Your options if you get an infringement notice

 

There are several options available if you get an infringement notice. Remember time limits apply to the options available and if you ignore an infringement notice you will get additional fees and possibly an infringement warrant. Advice is available from your local community legal centre.

Summary of options

If you receive an infringement notice, you have several choices about what to do. There are a number of stages in the infringements system, and your options change according to the stage the matter has reached. Before you decide what to do, it is worth looking at all the available options to see which one best fits your particular situation. Whatever you choose to do, be aware of the time limits involved: if you wait too long, it may be too late for you to take the option that would be best for you.

If you are unsure what to do, you can ask for help from a financial counselling service (see Financial counselling services), or from a community legal centre, Victoria Legal Aid or other source of legal advice (see Legal services that can help). There may be a waiting list for assistance, so it is best to contact the support agency as soon as possible if you need help.

The options available to you at various stages of the infringements system process are to:

do nothing (not recommended);

pay the penalty;

ask for the notice to be cancelled or withdrawn;

ask for a review of the decision to issue the notice;

nominate another driver (for motor vehicle offences);

ask for more time to pay;

arrange to pay by instalments;

take the matter to the Magistrates’ Court;

apply to have the enforcement order “revoked” or cancelled;

do community work instead of paying the penalty; or

go to prison.

Some of these options are only available at certain stages of the infringements system process or in relation to certain types of fine, and some have different results depending on when they are put into effect. For further information, see the infringement procedure options and results table.

Deciding which option to take

Before you make up your mind about which option is best for your situation, it is important to be clear about exactly how much you owe in penalties. You may also have other infringement notices outstanding that you are not aware of, for example if you have moved address and not received infringement notices.

If you are not sure how much you owe, you can obtain this information from www.fines.vic.gov.au or the Infringements Court. If you are requesting this information from either the Infringements Court or Civic Compliance Victoria, you may be asked to supply the following information:

your full name (including middle name), and any previous names you have been known by;

your date of birth;

your current address and contact phone numbers, and any previous addresses where you might have received infringement notices.

Be careful about providing your current address to officials working at the Infringements Court or Civic Compliance, as this information could be passed on to the sheriff who may then take action against you to execute any outstanding infringement warrants (seeWhat happens if I take no action?” for more information). If you are not comfortable providing your current address to the Infringements Court or Civic Compliance Victoria, you can offer to provide the following additional information and documentation to help them search for your outstanding fines:

your driver’s licence number, if you may have any parking or traffic infringements;

a photocopy of identification documents; and

where possible, details of where, when and what types of fines or infringement notices you may have incurred, including any “obligation number” (this will be written on any infringement notice you receive).

If someone else (e.g. a financial counsellor or community legal service worker) is obtaining the information for you, you need to sign a form authorising that person to obtain it on your behalf.

If any fines are less than 56 days old, they will not have been lodged with the Infringements Court yet, in which case you will need to write to the relevant enforcement agencies, such as the Department of Transport (for most public transport fines), Victoria Police and/or local councils, for details of unpaid fines that are still at agency level. The relevant enforcement agency will be identified on any infringement notices or penalty reminder notices that you have.

Your options: a step-by-step summary

The following table summarises the process as set out in “What happens after the notice is issued?”, and your options for dealing with your outstanding fines at each stage of the process. Each of the options is described in more detail below.

The infringements procedure

Stage

Time limit

Options and results

1  Infringement notice

(penalty set by legislation)

As specified on notice (usually 28 days but may be longer)

Pay penalty:

payment completed on time – no further action

payment not completed – go to stage 2

Ask agency to waive the fine:

application granted – no further action

application rejected – pay the penalty within prescribed time or go to stage 2

Apply for internal review on basis of “special circumstances”:

application granted – no further action

application rejected – fine will be referred to open court (refer to Going to court” in main text)

Apply for internal review on basis of “exceptional circumstances”:

application granted – no further action

application rejected – pay the penalty within prescribed time or go to stage 2

Ask for more time to pay or payment by instalments:

application granted and payment completed on time – no further action

application rejected or payment not completed – go to stage 2

Take the matter to the Magistrates’ Court (refer to Going to court” in main text).

Do nothing – go to stage 2

Nominate other driver (motor vehicle offences):

If nomination is accepted the agency will pursue the nominated driver

If agency refuses nomination, it may recommence action against you within six months of refusing the nomination – go to stage 3

Note: some specific offences (e.g. excessive speeding 25km/h or greater) must be nominated within 28 days of receiving infringement.

2  Penalty Reminder notice

(penalty; extra costs)

28 days

Pay penalty and costs:

payment completed on time – no further action

payment not completed – go to stage 3

Ask agency to waive the fine:

application granted – no further action

application rejected – either pay the penalty within prescribed time or go to stage 3

Note: You cannot make a second request for waiver if a request was already rejected at stage 1.

Apply for internal review on basis of “special circumstances”:

application granted – no further action

application rejected – fine will be referred to open court (refer to Going to court” in main text)

Note: You cannot make a second request for internal review if a request was already rejected at stage 1.

