Attorney-General’s Guidelines to the Infringements Act 2006 – for Legislating Agencies

These guidelines are made under section 5 of the Infringements Act and take effect on the day of their publication in the Government Gazette. The Attorney-General’s Guidelines to the Infringements Act 2006 published in Gazette G26 on 29 June 2006 are revoked on the day these guidelines take effect.

These guidelines apply to infringement offences made on or after the commencement of these guidelines. Infringement offences made prior to this date are not affected by these guidelines.

The Victorian infringements system operates as part of the wider Victorian criminal justice system. Infringements are an alternative means of dealing with low-level criminal offences, enabling the offence to be dealt with by payment of a fixed infringement penalty, rather than prosecution in court.[2]

An infringement offence is an offence enforced by the issuance of an infringement notice. Infringement offences apply under a wide range of Victorian legislation, including laws relating to road safety, parking, and various regulatory schemes.

An infringement notice is a notice issued by an enforcement agency setting out the particulars of a particular infringement offence and requiring payment of a financial penalty. Infringement notices are more commonly known as ‘fines’ and include officer-issued ‘on the spot’ fines.

An infringement notice will give the person to whom the notice is issued the option to:

• pay the fine specified in the notice in full
• enter into a payment arrangement
• (if the offence is a certain driving-related offence) nominate another person who is responsible for committing the offence
• apply for a review of the fine, or
• elect to have the offence heard by a court.

Addressing a fine, either by paying the fine in full or through alternative means under fines legislation, expiates the offence (except for some offences such as drink-driving, drug-driving and excessive speed, which attract a deemed conviction. Other penalties may also continue to apply, for example demerit points).

If a person does not deal with their infringement fine within the time limits under the Infringements Act (generally 21 days), the matter can escalate. This can result in additional fees prescribed under the Infringement Regulations 2016 or the Fines Reform Regulations 2017 and criminal sanctions being imposed.

If the matter progresses, an enforcement warrant against the person may be issued. This may result in further sanctions, and the fine recipient (if a natural person) may be imprisoned. Imprisonment is always a sanction of last resort.

The infringements system also provides pathways, including review mechanisms and non‑financial options to expiate fines, to assist vulnerable people

Advantages of the infringements system include:

• the avoidance of a conviction being recorded if the infringement is paid (except for some offences such as drink-driving, drug-driving and excessive speed)
• certainty of the penalty amount needed to finalise a matter
• lower maximum fine levels than may apply if the offence is prosecuted in court[3]
• convenience of payment, including through payment plans and payment arrangements for eligible fine recipients
• individual circumstances being recognised without the need to go to court, including through:
  • review mechanisms enabling applicants to apply on grounds including special circumstances or exceptional circumstances[4]​​​​​​
  • the nominations process enabling applicants to nominate another person as the offender for certain driving-related offences where they were not responsible
  • special schemes for vulnerable fine recipients to address their fines such as the Work and Development Permit scheme, the Time Served scheme for prisoners, and the Family Violence scheme
• cost and time efficiencies for enforcement agencies, courts, and defendants.

In Victoria, the issuing, management, and enforcement of infringement notices is governed by the Infringements Act, the Fines Reform Act, the Infringements Regulations 2016 (Infringements Regulations) and the Fines Reform Regulations 2017 (Fines Reform Regulations) (in these guidelines collectively referred to as ‘fines legislation’).

Other relevant legislation that forms part of the broader infringements framework includes the Road Safety Act 1986, Children, Youth and Families Act 2005 (CYF Act), Sheriff Act 2009, Criminal Procedure Act 2009, and the Magistrates’ Court Act 1989.

Infringements can be issued under state and local laws. All infringement notices – whether issued by a state government, local government or other enforcement agency – are governed by fines legislation.

The Infringements Act sets out:

• procedural requirements for the issuance and management of infringement notices, including the provision of payment plans and the conduct of internal reviews by enforcement agencies, and
• a process for matters originating by infringement notice to be referred to the Magistrates’ Court (or, if the fine recipient is a child, the Children’s Court) for hearing and determination.

