Quashing a Habitual Traffic Offender Declaration
Prior to October 2017, you could have been declared a habitual traffic offender if a court in NSW convicted you of a relevant offence and in the five years prior, you had been convicted of at least two other relevant offences if they were committed on different occasions. The effect of a Habitual Traffic Offender Declaration (HTOD) was that the Roads and Maritime Service (RMS) would impose a further five-year licence disqualification, on top of the disqualification imposed by the court when dealing with the most recent offence.
There are many people who still have years, if not decades of disqualifications to serve arising from these Habitual Traffic Offender Declarations. Presently, there are two different types of applications that can be made to the Local Court to try to quash or remove disqualification periods:
- Driver licence disqualification removal applications; and
- Applications to quash Habitual Traffic Offender Declarations.
This page deals only with applications to quash Habitual Traffic Offender Declarations.
What offences are relevant offences?
Prior to October 2017, a Habitual Traffic Offender Declaration was made for any three “relevant offences” within a five year period. For the purposes of an HTOD ‘relevant offences’ are any of the following:
- Murder or manslaughter which involved the use of a motor vehicle;
- Any offence under the Crimes Act where death or bodily harm is caused to a person through the use of a motor vehicle;
- Predatory driving;
- Police pursuit;
- Failing to stop and assist after vehicle impact causing death or grievous bodily harm;
- Any PCA offence;
- Driving with a prescribed illicit substance in your system;
- Driving under the influence;
- Negligent driving causing death or grievous bodily harm;
- Dangerous driving;
- Menacing driving;
- Refusing or failing to provide blood sample or submit to breath analysis;
- Wilfully altering blood/breath/urine/oral sample;
- Aiding, abetting, counselling or procuring the commission of any of the above offences;
- Driving more than 30km+ over the speed limit;
- Driving suspended/disqualified/cancelled; and
- Making an application for a licence whilst suspended/disqualified/cancelled.
Amendments introduced by the Road Transport Amendment (Driver Licence Disqualification) Act 2017
In October 2017, the Road Transport Amendment (Driver Licence Disqualification) Act 2017 commenced. One of the major changes introduced by that legislation was the removal of the Habitual Traffic Offender Scheme.
This means that the RMS no longer imposes a further five year disqualification period for three relevant offences within a five year period. However, the amendments did not remove existing disqualifications, which will still appear on a drivers record unless removed or quashed by a court.
The Second Reading Speech stated that studies showed that lengthy disqualification periods did not act as a deterrent to committing further offences, particularly offences of unauthorised driving. The HTOD scheme was particularly onerous and often trapped people into a cycle of reoffending behaviour. This is an argument that the solicitors at Armstrong Legal use regularly when making applications of this nature.
Can I do anything about the application?
When the amendments fist came into effect in October 2017 the law was somewhat ambiguous as to whether an application to quash a Habitual Offender Declaration could still be made. Some courts and Magistrate’s determined that the applications could not be filed or heard.
This is because when the changes were made in October 2017 to remove the HTOD scheme it also removed what was section 220 of the Road Transport Act, which gave the court the ability to quash Habitual Traffic Offender Declarations.
The legislature have since passed a further amendment which specifically states that an application to quash a Habitual Traffic Offender Declaration can still be made. This provision is contained in clause 65 of Schedule 4 of the Road Transport Act 2013 which is replicated below:
Abolition of Habitual Traffic Offenders Scheme
- (1) A disqualification from holding a driver licence imposed under Division 3 of Part 7.4 before the repeal of that Division by the amending Act does not cease to have effect because of the repeal of that Division.
- (2) Despite the repeal of Division 3 of Part 7.4, the power of a court under that Division (as in force immediately before its repeal) to quash a declaration of a person as an habitual traffic offender may continue to be exercised by a court despite its repeal.
- (2A) In particular, section 220, as in force immediately before its repeal by the amending Act, continues to apply with the following modifications:
- (a) a person who was declared to be a habitual traffic offender by operation of section 217 (as in force immediately before its repeal by the amending Act) may, on or after the repeal of section 220, apply to the Local Court for the declaration to be quashed, even if the Local Court was not the court that convicted the person of the relevant offence,
- (b) the Local Court may determine the application to quash the person’s habitual traffic offender declaration, as if section 220 had not been repealed, even if the Local Court was not the court that convicted the person of the relevant offence.
- (3) Despite the repeal of section 208 (2) by the amending Act, Division 2 of Part 7.4 continues not to apply in respect of a person who continues to be subject to a disqualification from holding a driver licence by the operation of this clause.
Making an application
An application to quash a habitual traffic offender declaration can be made in person at any NSW Local Court Registry, or through a legal representative appearing on your behalf. Before an application can be filed the registry will require completion of an approved form and approved NSW Traffic Record.
Once an application is filed it will be listed before a Magistrate. The Magistrate will determine the application by receiving any evidence such as character references, letter from the applicant, medical documents or employment documents as well as oral arguments.
A Magistrate can quash the habitual traffic offender declarations if they determine that “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.” Submissions can be made to the Magistrate by the legal representative appearing for the person making the application, or the person making the application themselves.
If you have existing disqualification periods you should seek legal advice as to whether or not you are eligible to apply to the court to quash your Habitual Traffic Offender Declarations or have the existing disqualification periods removed, as well as how best to prepare your matter.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.