Immediate Licence Suspensions

In New South Wales, police have the power to issue an immediate notice of suspension (also known as an “on-the-spot” suspension) if a person has committed a serious traffic offence. Like the title suggests, the suspension takes effect the moment a police officer serves you with the notice and prohibits you from driving until the suspension period expires. Any notice of suspension issued by an NSW authority to an NSW licence holder suspends that individual’s driving privileges Australia-wide. However, where an individual holds a licence from a different Australian jurisdiction, an NSW-imposed suspension will suspend driving privileges within the NSW jurisdiction only. This article details the circumstances where an immediate suspension can be issued, your options for appealing the suspension and stay applications.

What circumstances can police issue an immediate police suspension?

While usually “on-the-spot,” police actually have 48 hours from the time of the offence or charge to issue an immediate suspension notice. Section 224 of the Road Transport Act sets out a list of offences which empower a police officer to issue an immediate suspension. These offences are as follows:

If it appears to the police officer, the driver has committed an offence of exceeding the speed limit by kilometers an hour;

• If it appears to the officer the driver has committed an offence of exceeding the speed limit by more than 30kilometres an hour, where the driver is the holder of a Provisional or Learner licence;
• If it appears to the officer the driver has committed an offence of drink-driving offence as a novice, special or low range category (first offence);
• If the driver is charged with an offence of mid or high-range drink-driving;
• If it appears to the officer the driver has committed an offence driving as a Learner licence holder driving unaccompanied by a supervising driver;
• Where the driver is charged with an offence caused by a motor vehicle comprising of:

• • murder;
  • manslaughter;
  • wounding or causing grievous bodily harm with intent;
  • recklessly causing grievous bodily harm; or
  • dangerous driving occasioning death or grievous bodily harm

• Where the driver is charged with an offence of driving (or attempting to drive) under the influence of alcohol or any other drug;
• Where the driver is charged with an offence of promoting or taking part in races, attempts on speed records and other speed trials;
• Where the driver is charged with an offence of aggravated burn out;
• Where the driver is charged with offence of failing to provide samples as appropriate under 16(1)(b), 17(1) and (a1) or (2) or 18(1)(a), (b) or (e) of Schedule 3 of the Road Transport Act.

The duration of the suspension is generally fixed by law, but for more serious charges, it remains in place until the finalisation of your matter at court. Some common offences and their respective suspension periods are found in the table below.

It is important to note that whilst in theory all of the above decisions are appealable under the legislation, the appropriateness of filing an appeal will vary case to case.

Licence Suspension Appeal

An immediate suspension is an appealable decision under the Road Transport Act 2013 (NSW) provided an appeal form is filed with the Local Court within 28 days of receiving the suspension notice.  If an application is not lodged in time, the court cannot hear the appeal and the suspension must be served.

Under section 268 of the Road Transport Act, upon determining the appeal, the Local Court Magistrate can either uphold the appeal (remove the suspension period) or set aside the decision (refuse the appeal). Before an appeal against an immediate licence suspension can be varied or set aside, the applicant must first establish that exceptional circumstances exist.

The “Exceptional Circumstances” Test for Immediate Police Suspensions

Under Section 268(5)(b) of the Road Transport Act 2013, the Court is prohibited from considering the merits or circumstances of the underlying offence when determining the existence of “exceptional circumstances.” While the Act provides no statutory definition for this term, the Court exercises discretion by weighing the applicant’s need for a licence and the resulting hardship against community safety risks. Proving “exceptional circumstances” remains a significant challenge in practice; notably, established case law dictates that the loss of employment, when viewed in isolation, does not meet this threshold. This is a common consequence of a person losing their driver’s licence. Courts have interpreted exceptional circumstances to be something that is extraordinary, unusual, and distinguishable from ordinary cases. Exceptional circumstances can be made up of one single factor, or a combination of factors.

Court Election

An alternative option to filing an appeal against the immediate police suspension would be to make a court election on the infringement notice itself. This is essentially asking a Magistrate sitting in their criminal jurisdiction to determine the outcome of the infringement notice. In doing so it requires a plea of guilty or not guilty to be entered. 

If a plea of guilty is entered, you will then be sentenced for the offence. Any conviction (for example, if you receive a fine) imposed by the court following a court election is recorded as a criminal conviction. If the court imposes a non-conviction order, the demerit points will not be attributed to your licence. 

If a plea of not guilty is entered, your matter will be listed for a defended hearing (usually 6-12 months away). The immediate police suspension will remain in place until the finalisation of the matter or until the suspension period expires, whichever comes first unless a stay application is made.

Stay Applications

As references above, if you make a court election on an infringement notice, enter a plea of not guilty and have the matter listed for hearing the suspension period will remain unless a stay application is made pending the outcome of the matter at court. 

Again, the applicant is required to establish that exceptional circumstance exist and in considering whether the immediate suspension should be stayed, the Court must apply the following under Section 135 of the Road Transport (General) Regulation 2013: 

• the strength of the prosecution evidence;
• the affected person’s need for a licence;
• the potential danger to the community if an order is made;
• any other matter that the Local Court considers to be relevant.

What should I do to prepare for going to court?

• TOIP Completion: Engage and complete a Traffic Offender Intervention Program.

• Character References: Obtain specific letters that address your character as a driver and need for a driver’s licence.

• Medical Documents: If a person has serious medical conditions or disabilities which prevent them from accessing public transport or that they are the responsible carer for someone with one they should obtain documents that support this.

Navigating traffic law or the threat of losing your licence can be stressful. For clear advice and representation, get in touch with Armstrong Legal.