Ask for more time to pay or payment by instalments:

application granted and payment completed on time – no further action

application rejected or payment not completed – go to stage 3

Do nothing – go to stage 3

Nominate other driver:

agency has 12 months to act against other driver

if agency cancels nomination, it may recommence action within six months of cancellation – go to stage 3

Take the matter to the Magistrates’ Court

3  Registration with Infringements Court – notice of enforcement order

(penalty and costs; further costs added)

28 days

Pay penalty and all added costs:

payment completed on time – no further action

payment not completed – go to stage 4

Ask Infringements Court for extension of time to pay, variation of costs and/or payment by instalments:

application granted and payment completed on time – no further action

application rejected or payment not completed – go to stage 4

Do nothing – go to stage 4

Apply to Infringements Court for revocation of enforcement order:

revocation granted and infringement notice withdrawn by agency – no further action

revocation granted but notice not withdrawn – matter referred to Magistrates’ Court (seeGoing to court” in main text)

revocation not granted – appeal decision, lodge new application (2 max without leave of court), or go to stage 4

Apply to Infringements Court for revocation of enforcement order on basis of special circumstances (seeRevocation applications where you have ‘special circumstances’” in main text):

revocation granted and infringement notice withdrawn by agency – no further action

revocation granted but notice not withdrawn – matter referred to Magistrates’ Court (seeApplication for revocation: special circumstances application” in main text)

revocation not granted – appeal decision, lodge new application (2 max without leave of court), or go to stage 4

4  Infringement warrant – notice of seizure of assets

(penalty and costs; further costs added)

7 days

Pay penalty and all added costs:

payment completed on time – no further action

payment not completed – go to stage 5

Ask Infringements Court for extension of time to pay, variation of costs and/or payment by instalments:

application granted and payment completed on time – no further action

application rejected or payment not completed – go to stage 5

Do nothing – go to stage 5

Apply to Infringements Court within 7 days for revocation of enforcement order:

revocation granted and infringement notice withdrawn by agency – no further action

revocation granted but notice not withdrawn – matter referred to Magistrates’ Court (see “Application for revocation: special circumstances application” in main text)

revocation not granted – appeal decision, lodge new application (2 max without leave of court), or go to stage 5

5  Execution of warrant – infringement action

(including seizure and sale of assets, licence suspension and cancellation, wheel clamping)

Immediate

Pay penalty and all added costs before seizure:

payment completed – no further action

Allow goods to be seized and sold by auction:

proceeds from sale enough to settle debt – no further action

no assets or proceeds from sale not enough to settle debt – go to stage 6

Other enforcement measures including:

detention, immobilisation and sale of motor vehicles

suspension of drivers’ licence and registration of motor vehicle or trailer

attachment of earning and debt orders

charges over and sale of real property

6  Arrest

Immediate or after asset sale

If eligible, agree to conditions of CWP (community work permit):

complete CWP to settle debt

breach conditions of CWP – go to Magistrates’ Court (seeGoing to court” in main text)

If ineligible for, or not willing to accept CWP, appear in Magistrates’ Court

sentenced in Magistrates’ Court under section 160 of the Infringements Act (refer to g Infringement warrant enforcement hearings (‘section 160 hearings’) in main text).


NOTE

Some types of motor vehicle infringements (for excessive speed and drink-driving offences) are classified as licence loss infringements. These carry more severe penalties, have stricter time limits than other infringements, and there are fewer options available to deal with the infringements, so it is particularly important to act quickly if you receive one of these notices. For details of procedures and time limits for traffic offences, seeInfringement notices” in Driving offences.



NOTE

Young people (under 18 years) are dealt with differently under the infringements system. Agencies issuing infringement notices are able to accept payment from young people and a young person can also apply for a payment plan or a review of the decision by the enforcement agency. However, if an infringement is not paid by a young person, the relevant agency’s only options are to take no further action or elect to enforce the infringement penalty by filing a charge and issuing a summons for the young person to appear in the Children’s Court. Infringement notices issued to young persons cannot be registered with the Infringements Court and so the enforcement powers under an infringement warrant are not available. For court procedures and sentencing options applicable to young people, see The Children’s Court.


Your options in more detail

Do nothing

This is not recommended. The effects of taking this option become progressively more severe, depending on how far the process has progressed. At each successive stage you become liable to pay more as extra costs are added to the original penalty (seeSummary of options” and “What happens after the notice is issued?”). Enforcement measures including wheel clamping and licence suspensions may also be taken against you. If you do not take any action, you may end up having to serve time in prison.

The consequences of not taking any action in relation to outstanding fines are described in “What happens if I take no action?”.

Enforcement orders and infringement warrants generally expire after five years (seeTime limits”). However, an enforcement order that has expired may be reinstated for one further period of five years, and another infringement warrant can then be issued, meaning that enforcement action is again able to be taken against you. For this reason, it is not recommended that you rely on any infringement warrants against you expiring as a reason for failing to take action unless you are sure that the warrant has expired for a second time.

If the infringement notice is for a speeding or drink-driving offence, doing nothing could have even more serious consequences. As well as having the penalty enforced through the infringements system, you could have a conviction recorded against you and lose your licence for a set period (for more information, seeInfringement notices” in Driving offences).

