Road transport legislation
[2-000] Road Transport Act 2013: some key provisions
Currency
As amended to Road Transport Amendment (Demerit Point Reduction Trial) Act 2023. Commenced 11 August 2023. Current to 11 August 2023.
Jurisdiction
Section 200(1): Proceedings for an offence against the road transport legislation are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction.
Section 200(2): The maximum monetary penalty that may be imposed by the Local Court for an offence against a provision of the road transport legislation is 100 pu or the maximum monetary penalty provided for the offence (whichever is less). However, for an offence against s 188(1) or (2), or s 189(4) (failing to nominate or verify, or falsely nominating, person in charge of vehicle for camera recorded offence), the maximum monetary penalty is 200 pu or the maximum monetary penalty provided for the offence (whichever is less): s 200(3).
Time to commence proceedings
Section 202(1), and cl 165 of the Road Transport (General) Regulation 2021, indicate the offences which, notwithstanding the Criminal Procedure Act 1986 or any other Act, may be commenced no later than two years after the date the offence was alleged to be committed. This provision only applies to an offence alleged to have been committed after 27 October 2020: Sch 4, Pt 10(5).
Definition of “road transport legislation”
Section 6 provides:
- (1)
In this Act, “road transport legislation” means the following:
- (a)
this Act and the statutory rules,
- (b)
(Repealed),
- (c)
the Motor Vehicles Taxation Act 1988 and the regulations under that Act,
- (d)
any other Act or statutory rule made under any other Act (or any provision of such an Act or statutory rule) prescribed by the statutory rules,
Road Rules 2014
All offences under the rules carry a maximum pecuniary penalty of 20 pu except for the following:
-
Rule 10–2(3): “Exceed speed by more than 45 kmh” — maximum pecuniary penalty: 50 pu for a heavy motor vehicle or coach; 30 pu in any other case [see r 10-2(1) for the definition of a heavy motor vehicle. “Coach” is defined in s 4];
-
Rule 102(1): “Drive past clearance sign or low clearance sign if the vehicle or a connected vehicle is higher than the height indicated by the sign” — maximum pecuniary penalty 34 pu;
-
Rule 104(2): “A driver (except the driver of a bus) must not drive past a no trucks sign indicating a length if the length of the driver’s vehicle (or the total of a combination) is longer than that length unless permitted to do so under another law of this jurisdiction” — maximum pecuniary penalty 34 pu; and
-
Rule 106(2): “The driver of a bus must not drive past a no buses sign indicating a length if the bus is longer than that length” — maximum pecuniary penalty 34 pu.
Definition of “major offence”
Section 4(1) provides:
major offence means any of the following crimes or offences:
- (a)
an offence by a person (the offender), in respect of the death of or bodily harm to another person caused by or arising out of the use of motor vehicle driven by the offender at the time of the occurrence out of which the death of or harm to the other person arose, for which the offender is convicted of:
- (i)
the crime of murder or manslaughter, or
- (ii)
an offence against ss 33, 35, 53 or 54 or any other provision of the Crimes Act 1900,
- (b)
an offence against section 51A, 51B or 52AB Crimes Act 1900
- (c)
an offence against section 110(1), (2), (3)(a) or (b), (4)(a) or (b) or (5)(a) or (b),
- (d)
an offence against section 111, 112(1)(a) or (b), 117(2), 118 or 146,
- (d1)
a combined alcohol and drug driving offence against s 111A(1), (2) or (3),
- (e)
an offence against section 117(1) of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),
- (f)
an offence against cl 16(1)(b), 17 or 18, of Sch 3,
- (g)
an offence of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any crime or offence referred to in paragraph (a)–(f),
- (h)
any other crime or offence, that, at the time it was committed, was a major offence for the purposes of this Act, the Road Transport (General) Act 2005, the Road Transport (General) Act 1999 or the Traffic Act 1909.
Disqualifications
Under s 204(1) a court that convicts a person of an offence against the road transport legislation may, at the time of conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies. Section 204 is subject to any provisions for the imposition of minimum or mandatory disqualifications under the Act: s 204(3A). In determining a disqualification period, the court is to consider whether or not to vary an automatic disqualification period in accordance with the relevant provisions. Not doing so is a failure to exercise jurisdiction: Pearce v R [2022] NSWCCA 68 at [56]–[57] in respect of s 205(3)(d)(ii).
Automatic disqualifications for prescribed concentration of alcohol (“PCA”) and other major driving offences are provided for in s 205.
Section 205A sets out the disqualification periods for particular offences of driving while disqualified, cancelled or suspended, or unlicensed driving in ss 53 and 54 including for disqualified driving offences arising from the non-payment of fines. None of these are “major offences” under the Act.
Mandatory disqualifications for speeding offences are dealt with in the Road Rules 2014 including offences involving speeds of more than 45 kms and 30 kms per hour over the limit: r 10-2(3), (5).
A second or later consecutive disqualification period is brought forward if an earlier disqualification period is annulled, quashed, set aside or varied so that there is no hiatus period: s 206.
Where a driver licence has been suspended, the court is required to take into account the period of suspension when deciding the period of disqualification: s 206B(2); see Police suspension of driver licence — ss 224 and 206B, below.
A disqualification to hold a driver licence in another Australian jurisdiction operates as a disqualification in NSW: s 207(2).
A disqualification period commences on the date of conviction unless the court orders a later date: s 207A.
- Note:
-
This means disqualification periods for a number of offences are not cumulative unless ordered by the court. The Second Reading Speech for the Road Transport Amendment (Driver Licence Disqualification) Act 2017 which introduced this amendment provides that this will “provide for multiple disqualifications … to operate concurrently … unless otherwise ordered”.
