expiation notices (fines)
For minor offences, you may receive an on-the-spot fine, also referred to as an expiation notice, for specific offences categorized as 'expiable offences.' An expiation notice is a document that alleges you have committed an offence and specifies an expiation fee. By paying this fee, you can settle the offence without facing prosecution. An expiable offence allows a designated authority, such as a police officer in traffic-related cases, to issue an expiation notice rather than a court summons for prosecution. However, the authority retains the discretion to decide whether to issue an expiation notice or a summons for a specific offence. For more information see Expiation of Offences Act 1996 (SA) s 5.
Common ‘expiable’ offences include:
Speeding
Using a mobile phone whilst driving
Failing to stop at a red light
Failing to wear a seatbelt
Driving an unregistered or uninsured vehicle.
Activists could receive expiation notices for offences such as staying on a road longer than necessary to cross the road or unreasonably obstructing the path of a driver.
Expiable offences allow a particular authority (eg a police officer) to issue an expiation notice themselves, rather than issue a summons that would require you to attend court on a specified date for prosecution. However, even where an expiation notice may be issued for a particular offence, the authority has the discretion to choose whether to issue you with an expiation notice or issue you with a summons.
Expiation fees can range from below $50 to several hundred dollars. There may be additional costs such as administrative fees and victims of crime levies.
An expiation notice may relate to up to three alleged offences arising out of the same incident, such as if they are committed contemporaneously, or in succession, one following immediately upon another (Expiation of Offences Act 1996 s 6(1)(a)).
An expiation notice must be issued within six months of the date of the alleged offence and before the commencement of any prosecution against you for the alleged offence (EOA s 6). The notice must be accompanied by another notice through which you can choose to be prosecuted (EOA s 6(1)(k)). The format of this particular notice will depend on what is set out in the regulations.
An expiation notice cannot be given to a person under the age of 18 except in specific circumstances (EOA s 6(1)(g) and (h)).
An expiation notice should not be issued in respect of a trifling offence (EOA s 4(2)) (see below).
If an expiation notice does not meet the above requirements as well as others further specified under section 6, and this is brought to the authority’s attention, the authority may withdraw the expiation notice. However, depending on the nature of the defect, the relevant authority may be able to correct it and re-issue the expiation notice to you (EOA s 16(1)(ac)).
If you have been issued with an expiation notice, you have several options open to you but you must act within the time for payment of the expiation fee otherwise these options will lapse. If you simply ignore an expiation notice, the issuing authority will take further steps to enforce the expiation notice, and further costs may be added to the fine. The consequences of ignoring the notice are described below.
Your options are as follows:
Pay the fine within 28 days.
Pay the fine via a payment plan or other alternatives.
Apply to the issuing authority for review of the expiation notice.
Choose to be prosecuted.
Refusal to take action is an option, but it is not recommended because it results in other unintended consequences.
Option 1 - pay the fine
You can pay the fine within 28 days from (and including) the date of issue of an expiation notice to pay the expiation fee (EOA s 6(1)(c)). The offence is expiated upon payment of the fee, you are no longer liable for prosecution for that offence (EOA s 15). There is no court appearance and no conviction recorded, but it may result in demerit points being attributed to your licence.
Option 2 - payment plans and other options
If you cannot pay the fine immediately, you can enter into an arrangement to (Fines Enforcement and Debt Recovery Act 2017 s 15):
Pay by instalments over a period not exceeding 12 months;
Extend the time to pay;
Take a charge over land;
Surrender property to the chief recovery officer;
Pay any amount by or through some other person or agency (eg deductions from a bank account or wages);
Or any form agreed by the Chief Recovery Officer and yourself.
Alternatively, if you are unable to pay the fee due to financial hardship, the Chief Recovery Officer may determine that you are exempt from paying the fee (Fines Enforcement and Debt Recovery Regulations 2018 reg 7).