The Infringements Regulations set out matters required to be prescribed under the Infringements Act, including:

• the statistical data required to be reported by enforcement agencies to the Attorney‑General, and
• the content that must be included on notices served under the Infringements Act, such as infringement notices, official warnings, penalty reminder notices and withdrawals of infringement notices or official warnings.

The Fines Reform Act provides for:

• the enforcement of infringement and court-imposed fines by the Director
• the registration of unpaid infringement penalties with the Director except where the fine recipient is a child, the offence is under a local law, or the offence is otherwise prescribed as non-registrable
• the administration of payment arrangements by the Director
• enforcement review and other schemes administered by the Director (the Work and Development Permit scheme, the Time Served scheme and the Family Violence Scheme)
• unpaid fines to be enforced by the Director through criminal sanctions such as driver and vehicle sanctions (for example, suspension of a driver licence or vehicle registration), charges over land, sale of land, and attachment of debt and earnings, and
• enforcement warrants to be issued by the Magistrates’ Court where fines remain unpaid, authorising other sanctions by the Sheriff of Victoria such as the clamping of vehicles, removal of number plates, seizure of property and arrest of fine defaulters.

Where the fine recipient is under the age of 18 at the time of offending, the CYF Act and the Infringements Act set out the procedure for enforcement of infringement notices. An outstanding infringement fine issued to a child may only be registered for enforcement with the Children’s Court through the Children and Young Persons Infringement Notice System (CAYPINS). It cannot be registered or enforced by the Director.

The Attorney-General publishes an annual report on the infringements system.

The Annual Report contains information about the overall performance of the infringements system, key initiatives, and highlights in relation to fines, and infringements activity and outcomes segmented by offence category and agency type.

Further information about the content of the Annual Report is in the Attorney-General’s Guidelines for Enforcement Agencies.

View previous annual reports on the infringements system

Fines Victoria provides administrative services on behalf of DJCS, supporting the administrative management of infringement fines by many Victorian Government agencies from the time that an infringement fine is issued. These services include sending out infringement-related notices on behalf of agencies, collecting payments, processing payment plans, and undertaking administrative steps to support the internal review process under the Infringements Act.

These responsibilities are in addition to the legislative responsibilities of the Director under the Fines Reform Act, which mainly relate to the registration of unpaid fines for enforcement by the Director.

If eligible to be covered by the Victorian Government’s administrative services through Fines Victoria, an enforcement agency is encouraged to enter a memorandum of understanding with DJCS instead of administering the enforcement of an offence itself. Using Fines Victoria’s administrative services promotes efficiency, consistency of practice, and simplicity for fine recipients. Fines Victoria can:

• assist legislating and enforcement agencies with the operational steps required to onboard a new enforcement agency proposed to enforce infringement offences
• provide general information in relation to enforcement agency responsibilities under fines legislation
• provide updates to enforcement agencies about annual changes to the value of fee and penalty units under the Monetary Units Act 2004, and
• provide operational guidance and information on registering fines with the Director and processes following registration.

For more assistance, enforcement agencies can contact:

• For operational queries about working with Fines Victoria, the agency enquiries contact address at FinesVictoriaAgencyEnquiries@justice.vic.gov.au (External link)
• For general information about fines legislation and details of infringement offences, the ISOU at isou@justice.vic.gov.au (External link)

Infringement offence provisions should generally be in an Act or statutory rule, rather than legislative instruments, and specify the conduct required to commit the offence. This is because provisions in an Act or a statutory rule are subject to existing requirements to consult DJCS, noted below.

The creation of an infringement offence requires clear statutory authority. This means a reference is required to the Infringements Act itself, either expressly in the relevant Act creating the offence, the regulation-making power and, therefore, in the regulations, or both.

Infringement offences in primary legislation

Legislating agencies seeking to create or vary infringement offence provisions in Victorian Acts should consider the application of these guidelines and consult with the ISOU through the process set out in section 2.2 on the consultation process.

In addition to these guidelines, the Guidelines made under the Subordinate Legislation Act 1994 (SLA Guidelines) should be considered when developing any primary legislation that permits infringements offences and penalties to be prescribed in subordinate legislation. The SLA Guidelines state that if a prescribed penalty exceeds 20 penalty unites, it should be in primary, not subordinate legislation.

