Person unaware - Guidance to agencies

Internal review

If a fine is at the infringement stage, a person can apply for internal review on the ground that they were unaware of the infringement notice.

What are the requirements to apply for review on the ground of person unaware?

An application made on the ground of ‘person unaware’ must:

• be made within 14 days of the applicant becoming aware of the infringement notice (a person may provide evidence of the date they became aware of the infringement notice in a statutory declaration)
• be in writing
• state why the fine should be reviewed
• provide the applicant’s current address for service
• only be made once in relation to any one infringement offence
• not be made in relation to an infringement notice personally served on the applicant.

A person can apply under this ground even where the infringement notice was lawfully served to the authorised address for the person, provided they show why they were not aware of the fine. For example, because their mail was stolen or lost in delivery or not received because they were overseas.

Some offences, for example tolling and traffic offences (excluding parking offences) or offences resulting in a ‘deemed conviction’, are not eligible for review on this ground. Refer to the Internal Review (External link) Guidelines (External link)for further information on ineligible offences.

How should agencies decide if a person was unaware of their fine?

Agencies must review whether it is likely that, more than 14 days before applying for review, the person was not aware that the infringement notice had been served. This is a question of fact for the agency to determine based on the information provided by the applicant. Agencies may also wish to take into account previous contact they have had with the applicant in relation to the fine.

A person failing to update their authorised address within 14 days of a change of address is not a valid reason for a person being unaware of their fine.

The Internal Review Guidelines (External link)provide information on other relevant matters, including:

• what is an “authorised address”
• evidentiary requirements
• how long agencies have to consider an application
• what happens to a fine while the agency is considering an application, and
• whether agencies can request additional information from an applicant.

What happens if the application is granted?

If the application is granted, the applicant has 21 days from receiving the review outcome notice to:

• pay the infringement penalty (without any penalty reminder notice fees)
• enter into a payment plan or payment arrangement
• apply for a review of the decision to serve the infringement notice under one of the other grounds of internal review
• nominate another person for the infringement offence
• elect to have the matter heard in 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 their behalf.

If the applicant does not take action, enforcement can resume on the fine from the stage it was at before the application. For example, by being eligible for registration if the penalty reminder notice has lapsed.

What happens if the application is refused?

If the application is refused, the applicant has 14 days from receiving the review outcome notice to:

• pay the fine
• apply for a payment plan or payment arrangement
• nominate another person for the infringement offence
• elect to have the matter heard in 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 their behalf.

Does an agency need to re-issue the infringement notice if the application is granted?

Agencies are not required to reissue a fine subject to an internal review application on the ground of person unaware. The original infringement notice remains valid, whether the application is granted or refused.

Enforcement review

If a fine is registered with the Director, Fines Victoria (the Director) for enforcement, a fine recipient can apply for enforcement review on the ground of person unaware.

Under the Fines Reform Act 2014, applications made to the Director are determined based on information provided by the applicant. Fines Victoria is unable to consider information provided by agencies when assessing enforcement review applications.

What can an agency do if enforcement is cancelled on the person unaware ground?

If the Director cancels enforcement of a fine on the ground of person unaware, the fine is deregistered and referred back to the agency to be dealt with under the Infringements Act 2006. Any fees and costs added to the penalty amount are waived and both the fine recipient and the agency have the same options available to them under that Act as if the fine had just been issued.

For agencies, this will include:

• withdrawing the infringement notice and taking no further action
• issuing a new infringement notice
• issuing an official warning
• commencing proceedings for the alleged offence.

The options then available to the fine recipient will be dependent on the action taken by the agency.

How can an agency re-register an infringement notice after enforcement was cancelled on the person unaware ground?

Agencies should withdraw the infringement notice and issue a new notice if they intend to pursue the matter by way of an infringement fine. This makes the due date for action clear to the fine recipient and ensures the fine can operationally be re-registered for enforcement with the Director, if eligible to be registered.

If an agency wishes to re-register the fine for enforcement after enforcement cancellation, they need to do so before the expiration of six months from the date of the alleged offence. This time frame applies regardless of whether the original infringement notice is withdrawn and replaced by a new notice.

The only exception is where one of the grounds for an extended period of registration applies (see Fines Reform Act 2014 s 17). Examples include where a payment plan has been in place and the fine recipient subsequently defaults, or the fine is re-issued to a person nominated by the fine recipient.