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

There are a number of stages in the infringements process, and your options change according to the stage the matter has reached.

Before you decide what to do, look 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 to take the option that is 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 or Victoria Legal Aid (see Legal services that can help).

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

1 do nothing (not recommended);

2 pay the fine;

3 ask the enforcement agency to internally review its decision to issue the infringement notice (i.e. ask for the notice to be withdrawn or for an official warning to be issued);

4 nominate another driver (for certain vehicle offences);

5 negotiate a payment plan (i.e. ask for more time to pay or arrange to pay the fine in instalments);

6 dispute the fine and take the matter to the Magistrates’ Court;

7 apply to have the enforcement of the fine reviewed by Fines Victoria (i.e. cancelled) – this is also called “enforcement review”;

8apply to withdraw the fine under the Family Violence Scheme;

9 apply for a work and development permit.

Some of these options are only available at certain stages of the infringements process or for certain fines. Some have different results depending on when they are put into effect.

For more information, see the infringements process table.

Deciding which option to take

Before deciding which option is best for your situation, it is important to be clear about exactly how much money you owe in fines.

You may also have other infringement notices outstanding that you are not aware of (e.g. if you have moved house and not received infringement notices).

You can find out how much money you owe from Fines Victoria (seeContacts”). If you request this information, 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 any previous addresses where you might have received infringement notices.

Be careful about providing your current address to staff working at Fines Victoria. This information could be given to the sheriff who may then take action against you to execute any outstanding enforcement warrants (seeWhat happens if I take no action?”, for more information). If you are not comfortable providing your current address to Fines Victoria, you can offer to provide the following information and documentation to help them search for your outstanding fines:

your driver licence number for any parking or traffic infringements;

a photocopy of identification documents;

where possible, details of where, when and what types of fines or infringement notices you may have incurred, including an “obligation number” (this number is on the infringement notice).

If someone else (e.g. a financial counsellor) is obtaining information for you, you must sign a form authorising that person to obtain it on your behalf. Be mindful that a person with the authority to act on your behalf may disclose your current address.

If fines are less than 49 days old, they will not have been registered with Fines Victoria, so you need to write to the relevant enforcement agency (e.g. the Victorian Government Department of Economic Development, Jobs, Transport and Resources, or Victoria Police, or the relevant local council) for details of unpaid fines. The relevant enforcement agency is identified on the infringement notice or penalty reminder notice.

Your options: a step-by-step summary

The following table summarises the infringements process, and your options for dealing with your outstanding fines at each stage of the process. More information about each of the options is provided after the table.

The infringements process

Stage

Time limit

Options and results

1  Infringement notice

(penalty set by legislation)

As specified on notice (usually 21 days but may be longer)

Pay the penalty:

payment completed on time – no further action

payment not completed – go to stage 2

Apply for a payment plan to pay by instalments, or to be given an extension of time to pay

payment completed on time – no further action

payment not completed – go to stage 2

Apply for an internal review (i.e. ask the enforcement agency to review their decision) on the basis of special circumstances (including family violence):

application granted – no further action

application rejected – you have the following options:

pay the penalty within the prescribed time

apply for a payment plan

elect to have the matter heard in court (seeGoing to court”)

apply for a work and development permit (seeWork and development permits” in main text

Apply for an internal review on the basis of exceptional circumstances:

application granted – no further action

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

Apply for an internal review on the basis that the infringement is contrary to the law:

application granted – no further action

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

Apply for an internal review on the basis that you were unaware of the notice having been served and that the infringement notice was not served properly:

application granted – fine will be reissued, go back to stage 1

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

Elect to have the matter heard in the Magistrates’ Court (seeGoing to court” in the main text)

Nominate another driver (motor vehicle offences):

if nomination is accepted, the agency will pursue the nominated driver

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

Note: For some specific offences (i.e. excessive speeding of 25 km per hour or greater over the speed limit and drink and drug-driving) you cannot apply for an internal review and you must nominate another driver within 28 days of receiving the infringement.

Apply for a work and development permit (seeWork and development permits” in the main text)

application granted – no further action

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

For infringements incurred in the context of family violence, apply to the Family Violence Scheme:

application successful – no further action

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

Do nothing – go to stage 2

2  Penalty reminder notice

(penalty plus costs)

14 days

As at stage 1

Note: You cannot make a second request for the enforcement agency to withdraw the fine if a request was already rejected at stage 1.

3  Registration with Fines Victoria – notice of final demand

(penalty and costs; further costs added)

21 days

Pay the penalty and all added costs:

payment completed on time – no further action

payment not completed – go to stage 4

Ask Fines Victoria for an extension of time to pay, for a waiver of the fees and costs and/or to pay in instalments:

application granted and payment completed on time – no further action

application rejected or payment not completed – go to stage 4

Apply to Fines Victoria for an enforcement review of the notice of final demand:

enforcement review granted and the enforcement agency does not commence proceedings within 90 days – no further action

enforcement review granted but the enforcement agency elects to prosecute the matter – matter referred to the Magistrates’ Court (seeGoing to court” in the main text)

enforcement review not granted – in the case of review applications with special circumstances, a second enforcement review application can be made; in the case of all other enforcement review applications, only one application can be made

Note: Decisions made by Fines Victoria can no longer be appealed in the Magistrates’ Court.

