Enforcement Warrant

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What is an Enforcement Warrant?

An enforcement warrant may be issued if no action is taken to deal with an outstanding infringement or fine after the Infringement stage and Notice of Final Demand in the lifecycle of an infringement.

Once an enforcement warrant is issued, a Sheriff can impose various sanctions, such as detaining, immobilising and towing a person’s vehicle, removing number plates and seizing and selling personal property and land to recover the cost of fines. See the Fines Reform Act 2014 (Vic) Parts 11 & 12 (FRA).

Why you need legal advice and representation

If you have been issued an enforcement warrant, especially if you have been served with a 7-day notice, you must contact us as soon as possible so we can provide immediate assistance. We can assist you by negotiating with the Sheriff to delay the execution of the warrant and preparing an enforcement review application under the FRA s 32(1) to cancel enforcement and withdraw the infringement fine. This option is available if sufficient grounds exist for the application, such as if exceptional circumstances apply or the infringement was issued contrary to law. See ‘Applying for an Enforcement Review‘ for more.

Once an enforcement warrant is executed at the expiry of a 7-day notice period, minimal options are available to deal with the fine. Furthermore, the Sheriff or Police are authorised to break, enter, seize and sell your personal property (FRA s 109(1)). If there is insufficient property, you may be arrested. By taking immediate action, you may avoid the warrant being executed, prevent your property from being seized and sold and avoid the risk of imprisonment.

See this case study for an example of an enforcement review we successfully achieved for a client.

When an enforcement warrant is issued

If a person fails to pay an infringement or fine following the Penalty Reminder Notice and Notice of Final Demand, the Director of Fines Victoria can apply to the Magistrates’ Court registrar to issue an enforcement warrant. An enforcement warrant can be issued by a registrar if:

A person has received and has not complied with a notice of final demand
A person has failed to report to the community corrections centre specified in the community work permit imposed
The person is subject to other enforcement warrants that are in force where no action has been taken
A person has defaulted in a payment arrangement that has been made.

The enforcement warrant will specify that additional fees are payable in addition to the fine, including an enforcement warrant fee, penalty reminder notice fee and a collection fee. See the Fines Reform Act 2014 (Vic) (FRA) s 107, Fines Reform Regulations Regs 8 & 9 and the Infringement Regulations 2016 Reg 9. The sheriff will then make a final demand for payment before executing the warrant.

What to expect when an enforcement warrant is issued

Under the Fines Reform Act 2014 (FRA), the following enforcement action can be taken against you by the Sheriff once an enforcement warrant is issued:

Your motor vehicle can be detained, immobilised, towed or seized (FRA ss 127, 128 and 129).
Your motor vehicle, once seized, can be sold (FRA s 132).
Number plates can be removed from the vehicle, and a direction can be given to VicRoads to suspend your vehicle registration (FRA s 140 & 142).
Fines Victoria may direct VicRoads to suspend your driver’s licence or vehicle registration of the person (FRA s 89).

The provisions relating to the detention, immobilisation, seizure and sale and the removal of plates and driver’s licence or registration suspension apply regardless of whether or not a 7-day notice has been served in respect of the enforcement warrant (FRA ss 126, 127, 139 and 89).

If any enforcement actions have been taken against you, please get in touch with us as soon as possible so we can take immediate steps to help you. We frequently deal with infringement matters at this stage and can negotiate with the Sheriff on your behalf to prevent your property from being seized and sold or have your vehicle released if it has been immobilised.

Options available when an enforcement warrant is issued

When an enforcement warrant is issued, the following options may still be available:

paying the fine or fines in full
requesting to pay the fine in instalments
requesting more time to pay the fine
requesting an enforcement review
applying for a Work and Development Permit
applying for the Family Violence Scheme

Payment of the penalty and outstanding fine in the enforcement warrant prevents a 7-day notice from being issued and any further action being taken for the offence. However, non-payment of the outstanding infringement or fine will result in a 7-day notice being issued.

When does an enforcement warrant expire?

An enforcement warrant will stay in force until any of the following occurs:

the outstanding fine or fines are paid;
the enforcement warrant is recalled and cancelled on application under the FRA s 108; or
the enforcement warrant is executed.

Even if the enforcement warrant is recalled or cancelled, a fresh one may be issued for the same purpose as initially issued unless otherwise directed by the Director of Fines Victoria (FRA s 108(3)). If this is the case, it is very important to seek legal advice immediately if you receive an enforcement warrant or 7-day notice in the future.

What to do if you are issued a 7-day notice

If you have been issued a 7-day notice, it is critical to take immediate action to prevent the warrant from being executed before the expiry of the seven days. Several options are available to you before a warrant is executed (as described above).

Under the Fines Review Act 2014 (FRA) s 121(3), an enforcement warrant cannot be executed if you have applied for any of the following:

a payment arrangement which has not been determined;
an enforcement review which has not been determined;
a Work and Development Permit which has not been determined;
the Family Violence Scheme
an attachment of earnings direction which has not been determined; or
an attachment of debts direction which has not been determined.

