the law handbook

The Law HandbookYOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

12th EDITION

REDFERN LEGAL CENTRE PUBLISHING

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1003467

Text Box

Some of the information in the Law Handbook chapter Driving and Traffic is out of date. · Full licence holders now have 13 demerit points (not 12), or 14 demerit points if you are a 'professional driver'. · The demerit points listed for certain offences may not be up to date. · Road Transport Legislation changed on 1 July 2013. Many of the Acts referred to in this chapter have been repealed and replaced by the Road Transport Act 2013 (NSW). You should get legal advice if you are unsure about your rights.

Published in Sydney byThomson Reuters (Professional) Australia Limited ABN 64 058 914 668100 Harris Street, Pyrmont, NSW

First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.First published as The Law Handbook in 1983Second edition 1986Third edition 1988Fourth edition 1991Fifth edition 1995Sixth edition 1997Seventh edition 1999Eighth edition 2002Ninth edition 2004Tenth edition 2007Eleventh edition 2009Twelfth edition 2012

Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice.

National Library of Australia Cataloguing-in-Publication entryThe law handbook: your practical guide to the law in NSW/edited by Helen Sheridan. 12th ed. Includes index ISBN 9780455229393 Law – New South Wales – Handbooks, manuals, etc. Legislation – New South Wales Jurisprudence – New South Wales – Handbooks, manuals, etc. Civil rights – New South Wales. Sheridan, Helen

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© Thomson Reuters (Professional) Australia Limited 2012

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This edition is up to date as of 29 February 2012.

The Law Handbook is part of a family of legal resource books published in other states:Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744SA: The Law Handbook by the Legal Services Commission of SA, ph: (08) 8463 3555Qld: The Law Handbook by Caxton Legal Centre, ph: (07) 3254 1811WA: The Law Handbook (WA) by the Sussex Street Community Law Service, ph: (08) 6253 9500Tas: The Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500NT: The Law Handbook by Northern Territory Legal Aid Commission and Darwin Community Legal Services, ph: (08) 8982 1111

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[22.180] Parking[22.180] Parking offences[22.210] Common parking problems

[22.10] Driving offences[22.20] Major offences[22.110] Other driving and traffic offences

[22.150] Driving licences[22.150] Types of licence[22.160] Cancellation and suspension of

licences

22

Driving and traffic law

Phillip Gibson Solicitor

Contents

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592 The Law Handbook

[22.10] Driving offencesCriminal sanctions to enforce the safe use of motor vehicles are available under:• theCrimes Act 1900• theRoad Transport (General) Act 2005• theRoad Transport (Drivers Licensing) Act

1998• the Road Transport (Safety and Traffic

Management) Act 1999• theRoad Transport (Vehicle Registration)

Act 1997

• theregulationsassociatedwitheachoftheRoad Transport Acts

• theAustralianRoadRules1999.The more serious offences under these Acts are classifiedasmajoroffences,breachesofwhichare generally dealt with by the courts (Road Transport (General) Acts.25).Otheroffencesaregenerallydealtwithby

theimpositionoffinesanddemeritpoints.

[22.20] Major offencesMajordrivingoffencesinclude:• anycrimeoroffencewheredeathorgrievousbodily harm is caused (Crimes Act ss.33,52A, 53, 54;Road Transport (Safety and Traffic Management) Acts.42)

• drivingfuriouslyorrecklessly(Road Trans-port (Safety and Traffic Management) Act s.42)

• drivinginamannerorataspeeddangerousto thepublic (Road Transport (Safety and Traffic Management) Acts.42(2))

• menacing driving (Road Transport (Safety and Traffic Management) Acts.43AA)

• predatorydriving(Crimes Acts.51A)• drivingwiththeprescribedconcentrationofalcohol(Road Transport (Safety and Traffic Management) Act s.90)

• driving under the influence of a drug oralcohol(Road Transport (Safety and Traffic Management) Acts.12)

• refusing to undergo breath analysis or adrug test (Road Transport (Safety and Traffic Management) Actss.15(4),16,29)

• refusingtostopandrenderassistance(Road Transport (Safety and Traffic Management) Act s.70;AustralianRoadRules)

• aiding,abetting,counselling,procuringthecommissionoforbeinganaccessorybeforethefacttoanyofthesecrimesoroffences.

Penalties for second and subsequent offencesWhile the penalties for these offences are severe, penalties for second and further offences within five years are automatically higher. See s.188 of the Road Transport (General) Act).

A third offence within a period of five years can lead to the motorist being declared a habitual traffic offender under s.199 of the Road Transport (General) Act. (See Habitual traffic offenders at [22.100]).

[22.30] Offences causing death and serious injuryA driver who causes the death of or seri-ouslyinjuresanotherpersonmayfacevariouscharges.

Offences under the Crimes Act include:• murder(s.18)• manslaughter(s.24)• aggravated dangerous driving occasioningdeath(s.52A)

• aggravated dangerous driving occasioninggrievousbodilyharm(s.52A)

• dangerous driving occasioning death(s.52A)

• dangerous driving occasioning grievousbodilyharm(s.52A).

Offences under the Road Transport (Safety and Traffic Management) Act include:• negligentdrivingoccasioningdeath


22 Driving and traffic law 593

Theoffencemayoccuronprivateorpublicland.

Who may be affected by dangerous driving?

