CHILDREN, YOUTH AND FAMILIES ACT 2005 (NO 96 OF 2005)

Victorian Numbered Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

CHILDREN, YOUTH AND FAMILIES ACT 2005 (NO 96 OF 2005) - SCHEDULE 3

SCHEDULE 3

Sch. 3

Sections 529, 581, 582, 592, 600

CHILDREN AND YOUNG PERSONS INFRINGEMENT NOTICE SYSTEM

PART 1—INTRODUCTORY

1. Application of Schedule

(1) The procedures set out in this Schedule may be used for the enforcement of infringement penalties and penalties imposed by penalty notices.

(2) If the procedures set out in this Schedule are used, they apply without prejudice to the application of so much of any other procedure as is consistent with this Schedule.

(3) The procedures set out in Part 2 may be used in relation to any infringement notice, whenever issued.

(4) The procedures set out in Part 3 apply to penalty notices and prescribed offences despite anything to the contrary in a Code.

2. Definitions

In this Schedule—

"appropriate officer" , in relation to an infringement notice or penalty notice or an infringement penalty, means—

(a) a person who is the enforcement agency; or

(b) a person appointed by the enforcement agency as an appropriate officer for the purposes of the notice or the class of notice; or

"certificate" means a certificate under clause 5(1)(b);

"Code" means a Code within the meaning of section 32 of the Interpretation of Legislation Act 1984 ;

"continuing offence provision" means a prescribed provision of an Act or a Code;

"courtesy letter" means a notice served under clause 3(1);

"enforcement agency" , in relation to an infringement notice or penalty notice or an infringement penalty, means—

(a) a person or body authorised by or under an Act to take proceedings for the offence in respect of which the notice was issued; or

(b) a person by whom, or body by which, a person or body referred to in paragraph (a) is employed or engaged to provide services if the taking of the proceedings referred to in that paragraph would occur in the course of that employment or in the course of providing those services; or

(d) a prescribed administrative unit; or

(e) a prescribed group of people;
Sch. 3

"enforcement order" means an order under clause 7(3)(e), 8(2)(c), 8(2)(d), 8(2)(e) or 9(5);

"fine" includes any costs that may be required to be paid under this Schedule by the child on whom the infringement notice was served;

"infringement notice" means an infringement notice under a prescribed provision of—

(a) any Act or statutory rule; or

(b) any local law made under the Local Government Act 1989 ; or

"infringement penalty" means the amount specified in an infringement notice as payable in respect of the offence for which the infringement notice was issued;

"penalty notice" means a penalty notice under a prescribed provision of an Act or a Code;

"prescribed offence" means an offence within the meaning of, or prescribed under, a prescribed provision of an Act or a Code;

"registrar" means principal registrar, registrar or deputy registrar;

"statutory rule" has the same meaning as in the Subordinate Legislation Act 1994 .

PART 2—INFRINGEMENT NOTICES

3. Courtesy letters

(1) If it appears to an appropriate officer that an infringement penalty has not been paid before the end of the time specified in the infringement notice, the officer may serve a notice (a "courtesy letter") on the child on whom the infringement notice was served.

(2) A courtesy letter must state—

(a) that the child on whom it is served has a further 28 days in which to pay the infringement penalty together with any prescribed costs; and

(b) that in default of payment, the child may be dealt with under this Part; and

(3) If—

(a) the enforcement agency is prepared to accept payment of the infringement penalty and costs by instalments; and

(b) the payment of the infringement penalty would result in the loss of demerit points under the Road Safety Act 1986 —

the courtesy letter must also contain a warning that entering into an arrangement to pay the infringement penalty and costs by instalments will result in the loss of demerit points under that Act.

(4) A courtesy letter may contain any other information that is prescribed for the purposes of this sub-clause.

(5) If a child is served with a courtesy letter in relation to an infringement notice, the time for payment of the infringement penalty is extended until the end of 28 days after service of the courtesy letter.

