A driver who commits any driving A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). may be dealt with in the following ways:
- an A notice stating that a summary offence has been committed. It also states the amount of any fine that has to be paid. Includes many driving and parking offences. Also referred to as an ‘on-the-spot-fine’.;
- licence or permit Exclusion of a student from school for a stated period as a disciplinary measure (a less severe punishment than expulsion). and deduction of demerit points (i.e. VicRoads’ licence and permit powers);
- An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. action.
1 Infringement notices
What can infringement notices be issued for?
Infringement notices may be served for most driving offences. Infringement notices can be issued to owners of motor vehicles detected committing red-light offences, bus or transit lane offences, or certain speeding offences. Note that drivers committing these traffic offences may be detected by automatic detection devices (s 31 Road Safety (General) Regulations 2019 (Vic)). Infringement notices are issued by Fines Victoria (see ‘Contacts’ at the end of this chapter).
A driver who has received an infringement notice can either:
- accept the penalty in the infringement notice; or
- lodge a notice of objection.
Objections by motor vehicle owners
Motor vehicle owners may escape paying the fine by making a statement that declares:
- the name and address of the actual driver at the time of the Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. offence (in which case this statement can be used in court against this driver) (s 84BE Road Safety A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.); or
- the name and address of the driver of the car could not be reasonably ascertained (e.g. the vehicle had been stolen) (s 84BE).
If a motor vehicle owner fails to pay the fine or to provide the police with a statement, enforcement proceedings A document that sets out what a person wants to happen to their money and other property after they die. be taken against them under the Infringements Court system (see Chapter 3.1: Fines and infringements).
Objections by drivers
Drivers are entitled to object to infringement notices by lodging a notice of objection. Notices of objection should be lodged within 28 days of the issue of the infringement notice; otherwise, the penalty in the infringement notice automatically applies.
An objection notice must be lodged at the address mentioned in the infringement notice.
Lodging an objection ensures the matter is heard in court. This applies regardless of whether or not the driver pleads guilty.
Those who are guilty may wish to have their matter heard in court to try to minimise the penalty (i.e. to avoid losing their licence or to obtain a lower fine). However, automatic penalties usually apply for drink-driving, drug-driving, speeding and traffic offences.
Infringement notice withdrawal
A driver who has not received an infringement notice for at least two years, and who has received an infringement notice for a In Victoria, a child or young person under 18. See also infant. traffic offence (e.g. speeding less than 10 km per hour (kph) over the speed limit), can have the charges withdrawn and replaced with an official warning. Drivers who have charges replaced with a warning are not eligible to have future offences withdrawn for at least two years. To ask for charges to be withdrawn and replaced with a warning, write to the Penalty Review Section (see ‘Contacts’ at the end of this chapter).
VicRoads can suspend a driver licence and their car’s registration if they have not paid their traffic infringements (see ‘3 Court powers to cancel or suspend driver licences and permits’, below). For details of the enforcement of payment for infringement notices through the Infringements Court system, see Chapter 3.1: Fines and infringements.
2 VicRoads’ licence and permit powers
Demerit points system
VicRoads records demerit points against driver licences for driving offences (between 1 and 10 points can be recorded for each offence). The number of demerit points a driver accrues for certain offences is listed in schedule 3 of the Drivers Regulations. See the ‘Demerit points incurred for common offences’ table, below.
Drivers who accrue a certain number of demerit points have their licence or permit suspended (the number of points accrued before a suspension occurs depends on the type of licence or permit held).
Demerit points are incurred on the date of the offence, not the date of the court The time and place at which a court or tribunal hears the parties argue their case and makes a decision. (if any).
Full licence holders, probationary drivers, and learner permit drivers who incur 12 or more demerit points in a three-year period may have their driver licence suspended for three months. The suspension may be extended by one month for every four demerit points incurred over 12 (s 41 Road Safety Act).