Under the Crimes Act, thecrimeofdangerousdrivingmayapplywheretheinjuredperson:• wasapassengerinthevehiclebeingdanger-ouslydriven

• wasstruckbythevehicleorsomethingthatwasattachedtoitorfellfromit

• wasstruckbyanobjectthathadfirstbeenstruckbythevehicle.

Defences

It is a defence against a dangerous drivingchargetoshowthatdeathorinjurywasnotthedriver’sfault;forexample,thatapedestrianranontotheroadsuddenlyandwithoutwarning,givingthedrivernochancetoavoidthem.

Aggravated dangerous drivingAggravated dangerous driving is a dangerousdrivingoffencethatinvolves:• drivingwithabloodalcoholconcentrationinthehighrange

• exceeding the speed limit by more than45kilometresperhour

• attemptingtoescapeapolicepursuit.

Negligent drivingNegligent driving is an offence in which thedriverfailstoexercisethedegreeofcareexpectedofacarefuldriverinthecircumstances.The courtwill look at factors such as the

type, use and condition of the road, and the actualandpotentialtrafficontheroad.Negligent driving charges can also be

dealtwith summarily in theLocalCourt (seebelow).

How offences involving serious injury are dealt with

A person charged with a driving offence involving serious injury may be dealt with in either the Local or District Court. Either the defendant or prosecution can elect to have the matter dealt with in the District Court. If the matter is dealt with in the District Court the procedure is the same as for offences involving death.

If the matter is to be dealt with in the Local Court the person will be sentenced following a plea of guilty or the court will hold a hearing to determine the person’s guilt following a plea of not guilty.

• negligent driving occasioning grievousbodilyharm(s.42).

MurderApersonwhodrivesamotorvehiclewiththeintention of causing death or grievous bodilyharm(thatis,veryseriousinjury)whichactuallyresults in someone’s death may be guilty ofmurder.Themaximumpenaltyislifeimprisonment.

What is grievous bodily harm?There is no clear definition of grievous bodily harm, but courts treat it as a question of degree as to the seriousness of the injury, including any permanent or serious disfiguring.

ManslaughterA person who drives a motor vehicle in acriminallynegligentwayandcausesthedeathof someone else is liable to be charged withmanslaughter.What must be provedForthecourttodecidethatcriminalnegligenceis involved, it has to find a very high degreeof carelessness (muchhigher than thenormaldegreeofnegligenceincivilmatters)showingadisregardforthelifeandsafetyofothers.Manslaughter is an offence that must be

triedbeforeajury,andthepunishmentmaybeimprisonmentup toamaximumof25years.However,juriesseemtobereluctanttoconvictdriversofmanslaughter,soadriverinthissitu-ationismorelikelytofaceoneormoreofthelessercharges.

How offences involving death are dealt withA person charged with a driving offence involving death (other than the negligent driving offences – see below) first faces a committal hearing in the Local Court. If the magistrate decides there is enough evidence against the driver to prove the charge, the case is referred to the District Court for trial.

Dangerous driving offencesDangerousdrivingoffencesmaybecommittedby the driver of a vehicle (including a horse-drawn vehicle) who was, when the death orgrievousbodilyharmoccurred:• undertheinfluenceofalcoholoradrug,or• drivinginamannerorataspeeddangeroustoanotherperson.



• predatory driving (Crimes Act s.51A),whichcarriesapenaltyofuptofiveyears’imprisonment

• driving wantonly, furiously or with wilfulneglect causing harm (Crimes Act s.53),whichcarriesapenaltyofuptotwoyears’imprisonment

• causing grievous bodily harm by anyunlawfulornegligentact(Crimes Act s.54),whichcarriesapenaltyofuptotwoyears’imprisonment

• menacing driving (Road Transport (Safety and Traffic Management) Acts.43),whichcarries a penalty of up to two years’imprisonment.

All these offences also carry mandatoryminimum periods of licence disqualification (seethetableat[22.175]).

Predatory drivingPredatorydrivingisengaginginconductwhileinpursuitofortravellingnearanothervehiclethat:• causesorthreatensanimpactinvolvingthe

other vehicle, and • is intended to cause someone in the othervehicleactualbodilyharm.

Menacing drivingApersondrivingonapublicstreetinamannerthat menaces or is intended to menace another person with the threat of personal injury ordamage to propertymay be convicted of theoffenceofmenacingdriving.Thepersonbeingmenacedneednotbeonapublicstreet.

PenaltiesIn addition to the terms of imprisonment referred to above, a driver convicted of anyof the offences under the Crimes Actwill bedisqualified from driving for an automaticperiod of three years, which can be reducedtoaminimumof12months:Road Transport (General) Acts.188).

Conviction for a lesser offenceA motorist who is charged but then acquitted of one of the major offences may nevertheless be found guilty of a less serious offence. For example, a person may be acquitted of a charge of aggravated dangerous driving occasioning death but be found guilty of either dangerous driving occasioning death or negligent driving occasioning death.

[22.40] Driving in a manner or at a speed dangerous to the publicDriving in a manner dangerous to the publicIndeterminingwhethersomeone isdriving ina manner dangerous to the public, the courtmustmakeanobjectiveassessmentofadriver’scareandcontrolofavehicle(Road Transport (Safety and Traffic Management) Act s.42).Thedriver’sintention,orawarenessoftheirmannerofdriving,isirrelevant.Thetest,whichtheprosecutionmustprove

beyondreasonabledoubt,iswhetherthedrivingcreatedadangertoanyonepresentorlikelytobepresent,evenifthedangerwasonlypotential.

