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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Unlicensed Driving (WA)


Section 49 of the Road Traffic Act 1974 defines an unlicensed driver as someone who drives a motor vehicle while not authorised, or allows another person to drive while not authorised.

Unlicensed driving

A driver may be unlicensed for many reasons. These include when:

  • the licensing authority has suspended or refused to renew a driver licence;
  • the licensing authority has refused to issue a driver licence;
  • a person’s licence has been cancelled;
  • a court has disqualified a driver;
  • a driver has been disqualified due to excessive demerit points;
  • a person who holds an extraordinary licence is driving contrary to a licence condition.

Section 49 does not apply to a driver who:

  • holds a valid driver licence fails to carry it;
  • has an expired licence;
  • has never held a licence;
  • has had their licence suspended due to unpaid fines.

Penalties

For a first offence, the penalty is a fine of 6 penalty units ($300). For a subsequent offence, the penalty is a fine of 12 penalty units ($600). The court can also disqualify a person from holding a driver licence for up to 3 years. Any disqualification is cumulative upon any other disqualification. In some cases a driver can be jailed for up to 18 months.

A driver can be arrested without a warrant in circumstances such as when:

  • they have applied for, but been refused a driver licence;
  • they are disqualified from holding or obtaining a driver licence;
  • their authority to drive has been suspended due to penalty enforcement laws or another reason.

If a police officer reasonably suspects a driver did not know they were disqualified or their licence was suspended, and that the driver had not been cautioned previously, the officer can decline to charge the driver and issue a caution instead. If it appears it would be impracticable or jeopardise the safety of any person if the driver stopped driving immediately, the officer can issue a caution and a “necessity permit”. The permit allows the driver to drive by the shortest practicable route to a place specified in the permit.

Impoundment

Section 79 of the Act allows for roadside vehicle impoundment if a person is found driving unlicensed or allowing an unlicensed person to drive a vehicle. The police officer must, unless it is impracticable in the circumstances, seize and impound the vehicle within 28 days of the offence. The impoundment period is 28 days unless the officer suspects the driver is a repeat offender, when the period is 3 months.

If immediate impoundment is not practicable, the police officer may issue a surrender notice within 28 days of the offence. The notice requires the vehicle to be surrendered for impounding at a specified time and place.

Under section 80B of the Act, if a court convicts a person of an impounding offence, it can make an order that a vehicle be impounded for up to 3 months from the date the vehicle is surrendered. The court must not make such an order unless it is satisfied the person has been convicted of a previous offence within the past 3 years.

Under section 80CA of the Act, if a court convicts a person of a road rage offence, it can make an order that the vehicle be impounded for up to 6 months from the date the vehicle is surrendered.

The impoundment applies to the vehicle being used at the time of the offence, which includes a borrowed vehicle or business vehicle.

The cost of impoundment is about $900 for 28 days. An impounded vehicle will not be released until the costs is paid in full.

Confiscation

Under section 80A of the Act, if a court convicts a person of an impounding offence, it can order the confiscation of the vehicle used in the offence. A court can make such an order if it is satisfied that:

  • the offence was committed in a school zone; or
  • the offence resulted in, or was likely to result in:
    • members of the public experiencing harassment, intimidation, fear or alarm; or
    • damage to the road; or
  • the offence involved the vehicle being driven at 90km/h or more above the speed limit;
  • the offence was committed in a confiscation zone and the person had been convicted of a previous impounding offence within the past 5 years;
  • the person had been convicted of two previous impounding offences within the past 5 years.

Under section 80CB of the Act, the court can also confiscate a vehicle if it convicts a person of a road rage offence.

Confiscation means the vehicle become the property of the state, free from all interests, rights, titles or claims in or to the ownership or possession of the vehicle. The state then has the right to sell or otherwise dispose of the vehicle.

For advice or representation in any legal matter, please contact Armstrong Legal.

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