If probationary drivers incur five or more demerit points in any 12-month period, they may have their driver licence suspended for three months. The suspension may be extended by one month for every four demerit points incurred over five (s 41).
|Use of mobile phone while driving||4|
|Failure to display P-plate||3|
|Failure to wear a seatbelt or helmet||3|
|10 to 25 kph over the speed limit||3|
|Less than 10 kph over the speed limit||1|
Excessive speed offences
An A change made to a legal document or Act of parliament. to schedule 3 of the Drivers Regulations has revoked items 5 and 6, which previously provided how many demerit points a driver loses if they speed in The amount a person does not get back from the insurer when they make a claim on their insurance. For example, if a car is insured for an agreed value of $10 000 with an excess of $1000, the insurer will pay only $9000 on a claim if the car is written off. of 25 kph over the speed limit. This amendment came into effect on 1 November 2018.
Drivers who are caught speeding in excess of 25 kph over the speed limit are no longer penalised with loss of demerit points but are now subject to Required by law to be done; a law that must be strictly complied with. Under mandatory reporting, people in particular jobs to tell a government agency if they know an offence is being committed – for example, doctors and teachers must report child abuse. Mandatory sentencing requires judges to give an automatic jail term for certain offences. licence suspension in accordance with the speed (ss 28, 89D Road Safety Act). (See ‘Speeding offences’, below.)
All drivers who incur the maximum number of demerit points are sent a notice that gives the driver two choices. The driver can:
- accept the licence suspension, which will commence at a time specified in the notice; or
- request VicRoads to not suspend their licence or permit for 12 months. If any points are incurred within this 12-month period, the suspension will be double the initial penalty (i.e. a suspension of at least six months, with an additional two months per four demerit points accrued over 12 demerit points) (ss 36(1)(a), 40 Road Safety Act).
VicRoads’ powers to vary, suspend and cancel licences
VicRoads can vary, suspend and cancel driver licences and permits.
VicRoads can vary a driver licence or permit by excluding categories of vehicles that can be driven or by varying the conditions by which the driver licence or permit is held (s 24(1)(c) Road Safety Act).
VicRoads must suspend driver licences when drivers have been ordered to complete safe driving courses for various ‘hoon driving’ offences and have failed to do so (s 84BN). The licence remains suspended until the driver provides proof to VicRoads that they have completed the safe driving program (s 84BN).
VicRoads must suspend a driver licence or permit if it is satisfied that the driver is disqualified from driving in another state or territory (reg 81(2) Drivers Regulations).
Drivers cannot evade licence suspension and cancellation by driving in Victoria using an interstate or overseas licence. In fact, licence suspension or cancellation, whether by the Victorian courts or by VicRoads, means that the person cannot drive in Victoria for the period of the licence disqualification, even if an interstate or overseas licence is held.
VicRoads can cancel or suspend the driver licences or permits of people who have not paid fines, court-ordered The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. or Making good, returning things to the way they were. For example a court can order restitution of stolen goods to someone who is entitled to them; a party to a contract that has been rescinded is entitled to restitution that restores the status quo. in connection with offences relating to driving a motor vehicle (or who have failed to come to a suitable arrangement with VicRoads) (reg 81).
This provision applies to traffic fines, parking fines, and to fines for offences such as theft of a motor vehicle. VicRoads must give a driver 28 days’ notice that they plan to suspend their licence.
VicRoads may suspend, cancel or vary a driver licence or permit in certain other circumstances (e.g. due to illness, it is dangerous for the person to drive (regs 79, 80)).
VicRoads’ powers to suspend car registrations
The Director of Fines Victoria can direct VicRoads to suspend the car registration (and the driver licence) of drivers who fail to pay infringement warrants issued for failure to pay infringement notices (ss 9AA, 24(1A) Road Safety Act). This suspension finishes if appropriate arrangements are made to pay the outstanding fine or to otherwise comply with other requirements regarding payment (ss 9AB, 24(1B)).
