Traffic Laws in NSW: 3 Strikes & You're Off the Road!
Written on the 7th of November 2011
When it comes to NSW driving laws, what does the term "habitual offender" mean?
If you have not ever been charged with a traffic offence in NSW, then the term "habitual offender declaration" is one you probably don’t need to know much about right now. However, if you are facing your third (or greater) conviction for a serious traffic offence, you may be about to become very familiar with bus timetables over the next few years.
If your latest offence is a qualifying one under s198 of the of the Road Transport (General) Act 2005 (Traffic Act NSW) then, regardless of the disqualification imposed in relation to that offence, you will receive an automatic five years further disqualification under s201(1). This is because s201(1) will operate to declare you a habitual offender automatically, without any specific order from a court. Typically, the Roads and Transport Authority (RTA) will send out a letter advising of this additional disqualification period. This period commences immediately following the end of the disqualification imposed for the most recent offence. For example, if you lose your licence for two years in relation to the most recent offence, the habitual offender declaration disqualification period will commence in two years time, so your total disqualification is effectively seven years.
It is also possible to accumulate more than one habitual offender declaration, so there are many (non-drivers) out there who are currently disqualified for 10 years or more.
When the offence which leads to the habitual offender declaration is considered by a Magistrate or Judge, the court may quash the declaration, so that it does not take effect. A declaration can also be quashed subsequently so long as the period of disqualification arising from that declaration has not ended, but the quashing of the declaration takes effect from the date it is quashed – it cannot be backdated. To quash a habitual offender declaration, under s201(1) the court needs to be satisfied that:
“... the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.”
The court also has jurisdiction under s201(3) to shorten the period of a declaration, so long as the shortened period is not less than two years. The grounds for imposing a shorter period are much the same as the grounds for quashing a declaration.
For those who suffer an additional disqualification period arising under a habitual offender declaration, it often seems to be a harsh measure. However, a declaration is not made in relation to minor traffic offences, and only arises upon conviction for the third qualifying offence. Therefore, habitual offender declarations are regarded as a way of keeping the more serious offenders off the roads for extended periods.
If you have any questions, please don’t hesitate to call us on (02) 4904 8000 or email us. We have lawyers who specialise in traffic and driving matters and a member of that team will endeavour to respond to your enquiry within 24 hours.
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