In October 2017, the NSW Parliament introduced the Road Transport Amendment (Driver Licence Disqualification) Act 2017.

One of the purposes of the Act was to remove the RMS’ power to issue Habitual Traffic Offender Declarations.

What was a Habitual Traffic Offender Declaration?

In short, when a driver committed 3 particular types of driving offences in a 5 year period, they were declared them a Habitual Traffic Offender by the RMS. Drink driving, or drug related traffic offences were the most common offences that lead to a Habitual Traffic Offender Declaration.

A declaration automatically resulted in a 5 year driving disqualification period and appeared on the offender’s criminal record.

But there was some relief, as defendants could apply to the Local Court to have their Habitual Traffic Offender Declaration quashed, if they met certain criteria.

 Why were Habitual Traffic Offender Declarations removed?

If you’re unfortunate enough to have been issued a Habitual Traffic Offender Declaration, you know it was a harsh and onerous punishment.

The rationale behind the new Act was to get rid of the declarations on the basis they were simply not working. Because a driver licence is increasingly important for people’s lives and livelihoods, losing it for 5 years was unsustainable, and the system was not deterring defendants from reoffending.

So, what’s the problem?

Because of some poor drafting in the Act, it was unclear whether Local Courts had retained the authority to quash past Habitual Traffic Offender Declarations. There was no universal opinion in the judiciary and legal fraternity, meaning some defendants were successful in their applications to quash past Habitual Traffic Offender Declarations and others weren’t.

Clearly, this was an unsustainable situation.

How was it fixed?

Once again, the amazing lawyers at the Aboriginal Legal Service stepped in. His Honour Magistrate Allen at the Bathurst Local Court had denied an ALS client, Mr Dixon’s application to quash his Habitual Traffic Offender Declaration, on the basis that he had not filed it before the new Act came into effect.

Mr Dixon, represented by the ALS appealed to the NSW Supreme Court, and was supported in his application by the NSW Attorney General.

Mr Dixon succeeded before His Honour Judge Adamson (Dixon v Attorney General of NSW [2018] NSWSC 1618), who confirmed the Local Court’s power to quash past declarations. In his decision, His Honour referred to the Act’s Second Reading Speech, and good old-fashioned common sense.

The case is a good example of the judiciary acting to clean up the government’s mess. Parliament is now debating the introduction of new legislation which will hopefully further clarify the issue.

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