Disqualification for certain offences where sentence of full-time imprisonment imposed
Section 206A applies to an offender who is disqualified from holding a driver licence and is sentenced to full-time imprisonment for:
-
a major offence
-
a road racing offence under ss 115 or 116(2).
Under s 206A, unless the court orders otherwise, when an offender is sentenced to imprisonment for a “major disqualification offence” the relevant period of licence disqualification (whether an automatic disqualification period or some other disqualification period ordered by the court) is extended by the period of imprisonment served for that offence after the commencement of the disqualification, so that in effect the offender is subject to the period of licence disqualification upon release. If a “major disqualification offence” is one of a number of offences dealt with by imposing an aggregate sentence, the sentence for the purpose of determining the period by which the disqualification is extended is the aggregate sentence: Gray v R [2018] NSWCCA 39 at [43]–[44].
The section operates automatically. Accordingly there is no need to pronounce a commencement date for the disqualification period.
Police suspension of driver licence — ss 224 and 206B
Where a notice of suspension by police has issued under s 224, the court must take into account the period of suspension when deciding whether to make any order under s 206B(2). Section s 206B(4) provides that the period of suspension together with the period of disqualification can be taken together to satisfy all or part of any mandatory minimum period of disqualification required to be imposed on conviction. Therefore, when varying an automatic disqualification period, the period of suspension must be counted towards any disqualification imposed: Pearce v R, above, at [55]; see also s 206B(2), (4).
Also see Road Rules 2014, r 10-2(4), (5A) for taking a suspension into account when imposing a disqualification for speeding offences >30kms/hr and >45kms/hr.
Appeal to Local Court against suspension of driver’s licence by police officer
Section 224 provides that a police officer may suspend immediately, or within 48 hours, the driver’s licence of a defendant charged with specified offences.
The driver may appeal to the Local Court: ss 266, 267. However, lodging an appeal against such a notice does not stay the suspension: s 63(2A) Crimes (Appeal and Review) Act 2001. The Local Court may hear and determine the appeal and may vary or revoke the suspension. Section 268(5) provides that in determining such an appeal, the Local Court is not to vary or set aside such a suspension unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension. The court is not, for the purposes of any such appeal, to take into account the circumstances of the offence with which the driver is charged.
- Note:
-
Section 207(3) requires the disqualified person to surrender his/her licence to the court if in his/her immediate possession, or to Transport for NSW as soon as practicable. The court should direct the surrender, or notify the defendant of his/her obligation. It should also be made clear to him/her that a new licence must be applied for before he/she drives again at the expiry of the disqualification period as the disqualification operates to cancel permanently any driver licence held by the person.
Limitations on use of s 10 Crimes (Sentencing Procedure) Act 1999 — s 203
Section 10 Crimes (Sentencing Procedure) Act 1999 is not available to a defendant for an “applicable offence” if, at the time of or during the 5 years before the court’s determination, a previous s 10 has been applied in relation to another “applicable offence”. Applicable offences are set out in s 203(2) and include:
-
certain drink/drug driving offences
-
furious, reckless or menacing driving (s 117(2) or s 118)
-
offences of failing to stop and assist (s 146 or s 52AB Crimes Act 1900)
-
an offence of negligent driving causing death or GBH.
Multiple major offence convictions
Section 205(4) — where multiple major offences arise out of the one incident, to determine whether the conviction is a first or second conviction, the other conviction(s) shall be disregarded and the maximum automatic disqualification in respect of all offences shall be 3 years for a first conviction and 5 years for a second conviction. The court may determine a longer period or a shorter period of not less than 12 months and 2 years respectively.
Section 205(4A) — where multiple major offences arise out of the one incident and include a combined alcohol and drug driving offence under s 111A(1), (2) or (3), to determine whether the conviction is a first or second conviction, the other conviction(s) shall be disregarded and the maximum automatic disqualification in respect of all offences shall be 4 years for a first conviction and 6 years for a second conviction. The court may determine a longer period or a shorter period of not less than 18 months and 3 years respectively.
In making this determination, alcohol or other drug related driving offences dealt with by way of penalty notice are included: s 9(2A).
Habitual traffic offender may apply to have declaration quashed
Part 7.4, Div 3 concerning habitual traffic offenders was repealed with effect from 28 October 2017.
However, a person declared to be a habitual traffic offender under s 217 (rep) before the scheme was abolished may apply to have that declaration quashed. Section 220 as in force immediately before 28 October 2017 continues to apply (set out below). The Local Court may determine the application even if it was not the court that convicted the person of the relevant offence: Sch 4, cl 65(2A).
A declaration that a person is an habitual traffic offender may be quashed if the court determines the disqualification imposed is a disproportionate and unjust consequence having regard to the person’s total driving record and the special circumstances of the case: s 220(1).
If the declaration is quashed, the court must give reasons: s 220(2).
Removal of licence disqualifications
An eligible person subject to a licence disqualification may apply to the Local Court to have their driver licence disqualification removed provided they have been offence free for the specified period (s 221B) (and are otherwise eligible):
| Convictions for (see s 221A) | Offence free period |
|---|---|
|
Major offence (defined in s 4) Exceed speed >30kmh Road racing offence ss 115(1), 116(2) Negligent, furious or reckless driving s 117(2), or Any other offence prescribed by the rules |
4 years |
| Habitual offender | 2 years |
| All other cases | 2 years |
The “offence-free period”
The “offence-free period” is calculated by reference to the date a relevant offence was committed, as opposed to the date of conviction: s 221A(2).
Persons convicted of certain offences ineligible to apply
Certain persons are ineligible to apply for the removal of licence disqualifications, including if at any time they have been convicted of a “never-eligible offence” under the Act or the Crimes Act 1900 as defined in s 221A: see s 221D.
Content of application
The application must include:
-
an up-to-date statement of the applicant’s driving record
-
particulars of any pending proceedings against the applicant for an alleged driving offence, and
-
any relevant matter the applicant requests the court to take into account in determining the application: s 221C(2).
