2014
Habitual Traffic Offender declarations: is this the end as we know it?
Chris Owens / 2 Comments /Late last year the NSW Parliament’s Legislative Committee on Law and Safety delivered its final report on an inquiry into driver licence disqualification reform. The inquiry was to look at whether the current regime of disqualifications for unauthorised driving offences (driving whilst disqualified, cancelled, suspended or unlicenced) could be reformed to allow for disqualification periods to be reduced in some cases. Many have argued that disqualification for unauthorised driving offences produces unjust outcomes and that the regime is restrictive and does not allow the court to exercise sufficient discretion. Further, provisions that allow for offenders who have committed three major driving offences in a five year period to be declared Habitual Traffic Offenders further increased already lengthy disqualification periods to such an extent that their impact seems limited.
What is an Habitual Traffic Offender declaration?
Habitual Traffic Offender (HTO) declarations occur after a person has been convicted of three or more major traffic offences in a five year period. Major traffic offences include drink and drug driving offences, unauthorised driving offences, and some offences related to dangerous driving. If a declaration is made, a person is disqualified for a further five years on top of whatever disqualification period the court has given them for the offences. The court, when convicting a person for third (or fourth, or fifth, or sixth) offence, can make the declaration and has the power to reduce it to a minimum of two years, or quash it outright. However, if the court says nothing about a Habitual Traffic Offender declaration, it is made automatically. Many believe that it is RMS (the RTA) that declared a person an Habitual Traffic Offender but this is not correct. It is in fact an operation of law.
A person can again be declared an Habitual Traffic Offender for each offence they commit over the initial three. So if a person had three mid-range PCA offences in a two year period, and are declared an Habitual Traffic Offender, then commits a drive while disqualified offence one year later, they can (and most probably will) be declared an Habitual Traffic Offender again. So now, not only do they have the court ordered disqualification to contend with, which could be substantial in itself, but also an extra ten years on top of that. They can apply at a later stage to have these declarations quashed, but many will not know that they can, or how to go about it.
Currently in NSW there are about 17 000 people who have been declared Habitual Traffic Offenders. Some have been declared more than once. NSW is the only jurisdiction in Australia that operates such a scheme, and in fact, NSW may be the only jurisdiction in the world.
Inquiry into driver licence disqualification reform
Among the Law and Safety Committee’s terms of reference was whether the Habitual Traffic Offender scheme should be abolished, at least as far as it relates to unauthorised driving offences. The Committee found that the scheme came in for a number of criticisms. The committee reported that the scheme was variously seen as:
- resulting in unjust consequences
- ineffectual as a deterrent to reoffending
- entrenching disadvantage amongst the community’s most vulnerable
- restricting the court’s discretion on sentencing
- complex to administer and causing confusion amongst offenders
- unlikely to have any impact on road safety
- possibly have an effect opposite than that intended, in that the length of the disqualification may discourage offenders from reforming their behaviour.
The Committee fell short of recommending that the Habitual Traffic Offender scheme be abolished in its entirety. Instead, the committee recommended that:
- unauthorised driving offences be removed from the scheme
- the police or RMS should apply for a declaration rather than an automatic imposition
- the government to further review the Habitual Traffic Offender scheme as it relates to other offences to determine if it should be abolished altogether.
The Committee also looked at mandatory disqualifications for unauthorised driving offences and has recommended that more discretion be given to magistrates. The Committee also recommended that a system be introduced whereby disqualifications can be reduced where a person has shown a period of good behaviour.
Driver licence disqualification for unauthorised driving offences can lead to unjust outcomes, and the Habitual Traffic Offender scheme further compounds the problem. In a country like Australia, with long distances between regional centres and little in the way of public transport outside of the major cities, a licence to drive in rural and remote regions can be vital. A lengthy disqualification for an offence that in itself does not pose any danger is not likely to either act as a deterrence or improve road safety when the offender has little option but to drive to be able to work and access health and other services.
There is no word yet on what legislative changes the government will put forward (if any) as a result of the Committee’s recommendations. From a purely political perspective it’s not exactly a vote winner. Those most affected by the Habitual Traffic Offender scheme are hardly likely to be rusted on Liberal Party voters. It wouldn’t be surprising if the law and order brigade (tabloids and talk back radio) used the possibility of changes to beat the government with a ‘soft on crime’ stick. However, changes as recommended by the Committee will help to ensure that already disadvantaged communities are not further disadvantaged, and that taxpayers money is not wasted on the administration of an unnecessary scheme.
Comments 02
Goran
October 20, 2016 10:35 am ·Hi Owen Lawyers,
I would like to know when or if this has passed in our parliament? If not is there any signs to wen this will take place in NSW. As currently NSW is the only state that doesn’t allow offenders to go back to court to get rid of an court disqualification.
Also I would like to know if there is any other way to get your licence back sooner.
Currently I have another 4 years to go to get licence back, but have been good for 7 years, and cannot wait till then my employment can be seized if my employer finds out I don’t have a licence.
Kind Regards
Goran
Chris Owens
October 20, 2016 9:50 pm ·Hi Goran,
There is no indication if or when this will be introduced to parliament and passed as law at this stage. If your current disqualification is because of a Habitual Traffic Offender declaration, then you can make an application to any Local Court to have it quashed. However, if your current disqualification is part of the court ordered disqualification period, then your only option is to write to the state’s Attorney General asking the A-G to recommend to the Governor of NSW that the remaining period of disqualification be remitted. See: http://www.justice.nsw.gov.au/lsb/Pages/review-annulment-of-convictions/rem-of-fines-and-driver-lic-disq.aspx
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