(6) The infringement penalty together with the prescribed costs may be paid within the extended period as if the infringement notice or law under which the notice was served also required the payment of those costs.

(7) A child who has been served with a courtesy letter may decline to be dealt with under this Part by serving a written statement to that effect on the officer or person specified for that purpose in the letter within 28 days after service of the letter.

4. Agreeing to pay by instalments has same effect as a full payment

(1) This clause applies in respect of an offence that would result in a child losing demerit points under the Road Safety Act 1986 if the child were convicted of the offence.

(2) For the purposes of the Road Safety Act 1986 , the child is to be taken as paying the infringement penalty in respect of the offence on entering into an arrangement to pay the infringement penalty and costs by instalments.

5. Registration of infringement penalties

Sch. 3

(1) An enforcement agency may seek to have an infringement penalty registered by providing to a registrar—

(a) a document in the form required by the regulations containing the details required by the regulations in relation to a child—

(i) who has not paid an infringement penalty; or

(ii) who has entered into an arrangement to pay an infringement penalty by instalments but who has subsequently failed to comply with the arrangement; and

(b) a certificate in the prescribed form signed by an appropriate officer and certifying that in respect of the child referred to in the document the requirements set out in sub-clause (2), and any other prescribed requirements, have been satisfied.

(2) A certificate under sub-clause (1)(b) must certify that—

(a) an infringement notice has been served on the child; and

(b) a courtesy letter has been served on the child after the end of the time specified in the infringement notice as the time within which the infringement penalty may be paid; and

(d) the infringement penalty and any prescribed costs had not been paid before the certificate was issued; and

(e) if the child entered into an arrangement to pay the infringement penalty and any prescribed costs by instalments—

(i) the child has failed to comply with the arrangement; and

(ii) a specified amount still remains to be paid under the arrangement; and

(f) the child has not, under clause 3(7), declined to be dealt with under this Part; and
Sch. 3

(g) a charge in relation to the offence has not been filed; and

(h) a charge may still be filed in relation to the offence, having regard to the time when the offence is alleged to have been committed; and

(i) if the infringement notice was served under section 87 of the Road Safety Act 1986 , the child was at the time of the alleged offence—

(i) the owner of the vehicle within the meaning of Part 7 of that Act; or

(ii) the person in charge of the vehicle as shown in a statement or declaration supplied in accordance with section 86(3)(a), 86(3)(aab) or 86(3)(ab) of that Act; and

(j) if the infringement notice was issued in respect of an offence to which section 66 of the Road Safety Act 1986 applies, the child was at the time of the alleged offence—

(i) the owner of the motor vehicle within the meaning of section 66 of that Act; or

(ii) the driver of the motor vehicle as shown in a statement or declaration supplied in accordance with section 66(3)(a), 66(3)(aab) or 66(3)(ab) of that Act; and

(k) if the infringement notice was issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995 , the child was at the time of the alleged offence—

(i) the owner of the vehicle within the meaning of Part 4 of that Act; or

(ii) the driver of the vehicle as shown in a statement or declaration supplied in accordance with section 87(3)(a), 87(3)(aab) or 87(3)(ab) of that Act; and

(l) if the infringement notice was issued in respect of an offence under section 204 of the Mitcham-Frankston Project Act 2004 , the child was at the time of the trip to which the alleged offence relates—
Sch. 3

(i) the owner of the vehicle within the meaning of that Act; or

(ii) the driver of the vehicle as shown in a statement supplied under section 199 or 219 of that Act.

(3) If it appears to the registrar from the certificate provided under sub-clause (1)(b) that the requirements listed in sub-clause (2) and any other prescribed requirements have been satisfied in relation to a child referred to in the document provided with the certificate, the registrar may register the infringement penalty or the part of the infringement penalty together with any prescribed costs for the purpose of enforcement under this Part.

