Internal review in the infringements system - Guide to good practice

Background

The Director, Fines Victoria’s internal review oversight function set out in Part 3A of the Infringements Act 2006 aims to improve the internal review practices of enforcement agencies through education and performance monitoring.

This guide provides good practice examples of how the principles set out in the Department of Justice and Community Safety’s Internal Review Guidelines can be applied by enforcement agencies. The examples provided move beyond the foundational legislative requirements and focus on good administrative law practices.

The guide is informed by the Director’s ongoing monitoring and compliance activities and real-life examples of internal review good practices provided by enforcement agencies.

This guide is intended to provide general guidance only and should not be relied on as legal advice. Enforcement agencies should consider their specific context, operating environment, organisational priorities, and community expectations when implementing an internal review system. Enforcement agencies should obtain their own legal advice to ensure that their internal review practices are legally compliant.

In this document, ‘decision maker’ or ‘review officer’ refers to the person authorised to determine internal review applications.

We thank the following enforcement agencies involved in developing this guide, for volunteering their time, policies, guidelines, sample decisions, and other processes.

Agency acknowledgements:

• City of Greater Bendigo
• City of Port Phillip
• Knox City Council
• Baw Baw Shire Council
• Wyndham City Council.

Decision-making and discretion in internal reviews

The scope of the decision-making power afforded to internal review decision makers (decision makers) means that the exercise of discretion is often required. Decision makers should exercise discretion lawfully, fairly, and in line with the purposes of the internal review function.

Discretion exists when the decision maker has the power to make a choice about the outcome of an internal review, that is, confirm, withdraw, or issue an official warning. Good decision making can be supported by policies or decision-making tools established by enforcement agencies.

When exercising discretion, decision makers need to act reasonably and impartially.  Decision makers should act in their professional capacity and not be influenced by personal prejudices or biases.

Each case must be assessed on its own merits. This means that consistency should not override the decision-making process. As noted by the Victorian Ombudsman,

“the importance of consistent internal review decision making is also acknowledged, however, this should not be prioritised at the expense of exercising discretion on a case-by-case basis according to individual circumstances.” [1]

[1] Victorian Ombudsman, Investigation into Maribyrnong City Council’s internal review practices for disability parking infringements, 30 April 2018, p 32.

Good practices observed

• Encouraging decision makers to adopt a principle-based approach..
  • This may involve considering the plausibility, foreseeability, and reasonableness of the application.
  • It may also include embedding a decision-making tool that can be used by decision makers to reflect on and consider the appropriateness of the exercise of their discretion.
   

  Example 1: Modified extract from decision guidance document - the ‘SELF test’

  Decision makers are provided a ‘SELF test’ when making decisions, and are required to ask the following questions of themselves to support their decision:

  • Scrutiny: will your decision withstand public scrutiny by the community, your organisation and other relevant parties?
  • Ethical: is your decision ethical and in compliance with your organisation’s policies, practices or procedures? For example, your organisation’s code of ethics.
  • Legal: does your decision reflect the relevant law?
  • Fair: is your decision fair and reasonable?

• Ensuring that decision makers consider the entirety of the application, make decisions that are fair and reasonable and are not applying blanket rules.
  • If a matrix or decision guidance document is being used, reminding all decision makers that all applications have individual circumstances that must be considered in every situation, and that they have the power to make decisions outside of the matrix.
   

  Example 2: Considering applications on a case-by-case basis

  A fine recipient applies for internal review on the grounds of exceptional circumstances after receiving a fine for failing to apply to register their dog.

  The basis of their application is that they were unaware of the law, partly because they could not understand English and had recently migrated to Australia.

  The general internal review policy states that being unaware of the law is not a reason for withdrawal. However, in this case, because of the fine recipient’s additional personal circumstances, the review officer decides to use their discretion and issue an official warning instead.

• Permitting decision makers to consider and accept various types and quality of evidence based on the individual circumstances of each case but providing guidance to achieve some consistency in decision making.  
   

  Example 3: Extract from decision guidance policy regarding evidence

  “An applicant may not always be able to provide photos, reports or other documents which support their application. On these occasions, the applicant may provide a statutory declaration or affidavit in support of their application. It is preferable that the declaration or affidavit be accompanied by other corroborating evidence but it may be accepted alone.”

• Providing guidance on the use of official warnings but allowing decision makers to use their discretion and determine when they are appropriate to issue.
  • For example, it may be appropriate to use an official warning in circumstances where the applicant attempted to comply with the law but mistakenly or accidentally did not comply.
   

  Example 4: Extract from an official warning policy

  “If the Review Officer decides that it is not appropriate to confirm the decision to issue the infringement notice, but the applicant should nevertheless be cautioned about their conduct, the Officer may decide to withdraw the infringement notice and issue an official warning in its place.”

• Communicating learnings from the review stage to enforcement teams to ensure the use of discretion is applied across all phases of the infringement lifecycle.
   

  Example 5: A process to communicate learnings

  A Review Officer may identify circumstances frequently resulting in withdrawal of an infringement at internal review however, issuing officers continue to issue infringements in those circumstances.

  Informing compliance teams of these findings supports a consistent and appropriate use of discretion. It also reduces the likelihood of infringements being issued incorrectly or in circumstances that would likely result in withdrawal of the infringement if an internal review was submitted.

• Ensuring that decision guidance resources are living documents and evolve over time to capture changes in law, circumstances, organisational priorities, and community expectations.
• Adopting a flexible approach to review if an applicant applies on a ground that is not appropriate in their circumstance.
  • A flexible approach could include reclassifying the grounds or advising an applicant to resubmit the application on the ground that would result in a better outcome.