What does manner mean?The word ‘manner’ covers all aspects of driving, including speeding, although a person may be charged separately with driving at a dangerous speed.

Driving at a speed dangerous to the publicAchargeofdrivingatadangerousspeedmustalsobeprovedbeyondreasonabledoubt.Whetherdangerexistswilldependonallthe

circumstancesofthecase,includingtheconditionof the road surface, the condition of the driver’s car,observanceoftrafficsignalsandsoon.

Driving over the speed limitExceeding the speed limit is not classified as a major offence, unless the driving is at a speed dangerous to the public. However, the Road Transport (Safety and Traffic Management) (Road Rules) Regulation includes special penalties for exceeding the speed limit by more than 30 km/h and more than 45 km/h (see the table at [22.175]).

A safe speed is determined by the circumstances. Driving at the speed limit is not necessarily driving at a safe speed. Driving at the speed limit at night, or in rain or fog, for example, may not be safe.

[22.50] Menacing driving, predatory driving and similar offencesThese offences are found in both the Crimes Act and the Road Transport (Safety and Traffic Management) Act, and include:• maliciously causing grievous bodily harm(Crimes Act s.33),whichcarriesapenaltyofupto25years’imprisonment



can be tendered in court and, if the analysiswasdonewithin twohoursof thedriver lasthavingdrivenorattemptedtodrive,thecourtwillconsiderittobethereadingatthetimeofeitherofthoseevents.Unlessthedrivercanshow,onthebalance

ofprobabilities,thatthereadingisincorrect,thecourtwillacceptasection33certificateasproofofthedriver’sbloodalcoholconcentration.Refusing a testIt isanoffence to refuse toundergoabreathanalysis.Failuretoprovideasufficientsampleis regarded as a refusal and is therefore anoffence.The police usually allow a driver two or

threeattemptstogiveasamplebeforechargingthem.When police cannot administer a breath test or analysis Therearesomerestrictionsonthepowersofthepoliceinrelationtobreathtestsandanalyses.Theymaynotaskapersontoundergoabreathtestorbreathanalysisif:• thepersonisseriously injuredandthetestmaybedangerous

• thepersonisathome• itistwohoursormoresincethepersonlastdroveorattemptedtodrive.

Inthesecircumstancesthepolicemaystillchargethepersonwithdrivingundertheinfluenceofadrugoralcohol(see[22.70]),butnotwithaprescribedconcentrationofalcoholoffence.

Blood testsInmost circumstances a personover 15whois admitted to hospital after an accident is requiredtoundergoabloodtesttodeterminetheirbloodalcohollevel(s.20).

[22.70] Offences involving drugs other than alcoholIt is an offence for a person to drive or attempt todriveamotorvehiclewhileanyprescribedillicitdrugispresent intheiroralfluid,bloodor urine (Road Transport (Safety and Traffic Management) Acts.11B).

Oral fluid testsPolicecanrequireanybodydrivingorattempt-ingtodriveamotorvehicletoundergooneormoreoralfluidtests(s.18B).

[22.60] Prescribed concentration of alcohol offencesIt is an offence for a person to drive or tryto drive a motor vehicle if the concentration of alcohol in their blood is more than the prescribedlimit.

What is the limit?Thegeneral prescribed limit is 0.05gramsofalcoholper100mLofblood.A special limitof0.02gramsper100mL

applies to drivers of:• publicvehiclessuchasbusesandtaxis• vehiclescarryingdangerousgoods• vehiclesover13.9tonnes.Thelimitforlearnerdriversanddriversholdingprovisionallicencesiszero.

Drinking while drivingItisalsoanoffencetoconsumealcoholwhiledrivingamotorvehicle.

Ranges of alcohol concentrationBloodalcoholconcentrationsaredescribedasspecial,low,mediumandhigh,witheachrangecarryingahigherpenalty than theonebelow(seetableat[22.170]).

Breath testsPolicehavethepowertorequireanyonedrivingor attempting to drive a motor vehicle toundergoabreathtest(Road Transport (Safety and Traffic Management) Act s.13). The testnormallyinvolvesthepolicetakingasampleofthedriver’sbreathusingadeviceknownasaLyonsAlcolmeterSD2.When a breath analysis is requiredIf thebreathtestshowsareadingof0.05(or0.02 for special range drivers) or higher, thepersonisarrestedandtakentoanearbypolicestationormobilevanforabreathanalysis.Iftheanalysisconfirmsthatthedriverhas

exceededthelimit,acourtattendancenoticeisissuedshowingtheamountbywhichthedriverexceededthelimitatthetimeoftheoffence.Altering the readingItisanoffenceforanyonetoaltertheirbloodalcohol reading after being breath-tested andbeforeundergoingbreathanalysis.The section 33 certificateThe breath analysis is recorded on what iscalled a section 33 certificate. The certificate



Bloodorurinesamplesmustbetakenwithinfourhoursoftherelevantevent.

[22.80] Driving under the influence of a drug or alcoholIt is an offence for a person to drive or attempt todrivewhileundertheinfluenceofadrugoralcohol (Road Transport (Safety and Traffic Management) Acts.12).

Under the Act, drugmeansaprohibiteddrugwithin the meaning of theDrug Misuse and Trafficking Act 1985,andanyothersubstanceprescribedasadrug.Common drugs included in these catego-

riesareamphetamines,Indianhemp(includingcannabis),barbiturates,heroinandmostseda-tives(Serapax,Valiumandsoon).

