Driver Licence Disqualification Reform in NSW

Tuesday 31 October 2017 @ 10.41 a.m. | Crime | Legal Research

At midnight leading into the 28th of October 2017, the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (the “Act”) commenced in New South Wales. This Act amends the Road Transport Act 2013 with regards to driver licence disqualification. As per the explanatory note which came with the Bill, the Act proposes to:

(a) confers on the Local Court power to remove outstanding driver licence disqualification periods, and

(b) abolishes the habitual traffic offender scheme, and

(c) provides for clearer delineation and flexibility of periods of driver licence disqualification for unauthorised driving offences, and

(d) reduces the maximum periods of imprisonment that may be imposed for unauthorised driving offences, and

(e) enables additional sanctions concerning vehicles to be imposed for unauthorised driving offences and in relation to recidivist unauthorised drivers.

Background and Initiation

Prior to this Act, drivers who were disqualified from holding a licence as a consequence of a driving offence, could have been disqualified for more than ten years. This extended period of time could be considered quite excessive when taking into regards certain locations in regional NSW which have very little public transport support, or considering other disadvantaged communities which rely upon the use of cars for everyday living.  As stated by Mr Speakman, Minister for Roads, Maritime and Freight, in the NSW government media release dated 27 October 2017:

"The reforms will have a significant effect in regional and rural NSW where limited public transport options impact on unauthorised drivers’ decisions to risk getting back behind the wheel".

As a consequence of the lengthy disqualification period, NSW has seen a vast number of disqualified drivers illegally taking to the road and reoffending. The current reforms therefore allow for new pathways back into lawful and regulated driving for those offenders who show compliance with the disqualification. However, the Act also provides for stronger police power, allowing for harder crackdowns by police upon repeat offenders and those who commit certain serious driving offences.

What the Road Transport Amendment (Driver Licence Disqualification) Act 2017 does

The Act defines licence disqualification in section [15] of the Schedule as meaning:

“a disqualification (imposed before or after the commencement of this Division) from holding or obtaining a driver licence that is imposed by a court or by the operation of this Act, and includes any consecutive or concurrent licence disqualification and any period of disqualification which does not commence until other disqualifications or other periods of licence cancellations or suspensions are completed.”

In altering the Road Transport Act 2013, the Act reduces a number of maximum penalties for certain driving offences while disqualified from driving. One example of this is shown in section [1] of the Schedule which replaces the 18 month imprisonment sentence in s 53(3) of the Road Transport Act with a sentence of 6 months imprisonment. Another additional sentencing change made by the Act is in section [3] of the schedule, and includes altering the maximum penalty for “Driving or making licence applications while disqualified or licence suspended or cancelled” in s 54 of the Road Transport Act: changing the maximum from 18 months and 2 years, to 6 months and 12 month.

Other safeguards which are put in place by the Act include a provision inserting a new Division 3A into the Road Transport Act by means of section [15] of the schedule. This Division allows for Courts to “remove licence disqualifications after relevant offence-free period” by means of a new section 221B. This section states:

  1. The Local Court may, by order on application made in accordance with this Division, remove all licence disqualifications to which a disqualified person is then subject if:
    1. the disqualified person has not been convicted of any driving offence for conduct during the relevant offence-free period before the removal of the licence disqualifications, and
    2. the Local Court considers that it is appropriate to do so.
  2. The Local Court must take into account the following in determining whether it is appropriate to remove the licence disqualifications:
    1. the safety of the public,
    2. the applicant’s driving record (including the record before the relevant offence-free period and the record for driving offences and other offences under the road transport legislation and for pending proceedings for alleged driving offences),
    3. whether the applicant drove or was in a position to drive a vehicle during the relevant offence-free period,
    4. any relevant conduct of the applicant subsequent to the licence disqualifications,
    5. the nature of the offence or offences giving rise to the licence disqualifications,
    6. any other relevant circumstances (including, without limitation, the impact of the licence disqualifications on the applicant’s capacity to carry out family or carer responsibilities or on the applicant’s capacity to travel for the purposes of employment, business, education or training, the applicant’s health and finances and the availability of alternative forms of transport),
    7. any other matter prescribed by the statutory rules. […]

Disqualified persons may apply for the removal of licence disqualifications under s 221C of this Division. With this in consideration, there are certain persons who are, by nature of their disqualifying offence, incapable of applying for the removal of a licence disqualification, by way of s 221D, inserted by this Act into the Road Transport Act. Such people are those whose offence was murder or manslaughter caused by the use of a motor vehicle [s 221D(1)(a)] and those whose offence caused “death, grievous bodily harm or wounding by the use of a motor vehicle” [s 221D(1)(b)].

Additionally, the Act introduces a number of offences, in section [10] of the Schedule, which lead to automatic disqualification. Further provisions relating to immediate disqualification are inserted by the consequent sections in the schedule and includes the insertion of section 207A into the Road Transport Act  by section [11] of the schedule, which dictates that “the disqualification of a person from holding a driver licence as a consequence of being convicted of an offence by a court begins on the day that the court convicts the person unless the court orders that the disqualification begin on a later day specified by the court. ”The table of these offences which is to be inserted into s 205A of the Road Transport Act is reproduced below:

 

Offence

Default period of disqualification

Minimum period of disqualification

1

Section 53 (3)—second or subsequent offence (Driver never licensed)

12 months

3 months

2

Section 54 (1), (3) or (4)—first offence (Driving while disqualified, suspended or after licence refusal or cancellation)

6 months

3 months

3

Section 54 (1), (3) or (4)—second or subsequent offence

12 months

6 months

4

Section 54 (5)—first offence (Driving after licence suspended or cancelled for non-payment of fine)

3 months

1 month

5

Section 54 (5)—second or subsequent offence

12 months

3 months

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Sources:

Road Transport Amendment (Driver Licence Disqualification) Act 2017, as published on Timebase LawOne.

Road Transport Amendment (Driver Licence Disqualification) Bill 2017, Bill and Explanatory Statement as published on Timebase LawOne.

Road Transport Act 2013, as published on Timebase LawOne.

Media Release: NSW Government, Justice (27 October 2017). New driver disqualification laws commence tomorrow.

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