Pay the penalty

Paying the amount of the penalty (and any added costs) is an option available at each stage of the infringements process. However, the longer you wait before making the payment, the more costs will be added to the original penalty. It also becomes more difficult to negotiate payment arrangements that suit your circumstances.

You can decide to pay the penalty within the time indicated on the infringement notice, which will usually be 28 days (but check on the notice). Also check when this time period starts: it may run from the date the notice was issued, or from the date you received the notice at home. The notice should tell you where you can pay the penalty, and what types of payment the agency will accept (e.g. cheque, cash or EFTPOS). Make sure you get a receipt from the agency as proof of your payment. If you have paid the penalty within the time limit, no further action should be taken by the agency that issued the notice.

If you wait until the 28-day period has expired and a penalty reminder notice has been sent to you by the enforcement agency, you can still pay the penalty. However, there may be additional costs added at this stage.

You can also pay the penalty (also known as a fine) after the enforcement agency has referred the matter to the Infringements Court and a notice of enforcement has been issued.

You may still be able to pay the fine after a date has been set for hearing the matter in the Magistrates’ Court, but only if the enforcement agency agrees to accept your payment and cancel the hearing.

If you decide to pay the penalty, but don’t have enough money to pay the full amount within the time limit, seeArrange a payment plan with the enforcement agency” and “Apply to the Infringements Court for a payment order”.

Apply for review by the enforcement agency

Under the Infringements Act, if an enforcement order has not been issued, you may apply to the enforcement agency for an internal review of the decision to issue you with a fine. This process is intended to be a simple and accessible way to request that an impartial person within the agency reviews the fairness or validity of the decision to issue the fine. An internal review may be requested where:

the decision to issue the infringement notice was contrary to law: for example, a parking ticket was issued when you had in fact complied with any relevant parking regulations;

there was a mistake of identity: for example, you were not the person driving the car at the time of the offence;

you have “special circumstances”; or

you have “exceptional circumstances” that mean you should not have to pay the penalty.

An application may be made on more than one of the above grounds.

A young person (i.e. 18 years or younger) can also apply for an internal review.

Special circumstances

For the purposes of the Infringements Act, special circumstances are:

a mental or intellectual disability, disorder, disease or illness or a serious addiction to drugs, alcohol or a volatile substance, that results in the person being unable to:

understand that conduct constitutes an offence; and

control conduct that constitutes an offence;

or

homelessness that results in the person being unable to control conduct that constitutes an offence.

What amounts to a “mental or intellectual disability, disorder, disease or illness” is not defined in the Infringements Act. According to an information paper released by the Infringements System Oversight Unit of the Department of Justice in February 2008, it would include a diagnosed intellectual disability and acquired brain injury, as well as any diagnosed mental illness (i.e. Alzheimer’s disease, bipolar disorder, dementia, schizophrenia, anxiety, depression and other related conditions).

“Homelessness” is defined in regulation 7 of the Infringements (General) Regulations 2006 (Vic). A person is homeless if they live in crisis or transitional housing, live in other accommodation provided under the Supported Accommodation Assistance Act 1994 (Cth), or have inadequate access to safe and secure housing.

Importantly, in order to successfully apply to have your fines cancelled on the grounds of special circumstances because of a mental or intellectual condition or a drug or alcohol addiction, you must show either that this condition resulted in you not understanding that the conduct was an offence or caused you to be unable to control the behaviour that led to the issue of the fine. If you are applying to have your fines cancelled because you are (or were at the time of the offence) homeless, you need to show that your homelessness resulted in you not being able to control the behaviour that led to the issue of the fine.

Exceptional circumstances

While the term “exceptional circumstances” is less clearly defined, it may include factors such as poverty, old age, family violence, acute illness or language and literacy difficulties, which relate to the offence.

You need to put your application for a review in writing and you should include documents such as a report or letters from a case worker, doctor, social worker, housing worker or psychiatrist to support your request and stating, for example, that the fine should be withdrawn because at the time you received the fine you were experiencing family violence, which made it difficult to ensure your e-tag account was topped-up. This report should be signed and dated within the last 12 months, although according to the Infringements System Oversight Unit (in its information paper dated February 2008), an older report may be acceptable in the case of a condition that does not change much over time, such as an intellectual disability. A lawyer, community legal centre or a financial counsellor may be able to help you write the letter (for contact details, see Legal services that can help, and Financial counselling services).

The review will be conducted by an officer not involved with issuing the infringement. Usually, this is a more senior person in the agency. Reviews must be completed within 90 days (i.e. about three months) after the agency receives the application, although this can increase by a further period of up to 35 days if the agency seeks additional information. If the agency seeks additional information and you cannot obtain it within the 14 days required by the agency, you can make a request for an extension of the time period for providing the information. The agency can take additional information into account in your application, even if you provide it out of time, but it is not obliged to do so, so you should request an extension of time if needed.

The agency then has a further 21 days to notify you of its decision once it has decided, which means you should have received notice of the review’s outcome within about four months of lodging the application (or, if the agency seeks additional information, within about five months of lodging the application).