For infringements incurred in the context of family violence, apply to the family violence scheme:

application successful – no further action

application unsuccessful – remaining stage 3 options are still available, except for an enforcement review based on family violence as a special circumstance

Apply for a work and development permit (seeWork and development permits” in the main text):

application for a work and development permit approved and permit completed – no further action

work and development permit not completed – go to stage 4

Do nothing – go to stage 4

4  Enforcement warrant 

n/a

As at stage 3

5  Enforcement warrant – seven-day notice

(penalty and costs; further costs added)

 

7 days

As at stage 3

Note: Applications for enforcement review, or to the Family Violence Scheme, for a work and development permit, or for payment arrangements must be made before the seven-day notice period ends, or before an attachment of debt/earnings order is made, or before a vehicle has been seized, or a land charge has been recorded.

6  Execution of warrant – enforcement action

Immediate

Pay the 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

if there are no assets, or the proceeds from the sale are not enough to settle the debt – go to stage 7

Other enforcement measures include:

detention, immobilisation and sale of motor vehicles

removal of number plates

suspension of driver licence and registration of motor vehicle or trailer

attachment of earnings and debt orders

charges over and sale of real property (seeWhat happens if I take no action?” in the main text)

7  Arrest

Immediate or after asset sale

If eligible, agree to the conditions of community work permit:

complete a community work permit to settle debt

breach conditions of a community work permit – go to the Magistrates’ Court (seeGoing to court” in main text)

If ineligible for, or not willing to accept a community work permit, appear in the Magistrates’ Court:

sentenced in the Magistrates’ Court under section 165 of the FR Act (see7 Enforcement warrant hearings (“section 165 hearings”))” in main text).


NOTE

Some types of motor vehicle infringements (e.g. excessive speed and drug 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. You cannot apply for an internal review, an enforcement review, or the Family Violence Scheme for these 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. Young people can apply for a payment plan, or a review of the enforcement agency’s decision, or for a work and development permit, or elect to have the matter heard in court.

However, if an infringement is not paid by a young person, the relevant enforcement agency can refer the fine to the Children’s Courts Children and Young Persons Infringement Notice System (CAYPINS). (See sch 3 Children, Youth and Families Act 2005 (Vic). See also The Children’s Court.)


Option 1: 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 (seeWhat happens after an infringement notice is issued?” and “Summary of options”). Enforcement measures (including wheel clamping and licence suspension) may also be taken against you. If you do not take any action, eventually you can have your car seized and sold; it is also possible that you might be arrested and sentenced to serve time in prison.

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

Notices of final demand and enforcement warrants do not expire. For this reason, it is not recommended that you take no action.

If an infringement notice is for excessive speeding or for a drug-driving or drink-driving offence, doing nothing could have 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).

Option 2: pay the fine

You can pay the fine and any added costs at any stage of the infringements process until an enforcement warrant is executed. However, the longer you wait to pay the fine, the more expensive it will be. It also becomes more difficult to negotiate payment arrangements that suit your circumstances.

You can pay the penalty within the time indicated on the infringement notice, which is usually 21 days (but check the notice). 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 enforcement agency accepts (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 21-day period has expired and a penalty reminder notice has been sent to you by the enforcement agency, you can still pay the penalty within 14 days. However, there will be additional costs added at this stage.

You can also pay the penalty after the enforcement agency has referred the matter to Fines Victoria and a notice of final demand has been issued.

If you decide to pay the penalty, but do not have enough money to pay the full amount within the time limit, seeArrange a payment plan with the enforcement agency” or “Apply to Fines Victoria for a payment arrangement”.

Option 3: ask the enforcement agency to review its decision

Overview

Under the Infringements Act, you can ask the enforcement agency to review its decision to issue a fine at any time before the fine is registered with Fines Victoria (which is typically 35 days after the infringement notice is served on you).

This process is intended to be a simple and accessible way to request that an impartial person within the enforcement agency reviews the decision to issue the fine.

An internal review may be requested where:

the decision to issue the infringement notice was contrary to law (e.g. a parking ticket was issued when you had complied with the relevant parking regulations);

there was a mistake of identity;

you have special circumstances, or exceptional circumstances, that mean you should not have to pay the fine (see below);

you were unaware of the infringement notice having been served or the notice was not served by personal service:

applications for internal reviews based on these grounds must be made within 14 days of the applicant becoming aware of the infringement notice,

note that an application for an internal review on these grounds does not result in a cancellation of the infringement, instead it gives the person an extra 21 days to consider their options for dealing with the infringement.

An application for an internal review can be made on more than one of the grounds listed above.

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

Note that it is not possible to apply for an internal review for drug-driving or drink-driving offences, for boating offences, or for excessive speeding offences (i.e. 130 km per hour or 25 km per hour over the speed limit).

Internal review process

Each internal review is conducted by an officer not involved with issuing the infringement. Reviews must be completed within 90 days of the enforcement agency receiving the application; although this can be increased by a further period of up to 35 days if the agency seeks additional information. If the agency seeks additional information and you cannot supply it within 14 days, you can request an extension of time. The agency can take additional information into account in deciding your application, even if you provide it out of time. However, the agency is not obliged to consider extra information supplied out of time, so request an extension of time if needed.

