From the moment a person with a mental illness or intellectual disability is first interviewed by police, specific procedures, laws and human rights obligations apply. The defence of mental impairment should always be considered, but important legal factors must be considered. Assistance for going to court should be planned ahead, and consideration of criminal justice diversion programs, and the specialist Assessment and Referral Court that can provide psychological assessment and referral to welfare, health, mental health, disability, housing services, and/or to drug and alcohol treatment. More sentencing options are available and supervision and leave orders for forensic patients.


Liam McAuliffe


Infringements and special circumstances

Last updated

1 July 2021

Under the Infringements Act 2006 (Vic) (‘Infringements Act’) (s 22(1)) (as amended in 2016), a person with special circumstances can ask for an internal review of an infringement notice.

Special circumstances have been widened since the Enforcement Review Program was repealed. Medical evidence requirements have been withdrawn in favour of a broader conception of mental disability as it relates to control of conduct.

Special circumstances include any mental or intellectual disability, disorder, disease or illness that results in the person being unable to understand that their conduct constitutes an offence, or that results in the person being unable to control the conduct that constitutes an offence (s 3). Special circumstances also include a serious addiction to drugs, alcohol, or other volatile substance where that addiction results in a similar lack of understanding or control.

Homelessness or other exceptional cases may also be considered to be special circumstances.

Note that although family violence is defined as a special circumstance in section 3 of the Infringements Act, a person cannot apply for an internal review of a infringement on the grounds of family violence.

Where a person applies for an internal review on the grounds that they have special circumstances, their application must:

  • be in writing;
  • include the applicant’s address;
  • clearly describe the applicant’s special circumstances; and
  • be submitted before the date the infringement is to be registered (s 22(2)).

An enforcement agency may ask for additional information about the applicant’s special circumstances (s 23). The applicant has 14 days to either provide the extra information, or to ask for more time (s 22(3)). If the additional information is not provided on time, the enforcement agency may review the decision without it.

Enforcement agencies conduct internal reviews following the procedure in section 24 of the Infringements Act, and decide whether to confirm or withdraw the infringement notice under section 25(2).

For more information about the infringements system and applying to have infringements revoked, see Chapter 3.1: Fines and infringements.

Back to
Disability, mental illness and the law