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

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

The Victorian infringements system operates as part of the wider Victorian criminal justice system. Enforcement agencies which issue infringement notices exercise criminal law enforcement powers. General information on the Victorian infringements system can be found at section The Victorian infringements system of the Attorney‑General’s Guidelines for Legislating Agencies.

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

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

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

The Infringements Act sets out:

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

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

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

The Fines Reform Act provides for:

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

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

An infringement notice can only be issued by an officer authorised to exercise that power. Issuing or authorised officers belong to a specified class of persons.

If the power to issue a notice can be delegated, the delegation should be restricted to persons of suitable seniority and expertise.

Prior to issuing infringements the enforcement agency should review the authorising legislation and ensure issuing officers are appropriately authorised to exercise enforcement powers.

A decision to issue an infringement notice requires the issuing officer to exercise their discretion. An issuing officer has the power to choose whether to issue an infringement notice or an official warning, consider that the enforcement agency prosecute the person, or take no action. 

Enforcement agencies should ensure that issuing officers:

• use discretionary powers in good faith and for a proper, intended, and authorised purpose, and
• act within the limits of their powers.

When exercising discretion, issuing officers must comply with a range of legal principles, such as acting lawfully, impartially and reasonably. These principles are set out in the model code of conduct for issuing officers in Appendix 2 – Model Code of Conduct for issuing officers of these guidelines and more generally in section General matters to be covered in policies and guidelines.

Enforcement agencies must ensure there is proper accountability for the exercise of powers by issuing officers, for example through internal disciplinary mechanisms.

When a person from a vulnerable cohort may have committed an offence, enforcement agencies should ensure that issuing officers are trained to be respectful and sensitive to the person’s needs and have regard to their circumstances before deciding to issue an infringement notice.

A person may be considered vulnerable if they are experiencing a range of circumstances that may affect their ability to comply with the law or shape their interactions with the law. This may include if they:

• are homeless
• have financial difficulties
• have a serious addiction to alcohol and other drugs
• are experiencing family violence
• have a disability, including cognitive disability
• are experiencing mental health issues
• are a child or young person, or
• are a member of a Culturally and Linguistically Diverse (CALD) or Aboriginal and/or Torres Strait Islander community group.

Enforcement agencies should develop guidance for issuing officers on how to identify signs of vulnerability, as well as how issuing officers conduct themselves when dealing with vulnerable people.

Enforcement agencies should ensure information supporting a fine recipient to understand the fine and their options is available in a range of accessible and culturally appropriate formats, for example using simple language, in languages other than English, and in large print.

Enforcement agencies must ensure that issuing officers confirm all statutory and prescribed details required for an infringement notice under the Infringements Act and Infringements Regulations, which includes but is not limited to:

• the person’s name
• (if a natural person) the person’s date of birth
• (if a body corporate) the person’s Australian Business Number (ABN) or Australian Company Number (ACN)
• the person’s address, and
• the due date for payment.

Enforcement agencies should ensure that issuing officers record details of the offending clear enough to support the review of a fine or court challenge.

Section 46(3) of the Infringements Act provides that enforcement agencies must make a payment plan available to people who meet the eligibility criteria set out in these guidelines.

For the purposes of that section, a natural person is entitled to a payment plan if that person holds one of the following concession cards: 

• a Commonwealth Government (Centrelink) Pensioner Concession card
• a Department of Veterans’ Affairs Pensioner Concession card or Gold card, or
• any Centrelink Health Care card (including those issued for non-means tested benefits).

As noted above, this obligation can be met by referring a fine to the Director for inclusion in a payment arrangement.

If a natural person or body corporate applies for a payment plan and is not automatically entitled to receive a plan, the enforcement agency has the discretion to decide whether to grant that person a plan. In exercising the discretion, the enforcement agency may consider:

• the financial circumstances of the person, including the impact that payment of the fine in full may have on their financial position
• the number and value of other infringement penalties incurred by that person, and
• the person’s payment history for previous infringements issued by that enforcement agency.

If an enforcement agency offers a person a payment plan, it may:

• require a minimum level of payment to be made per instalment, and
• specify the number of instalments or timeframe within which the outstanding fine may be paid.

While other concession card holders (other than those described above) are not entitled to a payment plan as of right, agencies are encouraged to provide payment plans to people holding a Victorian Seniors card or a Commonwealth Government Seniors card.

