Review into Victoria Police’s internal review processes for COVID-19 fines

Background

Since March 2020, Victoria Police has issued infringements for breaches of the Chief Health Officer’s Directions under the Public Health and Wellbeing Act 2008 (COVID-19 fines).
In October 2020, a coalition of community legal centres requested the Director, Fines Victoria (the Director) exercise oversight powers contained in Part 3A of the Infringements Act 2006 (the Act) to request information from Victoria Police about internal reviews of COVID-19 fines. The letter raised concerns including a lack of discretion being exercised by review officers, and a lack of fairness and transparency.

On 16 October 2020, the Director exercised his powers under section 53B of the Act requesting information from the Chief Commissioner of Victoria Police on the number of COVID-19 fines and official warnings issued and the outcomes of internal review applications for COVID-19 fines.
The Director also requested a range of sample files and a copy of internal review guidelines or frameworks that assist review officers in their decision making.

The purpose of the Director’s request for information was:

• to review Victoria Police’s internal review processes and practices for COVID-19 fines against the Act and the Fines and Enforcement Services Internal Review Guidelines (FES Guidelines) made under section 53A(1) of the Act; and
• to make recommendations if necessary, to Victoria Police about its internal review processes and practices.

Executive Summary

The review into Victoria Police’s internal review processes for COVID-19 fines (the Review) found that Victoria Police relied on the Traffic Camera Office Penalty Review Guidelines for internal review (TCO Guidelines) when considering applications for internal review for COVID-19 fines.

This report notes improvements made by Victoria Police to the issuance and review of COVID-19 fines. These improvements include updated TCO Guidelines that broadened the discretion of review officers by clarifying ambiguity to state that the grounds of exceptional and special circumstances may be applied to the review of COVID-19 fines. Section 53C(1) of the Act, enables the Director to make recommendations to an enforcement agency. The Review recommends further improvements to Victoria Police’s internal review processes for COVID-19 fines to improve procedural fairness and transparency.

In particular, the Review makes recommendations specific to:

• Updating the TCO Guidelines (Recommendation 1).
• Training for review officers (Recommendation 2).
• Updating decision letters to applicants to provide reasons for decision (Recommendation 3).
• Placing applications on hold while seeking further information from the applicant to support their internal review application (Recommendation 4).

In accordance with section 53C(2) of the Act, Victoria Police responded to the Director indicating in-principle support for all recommendations.

Key Findings

Limitations on discretion

The TCO Guidelines are used by review officers for guidance when considering applications for internal review including review of COVID-19 fines.

The TCO Guidelines and updated advice were provided to Fines Victoria in December 2020. The TCO Guidelines define how discretion can be exercised by review officers when an offence is a ‘safety related offence’. Victoria Police advised that a breach of the COVID-19 directions is considered a safety related offence.

Most decision notes and outcome letters in the sample files refer to the relevant offence as a safety related offence.

Offence type and safety related offence

The TCO Guidelines appear to have been developed specifically for traffic offence reviews reflecting that fines for traffic offences are issued and reviewed within a clear legislative framework under the Road Safety Act 1986 and are generally ‘strict liability’ offences, with the physical elements of the offence generally established conclusively through the evidence obtained from road safety cameras.

COVID-19 fines are issued in a more complex legislative framework.

The Review accepts that a COVID-19 offence involves a significant risk to public safety, however review officers should not be guided by guidelines that appear to have been developed for road safety offences as they are different to COVID-19 offences. For the avoidance of doubt, the guidelines for internal reviews of COVID-19 fines should direct review officers to have regard to the specific circumstances raised in the application.

Grounds for internal review

The grounds for internal review are set out in section 22 of the Act and are explained further in section 6 of the FES Guidelines.

Internal reviews require enforcement agencies to have regard for the considerations applicable to each ground. Depending on the ground, these can include legislated nexus requirements, individual circumstances, and legislated defences or exceptions to the law. Agencies should not limit considerations for each ground because an offence is designated a ‘safety related offence’.

The updated TCO guidelines clearly include exceptional and special circumstances as grounds for review of COVID-19 fines, however it does not provide sufficient guidance to review officers on the evidentiary and nexus requirements to be applied when assessing special circumstances applications.

