Infringements

Infringements

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Enforcement and execution of warrants

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.

Timeframes and service

 

An enforcement warrant cannot be executed until:

·                     your client has been served with a seven day notice warning of all the enforcement action that may be taken;

·                     if the person authorised to execute the warrant is the sheriff, the sheriff has made a demand to pay the outstanding fines; and

·                     the seven days have expired (s 119 of the Fines Reform Act 2014 (Vic) (FRA)).

 

Administrative sanctions can be applied before execution of enforcement warrant

A seven day notice is not required before your client's car can be detained or immobilised pursuant to ss 126(1) and 127 of the FRA or for VicRoads to be directed by the Director of Fines Victoria to suspend or not renew your client's vehicle registration or driver licence pursuant to s 89 of the FRA.

 

 

 

Similarly, the Director of Fines Victoria can make either an attachment of earnings direction or attachment of debt direction without a seven-day notice, so long as the amounts outstanding against the registered infringement fine exceed $1000 (see ss 65(1) and 78(1) of the FRA and rr 5 and 6 of the Fines Reform Rules 2017 (Vic) (FRR). These directions have the effect of garnishing the wages or amounts in your client’s bank accounts in order to pay the outstanding amounts or result in ordering 3rd parties to pay money owed to your client, directly to Fines Victoria. (See #########Hyperlink to correct page################ for more on attachment of earnings and debt directions and discussion of protected income thresholds and protected Centrelink benefits)

 

These actions do not mean that an enforcement warrant has been executed.

 

 

Execution of enforcement warrant

A seven day notice must have been served personally on your client (s 179(2)(a) of the FRA). If for any reason, it is impracticable to serve the notice personally, a Magistrate may order that service of the 7 day notice be affected by way of substituted service under s 180 of the FRA.

 

The Sheriff has informed Homeless Law that the sheriff will generally contact your client by phone before serving him or her with a seven day notice.  If the sheriff considers that your client has difficulty understanding English, then they will provide a translation service. Your client also has the option of requesting that his or her lawyer be present when a sheriff’s officer serves the seven day notice. 

 

Information on the fines lifecycle is provided by Fines Victoria. Information about seven day notices is located under the ‘Infringement Warrant’ tab. 

 

 

What happens if your client takes no action?

 

If your client takes no action, following the expiry of a seven day notice, the sheriff’s officer or police officer or anyone else authorised to execute an infringement warrant is authorised to:

Once your client is taken into custody, if the warrant was issued in respect of a registered infringement fine or collections and enforcement order, the following options will be negotiated with your client by the authorised person(s):

  • negotiate a community work permit (if your client is not in contravention of an existing community work permit); or
  • negotiate that the client enter into an undertaking of bail; or
  • if those options are not possible (for example, because the fines exceed 100 penalty units ($15,857 as at 1 July 2017) or your client has mental or physical health issues that would prevent them from complying with the community work permit), have them brought before the court for sentencing under s 165 of the FRA.

The arrest and bailing of clients, typically happens informally and administratively, pursuant to ss 113 and 164(2) of the FRA and s 10(5) of the Bail Act 1977 (Vic). As such, clients will often not be brought before a court or be detained or restrained by Police or the Sheriff, in the process of being arrested and bailed. For this reason, clients often mightn’t even realise they have been arrested and bailed under the Act.

 

Most commonly, a client will be arrested and bailed to appear at a later date and on the spot they will be given a prescribed ‘Undertaking of Bail’ requiring the client to attend court on a date and time (see Form 1 of the Bail Regulations 2012 (Vic). In some cases however your client might be brought before the court immediately within 24 hours for sentencing (see s 164(1) of the FRA.

 

If the warrant was issued in respect of a registered court fine, then following the arrest of your client, the authorised person(s) will bring the client before the sentencing court which imposed the court fine on the client within 24 hours or, if this is not possible, release the client on bail in accordance with the endorsement on the warrant (see s 110(1)(b) of the FRA).

 

On expiry of the seven-day notice, the authorised person(s) are also authorised to do any of the following:

The Director can issue a production of information direction which requires your client to give the Director a statement of financial circumstances or to attend before the Director to answer questions in respect of the financial circumstances of your client (see s 59 of the FRA). If your client has failed to comply with an information direction, the Director may also apply to the Magistrates’ Court for a summons to be issued to your client for oral examination and the product of information for the purposes of taking enforcement action against your client (see s 62 of the FRA).

 

Your client will have extremely limited options if a warrant has been executed and their options will depend on the enforcement action that has been taken. If a sheriff or police officer arrives at your client's property to execute a warrant and your client contacts you for advice, you should attempt to negotiate with the sheriff or police officer to delay executing the warrant until you have been able to either:

·         Apply for enforcement review under s 32(1) of the FRA;

·         Apply for a payment arrangement under s 42(1);

·         Ask an accredited agency to apply for a Work and Development Permit under s 10B(1) of the FRA; or

·         Make an application under s 10M(1) of the FRA to the Family Violence Scheme; or

·         If possible, to allow the client to pay the fine.

 

For more information about each of these enforcement actions and options available to your client, click on the particular enforcement action that has been taken (check that this actually makes sense when uploaded and links to relevant content).

 

 

Snap-shot - when can you still apply for enforcement review or a payment arrangement?

 

Generally, your client can still apply for enforcement review, a Work and Development Permit or make a FVS application when:

  • a suspension sanction (such as a driver licence or vehicle registration) has been imposed against your client; or
  • a wheel clamp has been applied to your client's vehicle.

Your client cannot apply for an enforcement review, a Work and Development Permit or make a FVS application if either:

·                     the seven-day notice has expired; or

·                     a person has waived the unexpired period of the seven-day notice under s 36 of the Sheriff Act 2009 (Vic); or

·                     an attachment or earnings direction or an attachment of debts direction has been made;

·                     a land charge has been recorded; or

·                     property has been seized under a vehicle seizure and sale notice; or

·                     the infringement fine has been paid

·                     if the infringement fine relates to an excessive speed, drink driving or drug driving offence (see ss 10B(2), 10O and 32(4) of the FRA.