3 Court powers to cancel or suspend driver licences and permits
For more serious traffic offences, the driver may be issued with a A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ., or a Notice to Appear, or they may be arrested. These options lead to the involvement of the courts.
Courts have both specific and general powers to suspend licences. Certain driving offences result in automatic licence cancellation or suspension (e.g. drink-driving and speeding).
For other driving offences, magistrates have the Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. to suspend or cancel driver licences. Magistrates also have general powers to suspend or cancel driver licences for offences connected with driving (s 28 Road Safety Act).
Courts may also cancel licences for certain Crimes Act 1958 (Vic) offences (see s 89, 89A Sentencing Act 1991 (Vic) and Chapter 1.3: Sentencing in the Magistrates’ Court).
Summons ((1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. with summons)
The police may decide to deal with a traffic offence by issuing a summons that is similar to that used for ordinary criminal offences. This summons (called a ‘charge with summons’) can be served on the A person who has been charged with a criminal offence or against whom a civil action has been brought. in person or by post.
If a defendant fails to attend court in answer to the summons, the alleged traffic offence may be heard without the defendant being present (an ex parte hearing). This is because nearly all traffic offences are summary offences (able to be heard by a magistrate alone, rather than by a judge and A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases.), and as such do not require the To agree to something being done, to approve an action or arrangement. See also informed consent. of the defendant before the hearing of the offence proceeds.
If the traffic offence allegation is serious (e.g. driving while disqualified or a second drink-driving offence), the magistrate may think that imprisonment is an appropriate penalty. If this occurs, instead of proceeding to an ex parte hearing, the hearing may be adjourned and a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. may be issued for the absent driver’s To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court.. This is because magistrates are now prohibited from making custodial orders and other specified penalties in respect of defendants in their absence (see s 87 CP Act).
Time limits on summonses
All traffic offences are summary offences, except for culpable driving and failing to stop or render assistance after an accident where a person is killed or suffers Injury as a result of a car accident or other transport accident that causes serious long-term damage. Includes losing an arm, a leg, or bodily functions, suffering continuing mental or behavioural disturbances, or, for a pregnant woman, losing the baby.. Summonses for summary offences must be lodged with the court within 12 months of the offence occurring (s 7 CP Act).
Notice to Appear
The Notice to Appearis increasingly used for simple traffic offences and is usually accompanied by the Preliminary Brief, which should contain details of the charges and a summary of the offence and any priors (ss 24, 37 CP Act).
Similar to the summons procedure, a defendant’s failure to attend court can result in an ex parte hearing or the hearing being adjourned and a warrant being issued for the defendant’s arrest.
Where the defendant requires further information about the charges against them, they can ask the A person who swears an affidavit stating that an offence has occurred and is named on the documents that start a criminal case in court. The informant is usually a police officer, but can also be the victim of the crime. Not to be confused with an informer. for a full brief of Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects.. This usually requires a summary case conference (a meeting between the informant and the defendant or their legal representative) to have occurred (s 39 CP Act).
Arrest and The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking.
Police officers apprehending drivers for traffic offences can formally arrest drivers and A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement. them from Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. only when they enter into a bail undertaking in which they agree to appear at court on a later date. The police may do this where:
- there is some doubt about the driver’s identity or current or future address;
- the driver is to be charged with a very serious offence (e.g. culpable driving or drink-driving); and
- the driver gives the police trouble (e.g. refuses the breathalyser test; or the driver has a very high BAC and seems incapable of looking after themselves).
In all cases, a driver who is arrested and bailed will receive a copy of the notice of bail undertaking that states at which court the driver must appear and on what date, and another document called a charge (or ‘information’), which states the offences alleged.
If a driver fails to attend a court hearing as required by their notice of bail undertaking, they may be charged with an offence under the Bail Act 1977 (Vic) (see ‘Duty of person bailed’ in Chapter 3.6: How bail works). It is also possible for the traffic charge against the driver to be kept alive indefinitely by the issue of a warrant for the driver’s arrest.