Infringements

Infringements

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Warrants to arrest, bail and community work permits

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.

If the person executing the warrant has a reasonable belief that your client does not have sufficient property to cover the amount owed under the warrant, then he or she may break, enter and search for your client in any place where he or she is suspected to be and arrest your client (ss 109 of the FRA).

 

Because of their limited property, arrest is the most common enforcement option for people experiencing homelessness who have infringement warrants.

 

Options if your client is arrested and they are not in contravention of a community work permit (link to heading below)

 

If your client is arrested under an enforcement warrant(s) in respect of a registered infringement fine, then subject to your client paying the amount outstanding on the enforcement warrant, your client will be either (see s 110 of the FRA).

  • released on a community work permit (for example, if the total outstanding infringements are less than 100 penalty units, pursuant to ss 110(1)(a)(i) and 150(2) of the FRA;
  • released on bail with a fixed date to attend the Magistrates' Court pursuant to ss 113 and 164(3) of the FRA and s 10(5) of the Bail Act 1977 (Vic) (BA); or
  • be brought before the Magistrates’ Court within 24 hours after being arrested (see ss 110(1)(a)(ii) and 164(1) of the FRA.

If your client's matter is brought before the Magistrates' Court, the Magistrate will sentence your client under s 165 of the FRA.

 

If your client is arrested under an enforcement warrant issued in respect of a registered collection and enforcement order, then subject to your client paying the amount outstanding on the enforcement warrant, your client will either (see s 110(1)(ab) of the FRA):

·                     enter into an undertaking of bail under s 164(2)(b) of the FRA and s 10(5) of the BA; or

·                     be brought before the Magistrates’ Court within 24 hours after being arrested to be sentenced under s 165 of the FRA (see also the definition of “person in default” and “relevant infringement fine” in s 163 of the FRA.

 

If your client is arrested in respect of any outstanding registered court fine or outstanding registered court fine under a registered collection and enforcement order, then subject to your client paying the amount outstanding on the enforcement warrant, your client will either (see ss 110(1)(b) and 110(1)(c) of the FRA.

·                     be brought before the sentencing court that imposed the relevant registered court fine within 24 hours of being arrested to be dealt with under Part 3B of the Sentencing Act 1991 (Vic) (SA); or

·                     if this is not practicable, be released on bail in accordance with the endorsement on the enforcement warrant.

 

Options if your client is arrested and they are in contravention of a community work permit (link to heading below)

 

If your client is subject of a community work permit and failed to report as required under s 152(b) of the FRA to a community corrections centre for the purposes completing community work, and they are arrested in accordance with an enforcement warrant, your client will either:

·                     be brought before the Magistrates’ Court within 24 hours of being arrested; or

·                     will be released on bail in accordance with the endorsement on the enforcement warrant (see s 111 of the FRA).

 

Bailed to appear

If your client is arrested and is not released on a community work permit, it is most common that your client will be offered bail and a hearing at the Magistrates' Court will be fixed at a later date. In some cases, however, your client may be brought before the Magistrates' Court within 24 hours. If your client agrees to the bail conditions by signing an "Undertaking of Bail", he or she will be released immediately (see s 5 of the BA and r 5 and Form 1 of the Bail Regulations 2012 (Vic)).

 

If granted bail under this process, the undertaking of Bail will require your client to appear before a particular Magistrates' Court at a specified time to be heard for committal or hearing of the charge (see s 5(1A) of the BA). If your client does not appear at the Magistrates' Court in compliance with the terms of the "Undertaking of Bail", your client may face imprisonment (see s 30(1) of the BA).

 

If your client refuses to enter into an Undertaking of Bail and is not eligible for a community work permit, your client will be taken to the person in charge of prison or police jail where he or she will be held for a maximum period of 24 hours so the matter can be heard by a Magistrate and dealt with under s 165 of the FRA (see ss 110(1)(a)(ii) and 164(1) of the FRA and the definition of “person in default” under s 163(a)(ii) of the FRA.

 

The operation of s 165 and the risk of imprisonment for clients are discussed in detail in “Hearing and Sentencing under Section 165”.  

 

Community work permits

Many of Homeless Law’s clients will not be assessed as being capable of expiating their fines under a community work permit however this does remain a possibility under the FRA and is discussed below.

 

A community work permit is an agreement that your client will perform unpaid community work instead of paying the fine. 

 

If your client agrees to a community work permit, your client will be released immediately. 

 

Eligibility for a Community Work Permit.

