Internal review guidelines - Fines and Enforcement Services

A person who has received an infringement notice can apply for an internal review to the enforcement agency that issued the notice. They can also authorise another person (such as a family member, a friend, support worker or solicitor) to make an application for an internal review on their behalf (see section 3.1.3: Applications by an authorised third party).

Corporations and other entities that are not ‘natural persons’ can also make internal review applications.

Generally, if an infringement fine has been issued in the name of a body corporate, the body corporate can apply for internal review in relation to that fine. A body corporate cannot apply for internal review on the ground of special circumstances because those circumstances can only affect natural persons. However, other grounds may be relevant to bodies corporate.

Decision makers should treat applications by bodies corporate in the same way as applications by natural persons.

Only individuals who are authorised company representatives should be permitted to make an internal review application on behalf of a body corporate.

A person who has been issued with an infringement fine can authorise a third party to apply for an internal review on their behalf. Enforcement agencies should only deal with the person to whom the fine was issued or their authorised third party. All requests for a third party to act on behalf of a person should be made in writing. If a third party already has a pre-existing written authority to act on behalf of a person, and the written authority is still in effect, the enforcement agency may rely on that written authority, without needing the third party to complete an additional third party authorisation form.

Who can an applicant authorise?

An authorised third party must be over 18 years of age. An applicant does not need to authorise another person if:

• the person acting on the applicant’s behalf is their lawyer, or
• the person has a power of attorney or other court ordered arrangement, which is current and covers making decisions in relation to infringement matters.

The Infringements Act confines the power to conduct internal reviews to enforcement agencies.[15] ​​An employee of the relevant enforcement agency must conduct the internal review.[16]

Private contractors are not employees of the agency. For this reason, all enforcement agencies must make their own internal review decisions and must not outsource this function to private contractors.

Enforcement agencies must ensure that all internal review decisions are made by enforcement agency staff who are properly authorised to conduct internal reviews. Enforcement agencies should check the relevant legislation and their agency’s policies and guidelines to ensure that the decision maker has the power to make the decision.

The prohibition in the Infringements Act against outsourcing internal review decisions implements a recommendation of a 2020 Victorian Ombudsman report.[17] The Ombudsman’s report concerned an investigation into three councils’ outsourcing of parking fine internal reviews to private contractors. The Ombudsman noted that, while private contractors can provide administrative assistance and support for internal reviews, the practice of outsourcing internal review decisions is likely contrary to administrative law.

Internal review decision makers must act independently. This means that a decision maker must make their decision in an environment that is free from inappropriate influences. In practical terms, no outsider should interfere, or attempt to interfere, with the way in which a decision maker makes their decision.

This is a particularly important principle in cases where enforcement agencies may also find themselves contravening other legislative provisions that prohibit improper conduct and interference in administrative decision making. For example, sections 123 and 124 of the Local Government Act 2020 (External link) expressly prohibit a councillor from misusing their position to improperly influence, or seeking to direct or improperly influence, a member of council staff in the performance of their duties.

Impartiality refers to the state of mind of the decision maker in relation to the matter before them. This principle seeks to ensure that the decision maker is not deciding in their own interest, or in a manner that favours one party over another. Impartiality is based on two fundamental ideas that the decision maker:

• should not have any interest in the outcome of a matter that they are considering, and
• is required to consider all of the applicant’s circumstances before making a decision.

In exercising discretionary powers decision makers:

• must use discretionary powers in good faith and for a proper, intended, and authorised purpose
• should use their discretion in a fair, reasonable, and rational manner
• must consider the individual circumstances raised in an application
• must comply with the Infringements Act
• must not act outside of their powers, and
• should be aware that they do not have an unfettered discretionary decision-making power.

Consistency in decision making should not displace making the correct decision in an individual case. As noted by the Victorian Ombudsman, “the importance of consistent internal review decision making is important, however, this should not be prioritised at the expense of exercising discretion on a case by case basis according to individual circumstances".[23]

If an application is made by or on behalf of a child, the decision maker should take note of additional considerations in recognition that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.[24]

A child does not have the same level of maturity as an adult and may have a diminished ability to understand or control their conduct. Decision makers should consider what can reasonably be expected of children of different ages.

When considering the application, decision makers may choose to be more flexible in the evidence required, the threshold that needs to be met, or the outcome that is most appropriate. After a decision is made, the decision maker may consider providing reasons to the child that clearly explains the relevant offence and how the conduct constitutes an offence. This will support an educative approach to internal review matters involving children.

Official warnings can also be an important tool in educating children without imposing a financial penalty.

1. Determine that the decision maker has power

Check the relevant legislation, agency policies and guidelines to ensure that the person has the power to act or to make the decision.

2. Follow statutory and administrative procedures

It is important that the person who is responsible for exercising discretion follows statutory and administrative procedures.

3. Gather information and establish the facts

Before making a decision, gather information and establish the facts. Some facts might be submitted with an application made to the decision maker. Others might be obtained through inquiries or investigation. This may involve using the power to request further information from the applicant.

4. Evaluate the evidence

Consider relevant evidence and not irrelevant considerations to assist you to determine all the facts. Ensure that you give adequate weight to a matter of great importance but do not give excessive weight to a matter that is of no great importance.

5. Consider the principles of administrative law to be applied

Internal reviews are administrative matters where the decision must be made reasonably, objectively, and in accordance with administrative law principles. The administrative law principles include lawfulness, procedural fairness, independence and impartiality, transparency, efficiency and rationality.