Infringement offences in regulations

If infringement offences or penalties are to be prescribed in regulations, a legislating agency must first ensure that the regulation-making power under the enabling Act allows for infringement offences to be prescribed.

A legislating agency must consult with the ISOU, through the process set out in the section below, on the proposed statutory rule to meet the requirements of section 6A of the Subordinate Legislation Act 1994 (SLA). Under that provision, the Minister responsible for a proposed statutory rule providing for an infringement offence must complete an infringement offence consultation certificate.

In developing any regulations that contain infringement offences, legislating agencies must also consider the SLA and the SLA Guidelines and the guidance provided by the Office of Chief Parliamentary Counsel on preparing statutory rules.

The SLA requires the infringement offence consultation certificate to be laid before each House of the Parliament with the statutory rule. In the certificate, the Minister must certify:

• that DJCS has been consulted about:
  • enforcing the offence by infringement notice, and
  • the suitability of the offence to be an infringement offence enforced under the Infringements Act
• that these guidelines have been considered in the preparation of the proposed statutory rule, and
• whether the proposed rule meets the requirements set out in these guidelines.

The ISOU must also be consulted in relation to any sunsetting regulations even if they are being remade in substantively the same form.

It is generally appropriate for infringement penalties to be included in regulations as they are dealing with less severe penalties with a lower impact on natural persons (below 12 penalty units, noting the SLA Guidelines note an offence below 20 penalty units may be suitable to be made in regulations).

Generally, an infringement offence and penalty in statutory rules should conform to these guidelines. However, the SLA provides that a Minister may propose that a rule should be made, even if the requirements of the guidelines have not been met. It is expected that Ministers would rarely exercise this option. In these circumstances, the Minister must state the reasons in detail for this approach in the certificate.

When creating or varying infringement offences, legislating agencies are expected to consider, by reference to Guidelines for the creation of infringement offences:

• the suitability of an offence to be infringement offence
• proposed infringement penalty level
• the enforcement agency that will enforce the proposed infringement offence, and
• how the enforcement agency will enforce the offence.

A legislating agency should proactively consult with the ISOU on proposed amendments or statutory rules in relation to new or amended infringement offences as early as practicable. This includes consultation on proposed amendments to infringement penalties and the use of demerit point schemes, such as the demerit point scheme under the Road Safety Act 1986.

If the proposed infringement offence has its elements set out in primary legislation:

• the legislating agency should consult the ISOU on the suitability of the infringement offence and penalty before the proposed amendment is submitted to Cabinet for consideration at the Approval-in-Principle stage, and
• consultation on proposed infringement offences will otherwise occur through the Cabinet coordination process and during drafting of the relevant bill.

If the proposed infringement offence has its elements, or penalties, prescribed in subordinate legislation:

• the legislating agency should consult the ISOU on the suitability of the infringement offence and penalty as soon as a draft of the proposed offences and penalties is available
• consultation on proposed infringement offences may otherwise occur when a proof copy of the regulations is available
• the ISOU will assess the suitability of offences against the criteria in these guidelines
• if there are concerns or further information is required, the ISOU will contact the legislating agency, and
• following the ISOU’s assessment of the offences, the ISOU will confirm DJCS’s agreement for the purpose of the certificate required by section 6A of the SLA.

When consulting the ISOU, legislating agencies should provide the ISOU with a draft of proposed offences and penalties, supported by evidence that the agency has considered the application of these guidelines.

If a legislating agency makes further amendments to its proposals, it must advise the ISOU to allow further consideration and, if necessary, re-assessment of suitability.

An outline of the typical consultation process is at Appendix 2 – Process Outline – Consulting with the ISOU, DJCS about proposed infringements.

In addition to an infringement offence being made in legislation, there are administrative steps that must be completed before an infringement offence can be operationalised. These steps include:

• the completion of a template form by the legislating agency containing details that satisfy the notice requirements in the Infringements Regulations and Fines Reform Regulations (for example, the Act and section number of the offence, penalty level and brief description of the offence). The ISOU provides the legislating agency with the appropriate template form after offences are found suitable to be made infringement offences,
• the generation of a unique offence code enabling registration of a fine with the Director for enforcement. The ISOU will provide the offence code details to the legislating agency. It is the legislating agency’s responsibility to inform enforcement agencies of the offence and offence code, and
• if the offence may be enforced by Victoria Police, the ISOU will advise Victoria Police of any offence code updates for their Code Book, on behalf of legislating agencies.

