Recent driver licence reforms in NSW include some of the most significant changes to licence disqualification in recent times.

Central to the reforms has been abolishing of the Habitual Traffic Offender Declaration scheme. However, one of the consequences of the reforms may have left thousands of individuals worse off.

Habitual Traffic Offenders (HTOD)

The HTOD scheme previously saw individuals found guilty of three or more major offences within 5 years, automatically disqualified for an additional 5 years. Additional declarations were cumulative, which meant a single additional offence could mean 10 years disqualification, then 15 years, then 20 years and so on.

It was pleasing to see the NSW Government scrap this system on 28 October 2017, with the current Attorney General noting it resulted in “crushing periods of disqualifications”, which effected the most disadvantaged and vulnerable in our community.

Problem with reforms

However, in abolishing the scheme, the Government has also taken away the ability of a person currently serving an HTOD to have it quashed. Remarkably, this was a right they previously enjoyed under the old legislation.

How this occured

Under the repealed laws, a person declared an HTOD was previously able to apply to have the declaration quashed under section 220 of the Road Transport Act 2013.

Along with all the amendments on 28 October 2017, that section was repealed. However, unhelpfully for those declared habitual traffic offenders, any disqualification from an HTOD continues to have effect. The power to quash the HTOD does not.

The power to quash an HTOD can now only be exercised if the application to quash the HTOD was filed in the Local Court before section 220 was repealed, on 28 October 2017. This is because the savings and transitional provisions have been worded in a way that only preserves the power of a court to continue to exercise the power it previously had to quash a declaration. It does not preserve the power to make fresh applications.

What this means

This means that potentially thousands of people who have previously been declared habitual traffic offenders, have no ability to apply to have these declarations quashed.

This seems a remarkable outcome. Particularly given the comments of the government in labeling the scheme “excessive” and “entrenching disadvantage among vulnerable people”, this is a perverse result. Arguably, many of this people are now worse off than they were before 28 October 2017.

True, these people may be able to apply to have their disqualifications removed under the new Division 3A, but this can require waiting up to 4 years before the minimum offence free period has been served.

Hopefully the Government will act to address this significant unfairness, and act fast.

Justin Wong

Justin Wong is Principal Lawyer at Streeton Lawyers, a criminal law firm in Sydney rated at the very top of the 2017 Doyles Guide of Criminal Defence Firms.

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