To ensure the accuracy and currency of information available to determine the application, the court may require reports be provided in relation to the applicant or that earlier reports be updated including:
-
police reports with respect to the applicant’s criminal record
-
reports from RMS with respect to the applicant’s driving record, and
-
reports from the Commissioner of Fines Administration with respect to any penalty notices that are pending proceedings against the applicant for alleged driving offences: s 221C(3).
- Note:
-
There will be no contradictor in these applications.
Determining an application
Section 221B(1) provides that the court may order the removal of licence disqualifications if the following 2 conditions are met:
- (a)
-
the disqualified person has not been convicted of any driving offence during the relevant offence-free period: s 221B(1)(a), and
- (b)
-
the court considers it appropriate to do so: s 221B(1)(a).
In addition, given the limitations provided by s 221D, before exercising the s 221B power, the court must be satisfied the applicant was entitled to make the application: Roads and Maritime Services v Farrell [2019] NSWSC 552 at [14].
When considering whether it is appropriate to grant such an application the following must be taken into account: see s 221B(2):
- (a)
-
public safety
- (b)
-
the applicant’s driving record (including the record before the relevant offence-free period and the record for driving offences and other offences under the road transport legislation and for pending proceedings for alleged driving offences) [reports from police, RMS and State Revenue should be provided to the court on the first listing date to assist with establishing this requirement: s 221C(2)]
- (c)
-
whether the applicant drove or was in a position to drive a vehicle during the relevant offence-free period
- (d)
-
any relevant conduct of the applicant subsequent to the licence disqualifications
- (e)
-
the nature of the offence or offences giving rise to the licence disqualifications
- (f)
-
any other relevant circumstances (including, without limitation, the impact of the licence disqualifications on the applicant’s capacity to carry out family or carer responsibilities or on the applicant’s capacity to travel for the purposes of employment, business, education or training, the applicant’s health and finances and the availability of alternative forms of transport)
- (g)
-
any other matter prescribed by the statutory rules.
Effect of order granting application
If the application is granted all disqualifications cease to have effect as at the date of making the order, or on a later date as specified by the court: s 221B(4).
- Note:
-
the court must be satisfied the information relating to the applicant’s driving record is as current as practicable: s 221B(3).
- Note:
-
magistrates must explain the effect of the order and, in particular, that the applicant must apply for a new driver’s licence before driving: s 221B(5).
Requirement for reasons
The court must provide reasons for the orders made. The reasons may be short but must:
-
explain the basis for satisfaction that the court has jurisdiction to entertain the application, given what is provided in s 221D,
-
reveal that the mandatory considerations under s 221B(2) have been considered in light of the evidence, and
-
explain why the court’s discretion to grant (or not grant) the application has been exercised in the circumstances: Roads and Maritime Services v Farrell [2019] NSWSC 552 at [32]–[33].
Other provisions relevant to conduct of applications
The court may adjourn proceedings so the applicant may participate in a driver education course or other program the court considers appropriate: s 221B(7).
An applicant for the removal of a licence disqualification may apply for the annulment of the dismissal of the application if they were not in attendance when the application was dismissed: s 221B(9). The procedure to be followed when an annulment application is made in these circumstances is set out in s 221B(10).
The procedure to be followed for rehearing an application where the court is advised by Transport for NSW that a person may have committed an offence during the relevant offence-free period, or a “never-eligible offence”, which would have precluded the making of an order removing licence disqualifications is set out in ss 221E and 221F.
Compensation for damages and other losses and loss of time
Sections 227–228 provide for the making of such orders.
Guideline judgment on high range PCA
A summary of this judgment, delivered by the Court of Criminal Appeal on 8 September 2004 appears toward the end of this chapter: Application by the Attorney General Under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305.
Mandatory alcohol interlock program for high range drink drivers, second offence drink drivers and certain other specified offences
Part 7.4 Div 2 Road Transport Act provides for a mandatory alcohol interlock program for offenders convicted of certain alcohol-related offences. When Pt 7.4 was introduced on 1 February 2015, s 203 relating to limitations on the application of s 10 Crimes (Sentencing Procedure) Act 1999 to certain offences under the Road Transport Act 2013 was not amended.
Section 210: A court that convicts a person of a “mandatory interlock offence” must, at the time of conviction, make one of the following orders in respect of the person:
- (a)
-
a mandatory interlock order
- (b)
-
an interlock exemption order.
Section 209 contains all definitions relevant to Pt 7.4 Div 2. In particular, a “mandatory interlock offence” is an offence against s 110(1)–(3) (driving with the novice, special or low range prescribed concentration of alcohol), that is a second or subsequent offence by the offender for any other alcohol-related major offence. Further, s 209 defines first, second and subsequent offences of high and middle range drink driving (s 110(4) and (5)), combined alcohol and drug driving (s 111A(1), (2) and (3)), driving under the influence of alcohol or any other drug (s 112), and refusing breath analysis or to provide samples (cll 16 and 17, Sch 3), as mandatory interlock offences.
Mandatory interlock orders
Section 211: A “mandatory interlock order” disqualifies a person from holding a driver licence for the minimum disqualification period for “that kind of mandatory interlock offence”, or any longer period of disqualification (not exceeding the maximum disqualification for that kind of offence — see PCA, other alcohol related offences and mandatory interlock order disqualification table, below) specified by the court, and disqualifies the person from holding a driver licence during the period of 5 years commencing on the day of the conviction unless the person has first held an “interlock driver licence” for a period equivalent to the “minimum interlock period”.