How much is too much? Whenaperson ischargedwithdrivingundertheinfluenceofadrugoralcohol,thequantitytaken isnot the issue.What is relevant is theextenttowhichthedrugoralcoholhasaffectedtheperson’sabilitytodrive.How police judge Thepoliceassessthepersonforsignsofbeingaffected such as slurred speech, unsteadiness on theirfeet,glazingoftheeyesandtheirgeneralmanneranddemeanour.Assessment after a negative breath testEven if a breath test has proved negative, aperson can be required to undergo a furtherassessment of their condition under some circumstances.

Further assessment can be carried out if:• thepoliceofficerhasareasonablebeliefthatthepersonisundertheinfluenceofadrugbecauseofhowtheydroveorattemptedtodrive, and

• the assessment is carried out by a policeofficeratorneartheplacewherethepersontookthebreathtest(Road Transport (Safety and Traffic Management) Acts.25).

Taking samplesThe police may take a person to a medicalpractitioner to obtain a blood or urine sample (subject tothesamerestrictionsaswhentheyrequire a person to undergo a breath test oranalysis–seeWhenpolicecannotadministerabreathtestoranalysisat[22.60]).

When a sample must be providedIfanoralfluidtestshowsthattheremaybeoneormoreprescribedillicitdrugintheperson’soralfluid, they are arrested and taken to a nearbypolice station or other place decided by theofficertosupplyanoralfluidsample(s.18D).Theoralfluidsampleisplacedinacontainer,

fastened,sealed,markedandlabelled.Acertifi-cate is thengiventothepersonprovidingthesampletoenablethesampletobeidentified.The sample is then sent to a laboratory

prescribedbytheregulationsfortesting.Altering the readingIt is an offence for any person to alter theamountofaprescribedillicitdruginaperson’soralfluidbeforeanoralfluidtest,orafteranoralfluidtestandbeforesupplyinganoralfluidsample(s.18G).The section 33B certificateThedruganalysisisrecordedonasection33Bcertificate. The certificate can be tendered incourt and, if the oral fluid samplewas takenwithintwohoursoftheeventthatentitledtheofficertorequestit,thecourtwillacceptitasproofofthereadingatthetimeofthatevent.Refusing an oral fluid testIt is an offence to refuse to undergo an oralfluidtest.Failuretoprovideanoralsampleisregardedasarefusalandisthereforeanoffence(s.18D).When police cannot administer an oral fluid testThere are some restrictions on the power ofpolice in relation to oral fluid tests and oralfluidsamples.Policemaynotaskapersontotakeanoralfluidtestorprovideasampleif:• thepersonisadmittedtohospitalformedical

treatment, unless the medical practitioner in immediatechargeofthetreatmentisnotifiedand does not object

• thepersonisseverelyinjured,andtheproce-duremaybedangerous

• it has been two hours or more since theincidentthatallowedthepolicetotest

• thepersonisathome.

Blood and urine testsPolicemayrequireapersonwhohasattemptedtoprovideanoralfluidsamplebutbeenunableto do so to provide a blood or urine sample (s.18E).



[22.100] Habitual traffic offendersSomeone may be declared a habitual trafficoffender if they have been convicted of threerelevantoffencesinfiveyears(Road Transport (General) Actss.198–203),including:• anymajoroffence• drivinginexcessof45km/hoverthedesig-

nated speed limit• driving for the second time without everhavingbeenlicensed

• drivingwhiledisqualified• havingbeenconvictedofsimilaroffencesinanotherstate.

PenaltiesAnyonedeclaredahabitual trafficoffender isautomaticallydisqualifiedfromdrivingforfiveyears.

Accumulated periods of disqualificationThe automatic period of disqualification is in addition to any other period of disqualifica-tion.Forexample,apersonwhosethirdseriousoffenceinfiveyearsisamid-rangeprescribedconcentration of alcohol offence for whichthey are disqualified for three years will notcommence theirfive-yeardisqualificationasahabitual offender until the prescribed concen-tration of alcohol penalty has been served.Theperson iseffectivelydisqualified foreightyears.

Offences that were proved but dismissedFor the purposes of determining whether athirdoffencehasoccurredwithinfiveyears,anoffence thatwas proved but dismissed unders.10oftheCrimes (Sentencing Procedure) Act 1999 iscountedasaconviction.

The court’s discretionThe court has certain discretions, and mayquash the declaration if it determines that the disqualification imposed is a disproportion-ateandunjust consequence,having regard tothetotaldrivingrecordofthepersonandthespecialcircumstancesofthecase.

It also has discretion to:• reduce thedisqualificationperiod, butnotbelowtwoyears

• increase the period to a lifetimedisqualification.

Anybloodorurinesampletakenisdividedintotwoparts.Oneisgiventothedriver,whohastherighttohaveitindependentlytested.

Insurance and alcohol-related convictionsMost insurance policies covering damage tomotor vehicles contain an exemption statingthattheinsurerisnotliabletopayfordamageifthedriverwasundertheinfluenceofadrugoralcoholatthetimeoftheaccident,whetherthis contributed to the accident or not (seechapter31,Insurance).However,thefactthatapersonhassubmit-

ted to abreath test orbreath analysis orhasbeen convicted of a prescribed concentration of alcoholoffencecannotbyitselfbeusedbytheinsurertoexcludeliability(s.37).Any prescribed concentration of alcohol

conviction must be notified to the insurance company,whichmayuseitasareasontorefusetocoverthedriverortoraisethepremium.