Establishing a new enforcement agency

Operational steps are also required to establish a new enforcement agency proposed to enforce infringement offences.

If a new enforcement agency is proposed to be established, legislating agencies should ensure the new agency is aware of the Attorney‑General’s Guidelines for Enforcement Agencies. The ISOU can refer legislating agencies to Fines Victoria for operational support to onboard a new enforcement agency.

The legislation creating the offence should specify the commencement date for the offence provisions. It is preferable that infringement offence provisions do not commence on the day that an Act receives Royal Assent, or on the day that regulations are made by the Governor-in-Council. This will ensure Fines Victoria has sufficient time to ready offence codes for use as soon as the offence commences.

The legislating agency must complete the offence code template to create the new offences and provide it to the ISOU:

• at least two weeks before the proposed commencement of the offences if the number of offences being created is low (typically fewer than five offences), or
• a longer period for larger numbers of offences.

This notice period will also ensure that legislating agencies have enough time to notify their enforcement agencies of any changes before the offence codes become operational.

As the introduction of new or varied offences frequently results in changes to related offence codes, it is strongly recommended that new offences and amendments to offences come into operation on the first day of a quarter (on 1 April, 1 July, or 1 October). This is because operationally, many enforcement agencies rely on code books to determine the correct infringement offence codes when issuing infringement notices.

Limiting the frequency with which offences are introduced or amended (and consequently how often new offence codes and descriptions are issued) reduces the number of code books that need to be issued through the year and the likelihood that infringement notices will be issued incorrectly.

For this reason, commencement on 1 January should also be avoided because new code books would need to be issued on 31 December, which is operationally difficult.

Infringement offences are criminal offences. This means that an enforcement agency may choose to prosecute a person instead of issuing an infringement notice, or a person issued an infringement notice may elect to go to court.

If a person is found guilty of an offence, the maximum penalty that can be imposed by a court is generally higher than the corresponding infringement penalty, and the person may have a criminal conviction recorded against them.

Given these consequences, legislating agencies should first consider whether the relevant conduct should be criminalised. This question is relevant to the creation of new offences generally, not solely infringement offences.

Key questions to ask when determining whether the behaviour should be criminally enforced include:

• What is the nature of the public disorder or individual behaviour to be addressed and what is the consequence of that behaviour continuing unregulated or maintaining the regulation in its current form?
• What is the deterrent effect sought by criminal penalties?
• Have other enforcement tools or other means of addressing offending behaviour been considered (as detailed below)?
• Will the proposal adversely affect fairness and the rights of an individual (for example, at common law or under the Charter of Human Rights and Responsibilities Act 2006)?
• Is there a strategy for ensuring community awareness of the new offence, and of rights in relation to the offence? A community awareness strategy should provide information in culturally appropriate and accessible formats, for example by using simple language, in languages other than English, and in large print formats.

A legislating agency should consider whether the offending behaviour could be addressed by a service-based, public health or education response. Legislating agencies should also consider other methods available for enforcement of the proposed offences and formulate an enforcement policy that sets out the hierarchy of enforcement tools that will be used to enforce or respond to breaches of the law. 

Other enforcement tools that may be more appropriate in the circumstances (particularly for regulated entities) include:

• imposing conditions or taking other measures under a licensing scheme
• accepting enforceable undertakings, public warning notices or adverse publicity orders
• issuing civil penalties
• issuing improvement notices or directions to comply, and
• implementing a demerit point scheme.

In the regulation of businesses, trades and industry, infringement notices may be more appropriate for a clear technical breach where the breach is not evidence of systemic non-compliance and would not warrant a more severe response, such as civil or criminal proceedings or an enforceable undertaking.