The agency may decide to cancel the fine and instead issue you with an official warning. Withdrawal or cancellation of the notice means that no further action will be taken against you.

If the agency does not agree to withdraw or cancel the notice, you will need to look at what other options are available to you, such as: payment of the fine, payment by instalments, obtaining an extension of time in which to pay the fine, or contesting the fine by referring the matter to court. If you choose to pay the fine, you should pay either by the due date mentioned on the agency’s notice of its decision or, if no due date is specified, you should pay within 14 days of receiving notice of the decision.

If the request for review is made on the basis of special circumstances and the agency decides not to withdraw the fine, the matter will be referred to the Magistrates’ Court for hearing and determination (seeGoing to court”).


NOTE

Currently there are inconsistencies between various enforcement agencies in their assessment of applications for internal review, particularly in cases of special circumstances. As a result of the Auditor-General’s 2009 review of the Infringements System, many agencies subsequently worked to clarify their internal review policies, with one example being the City of Melbourne’s Model Operating Policy for Enforcement Agencies 2014, which some other enforcement agencies have also adopted. Despite these improvements, there are still inconsistencies in approach between various enforcement agencies.


Nominate another driver

For some traffic and parking offences, if you are the registered owner of the car but you were not in charge of it when the alleged offence took place, you can give the agency that issued the infringement notice evidence of this. For example, you could provide the name and address of the person who was driving the car at that time, or a statement (usually a statutory declaration) that the car had been stolen.

You must do this within 28 days after receiving either a penalty reminder notice or a summons to appear in court in relation to the offence, whichever happens first. If the agency accepts your statement, it has 12 months in which to commence court action against the other driver instead of pursuing you for the penalty.

The enforcement agency may refuse to accept or cancel your nomination. For example, it may do so if the person you nominate as the driver provides a statement that they were not the driver and the agency accepts that statement. The agency has six months to commence action against you from the date your nomination of another driver is cancelled.

Once an enforcement order has been issued by the Infringements Court, it is no longer possible to nominate another driver. Instead, you need to apply for revocation on the basis that you were not the driver of the vehicle. For this application to be accepted, you need to identify the person you say was driving the vehicle. As mentioned above, certain types of offences require nomination to take place within 28 days of the offence occurring. For these reasons it is important to act quickly if you intend to nominate another driver.

Negotiate a payment plan: extra time or instalments

Entering into a payment plan may be an option either before or after an enforcement order has been issued, or after there has been a hearing in the Magistrates’ Court.

Arrange a payment plan with the enforcement agency

If you do not have enough money to pay the penalty within the time limit and an enforcement order has not yet been issued by the Infringements Court, you may be able to negotiate with the enforcement agency to enter into a payment plan, which allows you an extension of time to pay or the ability to pay by instalments (e.g. at $20 per fortnight). Persons under the age of 18 can also apply for a payment plan at this stage.

Under the Infringements Act, if you are the holder of a Centrelink Health Care Card, a Centrelink Pensioner Concession Card or a Department of Veterans’ Affairs Concession Card or Gold Card, you are automatically entitled to a payment plan (although the agency still has to agree to the terms of the plan). If you are not a holder of one of these cards, you may still apply for a payment plan and the agency will consider your circumstances in deciding whether to agree to a payment plan, such as financial hardship or illness.

It is best to make your request to the agency in writing, and to do so as soon as possible after you receive the infringement notice. In the letter, you should explain your financial circumstances and tell them how often you would be able to pay, and how much at a time. A financial counsellor may be able to help you work out a payment schedule that you can afford. You may also apply for an instalment plan via telephone.

If the agency does not agree to allow you extra time for payment, you will need to carefully consider the other options still available to you to pay or contest the penalty. If you wait until an enforcement order is issued, you may be able to request a payment order from the Infringements Court instead of the enforcement agency. Remember, however, that more costs would have been added at this time.

If the agency accepts your application, but you do not make the agreed payments (e.g. you do not pay the amount in the time period as extended, or you miss one instalment because there was not enough money in your account), the agency can then refer the matter to the Infringements Court for enforcement (seeDo nothing”). However, it may be worth telephoning the agency to try to negotiate an alternative arrangement before it does this, such as making up the payment in the next instalment.

If the agency agrees to allow you a payment plan and later withdraws an infringement notice against you, then this infringement penalty and any associated costs must be removed from your payment plan.

Apply to the Infringements Court for a payment order

If the enforcement agency refuses your application for a payment plan and an enforcement order is issued by the Infringements Court, or if you did not apply for a payment plan while the fine was still at the enforcement agency stage, you may still be able to apply to the Infringements Court for a payment order. This payment order may give you an extension of time to pay or may allow you to pay by instalments.

Generally an application for a payment order may be made at www.fines.vic.gov.au, in person at the Infringements Court or in writing. A written application must include your full name and current address, a description of your financial circumstances, and the reason for making the application (for address details, see “Contacts”).

The Infringements Court will investigate your financial circumstances (i.e. your income and expenses, your previous payment history, and whether you would be able to pay off the fine within a reasonable time) before deciding whether to make a payment order.

