A new approach
On 31 December 2017, a new body, Fines Victoria, was introduced for the collection and management of fines, including infringement and court fines (Fines), in Victoria. The regime has been introduced for the purpose of establishing a streamlined approach to Fines across the State. The scheme is administered under the Fines Reform Act 2014 (the Act) as amended in 2017. The Director of Fines Victoria (Director) is responsible for the management of the scheme. The Director has broad administrative and enforcement powers to enable the Act to operate fairly and efficiently. Fines Victoria has taken over the enforcement role previously held by Infringements Victoria.
Registration of infringement fines with Fines Victoria
Any agency with the power to issue infringement notices is able to refer an unpaid infringement to Fines Victoria. The infringement fine then becomes registered with Fines Victoria for enforcement. An infringement fine cannot be registered if it has been prescribed by the Director as ineligible for registration or if it is an offence against a local law, other than a parking infringement.
The agency responsible for issuing the initial infringement notice must also issue a penalty reminder notice prior to registering the infringement fine with Fines Victoria. The time period for payment specified in the penalty reminder notice must have passed before the infringement fine can be registered for enforcement. Generally, an infringement fine must be referred to the Director within six months of the commission of the infringement offence. An infringement fine cannot be registered with Fines Victoria once charges have been issued in the Magistrates’ Court.
There is a fee payable to register the infringement fine for enforcement with Fines Victoria. The fee is waived in the case of a police officer or person acting on behalf of the Crown.
Collection of court fines
If a court imposes a fine on an offender (known as a court fine), then the court fine will be referred to the Director for collection and management unless the Court otherwise orders. This occurs immediately upon the court imposing a fine. If a costs order is made at the same time as the court imposes a fine, both the costs and the fine are referred to the Director.
After a court fine is referred to the Director, the Director must serve a court fine collection statement on the offender, which specifies the court order made against the offender, that the failure to comply with the court order may result in the fine being registered for enforcement by the Director, any prescribed details and may include a summary of the enforcement action available under the Act.
A court fine will be registered with the Director for enforcement if an offender fails to pay the court fine, fails to comply with the terms of an instalment order, a time to pay order, or fails to comply with a payment arrangement.
Powers of the Director
The Director is responsible for the exercise of powers under the Act. The powers can be delegated to staff appointed by the Director.
Once an infringement fine has been registered with Fines Victoria, the infringement fine remains payable to the referring agency but the agency is not required to take any further steps towards enforcement. Nevertheless, after referral to Fines Victoria, the responsibility for management of the infringement fine and the collection of the infringement fine is then with the Director.
The Director is also able to apply to a registrar for the issue of an enforcement warrant against a fine defaulter. An enforcement warrant authorises the person to whom it is directed to seize personal property of the fine defaulter named in the enforcement warrant and, if the amounts specified in the warrant are not paid, to sell the property of the fine defaulter.
The Director may determine not to proceed
The fact that an infringement fine has been referred to Fines Victoria does not ensure its collection. The Director may make a determination not to proceed to seek enforcement of the infringement fine on the basis that enforcement under the Act is not appropriate for a person. The effect of such a determination is that the infringement fine becomes de-registered for enforcement. The circumstances in which such a determination can be made include where the Director considers that it is appropriate that the matter be referred to court rather than to the Director or where the infringement amount is unlikely to be able to be recovered.
If the Director does not proceed with enforcement of an infringement fine, the referring agency will be notified. The agency may then elect to withdraw the infringement notice and take no further action against a person, withdraw the infringement notice and issue an official warning to the person or file a charge-sheet and issue proceedings in Court. If an agency elects to proceed with issuing charges, the agency must notify the Director in writing of this decision.
Notice of Final Demand
If the Director proceeds with enforcement of an infringement fine, the Director must serve a Notice of Final Demand. The Notice of Final Demand must state that enforcement action may be taken if the person against whom the Notice of Final Demand has been served defaults for a period of more than 21 days and must contain a summary of the enforcement action available under the Act, and a summary of options available to the person under the Act.
A Notice of Final Demand must be served before any further enforcement action can be taken. An agency may request that a Notice of Final Demand not be served at any time prior to such a notice being served. As such, agencies do not lose the right to revoke the infringement fine or extend the time period for payment upon registering the fine with Fines Victoria. However, after a Notice of Final Demand has been served, the agency can no longer exercise revocation powers.
Reduce or waive infringement fines
The Director may also reduce or waive the fees which are paid or payable pursuant to an infringement notice under the Act or under the Infringements Act 2006. The Director may make such a waiver or reduction if the Director is satisfied that, having regard to all the circumstances, it is appropriate to do so. The Director may make the reduction or waiver in respect of the totality of infringements or may make the reduction or waiver in part or in respect of certain persons or classes of persons. The Director may also attach conditions to any reduction or waiver. The Director must not exercise the power to waive or reduce fees in circumstances where a court has imposed those fees.
Review of infringement fines by Director
Once an infringement fine has been registered with Fines Victoria for collection, Fines Victoria is able to receive and determine applications for review. This is a separate review process to any internal review process of the referring agency.
