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Negotiation with the sheriff or the registrar

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.

Negotiate with the sheriff to put a hold on enforcement

Homeless Law lawyers and clients have previously been successful in negotiating with the sheriff to hold off on enforcing a warrant to imprison while other options are explored.  However, a risk in contacting the sheriff about your client is that it may bring your client to the attention of the sheriff and increase the chance of imprisonment.  Accordingly, this option is better suited if your client has had recent contact with the sheriff and believes that the warrant may be executed in the imminent future.  If you do contact the sheriff about your client, subject to the instructions of your client, it is important to not disclose his or her whereabouts to minimise the risk of your client being located and imprisoned.

It is important to note that a sheriff does not have the power to actually revoke the warrant to imprison.

Negotiate with the registrar at the Melbourne Magistrates' Court

Homeless Law lawyers and clients have previously been successful in negotiating with court staff to have a warrant to imprison revoked, particularly where a client has only missed one payment in the last month. 

Whether the registrar has the power to revoke a warrant depends on whether the registrar issued the warrant.  Under section 58 of the of the Magistrates' Court Act, a warrant issued by a registrar, Magistrate or bail justice may be recalled and cancelled by:

  • that registrar, Magistrate or bail justice; or
  • if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued or, except in the case of warrant issued under section 80 of the Infringements Act, any other registrar; or
  • any Magistrate.

Further, section 41A of the Interpretation of Legislation Act 1984 (Vic) provides that a power to make an instrument includes (unless the contrary intention appears) the power to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.    The power under section 41A is only exercisable in the same manner and subject to the same conditions or limitations (if any) as the original power. 

In In the matter of Deon Nicole Forbes [2012] VMC (Case No. B12467809) Magistrate Holzer considered the impact of section 41A of the Interpretation of Legislation Act 1984 (Vic) on an application to have an imprisonment warrant recalled and cancelled.  He found that the power to recall and cancel a warrant is 'able to be exercised from time to time since no contrary intention is found in the section' (i.e. section 58(1) of the Magistrates' Court Act).  While this decision was dealing with the power of the Magistrate to recall a warrant, the principles can arguably be extended to the power of a registrar under section 58 of the Magistrates' Court Act (where the warrant has been issued by a registrar).

If your client instructs you to pursue this option, you should contact the registrar of the Magistrates' Court and request that it revoke the warrant. The registrar may, however, refuse to revoke the warrant on the basis that the Magistrate issued the warrant meaning that your client must make an application to the Magistrate