Attendance

10 Infringement notices

Decision to issue an infringement notice

The issuing of an Infringement Notice or beginning proceedings in court should be an action only of last resort.

Infringement Notices issued in relation to school attendance must comply with theInfringements Act 2006 (Vic). School Attendance Officers must familiarise themselves with the provisions of the Infringements Act 2006 (Vic), particularly in relation to the meaning of 'special circumstances and exceptional circumstances'.

School Attendance Officers have discretion about which action to take.

Before deciding to:

• take no further action
• send an official warning
• issue an Infringement Notice (except for the offence of providing false information), or
• commence proceedings in the Magistrates' Court

a School Attendance Officer should consider any other information about the circumstances of the parent.

The infringements regime recognises there are circumstances in which 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 in which School Attendance Officers should not issue an Infringement Notice.

Ideally, any underlying circumstances present at the time of the child's absences from school that may have contributed to non-compliance with the School Attendance Notice would be picked up by the principal or other members of school staff and considered by the principal before a School Attendance Officer is involved. However if those circumstances were not known or were not considered by the principal, the School Attendance Officer has a chance to consider these circumstances before deciding on further actions.

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 at the stage of assessing the response to a School Attendance Notice, rather than issuing an Infringement Notice and waiting for the parent to appeal.

Special circumstances

Under the Infringements Act 2006 (Vic), special circumstances covers specific situations where the person is:

• impaired by 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;
• serious addicted to drugs, alcohol or a volatile substance (for example, chroming) resulting in the person being unable to understand or control the conduct that constitutes the offence; or
• homeless (within the meaning of the Infringements Act 2006 (Vic)) where homelessness 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 (Vic) and the family violence results in the person being unable to control conduct which constitutes an offence

Exceptional circumstances

Exceptional circumstances cover less enduring circumstances than special circumstances. Exceptional circumstances cover circumstances 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' within the meaning of the Infringements Act 2006. Legal principle and legislation leaves considerable discretion for decision makers in defining exceptional circumstances.

The 'exceptional circumstances' discretion 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 is justified.

School Attendance Officers can consider the circumstances of the parent who may be subject to an Infringement Notice and should use their discretion when deciding whether or not to issue an Infringement Notice. Circumstances such as a genuine attempt to comply or reasons beyond a person's control should be considered.

If the School Attendance Officer believes there are no special circumstances, but that circumstances described in the response to the School Attendance Notice are 'exceptional circumstances', the School Attendance Officer may decide not to issue an Infringement Notice, with or without sending an official warning.

If it is likely that the person being issued the Infringement Notice could apply for an internal review on one or more of the grounds listed above, and would be likely to have the Infringement Notice withdrawn, then the School Attendance Officer should not issue the Infringement Notice. Instead, the School Attendance Officer may send an official warning.

It is also important to note that theEducation and Training Reform Act 2006 (Vic) does not permit infringement proceedings to commence against the following persons regarding the performance of parental responsibilities for a child:

• the Secretary of the Department of Health and Human Services carrying out parental responsibilities under an order made under the Children, Youth and Families Act 2005 (Vic)
• a person carrying out parental responsibilities for a child on behalf of the Secretary of the Department of Health and Human Services

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 Attendance Notice
• If the School Attendance Officer forms the view that there were circumstances that prevented the parent from responding adequately to the School Attendance 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 a School Attendance 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 (Vic), or any person carrying out parental responsibilities on behalf of the Secretary

When to send an official warning

An official warning would be appropriate for the first time a parent fails to comply with a School Attendance 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 template letter provided. The School Attendance Officer must keep a record that an official warning has been sent and the reason for choosing this action.

When to send an infringement notice

School Attendance Officers are required to operate within the Code of Conduct for School Attendance Officers when issuing an Infringement Notice. In making the 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 do not have to be part of the School Attendance Officer's considerations at this point. These factors can be considered earlier in the process by the Principal when deciding to make a referral to a School Attendance Officer and by the School Attendance Officer in deciding to issue a School Attendance Notice.

An Infringement Notice would be appropriate when:

• a parent has not responded to a School Attendance 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, or
• after an official warning has previously been sent to the parent

Sending an infringement notice

To send an Infringement Notice, the School Attendance Officer should complete the 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. From this point onwards the Wellbeing, Health and Engagement Division in conjunction with the Legal Division, will manage proceedings. Accordingly, 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 that relates to an Infringement Notice that has been issued, the correspondence should be immediately referred to the Wellbeing, Health and Engagement Division of the Department for appropriate follow up and action.

Review of decision to issue an infringement notice

School Attendance Officers should be aware that any person receiving an Infringement Notice may apply to the Department of Education and Training for an internal review of the decision to issue the Infringement Notice, on one of more of the following grounds:

1. There was a defect or mistake made in the decision to serve the notice. This ground encompasses two possibilities:
   • the decision to issue the notice was contrary to law or
   • there was a mistake of identity
2. There are 'special circumstances'.
3. There are 'exceptional circumstances' that justify excusing the conduct for which the notice was issued.
4. The intended recipient of the notice was unaware of the notice being served and that service was not by personal service.