Internal review in the infringements system - Guide to good practice

Background

The Director, Fines Victoria’s internal review oversight function set out in Part 3A of the Infringements Act 2006 aims to improve the internal review practices of enforcement agencies through education and performance monitoring.

This guide provides good practice examples of how the principles set out in the Department of Justice and Community Safety’s Internal Review Guidelines can be applied by enforcement agencies. The examples provided move beyond the foundational legislative requirements and focus on good administrative law practices.

The guide includes key learnings from the Director’s recent ongoing monitoring and compliance activities including:

• additional examples of internal review good practices provided by enforcement agencies
• advice regarding the use of legislated outcomes
• managing internal review complaints
• advice regarding the promotion of options in outcome letters and social justice initiatives for unsuccessful internal reviews, and
• an updated template outcome letter to enhance readability, promoting all available options and providing information on how to exercise each option.

The guide is divided into the following sections:

• decision-making and discretion in internal reviews
• communication
• impartiality and independence
• continuous improvement
• culture and leadership.

The guide is intended to provide general guidance only and should not be relied on as legal advice. Enforcement agencies should consider their specific context, operating environment, organisational priorities, and community expectations when implementing an internal review system. Enforcement agencies should obtain their own legal advice to ensure that their internal review practices are legally compliant.

In this document, ‘decision maker’ or ‘review officer’ refers to the person authorised by an enforcement agency to determine internal review applications for that agency.

We thank the following enforcement agencies involved in developing this guide, for volunteering their time, policies, guidelines, sample decisions, and other materials.

Agency acknowledgements:

• Baw Baw Shire Council
• City of Boroondara
• City of Greater Bendigo
• City of Melbourne
• City of Port Phillip
• Department of Transport and Planning
• Hume City Council
• Knox City Council
• Wyndham City Council.

Decision-making and discretion in internal reviews

The scope of the decision-making power afforded to internal review decision makers (decision makers) means that the exercise of discretion is often required. Decision makers should exercise discretion lawfully, fairly, and in line with the purposes of the internal review function.

Discretion exists when the decision maker has the power to make a choice about the outcome of an internal review, that is, confirm, withdraw, or issue an official warning. Good decision making can be supported by policies or decision-making tools established by enforcement agencies.

When exercising discretion, decision makers need to act reasonably and impartially.  Decision makers should act in their professional capacity and not be influenced by personal prejudices or biases.

Each case must be assessed on its own merits. This means that consistency should not override the appropriate use of discretion in the decision-making process. As noted by the Victorian Ombudsman:

“The importance of consistent internal review decision making is also acknowledged, however, this should not be prioritised at the expense of exercising discretion on a case-by-case basis according to individual circumstances.” [1]

[1] Victorian Ombudsman, Investigation into Maribyrnong City Council’s internal review practices for disability parking infringements, 30 April 2018, p 32.

Good practices observed

• Encourage decision makers to adopt a principle-based approach.
  • A principle-based approach could consider the plausibility, foreseeability, and reasonableness of the application.
  • A principle-based approach could also use a decision-making tool that requires decision makers to reflect on and consider the appropriateness of their decision.

• Ensure that decision makers consider the entirety of the application, make decisions that are fair and reasonable and do not apply blanket rules.
  • If a matrix or decision guidance document is used, remind all decision makers that all applications have individual circumstances that must be considered in every situation, and that they have the power (when appropriate) to make decisions outside of the matrix.

• Permit decision makers to consider and accept various types of evidence, and evidence of varying quality, based on the individual circumstances of each case but also providing guidance to achieve consistency in decision making.

• Ask applicants for further information, when necessary, to give them a chance to support their application.
  • Clearly explain the information required when requesting further information from the applicant.
  • For unsuccessful review applications where additional information was requested but not provided, it is also good practice to ensure that the explanation to the applicant makes it clear that their application failed because they did not provide sufficient evidence to establish the ground of review (i.e. that although their failure to provide additional information contributed to the failure to establish the ground, the non-response was not in itself the reason why their application was rejected).

• Adopt a flexible approach to review if an applicant applies on the wrong – or an inappropriate – ground of review.
  • A flexible approach could include reclassifying the ground or advising an applicant to resubmit the application on the ground that would result in a better outcome.

• Consider applications based on financial hardship, educational disadvantage and other socio-economic issues.
  • Agencies may consider these types of applications under the exceptional circumstances ground.
    • Issuing agencies have broad discretion to determine whether issuing an infringement fine is appropriate in particular circumstances.
    • Agencies also have a broad power under section 18 of the Act to withdraw a fine for any reason, including those set out in section 18(2).

• Provide guidance on the use of official warnings but allowing decision makers to use their discretion and determine when it is appropriate to issue an official warning instead of an infringement notice.
  • It may be appropriate to use an official warning in circumstances where the applicant attempted to comply with the law but mistakenly or accidentally did not comply.

• Ensure that where the outcome of an internal review is the withdrawal of the infringement notice and issue of an official warning in its place, this is documented and communicated as such to the fine recipient. Consistent with the outcomes provided for in section 25 of the Act, an official warning should be described as an official warning and not, for example, as a “caution”.