Similarly, civil penalties may also be a more appropriate enforcement tool for serious misconduct by bodies corporate, that may require a larger financial penalty than is available through the infringements system to deter commercial non-compliance. A civil penalty scheme would enable a lower evidentiary threshold to prove the relevant offence compared to a criminal proceeding (‘on the balance of probabilities’ rather than ‘beyond a reasonable doubt’).

Where conduct should be criminalised, legislating agencies should also consider whether enforcement agencies would gain the administrative benefits of the infringements system.

An enforcement agency can expect to gain savings in time and resources from issuing infringement notices rather than commencing criminal proceedings. However, the infringements system is a trade-off, offering low-cost efficiency while modifying the operation of certain rights (for example, by departing from the general principle that courts are responsible for determining whether a person has committed an offence).

Key questions to ask when determining whether enforcement agencies would benefit from the administrative efficiency of the infringements system include:

• Would enforcement agencies be able to rely on standardised processes?
• Would alleged offenders be likely to pay the fine or challenge it in court? Would the sectors of the community that are obliged to comply with the proposed offence be reasonably expected to have the funds, or to be able to make arrangements, to pay the fine?
• Would enforcement agencies be generating a high enough volume of infringements to establish a range of operational procedures to support use of infringements, including:
  • raising community awareness of the infringement offence and rights in relation to the offence
  • authorising, and training officers to issue infringements
  • developing criteria for referral of matters to court
  • managing payment plans
  • undertaking internal review
  • recording the infringement details needed to provide six-monthly data reports to the Attorney-General, and
  • undertaking compliance monitoring so that those obliged to comply with the offence provisions will be identified and pursued.

Generally, only summary offences will be considered appropriate to be infringement offences.

Imprisonment up to six months

Offences attracting a term of imprisonment of up to six months as a sentencing option are presumed to be too serious to be an infringement offence unless the legislating agency can demonstrate compelling reasons why the offence should be created.

Where a legislating agency proposes to make an offence punishable by a term of imprisonment of up to six months but also seeks enforcement by infringement notice, consideration should be given to creating two offences: a less serious, narrower form of the offence punishable by a fine only, and a more serious offence punishable by a term of imprisonment.

Imprisonment of more than six months

Offences attracting a maximum term of imprisonment of more than six months are not suitable to be infringement offences. This is because such conduct is too serious for the issuing of an infringement notice to be a proportionate response.

Offering a person who faces a potentially significant prison term the opportunity to expiate the offence by paying a fixed infringement fine undermines the public policy objective of the prison sentence. Further, the threat of a lengthy term of imprisonment may lead a person who did not commit the alleged offence, or who has mitigating circumstances, to paying a fine to avoid the risk of being sentenced to imprisonment.

Offences that are indictable or have a statutory minimum term of imprisonment are unsuitable to be made infringement offences. Indictable offences are more serious offences, which are triable before a judge and jury, and generally in a higher court. A more appropriate avenue for enforcing such offences is prosecution.

Generally, offences involving a victim should not be enforceable by infringement notice. This is because the administrative processes used to enforce infringement notices are less likely to provide a forum in which a victim’s circumstances, views and interests can be adequately taken into account.

To ensure that a victim’s interests are recognised, the victim(s) should have the opportunity to:

• express their views in relation to the commencement of proceedings for the alleged offence, and
• outline the impact the offence has had on them.

Generally, offences considered suitable infringement offences require the breach to be readily identifiable by an issuing officer.

Offences requiring an officer to assess a person’s behaviour against certain standards will be presumed unsuitable to be made infringement offences unless the standard is precise and capable of objective assessment. Where an assessment of a person’s behaviour against certain standards is required, a court should decide whether the alleged conduct constitutes a criminal offence, rather than an officer of an enforcement agency.

Offences leaving elements of the offence to the determination of a person or body will also be presumed unsuitable, requiring additional safeguards to be enforceable by infringement. For example, licensing regimes often make it an offence for a person to fail to comply with a term or condition of the licence determined by that licensing body.

Where those terms and conditions are left to the determination of a decision-maker rather than being prescribed in regulations or incorporated in a published industry standard or code, such terms and conditions are not able to be scrutinised by the ISOU for compliance with these guidelines, or by Parliament.