Once an enforcement agency receives an application for an internal review, it must suspend any enforcement action until it has completed the internal review and advised you of the outcome.

The agency may decide to cancel the fine and instead issue you with an official warning. If the agency withdraws or cancels the notice, no further action will be taken against you.

If the agency does not withdraw or cancel the notice, you need to consider the options, such as paying the fine, paying the fine in instalments, obtaining an extension of time in which to pay the fine, or contesting the fine by referring the matter to court. Note that unless you have applied for an internal review based on special circumstances, an agency may refuse your application for an internal review and refer the matter to court (see “Going to court”, below). This is a risk you need to be aware of if you apply for an internal review on grounds other than special circumstances.

If you opt to pay the fine, you should pay by the due date on the agency’s notice of its decision or, if no due date is specified, pay within 14 days of receiving notice of the agency’s decision. You can also apply for a work and development permit.

Note that if you do nothing, the infringement will be registered with Fines Victoria. You can then apply for an enforcement review based on special circumstances if special circumstances apply.

Special circumstances

Overview

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 a person being unable to:

understand that conduct constitutes an offence, and

control conduct that constitutes an offence; or

homelessness or family violence that results in a person being unable to control conduct that constitutes an offence.

Special circumstances: condition or addiction

Importantly, to successfully apply to have your fines cancelled because you have 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 your condition caused you to be unable to control the behaviour that led to the issue of the fine.

Special circumstances: homelessness

“Homelessness” is defined in regulation 7 the Infringements (General) Regulations 2006 (Vic). A person is homeless if they are :

  • sleeping rough;
  • couch surfing;
  • living in crisis or transitional housing;
  • living in other accommodation provided under the Supported Accommodation Assistance Act 1994 (Cth);
  • unable to adequately access safe and secure housing;
  • living in rooming houses who do not have a secure tenancy.

If you are applying to have your fines cancelled because you were homeless at the time you were fined, you need to show that your homelessness resulted in you not being able to control the behaviour that led to the fine being issued. This requires a clear causal link between your special circumstances and the offence; this is called the “nexus”.

 

Special circumstances: family violence

“Family violence” is defined in section 5 of the Family Violence Protection Act 2008 (Vic). Family violence is behaviour by a person towards a family member that is physically or sexually abusive, emotionally or psychologically abusive, or economically abusive, or is threatening or coercive, or is in any other way controlling or dominating and causes the family member to fear for their own safety or wellbeing or that of another family member.

Family violence is also behaviour that causes a child to hear or witness, or otherwise be exposed to the effects of, the behaviour outlined above.

If you are applying to have your fines cancelled because you were homeless or experiencing family violence, you need to show that your homelessness or the family violence resulted in you not being able to control the behaviour that led to the fine being issued. This requires a clear causal link between your special circumstances and the offence; this is referred to as the “nexus”.

Exceptional circumstances

While the term “exceptional circumstances” is not defined in the legislation relating to infringements, it may include factors such as poverty, old age, vehicle breakdown, acute illness, or language and literacy difficulties that relate to the offence.

Special and exceptional circumstances applications

Applications on the grounds of special circumstances should be in writing. Provide some or all of the following information to support your application:

Provide a detailed explanation of your circumstances to provide a background as to why the infringement notice (or registered fine) should be cancelled.

Provide details details of any mental illness or intellectual disability, or any drug or alcohol addiction, your housing status (particularly if you have been homeless) or family violence that may have resulted in you being unable to understand that your conduct constituted an offence or made you unable to control the conduct. Examples of details include the nature of the condition, the status of the condition at the time of the offence, the current status of the condition, steps taken to address the condition (e.g. rehabilitative treatment) and, crucially, the link between your condition and the offence.

Provide copies of recent reports written by relevant health, housing and other workers (e.g. a case worker, social worker, doctor, psychiatrist) that support your application. These reports should discuss the relevant special circumstances relied upon, and the way in which the relevant circumstances contributed towards the fines.

If you are relying on homelessness as a special circumstance, you need to provide a letter from a case worker, or (preferably) a representative from an agency funded under the Supported Accommodation Assistance Act 1994 (Cth)). Each report should be signed and dated within the last 12 months, although older reports may be acceptable in the case of conditions that do not change over time (e.g. an intellectual disability).

Provide details of your weekly income and expenses (e.g. accommodation, food, electricity, gas, telephone, transport and medical expenses).

Provide information about other factors (e.g. poverty or an inability to pay) that are not special circumstances in their own right, but can be referred to in an application.

A lawyer, community legal centre or a financial counsellor can help you write the application (see Legal services that can help, and Financial counselling services).


NOTE

Currently there are inconsistencies between various enforcement agencies in their assessment of applications for internal review, particularly in cases of special circumstances.

However, there are now guidelines for enforcement agencies that aim to make decision-making more consistent. Fines Victoria has a role to monitor internal reviews by enforcement agencies, and has the power to make recommendations to enforcement agencies about internal reviews. As a result, it is hoped that the internal review process will be more consistent and transparent.