The effect of alcohol-related convictions on insurance is discussed in more detail in chapter 31, Insurance.

[22.90] Failing to stop and give assistanceIf someone is injured in an accident, the driver muststopandgiveassistance.It isanoffencenot todosoandthemaximumpenalty forafirst offence includes imprisonment or a fine of 30penaltyunits (Road Transport (Safety and Traffic Management) Act s.70).Upon convic-tion, the driver will be disqualified for anautomatic period of three years, which maybereducedtoaminimumof12months(Road Transport (General) Acts.188).Section52ABoftheCrimes Act dealswith

drivers who fail to stop and give assistancewhere the impact causes death or grievousbodilyharm.

A driver involved in an accident must stop and,ifrequested,givetheirnameandaddresstoanyotherpersoninvolved.Theymustalsoreport the accident to the police within 24hours if someone has been injured or a vehicle istowedaway.

For more about the driver’s obligations at the scene of an accident, see chapter 3, Accidents and

compensation.



Information that must be given to police on request

A person normally has the right to remain silent when questioned by police; however, a driver must produce their licence and state their name and address if requested to do so by a police officer (Road Transport (General) Act s.125).

Where the owner is not the driverA person who allows their vehicle to be driven by someone else is expected to know who used the vehicle and when it was used.

If a driver is suspected of having committed a driving offence, the owner of the vehicle may be requested to identify the driver and, if unable to do so, may be found guilty of an offence even if the driver is later found to be innocent (s.173).

The owner will not be liable if for some reason the driver’s identity is not known; for example, if the vehicle has been used without the owner’s knowledge and consent.

Driver education programsThere are a number of driver education programs that can be completed before sentencing or as part of a sentence for serious driving matters.

Traffic Offenders ProgramPeople are referred to this program by the court before being sentenced. Completion of the program is most beneficial for first-time offenders, who may thus avoid a conviction, and multiple offenders who are facing custodial sentences.

Sober Drivers ProgramThis program is for adult offenders convicted of a second drink driving offence in a five-year period. It is a nine-week educational program delivered by the Probation and Parole Service. Attendance is usually a condition of a good behaviour bond imposed by the court.

Alcohol Interlock ProgramPeople convicted of drink driving offences can ask to participate in this program. An electronic device, which is wired to the ignition, prevents the car from being started unless the driver passes a breath test. Drivers convicted for a first time low range or special range PCA offence are not eligible for interlock. Nor are drivers who are subject to a Habitual Offender Declaration.

People on the program have to serve at least half the minimum disqualification period for their offence and then a further minimum period of one to four years (depending on the offence) on the program.

The device records all failed attempts to start the car, and the data is monitored regularly. Repeat failed attempts may result in alcohol counselling or cancellation of the program.

[22.110] Other driving and traffic offencesLess seriousoffencesusually involveabreachofthetrafficregulations,orroadrules.

The road rulesRules dealing with the control and right of way of motor vehicles in various situations likely to be met on the road are set out in the Regulations to the Road Transport (Safety and Traffic Management) Act, the Road Transport (General) Act and the Australian Road Rules. Details of these rules can be obtained from the Roads and Traffic Authority (RTA).

Penalties for breaching the traffic regulations may include the incurring of demerit points (see Suspension and cancellation by the RTA – the points system at [22.170]) as well as fines.

All traffic offences apart from the major offencesdiscussedabovearedealtwithbytheissue of either:• acourtattendancenotice,or• atrafficinfringementnotice.

[22.120] Court attendance noticesIf a person is issuedwith a court attendancenoticeforadrivingoffence,theymustappearbeforeaLocalCourt.Thenoticemustbeissuedwithinsixmonths

oftheallegedoffence.



port (Driver Licensing) Act 1998s.14).IfthematterisheardintheLocalCourtand

thedriverisunsuccessful,thecourtmayimposea fine higher than that in the traffic infringe-mentnotice.

Failure to respond to an infringement noticeIfthepersondoesnotpaythefineorreferthemattertocourt,theStateDebtRecoveryOffice,incooperationwiththeRTA,maymovetofirstsuspend and then cancel the person’s driver’s licenceorcarregistration,andwillnotpermittheirreissueuntilthefinehasbeenpaid(Fines Act 1996).

[22.140] Street and illegal drag racingApersonwhooperates amotor vehicle on apublic street in such a manner as to cause sustainedlossoftractionofthewheelsorfora speed competition may be fined up to tenpenalty units (Road Transport (Safety and Traffic Management) Acts.41).Ifpetrol,oilorsomeotherflammableliquid

isplacedunder the tyres, thepenaltymaybeashighas30penaltyunitsinthecaseofafirstoffence and30penaltyunits andaperiodofimprisonment in the case of a second or subse-quentoffence.Uponconvictionforanoffenceofthistype,adriverwillbedisqualifiedforaperiodof12months (Road Transport (Safety and Traffic Management Acts.41).Apersonwhoparticipates ina street race

maybefined30penaltyunits.Unders.218ofthe Road Transport (General) Act, police have thepowertoimpoundthevehicle.

