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Road Transport Amendment Act 2010

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					            Commencement of Road Transport (Driver Licensing) Amendment Act 2010


The Road Transport (Driver Licensing) Amendment Act NSW 2010 (“the Amending Act”) amends the
Road Transport (Driver Licensing) Act NSW 1998.

Background:

There have been very significant and welcome changes to driver licensing laws in New South Wales.
This brief article examines some of those changes and the significance of them for licence holders, as
well as practitioners representing them in traffic matters before the courts.

What is of great achievement is the recognition by the legislature of the ongoing advocacy of so many
bodies in seeking to have the court empowered to strike points off the demerit points register in
circumstances where the court feels it appropriate to deal with a matter before it, pursuant to the
provisions of s.10 of the Crimes (Sentencing Procedure) Act.

Second reading speech
Minister for Roads - Hon David Borger MP:

The focus of the Amendments Act is to increase the number of demerit points which can be accumulated
before unrestricted licence holders are subject to licence suspensions and other sanctions. It is important that
these new reforms do not extend to young people, and thus the amendments will not apply to provisional
licence holders. This Amendment also recognises the increased exposure to enforcement that professional
drivers (eg taxi drivers) incur as a result of their greater use of the road network and the consequences of
licence suspension on their employment and family life.

In the second reading speech, the Minister does not mention any policy reasons behind the application of s.10
of the Crimes (Sentencing Procedure) Act NSW 1999 to registration of demerit points under s14 of the Road
Transport (Driver Licensing) Act.

The Amending Act takes effect on proclamation, namely 31 January 2011.

Summary:

Amongst other things, the Amending Act increases the number of demerit points which can be
accumulated before unrestricted licence holders are subject to licence suspensions and other sanctions,
as follows:

(a) from 12 to 13 points in the case of a driver other than a professional driver,
(b) from 12 to 14 points in the case of a professional driver.

        (Schedule 1 [6] defines a professional driver as a person whose primary work is
        personally driving a motor vehicle on roads in or outside of the State. The regulations
        may also prescribe additional classes of persons as professional drivers and exclude
        any class of persons from being professional drivers)

The new sections 16 (2), 16AA (2), 16A (1) and 17D deal with suspension of licences. Section 16AA
deals with consequences in relation to licence applications. Section 16A refers to licence ineligibility. The
Amending Act has the effect of increasing the threshold of demerit points at which these provisions take
effect. The table setting out periods of licence suspension is also amended to reflect the higher thresholds
in s16 (5) and 16A (4), 16 (8) and 16A (7).

The Amending Act also gives the RTA authority to request information regarding the primary employment
of a licence holder in order to determine whether the licence holder is a professional driver. The relevant
provisions are s18A(1), 18A(2), and 18A (3).

Section 14 deals with the register of demerit points kept by the RTA and how it relates to convictions of
an offence. The section requires the RTA to maintain a register which records the number of demerit
points specified in the Regulations against any person convicted of an offence specified in the national
schedule of demerit points or any other offence specified in the Regulations, or under section 15 (which
applies to offences for which demerit points are incurred).

An important section is s14(3): “Demerit points incurred by a person for an offence for which demerit
points may be incurred under this Act or the regulations are to be recorded in the demerit points register
in respect of the day on which the offence was committed.”
Section 14(3) states that the demerit points must be recorded in respect to the day on which the offence
was committed. The amendments do not change the number of demerit points incurred under each
offence, just the threshold at which sanctions (such as license suspension) will apply to the person
convicted of the offences. This section’s importance is in how long points will accumulate before a licence
holder reaches their threshold; three years starting on the date the offence was committed, rather than
starting from the day on which the matter was finalised in court or the fine was imposed. Thus, whether
the offence was committed before or after the commencement of the amendments, the points will apply
from the date of the offence, regardless if the matter is finalised on a later date.

Most importantly for many practitioners who have been frustrated for years, the Amending Act inserts the
following to s14(3A):

        “To avoid doubt, the Authority is not to record demerit points against a person under this Division
        in respect of an offence if the court makes an order under section 10 of the Crimes (Sentencing
        Procedure) Act 1999 in respect of the offence.”

S. 10 of the Crimes (Sentencing Procedure) Act 1999 allows the court wide discretionary powers as to the
dismissal of charges and conditional discharge of an offender whom the court has found guilty of an
offence. Until the amendments came into effect the court’s decision to apply s.10 have had no effect on
the powers of the RTA to register demerit points, and in the past demerit points were registered even
when the court dismissed a matter under s.10. The addition of s14(3A) in effect extends the court’s
discretion to the demerit points register, allowing for consistency with regard to penalties in situations
where there are compelling reasons to neither record a conviction nor deduct points.

Commencement and transitional provisions:

The Amending Act commences on 31 January 2011.

The Amendment is listed under Schedule 3, allowing regulations of a transitional nature to be enacted.
However there are no Rules/Regulations tabled in relation to this amendment in NSW legislation
databases. The current transitional provisions listed in Schedule 3 relate to previous amendments, and
specific references to demerit points apply only to Provisional license holders (the current amendment is
limited to unrestricted licence holders)

It is important to understand what the position is for someone who commits an offence before 31 January
but who is not sentenced until after that date. The lack of transitional provisions or references to policy in
the second reading speeches on this point makes it unclear precisely what is intended in relation to
offences that occur before the amendments take effect.

It is generally presumed that Amendment Acts are interpreted so as not to operate retrospectively, and
that before the Amendment commences any penalties may be imposed as “if the Act or statutory rule had
not been amended or repealed” (s30(1)b Interpretation Act NSW 1987).

However, beneficial and remedial legislation is to be given “a fair, large and liberal” interpretation (IW v
City of Perth 1997 HCA). A remedial or beneficial statutory provision is one that gives some benefit to a
person and thereby remedies some injustice.

When the Road Transport (Driver Licensing) Amendment Bill was at its second reading, the Roads
Minister stressed the point that the legislation was intended to retain “the public's confidence in the
demerit system”, and to provide “fairness in the system, fairness for drivers, and (in particular) fairness
for professional driver…motorists rely on the ability to drive for employment and education purposes, to
access health and medical services and specialists, and to fulfil family and carer obligations.” In this
sense the Amending Act is a piece of social legislation intended to benefit both the motoring community
at large and a category of the workforce. The application of the legislation to the court’s discretionary
power to deal with matters under s.10, confers the intended benefit of ensuring that sanctions such as a
loss of licence do not follow from the registration of demerit points in situations where there are
compelling sentencing factors.

The legislation is therefore clearly beneficial and remedial in nature.

With respect specifically to the new s.14(3A), the use of the wording of that provision would seem to
impart an intention that the effective time of operation of that new provision would be when the matter
comes before the court, not the date of the relevant offence. It is therefore the writers’ view that if the
offence occurred prior to 31 January, but the matter goes to court after the Amending Act takes effect
then it may be argued that the beneficial provision should be constructed widely to include a retrospective
application.

One would expect Magistrates to be very keen to utilise this newfound power in appropriate cases, and
as such in the transitional periods it would be surprising if a point were taken by Magistrates as to the
retrospectivity of the section. However, if such a point were taken, then the nature of the amending
legislation being beneficial and remedial, as well as the wording of s.14(3A) itself, would support an
argument in favour of retrospectivity.

				
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