Communication

Effective communication regarding internal review is crucial for fine recipients and internal review applicants. The way that enforcement agencies communicate can improve a fine recipient’s access to justice, educate the community and demonstrate fairness.

Clear, concise, and accurate information should be provided to applicants at all stages of the internal review process. At the pre-review stage, fine recipients should be informed of their right to internal review. Enforcement agency websites should not improperly prescribe the circumstances that will and will not be considered at internal review.

It is also crucial applicants understand the reasons for an internal review decision and the options available to them. Well written outcome letters assist internal review applicants to understand why their application was rejected, the reason they received the fine and how to avoid similar fines in the future.

To assist clear and consistent communication, some enforcement agencies have developed outcome letter templates for various application types and outcomes to guide the provision of information. The outcome letter templates include the outcome, the reasons for the outcome and the options available to the applicant. These templates require the decision maker to insert specific reasons for each application. Providing reasons to explain the outcome is particularly important when an application is confirmed, or an official warning is issued. The reasons should be tailored to the application and where practicable go beyond an outline of the offence and the elements of the offence. Refer to Template outcome letter section for a sample confirm letter template.

Good practices observed

Outcome letters

• Providing tailored reasons to the internal review applicant explaining the reason for the decision when an application is confirmed.
   

  Example 1: Reasons for decisions

  “In your application, you stated that you did not intend to park in a permit zone, but you did not pay attention because you were running late to an important university class. Running late to a class and failing to observe the signs is not an exceptional circumstance that excuses you for parking in a permit zone without a permit.”

• Providing reasons for decisions when an official warning is issued to explain the offence.
   

  Example 2: Reasons provided when an official warning was issued

  “An authorised officer observed your vehicle stopped obstructing a footpath. Footpaths are for pedestrians, and by parking on a footpath you can create a hazard which can adversely affect other members of the community who need to use the footpath, particularly the elderly, people using mobility aids and parents pushing prams. It is against the law for your vehicle to be stopped on a footpath.”

• Using notice of withdrawals to further educate fine recipients where appropriate.
   

  Example 3: Educating on a notice of withdrawal

  “This review has taken into consideration all of the information you have provided as well as the information in the [Council’s] files and a decision has been made in line with the requirements of the Infringements Act, independently from the inspection team.

  We note that you now have the required thermometer. Please be advised that you are required to have a working, calibrated digital probe thermometer accurate to within +/- 1 degree Celsius at all times and this item must be used to test the core temperature of food items.

  Any future failure to comply with this requirement may result in an infringement being issued and may not be given the same consideration upon internal review.”

• Explaining new laws, processes, or signage on outcome letters to educate the community about changes that have occurred.
   

  Example 4: Educative focus when a recent change has occurred, and an official warning was issued

  “The [Council] recently introduced the smartphone app [Application Name] to the City Centre, allowing motorists to pay for parking using their phone instead of using a parking meter or ticket machine.

  The app allows you to only pay for the time you use by starting your paid parking session when you first park and then stopping your parking session when you leave.

  The app also includes maps of the parking in the City Centre to help you plan your trip.

  To register, you can download the app via the App Store, Google Play or call [Phone number]. Further information can be found on the [app name] website.”

• Ensuring that all options available to address the fine are clearly provided on outcome letters and the letter explains how options can be accessed, including social justice initiatives administered by Fines Victoria.
• Providing additional information about options that are relevant to the specific circumstances raised in the application.
  • For example, emphasising payment plan options if financial hardship is raised.

Website and public information

• Providing accessible and understandable information about internal reviews educates potential applicants on the process and offers an opportunity to highlight that each application is assessed on its merits.
• Avoiding definitive statements that an application will be unsuccessful if it is based on a particular circumstance. Each application should be considered on its merits. Such statements may improperly prevent or discourage potential and eligible applicants from applying for internal review.  

Plain English

• Using plain English in all communications to ensure the information is easily understood. 
• Adopting an active voice in correspondence.
   

  Focus point 1: using plain English

  Using plain English helps people understand:

  • ​​​what they need to do,
  • why they need to do it, and
  • when they do it by.

  This can increase compliance and assist in reducing further correspondence from the applicant. When communicating with the public, the language used should be simple and clear.

  Avoid using long, complex, and passive sentences as people may not understand. Use plain English, an active voice, simple sentence structure and an appropriate tone.

Impartiality and independence

Independence and impartiality are at the core of good administrative law decision making. Decision makers have a responsibility to make decisions on the merits of the application and without undue or improper influence.

As rights and liabilities of applicants are impacted by decision makers, systems should be in place to ensure each decision is determined appropriately. 

Good practices observed

Separation of review and issuing officers

• Ensuring issuing officers and others involved in issuing the infringement are not involved in the review of the infringement (as required by the Infringements Act).
• Establishing processes to deal with any conflict of interest. For example, referring applications to another decision maker not involved in the advice to issue an infringement.
• Requiring issuing officers to have good record keeping practices to reduce the involvement of issuing officers in the internal review process.
• Ensuring formal processes are followed and documented when requesting additional information from issuing officers during an internal review. If additional information is provided by the issuing officer, allow an applicant to respond to that information. 
• Implementing processes to allow decision makers to provide feedback to issuing officers when an infringement has been withdrawn due to errors by an issuing officer.

Conflicts of interest 

• Training decision makers on the types of conflicts and how to identify a conflict of interest.
• Establishing a conflict-of-interest policy that requires decision makers to disclose actual, potential, or perceived conflicts of interest and establishes how a conflict of interest should be managed. This may include that a decision maker remove themselves from reviewing that application.
• Maintaining a record of the conflict of interest, the nature of the conflict of interest, and the action taken to mitigate actual or perceived conflicts of interest.
• De-identifying the application when the applicant is known to the entire team authorised to conduct reviews.