Habitual Traffic Offender Declaration (HTOD) - Disqualification Periods

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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 Transport for NSW 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:

This page deals 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 1900 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;
  • drink driving;
  • 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 Transport for NSW 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 driver’s record unless removed or quashed by a court.

The Second Reading Speech stated that studies showed that long disqualification periods did not act as a deterrent to committing further offences, particularly offences of unauthorised driving. It stated the HTOD scheme was particularly onerous and often trapped people into a cycle of reoffending behaviour.

Can I do anything about the application?

When the amendments 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 magistrates determined that the applications could not be filed or heard. This is because the amendments also removed what was section 220 of the Road Transport Act 2013, which allowed the court  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 Act.

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. 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, a 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 Declaration 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.

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