Option 4: nominate another driver

For some traffic and parking offences, if you are the registered owner of the vehicle but you were not in charge of it when the alleged offence took place, you can nominate another driver.

You cannot nominate another driver if you were issued an on-the-spot fine, or if you were charged with a drink-driving or drug-taking offence, or if your car was unregistered at the time of the offence.You need to provide evidence; for example, the name and address of the person who was driving the vehicle, or a statement (a statutory declaration) that the vehicle was stolen.

In the case of an excessive speeding offence, you must make a nomination within 28 days of the infringement notice being issued. In the case of all other operator onus offences, a nomination must occur before the infringement is registered with Fines Victoria or the Children’s Court and a notice of final demand is issued (which is typically 49 days from the date of the infringement notice).

If the enforcement agency accepts your statement, it has 12 months to commence court action against the other driver instead of pursuing you.

The enforcement agency may refuse to accept your nomination. For example, if the person you nominate as the driver provides a statement that they were not the driver and the agency accepts their statement. The agency has 12 months to commence action against you from the date your nomination of another driver is refused.

Option 5: negotiate a payment plan

You may be able to enter into a payment plan either before or after a notice of final demand has been issued, or after a Magistrates’ Court hearing.

Arrange a payment plan with the enforcement agency

If you do not have enough money to pay the fine within the time limit and a notice of final demand has not been issued by Fines Victoria, try negotiating with the enforcement agency to enter into a payment plan. This will give you more time to pay the fine, or will allow you to pay in instalments (e.g. $20 per fortnight). People under the age of 18 can also apply for a payment plan at this stage. You can also seek to negotiate a payment plan directly with Fines Victoria.

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

Once you apply for a payment plan, any enforcement action is suspended until the application is determined or the payment plan is cancelled.

To apply for a payment plan, write to the enforcement agency as soon as possible after you receive the infringement notice. In the letter, explain your financial circumstances, state how often you would be able to pay, and how much at a time. A financial counsellor can help you work out a payment schedule that you can afford. You may also apply for an instalment plan via telephone.

If the enforcement agency does not give you extra time to pay the fine, you need to decide whether you will pay or contest the fine. You can also apply to Fines Victoria for a payment arrangement instead of the enforcement agency (seeApply to Fines Victoria for a payment arrangement”).

If the enforcement agency accepts your application, but you do not make the agreed payments and it has been 14 days since a payment was due, the enforcement agency will send you a written notice advising you that you have 14 days to make a payment. If you do not make a payment or cancel the payment plan, the infringement resumes at the stage it reached in the infringements process when the plan was first entered into (seeOption 1: do nothing”). However, phone the agency to try to negotiate an alternative arrangement, such as making up the payment in the next instalment.

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

Apply to Fines Victoria for a payment arrangement

You can also apply to Fines Victoria for a payment arrangement, provided that property has not been seized under an enforcement warrant, or a seven-day notice has not expired. Payment arrangements are also available for court fines and multiple infringements; both court fines and multiple infringements can be bundled together into one payment arrangement.

A payment arrangement may give you an extension of time to pay the fine, or it may allow you to pay the fine in instalments.

An application for a payment arrangement can be made online at https://online.fines.vic.gov.au/Pay-by-instalments, or in person at Fines Victoria, or in writing (for address details, seeContacts”). An application must include your full name and current address, a description of your financial circumstances, and the reason you are applying for a payment arrangement.

Fines Victoria investigates your financial circumstances (i.e. your income, expenses, payment history, and whether you are able to pay off the fine within a reasonable time) before deciding whether to make a payment arrangement. Fines Victoria will also consider your liabilities and financial responsibilities and if you have any dependants.

While there is no set monetary limit or maximum duration for a payment arrangement, Fines Victoria’s internal guidelines may apply to guide situations when an application for a payment arrangement might be refused. For example, Fines Victoria’s predecessor, the Infringements Court, applied guidelines that precluded a person from being eligible for a payment arrangement if their total fines exceeded $10,000, or they had previously defaulted on payment arrangements four or more times. Similarly, where an applicant has defaulted on a previous payment arrangement two or three time, Fines Victoria may require an up-front payment towards the balance owed before a person is eligible for a new payment arrangement.

Note that if you are not happy with the payment arrangement offered by Fines Victoria, you may ask Fines Victoria to offer a new payment arrangement with different terms and conditions.

If Fines Victoria makes a payment arrangement, the notice of final demand is “stayed” (i.e. frozen or suspended) as long as you pay by the time set out in the arrangement or continue to make instalment payments according to the terms of the payment arrangement. However, if you do not make the agreed payments, enforcement can resume. If you are struggling to keep up with the payment arrangement, you can apply to Fines Victoria for a variation of the payment arrangement. If you miss making any payments on time, try to negotiate with Fines Victoria to repay the amount so that the payment arrangement is not cancelled.

Although experiencing financial hardship is not technically grounds for a review, consider including in your application a request that the prescribed costs and fees added to the original penalty be waived due to any exceptional circumstances you may be experiencing. This may result in a significant reduction in the ultimate amount payable under a payment arrangement.(see “Requests to waive prescribed costs”, below).