The Infringements Court’s decisions about whether to make a payment order are usually guided by an internal document called the “Payment Order Guidelines”. This document sets out the relevant considerations and thresholds the Infringements Court will factor into its decision. For example, an applicant will not generally be eligible for a payment order if there is more than $10,000 owing in fines, or they have previously defaulted on payment orders four or more times, or there is an order in place preventing their vehicle from being registered. Similarly, where an applicant owes more than $10,000, the Infringements Court will require an up-front payment towards the balance before a person will be eligible for a payment order.

However, applicants for payment orders who are ineligible under the internal guidelines, but who receive Centrelink payments, can still apply directly to the Infringements Court for a payment plan. These applications will still be considered, although an applicant will need to demonstrate they are experiencing extreme financial hardship, and will also not be able to enter a payment arrangement that exceeds seven years in duration. Further information about eligibility for a payment order can be obtained by contacting the Infringements Court directly (see “Contacts”).

If the Infringements Court does make a payment order, the enforcement order is “stayed” (which means frozen or suspended) as long as you pay by the time set out in the order or continue to make instalment payments according to the terms of the order. However, if you do not make the agreed payments, an infringement warrant can be issued or enforcement action recommenced. If you miss making any payments on time, you may try to negotiate with the Infringements Court to repay the amount so that the payment order is not cancelled.

When applying for a payment order, you could also consider including a request in your application that some of the prescribed costs and fees also be waived due to any exceptional circumstances you may be experiencing (s 76(3)(c) Infringements Act). Alternatively, before or at the same time as applying for a payment order, you could consider also making an application for revocation (to vary the costs of the fine) if you are experiencing financial hardship (seeApply for revocation of an enforcement order”). Although financial hardship is not technically a ground for revocation, the Infringements Registrar may, on receiving such an application, reduce the amount payable by varying the costs added to the original penalty (s 67 Infringements Act). Both these options are worth considering as they may result in a significant reduction in the ultimate amount payable under a payment plan application. Note that the Infringements Court sometimes requires an upfront payment before granting a payment order.

If the Infringements Court refuses to allow you to pay by instalments, and you do not pay the penalty within the time limit (28 days from the issue of the enforcement order), an infringement warrant may be issued that will permit a range of enforcement measures (seeWhat happens if I take no action”) as if you had not taken any action. You should seek advice promptly from a financial counsellor or community legal service if you are unable to pay at this stage (for contact details, see Legal services that can help, and Financial counselling services).

Traffic offences

For a traffic offence where demerit points are part of the penalty, if you arrange to pay by instalments (or pay the penalty in full after the time limit specified on the infringement notice) you will be considered to be liable for the offence without having been found guilty in court. The demerit points will be recorded against your licence. However, no conviction will be recorded.

Dispute the fine: take the matter to court

If you believe you should not have to pay the penalty, or should not have to pay the full amount, you may be able to elect to have the matter heard in the Magistrates’ Court (the Infringements Court does not hold hearings itself) and argue your case before a magistrate. You may want to take this step if, for example, you did not commit the offence, or you did not receive the infringement notice from the enforcement agency, but you cannot persuade the relevant enforcement agency to withdraw the notice. The enforcement agency may send you, with the infringement notice or penalty reminder notice, a form that you can fill out to elect to have the matter referred to the court. If not, it is worthwhile writing to the agency to request the referral.

You cannot elect to have a matter heard in open court once it has already been lodged in the Infringements Court as an enforcement order, but there are other ways fines can end up in open court after an enforcement order has been made (seeGoing to court” for examples). It is important to seek legal advice before electing to have your fines heard in open court. This is because the penalties in open court proceedings can often be more severe than other types of infringements related to court hearings (seeCourt penalties”).

Apply for revocation of an enforcement order

Once the penalty has been registered with the Infringements Court, either you or the enforcement agency can apply to the court for revocation (cancellation) of the enforcement order. The Infringements Registrar may also decide to revoke the infringement on their own motion, but this rarely happens. Where the enforcement agency requests revocation of the order (i.e. the agency requests that the enforcement orders for the fines be cancelled), the Infringements Court must grant the request; where you request revocation, the court can decide not to grant the request.

How to apply for revocation

It is important to seek legal advice if you are considering this option. The procedure for applying for revocation of an enforcement order varies according to your reason for making the application.

If you did not commit the offences or had a valid reason for committing the offences, you (or your lawyer) should make an application in writing for revocation of the enforcement orders.

If there were circumstances that resulted in you being unable to understand that your conduct constituted the offences or being unable to control the conduct, you may make an application for revocation of the enforcement orders, or your lawyer or caseworker can make a written application for revocation on your behalf. The definition of “special circumstances” is discussed in “Apply for review by the enforcement agency”.

If you did not receive or were not aware that the infringement notice had been served, you can make a written application for cancellation to the Infringements Registrar within 14 days of becoming aware of the infringement notice and explain why the fine should be cancelled.

These procedures are discussed below.

Revocation applications generally

Under the Infringements Act, any person against whom an enforcement order has been made may apply to the Infringements Registrar for revocation of the enforcement order, and the Registrar may revoke the enforcement order where there are sufficient grounds for revocation.