[22.130] Traffic infringement noticesIfthepenaltyfortheoffencedoesnotinvolvea term of imprisonment, the police mayissue the driver with a traffic infringement notice.Thedriverthenhastheoptionof:• payingthefinespecifiedinthenotice• challenging the infringement notice, ifthedriverbelievestheyarenotguiltyoftheoffence.

Challenging an infringement noticeApersonwhowishestochallengeaninfringe-ment notice should request that the matter be either:• reviewed by the Director of the Infringe-mentProcessingBureau,or

• referredtotheLocalCourt.Requesting a reviewAreviewmustberequestedbeforethetimeforpaymenthasexpired.Therequestforthereviewshouldsetout:

• thereasonsfortherequest• detailsoftheperson’sdrivingrecord.The reasons should consist of facts that demon-strate either:• innocence,or• extenuatingcircumstancesthatmaybesuffi-cientexcuseforcommittingtheoffence.

Thereviewusuallytakesaboutsixweeks.Referral to the Local CourtIf thematter isheard in theLocalCourtandthe offence is dealt with without proceedingto conviction pursuant to Crimes (Sentencing Procedure) Act 1999 s.10, no demerit pointswillberecordedagainstthedriver(Road Trans-

Driving licences[22.150] Types of licenceTheRoadsandTrafficAuthority(RTA)issuescoloureddriver’slicenceswithaphotographofthelicenceholder.Thecolourofalicenceindi-catesitsstatus,asfollows:

• learner’slicence–green• provisionallicence–greenandred• probationarylicence–black• unrestrictedlicence–silver



4 demerit points within three years, thedriver may have their licence suspended orcancelled.The P2 licenceAdriverwhohassatisfiedtheconditionsoftheP1canapplyforaP2.The P2 licence is issued for 30 months,

duringwhichtheholdermustdisplayagreenPplateonthefrontandrearofthevehicle.Themaximum speed at which the holder

candriveis100km/h(cl.38(6)).If a P2 licence holder incurs more than

7demeritpointswithinthreeyears,thedrivermayhavetheirlicencesuspendedorcancelled.

Probationary licencesA probationary licence is issued to a person when they renew their licence after a periodof disqualification. It is issued on the condi-tionthatthedriverdoesnotincurtwoormoredemeritpointsovera12-monthperiod.

• unrestrictedlicenseheldbyadriverwithafive-yeargooddrivingrecord–gold.

Provisional licencesAnovicedriverisissuedwithatwostageprovi-sional licenceconsistingofaP1andaP2licence(RoadTransport(DriverLicensing)Regulationcll.15,15A).

NOTE: Provisional licence holders are subject to higher demerit point penalties forspeedingoffences(seeRoadTransport(DriverLicensing)Regulation2008Sch1.)The P1 licenceAP1isissuedforaperiodof18months,duringwhichtimetheholdermustdisplayaredPplateonthefrontandrearofthevehicle.Under cl.38(5) of the Road Transport

(Safety and TrafficManagement) Regulation,theholdermustnotdriveataspeedinexcessof90km/h.If a P1 licence holder incurs more than

[22.160] Cancellation and suspension of licencesAdriver’slicencemaybecancelled:• byacourt,whenitdisqualifiesadriverfromdriving,or

• bytheRTA,whenitdecidesthatapersonistemporarilyunfittoholdalicencebecauseof their health or medical condition or in theinterestsofpublicsafety(seeSuspensionand cancellation by theRTA – the pointssystemat[22.170]),or

• by theRTA, for thenon-paymentof fines(seeFailure to respond toan infringementnoticeat[22.130]).

If a person’s licence is cancelledA person must immediately surrender acancelled licence, andmaybe charged if theydonot.

Driving while unlicensedIt isanoffence foraperson todrivewithoutalicenceorwhiletheirlicenceissuspendedorcancelled.Thepenaltiesaresevere.

A driver remains a cancelled driver, and subject to the penalties for cancelled drivers, after the disqualification period has expiredanduntiltheirlicenceisrenewed.

Suspension by policeThepolicemayalsosuspendalicenceincertaincircumstances (Road Transport (General) Act ss.204,205).Thelicencecanbesuspendedforupto14daysifthedriveris:• in the opinion of police, incompetent,recklessorcareless,or

• foundtobeundertheinfluenceofintoxicat-ingliquor.

Police may recommend to the RTA that theperiodbeincreased.

The person must surrender their licence to thepoliceifithasbeensuspendedbythem.



Review and appeal

Appeals to the Local Court may be lodgedagainstthedecisionofapoliceofficertosuspenda driver’s licence pursuant to Road Transport (General)Regulationcl.22.Appeals to the Local Court may also be

lodged against the decision of the RTA tosuspend or cancel a driver’s licence pursuant to RoadTransport(General)Regulationcl.18.

[22.170] Appeal against cancellationIf a person’s licence has been cancelled or suspendedbyRTAadministrativeaction,they have28daystoappealtotheLocalCourt.

If the person has been charged with certain alcohol-related offences

Unders.205oftheRoad Transport (General) Act, thepolicemay, pending thehearing anddetermination or withdrawal of the charge,suspendthelicenceofanyonechargedwith:• a mid-range or high-range prescribed

concentration of alcohol offence, or • wilfullyalteringorobstructingthetakingofabloodtest.

Effect on any period of disqualification

Thesuspensionmaycounttowardsanyperiodof disqualification that the court may laterimpose,includinganyminimumperiod.

Suspension and cancellation by the RTA – the points systemIf the licence has not been cancelled beforeIf the person’s licence has not been cancelled before, the RTA may offer them a probationary licence instead.