If Fines Victoria refuses to allow you to pay by instalments, and you do not pay the fine within the time limit (21 days from the issue of a notice of final demand), an enforcement warrant may be issued that permits a range of enforcement measures as if you had not taken any action (seeWhat happens if I take no action?”).

If you are unable to pay, seek advice from a financial counsellor or lawyer (see Chapter 2.4 Legal services that can help, and Chapter 5.4:  Financial counselling services).

Payment arrangements and traffic offences

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

Requests to waive prescribed costs

Under section 9 of the FR Act, you may apply to Fines Victoria if you believe that you should not have to pay some or all of the extra costs that have been added during the infringements process and there are sufficient grounds to vary the amount of those costs.

In certain circumstances, Fines Victoria might agree to vary some of the additional costs that are attached to the fine.

This same result might also be achieved by lodging an application for a payment arrangement, which could be lodged simultaneously with an application to waive prescribed costs (see “Apply to Fines Victoria for a payment arrangement”, above).

If Fines Victoria 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 have 21 days from the date of the notice in which to pay the original penalty and the new costs (or to apply to enter into a payment arrangement).

There is no formal application form to request Fines Victoria to waive costs; instead, write a letter. When deciding whether to waive the costs, Fines Victoria will consider whether there were any administrative errors by the enforcement agency or by Fines Victoria that led you to being unaware of the infringement and hence incurring more costs.  Fines Victoria will also consider whether there are any other relevant circumstances or hardships that mean you should not have to pay the extra costs.

Option 6: dispute the penalty and take the matter to court

If you believe you should not have to pay the fine, or should not have to pay the full amount, you may be able to elect to have the matter heard in the Magistrates’ Court. 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, and the relevant enforcement agency will not withdraw the notice.

When the enforcement agency sent you the infringement notice or penalty reminder notice, they may have included a form to fill out to elect to have the matter referred to the court. If not, write to the agency to request a referral.

You cannot elect to have a matter heard in the Magistrates’ Court after it has been registered with Fines Victoria as a notice of final demand.

However, there are other ways fines can end up in the Magistrates’ Court after a notice of final demand has been made (seeGoing to court”). It is important to seek legal advice before electing to have your fines heard in the Magistrates’ Court. This is because the penalties in Magistrates’ Court proceedings can be more severe (seeCourt penalties”).

Going to court is risky. Even if you think you did not commit the offence or you had a good excuse for committing the offence, you are at-risk of being found guilty. This would mean you acquire a criminal record. This is particularly risky for people living in Australia on a visa (see Immigration and refugees).

Option 7: apply to Fines Victoria for an enforcement review

Once you have received a notice of final demand, you or a person acting on your behalf, can apply to Fines Victoria to review the decision of the enforcement agency that issued the infringement notice.

You can apply for an enforcement review if:

the decision to issue the infringement notice was contrary to law; or

the decision to issue the infringement notice involved a mistake of identity; or

you have special circumstances; or

you have exceptional circumstances; or

you were unaware of the infringement.

It is not possible to apply for an enforcement review for drink-driving or drug-driving offences, or for boating offences, or for excessive speeding offences (i.e. over 130 km per hour or 25 km per hour over the speed limit).

How to apply for an enforcement review

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

If you did not commit the offence or had a valid reason for committing the offence, you should apply in writing for an enforcement review.

If there were special or exceptional circumstances, you may apply for an enforcement review. The definition of special and exceptional circumstances is discussed in “Option 3”.

If you did not receive the infringement notice or were unaware that the infringement notice had been served, you can apply to Fines Victoria to cancel the fine; applications must be in writing, must be made within 14 days of the applicant becoming aware of the infringement notice, and must explain why the fine should be cancelled.Note that enforcement review applications that are based on the grounds of the applicant being unaware of the infringement notice being served preserve the enforcement agency’s ability to issue a second infringement in accordance with the Infringements Act.

Enforcement review applications generally

Under the FR Act, any person who has received a notice of final demand may apply to Fines Victoria for an enforcement review.

When determining an application for an enforcement review, Fines Victoria has the power to confirm the decision to serve the infringement notice. Or, if satisfied that sufficient grounds exist, Fines Victoria can cancel the enforcement of the infringement and refer the matter back to the relevant enforcement agency.

If Fines Victoria cancels the enforcement of the infringement, the enforcement agency must withdraw the infringement, or issue an official warning, or commence proceedings in court within 90 days.(see “Note”, below).

An application for an enforcement review can be made at any time until a seven-day notice expires, or a land charge is recorded, or an attachment of earnings or debt direction is made, or a vehicle is seized under a vehicle seizure and sale notice. Therefore, it is imperative to act quickly to submit an enforcement review application. Once an enforcement review application is lodged, enforcement action is put on hold until a decision is made. You can ask for a three-month extension of time to provide supporting material.

An application for an enforcement review must be in writing and should set out the grounds on which the review is sought. The application does not need to be in the form of a statutory declaration. Application forms are normally sent with the notice of final demand, but can also be accessed on Fines Victoria’s website or completed online at https://online.fines.vic.gov.au/request-a-review.

