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Applying to Remove a License Disqualification (QLD)

In some circumstances, Queensland drivers who have been disqualified from driving for more than two years for traffic offences can apply to the court for the rest of the disqualification period to be removed. This is known as a section 131 application and is governed by section 131 of the Transport Operations (Road Use Management) Act 1995. This article deals with applying to remove a licence disqualification.

Who is eligible to apply to remove a licence disqualification?

To be eligible to make this application a person must have had their license suspended for a period of more than 2 years and have served 2 years of that disqualification period.

The court has said that the ability to apply to remove a licence disqualification provides an inducement to offenders to abide by the disqualification and avoid reoffending. If they do so, there is a reasonable likelihood that they will be given the opportunity to become licensed to drive again.

How do I apply to remove a licence disqualification?

To make an application to remove a licence disqualification, an application form must be filed with the court with supporting documentation such as an affidavit from the applicant, character references and confirmation of any rehabilitation that has been undertaken.

Such documentation must be served on the Commissioner of Police, who must be given at least 28 days’ notice of the hearing of the application. Generally, the police will conduct a character check after being served and prior to the court hearing by contacting the applicant’s neighbours to confirm that the applicant has remained trouble-free and most significantly, not driven a vehicle during the disqualification period.

If the disqualification order was made by a Magistrate in the Magistrates Court, then the applicant must attend and file their application at the Magistrates Court in the area in which the applicant resides. If the disqualification order was made by a Judge in the District Court or Supreme Court then the application to remove the licence disqualification must be made to the District Court or Supreme Court in the area in which the applicant resides.

How does the court decide the application?

In determining an application to remove a licence disqualification, the court will have regard to:

  1. The character of the person disqualified;
  2. The person’s conduct subsequent to the order;
  3. The nature of the offence; and
  4. Any other circumstances of the case

Case law

In Morgan v Commissioner of Police [2007] QDC the court stated that it must balance the interests of the applicant in having his or her license restored with those of the community in not prematurely sanctioning the right of an offender to resume driving after committing a serious criminal offence which placed in jeopardy the safety of members of that community.

In Slivo v Commissioner of Police [2016] QDC 46 it was said that before an order should be made, the applicant would need to satisfy the court that there has been a substantial change in character and conduct on his behalf and that he has a legitimate purpose for obtaining a driver license as well as there being a sufficiently lengthy deprivation of the ability to drive to satisfy the community’s demand for punishment.

It was held by the court in Johnson v DPP [2009] QDC 300 that it is relevant that more than mere inconvenience needs to be shown to be successful with the application. The court has said that some level of inconvenience can always been expected to flow from a disqualification. If it did not, a disqualification would not have the essential deterrent effect. However, it is another matter when there is an indication of the potential loss of employment arising from his not holding of a driver’s license.

If it can be proved that holding a driver’s licence is imperative to further rehabilitation, the chances of a successful application are greatly improved. The court has confirmed in Morgan v commissioner of police [2007] QDC that long periods of disqualification from driving may prove a very severe handicap to a man when he comes out of prison and desires to pursue a different type of life to that which led him to prison. Such periods of disqualification may shut out a large sector of employment, especially in certain areas. Moreover, if the length of disqualification is overlong, and amounts to a period such as a decade, the position may well seem hopeless to the man – and that of itself sows the seeds of an incentive to disobey the law. However wrong such an attitude may be, it springs from a human factor which is wise to take into account.

Also, if an applicant has spent most of the disqualification period in prison it is highly recommended that they complete more of the disqualification period in the community before making an application to remove the licence disqualification. The court has said in Slivo v Commissioner of police [2016] QDC 46, that a lengthy period of incarceration is also relevant. A disqualification can hardly be considered a punishment for a prisoner during the period of incarceration.

What may the court do?

After hearing a section 131 application, the court may:

  1. remove the licence disqualification from the date of the hearing;
  2. remove the licence disqualification as from a specified date; or
  3. refuse the application.

If the court refuses the application, the applicant will need to wait another year before they can re-apply.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Natasha Shorter - Managing Associate - Brisbane

This article was written by Natasha Shorter - Managing Associate - Brisbane

Natasha Shorter completed a double degree in Law and Criminology and Criminal Justice at Griffith University graduating with Honours. She was admitted to practice in the Queensland Supreme Court in September 2008. Natasha is a Managing Associate practicing in criminal law. She has a real passion for social justice and protecting people’s rights, a quality that makes her a proficient...

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