An “interlock driver licence” means a conditional licence that restricts the holder of the licence to driving a motor vehicle fitted with an approved interlock device: s 209. The interlock period means the period starting on the day the person is issued with an interlock driver licence and ending at the expiry of the interlock period applicable to the person (s 215(1) — see s 211 and PCA, other alcohol related offences and mandatory interlock order disqualification table, below). Section 211(4): A mandatory interlock order ceases to have effect if, before the person completes the applicable interlock period, another mandatory interlock order is made in respect of the person.
Interlock exemption orders
Such an order is available but only in very limited circumstances. If such an order is made, disqualification will be mandatory.
Section 212(1), (2):* An “interlock exemption order” exempts an offender from the operation of s 211 but the relevant disqualification period set out in s 205 will apply.
- *
-
The note following s 212(2) suggests that only the relevant “automatic” disqualification period will apply, however the wording of the sub-section still appears to permit a court to reduce such a disqualification period in accordance with the normal operation of s 205. See also s 206B which permits a licence suspension period to be taken into account for the purposes of determining a disqualification under s 211.
Section 212(3): A court may make an interlock exemption order only if the offender proves to the court’s satisfaction:
- (a)
-
that the offender does not have access to a vehicle in which to install an interlock device, or
- (b)
-
that the offender has a medical condition diagnosed by a registered medical practitioner that prevents the offender from providing a sufficient breath sample to operate an approved interlock device and it is not reasonably practicable for an interlock device to be modified to enable the offender to operate the device, or
- (c)
-
if the offender is convicted of a first offence against ss 110(4)(a), (b), (c) or 111A(2), making the mandatory interlock order would cause severe hardship to the offender and making an interlock exemption order is more appropriate in all the circumstances.
Section 212(4): A person has “access” to a vehicle if the person is the registered operator, owner or part owner of the vehicle or shares the use of the vehicle with the registered operator, owner or part owner of the vehicle, and it is reasonable in the circumstances to install an interlock device in the vehicle.
Section 212(5): An interlock exemption order must not be made (except in relation to a conviction for an offence against ss 110(4)(a), (b), (c) or 111A(2) that is a first offence) merely because an offender:
- (a)
-
cannot afford the cost of installing or maintaining an approved interlock device (s 48 provides for financial assistance in certain cases), or
- (b)
-
will be prevented from driving a vehicle in the course of his or her employment if the interlock order is made, or
- (c)
-
has access to a vehicle but the registered operator of the vehicle refuses to consent to the installation of an interlock device.
Section 214: A person convicted and disqualified for a prescribed dangerous driving offence pursuant to s 52A Crimes Act 1900 while under the influence of intoxicating liquor or with the prescribed concentration of alcohol present in the accused’s breath or blood may be disqualified by the court from holding a driver licence unless the person has first held an interlock driver licence for a period specified by the court of not less than 36 months.
Section 215(1): Participation in an interlock program commences on the date on which a person is issued with an interlock driver licence.
Section 215(2): A person ceases to participate in an interlock program if convicted of a major offence during the interlock period, or if the person ceases to hold and an interlock driver licence before the expiry of the interlock period or, if and when the person is issued with a licence without an interlock condition.
Section 215A(4): Any period during which a person holds an interlock driver license in another jurisdiction is to be taken into account in determining whether the person has completed the interlock period applicable under the NSW Act.
[2-020] Major offences
“Major offences” are defined in s 4 (set out above).
Any period of disqualification commences on the date of conviction but the court may order that the disqualification begin on a later date: s 207A(1).
Note s 206A which addresses the effect on a licence disqualification when a person is also sentenced to a term of imprisonment.
Other major drug-related offences
|
Major offences |
First offence [s 205] |
Second offence [Previously convicted of offence or any major offence or dealt with by penalty notice for an alcohol or other drug related driving offence within 5 yrs] |
||||||
|---|---|---|---|---|---|---|---|---|
|
Fine |
Impris |
Disqualification |
Fine |
Impris |
Disqualification |
|||
|
Auto |
Min |
Auto |
Min |
|||||
|
Presence of prescribed illicit drug in oral fluid/ blood/urine: s 111(1) |
$2200 |
Nil |
6 mths |
3 mths |
$3300 |
Nil |
12 mths |
6 mths |
|
Presence morphine/cocaine in blood/urine: s 111(3) |
$2200 |
Nil |
6 mths |
3 mths |
$3300 |
Nil |
12 mths |
6 mths |
|
Arrested person refuse to supply blood sample: Sch 3 cl 17(1)(a) |
$3300 |
Nil |
3 yrs |
6 mths |
$5500 |
18 mths |
5 yrs |
12 mths |
|
Arrested person refuse to provide an oral fluid sample: Sch 3 cl 17(1)(b) |
$3300 |