An application for an enforcement review except on the basis of special circumstances can only be made once for any one infringement. An application for an enforcement review can be made a second time on the basis of special circumstances if the first application is rejected by Fines Victoria. An application for an enforcement review on the basis that you were unaware of the infringement must be made within 14 days of becoming aware of the infringement and cannot be made if you failed to update your address within 14 days of your address changing.


NOTE

At the time of writing (1 July 2019), there is some uncertainty in the legislation about the 90-day timeframe that an enforcement agency has to issue an official warning or to commence court proceedings after Fines Victoria cancels an infringement enforcement. Some enforcement agencies believe they can extend this timeframe to up to six months. Currently, litigation is underway to create clarity about this timeframe. If an enforcement agency commences court proceedings outside the 90-day timeframe, seek legal advice (see Chapter 2.4: Legal services that can help).


Enforcement review applications where you have special circumstances

If you have special circumstances, you can apply to have the decision to give you an infringement notice reviewed. The definition of “special circumstances” is the same as for an application for an internal review (seeSpecial circumstances in Option 3 above”).

An application for an enforcement review on the grounds of special circumstances should include particular information and reports (seeSpecial and exceptional circumstances applications”).

If an application for an enforcement review is urgent, and there is insufficient time to obtain the reports, you can apply to Fines Victoria for a three-month stay of the enforcement while you collect your supporting materials. Even where an extension of time is not expressly requested, Fines Victoria usually asks for more information if it is unable to assess your application and gives you 14 days to respond.


NOTE

If your first application for an enforcement review is unsuccessful, you are entitled to apply a second time if you are applying on the grounds that you have special circumstances. There are no longer any appeal rights or options to submit further applications after this stage.


NOTE

A medical report that is submitted with an enforcement review application can cause Fines Victoria or an enforcement agency (particularly Victoria Police) to have concerns about your driving ability; they may notify VicRoads of their concerns. If the circumstances described in your application could be seen as affecting your medical fitness to drive, VicRoads may suspend or cancel your licence or ask you for evidence that you are medically fit to drive.


The effect of cancelling the enforcement of an infringement after an enforcement review

If your enforcement review application is successful, this does not mean you do not have to pay the fine. It simply means that Fines Victoria has stopped its action to enforce the fine, and has referred the matter back to the enforcement agency for reconsideration.

The agency then has 90 days to decide whether it wishes to:

do nothing and thereby withdraw the infringement notice; or

withdraw the infringement notice and issue an official warning; or

issue a charge and summons to prosecute the fines in the Magistrates’ Court.

If the enforcement agency withdraws the infringement notice, you do not have to appear in the Magistrates’ Court and do not have to pay the fine.

If the enforcement agency elects to prosecute, it must advise Fines Victoria of the commencement of that proceeding and the Magistrates’ Court, which will list the matter for a hearing.

If your fines are subject to an enforcement review on the basis of special circumstances and the enforcement agency requests prosecution, the matter will generally be referred to the Magistrates’ Court’s Special Circumstances List.

However, the future of the Special Circumstances List is in doubt under the new fines system. If your application for an enforcement review was made on another basis, the matter will be refered to the Magistrates’ Court’s General List to be heard by a judicial registrar (seeGoing to court” below).

Administrative sanctions and enforcement review

After a notice of final demand is issued, Fines Victoria has broad powers to apply administrative sanctions, including suspending, not granting or not renewing a person’s driver licence or registration.

If your licence or registration has been suspended and you have applied for an enforcement review, you may request, as part of your application, that these administrative sanctions are lifted based on your circumstances pending your application being determined. Note that if your enforcement review application is successful, Fines Victoria must direct VicRoads to cease any driver or vehicle sanctions.

Option 8: apply to the Family Violence Scheme

The Family Violence Scheme is a new option for people who have experienced family violence and who have accrued fines as a result of family violence.

An application can be made to the scheme for the fine to be withdrawn if family violence substantially contributed to the offence or it is not safe for you to name the responsible person.

Applications to the scheme can be made at any stage in the infringements process before:

a seven-day notice expires; or

an attachment of earnings or attachment of debt direction is made; or

a land charge is recorded; or

property is seized or a vehicle seizure and sale notice is issued; or

the infringement is paid in full; or

an application is made for an enforcement review on the basis of family violence special circumstances.

Certain types of offences cannot be dealt with under the scheme, including excessive speeding, drink-driving, drug-driving and boating offences.

Your application needs to establish that the family violence substantially contributed to your ability to control the conduct that constituted the offence. Or that you were the registered operator of a vehicle but the family violence substantially contributed to you being unable to nominate a person as the driver.

For example, you might be eligible under the Family Violence Scheme if you were speeding or running red lights to escape a perpetrator of family violence. Similarly, you may be eligible for the scheme if a perpetrator of family violence accrued tollway fines in your name and it was unsafe to nominate them or stop them from using your car.

Family violence can also include instances of elder abuse by children and grandchildren against older family members. (For more information about elder abuse, see Chapter 9.2 Legal issues affecting older people.)

Applications are determined by a specialist trained family violence team within Fines Victoria.