6. Act reasonably, fairly and without bias

Ensure that decision makers act impartially and do not handle matters in which they have an actual or reasonably perceived conflict of interest.

7. Observe the rules of procedural fairness

Before making decisions, the decision maker may be required to provide procedural fairness to anyone who is likely to be adversely affected by the outcome.

8. Consider the merits of the case and make a judgement

Although policies, previous decisions, and court and tribunal decisions may guide the decision maker, it is still important to consider the matter or application on its merits and to make a judgement about the matter under consideration.

9. Keep parties informed, advise of the outcome and provide reasons for the decision

The decision maker should keep relevant parties informed during the decision-making process; they should inform the relevant parties of the outcome; and provide reasons for the decision reached.

10. Create and maintain record

It is vital that records are created and maintained about the issues that were considered in the process, the weight given to the evidence and the reasons for the decisions made.

All applications for internal review must include at least one ground for review, as contained in section 22(1) of the Infringements Act.

The grounds are:

• contrary to law
• mistake of identity
• special circumstances
• exceptional circumstances, and
• person unaware.

Further detailed information about each of these grounds, guidance around evidentiary requirements and options for enforcement agencies after an internal review has been considered is available in section 6: Grounds for internal review of these Guidelines.

Decision makers may take a range of factors into account when applying the internal review grounds to the set of facts before them in the application.

Enforcement agencies may choose to structure the decision-making process by producing a set of questions for decision makers to consider whether there is sufficient evidence to allow the application to be granted. These questions may be designed to help meet administrative law requirements.

For example, a decision maker may consider:

• if required, evidence that supports a connection between the ground being claimed and the condition or circumstance that the applicant is purporting to rely on (considering particularly the standard of proof required and whether a link is demonstrated)
• whether the evidence is authentic, current (where applicable) and provided by an appropriate person (for example, a health practitioner)
• whether the applicant has provided further information, where possible, and when requested to do so and is the further information reliable in the circumstances, and
• whether there are other relevant factors or information of a general nature which may not be able to be evidenced by documentary proof.

Enforcement agencies can refer to section 6: Grounds for internal review of these Guidelines for details of the specific kind of evidence outlined for each ground of internal review.

Once the enforcement agency has made its internal review decision, it must serve the applicant with a written notice of the outcome within 21 days.[34]

• personally
• by post, or
• by email or other electronic means if the recipient meets certain criteria (that the recipient is 16 years of age or older, consents to receive notice electronically and has nominated an electronic address) or if the electronic address of the recipient is contained in a database prescribed under the Infringements Regulations (if any)[35]
• if notice of a review outcome is not served within 21 days, the infringement notice will be deemed to have been withdrawn.[36]

Under the Infringements Act, a document sent by post is deemed to have been served 7 days after the date of the document. A document sent electronically is deemed to have been served at the time it was sent unless it was sent after 4pm, in which case it will be taken to have been received on the next business day.

Documents sent by post are also deemed to have been received even if they are returned undelivered.[37] That protection does not exist if the notice or request is sent by email alone, even if the request for review was received via email and the applicant requested that the notice of outcome be sent to their email address. This is important if the agency needs to rely on service having occurred to move to the next step in the infringements lifecycle. For this reason, agencies may require a postal address as well as an email address from applicants.

While there is a requirement for notifying the applicant of the decision, there is no clear legislative requirement to provide reasons for a decision. However, the principles of procedural fairness may require enforcement agencies to provide the applicant with reasons for the outcome of a decision.

Reasons may be sent automatically as part of the decision sent to the applicant or be available only on request by the applicant. Enforcement agencies should develop a policy on the provision of reasons and establish consistent practice.

Notification could include a section indicating why the decision maker reached their conclusion. It may refer to matters such as:

• validity issues (for example, timelines or standing)
• failure to provide information to support the review ground
• failure to provide information required to establish the nexus between the disability or disadvantage claimed and the conduct involved in the offence, and
• withdrawal of the application or referral of the matter to court.

If provided, a statement of reasons should include an explanation of:

• the power the decision maker is exercising, including the delegation or authority and the relevant section of the Act
• the steps in the reasoning process that led to the decision, linking the facts to the decision. The applicant should be able to understand how the decision was reached, and
• why facts were or were not accepted.[38]

Reasons are not required to be extensive or overly detailed but are an important tool to support the transparency of decision making and fairness of the internal review system.

Using template letters

An enforcement agency can develop standard wording to incorporate into a statement of reasons—for example, setting out the legislative provisions, the relevant policy or guidelines, and general questions to be determined for a decision of the kind in question. A template like this can help the decision maker express and respond to all relevant legal and policy criteria and explain how a discretionary power was exercised.

In this way, template letters can be useful tools in decision writing, however they need to be adapted for the circumstances. The template should be used as a guide or framework for the decision and must be adjusted according to the circumstances of each application. It is a good idea to have a section in the template letter which allows the decision maker to enter free text that relates to the facts of the specific application being considered.

Ideally, the reasons for decision should properly explain:

• the evidence considered
• the findings of fact and how these were reached, and
• how the law applies to the facts in the specific case.

If an applicant makes this claim, the enforcement agency needs to consider:

• whether the officer was authorised to make the decision to serve the infringement notice
• whether the agency complied with all the procedural requirements (as required by legislation)
• whether the officer complied with all the legal requirements for issuing the infringement
• whether the issuing officer made a mistake in deciding to issue the notice
• whether the issuing officer acted improperly or unfairly in deciding to issue the notice, and
• whether all the relevant signs (if applicable) were clear and visible (for example, were parking signs and signage relating to non-smoking areas and liquor licences visible?)
• any evidence provided, on which the applicant has a defence.