Before the 7-day notice period expires, it is important to contact us for legal advice and support. We can help you by negotiating with the Sheriff to delay the execution of the warrant and prepare an enforcement review application.

Execution of enforcement warrants

An enforcement warrant cannot be executed until a 7-day notice warning of enforcement action that may be taken has been served and the seven days have passed (FRA s 119).

As stated above, the powers of detention, immobilisation, seizure, sale of vehicles, the removal of number plates or licence or vehicle registration suspension exist once an enforcement warrant is issued, regardless of whether the 7-day notice period has expired.

What happens if you take no action?

Once the 7-day notice expires and a warrant is executed, you have very limited options and can no longer apply for an enforcement review, payment arrangement, family violence scheme application or a work and development permit.

At the expiry of the 7-day notice period expires, the Sheriff or authorised person is authorised to:

break, enter, search, seize and sell your personal property (FRA s 109(1)); and
if there is insufficient personal property, arrest you (FRA ss 109(2),(3) and (4)).

The Sheriff is also authorised to:

sell your vehicle in accordance with the FRA Part 11; or
direct VicRoads to suspend your driver licence or vehicle registration in accordance with the FRA Part 8; or
make an attachment of earnings or attachment of debts direction in accordance with Part 7 of the FRA; or
apply to the court for an order that a charge be placed over your real property and sold in accordance with the FRA Part 9 (as a last resort).

See ‘Warrant to arrest & bail‘ below for more on what to expect and the options available if you are arrested.

Warrant to arrest & bail

If the Sheriff executing the warrant has a reasonable belief that the debtor does not have sufficient property or assets to cover the amount owed under the warrant, they may break, enter and search for the person in any place they are suspected to be before arresting the person (Fines Reform Act 2014 (FRA) s 109(4)).

Options if you are arrested (and are not in contravention of a community work permit)

If you are arrested under an enforcement warrant issued in respect of an infringement fine, and the amount outstanding remains unpaid, you will be either be:

released on a community work permit (if the total amount due is less than 100 penalty units) (per FRA ss 150(2) and 110(1)(a)(i));
released on bail with a date fixed to attend the Magistrates’ Court (FRA ss 113 and 164(3) and Bail Act 1977 s 10(5));
conveyed to a prison or police gaol for processing and brought before the Magistrates’ Court within 24 hours after being arrested if you refuse bail (FRA ss 110(1)(a)(ii) and 164(1)).

If you are brought before the Magistrates’ Court, the Magistrate will sentence you under s 165 of the Fines Reform Act 2014.

If you are arrested in respect of an outstanding registered court fine (or a court fine under a registered collection and enforcement order), subject to you paying the amount due on the enforcement warrant, you will be either (per FRA s 110(1)(b) and s 110(1)(c)):

brought before the sentencing court that imposed the registered court fine immediately after arrest to be dealt with under Division 5, Part 3B of the Sentencing Act 1991; or
if that is not practicable, released on bail in accordance with the endorsement on the warrant.

Options if you are arrested and are in contravention of a community work permit

If you are subject to a community work permit and fail to comply with the conditions of the permit (per s 152), you may be arrested. If so, you will be either:

brought before the Magistrates’ Court within 24 hours of being arrested (FRA s 111(a));
be released on bail if it is not practicable to be brought before the Magistrates’ Court (FRA s 111(b)); or
if the person in default refuses to enter an undertaking of bail, conveyed to a prison or police gaol and dealt with under Part 14 (FRA s 111(b)(ii)).

Getting bailed to appear in court

If you are arrested (and not released on a community work permit), you will likely be offered bail and a Magistrates’ Court hearing fixed at a later date. If you agree to bail by signing an ‘undertaking of bail’, you will be released immediately (see the Bail Act 1977 s 5) and the Bail Regulations 2012 Reg 5).

Getting granted bail will require you to appear before the Magistrates’ Court at a specific time to be heard for hearing or trial (Bail Act 1977 s 5(1A)). Failing to comply with the undertaking of bail and to appear in the Magistrates’ Court may result in imprisonment (Bail Act 1977 s 30(1)).

If you refuse an undertaking of bail (and are not eligible for a community work permit), you will be taken to the officer in charge of prison or police jail to be held for a maximum of 24 hours to be dealt with under section 165 by the Magistrates’ Court (per FRA ss 164(1), 110(1)(a)(ii)).

Imprisonment and sentencing under s 165

If you are arrested under an enforcement warrant and are not eligible for a community work permit, you may appear before the Magistrates’ Court to be sentenced under the Fines Reform Act 2014 (FRA) s 165. These hearings are often called ‘section 165 hearings’ or penalty enforcement warrant hearings (PEW hearings).