(4) Despite sub-clause (3), the registrar must not register an infringement penalty that is for an amount less than the amount, if any, specified by the regulations for the purposes of this sub-clause.

Note: See section 373 for maximum fines that may be imposed by the Court.

(5) The enforcement agency may, by notice in the prescribed form filed with the registrar at any time before an infringement penalty or a part of an infringement penalty is registered under sub-clause (3) in relation to a child, request the registrar not to register the infringement penalty or part.

(6) A registrar must comply with a request made in accordance with sub-clause (5).

6. Child's options

(1) On registering an infringement penalty or a part of an infringement penalty together with any prescribed costs, the registrar must cause to be sent by post to the child to whom the infringement penalty was issued at the address contained in the document provided under clause 5(1)(a) or any other address given by that child a notice in writing setting out the matters referred to in sub-clauses (2), (3) and (4).

(2) A child may—

(a) pay to the Court the amount of the infringement penalty or part and any prescribed costs on or before the date specified in the notice; or

(b) make an application referred to in clause 7; or
Sch. 3

(d) request that consideration of the matter be deferred to another date so that the child may appear before the registrar; or

(e) decline to be dealt with by the registrar and request that the matter of the alleged offence in respect of which the infringement notice was issued be heard and determined by the Court; or

(f) do nothing and leave the matter of the infringement notice to be dealt with by the registrar on the date specified in the notice.

(3) In addition to sub-clause (2), a child may provide to the registrar information in writing by or on behalf of the child in relation to—

(a) the child's employment or school attendance;

(b) the child's personal and financial circumstances.

(4) If a child wishes to exercise the option referred to in sub-clause (2)(e)—

(a) the child must notify the registrar on or before the date specified in the notice under sub-clause (1); and

(b) on receipt of the child's notification, the registrar must cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency.

(5) Nothing in this Part prohibits an enforcement agency from filing a charge with the Court in respect of an infringement notice that has been remitted to it under sub-clause (4)(b).

7. Applications concerning payment of fine

(1) A child against whom an infringement penalty or part of an infringement penalty has been registered may apply to the registrar personally or in writing or in any other manner approved by the registrar for one or more of the following—
Sch. 3

(a) an order that the time within which the fine is to be paid be extended; or

(b) an order that the fine be paid by instalments; or

(d) an order that payment of the fine not be enforced.

(2) An application under sub-clause (1)(d) must be made in the prescribed form.

(3) On receipt of an application under sub-clause (1), the registrar may do one or more of the following—

(a) allow additional time for the payment of the fine or the balance of the fine;

(b) direct payment of the fine to be made by instalments;

(d) vary the amount of instalments;

(e) order that the fine not be enforced.

(4) If the registrar orders that a fine not be enforced, the registrar must give notice of the order and a copy of the application for the order to the enforcement agency within 3 working days after the making of the order.

8. Enforcement order

(1) If—

(a) the child against whom an infringement penalty or part of an infringement penalty has been registered has not paid the infringement penalty and does not decline to be dealt with by the registrar; and

(b) an order under clause 7 has not been made—

the registrar must consider the matter on the date specified in the notice under clause 6.

(2) After hearing the child, if the child appears before the registrar, and after considering any information provided to the registrar under clause 6(3), the registrar may—

(a) if the child contests the matter of the alleged offence in respect of which the infringement notice was issued or declines to be dealt with by the registrar, cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency; or
Sch. 3

(b) defer making a decision to a later date on which the child is to appear before the registrar; or

(c) make an order confirming the infringement penalty and order that the child pay to the Court the amount of the infringement penalty or part and any prescribed costs; or

(d) make an order reducing the infringement penalty and order that the child pay to the Court the amount of the infringement penalty or part as so reduced and any prescribed costs; or

(e) if the registrar is satisfied that it is appropriate to do so, order that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced.

(3) In exercising his or her discretion under sub-clause (2), the registrar must have regard to the age and personal and financial circumstances of the child.