Applications for internal review that are made on the ground of contrary to law should (where appropriate) be accompanied with supporting evidence. This may include photographs of parking signage, witness statements or other evidence that goes to establishing facts.

An enforcement agency may make the following decision on reviewing an application for internal review based on the grounds of contrary to law:

• confirm the decision to serve an infringement notice
• withdraw the infringement notice and serve an official warning[40]
• withdraw the infringement notice
• withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as applicable)
• in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
• waive all or any prescribed costs, or
• approve a payment plan.

In some cases, it may be appropriate to do a combination of the actions above, in so far as this is possible.

For applications made on the grounds of contrary to law, the following options are available to the applicant if the application is refused:

• pay the infringement and any prescribed costs by the due date
• where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review 
• apply to the enforcement agency for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court)
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.[41]

The relevant factors decision makers may consider are:

• how was the person identified at the time the infringement notice was issued?
• was there a statutory or procedural requirement for the issuing officer to confirm identity, and, if so, is there evidence this requirement was met?
• did the conduct of the applicant contribute to misidentification at the point of issue? Was the applicant’s conduct unreasonable in the circumstances (for instance, did the applicant intentionally provide another person with their identification)?
• is there any evidence that there was conduct by an authorised officer or a third person that resulted in misidentification (for instance, this might include failure by the authorised officer to follow or document compliance with procedural requirements)?

Applications for internal review on the ground of mistaken identity should (where appropriate) be accompanied by supporting evidence. Examples of supporting evidence for mistake of identity include the applicant’s birth certificate, driver’s licence or passport which shows:

• a different person than the one who received the infringement notice in the applicant’s name, or
• evidence that the applicant could not have committed the conduct because they could not have been in the relevant location.

An enforcement agency may make the following decision on reviewing an application for internal review based on the grounds of mistake of identity:

• confirm the decision to serve an infringement notice
• withdraw the infringement notice and serve an official warning
• withdraw the infringement notice
• withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as applicable)
• in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
• waive all or any prescribed costs, or
• approve a payment plan.

In some cases, it may be appropriate to do a combination of the actions above, in so far as that is possible.

For applications made on the grounds of mistake of identity, the following options are available to the applicant if the application is refused:

• pay the infringement and any prescribed costs by the due date
• where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
• apply to the enforcement agency for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as applicable)
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.[42]

The Infringements Act defines special circumstances in relation to a person as:

• a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness contributes to the person having a significantly reduced capacity —
  • (i) to understand that conduct constitutes an offence; or
  • (ii) to control conduct that constitutes an offence; or
• a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981 (External link) where the serious addiction contributes to the person having a significantly reduced capacity —
  • (i) to understand that conduct constitutes an offence; or
  • (ii) to control conduct which constitutes an offence; or
• homelessness determined in accordance with the prescribed criteria (if any) where the homelessness contributes to the person having a significantly reduced capacity to control conduct which constitutes an offence; or
• family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (External link) where the person is a victim of family violence and family violence contributes to the person having a significantly reduced capacity to control conduct which constitutes the offence
• circumstances experienced by the person that
  • (i) are long-term in nature; and
  • (ii) make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice under this Act or the Fines Reform Act 2014 (External link); and
  • (iii) do not solely or predominantly relate to the person's financial circumstances.[44]

These definitions are expanded upon below.

6.3.1.1 Mental disability, disorder, disease or illness

In accordance with section 4 of the Mental Health Act 2014 (External link) and the definition of ‘disability’ contained in the Disability Discrimination Act 1992 (External link) (Cth) a mental disability, disorder, or disease or illness means a diagnosed medical condition that is characterised by a disturbance of thought, mood, perception, or memory. This may include:

• a total or partial loss of a person’s mental functions, or
• a disorder, disease or illness that affects a person’s thought processes, perception of reality, emotions, or judgment, or that results in disturbed behaviour.[45]

Examples of mental illnesses include, but are not limited to:

• bipolar disorder
• depression and anxiety
• psychosis
• schizophrenia
• severe mood disorder
• antisocial personality disorder
• borderline personality disorder
• post-traumatic stress disorder, and
• attention deficit and hyperactivity disorder.

6.3.1.2 Intellectual disability, disorder, or disease

In accordance with the definitions of ‘disability’ and ‘intellectual disability’ in section 3 of the Disability Act 2006 (External link) and the Disability Discrimination Act 1992 (Cth), an intellectual disability, disorder or disease means a disorder or malfunction that results in a person learning differently to a person without the disorder or malfunction. This includes:

• the coexistence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, which became manifest before the age of 18 years, or
• cognitive impairment, including a neurological condition or acquired brain injury, or a combination of both, which:
  • is, or is likely to be, permanent, and
  • causes a substantially reduced capacity in at least one of the areas of self-care, self-management, or mobility.[46]

Examples of cognitive or intellectual disabilities include, but are not limited to:

• autism spectrum disorder
• dementia
• motor neurone disease
• Parkinson’s disease
• stroke
• Huntington’s disease, and
• acquired brain injury.