Generally strict and absolute liability offences are suitable to be infringement offences. ‘Strict liability’ and ‘absolute liability’ offences do not require proof of the state of mind (or presumed state of mind) of the accused as an element of the offence. An absolute liability offence does not provide for any excuse or defence, while a strict liability offence permits only a defence of honest and reasonable mistake of fact.

Offence provisions that are not strict or absolute liability offences require proof of the state of mind (or presumed state of mind) of the accused as an element of the offence.[5] Offence provisions with a mental element will contain words that describe the extent of the person’s care, knowledge, or intention, such as ‘becomes aware’, ‘carelessly’, ‘negligently’, ‘recklessly’, ‘knowingly’, ‘intentionally’, or ‘wilfully’. Offences which contain fault elements may, in limited circumstances, be suitable to be made infringement offences.

Complex offences involve:

• judgement of the person’s conduct against a certain standard of behaviour,
• certain elements of the offence being left to the determination of a person or body, or
• a mental element, excuse or defence (for example, the infringement offence of careless driving, in which the offender’s ‘carelessness’ is imputed from their driving behaviour).

When assessing proposals to enforce complex offences by infringement notice, the ISOU will require agencies to outline the expected benefits of enforcement by infringement notice and may require agencies to commit to additional safeguards to prevent infringements being issued in circumstances where the alleged offending is not clear-cut and merits adjudication.

Key factors to consider in relation to the suitability of complex offences include:

• whether the use of infringements could have a disproportionate impact on any sector of the community, including vulnerable members of the community
• the enforcement agency’s safeguards, including the enforcement agency’s operational guidelines to provide additional instruction and safeguards in the exercise of discretion by issuing officers, restrictions on the range or level of issuing officers, restrictions on the classes of persons to whom infringements may be issued, and monitoring or trialling enforcement for a fixed period
• the expected gains to the community arising from the use of infringements, for example the volume of matters that would, if prosecuted, impose a considerable burden on the justice system
• whether community understanding of the offence is likely to be improved by efforts to facilitate awareness of the offence, for example through information campaigns or signs, and
• the form of legislation in which the offence is made. A complex offence sought to be made enforceable by infringement should have its elements set out in primary legislation, not subordinate legislation (although an infringement penalty may be prescribed in regulations), to ensure adequate scrutiny by the Parliament.

If a legislating agency proposed to make a complex offence enforceable by infringement, the agency must advise the relevant enforcement agency so it may prepare offence-specific enforcement guidelines.

Generally, offences will be suitable to be infringement offences when they are sufficiently minor that they do not need to appear on a criminal record.

A significant benefit of the infringements system is expiation. Expiation means that the matter of the offence is taken to be finalised if the infringement has been paid or otherwise dealt with under fines legislation (for example, worked off in non-financial ways through the Work and Development Permit scheme under the Fines Reform Act).

Expiation means that no further criminal proceedings can be taken against the person for that offence and no conviction can be taken to have been recorded for that offence. Further, payment of an infringement penalty is not taken to be:

• an admission of guilt in relation to the offence, or
• an admission of liability for any civil claim or proceeding (for example, a claim of compensation) arising out of the same occurrence.[6]

Legislating agencies should consider whether repeat offenders’ culpability may be understated in criminal proceedings for future offences if the offence were to be made enforceable by infringement. This because the fact a person has paid an infringement fine cannot be referred to in any report provided to a court for sentencing purposes.

Certain offences pre-dating the commencement of the Infringements Act relating to road, transport and marine safety can result in convictions being deemed.[7] However, new ‘deemed conviction’ offences will generally not be considered suitable to be infringement offences, as this is contrary to the principle of expiation.

As an infringement fine is a fixed penalty, the range of circumstances in which the offence is committed must be narrow and sufficiently for the fixed fine to be a proportionate response in all cases. If not, there may be instances where the infringement fine results in a disproportionately lenient or severe penalty for the offence. This means that the infringement offence might not be an effective and/or appropriate deterrent or punishment.

If the behaviour captured by an offence includes a narrow band of minor offending that can be carved out of a broader parent offence, the infringement offence should be limited to those defined circumstances. This will likely require consultation with the Office of Chief Parliamentary Counsel about the structure of the proposed offence provisions.