Nil |
3 yrs |
6 mths |
$5500 |
18 mths |
5 yrs |
12 mths |
|
Alter, etc, amount of drug before oral fluid test: Sch 3 cl 18(1)(c) |
$3300 |
Nil |
3 yrs |
6 mths |
$5500 |
Nil |
5 yrs |
12 mths |
|
Driver/supervising driver involved in fatal accident fail to supply blood/urine sample: Sch 3 cl 17(2) |
$3300 |
18 mths |
3 yrs |
6 mths |
$5500 |
2 yrs |
5 yrs |
12 mths |
|
Fail on demand to provide sample of blood/urine, or alter the result of drug in blood/urine before test: Sch 3 cl 17(1)(c) |
$3300 |
18 mths |
3 yrs |
6 mths |
$5500 |
2 yrs |
5 yrs |
12 mths |
Other serious driving offences
|
Major offences |
First Offence [s 205] |
Second Offence [Previously convicted of this offence or any major offence or dealt with by penalty notice for an alcohol or other drug related driving offence within 5 yrs] |
||||||
|---|---|---|---|---|---|---|---|---|
|
Fine |
Impris |
Disqualification |
Fine |
Impris |
Disqualification |
|||
|
Auto |
Min |
Auto |
Min |
|||||
|
Negligent driving occasioning death: s 117(1)(a) |
$3300 |
18 mths |
3 yrs |
12 mths |
$5500 |
2 yrs |
5 yrs |
2 yrs |
|
s 117(1)(a) |
s 205(2)(d) |
s 117(1)(a) |
s 205(3)(d) |
|||||
|
Negligent driving occasioning grievous bodily harm: s 117(1)(b) |
$2200 |
9 mths |
3 yrs |
12 mths |
$3300 |
12 mths |
5 yrs |
2 yrs |
|
s 117(1)(b) |
s 205(2)(d) |
s 117(1)(b) |
s 205(3)(d) |
|||||
|
Driving furiously, recklessly or speed/manner dangerous: s 117(2) |
$2200 |
9 mths |
3 yrs |
12 mths |
$3300 |
12 mths |
5 yrs |
2 yrs |
|
s 117(2) |
s 205(2)(d) |
s 117(2) |
s 205(3)(d) |
|||||
|
Menacing driving with intent: s 118(1) |
$3300 |
18 mths |
3 yrs |
12 mths |
$5500 |
2 yrs |
5 yrs |
2 yrs |
|
s 118(1) |
s 205(2)(d) |
s 118(1) |
s 205(3)(d) |
|||||
|
Menacing driving possibility of menace: s 118(2) |
$2200 |
12 mths |
3 yrs |
12 mths |
$3300 |
18 mths |
5 yrs |
2 yrs |
|
s 118(2) |
s 205(2)(d) |
s 118(2) |
s 205(3)(d) |
|||||
|
Failure to stop and render assistance: s 146 |
$3300 |
18 mths |
3 yrs |
12 mths |
$5500 |
2 yrs |
5 yrs |
2 yrs |
|
s 146 |
s 205(2)(d) |
s 146 |
s 205(3)(d) |
|||||
|
Aid/abet/accessory before the fact to major offence: s 4 definition of Major offence |
Liable to same penalty as principal offender |
|||||||
[2-040] Other offences
Disqualified, suspended or cancelled driving license — Road Transport Act 2013
|
First offence |
Second offence [Previously convicted of an offence under ss 53(3), 54 or any major offence or dealt with by penalty notice for an alcohol or other drug related driving offence, within 5 yrs: s 9(5)] |
|||||||
|---|---|---|---|---|---|---|---|---|
|
Fine |
Imprisonment |
Automatic disqualification* |
Fine |
Imprisonment |
Automatic disqualification** |
|||
| Auto | Min | Auto | Min | |||||
| Disqualified: s 54(1) | $3300 | 6 mths | 6 mths | 3 mths | $5500 | 12 mths | 12 mths | 6 mths |
| Suspended: s 54(3) | $3300 | 6 mths | 6 mths | 3 mths | $5500 | 12 mths | 12 mths | 6 mths |
| Cancelled: s 54(4) | $3300 | 6 mths | 6 mths | 3 mths | $5500 | 12 mths | 12 mths | 6 mths |
| Suspended/cancelled under s 66 Fines Act: s 54(5) | $3300 | Nil | 3 mths | 1 mth | $5500 | 6 mths | 12 mths | 3 mths |
| Unlicensed: s 53(1) | $2200 | Nil | ** | ** | No provision | No provision |
** | ** |
| Never licenced:*** s 53(3) | $2200 | Nil | ** | ** | $3300 | 6 mths | 12 mths | 3 mths |
- *
-
Without any specific order, the period of disqualification commences on the date of conviction: s 207A.
- **
-
General disqualification provisions apply: s 204(1). Disqualification in another Australian jurisdiction operates as disqualification in NSW: s 207(2).
- ***
-
No licence of any kind in Australia for 5 years preceding conviction: s 53(5).
- Note:
-
There is no mandatory disqualification (only discretionary) for a second offence of driving without a licence if the driver has held a licence within the past five years: see s 53(1).
Offences against statutory rules; unlawfully obtain/use licence — Road Transport Act 2013
| SECTION | DESCRIPTION | PENALTY (MAX) |
|---|---|---|
| 26(1)–(3) | The statutory rules may create offences and provide for disqualifications up to 6 mths | 50 pu |
| 49 | Obtain/renew/possess driver licence by false statements | 20 pu |
| 50 | Unlawful possession/alter/produce altered/forged licence | 20 pu |
| 52(2) | Failure to provide a specimen of signature | 20 pu |
| 53(1) | Drive without being licensed for purpose, employ/permit any person not licensed to drive | 20 pu |
Speeding offences — Road Rules 2014
Currency
As amended to Road Transport Legislation Amendment (Electric Skateboards and Bicycles) Regulation 2023 (No 74). Commenced 24 February 2023. Current to 24 February 2023.
|
Speeding* |
Fine |
Mandatory disqualification |
|---|---|---|
|
exceed speed by more than 45 km/h |
Heavy motor vehicle/coach 50 pu; Other 30 pu |
6 mths min: r 10–2(3)** |
|
exceed speed by more than 30 km/h |
20 pu |
3 mths min: r 10–2(5)^ |
|
exceed speed by 30 km/h or less |
20 pu |
no automatic disqualification |
- *
-
Rule 10–2(7) and (8) provides for alternative verdicts if the court is satisfied that the speed falls within a lesser range than that charged.
- **
-
Rule 10–2(3)(b), (4) provides for the imposition of a period of less than 6 months if the driver had been suspended for this offence and the total period of suspension and disqualification is not less than 6 months.
- ^
-
Rule 10–2(5)(b), (5A) provides for the imposition of a period of less than 3 months if the driver had been suspended for this offence and the total period of suspension and disqualification is not less than 3 months.