To apply to the scheme, complete the Family Violence Scheme application form, which includes a statutory declaration detailing your history of family violence and describes the link between the fines and the family violence. Your application also needs to contain one other piece of evidence. For example, a family violence intervention order, a family violence safety notice, a report from a doctor or case worker, or a statutory declaration from another person.

When an application to the scheme is approved, the relevant fines are cancelled and any demerit points accrued are reinstated. This makes this option far more attractive than special circumstances on the grounds of family violence. If the application is successful, there is no need for the applicant to attend court.

In circumstances where you are not the driver accumulating the fines, you can defer nominating another driver for up to six months. This allows you time to consider whether nominating another driver is a safe option. However, even if you decide not to nominate another driver, all the fines that are the subject of a successful application under the scheme will be cancelled.

The Director of Fines Victoria retains the power to send fines back to enforcement agencies for prosecution in limited circumstances, which could result with you being summoned to court. However, the Director of Fines Victoria has indicated that an applicant will be given an opportunity to withdraw their application before this occurs.

Option 9: apply for a work and development permit

Work and development permits (WDPs) have been available since 1 July 2017. WDPs are not currently available for court fines. Fines Victoria may approve, vary, suspend or cancel a WDP.

A WDP enables you to pay off an unpaid fine through non-monetary means, such as:

participating in community work;

completing an approved educational course;

undergoing treatment given by an accredited health practitioner;

receiving financial or other counselling;

participating in a mentoring program (if you are under 25 years of age).

You may apply for a WDP if you:

have a mental or intellectual disability, disorder or illness; or

are addicted to drugs or alcohol; or

are experiencing homelessness; or

are experiencing acute financial hardship; or

have experienced family violence.

Applications for WDPs are made by an “accredited agency” or “accredited health practitioner”. This agency or practitioner effectively acts as your supervisor for the purposes of completing the WDP.

An application for a WDP can be made at any stage of the infringements process, except where:

an infringement is paid;

a seven-day notice has expired;

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

a land charge has been recorded;

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

an infringement has been registered with the Children’s Court.

The work-off rates for WDPs is 6.6 penalty units per month for drug and alcohol counselling and medical treatment, and 0.3 penalty units per hour for all other activities.

Once a WDP is in place, any enforcement of the fine is suspended.

If you complete the WDP, the proportion of the fines worked off under the WDP will be considered dealt with. If you are unable to complete the WDP, you need to consider the other options listed above for dealing with the remainder of your unpaid fines.

If you are interested in this option, seek legal advice (seeChapter 2.4: Legal services that can help) to find out whether you are eligible and if there are suitable accredited sponsors who can assist you.

Unfortunately, at the time of writing (30 June 2018), there is no centralised, publicly available list of accredited agencies that offer WDPs. There is also a limited number of sponsor agencies; however, it is expected that as the WDP scheme rolls out, more sponsors will become available. For the most up-to-date list of WDP sponsors, contact Fines Victoria on 1300 323 483.

What happens if I take no action?

If you take no action in relation to outstanding fines, they will eventually be enforced against you. The new fines system provides for sanctions and enforcement action earlier in the infringements process.

After a notice of final demand is issued by Fines Victoria, you are vulnerable to a range of sanctions (see pts 6, 7, 8, 9 FR Act).

Suspension of driver licences and vehicle registrations

Under part 8 of the FR Act, the sheriff may direct VicRoads to suspend a driver licence or suspend the registration of a person’s vehicle, whether or not the person’s infringement was a vehicle offence. This action can only be taken if you have been issued with a notice of final demand and you do not pay the outstanding fine or have taken no other action. The sheriff may also direct VicRoads to not renew a driver licence or vehicle registration, or to not transfer a registration.

Where multiple enforcement warrants have been issued against you, Fines Victoria can make one direction about all of them.

Fines Victoria must direct VicRoads to end your driver licence suspension if:

you pay your fines in full;

you apply for and are approved for a payment arrangement; or

you apply for an enforcement review and it is granted; or

an attachment of earning debt direction is made; or

sufficient property is seized to cover your fines; or

you are arrested.

Attachment of earnings or debts direction

Under the FR Act (pt 7), where the amount of your fines exceeds $1,000, Fines Victoria has the power to make a direction that your employer, or someone who owes you money, pay money to Fines Victoria.

An attachment of earnings direction is a direction to your employer to pay a proportion of your wages or earnings to Fines Victoria to satisfy your outstanding fines.

An attachment of debts direction is a direction that requires a third person who owes you money to pay Fines Victoria instead of paying you to pay-off your outstanding fines.

Under the FR Act and FR Regulations, there is a protected level of income; an attachment of earnings or a debts direction cannot be applied to this income. Regulation 18 of the FR Regulations states that the protected level of income is “the weekly rate of a year commencing on 1 January that is 75 per cent of the maximum fortnightly basic rate of the Newstart Allowance, payable on 1 January in that year to a person who:

a is partnered; and

b has turned 21 years of age; and

c is without dependant children.”

As at 1 July 2019, the relevant Newstart Allowance rate is $555.70 per fortnight or $277.85 per week. Seventy-five per cent of this weekly income is $416.78 per fortnight or $208.39 per week.

