Guidance for school attendance officers if they have assessed the response to an enrolment or attendance notice and found it inadequate.
Decide to issue an infringement notice
Issuing an infringement notice or starting proceedings in court is a 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
Act, particularly in relation to
School attendance officers have discretion about which action to take. Before deciding to:
- take no further action
- issue an official warning
- issue an infringement notice (except for the offence of providing false information), or
- commencing proceedings in the Magistrates' Court
a school attendance officer should consider any other information about the circumstances of parents.
The infringement regime recognises there are circumstances where 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 where school attendance officers should not issue an infringement notice.
Information about special or exceptional circumstances that could be used as grounds for an appeal may be found in the parent's response to a school enrolment notice or from information provided by a referring person.
This creates a different situation for school attendance officers compared to the amount of information held by issuing officers for other types of infringements (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 when 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 where a person should not be criminally liable for their 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
- a victim of family violence within the meaning of the Family Violence Protection Act 2008 resulting in the person being unable to control conduct that constitutes an offence.
Exceptional circumstances cover less serious and less enduring circumstances than special circumstances. They include 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 Health and 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 Health and Human Services.
When to send an infringement notice
A school attendance officer has discretion to issue an infringement notice. This 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 a 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 considerations at this point.
To access the code of conduct see:
attendance resources for regions
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 an 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 Health and 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.
When to send 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 send an official warning to the parent by using the Official Warning Template. The school attendance officer must keep a record of the official warning and the reasons for choosing this action. See:
Send an infringement notice
If the school attendance officer determines that it is appropriate to issue an infringement notice, they should complete the notice template, see:
Infringement notice template
The infringement notice should then be mailed to the recipient using registered mail and to Fines Victoria, GPO Box 1916, Melbourne, 3001.
A copy of the infringement notice should also be provided to the Director, Wellbeing, Health and Engagement Division Level 27, 80 Collins Street, Melbourne 3000.
From this point onwards the Wellbeing, Health and Engagement Division in conjunction with the Legal Division will manage proceedings. All evidence required to this point should be forwarded to the Director, Wellbeing, Health and Engagement Division.
If a school attendance officer receives any subsequent correspondence related to the infringement notice, it should be immediately referred to the Wellbeing, Health and Engagement Division of the Department for appropriate follow up and action.
Any person receiving an infringement notice may apply to the Department for an internal review of the decision, on one or more of the following grounds:
- There was a defect or mistake made in the decision to serve the notice. This ground encompasses two possibilities:
exceptional circumstances that justify excusing the conduct for which the notice was issued.
- the decision to issue the notice was contrary to law
- there was a mistake of identity.
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.
Bring proceedings in court
Should a school attendance officer form the view that court proceedings are the most appropriate course of action, they should refer the matter to the wellbeing, health and engagement division of the Department for a final decision.
Before contacting the wellbeing, health and engagement division, the attendance officer should ensure that:
- they have evidence or reliable records of decisions that involved the exercise of some discretion or
- the consideration of information or excuses provided by the parent.