|
. What
is an infringement notice? Australian
laws allow governments, government agencies and some non-government
agencies to issue fines or infringement notices in respect of offences
that could otherwise be prosecuted through the courts. The infringement
notice system is intended to remove a large number of minor offences
from the criminal courts. Just because they are removed from the
criminal courts does not mean they are no longer criminal offences. If
you object to an infringement notice you will be prosecuted for a
criminal offence in a criminal court. All offences are criminal
offences, although traffic offences will not normally appear on your
criminal record. Infringement notices can be issued
on-the-spot or sent to the offender by post. Some private organisations
(e.g. Australian Football League, Libraries, Clubs) have a system of
fines that are imposed on employees or members. Those are part of a
private contract and have nothing to do with criminal offences. Types
of infringement notices A
Traffic Infringement Notice
("TIN") is usually seen as the
red "on-the-spot" fine handed to a
driver following a traffic offence,
(speeding and other traffic offence).
Certain TINs are issued to owners of
motor vehicles by post: e.g. red-light
camera fines, speed camera fines,
tollway fines. Parking Infringement
Notices ("PIN") are in the same
category, as are a host of other
infringement notices that are issued
under a wide variety of legislation
(Litter Act, Marine Act, Fisheries Act,
EPA Act, etc). Then there are
Penalty Notices which are issued
in respect of business related
offences, such as breach of liquor
licence conditions.
Service of Infringement Notices. A Parking Infringement Notice can be served by
leaving it on or in the vehicle, or by posting it to the registered
operator (owner) or the nominated responsible person (driver), or by handing it personally to the registered operator or the nominated responsible person. A Traffic Camera Infringement Notice can be served by posting it to the registered operator or the nominated responsible person, or by handing it personally to the registered operator or the nominated responsible person.
All other Traffic Infringement Notices can be served by handing them personally to the driver or posting them to the driver. The
prosecuting agency has 12 months from the date of an offence to
serve an infringement notice, although for camera offences it has 12
months from the
date of the most recent nomination statement. Consequences
of paying an infringeemnt notice. There
are two types of infringement notices
in motor traffic cases. Each have
different consequences. If
you pay an infringement notice that
does not carry any licence loss period
(e.g. fail to wear seat belt) no
conviction will be recorded against
you. You may incurr demerit points, but
no record will be made on your criminal
or traffic history. If
you pay an infringement that carries
licence loss (e.g. exceeding speed
limit by more than 25kmh) a conviction
will be recorded on your traffic
history for that offence. The
conviction will remain on your record
for eternity. Technically, your traffic
history is a subset of your criminal
history because all traffic offences
are criminal offences.
If you
pay
the fine (payment instructions are on
the TIN) this will bring an end to the
matter. You are admitting guilt and
accepting the penalty. Save for some camera offence situations, no further steps
can be taken after the infringement penalty is paid. Many TINs carry loss of
demerit
points
or licence loss which must be incurred
following payment. You can not unpay
the fine if you later regret incurring
all those demerit points or losing your
licence. So if you want to dispute the offence you must not pay the fine. If your
spouse/mother/boyfriend pays your fines
even though you intended to challenge
the fine or nominate the driver, it can be quite difficult to undo what has been done
and you should get prompt legal advice. Not paying the Fine: Courtesy
Letter & Enforcement
Orders If
a TIN or PIN remains unpaid after 42
days, a courtesy letter will issue. For
offences that do not result in licence
loss, you have two alternatives when
you get a courtesy letter. You can pay
the penalty, or object to the fine -
see the section on objecting below. If
you pay the amount on the courtesy
letter that finishes the
matter. If you get a
courtesy letter following an infringement notice that imposed licence
loss it is now too late to object or save your licence. Your licence is
already gone and the courtesy letter is just chasing the debt. If
you ignore the courtesy letter an
enforcement order will be made against
you by the Infringements
Court.
Demerit points will accrue at this point. If that order remains unpaid a
warrant to enforce the order
will eventually be issued by the Infringements
Court directing the sheriff to recover
the debt.
How
to object to an infringement
notice A
driver or owner who wants to dispute an
infringement offence in court can
object to a an infringement by lodging
a notice of objection or an election to
go to court. It is by objecting that
the driver takes issue with the matters
alleged in the notice, or requires the
prosecution to prove that the driver is
guilty of an offence. The consequence
of objecting is that the matter will go
to court: see the page about
defending
cases in court.