• Consider internal review complaints or new information.
  • If your agency receives a complaint about an internal review decision, it should be managed in line with your complaints management process.
  • If new information is received about a fine that is subject to internal review, it should be referred to your internal review team.
  • Once an internal review decision is made, you do not have an express power under the Act to remake it. However, in situations where an error has been made or a different outcome would be fairer or more appropriate, agencies can withdraw a fine even if the person has paid in full (including any fees) – see section 18(3) of the Act. If you withdraw a fine that has been paid or partially paid, you must refund the amounts paid to the person – see section 18(5) of the Act.

Communication

Effective communication regarding internal review is crucial for fine recipients and internal review applicants. The way that enforcement agencies communicate can improve a fine recipient’s access to justice, educate the community and demonstrate fairness.

Clear, concise, and accurate information should be provided to applicants at all stages of the internal review process. At the pre-review stage, fine recipients should be informed of their right to internal review. Enforcement agency websites should not improperly prescribe the circumstances that will and will not be considered at internal review. Agencies should impartially consider all applications on their individual merits.

It is also crucial applicants understand the reasons for an internal review decision and the options available to them. Well written outcome letters assist internal review applicants to understand why their application was rejected, the reason they received the fine and how to avoid similar fines in the future.

To assist clear and consistent communication, some enforcement agencies have developed outcome letter templates for various application types and review outcomes. The outcome letter templates include the outcome, the reasons for the outcome, the options available to the applicant and how to access these options. These templates require the decision maker to insert specific reasons for each application.

Providing reasons to explain the outcome is particularly important when an application is confirmed, or an official warning is issued. The reasons should be tailored to the application and where practicable go beyond an outline of the offence and the elements of the offence. Refer to Template outcome letter section for a sample confirm letter template.

Good practices observed

Outcome letters

• Provide tailored reasons to the internal review applicant explaining the reason for the decision when an application is confirmed.
  • Benefits of setting out the reasons for a decision include showing that the applicant’s argument was taken into account; providing an explanation for the decision and improving transparency and accountability in decision-making.

• Provide reasons for decisions when an official warning is issued to explain the offence.

• Use notices of withdrawal to further educate fine recipients, where appropriate. The below example related to an internal review of an infringement notice issued to the operator of a food business. In this case, the agency used the notice of withdrawal to provide information to assist the business in remaining compliant with relevant legal requirements.

• Explain new laws, processes, or signage in outcome letters to educate the community about changes that have occurred.

Options

• Ensure that all options available to address the fine are clearly set out in outcome letters and that the letter explains how options can be accessed, including social justice initiatives administered by Fines Victoria.
• Inform internal review applicants on the basis of family violence of the Family Violence Scheme, administered by Fines Victoria.

• Offer payment plans or advising applicants that payment arrangements are available to them.
  • If an agency chooses not to provide a payment plan for a fine to someone who doesn't automatically qualify, they can refer the fine to the Director for management by way of a payment arrangement if the person requests it.
  • Payment arrangements are like payment plans but they are assessed and managed by the Director, Fines Victoria.

Website and public information

• Provide accessible and understandable information about internal reviews, as this educates potential applicants on the process and offers an opportunity to highlight that each application is assessed on its merits.
• Where agencies provide specific examples of internal review applications that will be rejected by the agency, clearly communicate why these types of applications will not satisfy the relevant test – this ensures that potential applicants understand the requirements.
• Ensure that where examples are provided of internal review applications that will be rejected, this practice aligns with the standards set out in the DJCS Internal review guidelines on appropriate use of discretion and that examples are appropriately limited to applications that could not ever satisfy the relevant test. This ensures that potentially eligible applicants are not discouraged from applying for an internal review. 
• Monitor if the information is up to date, particularly where legislative changes may have been made.
• If using contractors to administer internal reviews, agencies must also ensure that their contractor’s website contains accurate information about the internal review process.

Plain English

• Use plain English in all communications to ensure information is easily understood. 
• Adopt an active voice in correspondence.
• Clearly explain the information required when requesting further information from an applicant.

Impartiality and independence

Independence and impartiality are at the core of good administrative law decision making. Decision makers have a responsibility to make decisions on the merits of the application and without undue or improper influence.

As rights and liabilities of applicants are impacted by decision makers, systems should be in place to ensure each decision is determined appropriately. 

Good practices observed

Separation of review and issuing officers

• Ensure issuing officers and others involved in issuing the infringement are not involved in the review of the infringement (as required under the Act).
• Establish processes to deal with any conflict of interest. For example, referring applications to another decision maker not involved in the advice to issue an infringement.
• Require issuing officers to have good record keeping practices to reduce the involvement of issuing officers in the internal review process.
• Ensure formal processes are followed and documented when requesting additional information from issuing officers during an internal review. If additional information is provided by the issuing officer, allow an applicant to respond to that information. 
• Implement processes to allow decision makers to provide feedback to issuing officers when an infringement has been withdrawn due to errors by an issuing officer.

Conflicts of interest

• Train decision makers on the types of conflicts and how to identify a conflict of interest.
• Establish a conflict of interest policy that requires decision makers to disclose actual, potential, or perceived conflicts of interest and establishes how a conflict of interest should be managed. This may include that a decision maker remove themselves from reviewing an application.
• Maintain a record of the conflict of interest, the nature of the conflict of interest, and the action taken to mitigate actual or perceived conflicts of interest.
• De-identify the application when the applicant is known to the entire team authorised to conduct reviews.