6.3.1.3 Serious addiction to drugs, alcohol or volatile substance

A person is considered to have a serious addiction to drugs, alcohol or volatile substances if that person has a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring any time in the same 12-month period:

• tolerance, as defined by either of the following:
  • a need for markedly increased amounts of the substance to achieve intoxication or the desired effect, or
  • markedly diminished effect with continued use of the same amount of the substance.
• withdrawal, as manifested by either of the following:
  • the characteristic withdrawal syndrome for the substance, or
  • the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms.
• the substance is often taken in larger amounts or over a longer period than intended.
• there is a persistent desire or unsuccessful efforts to cut down or control substance use.
• a great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects.
• important social, occupational, or recreational activities are given up or reduced because of substance use.
• the substance use is continued despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance (for example, current cocaine use despite recognition of cocaine-induced depression or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).[47]

Volatile substance – definition

Section 57 of the Drugs, Poisons and Controlled Substances Act 1981 defines volatile substances as:

• plastic solvent
• adhesive cement
• cleaning agent
• glue
• dope
• nail polish remover
• lighter fluid
• gasoline
• any other volatile product derived from petroleum, paint thinner, lacquer thinner, aerosol propellant, or anaesthetic gas, and
• any substance declared volatile by the Governor in Council from time to time.

6.3.1.4 Homelessness

The criteria for determining if a person is homeless is prescribed by the Infringements Regulations.

A person is considered homeless if they —

• are living in crisis accommodation, or
• are living in transitional accommodation, or
• are living in any other accommodation provided under the Supported Accommodation Assistance Act 1994 (External link) (Cth), or
• have inadequate access to safe and secure housing as defined in section 4 of the Supported Accommodation Assistance Act 1994 (Cth).

Common examples include where a person is: 

• without conventional accommodation, for instance, sleeping in parks or on the street, squatting, living in cars or in improvised dwellings
• moving from one form of temporary accommodation to another ­ for example, refuges, emergency hostel accommodation, or temporary space in the homes of family and friends
• living in temporary accommodation because of unsafe living conditions (such as family violence) or inability to afford other housing
• living in a caravan park due to their inability to access other accommodation, or
• living in boarding houses on a medium to long-term basis.[48]

6.3.1.5 Family violence

The definition of special circumstances includes a person who is a victim of family violence within the meaning of section 5 of the Family Violence Protection Act 2008 (FVPA).

‘Family violence’ is:

(a) behaviour by a person towards a family member of that person if that behaviour:

• (i) is physically or sexually abusive
• (ii) is emotionally or psychologically abusive
• (iii) is economically abusive
• (iv) is threatening
• (v) is coercive
• (vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person, or

(b) causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

‘Family violence’ also includes the following behaviour:

• assaulting or causing personal injury to a family member or threatening to do so
• sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour
• intentionally damaging a family member’s property, or threatening to do so
• unlawfully depriving a family member of the family member’s liberty, or threatening to do so, or
• causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

Behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.

The Royal Commission into Family Violence report,[49] tabled in Parliament on 30 March 2016, recognised the difficulties faced by victims within the infringements framework and considered that there are a range of car-related debt issues that arise in circumstances of family violence.

In making recommendations 112 and 113, the Royal Commission considered that family violence arose in circumstances where:

• victims committed infringement offences (including parking and traffic offences) while experiencing family violence (for example, escaping violence), or
• perpetrators of family violence incurred infringements while driving a vehicle registered in the victim’s name and the victim was unable to nominate due to safety fears.

6.3.1.6 Long term condition/circumstances making it impracticable to deal with the fine

A person will be considered to have conditions or circumstances which are long term in nature and which make it impracticable for them to pay or otherwise deal with the fine in a very narrow category of cases.[50]

This sub-ground of ‘special circumstances’ is intended to apply only to a very small cohort of fine recipients who have long-term and extremely serious circumstances that:

• may not have been present at the time of offending, and
• are particularly disabling or incapacitating in nature, and
• result in the person being unable to pay or otherwise deal with their infringement fine.[51]

The legislative test excludes any circumstances that solely or predominantly relate to the person's financial circumstances. The infringements system contains other mechanisms for dealing with financial hardship, including payment plans, payment arrangements and the work and development permit scheme.

Examples include but are not limited to:

• a person undergoing long term involuntary mental health care, for example a Community Treatment Order or a period of involuntary inpatient treatment, that makes them unable to attend courses, treatment, or counselling, or to pay
• a person with a severe physical or intellectual disability that makes them unable to attend courses, treatment, or counselling, or to pay
• people who are sleeping rough, isolated and highly transient, and are unlikely to resolve their circumstances in the foreseeable future, and are unable to deal with their fine in any way.

The definition of ‘special circumstances’ in the Infringements Act requires either:

• a connection or nexus to be made between the special circumstances category and the offending behaviour, or
• the existence of a long-term condition that makes it impracticable for the person to deal with their fine.

6.3.2.1 Establishing the nexus for special circumstances linked to offending behaviour

The decision maker must be satisfied that the special circumstances contributed to a significantly reduced capacity to understand that the applicant’s conduct constituted an offence, or to control that conduct.

Applicants need to show that the special circumstances have contributed to a significantly reduced capacity to understand that the conduct constitutes an offence or control that conduct.

Under the reformulated test, the decision maker must be satisfied that:

• the person suffers from one of the conditions or circumstances that falls within the definition of special circumstances: mental or intellectual disability, disorder, disease or illness, a serious drug/alcohol/volatile substance addiction, homelessness, or family violence, and
• the condition or circumstances contributed to the applicant having a significantly reduced capacity to either understand the conduct constituting the offence or control that conduct.[52]

This means that the condition or circumstance needs to be a factor or cause, but not the only factor or cause, that reduced the applicant’s ability to control or understand the behaviour.