Recommendations 1 and 2 address the above findings.

Procedural Fairness

Procedural fairness in administrative decision-making relates to the fairness of the process and generally involves the principle of fair hearing and the rule against bias. [1]

[1] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [25] (Gleeson CJ). (External link)

Reasons for the decision

When a decision is made, the person affected should be given reasons to help them understand why the decision was made. The reasons given should weigh the significance of the offence and penalty. The reasons need not be detailed provided they address the grounds of the application.

A review of the sample files found that the applicant’s circumstances were not addressed in the decision letter.

Where an application was rejected, applicants received a letter with generalised reasons. Where an applicant received an official warning, no reasons were provided as to why a warning was issued nor was the applicant advised how reasons for the decision could be obtained.

Recommendation 3 addresses the above findings.

Requests for further information

In the interests of procedural fairness, it is reasonable and appropriate to give applicants an opportunity to provide further information to assist their application. The review found that the relevant reviewing officer could have requested further information as it may have assisted in establishing the circumstances outlined in the application. Section 5.2 of the FES Guidelines states that enforcement agencies should assist applicants to provide sufficient information to establish a ground for review.

Recommendation 4 addresses the above findings.

Prosecuting infringements in the Magistrates’ Court

The review found that the TCO guidelines did not reflect Victoria Police’s current practices in relation to progressing infringements that were subject to a special circumstances review that was denied. However, Victoria Police advised that their current practice is if a special circumstances review is denied, the matter is enforced as an infringement and is not referred to court.

However, the applicant is advised that they can pursue the matter in court if they choose.

Recommendation 1e addresses this finding.

Recommendations for Victoria Police

The following recommendations were made to Victoria Police to improve internal review processes for COVID-19 fines. The recommendations were informed by the issues detailed above and do not assess implementation cost as that is beyond the scope of this review.

Recommendation 1: That TCO’s internal review guidelines should be consolidated into a single version and updated to

• a) Clarify that review officers are entitled to exercise discretion in determining internal review applications.
• b) State that review officers should consider any special or exceptional circumstances relevant to the application regardless of the type of offence. While the threshold imposed for an exceptional circumstances application may be higher for a strict liability or operator onus road safety offence, the limitation must be clearly defined and applied to ensure that exceptional circumstances are considered as a ground for review for all internal review applications in accordance with section 22(1) of the Act. 
• c) Contain clear articulation of the grounds for internal review as set out in the Act and FES Guidelines.
• d) Provide clear guidance to review officers regarding the special circumstances evidentiary and nexus requirements in line with section 6.3.2 of the FES Guidelines.
• e) Reflect Victoria Police’s current practices for the referral of special circumstances applications to the Magistrates Court.

Recommendation 2: Internal review officers are trained to understand the evidentiary and nexus requirements of special circumstance applications in accordance with section 6.3.2 of the FES Guidelines.

Recommendation 3: That internal review outcome letters sent by Victoria Police should cover the following matters

• a) Either:
  i. A clear explanation of the reasons for decision which address the specific grounds of internal review sought by the applicant in particular when the ground is special circumstances, ‘contrary to law’ or exceptional circumstances where the offence involves a mental element; or
  ii. clear information about how reasons for a decision can be requested by the fine recipient.
• b) The decision-making power being exercised, including the statutory power, delegation, or authority.
• c) Where an official warning has been issued to a person who has demonstrated that an intellectual disability, mental illness or other disease or condition contributed to their offending conduct, the following is removed from the outcome letter:
  “As you have been afforded an Official Warning on this occasion, you will be ineligible for another warning for a similar offence for a minimum period of two years from the date of this offence”

Recommendation 4: In accordance with section 23 of the Act, an application be put on hold and additional information requested from the applicant when an application is made

• a) On the grounds of special circumstances and does not include sufficient evidence to meet the special circumstances test under section 3 of the Act; or
• b) On a ground other than special circumstances, does not include sufficient information to establish the ground, and the review officer believes provision of this additional information may lead to a successful outcome for the applicant.

Victoria Police response to recommendations

Victoria Police has advised that all recommendations of the Report are supported in-principle, subject to resolution of outstanding matters related to implementation, agreement on shared responsibility with Department of Justice and Community Safety and a full assessment of funding implications.