Your client will be eligible for a community work permit if pursuant to s 150 of the FRA

  • the outstanding fine does not exceed an amount equivalent to the value of 100 penalty units;
  • your client consents to performing unpaid community work; and
  • the sheriff is satisfied that your client:
    • has the capacity to perform community work; and
    • is reasonably unlikely to breach the conditions of a community work permit.

In considering whether the sheriff is satisfied that your client has the capacity to perform the community work and is reasonably unlikely to breach the conditions of the permit, the sheriff may take into consideration any previous contravention of a community work permit issued to your client under the Fines Reform Act 2014 (Vic) or any order imposed on your client under the Sentencing Act 1991 (Vic) (see section 150(4) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s150.html] ).

 

If your client is arrested and is not eligible for a community work permit, your client will be brought before the Magistrates' Court under section 164(1) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s164.html] within 24 hours or released on bail with a fixed date to attend the Magistrate' Court pursuant to s 164(2) of the Fines Reform Act 2014 (Vic) and s 10(5) of the Bail Act 1977 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ba197741/s10.html].  At the return court date the Magistrates' Court, will then sentence your client under section 165 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s165.html] .

 

Conditions of a community work permit

If your client is released on a community work permit, then he or she will effectively work off the outstanding amount of the fine at a rate of 0.2 penalty units per hour, up to a maximum of 500 hours (section 156(1) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s156.html]).

 

Your client cannot work more than 20 hours in a seven day period unless he or she has requested to do so and signs a written consent to working additional hours, in which case your client may work up to 40 hours in a period of 7 days (see section 156(2) and (3) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s156.html]). 

 

Pursuant to s 156(4) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s156.html] the total number of hours worked cannot exceed the following time periods:

 

Number of hours

Period

376 to 500

24 months

251 to 375

18 months

126 to 250

12 months

51 to 125

6 months

Up to 50

3 months

 

If the sheriff issues your client with 2 or more community work permits in respect of 2 or more enforcement warrants, the periods of unpaid community work are to be performed cumulatively pursuant to s 155 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s155.html].

 

While the community work permit is in force, your client can make part payment of the outstanding fines in order to reduce the number of hours that your client is required to work pursuant to section 161 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s159.html.

 

If your client is ill or there are other exceptional circumstances, the community work permit can be suspended (section 158 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s155.html]).

Pursuant to s 152 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s152.html] following conditions apply to all community work permits:

  • your client cannot commit an offence punishable on conviction by imprisonment;
  • your client must report to a specified community corrections centre within two clear working days after the issue of a community work permit;
  • your client must report to, and receive visits from, a community corrections officer;
  • your client must notify an officer at a specified community centre of any change of address or employment within two working days after the change;
  • your client cannot leave Victoria without the permission of community corrections officer at a specified community corrections centre; and
  • your client must obey all lawful instructions and directions of community corrections officers.

Breach of conditions of a community work permit

If your client does not, without reasonable excuse, comply with the conditions of a community work permit, a community corrections officer may pursuant to s 160(3) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s160.html] file a charge and summons against your client in Court.  Failure to comply with a condition of a community work permit carries a penalty of 10 penalty units (see section 160(1) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s160.html]).

 

 A charge can be filed up until 3 years after the date on which the offence is alleged to have been committed (see section 160(4) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s160.html]).

 

Once a charge and summons has been filed, an application can be made for a warrant to arrest your client pursuant to sections 160(5) and 12(1)(b) of the Criminal Procedure Act 2009 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s160.html] [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s12.html]. Once arrested, your client will be brought before the Magistrates' Court pursuant to s 160(5)(c) of the of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s160.html] to be dealt with in accordance with Part 14 of that Act).

 

If the Magistrate finds your client guilty of the offence, the Magistrate may:

  • in relation to the charge for the offence of breaching the community work permit, impose a fine not exceeding 10 penalty units; and
  • in relation to the community work permit (and the underlying infringements that it deals with):
    • vary the community work permit; or
    • confirm the community work permit; or
    • cancel the community work permit and sentence your client under section 165 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s165.html].

Variation or cancellation of a community work permit on application by client or CCO.

Pursuant to s 159(1) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s159.html] either your client or a community corrections officer make an application to the Magistrates' Court to vary or cancel the community work permit while the community work permit is in force. Under s 159(4) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s159.html] a Magistrate may vary the permit or cancel it if the court is satisfied that:

  • the circumstances of your client have materially altered since the community work permit was issued resulting in your client being unable to comply with a condition of the permit;
  • the circumstances of your client were wrongly stated or were not accurately presented to the sheriff before the community work permit was issued; or
  • your client is no longer willing to comply with the community work permit.