Infringements

Infringements

Cancel Loading...

Apply for internal review and/or withdrawal by enforcement agency

Internal Review

You may apply to the relevant enforcement agency on behalf of your client for a review of the decision to serve the infringement notice pursuant to s 22 of the Infringements Act 2006 (Vic) (IA).

An internal review may be requested on one or more of the following grounds:

  • the decision was contrary to law (for example, because no offence was committed) or involved a mistake of identity (for example, because your client did not commit the offence);
  • 'special circumstances' apply to the person; or
  • the conduct for which the infringement notice was served should be excused on the ground of exceptional circumstances; or
  • 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’).

Note that your client cannot apply for an internal review or have their infringement withdrawn if the infringement is for excessive speeding, drink-driving or drug-driving offences under ss 89A-89D of the Road Safety Act 1986 (Vic) (RSA).  However, a client may be able to apply for an extension of time if they were unaware of the notice have been served and that service of the infringement notice was not by personal service under s 67 or s 89B of the RSA.

Withdrawing infringement notice

An enforcement agency may withdraw an infringement notice by serving a withdrawal notice at any time before the fines is registered with Fines Victoria.  The enforcement agency may do this on the ground that an official warning should be served on the person rather than an infringement notice, proceedings are to be commenced or that the matter should be abandoned (s 18 IA). 

There is no express provision for a person to apply for withdrawal of the fine under s 18. Accordingly, in many cases it may be more appropriate to apply for internal review of the decision to serve an infringement notice. However, given that the grounds for withdrawal differ between the two provisions, it may be useful to request withdrawal pursuant to s 18, either in addition to, or instead of an application for internal review, depending on what grounds for withdrawal are relevant to the client's circumstances.

Making the application for internal review

The application for internal review must:

  • be in writing;
  • specify the grounds on which the application is made;
  • provide the client's address for service of the notice; and
  • be made before the infringement notice is registered with Fines Victoria.

The application should also include any supporting documentation.

The contact details of the review agency should be on the infringement notice (on the back of the fine).  Only one application can be made in relation to an infringement offence (i.e. if an application is made and rejected, another application cannot be made).

Here is a sample application to an issuing agency for internal review and/or withdrawal of an infringement, on the basis of special circumstances:

    If the fine has progressed to enforcement stage, your client cannot apply for an internal review however may be able to apply for enforcement review.

    ‘Person unaware’

    A client may request an internal review on the basis that they were unaware of the notice having been served and service of the infringement notice was not by personal service (s 22(1)(d) IA). An application on the ground of person unaware must be brought within 14 days of your client becoming aware of the infringement and must be accompanied by a written statement stating the grounds on which the decision should be reviewed. 

    If the application is made on this basis only, then the enforcement agency will just specifically review whether it is more likely that, more than 14 days before applying for review, the person was in fact aware that the infringement notice had been served.  An enforcement agency will not consider this basis if the person did not update their authorised address (within the meaning of s 163A(3) IA) within 14 days of changing address: (s 22(4) IA). For many clients suffering homelessness, this will not be satisfied, in which case the client would be better off making an application for internal review on the basis of special or exceptional circumstances under 22(1)(a) or (b) IA.

    Making an internal review application based on special circumstances or exceptional circumstances

    Applications on the grounds of special circumstances or exceptional circumstances should be in writing. The application should include the following information:

    • A detailed explanation of your client’s circumstances to provide a background as to why the infringement notice (or registered infringement fine) should be cancelled.
    • Details of any mental illness or intellectual disability, or any drug or alcohol addiction, housing status (particularly if your client has been homeless) or family violence that may have resulted in your client being unable to understand that the conduct constituted an offence or made them unable to control the conduct. Examples of details include the nature of the condition, the status of the condition at the time of the offence, the current status of the condition, steps taken to address the condition (e.g. rehabilitative treatment) and, crucially, the link between the condition and the offence.
    • Copies of recent reports written by relevant health, housing and other workers (e.g. a case worker, social worker, doctor, psychiatrist) that support the application. These reports should discuss the relevant special circumstances relied upon, and the way in which the relevant circumstances contributed towards the fines.

    If your client is relying on homelessness as a special circumstance, you need to provide a letter from a case worker, or (preferably) a representative from an agency funded under the Supported Accommodation Assistance Act 1994 (Cth) (SAAA).

    Each report should be signed and dated within the last 12 months, although older reports may be acceptable in the case of conditions that do not change over time (e.g. an intellectual disability).

    • Details of your client’s weekly income and expenses (e.g. accommodation, food, electricity, gas, telephone, transport, medical and miscellaneous expenses).
    • Other factors such as poverty or an inability to pay, are not special circumstances in their own right. However, these factors can be referred to in an application for enforcement review based on exceptional circumstances or included in a special circumstances application where relevant.

    What can an enforcement agency decide?

    Once an application for internal review has been made, the enforcement agency must review the decision to serve an infringement notice on your client within the prescribed time of 90 days (with a further period of up to 35 days if additional information has been requested) and suspend any enforcement procedures until the review is complete and your client has been informed of the outcome in writing (which must be within 21 days of making the decision) (s  24 IA).

