Infringements

Infringements

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What options does your client have if a warrant has been issued but not executed?

Important changes from 1 July 2017

From 1 July 2017, the Infringements Act 2006 (Vic) was changed as part of Victoria's fines reform process, including new ‘social justice initiatives' that affect people experiencing vulnerability. On 31 December 2017, the Fines Reform Act 2014 (Vic) commenced, creating Fines Victoria. This resulted in significant further changes to the infringements system and substantially shorter timeframes for dealing with infringements and fines.

Please be aware of these reforms in relation to any infringements assistance that you are providing to your clients.

We are in the process of updating Homeless Law in Practice. Justice Connect Homeless Law pro bono lawyers should read our further materials about the changes here (password needed), before doing any fines work after 1 July 2017. Please speak to your supervising lawyer, team leader or Homeless Law staff for more information.

It is important that you advise your client of the risks of enforcement if your client is issued with a warrant.  If your client has been issued with a seven day notice, it is extremely important that you advise your client to take immediate action to avoid the warrant being executed prior to the expiry of the seven-day period including through one of the options outlined below.

 

If the warrant has not yet been executed, your client will have similar options as at the enforcement order stage, namely:

  1. Contact the sheriff: Subject to the client's instructions, it is worthwhile contacting the sheriff to inform them that you are assisting the client to prepare an enforcement review application and to ask for enforcement to be put on hold and a note of this to be made on their system. The sheriff will not usually guarantee that they will not execute the warrant but they will usually try to delay based on this request. It is important that you do not disclose your client's current address in these conversations. 
  2. Apply for an enforcement review under s 32(1) of the FRA for the cancellation of the enforcement of the infringement fine and withdrawal of the infringement fine. This can be done if there are sufficient grounds including
    • On the basis of special circumstances,
    • Exceptional circumstances apply,
    • The decision to issue the infringement was contrary to law or involved mistaken identity.
    • There is also a ‘person’ unaware ground however this will typically just result in the notice being reissued and will start the enforcement processes a fresh (see s 32(1)(d) and 38(2)(c) of the FRA).
  3. Apply for a payment arrangement or an extension. 
  4. Make a FVS application.
  5. Find a Work and Development sponsor request that they sponsor a client’s Work and Development Permit.
  6. Pay in full.

If your client has received a seven day notice, you should lodge an application for an enforcement review, a FVS application, a payment arrangement (or a arrange for a Work and Development Permit) with the supporting material that is available (for example, a short letter from a GP setting out the client's circumstances) as soon as possible within the seven day period. Your application may wish to highlight that further supporting material is being prepared and can be made available on request.  This is important as neither of these application can be made after the expiration of a seven day notice (See ss 32(4)(a), 10O(a), 42(3)(b) and 10B(2)(a) of the of the FRA.

 

Inversely, pursuant to s 121(3) of the FRA an enforcement warrant cannot be executed against a fine defaulter if the fine defaulter has either:

·                     made the first payment under a payment arrangement;

·                     has not rejected a proposed payment arrangement under s 45(5) of the FRA;

·                     has applied for a payment arrangement which has not been determined;

·                     has applied for an enforcement review which has not been determined

·                     applied for a Work and Development permit (see s 10B(5) of the FRA); or

·                     made a FVS application (see s 10S of the FRA).

 

You should not wait until you have comprehensive material as your client has very limited options after the expiry of the seven-day notice and even a brief application under the Family Violence or Work and Development Schemes or an application for enforcement review will result in a hold on execution whilst more evidence is requested. 

 

In Homeless Law’s experience, the Director of Fines Victoria will request more information before considering the application for enforcement review, rather than reject the application outright.  However, this should be balanced against the fact that an enforcement review application can only be made once in respect of any one infringement offence, except for applications made on the basis of special circumstances which can be made twice (see ss 33(1) and (2) of the FRA.

 

Once a warrant has been executed, your client will have only very limited options.

 

Significantly, your client will no longer be able to apply for an enforcement review, a payment arrangement, make a FVS application or apply or a Work and Development Permit on expiry of the seven-day notice period. If the enforcement warrant has been executed, click here to find out what your client's options are.