Option 3 - Apply for review
The four main grounds for withdrawal of expiation notices include:
You did not receive the expiation notice until after the due date for payment due to an error on the part of the authority or the postal system, or because of a failure in the transmission of an email sending the notice. The authority must withdraw the expiation notice (EOA s 16(6)) however, it can be re-issued to you within one year of the date of the alleged offence (EOA s 16(13)). If you have paid the expiation fee (whether partially or in full) the expiation notice cannot be withdrawn (EOA s 16(7)) but if the notice is subsequently withdrawn, you may be entitled to a refund but this will depend on the ground being relied upon for withdrawal.
You did not commit the offence. If the issuing authority agrees to withdraw an expiation notice on this basis any payment of the expiation fee must be refunded (EOA s 16(2)).
You have an excuse, such as that the offence was ‘trifling’ on the grounds that (EOA s 4(2)): there were humanitarian or safety reasons for the offence, you could not reasonably have averted the offence, or the offence was merely a technical, trivial or petty instance of the offence. You can apply to the police, council or other authority that issued the expiation notice for a review of the notice on the ground that the offence was trifling. If you apply for a review and the authority agrees that the offence was trifling, the authority must notify you in writing and withdraw the expiation notice.
You suffer from a cognitive impairment that excuses the offending.
Option 4 - choose to be prosecuted
If you wish to dispute the alleged offence, or if you wish to apply to the Court to reduce the number of demerit points for the offence, you may choose to be prosecuted for the offence. This will involve court proceedings. If you do choose to be prosecuted, do not pay the expiation notice because payment of the fine constitutes an admission that you committed the offence.
After making the choice to be prosecuted as per the form that will accompany the notice, you will receive a letter from the Expiation Notices Branch of the South Australia Police, advising that the expiation notice has been withdrawn. Then, usually within 12 weeks, you will receive a summons detailing the alleged offence and the first Court date.
The decision to be prosecuted is final. This means that:
You cannot change your mind or have the fine or expiation notice reinstated after making the choice.
You cannot choose to be prosecuted after entering into a voluntary payment arrangement.
You cannot choose to be prosecuted after paying the expiation notice.
If you have paid an on-the-spot-fine or expiation notice in error, seek legal advice as soon as possible.
option 5 - REFUSAL TO TAKE ACTION (NOT RECOMMENDED)
If an expiation notice remains unpaid after the due date, unless you have chosen to be prosecuted, you will automatically be found guilty of the offence. If you do not pay the traffic infringement fine within 28 days or enter into a payment arrangement, an expiation reminder notice is sent (EOA s 11). No further enforcement action can take place until 14 clear days after the date of the reminder notice (FEDRA s 22(3)(a)(i)). A reminder notice fee is added to the original traffic infringement fine (EOA s 11(3)).
An enforcement order will be made if the expiation fine and reminder fee are not paid and you have not entered into an agreement nor chosen to be prosecuted. An enforcement determination fee of $108 will be added to the total amount owed unless the Chief Recovery Officer determines it appropriate to waive the fee.
Upon an enforcement determination being made, the Chief Recovery Officer may take enforcement action against the alleged offender to secure payment (FEDRA s 25).
If an enforcement determination is made against you, you can comply with the enforcement determination by paying the amount owed in full and the determination is terminated.
Alternatively, you can apply to the Chief Recovery Officer for the enforcement determination to be revoked or varied but this must occur within 30 days of becoming aware of the determination (FEDRA s 22(5)(b)(i)). A fee of $26.25 (correct as of 1 July 2020) applies to review an enforcement determination (FEDR Regs Schedule 2).
Specific grounds for applying for a review of an enforcement determination include (FEDRA s 22(10):
The expiation notice should not have been issued in the first place;
Procedural requirements were not followed;
You did not have a reasonable opportunity to chosen to be prosecuted or to apply for a review of the expiation notice;
You failed to receive both the notice and the expiation reminder notice;
The issuing authority failed to receive a notice sent by you choosing to be prosecuted;
The issuing authority failed to receive a statutory declaration or other document sent by you; or
You have expiated (ie paid the amount of the expiation notice) for the offence(s).
Last revised: March 2023