Testing for alcohol and drug use — Sch 3 offences — Road Transport Act
| CLAUSE | DESCRIPTION | PENALTY (MAX) |
|---|---|---|
| 3(4) | Disobey request/signal to stop for breath test | 10 pu |
| 16(a) | Refuse/fail to undergo breath test, oral fluid test or sobriety assessment | 10 pu |
| 16(b) | Refuse/fail to undergo breath analysis | 1st off: 30 pu and/or 18 mths; 2nd off: 50 pu and/or 2 yrs |
| 19 | Hinder/obstruct police officer in administering oral fluid test or sample taker in attempting to take a sample of blood or urine | 20 pu |
| 20 | Authorised sampler must not refuse or fail to take blood or urine sample as required | 20 pu |
| 29 | Authorised sampler must comply with the provisions of Sch 3 | 20 pu |
| 39 | Accident research which identifies blood or saliva providers | 20 pu |
Street racing, negligent driving, unsafe loads — miscellaneous offences — Road Transport Act
| SECTION | DESCRIPTION | PENALTY (MAX) |
|---|---|---|
| 115 | Organise/promote/take part in races etc without permit | 1st off 30 pu + 12 mths automatic disq 2nd off 30 pu and/or 9 mths + 12 mths automatic disq |
| 115(3) | Take part in race and not comply with conditions | 20 pu + 12 mths automatic disq |
| 116(1) | Operate motor vehicle on road or road related area to cause sustained loss of traction by one or more of the driving wheels | 10 pu |
| 116(2) | Operate motor vehicle contrary to s 41(1) knowing that petrol, oil, etc has been placed on surface of the road or road related area or commit aggravated levels of subs (1) off | 1st off 30 pu + 12 mths automatic disq 2nd off 30 pu and/or 9 mths + 12 mths automatic disq |
| 116(4) | Operate motor vehicle contrary to prescribed competitive activity | 5 pu |
| 117(1)(c) | Negligent driving (for driving not occasioning death or grievous bodily harm) | 10 pu |
| 123(1) | Install/display/interfere with/alter/remove prescribed traffic control device w/o authority | 20 pu |
| 123(2) | Install/display sign resembling prescribed sign w/o authority | 20 pu |
| 124(2) | Fail to remove contravening sign | 20 pu |
| 145(1) | Unsafely loaded vehicle causing death/injury/damage — liability driver | Corp 100 pu; Indiv 50 pu and/or 12 mths |
| 145(2) | Unsafely loaded vehicle causing death/injury/damage — liability responsible person | Corp 100 pu; Indiv 50 pu and/or 12 mths |
| 145(3) | Unsafely loaded vehicle causing death/injury/damage — liability director/manager of responsible person | Corp: 100 pu; Indiv 50 pu and/or 12 mths |
| 151(2) | Vehicles not fitted with monitoring devices, devices not in working order | 50 pu |
| 152(2) | Vehicle movement record not preserved | 50 pu |
| 153(3) | Vehicle movement record not carried by driver | 50 pu |
| 154(6) |
Hinder/obstruct inspection of monitoring devices, etc by police/not comply with requirement |
50 pu |
| 155(4) | Hinder/obstruct seizure of monitoring devices, etc by police | 50 pu |
| 156(4) | Not comply with notice to produce vehicle movement records | 50 pu |
| 157(1) | Tamper with monitoring device | 50 pu |
| 157(2) | Falsify vehicle movement record | 50 pu |
| 162(1) | Vehicle not speed limiter compliant when driven on road, etc | Corp 150 pu; Indiv 30 pu |
| 188(2) | Failure to nominate driver of vehicle committing camera related offence | Corp 200 pu; Indiv 100 pu |
Vehicle registration — Road Transport Act
| SECTION | DESCRIPTION | PENALTY (MAX) |
|---|---|---|
| 68(1)* | Use unregistered registrable vehicle | 20 pu |
| 69(1), (2) | Obtain/renew registration or unregistered vehicle permit by fraud, etc | Corp 100 pu; Indiv 20 pu |
| 71 | Person other than manufacturer commit offence relating to identification numbers of engines and other parts of motor vehicles/trailers | 20 pu and/or 6 mths |
| 77 | Use registrable vehicles contrary to conditions or prohibitions | 20 pu |
- *
-
The offences of “Use uninsured motor vehicle on road” under s 2.1(1) Motor Accident Injuries Act 2017 and “Unregistered vehicles and vehicles upon which tax has not been paid” under s 9 Motor Vehicles Taxation Act 1988 often arise with this offence and they carry maximum penalties of 50 pu and 10 pu respectively.
Law Enforcement (Powers and Responsibilities) Act 2002 (No 103)
Currency
As amended to Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (No 47). Commenced 1 February 2023. Current to 1 February 2023.
- Note:
-
The Act is dealt with in more detail under a separate entry in Specific Penalties and Orders.
| SECTION | DESCRIPTION | PENALTY (MAX) |
|---|---|---|
| 15(1) | Driver fail/refuse to disclose identity | 50 pu and/or 12 mths |
| 15(2) | Driver not disclose identity any driver/passenger | 50 pu and/or 12 mths |
| 16(1) | Passenger fail/refuse to disclose identity | 50 pu and/or 12 mths |
| 16(2) | Passenger not disclose driver’s/other passenger’s identity | 50 pu and/or 12 mths |
| 17(1) | Owner not disclose identity of driver/passenger | 50 pu and/or 12 mths |
| 18(a) | Give false name of driver/passenger | 50 pu and/or 12 mths |
| 18(b) | Give false/misleading address information for driver/passenger | 50 pu and/or 12 mths |
| 39(a) | Not stop vehicle when directed to do so | 50 pu and/or 12 mths |
| 39(b) | Fail/refuse to comply with direction given by police officer | 50 pu and/or 12 mths |
Crimes Act 1900 (No 40)
Currency
As amended to Statute Law (Miscellaneous Provisions) Act 2023 (No 7). Commenced 14 July 2023. Current to 14 July 2023.