Some Acts may set out graduated criminal penalties that increase in amount for subsequent offending. The higher fine is intended to deter repeat offending.

By contrast, generally infringement offences should not have a graduated penalty structure because:

• a person’s infringement history is not relevant at the point of issue. Where a person’s prior breaches are relevant for other purposes (such as licensing and accreditation), enforcement agencies have developed other systems (such as demerit points) to record the person’s breach history
• if an earlier infringement notice were to be withdrawn following the different review processes available to fine recipients, an infringement notice with a higher penalty for a subsequent instance of non-compliance would be invalidly issued
• the operational requirements to administer graduated penalties are complex. Enforcement agencies would need to be able to determine a person’s infringement history at the point of issuance. Graduated penalties would therefore be inappropriate for most on-the-spot fines
• the infringements system is intended to respond to minor forms of criminal conduct that are expiated by payment of a fixed penalty. The need for graduated penalties may indicate that subsequent offending is too serious to be dealt with by infringement, and
• repeat instances of non-compliance may indicate an offender has circumstances best considered by a court.

Offences may be suitable to be made infringement offences where certain other consequences apply. Examples of acceptable consequences include:

• the recording of demerit points, driver licence sanctions (for example in relation to traffic infringements under the Road Safety Act 1986) or both
• where an Act permits the fact that an infringement notice has been served to be considered as part of an inquiry or disciplinary action, or
• where additional steps are required to rectify a breach.

Other consequences, like seizure of property suspected to be involved in the commission of an alleged offence, will result in an offence being presumed unsuitable to be made an infringement offence. This is because an infringement is not a conviction, and a seizure of property associated with an infringeable offence would not be subject to the scrutiny of a court.

There are currently two exceptions to this approach where an offender is issued with an infringement notice. These deal with confiscation of graffiti implements under the Graffiti Prevention Act 2007, and the forfeiture of controlled weapons under the Control of Weapons Act 1990. Exceptions were made for these offences in recognition of the significance attached to these forms of offending within the community, the nature of the goods being seized and the need to address these high-volume offences.

To ensure that infringements are used for the enforcement of appropriate offences having considered a range of matters including severity, these guidelines require that the infringement penalty for an individual must be no more than 12 penalty units.

Where the alleged offender is a body corporate and the relevant Act allows for different penalties for bodies corporate, the maximum penalty should be no more than 60 penalty units, being five times the maximum penalty for individuals. This reflects a similar approach to section 113D in the Sentencing Act 1991 for bodies corporate which have been found guilty of an offence against the Crimes Act 1958.

Penalty amounts applicable to children

Lower infringement penalties may be appropriate for fines issued to children, in recognition of the importance of treating children differently from adults and the reduced capacity of children to pay fines.

An infringement penalty is likely to be inappropriate if it exceeds the maximum fine that may be imposed by the Children’s Court unless compelling reasons apply. The statutory caps set out in section 373 of the CYF Act are:

• if the child is under 15 years: one penalty unit per offence, with a maximum of two penalty units in aggregate for more than one offence, and
• if the child is aged between 15 years and 18 years: five penalty units per offence, with a maximum of 10 penalty units in aggregate for more than one offence.

or for either of the above, the maximum fine which may be imposed on an adult, whichever is the lower amount. An infringement penalty for a child should not be equivalent to an adult unless compelling reasons apply.

Infringement penalty amounts should be set:

• at the minimum level required to achieve deterrence of the specific offending behaviour.
• at a level that is proportionate to the gravity of offending behaviour and represents a fair punishment to the defendant, and
• at a level that is equal to or lower than the typical fine that the Magistrates’ Court would impose for that offence, to provide an incentive for the alleged offender to pay the fine instead of choosing to have the matter decided in court.

Infringement penalties should also be set by reference to the court-imposed maximum penalty. An infringement fine should be no more than 25 per cent of the statutory maximum penalty for the offence. A higher proportion of the maximum penalty up to 50 per cent may be justified if there are public interest grounds for exceeding the 25 per cent limit. However, legislating agencies should consider whether this outcome would lead to significantly more people electing to have the matter heard in court.