Additionally, the applicant may have some capacity or ability to control or understand their behaviour, but the applicant only needs to show that their condition/circumstances significantly or considerably reduced that capacity.

Examples of where the applicant’s special circumstances contributed to them having a significantly reduced capacity to understand or control their conduct includes: 

• overstaying in a parking spot while sleeping in a car because the applicant was experiencing homelessness
• the applicant not realising an offence was being committed because their mental health condition was triggered in the situation
• failing to vote or complete a census because the applicant was experiencing homelessness and did not receive correspondence about an election or the census.

6.3.2.2 Establishing the long-term condition/circumstances ground

The decision maker must be satisfied that the applicant’s long-term condition makes it impracticable to deal with their fine in any way, including through paying in full, servicing a payment arrangement, completing activities under a work and development permit, or applying for the family violence scheme.

The applicant must show that:

• they have a long-term condition or circumstance
• the condition or circumstance makes it impracticable for them to deal with their fine, and
• the condition or circumstance do not solely or predominantly relate to financial hardship.[53]

For the condition or circumstance to be long term, it should be persistent, continuing indefinitely or for the foreseeable future, or continuing for an extended period of time (for example, a number of years). For a circumstance to be long-term in nature it is not required to be permanent. The condition may not have been present at the time of the offending, and it does not have to be linked to the offending.

The condition or circumstance must be linked to the impracticability to deal with the fine. ‘Impracticable’ is not defined in the Infringements Act, but the ordinary definition is that is that it is not capable of being put into practice, unachievable, unfeasible, or not possible within the means available. The condition or circumstance needs to be particularly disabling or incapacitating in nature.[54]

‘Disabling’ is defined as ‘making [a person] unable’, or ‘weakening or destroying the capability of [a person]’ to do something.[55]​​​​​​

The condition or circumstance needs to be disabling in that it impacts a person’s ability to deal with their fines but is not limited to a ‘disability’ (for example, the circumstance may be family violence, substance addiction, mental illness or homelessness, or physical or intellectual disabilities). Examples of where it is impracticable to deal with the fine includes where the person’s circumstances are such that they:

• cannot undertake WDP activities because they are unable to participate in relevant activities
• do not have capacity to instruct a lawyer, financial counsellor or advocate to act on their behalf
• cannot keep track of or manage their fines because of the long-term, severe condition or circumstance.

While financial circumstances can be considered, the long-term condition/circumstance must be the main cause of the incapacity to use any other option to deal with the fine, including to organise payment.

6.3.2.3 Using discretion around the currency of evidence

The currency of evidence should be considered when contemplating evidence of special circumstances. Generally, evidence provided by professionals or practitioners should be signed and dated within the last 12 months. However, enforcement agencies should take a case-by-case approach to this requirement depending on the condition or circumstance being relied on. For example, where the applicant relies on the ground of special circumstances and cites a lifelong intellectual disability, application of the 12-month rule may not be appropriate.

The following requirements for information may be given to professionals and practitioners to assist them in supporting an application for special circumstances:

• details of the individual providing the information including their name, position, and qualifications
• the relationship the individual has with the applicant (for example, treating physician, case worker, family violence case worker)
• a submission about the applicant’s condition (this may include particulars about the nature of the circumstances/condition), and
• an assessment of whether the applicant’s condition or circumstances impacted the offending conduct or impacts their ability to deal with the fine.

6.3.2.4 Evidentiary requirements

Applications for internal review on the ground of special circumstances should be accompanied by supporting evidence. Acceptable evidence is that which satisfies the decision maker that special circumstances exist. That is, the evidence should confirm:

• the existence of the relevant condition or circumstance, and
• the required connection (or nexus) between that condition and the offending conduct, or the condition and the impracticability to deal with the fine.

Evidence that is acceptable includes (but is not limited to) reports, letters, statements, submissions, statutory declarations, police reports, and family violence safety notices.

Taking a flexible approach to the evidence required ensures that vulnerable people are being diverted from the infringement system, in alignment with the aims of the special circumstances review ground.

Decision makers should also consider the reasonableness of asking for particular information. For instance, proving homelessness requires, in effect, that the person prove a negative i.e. that they do not have a home. This can be difficult to do, and this difficulty of proof is a relevant factor in deciding the reasonableness of requiring written evidence and the nature of that evidence.

On a case-by-case basis, decision makers may consider statements from the applicant, their lawyer, or other representatives that supplements evidence provided by a professional. This supplementary evidence may help clarify the link to the offending or the impracticability of dealing with the fines when the evidence from the professional or practitioner does not include those specific details.

A range of individuals, including professionals and practitioners, can provide evidence if the application is based on:

• a mental or intellectual disability disorder, disease or illness: evidence can be obtained from a medical practitioner, psychiatrist, psychiatric nurse or psychologist and can include a letter, statement or report that includes:
  • the practitioner/counsellor’s qualification and relationship with the applicant and the period of engagement
  • the nature, severity, and duration of the applicant’s condition and/or symptoms
  • an assessment on whether the applicant was suffering from the relevant condition at the time the offence was committed, and
  • whether, in the opinion of the practitioner, there is a connection between the applicant’s relevant condition and the applicant’s offending behaviour.
• a serious addiction to drugs, alcohol or a volatile substance: evidence can be obtained from a medical practitioner, psychiatrist, psychologist, accredited drug treatment agency, drug counsellor, or case worker (from a community or social work facility) and can include a letter, statement or a report. Information that may support an application includes the:
  • practitioner/counsellor’s qualification and relationship with the applicant including the period of engagement
  • the nature, severity and duration of the applicant’s relevant condition and/or symptoms
  • whether the applicant was suffering from the relevant condition at the time the offence was committed, and
  • whether, in the opinion of the practitioner, there is a connection between the applicant’s relevant condition and the applicant’s offending behaviour.
• homelessness: evidence can be obtained from a medical practitioner, psychiatrist, case worker or social worker, health or community welfare service providers and can include a letter, statement, or a report. Information that may support an application includes:
  • the practitioner/case worker’s qualification and relationship and the period of engagement
  • a summary of the applicant’s circumstances
  • whether the applicant was homeless at the time the offence was committed, and
  • whether, in the opinion of the practitioner, there is a connection between the applicant’s homelessness and the applicant’s offending behaviour.
• family violence: evidence can be obtained from family violence case workers or social workers, Victoria Police, medical practitioners or health or community welfare service providers and can include a statement, report, letter, family violence safety notice or a family violence intervention order. Information that may support an application includes:​​
  • the practitioner/case worker’s qualification and relationship and the period of engagement
  • a summary of the applicant’s circumstances
  • whether the applicant was experiencing family violence at the time the offence was committed, and
  • whether, in the opinion of the practitioner, there is a connection between the applicant’s circumstances involving family violence and the applicant’s offending behaviour.
• a long-term condition or circumstance: depending on the condition, the report can be obtained from a variety of relevant professionals to establish the severe or debilitating condition/circumstances. As the condition or circumstance is not limited, the decision maker should assess whether the professional is appropriately qualified to give evidence about that condition, on a case-by-case basis. The professionals listed for the above grounds may guide the decision maker in determining who is appropriately qualified to give the evidence. The information that may support the application includes:
  • the professional’s qualification and relationship and the period of engagement
  • a summary of the applicant’s circumstances
  • whether the condition or circumstance is long-term, and
  • whether, in the opinion of the practitioner, the condition or circumstances makes it impracticable for the applicant to deal with their infringement.

In addition to a report from a professional, evidence that the applicant receives assistance through the National Disability Insurance Scheme or a Disability Support Pension may also support the application.

6.3.2.5 Possible outcomes

An enforcement agency may make the following decision upon reviewing an internal review based on special circumstances:

• confirm the decision to serve the infringement notice[56]
• withdraw the infringement notice and serve an official warning, or
• withdraw the infringement notice.

Enforcement agencies should also note the power under section 17 of the Infringements Act to refer a matter to the Magistrates’ Court. This power must be exercised before the fine is registered with the Director, Fines Victoria (or where it is a non-registerable matter before the expiry of the date for commencing proceedings).

This power does not apply to infringement notices relating to offences to which the provisions listed in section 17(2) apply. The legislation that establishes those offences has separate processes for referring those matters to court.

For infringement notices relating to alleged offences by children, agencies wishing to exercise this power must do so before an enforcement order is issued under Schedule 3 of the Children, Youth and Families Act 2005 (External link) Where the infringement notice matter cannot be registered under that Schedule, the time limit on exercising the power is before the expiry of the period for commencing proceedings in relation to that matter.

6.3.2.6 If the application is refused

For applications made on the ground of special circumstances, the following options are available to the applicant where a decision maker refuses the application and confirms the infringement:[57]

• pay the infringement
• apply for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on behalf of the applicant.[58]​​​​

If an enforcement agency decides to refuse an application for internal review that has been made on the basis of special circumstances relating to family violence, the notification letter to the applicant should set out all the options available to the applicant, including their ability to apply to the Director, Fines Victoria under the Family Violence Scheme (FVS). See section 6.8: Family Violence Scheme (FVS) for further information about the FVS.

Agencies should consider whether the conduct for which the infringement notice was served should be excused because of exceptional circumstances relating to the infringement offence.

Unlike special circumstances, there is no legislative definition of what constitutes exceptional circumstances. The ground is intended to apply to one-off circumstances, all of which cannot be categorised. This category is designed to include circumstances where the applicant has enough awareness and self-control to be liable for their conduct but has a good excuse for that conduct.

Some examples include circumstances where the applicant committed the offence due to unforeseen or unpreventable circumstances including medical emergencies, unavoidable or unforeseeable delay or vehicle breakdown.

The decision-making criterion is whether imposing the infringement is fair in the circumstances.

6.4.1.1 Considering exceptional circumstances on their merits

The Infringements Act does not define ‘exceptional circumstances.’ This means that while agencies may develop policies about what is considered an exceptional circumstance, these policies should not be so rigidly applied that they hinder review officers from considering the merits and circumstances of each application.

For example, an agency policy may state that being unaware of the law is not an exceptional circumstance. An applicant may then state that they were unaware of the law because English is their second language and they have recently migrated to Australia.

The decision maker should consider those specific circumstances and depending on other relevant information, the decision maker may choose to depart from the general policy and decide to withdraw the infringement and issue an official warning. This decision would be within the scope of their discretionary power.

Further, agencies must ensure that decision makers consider the specific circumstances raised in all valid applications, regardless of the offence type. The offence type may be relevant when determining if the infringement should be excused. For example, offences that do not create a significant risk to the public may be withdrawn more readily than offences that impact public safety. However, the type of offence must not prevent proper consideration of the circumstances raised in the application.

For more information and guidance on the exercise of discretion, see section 4.7: Appropriately using discretion in decision making and section 4.8: Ten key considerations to ensure a good decision is made.