Serious driving offences
- Note:
-
Where applicable, the maximum penalty for an offence dealt with on indictment is indicated in square brackets in the Penalty (Max) column.
For the definition of “major offence”, see s 4.
For licence disqualifications for major offences, see s 205.
| Section | Description | Penalty | Disqualification | Table | ||||
|---|---|---|---|---|---|---|---|---|
| First offence | Second offence* | |||||||
| Min | Auto | Min | Auto | |||||
| 51A | Predatory driving — while in pursuit of or travelling near another vehicle, cause or threaten impact intending to cause actual bodily harm | 100 pu or 2 yrs
[5 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 51B | Drive from police pursuit, not stop and drive recklessly/in manner dangerous |
1st off 2 yrs [3 yrs] 2nd off 2 yrs [5 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 2 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 52A(3), 4 | Dangerous driving occasioning gbh | 100 pu or 2 yrs
[7 yrs; with aggravation 11 years] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 52AB(1) | Driver of car knowingly involved in impact causing death fail to stop and give assistance necessary or within power of driver | 100 pu or 2 yrs
[5 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 52AB(2) | Driver of car knowingly involved in impact causing gbh fail to stop and give assistance necessary or within power of driver | 100 pu or 2 yrs
[7 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 53 | Injuries caused by furious riding or driving or other misconduct | 100 pu or 2 yrs
[2 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
| 54 | Cause gbh by unlawful act or omission | 100 pu or 2 yrs
[2 yrs] |
12 mths | 3 yrs | 2 yrs | 5 yrs | 1 | |
| drug/alcohol^ | ||||||||
| 18 mths | 4 yrs | 3 yrs | 6 yrs | |||||
- *
-
Previously convicted of, or dealt with by penalty notice for, this offence or any major offence within 5 yrs: s 205(3)(d).
- ^
-
Licence disqualification where multiple offences including combined alcohol and drug driving offence pursuant to s 111A(1), (2) or (3).
Heavy Vehicle (Adoption of National Law) Act 2013 (No 42)
Currency
As amended to Heavy Vehicle Legislation Amendment (National Regulator) Act 2021 (No 9). Commenced 1 August 2022. Current to 24 August 2022.
This Act makes provision for a national scheme for facilitating and regulating the use of heavy vehicles on roads. Section 4 applies as a law of NSW the Heavy Vehicle National Law, as amended from time to time, set out in the schedule to the Queensland Heavy Vehicle National Law Act 2012. The contents of that schedule are to be referred to as the Heavy Vehicle National Law (NSW) and apply as if an Act of the NSW Parliament. The National Heavy Vehicle Regulator is responsible for the conduct of prosecutions relating to heavy vehicles under the Heavy Vehicle National Law. The Heavy Vehicle National Law — Guide for judicial officers and legal practitioners, updated to April 2023, is available on JIRS.
Jurisdiction
The Local Court is declared by s 14 to be the relevant tribunal or court for NSW. Penalties in the Heavy Vehicle National Law (NSW) (hereinafter referred to as the “National Law”) are expressed in monetary maximum amounts. Section 596 of the National Law states that where a maximum fine appears, it shall only be taken to be the maximum fine for an individual. The maximum fine for a “body corporate” found guilty of the offence will be 5 times the maximum fine for an individual.
Section 27F prohibits the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 if that section has been applied to an applicable heavy vehicle offence during the period of 5 years immediately before the court’s determination.
Each of the following is an applicable heavy vehicle offence:
- (a)
-
an offence against the Heavy Vehicle National Law (NSW) that involves a severe risk breach of a mass, dimension or load restraint requirement under that Law
- (b)
-
…
- (c)
-
an offence against Ch 6 (Vehicle operations—driver fatigue) of the Heavy Vehicle National Law (NSW)
- (d)
-
an offence referred to in s 203(2)(e) or Road Transport Act 2013 (as in force immediately before its amendment by the Heavy Vehicle (Adoption of National Law) Amendment Act 2013) or a former corresponding offence
- (e)
-
an offence of aiding, abetting, counselling or procuring the commission of an offence referred to in paragraph (a), (b), (c) or (d).
Heavy Vehicle National Law (NSW) (No 42a)
Currency
As amended to Heavy Vehicle National Law and Other Legislation Amendment Act 2019 (No 29) of Queensland. Commenced 28 February 2019. Current to 17 November 2021.
Jurisdiction
Section 707: Proceedings for offences against the Heavy Vehicle National Law are to be dealt with summarily before a court of summary jurisdiction and must be commenced either within 2 years of the commission of the offence or within 1 year after the offence comes to the complainant’s knowledge (but within 3 years after the commission of the offence).
Penalties court may impose
Section 593: Courts may impose any one or more of the penalties in Pt 10(3). The court must take into account the “combined effects” of the penalties imposed.
Section 594: In deciding sanctions, including the level of fine, mass, dimension or loading requirement matters the court is required to consider risks of accelerated road wear, damage to road infrastructure, increased traffic congestion, diminished public amenity and unfair commercial advantage.
Section 597: Commercial benefits penalty order — an amount, as a fine, not exceeding 3 times the court’s estimate of the gross commercial benefit receivable from the commission of the offence.
Section 598: Power to cancel or suspend vehicle registration.
Section 600: Supervisory intervention order — requiring the convicted person, at their own expense, and for a stated period of not more than 1 year to do things the court considers will improve compliance with the law, or provide reports etc.
Section 607: Prohibition order — preventing the convicted person, for not more than one year, from having a stated role or responsibility associated with road transport.
Section 611: Compensation order — an amount the court considers appropriate for damage to road infrastructure.