An infringement penalty should also not be too lenient. For that reason, generally it should not be less than 10 per cent of the maximum penalty that a court could impose if the person were prosecuted.

If the statutory maximum penalty for the proposed offence is more than 120 penalty units, legislating agencies should consider the following options (given the 12-penalty unit limit for natural persons in these guidelines):

• reducing the statutory maximum penalty for the offence to target a narrower range of conduct, or
• creating a separate infringement offence that captures the narrowly and clearly defined conduct at the minor end of the spectrum of seriousness.

If the offence is serious enough to warrant a higher penalty, the suitability of the offence to be an infringement offence should be reconsidered. Making an offence infringeable with higher penalties should only be proposed where there is either:

• a clear public interest ground for doing so, or
• a demonstrable deterrent arising from the level of penalties.

Consideration should also be given to the deterrent effect of higher fines. Research indicates that effective deterrence considers other factors such as the likelihood of detection of the offending behaviour and the perceived benefit of offending, in addition to the penalty value. [8] A 2007 study by the NSW Bureau of Crime Statistics and Research examined the history and subsequent reoffending of 70,000 persons who received a court imposed fine for a driving offence between 1998 and 2000. The analysis failed to find any evidence for a significant relationship between the fine amount and the likelihood that an offender will return to court for a new driving offence, suggesting that higher level penalties may not result in effective deterrence.[9]

[8]: Arie Freiberg, The Tools of Regulation (Federation Press, 2010) 212.

[9] Steve Moffatt and Suzanne Poynton, NSW Bureau of Crime Statistics and Research, The Deterrent Effect of Higher Fines on Recidivism (2007) (External link).

Unless the offence is made under a national scheme, the level of the infringement penalty for the proposed offence should be consistent with penalties applicable for comparable offences in Victorian legislation. Consideration of comparable offences in other jurisdictions is permissible, however, greater weight should be given to comparable offences in Victorian legislation.

The infringement penalty for the proposed offence will need to reflect the seriousness of the offence compared with other infringement offences. The relatively high infringement fine penalty amounts for offences that pose serious risks to the safety of an individual or the public (for example, speeding and drink-driving offences) set a benchmark for the determination of penalties for infringement offences.

Examples of infringement offences tiered by seriousness, are provided at Appendix 4 – Tiered table of infringement offences, as a reference for setting penalties for a proposed infringement offence. The ISOU can provide further guidance on the penalty range appropriate for a proposed offence.

Agencies that are considering the introduction of an infringement offence under a national scheme need to weigh the value of uniformity at a national level against the principles for penalty-setting in these guidelines.

National laws are developed to provide a consistent framework for the regulation of industries that operate nationwide. In recent years, there is increasing regulatory effort devoted to the development of uniform legislation around Australia. Where such schemes have the effect of overriding Victorian policy, consideration will need to be given to the whole-of-government implications of the proposed enforcement regime.

When setting an infringement penalty, it is important to consider the financial implications of the fine to the cohort of persons or bodies corporate obliged to comply with the offence provision.

If the infringement fine represents only trivial expense to the recipient, imposition of the fine may have little punitive or deterrent value. Conversely, if a high fine is imposed, the fine may disproportionately affect those without the financial means to pay. This is particularly relevant when a fine may be issued to a child, as children are less able to pay fines than adults.

This requirement reflects that under section 52 of the Sentencing Act 1991 (if the offender is a child, section 374 of the CYF Act), courts must take into account the financial circumstances of the offender and the burden imposed on the offender.

The fines system also responds to financial hardship which may be caused by a high fine amount. To address the risk that people facing financial hardship will be unable to receive the benefit of paying the fine at infringement stage, the Attorney-General’s Guidelines for Enforcement Agencies requires payment plans to be made available to holders of a Centrelink Pension Concession cards, Veterans’ Affairs Pensioner Concession cards or Gold cards, and Centrelink Health Care cards.

Fine recipients experiencing acute financial hardship may also be eligible to apply for a Work and Development Permit (WDP). The WDP program, which is administered by the Director, Fines Victoria, enables eligible fine recipients to work off their fines in non-financial ways.

Payment plans and the WDP program are discussed in greater detail in the Attorney-General’s Guidelines for Enforcement Agencies.