Applications for internal review made on the grounds of exceptional circumstances should (where appropriate) be accompanied by supporting evidence.

Decision makers can take any matter a reasonable person would consider as relevant information into account.

Examples of supporting evidence could include:

• medical evidence from medical practitioners
• invoices or receipts
• statutory declarations or affidavits
• witness statements
• photographs
• travel documentation
• police statements or records.

An enforcement agency may make the following decision after reviewing an application for internal review based on the grounds of exceptional circumstances:

• confirm the decision to serve an infringement notice
• withdraw the infringement notice and serve an official warning
• withdraw the infringement notice
• withdraw the infringement notice and refer the matter to Court (Magistrates’ or Children’s Court, as appropriate)
• in the case of an infringement offence involving additional steps, alter or vary those steps provided the alteration or variation is consistent with the Act or other instrument establishing the offence
• waive all or any prescribed costs, or
• approve a payment plan.

In some cases, it may be appropriate to do a combination of the actions above.

For applications made on the grounds of exceptional circumstances, the following options are available to the applicant where a decision maker refuses the application and confirms the infringement:

• pay the infringement and any prescribed costs by the due date
• where an infringement offence involves additional steps and the enforcement agency confirms the decision, the applicant must pay the infringement and perform all the additional steps by either the end of the period specified in the infringement notice or within 14 days after the applicant has been sent advice of the outcome of the review
• apply to the enforcement agency for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate)
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on their behalf.[59]

A person is responsible for their infringement fine even if they have been declared, or are seeking to be declared, bankrupt. A person who is declared bankrupt retains their rights to deal with the infringement notice including submitting a nomination statement or applying for internal review.

When a company is experiencing financial difficulties, it may be placed into external administration or liquidation. Companies that are in liquidation or under external administration may apply for internal review of their infringement fines.

An enforcement agency may consider a person’s bankruptcy status, or a company’s financial status, as evidence of financial hardship. It is also open to an enforcement agency to include a person’s bankruptcy status or a company’s financial status as a relevant consideration in any internal financial hardship policy that the enforcement agency may choose to implement.

Enforcement agencies should also consider the following:

• For individuals: if an individual is experiencing financial hardship and is unable to pay their outstanding fines, enforcement agencies should assist the applicant, where appropriate, to negotiate a payment plan. It will be up to the review officer to decide whether a payment plan is appropriate in a bankrupt person’s particular circumstances.
• For companies in liquidation or companies under external administration: enforcement agencies should require that these applications for internal review may only be made by the liquidator or administrator.

Once an insolvent company is deregistered, it ceases to exist, and infringement fines cannot be recovered. Internal review officers should complete an online ASIC search on a company to determine the company’s registration status before processing any application in the name of a company. For more information, visit the ASIC website (External link)

An enforcement agency must not consider an application made on the ground of ‘person unaware’ if the applicant has not updated their authorised address within 14 days of changing address.[60]​​​​​​

An ‘authorised address’ is:

• an address that is recorded in relation to a person in a register kept by a public statutory authority (including a Director under the Corporations Act 2001 (External link)), if by law that person is required to notify that public statutory body of any change in that address. An example of a public statutory authority is VicRoads.
• in relation to a transport infringement, within the meaning of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 (External link) or a ticket infringement within the meaning of that Part, an address provided by a person to an authorised officer or police officer under section 218B of that Act after that officer has requested the person to state his or her name and address because the authorised officer or police officer believes on reasonable grounds that the person has committed a transport infringement or a ticket infringement, as the case requires.

The enforcement agency must suspend all other procedures (including enforcement action) until the agency has completed reviewing the person unaware application and the applicant has been sent advice of the outcome.[61]

Applications for internal review made on the grounds of person unaware should (where appropriate) be accompanied by supporting evidence. For example, copies of date-stamped passports, boarding passes, removalist invoices and mail theft reports made to Victoria Police.

Where an enforcement agency grants an internal review application on the ground of person unaware, the applicant may:[62]​​​​​​

• pay the infringement
• apply for a payment plan
• apply to the Director, Fines Victoria for a payment arrangement
• apply for a review of the decision to serve an infringement offence under section 22(1)(a), (b) or (c) of the Infringements Act
• nominate another person for the infringement offence (in the case of traffic or parking offences)
• elect to have the matter heard in Court (Magistrates’ or Children’s Court, as appropriate),
• make an application to the Director, Fines Victoria under the Family Violence Scheme, or
• if the person is eligible, an accredited organisation may apply to the Director, Fines Victoria for a Work and Development Permit on their behalf.[63]

If an application on the ground of person unaware is refused, the applicant must pay the infringement amount and prescribed costs (within 14 days of receiving the refusal notice).[64] ​​​​The applicant will have the same alternative payment options available to them as are available for other grounds of review (that is, payment plans or arrangements, court referral or work and development permits (if eligible).

[2] See Division 3 of Part 2 of the Infringements Act 2006 (External link)

[3] Part 2, Division 3 of the Infringements Act 2006 (External link)and Part 17, Division 3 of the Fines Reform Act 2014 (External link)

[4] Section 21(1) of the Infringements Act 2006 (External link)

[5] Section 21(2) of the Infringements Act 2006 (External link)

[6] Section 22(2)(a)(i)(A) of the Infringements Act 2006 (External link)

[7] Section 22(2)(a)(i)(B) of the Infringements Act 2006 (External link). A ‘child’ is defined in section 3 of the Infringements Act 2006 (External link) as a person who is under the age of 18 years but of or above the age of 10 years.