Categories of breaches
The National Law categorises breach as minor risk breaches, substantial risk breaches, severe risk breaches or in relation to maximum work or minimum rest standards, critical risk breaches. Penalties are escalated accordingly.
Defences
Statutory defences are set out in Div 3 of Pt 10.4.
Offences by corporations or other bodies
Note: Section 596 states that where a maximum fine appears, it shall only be taken to be the maximum fine for an individual. The maximum fine for a “body corporate” found guilty of the offence will be 5 times the maximum fine for an individual. (Note definition of “operator” s 5) Monetary penalties are not expressed in penalty units.
The Heavy Vehicle National Law (NSW) is a complex and detailed code containing 759 clauses and a large number of specific strict liability offences. It is not practical to reproduce all penalty provisions in this chapter. What follows is designed to provide an indication of the typical structure of penalties with particular regard to those matters that may be heard in NSW Local Courts. The Heavy Vehicle National Law: Schedule of Infringement Penalties and Demerit Points 23/24 FY can be accessed at https://www.nhvr.gov.au/files/media/document/262/202306-1363-hvnl-penalties-and-infringements.pdf.
| SECTION | DESCRIPTION |
PENALTY (MAX) (Body Corporate penalties |
|---|---|---|
| 26F | Fail to comply with s 26C — reckless conduct exposing an individual to risk of death/serious injury/illness (category 1) | Indiv 5 yrs imp and/or $377,639; Corp $3,546,390 |
| 26G | Fail to comply with s 26C duty — expose individual/class of individuals to risk of death/serious injury/illness (category 2) | Indiv $189,321; Corp 1,773,210 |
| 26H | Fail to comply with s 26C duty (category 3) | Indiv $59,108; Corp $591,080 |
| 81 | Contravene condition of vehicle standards exemption | $5,020 |
| 85 | Modifying heavy vehicle requires approval | $3,770 |
| 91 | Tampering with heavy vehicle emission control system | $12,600 |
| 93 | Tampering with heavy vehicle speed limiter | $12,600 |
| 96 |
A person must not drive a heavy vehicle that, together with its load, does not comply with mass requirements applying to that vehicle:
Plus further $570 for every 1% over a 120% overload but penalty not to exceed |
$5,020 $7,580 $12,600 ($22,790) |
| 111 |
A person must not drive on a road a heavy vehicle that does not, or whose load does not, comply with the loading requirements applying to the vehicle
|
$3,770 $6,310 $12,600 |
| 228 | Duty of driver to avoid driving while fatigued | $7,580 |
| 250 |
Driver work more than maximum work time or rests for less than minimum rest time stated in standard hours
|
$5,020 $7,580 $12,600 $18,940 |
| 293 | Driver of fatigue-regulated heavy vehicle must carry work diary | $7,580 |
| 513(4) | Contravene s 513(1) direction to stop vehicle without reasonable excuse | $7,580 |
| 516(3) | Contravene s 516(1) direction to move vehicle without reasonable excuse | $7,580 |
| 517(4) | Contravene s 517(2) direction to move vehicle to avoid harm | $7,580 |
| 522(5) | Person must not fail to produce a heavy vehicle for inspection | $7,580 |
| 524(5) | Contravene direction to leave heavy vehicle | $7,580 |
| 542 | Contravene notice to rest in Pt 9.3 Div 8 | $12,600 |
Court of Criminal Appeal — guideline judgment
|
Ordinary offence
|
If it is an ordinary offence
|
|
Good reasons include
|
Where good reasons
|
|
Moral culpability
|
Where moral culpability
Second or subsequent offence
|
Traffic offender intervention program
The Criminal Procedure Regulation 2017 (commenced 1 September 2017) provides for the participation by traffic offenders in approved traffic courses: cll 100–103. The program commenced on 28 March 2008 (under the former Criminal Procedure Regulations 2005, cl 19B, Sch 6). The Secretary may approve a course of study or training for all Local Courts or for only such Local Courts as may be specified in the order approving the course: cl 104(3). The Traffic Offender Intervention Program provides details of the approved course providers. Approved traffic courses must comply with specified guidelines.
Under the regulations, the court may, prior to sentencing, refer a traffic offender to participate in the traffic offender intervention program if the offender consents: cl 99(1). A traffic offender is a person who has pleaded guilty to, or has been found guilty of, a traffic offence under the road transport legislation (as defined in s 6 Road Transport Act 2013) before the Local Court and has not been sentenced: cl 99(1)(b).
The objective of the program is to provide a community based road safety educational program for referred traffic offenders:
- (a)
-
to provide offenders with the information and skills necessary to develop positive attitudes to driving and to change driving behaviour, and
- (b)
-
to develop safer driving behaviour in offenders: cl 100.
The Local Court is to have regard to the following matters in determining whether a traffic offender is suitable for participation in the program:
- (a)
-
the extent to which the offender’s character, antecedents, age, health and mental condition would be likely to prevent the offender’s participation in the program or disrupt the conduct of the program
- (b)
-
the nature of the offence committed by the offender
- (c)
-
any extenuating circumstances in which the traffic offence was committed
- (d)
-
the impact of the offence on the community and the victim of the offence (if any)
- (e)
-
the offender’s history of convictions for traffic offences (if any)
- (f)
-
the offender’s previous participation in an approved traffic course (if any),
- (g)
-
any other matters the court considers relevant: cl 99(2).
The court is also to consider:
- (a)
-
whether this is the traffic offender’s first offence
- (b)
-
if it is not the traffic offender’s first offence, the nature and seriousness of any previous offence or offences: cl 99(3).
The approved traffic course provider must provide the court with a report on the extent to which the offender has complied with the requirements of the course at no later than the date fixed by the court for the offender’s re-appearance to finalise the matter: cl 102.