On 28 October 2017, significant new driver disqualification laws came into force in New South Wales. Among the reforms was the abolition of the Habitual Traffic Offender (HTO) scheme.
Under Division 3 (now repealed) of the Road Transport Act 2013, a person convicted of three major traffic offences within a 5-year period could be declared an habitual traffic offender.
Such a declaration meant that a person was disqualified from holding a driver licence for an additional 5 years. This applied to each additional offence and was cumulative, meaning a person could be banned for a very long time.
It was considered that these declarations disproportionately affected the most disadvantaged and vulnerable members of the community.
Furthermore, a 2007 report by the Bureau of Crime Statistic and Research – The deterrent effect of higher fines on recidivism: Driving offences – showed that longer disqualification periods have a negligible effect on recidivist drivers.
The study suggested that lengthy disqualifications may actually increase the incidence of reoffending because they provide no incentive for people to return to lawful driving.
“It will give people a second chance of life if they can demonstrate they have changed their ways,” NSW Minister for Roads Melinda Pavey said at the time.
Importantly, existing disqualifications under an habitual traffic offender declaration remain valid. However, despite the repeal of Division 3, a person can still apply to have a declaration quashed. Schedule 4 of the current legislation provides that:
“…the power of a court under that Division (as in force immediately before its repeal) to quash a declaration of a person as an habitual traffic offender may continue to be exercised by a court despite its repeal.”
People can also apply to the Local Court to have their disqualifications removed (whether they have an HTO declaration or not). The court can invoke this power if:
• The applicant has not been convicted of a driving offence during the relevant offence-free period (being two or four years, depending on the case); and
• The court considers it appropriate to do so.
However, a person cannot apply if they have been convicted of a serious driving offence, such as murder or manslaughter caused by the use of a motor vehicle, or negligent driving causing death or grievous bodily harm.
In determining whether to remove a disqualification, the court must take into account certain matters, such as the safety of the public, the applicant’s driving record, and the nature of the offence or offences giving rise to the licence disqualifications.
Anyone interested in applying to have a declaration quashed or disqualification lifted should seek legal advice.