If further demerit points are incurredIf the driver incurs two or more demerit points while on a probationary licence, the RTA will suspend it for a period that is twice the original suspension period and then issue another probationary licence.

Accumulated periods of suspensionAny periods of suspension that result from incurring demerit points are added on to the automatic suspension period, if there is one, for the offence that brought the demerit point total over the suspension threshold.

For example, under the points system, a driver incurs six points for exceeding the speed limit by more than 45 km/h. If that brings the driver’s total demerit points to 12, the RTA may take action to suspend the licence for three months. This three-month period is added to the automatic period prescribed by the legislation for the offence (three months), and the person’s licence is suspended for a total period of six months.

Note: Higher demerit point penalties apply to some offences when they are committed within a ‘school zone’. See Road Transport (Driver Licensing) Regulation 2008 Sch.1.

The RTA may cancel a person’s licence for any period it thinks is appropriate in the public interest.

What the RTA takes into accountBefore cancelling a person’s licence, the RTA considers their driving record, using the points system as an administrative guide.

The points systemThe penalty, or part of the penalty, for many driving offences involves demerit points.

Under the Road Transport (Drivers Licensing) Regulation cl.36 and Sch.1, an offender is given a fixed number of demerit points for each of the offences listed below in [22.175]. The points are doubled over a long weekend when either Friday or Monday, or both, are declared public holidays. The number of demerit points that may be received before further action is automatically taken, or considered, depends on the type of licence.

When a licence will be suspendedIf a person incurs from 12 to 15 demerit points within a period of three years, their licence will be suspended for three months.

If a person incurs from 16 to 19 points within a period of three years, the suspension period is four months.

If a person incurs from 17 to 20 points within a period of three years, the suspension period is five months.



[22.175]

Maximum penalties and disqualifications under the road transport legislation for offences committed after 1 October 1998

Section Offence First offence Second or subsequent offence

Road Transport (Safety and Traffic Management) Act

42(1)(a) negligent driving occasioning death 30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

42(1)(b) negligent driving occasioning grievous bodily harm

20 penalty units and/or 9 months’ jail; disqualification for 3 years (min. 1 year)

30 penalty units and/or 1 year’s jail; disqualification for 5 years (min. 2 years)

42(1)(c) negligent driving 10 penalty units

42(2) driving furiously, recklessly or at a speed or in a manner dangerous to the public


30 penalty units and/or 1 year’s jail; disqualification for 5 years (min. 2 years)

43(1) intent to menace 30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)


43(2) possibility of menace 20 penalty units and/or 12 months’ jail; disqualification for 3 years (min. 1 year)

30 penalty units and/or 18 months’ jail; disqualification for 5 years (min. 2 years)

9(1) driving with a special range concentration of alcohol

10 penalty units; disqualification for 6 months (min. 3 months)

20 penalty units; disqualification for 1 year (min. 6 months)

9(2) driving with a low range concentration of alcohol


20 penalty units; disqualification for 1 year (min. 6 months)

9(3) driving with a middle range concentration of alcohol

20 penalty units and/or 9 months’ jail; disqualification for 1 year (min. 6 months)

30 penalty units and/or 1 year’s jail; disqualification for 3 years (min. 1 year)

9(4) driving with a high range concentration of alcohol



11B driving with certain drugs (other than alcohol) in oral fluid, blood or urine



18D(2) refusing to submit an oral fluid sample

30 penalty units; disqualification for 3 years (min. 6 months)

50 penalty units and/or 18 months’ jail; disqualification for 5 years (min. 12 months)

18G(1) wilfully altering a prescribed illicit drug in a person’s oral fluid



13 refusing to submit to a breath test 10 penalty units

15(4), 16 refusing to submit to a breath analysis or wilfully altering the concentration of alcohol



22(1) obstructing a medical practitioner or nurse trying to take a blood sample

20 penalty units

22(2) preventing a medical practitioner or nurse taking a blood sample or wilfully altering the sample


12(1) driving under the influence of alcohol or a drug


30 penalty units and/or 12 months jail; disqualification for 3 years (min. 1 year)

29 refusing to submit to a blood or urine test or wilfully altering tests


50 penalty units and/or 2 years jail; disqualification for 3 years (min. 1 year)

70 failing to stop and render assistance 30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)




Road Rules


cl. 10-2(6) exceeding speed limit <30km/h 20 penalty units

cl. 10-2(3) exceeding speed limit by more than 45 km/h

20 penalty units (30 for heavy vehicles); disqualification for 6 months or such longer period as the court orders

cl. 10-2(5) exceeding speed limit by more than 30 km/h but less than 45 km/h

20 penalty units; disqualification for 3 months or such longer period as the court orders

Road Transport (Drivers Licensing) Act


25(1) driving while unlicensed 20 penalty units

25(2) driving while never having been licensed

20 penalty units 30 penalty units and/or 18 months’ jail

25A driving while disqualified, cancelled or suspended (but not fine default suspension)

30 penalty units and/or 18 months’ jail; disqualification for 1 year commencing when current disqualification, cancellation or suspension ends

50 penalty units and/or 2 years’ jail; disqualification for 2 years commencing when current disqualification, cancellation or suspension ends

25A driving whilst suspended – fine default

30 penalty units and/or 18 months’ jail; disqualification for 3 months commencing when suspension ends