[8] Section 22(2)(a)(ii) of the Infringements Act 2006 (External link) A ‘non-registrable infringement offence’ under the Infringements Act 2006 (External link) has the same meaning as it has under section 3 of the Fines Reform Act 2014 (External link): an infringement that has been prescribed as ineligible for registration, or an offence against a local law, other than a parking infringement.

[9] Section 22(3)(a) of the Infringements Act 2006 (External link)

[10] Section 16 of the Infringements Act 2006 (External link)

[11] Section 24 of the Infringements Act 2006 (External link)

[12] Section 24(3)(a)(i) of the Infringements Act 2006 (External link) and regulation 16 of the Infringements Regulations 2016 (External link)

[13] Section 24(3)(a)(ii) of the Infringements Act 2006 (External link)

[14] Section 24(4) of the Infringements Act 2006 (External link)

[15] Section 24 of the Infringements Act 2006 (External link)

[16] Section 21A of the Infringements Act 2006 (External link)

[17] Victorian Ombudsman, Investigation into three councils' outsourcing of parking fine internal reviews (External link), 25 February 2020.

[18] Section 24(3)(a)(i) of the Infringements Act 2006 (External link) and regulation 16 of the Infringements Regulations 2016 (External link)

[19] Section 24(3)(a)(ii) of the Infringements Act 2006 (External link)

[20] Section 24(4) of the Infringements Act 2006 (External link)

[21] Foster v Secretary of Department of Education & Early Childhood Development [2008] VSC 504, [60]; Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291

[22] Government Employees’ Health Fund Ltd v Private Health Insurance Administration Council (2001) 65 ALD 377

[23] Victorian Ombudsman, Investigation into Maribyrnong City Council’s internal review practices for disability parking infringements (External link), 30 April 2018, p 32

[24] Section 17(2) of the Charter of Human Rights and Responsibilities Act 2006 (External link)

[25] See Exercise of discretion in administrative decision making (External link)

[26] Section 22(2)(b) and (3)(b) of the Infringements Act 2006 (External link)

[27] Section 22(2)(d) and (3)(d) of the Infringements Act 2006 (External link)

[28] Section 22(2)(e) and (3)(e) of the Infringements Act 2006 (External link)

[29] Section 22(1)(a)-(d) and (2)(c) of the Infringements Act 2006 (External link)

[30] Section 23(1) and (2) of the Infringements Act 2006 (External link)

[31] Section 23(3) of the Infringements Act 2006 (External link)

[32] Section 23(4) and (5) of the Infringements Act 2006 (External link)

[33] Section 23(6) of the Infringements Act 2006 (External link)

[34] Section 24(3)(b) of the Infringements Act 2006 (External link)

[35] Section 162(1) of the Infringements Act 2006 (External link)

[36] Section 24(4) of the Infringements Act 2006 (External link)

[37] See sections 162(6) and 163A of the Infringements Act 2006 (External link)

[38] Administrative Review Council ‘Decision Making: Reasons’ Administrative Review Best Practice Guide, 2007, pp 7 – 9

[39] The formal legal requirements for an infringement notice are set out in section 13 of the Infringements Act 2006 (External link), and regulation 14 of the Infringements Regulations 2016 (External link)

[40] These guidelines do not extend to providing guidance on the service of official warnings by enforcement agencies. It is a matter for enforcement agencies to develop their own policies and procedures for issuing and serving official warnings.

[41] Further detail on Work and Development Permit options and eligibility are available on the Fines Victoria website (External link)

[42] Further detail on Work and Development Permit options and eligibility are available on the Fines Victoria website (External link)

[43] Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2187, (Rob Hulls MP, Attorney-General)

[44] Section 3A(1) of the Infringements Act 2006 (External link)

[45] This guideline is adapted from section 4 of the Mental Health Act 2014 (External link) and the definition of ‘disability’ in section 4 of the Disability Discrimination Act 1992 (External link) (Cth).

[46] This guideline is taken from the definitions of ‘disability’ and ‘intellectual disability’ in section 3 of the Disability Act 2006 (External link)and the definition of ‘disability’ in section 4 of the Disability Discrimination Act 1992 (External link)(Cth).

[47] This is based on the definition of substance dependence in the Diagnostic and Statistical Manual of Mental Disorders: DSM-V, (American Psychiatric Association, 5th ed, 2013).

[48] These examples are based on the Chamberlain and MacKenzie definition of homelessness, a commonly used definition in Australia.

[49] See the Royal Commission into Family Violence website (External link)

[50] Victoria, Parliamentary Debates, Legislative Assembly, 27 October 2021, 4246 (The Hon Martin Foley MP, Minister for Health)

[51] Clause 56 of the Explanatory Memorandum to the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (External link)

[52] See section 3A(1) of the Infringements Act 2006 (External link) and regulation 7 of the Infringements Regulations 2016 (External link)

[53] See section 3A(1) of the Infringements Act 2006 (External link)

[54] Clause 56 of the Explanatory Memorandum to the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (External link)

[55] Macquarie Dictionary (online) (External link) - accessed 21 April 2022.

[56] Note that an applicant will have alternative payment options available to them to discharge the infringement as outlined in Section 6.3.2.5. If the application is refused.

[57] Section 25(3) of the Infringements Act 2006 (External link)

[58] Further detail on Work and Development Permit options and eligibility is available on the Fines Victoria website (External link)

[59] Further detail on Work and Development Permit options and eligibility is available on the Fines Victoria website (External link)