Sufficient grounds for revocation are likely to include where the person did not commit the offence or had a valid reason for committing the offence. The Infringements Act does not limit the grounds on which you may argue that your enforcement order should be revoked.

An application for revocation under section 65 can be made at any time until a warrant has been executed (i.e. an application can still be made if a warrant has been issued but no steps have yet been taken to execute the warrant, including where the sheriff has issued a seven-day notice, but has not yet taken any further enforcement action – seeWhat happens if I take no action?” for further information).

An application under section 65 must be in writing and should set out the grounds on which revocation is sought. It does not need to be in the form of a statutory declaration. Revocation application forms will normally be sent to you with the notice of the enforcement order from the Infringements Court.

The application will be granted if the registrar is satisfied that you did not commit the offence, or you had a valid reason for committing the offence, or that there is some other sufficient ground to revoke the enforcement order.


NOTE

If you have drink-driving, drug-driving or excessive speed infringements, you are not eligible to apply for revocation of an enforcement order. While it is still possible for an enforcement agency to make an application for revocation (section 63A), this rarely happens.

If you have drink-driving, drug-driving or excessive speed infringements, you are still eligible to apply for a payment order, extension of time or waiver/reduction of prescribed fees.


Revocation applications where you have “special circumstances”

While the Infringements Act does not expressly provide that the fact that “special circumstances” apply to a person is a sufficient ground for revocation, section 65(1)(c) contemplates that an application under section 65 may be made on behalf of a person to whom special circumstances apply and in practice the Infringements Registrar does grant applications on this ground. This means that if you have “special circumstances” you can make an application for revocation.

The definition of “special circumstances” for a revocation application is the same as for an application for internal review. As discussed in Apply for review by the enforcement agency, “special circumstances” are:

a mental or intellectual disability, disorder, disease or illness or a serious addiction to drugs, alcohol or a volatile substance, that results in the person being unable to:

understand that conduct constitutes an offence; or

control conduct that constitutes an offence; and

homelessness that results in the person being unable to control conduct that constitutes an offence.

Importantly, in order to successfully apply to have enforcement orders revoked on the grounds of special circumstances because of a mental or intellectual condition or a drug or alcohol addiction, you must show either that this condition resulted in you not understanding that the conduct was an offence or caused you to be unable to control the behaviour that led to the issue of the fine. If you are applying to have your fines cancelled because you are (or were at the time of the offence) homeless, you need to show that your homelessness resulted in you not being able to control the behaviour that led to the issue of the fine.

If you intend to make an application on the grounds of “special circumstances”, you should provide some or all of the following information to support your application:

A detailed explanation of your circumstances to provide a background as to why the enforcement orders should be revoked.

Details of any mental illness or intellectual disability, or any drug or alcohol addiction, as well as details of your housing status (particularly if you are or have been homeless) that may have resulted in you being unable to understand that your conduct constituted the offences or being unable to control the conduct, i.e. the nature of the condition, the status of the condition at the time of the offences, the current status of the condition, steps taken to address the condition (such as rehabilitative treatment) and the link between your condition and the offence.

Copies of recent reports (i.e. within last 12 months) prepared by relevant health, housing or other relevant workers, which discuss the relevant special circumstances relied upon, and most importantly, the way in which the relevant circumstances have contributed towards the fines being incurred (i.e. if your “special circumstances” application relates to mental illness, intellectual disability or serious drug addiction, you will generally require a letter from a psychiatrist or a general practitioner, although a psychologist’s report may be sufficient if you cannot obtain another report. If relying on homelessness as a special circumstance, you will need a letter from a case worker or another representative, preferably from an agency funded under the Supported Accommodation Assistance Act 1994 (Cth)).

If an urgent application for revocation is required and there is insufficient time to obtain relevant reports, information about the relevant health, housing or other workers from whom a report will be obtained in order to support the application.

Details of your weekly income and expenses (such as accommodation, food, electricity, gas, telephone, transport, medical and miscellaneous expenses).

Other factors such as domestic violence, poverty or mere inability to pay are not sufficient factors in their own right to constitute “special circumstances”. However, these factors can be referred to in an application for revocation for special circumstances where relevant (e.g. family violence might lead to a diagnosis of post-traumatic stress disorder, or aggravate a pre-existing mental illness).


NOTE

If your first application for revocation is unsuccessful you are entitled to apply a second time. If your second application is rejected, you will need to apply to the Magistrates’ Court for leave (i.e. to get their approval) for a third and any subsequent applications. Accordingly, you should include as much detail and supporting information as possible in your application and, if possible, seek legal advice before making an application.



NOTE

Where a medical report is submitted in a revocation application that causes the Infringements Court or an enforcement agency (particularly Victoria Police) to have concerns about your driving ability, they may elect to notify VicRoads. You should be aware that it is a possibility if the circumstances described in your application could be seen as affecting your ability to drive, and that VicRoads may suspend or cancel your licence.


