Traffic Law

Habitual Offender Declarations

The habitual offenders scheme imposes an automatic licence disqualification to drivers who have repeatedly committed serious traffic offences. Although drivers are "declared" habitual offenders, becoming an habitual traffic offender is essentially an automatic process and is not a decision that is made by a Court or the RMS. A Court does not declare a person an habitual offender but does have the power to reduce the automatic disqualification period or to quash the declaration altogether. When and how the Court can exercise its powers is often misunderstood by lawyers and Courts alike.

**Important Notice**

The habitual offenders scheme was abolished in October 2017. However, any habitual offender declaration already made prior to this date is still valid and remains in place until quashed or set aside. 

The below article was written prior to the abolition of the scheme, but for most part, remains relevant.

There is currently some confusion amongst some of the profession and judiciary as to how the new law applies to previous declarations. Contact our Traffic Law team for further information on the current status of the law in NSW.

How can I be declared an habitual offender? 

You will be automatically declared an habitual offender if you are found "guilty" in a Court of 3 "relevant offences", occurring at different times, within a 5 year period. 

The moment you are dealt with for your third offence, you are declared an habitual offender. This is not an order of the Court - in fact, a Court cannot declare someone an habitual offender and is not required to even mention the declaration in Court. 

After the court proceedings, you will receive a notification from the RMS that you have been declared an habitual offender, nominating the offences that gave rise to the declaration. 

What happens if I am declared an habitual offender? 

You will be automatically disqualified from driving for 5 years. This is in addition to any existing disqualification periods and any disqualification period imposed by the Court as a result of the third relevant offence giving rise to the declaration. 

For example, if the third offence was a drink driving offence and you were disqualified by the Court for a period of 12 months, the declaration will automatically add an additional 5 years to that disqualification period, so the overall disqualification will be 6 years.

The Court does not have the power to make an habitual offender declaration, however, at the time of the third offence giving rise to the declaration, the Court has the power to vary the habitual offender disqualification period. The Court can increase the automatic 5 year period (which is uncommon) or, the Court can reduce the period to no less than 2 years.

It is important to note that if you are declared an habitual traffic offender, the 3 offences that were taken into account can still be used for future habitual offender declarations. For example say you commit relevant offences in 2003, 2005 and 2006 and are subsequently declared an habitual offender and receive a 5 year disqualification period on top of your disqualification period for the 2006 offence that the court imposed. If you then commit another relevant offence in 2009 you will receive another habitual offender declaration that will again take into account the 2005 and 2006 offences and you will receive an additional 5 year disqualification. 

What is a relevant offence?

For the purpose of an habitual offender declaration, "relevant offences" include: 

  • All drink driving offences including:
- Special Range PCA
- Low Range PCA
- Mid Range PCA
- High Range PCA
- Refuse breath analysis
- Driving whilst under the influence of alcohol

  • Driving at a speed or in a manner dangerous to the public
  • Exceed speed by more than 45km/h
  • Reckless or furious driving
  • Driving whilst suspended
  • Conviction of driving while unlicensed
  • Driving whilst disqualified
  • Driving whilst cancelled 
  • Menacing driving
  • Negligent driving where death or grievous bodily harm is occasioned
  • Driving under the influence of drugs
  • Fail to stop and give assistance in an accident involving death or injury

Can I have an habitual offender declaration overturned?

Yes, you can apply to the Local Court to have the declaration quashed. It is arguable that you can apply to any Local Court that dealt with any of the offences that gave rise to the declaration to have the declaration quashed, however, in practice the general view is that the application must be lodged at and heard by the Court where the third/last offence was dealt with that gave rise to the declaration.

When an application is brought before the Court at a time after the third offence was dealt with, the Court has the power to quash the declaration, which means setting it aside, or to dismiss the application and not take any action. In deciding whether to quash the declaration, the Court must consider whether the 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. 

It is often understood that when someone brings an application to the Court to have the declaration quashed that the Court has power to vary the declaration. It is our view at Prime Lawyers that this is incorrect, and that if a Court proceeds to do so is in error. It is important to engage a traffic lawyer that understands the precise powers of the Court at any given moment to be able to better assist the Court with this area of law.

It is also believed by many practitioners that, if a Court, at the time that the declaration is made, decides to vary the disqualification period, an application to quash the declaration cannot be made. This is also an error and goes against the very purpose of the legislation.

Even though applications are often made for habitual offender declaration to be quashed at some time after any offences have been dealt with, a Court that deals with the third offence that gives rise to the declaration actually has the power to quash the declaration at the same time. At Prime Lawyers, we ensure that we remain alert to the fact that a declaration is going to be made when representing someone for a "relevant offence" to try and persuade the Court at the time of sentencing to quash the declaration (in order to save the client the expense of having to make an application at a later date).

Although the Court has the power to quash the declaration at the time it is made, most Courts prefer to not take any action and instead, allow the disqualified driver to prove him or herself by seeing out the Court ordered disqualification period for the actual offence, before returning to Court to make an application to have the habitual offender declaration quashed.

Our traffic lawyers are knowledgeable in this area of law and are experienced in representing drivers who have been declared habitual offenders and require an end to the disqualification to allow them to get back on the road sooner.

If you have been declared an habitual traffic offender and wish to make an application to quash the habitual offender declaration, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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