Important changes made to the Road Transport Act
On 28 October 2017, some important changes were made to the road transport legislation in NSW. Three of the main changes are:
- The harsh regime of habitual traffic offender declarations has been abolished
- Maximum penalties for “unauthorised driving offences” have been reduced significantly
- Certain disqualified drivers are given the opportunity to apply to the court to have their disqualification period(s) removed if they meet certain criteria.
“Unauthorised driving offences” includes offences of driving disqualified, suspended and cancelled.
1. Abolition of the habitual traffic offender declaration
Under the old legislation, a person convicted of three major traffic offences within a 5-year period could be declared a habitual traffic offender, which resulted in them being disqualified for an additional 5 years.
Under the new legislation, no more habitual traffic offender declarations will be made. The new legislation is not retrospective, which means that existing declarations will stay in place, however the court still has the power to quash an existing habitual offender declaration. A declaration will be quashed if the court determines that the disqualification arising from the declaration is disproportionate and unjust.
If you are currently subject to a habitual traffic offender declaration, you should contact a lawyer to assist you in making an application to the court to have it quashed.
2. Changes to the maximum penalties for unauthorised driving offences
Under the old legislation, a person convicted of an unauthorised driving offence was subject to an automatic disqualification period of 12 months (in the case of a first offence) or 2 years (in the case of a second or subsequent offence in a 5-year period). The court did not have the power to reduce this disqualification period.
The new legislation significantly reduces the disqualification periods which apply to unauthorised driving offences. The new legislation also introduces the concept of ‘default’ and ‘minimum’ disqualification periods. The ‘default’ disqualification period is the automatic disqualification period a court will impose upon conviction, however the sentencing magistrate can order a shorter period of disqualification (but no shorter than the ‘minimum’ disqualification period as stated in the legislation). The new legislation therefore gives magistrates and judges greater discretion in sentencing.
A summary of the changes to the disqualification periods is as follows:
|Offence||Disqualification period – old legislation||Disqualification period – new legislation|
|Drive unlicensed (second or subsequent offence)||3 years (automatic)||12 months (default)
3 months (minimum)
|Drive while disqualified, suspended or cancelled (first offence)||12 months (automatic)||6 months (default)
3 months (minimum)
|Drive while disqualified, suspended or cancelled (second or subsequent offence)||2 years (automatic)||12 months (default)
6 months (minimum)
|Drive while cancelled or suspended for non-payment of fines (first offence)||3 months (automatic)||3 months (default)
1 months (minimum)
|Drive while cancelled or suspended for non-payment of fines (second or subsequent offence)||2 years (automatic)||12 months (default)
3 months (minimum)
The maximum terms of imprisonment for the above offences have also been markedly reduced. A summary of the changes to the maximum terms of imprisonment is as follows:
|Offence||Maximum imprisonment – old legislation||Maximum imprisonment – new legislation|
|Drive unlicensed (second or subsequent offence)||18 months||6 months|
|Drive while disqualified, suspended or cancelled (first offence)||18 months||6 months|
|Drive while disqualified, suspended or cancelled (second or subsequent offence)||2 years||12 months|
|Drive while cancelled or suspended for non-payment of fines (first offence)||18 months||n/a|
|Drive while cancelled or suspended for non-payment of fines (second or subsequent offence)||2 years||6 months|
3. Applications to remove licence disqualifications
Perhaps the most significant change in the new legislation is that, in certain circumstances, a person who is disqualified from driving can apply to the Local Court to have their remaining disqualification period removed.
A person can make such an application if they:
- have not been convicted of a driving offence during the relevant offence free period (which is either 2 of 4 years, depending on the offence(s) which gave rise to the disqualification period) and
- have not committed a driving offence during the offence-free period.
In certain circumstances, a person is precluded from making such an application. These circumstances include:
- when part or all of a person’s current disqualification is for an offence which deems them ineligible. Such offences include negligent driving causing death, negligent driving causing grievous bodily harm and police pursuit
- when a person is subject to a mandatory interlock order.
What should I do?
If you think you may be able to apply to have your disqualification period removed, you should speak to a lawyer. It is very important that your application is prepared properly because you are only permitted to make one application per year and you cannot appeal against the court’s decision if you are unsuccessful.
Disclaimer: The above information contains a basic summary of the law in NSW as at 29 October 2017. It is not legal advice. If you need legal advice, you should speak to a lawyer.