Revocation applications to request variation of costs

You may also decide to apply to the Infringements Court for revocation even if you accept the penalty and that there are not sufficient grounds to have it revoked, but believe that you should not have to pay some or all of the extra costs that have been added during the infringements process and that there are sufficient grounds to vary the amount of those costs. In certain circumstances, the Infringements Registrar might reject an application for revocation but agree to vary some of the additional fees that are attached to the fine. This same result might also be achieved by lodging an application for a payment order, which could be lodged simultaneously with an application for revocation to vary costs (seeApply to the Infringements Court for a payment order”).

If the Infringements Court decides to vary the amount of costs you are ordered to pay, it must send you a notice setting out the new amount that you owe. You then have 28 days from the date of the notice in which to pay the original penalty, plus the new amount of costs (or to apply to enter into a payment plan).

The effect of revocation

If the order is revoked by the Infringements Court, this does not mean you don’t have to pay the fine. It simply means that the Infringements Court has stopped its action to enforce the penalty, and referred the matter back to the enforcement agency for reconsideration. The agency then has 21 days to decide whether it wishes to:

withdraw the infringement notice and take no further action against you; or

do nothing so that the Infringements Court will refer the matter to the Magistrates’ Court for hearing.

If the enforcement agency does decide to withdraw the infringement notice, you will not have to appear in the Magistrates’ Court and will not have to pay the amount of the fine.

If the agency does not tell the Infringements Court within the 21 day period that it is withdrawing the infringement notice, the Infringements Court will arrange for a Magistrates’ Court hearing to decide whether you are guilty of the offence described in the infringement notice. The hearing gives you the opportunity to explain your case. If you are then found guilty of the offence, the magistrate will impose one of a range of sentencing options (see Sentencing in the Magistrates’ Court); you may also be ordered to pay court costs. If you are found not guilty, you will not have to pay any penalty (seeGoing to court”).

If an enforcement order is revoked on the basis of “special circumstances” and the enforcement agency does not request non-prosecution, the matter will be referred to the Magistrates’ Court for hearing and determination in the Special Circumstances List in Melbourne.

Challenging a decision not to revoke

If the Infringements Court refuses your application for revocation, or does not agree to vary the costs and fees added to the amount of a fine, you have the right to challenge this decision by writing to the Infringements Court and asking it to refer the matter to the Magistrates’ Court (s 68 Infringements Act). If you do this within 28 days the matter must be referred to the Magistrates’ Court. If the challenge is made after 28 days, but within three months of the registrar making its decision, the Registrar has discretion as to whether to refer the matter to court. An application cannot be made later than three months after the notice refusing your application for revocation is received.

The Magistrates’ Court can then either:

refuse the challenge and refer the matter back to the Infringements Court for enforcement; or

agree to revoke the order, then proceed to a hearing.

You will need to appear in court to present information in support of your application. If you do not appear, the magistrate will refer the matter back to the Infringements Court for enforcement. If you had a good reason for being unable to attend the court on the hearing day, you will need to seek legal advice about applying to the Magistrates’ Court for a re-hearing to continue your application. SeeGoing to court” and “Referral to court of Infringement Registrar’s refusal to revoke”.

Do community work

If you have an infringements warrant issued by the Infringements Court and you are arrested because you do not have assets that can be seized and sold to pay the penalty (seeWhat happens if I take no action?”), you may be eligible for a Community Work Permit (CWP), which allows you to do unpaid community work under supervision instead of being imprisoned. If you are assessed as eligible and agree to the terms set, you will be released on a CWP for a set period. However, if the outstanding fines exceed an amount of 100 penalty units ($15,167 as at 1 July 2015 – this amount will vary each year) you may not be able to obtain a CWP.

If you have a physical, intellectual or mental illness that would prevent you from doing the work required, you are unlikely to be considered eligible for a CWP. Other reasons why you may not be granted a CWP may include having no fixed address, having a history of serious assaults or sexual offences, failing to comply with previous community correctional orders and receiving WorkSafe payments.

The conditions for a CWP can include any of the following:

complying with directions from your supervisor;

good behaviour;

attendance as required at specified work sites;

not consuming alcohol or using illicit drugs;

carrying a copy of the CWP when not under supervision; and

any other conditions as required.

If you breach the conditions of the CWP then you are guilty of an offence, which may lead to an additional fine. In addition, after failing to comply with a CWP, you will have to appear in court again and the magistrate may decide to cancel the CWP and give you a different sentence (seeInfringement warrant enforcement hearings (‘section 160 hearings’)”).

Under a CWP, the number of hours you will be required to work is calculated at the rate of about $30.33 per hour (or 0.2 of a penalty unit) until the penalty is paid (unless the court sets a different number of hours). There is a minimum of eight hours to be worked and a maximum of 500 hours. The Infringements Act sets out deadlines for completion of your hours under a CWP (e.g. you have six months to complete 125 hours). You must, therefore, have enough free time to commit to community work. It is also worth noting that you cannot be made to complete more than 20 hours of community work per week, although you can request to do more (up to 40 hours per week) if you feel you can manage it and you want to work off the debt more quickly.

If you have more than one CWP, you cannot serve them at the same time (concurrently), unlike with a prison sentence. You will have to serve them one after the other (cumulatively).

In some special circumstances (e.g. if you fall ill), the CWP can be suspended for a period, then resumed. You will need to provide evidence of the circumstances which justify suspension.