    If the enforcement agency does not comply with these requirements, the infringement is considered to have been withdrawn (s 24(4) IA).

    During the review process, the agency may request additional information from your client and suspend the review for up to 35 days while awaiting such information (s 23 IA). If your client does not provide the requested information within 14 days then the agency may review the decision without that additional information (although it has the discretion to consider additional information submitted late).

    Special circumstances

    If an application is made on the basis of special circumstances, then the enforcement agency may under s 25(2) of the IA either:

    1. withdraw the infringement notice;
    2. withdraw the infringement notice and issue an official warning in its place; or
    3. confirm the decision to serve an infringement notice.

    If an enforcement agency confirms the decision to serve the infringement notice in relation to an application made on the basis of special circumstances, then the person served with the infringement notice must either:

    1. pay the infringement penalty within the 14 days after the person has been served with written notice advising of the outcome of the review;
    2. apply to the enforcement agency for a payment plan;
    3. elect to have the matter head and determined in Court; or
    4. apply to the Secretary for a work and development permit.

    However if the person does not take any of these options, enforcement will continue and the fine will be registered with Fines Victoria. You can then apply for an enforcement reviewon the basis of special circumstances.

    Person unaware

    If the agency makes a decision to grant the application on the basis that the person was unaware of the infringement notice being served more than 14 days before applying for internal review, then the person must, within 21 days of receiving the notice, either (s 25(5) IA):

    1. pay the infringement penalty; 
    2. apply to the enforcement agency for a payment plan;
    3. nominate another person as being the person responsible for committing the offence in respect of which an infringement notice was issue;
    4. apply for a review of the decision under ss 22(1)(a), (b) or (c);
    5. elect to have the matter determined in Court; or
    6. apply for a work and development permit.

    However, if the agency makes a decision to refuse the application on the basis that the person was aware of the infringement notice being served, then the person will be served with a notice of the outcome of the review and be advised that the penalty must be paid within 14 days of receipt of notice of the outcome (s 25(6) IA).

    Other grounds

    If an application is made on grounds other than special circumstances, an enforcement agency under s 25(1) of the IA can decide to:

    1. Confirm the decision to issue your client with an infringement notice.  If so, your client will need to pay the infringement notice within 14 days of receiving the written notice advising of the outcome of the review to avoid incurring additional costs and enforcement procedures. Alternatively, your client can apply for a payment plan or elect to go to open court
    2. Withdraw the infringement notice and issue an official warning in its place which means that your client will not have to pay the fine but a record of the offence will be kept by the enforcement agency and may be used to decide what action to take against your client if he or she commits the same offence in the future.
    3. Withdraw the infringement notice and take no further action against your client.
    4. Withdraw the infringement notice and refer the matter to open court (or the Children's Court if your client is under 18 years of age).
    5. Waive some or all of the prescribed costs.
    6. Approve a payment plan.
    7. Do any combination of the above.

    A person may apply for internal review even if they have already paid some or the entire amount of the fine. In such a case, if the review results in withdrawal of the infringement notice, then the amount paid will be refunded (s 18(5)).

    An internal review must be carried out by a person not involved in the decision to issue your client with the infringement notice.

    Practice tip

    • There is no disadvantage to applying for internal review based on special circumstances - if it is refused, you can still apply for enforcement review based on special circumstances once the fine is registered with Fines Victoria.
    • However if your client has many fines at various stages, it may be more practical to wait for all fines to be registered with Fines Victoria - you can then make a single Enforcement Review to deal with all the fines together.

    Director's Guidelines and internal reviews

    The Director of Fines Victoria has published guidelines for enforcement agencies setting out the purposes of internal review and obligations of enforcement agencies in performing the internal review function under s 53A IA.

    It may be helpful to refer to these guidelines in any application for internal review as they step through the process and key considerations for enforcement agencies.

    The Director's Guidelines state that, in regards of internal enforcement agency review:

    Decision makers may take a range of factors into account when applying the internal review grounds to the set of facts before them in the application.

    Enforcement agencies may choose to structure the decision making process by producing a set of questions for decision makers to consider whether there is sufficient evidence to allow the application to be granted. These questions may be designed to meet administrative law requirements.

    For example, a decision maker may consider:

    • if required, is there evidence that supports a connection between the ground being claimed and the condition or circumstance that the applicant is purporting to rely on (considering particularly the standard of proof required and whether a relevant causal link is demonstrated) 
    • is the evidence authentic, current (where applicable) and provided by an appropriate person (for example a health practitioner) 
    • has the applicant provided further information, where possible, when requested to do so and is further information realistic in the circumstances, and 
    • are there other relevant factors or information of a general nature which may not be capable of documentary proof.

    Further, regarding applications for internal review on the basis of special circumstances, the Director's Guidelines state that:

    The applicant is required to demonstrate, that it is more probable than not, that the special circumstances resulted in their inability to understand that their conduct constitutes an offence, or that they are unable to control that conduct.

    Decision makers should also consider the reasonableness of asking for particular information. For instance, proving homelessness is in effect proving a negative, that is proving you do not have something. This can be difficult to do and this difficulty of proof is a relevant factor in deciding the reasonableness of requiring written evidence.