If an enforcement agency refuses a payment plan, the natural person or body corporate has 21 days from the date of service of the notice of refusal, to pay their fines. If the person fails to pay their fine within that period, the fine may be registered for enforcement.

A natural person or body corporate may seek to have fines referred to the Director for management under a payment arrangement.

If an enforcement agency decides not to offer a payment plan for a fine to a person who is not automatically entitled, the enforcement agency may refer the fine to the Director if requested by the person, in accordance with section 43 of the Fines Reform Act. This option is recommended for the reasons in section Payment arrangements under the Fines Reform Act.

The payment arrangement scheme established under Part 5 of the Fines Reform Act enables a natural person or body corporate to apply to the Director to consolidate their unpaid court and infringement fines into a single payment arrangement.

The management of payment arrangements by the Director is the recommended option because a person may have several outstanding fines. For example, a person may apply to consolidate a court fine, a parking fine and a speeding fine into one payment arrangement rather than having separate payment plans with the local council and Victoria Police and making payment on orders of the Magistrates’ Court. The Director can examine the person’s financial circumstances and capacity to pay those fines before determining the most appropriate arrangements for the person to pay the fine, improving the likelihood of recovering the fines.

 The payment arrangement scheme also makes the administration of payment plans simpler for enforcement agencies. An enforcement agency may comply with their obligation to offer a payment plan by referring the fine to the Director for management by a payment arrangement. Alternatively, a natural person or body corporate may request that an enforcement agency refer their infringement fines to the Director for inclusion in a payment arrangement.

As referred fines are subject to a payment arrangement rather than a payment plan, enforcement agencies are not required to meet reporting requirements for payment plans with respect to that fine.

Once referred to the Director, the provisions of the Fines Reform Act apply to that payment arrangement, including the order in which payments are allocated to a particular fine.

Enforcement agencies can obtain more information about how to refer fines to the Director from Fines Victoria.

In addition to the requirements under fines legislation, the principles of administrative law apply to enforcement agency functions.

Enforcement agencies must not apply decision-making policies in an inflexible manner, because this precludes the proper, genuine, and realistic consideration of a particular case.

The inflexible exercise of discretion is also inconsistent with the principles of good decision making under administrative law.

The following principles of administrative law govern how enforcement agencies and issuing officers should make decisions, particularly as those decisions affect the rights and interests of members of the public:

• lawfulness
• procedural fairness
• independence and impartiality
• openness and transparency, and
• rationality.

Further detail about how these principles of administrative law specifically apply to issuing officers are contained in the model code of conduct for issuing officers, at Appendix 2 – Model Code of Conduct for issuing officers.

More information about how these principles apply to the internal review process is set out in the Internal Review Guidelines.

Decisions made by enforcement agencies must be made within the boundaries of the law. All decisions are subject to review, or court challenge, to ensure the decision complies with the relevant legislation.

The aim of this principle is to ensure:

• fair, efficient, effective, and high-quality decision making
• accountability in decision making, and
• access for those affected by decisions to review mechanisms.

Procedural fairness is also known as natural justice or due process. It relates to the process of making a decision, rather than the outcome or merits of the decision.

There are two pillars of procedural fairness:

• the ‘fair hearing rule’, and
• the ‘rule against bias’.

The ‘fair hearing rule’ requires enforcement agencies to ensure that when a decision is made that adversely affects a person’s rights, interests or legitimate expectations, the decision-maker:

• provides the person with the information on which the adverse decision is based, and
• gives the person an opportunity to respond.

The rule against bias requires a decision-maker to be free of any reasonable suspicion or apprehension of bias or perception of bias, arising from circumstances such as the decision-maker’s financial or personal interest, personal views, prior expression of views or previous role in the decision to be made.

This rule also overlaps with the principles of independence and impartiality.

Enforcement agencies must act independently. This means that the 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 an enforcement agency makes its decision.

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 person over another.

As public officials, decision-makers within enforcement agencies are obliged to behave lawfully, accountably, and transparently.

Enforcement agencies should ensure that there is transparency and accountability in the way that their officers make decisions. Enforcement agencies should do this by ensuring that:

• all decisions made by the enforcement agency are properly documented, and
• all final decision records identify the decision-maker.

Enforcement agencies should act rationally and consistently when making decisions, ensuring there is appropriate recognition of exceptional and special circumstances if they become aware that those circumstances exist.

When a person from a vulnerable group (as described above, in Dealing with vulnerable persons) may have committed an offence, enforcement agency officers should be respectful and sensitive to the person’s needs and have regard to their circumstances before making any decision that affects that person’s rights or interests.

Enforcement agencies should aim to process and make decisions relating to infringements within a reasonable period of time. What constitutes a reasonable period of time may vary depending on the enforcement context of a particular offence.

There are statutory limits on certain decisions relating to infringements, including:

• deciding an internal review within 90 days of the date of the application (regulation 16 of the Infringements Regulations)
• registering an outstanding matter with the Director, within six months from the offence date unless extended registration applies (section 17 of the Fines Reform Act), and
• prosecuting a matter as an alternative to enforcement by infringement, generally within 12 months of the date of the offence (section 7 of the Criminal Procedure Act 2009).

Enforcement agencies are public authorities bound to comply with the Charter of Human Rights and Responsibilities Act 2006 (Charter). The Charter sets out the basic rights and freedoms of all people in Victoria.  The Charter is primarily about the relationship between government and the people it serves.

Section 38 of the Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Enforcement agencies must consider whether there are any potential impacts on a person’s human rights set out under the Charter when enforcing infringement offences, including while issuing an infringement notice or determining an internal review application.

Further information about human rights considerations, as they specifically apply to issuing officers, can be found in the model code of conduct at Appendix 2 – Model Code of Conduct for issuing officers.

The Work and Development Permit scheme is designed to help vulnerable people eligible for the scheme to deal with their fine debt.

A Work and Development Permit allows an eligible person to work off their fines by engaging in approved activities that address the underlying cause of their offending behaviour.

A person must be engaged with an accredited agency or accredited health practitioner to participate in the scheme. An accredited agency or accredited health practitioner must apply for a Work and Development Permit on behalf on an eligible person.

The framework for the Work and Development Permit scheme is set out in Part 2A of the Fines Reform Act.

The Work and Development Permit Guidelines (External link) are available on Fines Victoria’s website.

The Family Violence Scheme enables people affected by family violence to apply to the Director to have their eligible infringement fines withdrawn.

If an application is made, the relevant enforcement agency is notified and must suspend enforcement action until the application is determined.

If the Director is satisfied that family violence substantially contributed to the offence or it is not safe for the person to name the responsible person for a driving-related offence, the Director can direct an enforcement agency to withdraw an infringement notice and take no further action.

The framework for the Family Violence Scheme including enforcement agency requirements is set out in Part 2B of the Fines Reform Act.

Guidance about the Family Violence Scheme (External link) is available on Fines Victoria’s website.

Part 4 of the Fines Reform Act replaced the enforcement order revocation process in the Infringements Court with an administrative process in Fines Victoria called ‘enforcement review’.

Enforcement review is available after an infringement fine has been registered with the Director and a notice of final demand has been served on the defaulter.

On receipt of an application for enforcement review, the Director is required to review the enforcement agency’s decision to serve and enforce an infringement notice and determine whether enforcement of the fine should proceed or be cancelled.

The grounds for enforcement review are set out in the Fines Reform Act and are similar to the grounds for internal review under the Infringements Act.

If the Director cancels enforcement of an infringement fine on any ground except where the person was unaware of the infringement notice and refers the fine back to the enforcement agency, an enforcement agency must take one of three actions within 90 days:

• withdraw the infringement notice and take no further action
• withdraw the infringement notice and issue an official warning, or
• withdraw the infringement notice and (within six months) commence a proceeding for the offence by filing a charge-sheet.

Enforcement agencies must also notify the fine recipient of their decision within the 90-day period.

Once the Director has cancelled enforcement of the fine, liability for the offence can only be determined by the Magistrates’ Court of Victoria, should the enforcement agency choose to prosecute the offence.

If an enforcement agency chooses to prosecute the offence, the notification to the fine recipient should clearly state the agency’s decision to prosecute the infringement.

Enforcement agencies must not seek payment of an outstanding infringement fine amount (including any fees added to the penalty amount) after enforcement of a fine has been cancelled.

Enforcement agencies are required by the Fines Reform Act to notify the Director if they prosecute a person following enforcement cancellation. This requirement arises only after the enforcement agency decides to prosecute the offence, not where the enforcement agency is considering whether to do so. Enforcement agencies should notify the Director within a reasonable time of deciding to prosecute a person following enforcement review cancellation, typically within one month of deciding to prosecute the person.