(4) An order made under sub-clause (2) must not require payment of an amount exceeding the amount of a fine that the Court may impose under section 373.

(5) An enforcement order is deemed to be an order of the Court—

(a) in the case of an order made under sub-clause (2)(c) or (2)(d), on the expiry of 28 days after the making of the order unless an application is made under clause 9 within that period;

(b) in the case of an order made under sub-clause (2)(e) or clause 7(3)(e), on the expiry of 14 days after the making of the order unless an application is made under clause 9 within that period.

(6) Not later than 3 working days after the making of an enforcement order, the registrar must cause a notice in the prescribed form to be sent by post to the child against whom the order is made at the address contained in the document provided under clause 5(1)(a) or any other address given by the child.
Sch. 3

(7) If the registrar orders that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced, the registrar must give notice of the order and a copy of any information provided by the child under clause 6(3) to the enforcement agency not later than 3 working days after the making of the order.

(8) A child against whom an enforcement order is made may apply for an order under clause 7.

9. Court review of enforcement order

(1) If the registrar makes an order under clause 8(2)(c) or 8(2)(d), the child may, by notice in writing to the Court within 28 days after the registrar's decision, apply to the Court for a review of the registrar's order.

(2) If the registrar makes an order under clause 7(3)(e) or 8(2)(e), the enforcement agency may, by notice in writing to the Court within 14 days after the date of the order, apply to the Court for a review of the registrar's order.

(3) On receipt of a notice under sub-clause (1) or (2), the registrar must cause notice of the time and place of hearing of the review to be given or sent to the child and the enforcement agency.

(4) On a review under this clause, the child and the enforcement agency are entitled to appear.

(5) On a review under this clause, the Court may make an order—

(a) confirming the registrar's order; or

(b) requiring the child to pay an amount not exceeding the amount that the Court may impose under section 373; or

10. Enforcement hearing

(1) If—

(a) an order is made under clause 7, 8(2)(c), 8(2)(d) or 9(5) in respect of a child; and

(b) for a period of more than one month the child defaults in the payment of an amount ordered to be paid or of any instalment under an instalment order—

the Court may, by notice in writing served on the child, require the child to appear before the Court at a specified time and place for an enforcement hearing.

(2) On an enforcement hearing, the Court may make any order that it could make under section 373.
Sch. 3

11. Effect of enforcement order

(1) If an enforcement order is made in relation to an offence alleged to have been committed by a child—

(a) the child is not thereby to be taken to have been convicted of the offence; and

(b) the child is not liable to any further proceedings for the alleged offence; and

(c) the making of the order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence; and

(d) payment in accordance with the order is not an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(2) Any amount recovered as a result of the making of an enforcement order is to be dealt with in the same way as an amount recovered as a result of a conviction.

(3) Despite anything to the contrary in this clause, the making of an enforcement order in relation to an offence which is a traffic infringement within the meaning of the Road Safety Act 1986 does not prevent the incurring of demerit points under section 25 of that Act in relation to that infringement.

(4) Despite anything to the contrary in this clause, the making of an enforcement order—

(a) may be recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7) of the Road Safety Act 1986 ; and

(b) does not prevent the suspension of the registration of a vehicle under that scheme.

12. Expiry of enforcement order

(1) An enforcement order expires—

(a) if an order is made under clause 7(3)(a), 7(3)(b), 7(3)(c) or 7(3)(d) in relation to the enforcement order—

(i) on the payment in full of the fine; or
Sch. 3

(ii) if one or more payments are made under the order but the fine is not paid in full, 3 years after the receipt of the last payment; or

(iii) in any other case, 3 years after the making of the order under clause 7(3);

(b) if a warrant to seize property has been issued in respect of the order, on that warrant becoming void under section 529;

(c) if an order is made directing that an infringement penalty and any costs that remain unpaid not be enforced or an order is made under clause 7(3)(e), on the making of that order;

(d) in any other case, 3 years after the order was made.

