The Victorian Government have implemented various stages of restrictions during 2020, including stage 4 lockdown, curfew, and a 5km boundary. Restrictions have varied from regional to metropolitan Melbourne, and have changed regularly, often with very little notice.
Victoria Police have been given power to issue on-the-spot fines for individuals and businesses who fail to comply with the disaster or public health risk directions of the Chief Health Officer.
A person is not guilty of the offence of failing to comply with the emergency or public health risk directions if they have a reasonable excuse for failing to comply with a direction or requirement.
There is no strict definition of reasonable excuse, and there are likely to be various circumstances that may fall within this category.
Some specific exceptions included in the Orders include:
- to attend upon a financial institution or Government agency
- to maintain arrangements for shared parenting/custody agreements
- for a parent to visit a child or arrange child minding (in limited circumstances)
- take a child to childcare or school (in limited circumstances)
- to donate blood
- to escape harm or violence
- pet toilet break
- other responsibilities regarding care of animals
- for emergency purposes
- as required or authorised by law
- for the administration of justice – police station, court
- to attend place of worship (in limited circumstances)
- to attend a Community facility (in limited circumstances)
- driving a household member to a location for a permitted purpose
- if current residence is unavailable or unsuitable
- dealing in residential property such as private inspection
- moving house
- for a person who usually resides outside Victoria – to leave Victoria
- if the person is permitted to leave Australia – to leave Australia
This list is not exhaustive and there are likely to be other circumstances that constitute a “reasonable excuse”. For example, “emergency purposes” is a very broad term and is subject to interpretation. Personal legal advice relating to your own circumstances is recommended.
If you think there is a reason why you should not have been fined, you can ask for an internal review. You must ask for a review before the due date on your fine from the agency who issued your fine. The agency can review your fine if you believe you have a reasonable excuse, if there was a mistake made in issuing the fine or if you believe the fine should have been given to someone else.
Following a review, the agency can decide to withdraw the fine and take no further action, withdraw the fine and issue you with an official warning instead, approve a payment arrangement, confirm its decision to issue you with a fine or refer the matter to the Magistrates’ Court.
If your matter is referred to court, you will be issued a charge and summons to appear at a Magistrates’ Court on a specified date. If you do not attend at Court on that date, or do not communicate with the Court about your appearance prior to that date, the charge may be heard in your absence.
In order to contest the charge, you will be required to engage in a discussion with the Prosecutors – this is called a Summary Case Conference. Usually this must be done by email prior to Court, but can be done in person at Court in some circumstances. In a Summary Case Conference, the Prosecutors can be advised of your position, and can make a decision about whether the charge should proceed.
If the Prosecutors decide that the charge should proceed, the Court will usually be required to set another future Court date for a Contested Hearing. The Contested Hearing is when the Magistrate will hear evidence from the Police, and yourself, and decide whether the charge is proven.
If the charge is found proven, the Magistrate may impose a penalty, and the nature of this penalty will be at the discretion of the Magistrate. The penalty may be equivalent to, or more than, or less than, the original infringement notice.
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Views expressed in this article are not necessarily endorsed by Leanne Warren and Associates.