During a s 165 hearing, a range of sentencing options are available to a Magistrate, with the most severe option being an imprisonment term of one day for each penalty unity owed (up to a maximum of 24 months imprisonment (see s 165)).

If the Magistrate is satisfied of a specified matter under the FRA s 165(2) in respect of any relevant infringement under an enforcement warrant, including:

that you have a mental or intellectual impairment, disorder, disease or illness; or
‘special circumstances‘ apply to you, which contributed to the offending; or
that imprisonment would be excessive, disproportionate or unduly harsh in your situation; or
that you are a victim of family violence that contributed to the offending;

the court may order:

the relevant infringement be discharged in whole or in part;
the relevant infringement be discharged in part and order that you be imprisoned in accordance with s 165B FRA (an imprisonment in lieu instalment order will usually be made under s 165A(2)(b) rather than an order for imprisonment);
a fine default unpaid community work order under Division 5, Part 3B of the Sentencing Act 1991 requiring you to perform unpaid work (the requirement is calculated as one hour of unpaid work per 0.2 penalty units);
adjourn the hearing of the matter for up to 6 months (usually with the view that there will be a full or partial discharge if you make some payments towards the fines and are of good behaviour).

See ‘Applying for a Discharge‘ for more on having an infringement discharged in whole or in part.

If the Magistrate is not satisfied that any of the circumstances in the FRA s 165(2) apply (as set out above), the Magistrate may make one or more of the following orders under the FRA s 165(3)):

make a fine default unpaid community work order under Division 5, Part 3B of the Sentencing Act 1991 (i.e. order that you perform unpaid work as discussed above);
allow additional time for you to pay;
allow payment by instalments;
adjourn the hearing of the matter for up to 6 months on any terms the court thinks fit;
order that you be imprisoned for a term per s 165B (although, as stated above, this will usually be made as an imprisonment in lieu instalment order under the FRA s 165A(2)(b) rather than an order for imprisonment).

However, the court is prohibited from making an imprisonment order under ss 165(1)(c) and (3)(e) FRA if:

it is satisfied that you did not have the capacity to pay the relevant infringement or you had another reasonable excuse for the non-payment (s 165(4)); or
the court is satisfied that no other relevant order is appropriate in all the circumstances of the case (FRA s 165(5)).

During a s 165 hearing, the court is required to make enquiries about your personal circumstances to determine if there are special and exceptional circumstances Victorian Police Toll Enforcement v Taha; Victoria v Brookes [2013] VSCA 37.

If the matter is adjourned

If your matter is adjourned, the Magistrate may impose conditions such as requiring you to engage with services, obtain medical treatment or counselling or undertake a driver education course (FRA 165(1)(e) or 165(3)(d)). After the adjournment, the Magistrate will reconsider the matter and your circumstances.

Imprisonment in lieu

Section 165 also empowers a Magistrate to order imprisonment in default of compliance with an instalment or time to pay order (ss 165(3)(b)-(c), 165A(1) and (2)(b)). These are referred to as ‘imprisonment in lieu’ (ILL) orders and mean that an imprisonment order is stayed so long as you comply with the payment plan.

If you default on payment of an ILL order, a warrant for imprisonment may be issued immediately under the Magistrates Court Act 1989 s 68(b) without further hearing. If part payment of the outstanding fine has been made, the number of days served in prison will be reduced (FRA s 171).

Options to avoid imprisonment

If you are sentenced to imprisonment for unpaid fines, two options may be available to avoid imprisonment. If you were sentenced to imprisonment or an imprisonment in lieu order under s 165(3)(e) of the FRA (in which the Magistrate is not satisfied with matters in s 165(2)), you can apply for a rehearing under s 167 of the FRA. However, if an imprisonment order was made under s 165(1)(c), the rehearing provisions do not apply. Still, you can apply to have the enforcement warrant recalled and cancelled under the Magistrates’ Court Act 1989 s 58.

You can apply for a rehearing on the basis that, at the time of the s 165 hearing:

you had special circumstances or a mental illness or intellectual impairment that was not before the Magistrates’ Court; or
evidence was considered by the Magistrates’ Court so as to make the decision to imprison the debtor excessive, disproportionate and unduly harsh (s 167(3)).

Rehearing applications can be lodged any time after the initial hearing, even if the debtor has defaulted on a payment plan or has been taken into custody. Upon filing an application for a rehearing, any warrant to imprison issued under the FRA s 165A(2)(a) must be recalled and cancelled (FRA s 167(5)(a)). Similarly, an instalment order under s 165A(1) will be stayed (FRA s 167(6)(a)).

If the court is satisfied on the balance of probabilities that one of the grounds in s 167(3) is established, the order may be cancelled, and the court may exercise any power available under s 165 (per FRA s 168). However, if the rehearing application is refused or struck out, the imprisonment warrant may be reissued (s 168(2)(b) of the FRA).