(2) If both sub-clauses (1)(a) and (1)(b) apply, the enforcement order expires on the warrant to seize property becoming void.

(3) If an enforcement order expires as a result of this clause, any amount still outstanding in respect of the fine for which it was made ceases to be enforceable or recoverable.

(4) On the expiry of an enforcement order, any warrant to seize property that was issued in respect of that order is void.

(5) An enforcement order that has expired may be reinstated by the registrar on the application of the enforcement agency.

(6) Despite sub-clause (3), if an enforcement order is reinstated, the fine in respect of which it was made again becomes enforceable or recoverable as if there had been no cessation.

(7) Sub-clause (1) does not apply to a reinstated enforcement order.

(8) A reinstated enforcement order expires 3 years after it was reinstated.

(9) This clause does not apply to an enforcement order in respect of which a warrant has been issued under the Service and Execution of Process Act 1992 of the Commonwealth.

13. Service of documents

(1) All documents required or permitted by this Part to be given or served, may be served personally or by post or in any other prescribed manner.

(2) If a courtesy letter is served by post it must be addressed—

(a) to the last known place of residence or business of the child alleged to have committed the offence; or

(b) if the infringement notice was served under section 87 of the Road Safety Act 1986 —
Sch. 3

(i) to the last address of the owner of the vehicle within the meaning of Part 7 of that Act; or

(ii) if a statement or declaration has been supplied under section 86(3)(a) , 86(3)(aab) or 86(3)(ab) of that Act, to the last address of the person alleged in that statement or declaration to have been in charge of the vehicle; or

(c) if the infringement notice was issued in respect of an offence to which section 66 of the Road Safety Act 1986 applies—

(i) to the last address of the owner of the motor vehicle within the meaning of section 66 of that Act; or

(ii) if a statement or declaration has been supplied under section 66(3)(a) , 66(3)(aab) or 66(3)(ab) of that Act, to the last address of the person alleged in that statement or declaration to have been the driver of the motor vehicle; or

(d) if the infringement notice was issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995 —

(i) to the last address of the owner of the vehicle within the meaning of Part 4 of that Act; or

(ii) if a statement or declaration has been supplied under section 87(3)(a) , 87(3)(aab) or 87(3)(ab) of that Act, to the last address of the person alleged in that statement or declaration to have been the driver of the vehicle.

(3) Any other document served by post under this Part must be addressed—

(a) to the address for service given by the person on whom the document is to be served; or

(b) if no address for service has been given, to the address contained in the document provided under clause 5(1)(a).

PART 3—PENALTY NOTICES

14. Application of Part 2 to penalty notices

Sch. 3

Part 2, with any necessary modifications, applies to penalty notices and prescribed offences as if—

(a) any reference in that Part to an infringement notice were a reference to a penalty notice; and

(b) for clause 11(1)(a) there were substituted the following—

"(a) the person is not thereby to be taken to have been convicted of the offence, except as provided in clause 15; and".

15. Deemed conviction where failure to do act or thing

If a penalty notice has been served on a child in relation to a prescribed offence constituted by a failure to do a particular act or thing and—

(a) the child pays the infringement penalty together with any prescribed costs after the end of the period specified in the penalty notice but before an enforcement order is made under this Part in relation to the prescribed offence but does not do the act or thing and at the date of payment that act or thing was still able to be done, the obligation to do that act or thing continues and the relevant continuing offence provision applies in relation to the continued failure to do the act or thing as if, on the day on which the child made the payment, the child had been convicted of an offence constituted by a failure to do the act or thing; or

(b) an enforcement order is made and at the date on which the enforcement order was made that act or thing had not been done and was still able to be done, the obligation to do that act or thing continues and the relevant continuing offence provision applies in relation to the continued failure to do that act or thing as if, on the day on which the enforcement order was made, the child had been convicted of an offence constituted by a failure to do the act or thing.
Sch. 3

__________________

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback