court seeking details of fine

The Infringements Registrar will generally respond to such a request within four weeks with details of all outstanding enforcement orders, infringement warrants and court-imposed fines.  An example of a list of outstanding infringements is available here. You will notice on the letter from the Infringements Registrar that each matter has an option code.  Option code A and B indicates infringement court matters and code C and D indicates open court fines.  Option code D indicates that there is a warrant to imprison. 

Contact details

For speeding, red-light and tolling fines and handwritten fines (which refers to fines issued on the spot or fines attached to a vehicle by Victoria Police or VicRoads but excludes parking fines), your client can obtain details of his/her outstanding fines and the stage that they are at online by filling in the required fields on the www.fines.vic.gov.au website.  Your client cannot, however, obtain details of parking and local council fines and public transport fines online and must contact the enforcement agency directly.

The contact details of the enforcement agencies that our clients commonly receive fines from and the Infringements Registrar are below:

• Victoria Police - Traffic, crime and other fines (including begging or drunk in public)
• Department of Economic Development, Jobs, Transport and Resources - public transport fines
• Local councils - parking fines and some public space offences
• Infringements Registrar - enforcement orders, infringement warrants and court imposed fine

Advising the client of their options

Once you have obtained details of all of the outstanding fines, you should contact the client to advise him or her of all outstanding fines and their options.  Depending on the circumstances of the client, the best way to communicate this advice may be either by telephone, face-to-face or by letter.   Once you have advised a client of their options, you must obtain their instructions on how to proceed. 

If your client has already provided you with general instructions on how to proceed, you should then contact the client to advise him or her of all outstanding infringements and confirm his or her instructions. 

Generally, Homeless Law clients meet the definition of special circumstances and so will instruct you to seek internal review (for infringements and reminders) or revocation (for enforcement orders/warrants) on the basis of these special circumstances. Refer to the comments in this table regarding the current limitations of the internal review process. 

For fines where withdrawal or revocation is not available (for example, open court fines or fines for excessive speeding or driving under the influence of drugs or alcohol), other options will need to be discussed with the client (including, for example, establishing if a payment plan is feasible and, if it is, identifying what amount they are able to pay). 

Advising your client about key considerations

When explaining the special circumstances process, please advise your client about the following key considerations before confirming their instructions:  

• Guilty plea and criminal record. If your client instructs that they have special circumstances and that they would like to make an application for revocation on this basis, please advise them about the special circumstances process, including that, if that matter proceeds to court (which it likely will), it involves entering a guilty plea. Please also advise your client that findings of guilt may show up on criminal record checks. This will be particularly significant for clients with no previous criminal record, clients who may be seeking employment and clients with temporary visa status.
• Notification of unsafe drivers. If we make an application for revocation on the basis of special circumstances for the client, the police 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). See section 27 of the Road Safety Act 1986 (Vic) (please ensure you look at the most recent form of the legislation) and regulation 78(1) of the Road Safety (Drivers) Regulations 2009 (Vic) (please ensure you look at the most recent form of the legislation) which provide that a person may notify VicRoads if they are concerned about the ability of another person (licenced or learner) to drive. 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 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. Please note: If the client has refused or failed to undergo the medical review, VicRoads can vary, suspend or cancel their licence. We should make clients aware of this risk.
• Demerit points. In relation to driving offences, please also advise your client that, to the extent that they have pending demerit points, these will be added to their record after the special circumstances hearing. If there are more than the allowed number of demerit points over a period of time, this may result in your client’s licence being suspended. VicRoads about demerit points.
• 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 may include confirming if a payment plan is manageable and if it is, identifying what amount your client is able to pay, and then applying for a payment order under section 76 of the Infringements Act 2006 (Vic).