What happens if I take no action?

If you take no action in relation to outstanding fines they will eventually turn into infringement warrants. You will then be vulnerable to the following range of enforcement measures that have been brought in under parts 7–12 of the Infringements Act.

Detention, immobilisation and sale of motor vehicles

Part 7 of the Infringements Act gives the sheriff or a police officer the power to detain and immobilise a motor vehicle (such as by wheel-clamping the vehicle or towing it away) when an infringement warrant has been issued against the registered owner. This action may be taken as long as an infringement warrant has been issued, whether or not a seven-day notice has been served.

If your vehicle is detained or immobilised, you have seven days to do one of the following in order to ensure that your vehicle is released:

pay the outstanding penalty plus any costs incurred as the result of the detention, immobilisation or impoundment of the vehicle;

enter into a payment order; or

request that the Infringements Registrar make an attachment of earnings order or an attachment of debts order (seeAttachment of earnings or debt orders”).

Your vehicle also may be released if one of the following occurs:

an application for revocation is granted by the Infringements Registrar or the Magistrates’ Court. You may lodge an application for revocation at this time and until the application has been determined the sheriff must refrain from taking any further enforcement action (i.e. they cannot sell a vehicle that has been seized) (see s 90(2) Infringements Act).

an application against a refusal to revoke an enforcement order is granted;

sufficient property is seized to satisfy the outstanding amount;

you are arrested; or

all infringement warrants are recalled and cancelled by the Infringements Registrar, or expire.

If none of the above actions or events are taken or occur, the sheriff may seize the vehicle or anything left in or on the vehicle and give you at least 14 days notice of their intention to sell the vehicle or thing. Any amount received from the sale that exceeds the costs of the detention and sale of the vehicle and the amount outstanding on the infringement warrants will be paid to you.

Part 7 applies if one or more infringement warrants have been issued against the registered owner of a motor vehicle. This means that action taken to immobilise, detain or remove your vehicle can continue until all your outstanding warrants have been dealt with.

It is important to note that the Infringements Act specifically allows for the sale of the motor vehicle, even where it is the primary mode of transportation and is of any value (specifically excluding the operation of section 42 of the Supreme Court Act 1986 (Vic), which would otherwise protect people from having their motor vehicle seized and sold).

Suspension of driver licence and registration of motor vehicle

Under part 8 of the Infringements Act, a sheriff may direct VicRoads to suspend a driver’s licence or vehicle registration, whether or not the infringement was a motor vehicle offence. This action can only be taken if you have been issued with a seven-day notice and you fail to pay the outstanding fine or have taken no other action. Even if there are multiple infringement warrants, only one seven-day notice needs to be served. The notice of intention to suspend the licence or registration must be served on you personally. Further, the sheriff may direct VicRoads not to renew a driver’s licence or vehicle registration, or not to transfer a registration, whether or not a seven-day notice has been issued.

In situations where multiple infringement warrants have been issued against you, the sheriff is able to make one direction in respect of all of them.

The sheriff cannot direct VicRoads to suspend your driver’s license if you have applied for a payment order or for revocation of your outstanding enforcement order(s), unless and until the application is rejected.

Sanctions under part 8 may only be lifted if other action is taken to satisfy all outstanding fines, such as paying off the fines in full, arranging a payment order, successfully applying to have the fines revoked, having sufficient personal property seized or entering into an attachment of earnings order or attachment of debts order, or if the infringement warrants expire.

Attachment of earnings or debt orders

Under parts 9 and 10 of the Infringements Act, the Infringements Registrar has the power to issue a summons for oral examination (i.e. requires you to attend an examination and answer questions about your financial affairs) and to make an attachment of earnings order or attachment of debt order in relation to outstanding fines. This means that a third party who owes you wages or a debt will be required to pay a specified amount of the wages or debt to the Infringements Registrar instead of to you. These powers are similar to those available under the Judgment Debt Recovery Act 1984 (Vic).

An attachment of earnings or debt order may only be made if you have been issued a seven-day notice and seven days have elapsed without you paying the amount outstanding under the infringement warrant, applying for a payment order or applying for revocation of the enforcement order. It may also only be made if you owe a total of $1,000 or more under all outstanding infringement warrants in your name.

An attachment of earnings or debt order will come to an end when the amount owing is paid in full. You may also apply to the Infringements Registrar to have it come to an end earlier.

Charges over and sale of real property

Charges over real property (i.e. land) are a last resort. However, if you owe a total of $10,000 or more under all outstanding infringement warrants in your name – and if other enforcement action has been unsuccessful or unsatisfactory or is not possible or is not appropriate – the sheriff may apply to the Magistrates’ Court for an order that a charge be placed over land that you own or co-own.

If the charge remains on the land for more than three months and the amount owed under the warrant is still outstanding, the sheriff may apply for an order permitting the sale of the property, after having notified you of their intention to do so.

Arrests and imprisonments

You may be arrested under an infringement warrant if you do not have enough personal property to cover the amount owed under the warrant and there are no other means of dealing with the penalty. It is very important to seek legal advice before the hearing. Refer tog Infringement warrant enforcement hearings (‘section 160 hearings’)”.