This article was written by Adam Elbob - Solicitor - Werribee
Adam Elbob holds a Bachelor of Laws and Bachelor of Arts with a major in criminology and a minor in policy studies. He completed his Practical Legal Training at the College of Law. Adam is admitted to practise law in the Supreme Court of Victoria and the High Court of Australia. Adam brings with him an array of experience in...
Fines Victoria Internal Review - Special Circumstances
In the event that a person receives an infringement during a period in which they can establish that special circumstances applied to them, they may be eligible to have the infringement reviewed. Under the Infringements Act 2006, there are five grounds on which a person can seek internal review of an infringement. This article examines internal review of infringements on the basis of special circumstances.
What is a special circumstance?
Under section 3 of the Infringements Act 2006, a person has special circumstances if their circumstances fall within one of the following categories.
Category One
If at the time of incurring an infringement the person had a mental or intellectual disability, disorder, disease or illness, including anxiety and depression, which resulted in them being unable to understand that their conduct constituted an offence or they were unable to control the conduct that constituted an offence.
Category Two
A person may seek internal review if at the time of incurring the infringement the person had a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981.
To succeed on this ground, it is not sufficient for a person to simply provide evidence that they had a serious addiction to drugs. Rather, they must establish that as a result of addiction they were unable to understand that certain conduct constituted an offence or they were unable to control the conduct that constituted the offence.
Category Three
If at the time of incurring an infringement, the person was a victim of family violence within the meaning of section 5 of the Family Violence Protection Act 2008. To establish this, a person must provide evidence that they were a victim of family violence and the family violence resulted in them being unable to control conduct which constituted an offence.
A common example of evidence utilised in support of an application that relies upon family violence circumstances involves producing legal documents such as an intervention order or a report made to Victoria Police or even providing a report from a counsellor or support worker that evidences the person’s circumstances and the correlation with the incurring of the infringement.
Further, in some circumstances, a person may also be eligible to make an application for internal review under the Family Violence Scheme.
Category Four
If at the time of incurring the infringement the person was homeless, then they may apply for enforcement review on the basis of special circumstances. In accordance with regulation 7 of the Infringements Regulations 2016, a person is homeless if either:
- The person is living in crisis accommodation; or
- The person is living in transitional accommodation; or
- The person is living in any other accommodation provided under the Supported Accommodation Assistance Act 1994; or
- The person has inadequate access to safe and secure housing within the meaning of the Supported Accommodation Assistance Act 1994.
What happens if your application based on special circumstances is successful?
Once a person submits an application for review, they can expect a response within 90 days. If they are successful, Fines Victoria will cancel enforcement and will send the infringement back to the agency that issued it. The agency then has 90 days to either withdraw the fine, issue a warning or commence proceeding to enforce the unpaid infringement against the person in the Magistrates’ Court.
Importantly, the agency may withdraw the fine and decide to proceed against the person by way of a charge and summons. If this happens, the matter will be dealt with by the Magistrates Court as a criminal offence.
Finally, if the matter is a traffic matter, it is also important to be aware that VicRoads will likely be notified of the application and circumstances relating to the medical condition, disability or addiction, and this may result in the person being required to undertake a medical review relating to their fitness to drive.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.