Infringement notices

From Term 1 2017, Victorian government and Catholic schools will use the new Victorian Curriculum F-10. Curriculum related information is currently being reviewed and may be subject to change.

For more information on the curriculum, see:
The Victorian Curriculum F–10 - VCAA

Decision to issue an Infringement Notice

The issuing of an Infringement Notice or beginning proceedings in court should be an action only of last resort.

Infringement Notices issued in relation to school enrolment must comply with the Infringements Act 2006. School Attendance Officers must familiarise themselves with the provisions of the Infringements Act 2006 , particularly in relation to special circumstances and exceptional circumstances.

School Attendance Officers have discretion about which action to take. Actions include:

  • taking no further action
  • issuing an official warning notice
  • issuing an Infringement Notice (except for the offence of providing false information)
  • commencing proceedings in the Magistrates' Court

Before deciding upon a particular course of action School Attendance Officers should consider any other information about the circumstances of parents.

The infringement's regime recognises there are circumstances in which a person's capacity to comply with a law or regulation is limited for reasons beyond their control. In such circumstances, it would be unfair to punish the person for their non-compliance.

Considerations for School Attendance Officers

There are circumstances in which School Attendance Officers should not issue an Infringement Notice.

A School Attendance Officer may, from the parent's response to the School Enrolment Notice or from information provided by the referring person, have information about any special or exceptional circumstances the parent could use as grounds for an appeal. This creates a different situation for a School Attendance Officer compared to the amount of information held by issuing officers for many other Infringement Notices (for example parking offences).

Whenever possible, School Attendance Officers should identify cases in which special or exceptional circumstances or other grounds for appeal may apply. This is best done at the stage of assessing the response to a School Enrolment Notice, rather than issuing an Infringement Notice and waiting for the parent to appeal.

Special circumstances are those situations in which a person should not be criminally liable for his or her conduct. Special circumstances may exist if the person suffers from:

  • a mental or intellectual disability, disorder, disease or illness resulting in the person being unable to understand or control the conduct that constitutes the offence
  • a serious addiction to drugs, alcohol or a volatile substance (chroming) resulting in the person being unable to understand or control the conduct that constitutes the offence
  • homelessness, where this results in the person being unable to control the conduct that constitutes the offence

Exceptional circumstances cover less serious and less enduring circumstances than special circumstances. Exceptional circumstances cover cases where a person has enough awareness and self-control to be liable for his or her conduct, but has a good excuse. This category can encompass other areas of disadvantage which do not fall within the narrow definition of 'special circumstances'.

The 'exceptional circumstances' test provides the infringements system with the flexibility to determine whether, taking into account the circumstances in which the offending conduct occurred, the imposition of a penalty was justified. There is little legislative guidance or helpful case law in terms of defining exceptional circumstances.

School Attendance Officers can consider any additional circumstances of the parent who may be subject to an Infringement Notice and may use discretion to decide when to issue an Infringement Notice. Circumstances such as a genuine attempt to comply or reasons beyond a person's control may be considered.

It is also important to note that the legislation does not permit an Infringement Notice or legal proceedings to commence against the following persons:

  • the Secretary of the Department of Human Services carrying out their responsibilities under an order made under the Children Youth and Families Act 2005
  • a person carrying out parental responsibilities for a child on behalf of the Secretary, Department of Human Services

Examples of when NOT to issue an Infringement Notice

  • If the School Attendance Officer forms the view that a parent with a mental or intellectual disability did not have the ability to understand the requirement to respond to the School Enrolment Notice.
  • If the School Attendance Officer forms the view that there were circumstances that prevented the parent from responding adequately to the School Enrolment Notice, for example, the parent or a family member was ill or absent from home during the prescribed period for responding to the notice.
  • Where false information has been provided in response to a School Enrolment Notice. This offence should be the subject of court proceedings.
  • Where the person with parental responsibilities is the Secretary of the Department of Human Services carrying out parental responsibilities for a child under an Order made under the Children Youth And Families Act 2005, or any person carrying out parental responsibilities on behalf of the Secretary. Issuing an Infringement Notice to such a person would be contrary to law.

When to issue an official warning

An official warning may be appropriate for the first time a parent fails to comply with a School Enrolment Notice and the information provided in the response indicates there may be special circumstances or exceptional circumstances.

The School Attendance Officer can issue an official warning by using the template provided and sending it to the parent. For the template, see Official Warning. The School Attendance Officer must keep a record of the official warning and the reason for choosing this action.

When to send an Infringement Notice

A School Attendance Officer has discretion to issue an Infringement Notice. An Infringement Notice would be appropriate when:

  • a parent has not responded to a School Enrolment Notice
  • a parent has responded giving an explanation that is not a reasonable excuse, and provided no further information about circumstances that may indicate special circumstances or exceptional circumstances
  • after an official warning has previously been issued to the parent

School Attendance Officers are required to operate within the Code of Conduct for School Attendance Officers when issuing an Infringement Notice. In making the decision to send an Infringement Notice, School Attendance Officers are required to refer to these guidelines and to keep reliable records of decisions that involved the exercise of some discretion or the consideration of information or excuses provided by the parent.

Factors such as cultural/linguistic background, economic conditions and social disadvantage should be part of the School Attendance Officer's considerations at this point.

Sending an Infringement Notice

If the School Attendance Officer determines that it is appropriate to issue an Infringement Notice, they should complete the Infringement Notice template, see: Infringement Notice.

The Infringement Notice should then be mailed to the recipient using registered mail and to Civic Compliance Victoria, 277 William Street, Melbourne, 3000. A copy of the Infringement Notice should also be provided to the Director, Student Inclusion and Engagement Division at 33 St Andrews' Place, East Melbourne, 3002. From this point onwards the Student Inclusion and Engagement Division in conjunction with the Legal Division, will manage proceedings. Accordingly, all evidence required to this point should be forwarded to the Director, Student Inclusion and Engagement Division.

If a School Attendance Officer receives any subsequent correspondence that relates to an Infringement Notice that has been issued, the correspondence should be immediately referred to the Student Inclusion and Engagement Division of the Department for appropriate follow up and action.

Appeals

School Attendance Officers should be aware that any person receiving an Infringement Notice may apply to the Department of Education and Early Childhood Development for an internal review of the decision to issue the Infringement Notice, on one of more of the following grounds:

  1. There was a defect or mistake made in the decision to serve the notice. This ground encompasses two possibilities:
    • the decision to issue the notice was contrary to law
    • there was a mistake of identity
  2. There are special circumstances.

  3. There are exceptional circumstances that justify excusing the conduct for which the notice was issued.
  4. The Department will consider the appeal and make one or more of the following decisions:
    • Confirm the decision to issue an Infringement Notice
    • Withdraw the Infringement Notice and issue an official warning in place of the Infringement Notice
    • Withdraw the Infringement Notice
    • Withdraw the Infringement Notice and refer the matter to court
    • Waive all or any of the prescribed costs that have been attached to the Infringement Notice
    • Approve a payment plan