After being served with a Notice of Final Demand, a person may apply to the Director for review. The application for review may be made on one of the following bases:
- the decision to issue the infringement notice was contrary to law
- there were exceptional circumstances affecting the person
- there was a mistake of identity in issuing the notice
- the person was unaware of the infringement notice and it was not personally provided to them.
These prescribed bases do not preclude the Director or the agency from reviewing an infringement fine on a different basis.
If a review application is successful, Fines Victoria will remit the infringement fine back to the referring agency. The referring agency may then elect to either withdraw the infringement fine and take no further action against the offender, withdraw the infringement fine and issue a warning or withdraw the infringement fine and commence enforcement proceedings in the Court. There is no obligation upon an agency to take any particular action as a result of a review decision of Fines Victoria.
If the review is unsuccessful, the Director will serve the applicant with a notice of infringement confirmation. The person must then pay the registered infringement fine, apply to pay the registered infringement fine under a payment arrangement or apply to be the subject of a work and development permit (discussed below).
Fines Victoria is able to enter into a payment arrangement with a person or company who requires a payment arrangement in order to pay a Fine. The payment arrangement may include any combination of fines, including infringement fines, court fines and enforcement orders. The payment arrangement may enable a person to pay by instalments or extend the period in which the person has to pay.
If a payment arrangement covers multiple Fines, the Director must allocate the money received under the payment arrangement, with the oldest Fine, registered collection or enforcement order to be paid first.
The Director may offer a proposed payment arrangement to any person who applies for such an arrangement or to any person who has been referred to the Director by an agency. If any term as to a payment arrangement is made in a Court order, the proposed payment arrangement must be in accordance with any terms specified in an order.
An agency may also refer an infringement fine to the Director to manage a payment arrangement at the request of a person to whom that infringement fine relates. If the Director refuses a payment arrangement following a referral by an agency, the Director must notify the agency of the decision not to grant the application for a payment arrangement.
Work and Development Permits
The Director is empowered under the Act to issue a work and development permit. This is a power that the Director has under the Act that enables the Director to work with accredited health practitioners and accredited organisations to expiate infringement fines in certain circumstances.
An infringement notice can be expiated under a permit by:
- participating in unpaid work under the supervision of an accredited agency
- completing a suitable course, including educational, vocational or life skills course
- undergoing treatment given by an accredited health practitioner
- receiving financial or other types of counselling
- in the case of an eligible person under the age of twenty-five years, participating in a mentoring program.
The effect of the work and development permit is that any enforcement action is suspended until after the person either completes the work or the permit is cancelled. If the work is completed, the infringement notice is satisfied as is set out in the permit. If the permit is cancelled or the work is only partially completed, the agency may take action to recover any outstanding amount or infringement penalty, may register the infringement fine with Fines Victoria or may continue any enforcement action suspended at the time of the application for and issue of the permit.
An accredited agency or an accredited health practitioner may apply on the behalf of a relevant person to the Director for the issue of a permit. An application must include the grounds on which the application is made, the nature of the activities proposed to be undertaken and a proposed time for the completion of those activities.
The Director has the power to approve an application for a work and development permit if the Director is satisfied that the application is made in respect of an eligible person. The referring agency does not have any power in relation to deciding whether or not such a permit is appropriate. The Director may also vary or cancel a work and development permit either at the request of the person to whom the permit applies or at the request of the agency supervising the activity or on the Director’s own motion.
Family Violence Applications
A person may also apply to the Director for a determination that the person is a Family Violence Scheme (FVS) eligible person for the purposes of the FVS. This application may be made by a person acting on behalf of the FVS applicant.
The Director must be satisfied that the applicant was served with an infringement notice in relation to FVS eligible offence and must also be satisfied that the applicant is a victim of family violence and that family violence substantially contributed to the applicant being unable to control the conduct that led to the offence. There are additional criteria which must be considered if the offence is an owner operator offence under the Road Safety Act 1986. If the Director is not satisfied as to the specified criteria, the Director must not make a determination. The referring agency has no role in this determination process.
If an FVS determination is made, the Director must cancel the infringement penalty and direct the enforcement agency to withdraw the infringement notice and to take no further action in respect of the FVS eligible offence. The agency must comply with such a direction given by the Director. The Director may decide not to make a determination but to refer the matter to the agency for further consideration. The agency may then determine whether to withdraw the infringement notice and take no further action or to file a charge sheet regarding the offence alleged to have been committed.
What are the main implications of the scheme?
The main implications of the new scheme for agencies with the power to issue infringement notices are:
- The agency is responsible for issuing the infringement notice and issuing a penalty reminder notice if the infringement remains unpaid.
- The agency is responsible for registering the infringement fine for enforcement with Fines Victoria.
- The agency is responsible for deciding what action to take if Fines Victoria does not proceed with enforcement of the infringement fine.
- The agency may have an infringement fine remitted back to it for further consideration following a successful review application being made to Fines Victoria.
- The agency may refer an application for payment management to Fines Victoria.
- The agency may receive notice that a work and development permit has been granted in respect of the fine.
The agency may receive notice that an FVS application has been granted and must withdraw the fine issued in respect of the infringement and must not issue court proceedings in relation to that infringement.
|Kylie Walsh | Senior Associate
T +61 3 9258 3880
|Elise Caldwell | Associate
T +61 3 9258 3690