The time for objecting is set out in
the next paragraph. The best way to
object is to complete the reverse of
the fine or the courtesy letter
(whichever is applicable) by providing
your name, signature and any other
information requested. Make a copy of
the notice of objection, send either
the original or the copy to Civic
Compliance at the address shown on the
notice, and make a diary note of the
time, date and place where you posted
the objection or when you
hand-delivered it. After a couple of
months you will receive court papers.
You should then seek
legal advice.
There are two different types of
infringements which have different
rules for lodging an
objection. A.
Drink driving and excessive speed
infringements the time for
objecting is within 28 days of the date
of the Traffic Infringement Notice
(TIN). Late objections are usually not possible. This paragraph applies only to
drink driving infringements and to
speeding fines that impose licence loss
or 4 or more demerit points. A notice
of objection can be found on the
reverse of the TIN. To properly
complete the objection form you need to
print your name, sign your name and
cross out the words "do
not intend". It is not necessary
to have a conference before lodging an
objection unless you wish to discuss
matters before making this election. It
is best to have some evidence that you
posted the objection within time so
make a dairy note and keep copies of
the objection notice. An objection
notice for is usually found on the
reverse of the TIN. It is not essential
to use their form. You can simply write
a letter provided it complies with
s.89A Road Safety Act. See the
paragraphs on drink driving and
speeding fines below for more detail on
those types of licence loss
infringement notices. B.
For TINs and PINs other than drink
driving and Excessive Speeding
fines, (i.e. all fines that carry
0, 1, 2, or 3 demerit points, but not
including drink driving infringements)
the legislation now allows you to elect
to take the matter to court as soon as
you receive the infringement, or you
can wait until you get the reminder
notice. An form for lodging an election
to go to court is printed on the
reverse of the infringement notice and
the reverse of the reminder letter. It
is usually better to wait for the
reminder letter and then elect to take
the matter to court. The deadline
for taking the matter to court is 28
days after the date of the reminder
letter. Extension
of Time for objecting For
licence loss offences, 28 days after
the date of the infringement notice
your licence will be suspended or
cancelled. It is then too late to
object to the fine or save your
licence. If you write a letter
regarding the circumstances of the
offence, this does not extend time for
objecting to the infringement notice.
So you can either write feeble letters
or lodge an objection within time. Do
not attempt to do both. Normally you
can not get an extension of time within
which to object to this type of fine,
so you need to make your decision
within the 28 days allowed by the
legislation. However, if your licence
has been suspended or cancelled by an
infringement notice that was sent to
you in the mail, and you did not become
aware of the notice until after the 28
day period had elapsed, then you are
entitled to apply for an extension of
time within which to object to the
fine. The application needs to be made
to a Magistrate so you should seek
legal advice if you wish to get an
extension of time for objecting to a
licence loss infringement
notice. For
infringement notices which do not
result in licence loss, you can lodge
an objection anytime prior to an
enforcement order being made against
you by the Infringements Court. You do
not need to ask for an extension of
time to object. You simply send in your
objection. If the objection is refused
because an enforcement order has
already been made, then you will need
to make application to the court to set
aside the enforcement order (see
below), and then have the case referred
to court. For
infringement notice that do not carry
licence loss, you can elect to have the
infringement offence heard in a court.
What usually happens after sending in
your election is you receive a letter
telling that the infringement notice
has been withdrawn. Once the
infringement notice has been withdrawn,
no demerit points will be recorded and
the fine is not payable. A few months
later court papers will arrive, usually
by mail. Once you have court papers it
is a good time to seek legal
advice. The
informant has 12 months from the date of a traffic offence to file the
charge at court, although for camera offences it is 12 months from the
date of the most recent nomination statement. Consequences
of objecting to a licence loss
infringement notice. For
an infringement notice that imposes
licence loss, objecting to the notice
will cancel the infringement
notice. A cancelled TIN can not
suspend or cancel a person's drivers
licence. The penalty can not be
enforced and no demerit points can be
incurred. The agency who gave you the
TIN is then left with only one option
if they want to prosecute you for the
offence. They have to serve you with a
charge and summons to go to court. At
court, the TIN is irrelevant to the
prosecution case and is generally
irrelevant to your defence because it
has been cancelled. After lodging an
objection you can continue driving
until a court finds you guilty. After
you lodge an objection, the police will
write to you and confirm receipt.
Usually you will receive a charge and
summons in the mail about two months
after lodging an objection. They are
allowed to take up to a year to file charges. Once you get the court
papers you should seek legal advice
about defending the
charge. should_I_object_to_the_infringement_notice Should you object to the infringement
notice? If
your licence is at risk and that is a
problem for you, then yes you
should take the infringement to
court. Some people don't want to take their
infringement to court unless they know
they have a good chance of
winning. Unfortunately, in 99% of
cases it is impossible for anyone to
determine whether you have a good
chance of winning until you have a
charge and summons and a brief of
evidence. You get that only after you
take your infringement to court.
After you have referred your case to
court you can ask your lawyer whether
it is worth pursuing. If you are
thinking of emailing me a long story to
ask whether you should take it to
court, don't bother. The answer is
"Yes". If you take the matter to court and are found
guilty or plead guilty, it is rare (but not impossible) for the court
to impose a period of licence loss that is greater than the mandatory
minimum period that was on the infringement notice. The most likely
downside is having to pay court costs of $40.00, as well as taking
a day off work and incuring your own legal fees (if any). Revoking
an Enforcement Order There
is another way you can have a matter
referred to a court for determination.
If you failed to pay the fine, and
ignored the courtesy letter that
followed it, you may find that the
Infringements
Court
makes an enforcement order against you
in respect of a financial penalty. It
is possible to have this order set
aside by contacting the
Infringements
Court and making an application to the
registrar to revoke the order. You will
have to state your reasons in a
statutory declaration. If the order is
revoked, the alleged offence is
referred to the Magistrates Court for
determination. You will then have a normal
court hearing where the police or other
enforcement authority will be required
to prove the offence (unless by some
miracle they choose to withdraw the
charge) and you will have an
opportunity to defend the allegations,
and you also have a chance to seek a
reduced sentence if you are guilty. No
charge and summons is issued or served.
In this case no notice of objection has
been sent canceling the TIN. Rather,
the TIN is treated as if it is the
charge and summons.
It is arguable that this process could
be used in respect of the financial
penalty componant of a licence loss
infringement, but it can not be used to
reverse a licence suspension or
cancellation imposed by a TIN. See
Infringements
Court. Defective
Infringement Notices It
is possible for an infringement notice
to have a serious defect that renders
it invalid. Legislation sets out what
information an infringement notice must
contain, although infringement notices
also contain a lot of additional
information that is not required by the
legislation and therefore is not
essential. If
essential sections of the infringement
notice are left blank or are
meaningless, such as the date of the
offence, the date of the notice, the
alleged speed or BAC, a signature, etc,
then the fine may be defective
to the point that it is invalid. (See
DPP
v. Korybutiak
as
an example of a case run on this type
of point). If your infringement notice
is defective and you want to avoid
licence loss, you should seek legal
advice to ensure you take the correct
steps to protect you from licence loss.
Calling the police or civic compliance
within 12 months of the date of offence
to boast or complain that they made a
mistake on the fine, or objecting to
the fine, will result in a corrected
infringement notice being sent to you
in the mail - or a charge and summons
being served - which will resolve the
issue. If
you have a defective fine that is not
going to award you either demerit
points or licence loss then it would
probably be easier just to pay it.
Fighting a fine just to avoid the
financial penalty will always cost you
more than the amount due on the fine.
The only advantage to you in
complaining about a defect in any
infringment notice is that you may gain
a bit more time while they write a new
fine and send it to you. Usually that
is no real gain at all. Not
every mistake in the infringement
notice will render it invalid, but if
some essential ingredient in the notice
is either missing or incorrect then the
notice may be invalid and you may be
advised not to object to an invalid
notice. An invalid infringement notice
should be ignored if you want to rely
on the defect. The
infringement notice will not be invalid
just because it has your car's colour
wrong, has a spelling mistake or typo,
or because you disagree with any
allegation or information stated in
it. The top section of the fine
has information which identifies the
driver (name, address, licence number,
date of birth, car rego, colour etc).
This enables VicRoads to identify which
licence or rego to suspend or to record
demerit points. An error here is very
unlikely to prevent them correctly
identifying the driver and recording
demerit points against him or
her or suspending the correct driver's licence. If
you want to know if your infringement
notice is valid, post a copy to me
attached to a cheque, money order or
credit card authorisation for $70.00
and I will telephone or email you
within a day or two with my opinion. If
it is not worth $70.00 to you then you
will understand why it is not worth my
while to receive emails or phone calls asking me whether or not your fine is valid. Infringement Notice Review or Withdrawal S.22 of the Infringements Act allows a person to
request an enforcement agency (e.g. the police or a local council) to
review an infringement notice only if they are eligible for a review.
You should not seek a review unless you are confident that you qualify
for one. You can apply for a review if: (i) issuing the infringement notice was contrary to law; or There is a section of the Traffic Camera Ofiice
called the Penalty Review Board (PRB) which considers all applications
for review of VPOL issued infringement notices. Although the police can withdraw an infringement notice
if exceptional circumstances apply to the person or to the
circumstances of the offence it is extremely rare for them to do so.
For example, in one case a client was called by the firebrigade
to go to his warehouse which was on fire and open the roller doors to
save the firemen from having to cut them open. The police stopped him
on route and issued an infringement notice for a traffic offence. The
PRB denied his application for review. Clients on route to hospital for
life threatening illnesses have been denied their applications for
review. If you have had an excellent excuse refused, let me know about
it. If your circumstances are not exceptional - or
even if they are - you should not bother seeking a review of a traffic
infringement notice. Your best option is to object to the
infringement notice and try your luck at court by objecting to the
infringement notice and electing to go to court. People who write to
the PRB invariably make admissions in writing that they will regret
making if they end up in court. Your lawyer's job will be made harder
if you have written any letters to the PRB. Only if you are sure you
will never want to take the matter to court, is there nothing to lose
by seeking a review from the PRB. In my experience seeking a review is a waste of
time and should not be done unless you are not thinking about pursuing
your other remedies, such as going to court. On the other hand Local
Councils are known to withdraw a parking infringement notice if you
meet the above criteria. Internal Review of Speeding Infringement Notices The Penalty Review Board can exercise discretion
to withdraw
fines and issue warnings
for full licence holders who have had no demerit point offences in the past 2 years
and have received an infringement notice for doing less than 10kmh over
the speed limit. If you have been a good driver and don't have a points problem you can get a bit
of leniency. If you are accused of doing >9kmh over the speed limit
or a non-speeding offence you won't qualify for a warning. If you think you qualify, send them
a letter asking for a warning instead of a fine and hope for the
best. You might also be able to get some infringement notices withdrawn if you have received multiple infringements
from
fixed speed cameras on freeways which have all occurred within a
week or two of each other. Generally, the descretion is not exercised
for infringements that carry more than 1 point. Some of my clients
have received dozens of
infringement notices from the same camera over several weeks and we
have managed to get a large number of those infringements
withdrawn. Drivers with multiple infringement notices should seek a
review before deciding whether or not to take the infringements to
court. It is also possible to get an infringement withdrawn if it is a
duplicate, i.e. you have two speeding tickets issued for the same
offence on the same road on the same day regardless of the speeds
alleged. If you
want help or advice about making an application to the
PRB then make an appointment to see me with all your paperwork and your demerit point history. The PRB has authority to withdraw any police issued infringement notice. In practice the PRB does not
usually withdraw infringement notices. Their primary
purpose appears to be to check notices to
see if they are valid and they will
verify that an offence is correctly alleged. If
a notice has any errors, they will
correct the errors (i.e. wrong date,
wrong penalty, mis-spelling etc) and reissue the notice
to you. If you later decide to take the matter to
court, your letter will become evidence
against you and it will invariably be
detrimental to your case. If you think
you will take the matter to court if
the PRB rejects your request, then it
would be quite foolish to write to the
PRB at all. Your letter will always
disadvantage you at court. Instead, just lodge
an objection to the fine and save your
story for your lawyer or the
Magistrate. So you have a choice - take
it to court or write to the PRB. Do not
attempt to do both. If you are sure you
will never take the matter to court,
then there is nothing to lose by
writing to the PRB. Good Luck! The
address of the Penalty Review Board is: Traffic Camera Office, Level 1, 277 William
Street, Melbourne 3000. Owner-Onus
offences (traffic camera
offences) If
you are the registered owner of a
vehicle and receive a traffic camera
infringement notice, CityLink fine or
parking fine and you were not the
driver of your vehicle at the time of
the offence, you can nominate the
person who was responsible for the
vehicle at the time of the offence. If
the owner makes a "user statement",
then the owner can not be found guilty
of the traffic offence. A user
statement is a statement in writing
which nominates the person who was
responsible for the vehicle at the time
of the offence ("known user
statement"), or states why the owner is
unable to nominate the person
responsible ("unknown user statement"),
or states that the vehicle has been
sold ("sold user statement"), or states
that the vehicle or the number plates
where stolen at the time of the offence
("illegal user statement"). If the user
statement is accepted by the police,
the enforcement agency will then
withdraw the fine, and issue a fresh
infringement notice to the nominated
person. If an owner wishes to make a
user statement, then it needs to be
made prior to any enforcement order
being made in respect of the fine
(usually about 10 weeks from the date
of the offence) or within 28 days for
licence loss offences. If you are
making a user statement, then you must
not pay the fine or enclose any payment
for it. Sometimes it is possible to
nominate the driver even if more than
28 days have passed from the date of
the infringement notice, and even if
the fine has been paid. Prior to July
2007, the owner could nominate the
driver and there was no provision for a
nominated person to reject the
nomination. For offences committed
since 1 July 2007 the nominated person
can send in their own user statement in
reply (i.e. re-nominate), or reject the statement that
nominated them. These
nomination statements can sometimes be a bit
tricky. If your licence is at risk from
suspension or demerit points, and you
can not afford to get the process
wrong, then you might wish to get legal
help. There are a number of ways of
dealing with driver nominations, and
some options are smarter than others,
so get advice if you need to keep your
licence. There
is no obligation on the owner to make a
user statement, unless the owner is a
company. The penalty for a company
failing to complete a user statement is
over $600. Appeal
against licence
suspension If
your licence is about to be suspended
for non-payment of parking and/or
traffic fines or for demerit points,
you have the right to lodge an appeal
against the decision to suspend your
licence and a court will usually permit
you to drive pending the hearing of the
appeal. The appeal is heard in the
Magistrates Court. VicRoads will defend
the appeal. In demerit
point
matters
the grounds of appeal are restricted to
questions relating to whether or not
the demerit points have been recorded
against you correctly and lawfully.
There is generally no opportunity to
re-litigate the offences giving rise to
the demerit points, only a chance to
challenge the manner in which they were
calculated or applied to
you. Drink
driving infringement
notices A
TIN can be issued to first time drink
drivers with readings up to 0.15%. For
most drink
driving offences
if you pay the TIN, you will
automatically lose your licence for the
mandatory
licence cancellation
period
stated on the TIN beginning 28 days
after the date of the notice, unless
notice of objection is sent to Civic
Compliance within the 28 day period. If
you were not aware that the
infringement notice existed before the
28 days expired, it is possible to get
an extension of time to lodge your
objection. To take the
infringement to court, fill out the objection section on the back
of the infringement notice and post it to the address stated on the
notice for that purpose. Keep a photocopy of the infringement notice
and make a detailed diary note of when and where you posted the
objection. This causes the TIN to be cancelled and of no further use.
Eventually the police should post you a "Charge and Summons" inviting
you to attend court. When you receive your summons it is time to seek
legal advice to find what can be done to improve your situation and
hopefully win your case. You will avoid mandatory licence loss,
avoid paying fines and probably recover legal costs if you win your
case. For first
time offenders who have a full drivers licence and are aged 26 or more,
if your alcohol reading is under 0.07% you need not suffer licence loss
- the TIN should have 10 demerit points marked on it with no licence
cancellation. Paying the fine will result in you losing 10 demerit
points but keeping your licence. If you want to avoid the 10 demerit
points (or you need to save your licence from cancellation) you will
need to object to the notice and take the matter to court. If you receive a
TIN and your reading is over 0.07%,
your options are: If you have any drink driving history in the past 10 years you won't get a Traffic Infringement Notice. You will be
charged on summons to attend
court and usually get an on the spot licence suspension notice as well. Speeding
infringement notices If
you get a speeding fine, your options
are: If
a speeding infringement notice states
you are facing licence loss, the only
way to keep your licence will be to
object to the infringement notice, wait
to be taken to court,
plead
not guilty and beat the charge.
It would also be wise to get
legal
advice
and representation. If you wish to save
your licence from mandatory suspension,
you need to lodge notice of objection
within 28 days of receiving the notice.
If you were not aware that the
infringement notice existed before the
28 days expired, it is possible to get
an extension of time to lodge your
objection. Unless your licence is at
risk, you may find it uneconomical to
take the matter to court. See the
Speeding page for more
information. Licence
Suspension or
Cancellation? A
licence that is cancelled ceases
to exist. To be relicenced the driver
will need to attend a VicRoads office,
pay $150.00 (or whatever the fee has
been increased to by the time you read
this), and get their photo taken. All
licence cancellations are accompanied
by a period of at least three months
during which the driver is disqualified
from obtaining a licence. Once your
disqualification period has ended, and
you have obtained permission to drive
from a Magistrate if that is required,
you are free to apply for a new
licence. The new licence will have the
same status (e.g. probationary) as your
last licence had, except that for drink
drivers it will come with a 3 year zero
condition and possibly an interlock
condition. You are not required to pass
any test. Licence cancellation is
imposed for the following offences:
drink driving, dangerous driving,
driving at a dangerous speed, and some
drug driving offences. For all other
offences most Magistrates prefer to
impose licence suspension instead of
cancellation. Driver's who had their
licence cancelled are required to send
their licence to VicRoads. A
licence that is suspended ceases
to have effect for a limited time. Once
the suspension period expires the
licence is once again current (provided
the licence has not expired in the
meantime). There is nothing the driver
needs to do before being allowed to
drive except wait for the suspension
period to end. Most licence suspensions
result from speeding offences and
demerit points accrual, but all motor
vehicle offences can have licence
suspension periods imposed if they are
not subject to mandatory licence
cancellation. Drivers who have had
their licence suspended are required to
send their licence to
VicRoads. The
maximum penalty for driving whilst
suspended or whilst disqualified is,
for a first offence, up to $3300 fine
or 4 months imprisonment. For a second
offence the penalty is at least one
month imprisonment but not more than 2
years imprisonment. Terms of
imprisonment can be suspended. There is
often a further period of licence loss
ordered. Read
more
about driving whilst suspended or
disqualified.
Getting your licence back once the suspension period has started. If your
licence has been suspended or cancelled by an infringement notice, you
can not get it back before the end of the licence loss period. If your
licence has been suspended or cancelled by a Magistrate, you have 30
days to lodge a County Court appeal (or you might be eligible for a
re-hearing), else you can not get it back before the end of the licence loss period. If your
licence has been suspended for demerit points, you can undo the
suspension only if you can reverse the points that caused the
suspension to occur. If your
licence has been suspended by the sheriff for non-payment of fines, you
can get it back only if you pay your fines or seek revocation of the
enforcement order. If your
licence has been suspended under s.51 Road Safety Act for drink
driving, you might get it back by appealing against the suspension
notice.
Delaying licence loss commencing Some
people choose to object to infringement notices in
order to postpone the consequences of an offence, whether it be licence loss or
demerit points. When an objection is lodged it can take several months for court
proceedings to commence, and then many
more months for the court case to
conclude. Then an appeal process can
take many more months to complete. Most
drivers are entitled to keep their
licence until the court processes are
completed. Although these processes may
postpone the commencement of licence
loss, generally they do not reduce the
total period of licence loss that is served unless the
defendant is acquitted of the charge at court. Interstate
and overseas drivers
licences The
rules applying to interstate and
overseas licence holders are different
and the above information may not be
applicable. For example, non-Victorian
licences generally can not be suspended
by Victorian laws but other procedures
may apply to them, such as suspending
their entitlement to drive in Victoria
using an interstate or overseas
licence. The subject is too complicated
to give a simple definitive answer to
such problems here. If you are
concerned about your licence status and
eligibility to drive in Victoria or
your home state, then you may wish to
seek legal advice about your particular
circumstances. Related
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Copyright S. P. Hardy |