Section 68 of the FR Act enables a fine defaulter to apply within 14 days for a variation or cancellation of an attachment of earnings direction where the direction would cause them to experience financial hardship or would result in the fine defaulter’s earnings to fall below the protected level.

It is anticipated that Fines Victoria may pursue attachment of earnings and debt directions, including against Centrelink recipients. The protections in the Judgment Debt Recovery Act 1984 (Vic) for people considered “judgment proof” do not apply to infringements.

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 $2,000 or more in infringements or court fines in your name – and if other enforcement action has been unsuccessful, or unsatisfactory, or is not possible or is not appropriate – the Director of Fines Victoria 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 28 days, Fines Victoria may serve a notice of intention to sell the land. If, within 14 days, no payment has been made and the amount owed under the warrant is still outstanding, the sheriff may apply for an order permitting the sale of the land, after having notified you of their intention to do so.

Sale of land can occur even if the property is jointly owned. If a charge is recorded against real property you own or jointly own, it is essential that you seek legal advice urgently (see Chapter 2.4:  Legal services that can help). Also consider seeking financial counselling (see Chapter 5.4: Financial counselling services).

In addition to the administrative sanctions listed above, once an enforcement warrant is issued, you are also vulnerable to further enforcement action (see pts 10, 11, 12 FR Act).

Detention, immobilisation and sale of vehicles

Part 11 of the FR Act gives the sheriff or a police officer the power to detain and immobilise a vehicle (e.g. by wheel-clamping the vehicle or towing it away) when an enforcement warrant has been issued against the registered owner.

This action may be taken as long as an enforcement 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 to ensure that your vehicle is released:

pay the outstanding fine plus any costs incurred by the detention, immobilisation or impoundment of the vehicle; or

enter into a payment arrangement; or

enter into an attachment of earnings order or an attachment of debts direction (seeAttachment of earnings or debts direction”).

Your vehicle must also be released if:

an application for an enforcement review is granted by Fines Victoria; you cannot lodge an enforcement review application after your car is seized under a vehicle seizure and sale notice;

sufficient property is seized to satisfy the outstanding amount;

you are arrested;

all enforcement warrants are recalled and cancelled by Fines Victoria.

If none of the above actions occur, the sheriff may seize the vehicle and anything left in or on the vehicle and give you 14 days’ notice of an intention to sell the vehicle (or anything in or on the vehicle).

Any money left from the sale of the vehicle – after the outstanding fines are paid and the costs of detaining and selling the vehicle are covered – is paid to the vehicle’s registered owner.

Part 11 of the FR Act applies if one or more enforcement warrants have been issued against the registered owner of a vehicle. This means that action taken to immobilise, detain or remove your vehicle can continue until all your outstanding warrants have been dealt with.

The FR Act specifically allows a vehicle to be sold, even when it is the owner’s primary mode of transport and is of any value. This specifically excluded the operation of section 42 of the Supreme Court Act 1986 (Vic), which would otherwise protect people from having their vehicle seized and sold.

Removal of number plates

Under part 12 of the FR Act, if an enforcement warrant has been issued, the sheriff or a police officer has the power to remove the number plates from your vehicle and order the suspension of your registration.

This has the effect of increasing the chance that you will be intercepted by police while driving and enable them to execute the enforcement warrant by arresting and bailing you to attend a section 165 hearing (see6 Enforcement warrant hearings (‘section 165 hearings’)”).

If number plates are removed, a notice must be placed on the windscreen advising of the removal.

Number plates must be returned if:

payment in made in full; or

a payment arrangement is made and typically a lump sum deposit is paid; or

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

an application for an enforcement review is granted; or

sufficient property is seized to cover your fines; or

you are arrested.

Arrest and community work permits

You may be arrested under an enforcement warrant if you do not have enough personal property to cover the amount owed and there are no other means of dealing with the fine.

At this stage, you can either be bailed to appear in court under section 165 of the FR Act, or you may be eligible for a community work permit (CWP).

If you are bailed to appear in court, it is very important to seek legal advice before the court hearing (see Chapter 2.4:  Legal services that can help). Also see7 Enforcement warrant hearings (‘section 165 hearings’)”.

If you are eligible for a CWP and agree to the terms, you can complete unpaid community work under supervision instead of going to court.

You may not be eligible for a CWP if:

  • your outstanding fines exceed 100 penalty units (one penalty unit equals $165.22 as at 1 July 2019); or
  • the sheriff thinks you do not have the capacity to perform unpaid community work (e.g. you have a physical, intellectual or mental disability that prevents you from doing the work required); or
  • you have no fixed address; or
  • you are likely to contravene the conditions of a CWP.

    If you breach the CWP conditions without a reasonable excuse, you are guilty of an offence, which may lead to a court-imposed fine.

Also, if you fail to comply with a CWP, you have to go to court and the magistrate may decide to cancel the CWP and give you a different sentence (see6 Enforcement warrant hearings (‘section 165 hearings’)”).

Under a CWP, the number of hours you are required to work is calculated at the rate of 0.2 of a penalty unit per hour 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 FR Act sets out deadlines for completion of 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. You cannot be made to complete more than 20 hours of community work per week. However, you can request to work up to 40 hours per week if you can manage it and you want to work-off the debt more quickly.