50 penalty units and/or 2 years’ jail; disqualification for 2 years commencing when current suspension ends

List of demerit points: Road Transport (Drivers Licensing) Regulation Schedule 1• drivingonwrongsideofdividinglines–3• drivernotwearingseatbelt–3• motorcycleridernotwearingapprovedmotorcycle

helmet – 3• unlawfullydrivingpastsafetyzoneortramorfailing

to give way to pedestrian crossing near stopped tram – 3

• negligentdriving–3• improperpassingorovertaking–2• changingdirectionorstoppingwithoutsignalling–

2• turningimproperly–2• failingtokeepleft–2• failingtodipheadlights–1• followingtooclosely–1• drivingatnight/darkwithoutheadlightson–1

Part 2• conductassociatedwithstreetracing–3• notstoppingandsupplyingparticularsatsceneof

accident – 3• disobeygivewaysignonbridge/narrowroad–3• drivingvehicletowingexcessweight–2• riding motorcycle or motor trike towing other

vehicle – 2• notcomplyingwithconditionsoflicence–2• usevehiclewhenchildisinchildrestraintinfront

seat with air bag fitted – 3• drivevehiclewith1unrestrainedpassenger–3• drivevehiclewith2ormoreunrestrainedpassengers

– 6• drive vehicle not wearing seat belt and with one

unrestrained passenger – 6

Part 1• exceedingspeedlimitbyover45km/h–6• exceeding speed limit by over 45 km/h (school

zone) – 7• exceedingspeedlimitbyover30km/h–5• exceeding speed limit by over 30 km/h (School

zone) – 6• exceedingspeedlimitbyover20km/h–4• exceeding speed limit by over 20 km/h (school

zone) – 5• exceedingspeedlimitbyover10km/hbutlessthan

20km/h – 3• exceedingspeedlimitbyover10km/hbutlessthan

20km/h (P1 or P2) – 4• exceedingspeedlimitbyover10km/hbutlessthan

20km/h (P1 or P2, school zone) – 5• exceedingspeedlimitbylessthan10km/h–1• exceedingspeedlimitbylessthan10km/h(school

zone) – 2• exceedingspeedlimitbylessthan10km/h(P1or

P2) – 4• exceedingspeedlimitbylessthan10km/h(P1or

P2, school zone) – 5• disobeyingtrafficlight–3• disobeyingstoporgivewaysignor lineorpolice

directing traffic – 3• failingtogiveway–3• failingtostoporgivewaytopedestrian,children’s,

or level crossing – 3• drivingwithunrestrainedpassengersunder16–3• usingvehiclecontrarytodefectnotice: – in the case of a major defect – 3 – in the case of a minor defect – 1



Parking[22.180] Parking offencesParkingrestrictionsareimposedorcreatedbybothtrafficregulationsandparkingsigns.

[22.190] Parking restrictionsRestriction by traffic regulationsTraffic regulations restrict parking in someplaces;forexample:• onan intersection,orwithinsixmetresofthepropertylineofanintersection

• within18metresontheapproachsideandnine metres of the departure side of a bus stop

• withinninemetresoftheapproachsideofapedestriancrossing

• onacurveorhillwhentheviewtotherearisnotclearforatleast50metres

• in metered zones and where council car-parkingtimelimitsoperate.

Restriction by traffic signsParkingsignsinclude:• ‘No Parking’, whichmeans that a vehiclemaynotparkexceptwhenactuallypickinguporsettingdownpeopleorgoods

• unauthorised carriage of pillion passenger onmotorcycle or motor trike – 2

• passingbusatspeedover40km/h: – where speed exceeds 85 km/h – 6 – where speed exceeds 70 km/h – 4 – where speed exceeds 55 km/h – 3 – where speed exceeds 40 km/h – 1• driveon/overcontinuouswhiteline–4• approachpedestriancrossingtooquickly–3• startordrivevehiclewithunduenoise/smoke–2• usehandheldmobilephonewhiledriving–3• usehandheldmobilephonewhiledriving (P1or

P2) – 4• drive motor vehicle with sound system that emits

offensive noise – 2• enter level crossing when warning bells/lights

operating – 3• enter levelcrossingwhengate,boomorbarrier is

closed, opening or closing – 3• enter level crossing when train or tram is on or

entering the crossing – 3• enter a level crossing when a train or tram is

approaching the crossing –3• enteralevelcrossingwhencrossingorroadbeyond

is blocked – 3• failtoleavelevelcrossing–3• learnerorP1orP2driverdriveunrestrained–3• learnerorP1orP2driverdrivewithunrestrained

passenger – 3• drivewithpersonintheboot–3• consumealcoholwhiledriving–3

• drive vehicle notwearing seat belt andwith 2 ormore unrestrained passengers – 9

• ride motorcycle with one passenger not wearinghelmet – 3

• ride motorcycle with two or more passengers notwearing helmet – 6

• ridemotorcyclewithouthelmetandpassengernotwearing helmet – 6

• ride motorcycle without helmet and 2 or morepassengers not wearing helmet – 9

• disobeying‘Trucksandbuseslowgear’sign–3• drivingcontrarytoroundaboutroadrules–3• failing todrive inbus laneor in truck lanewhere

required – 3• driveinbuslane–3• driveinT-waylane–3• driveintrucklane–3• disobeyingoverheadlanecontroldevice–3• crossingcontinuouslineseparatingmarkedlanes–

3• not driving within single marked lane or line of

traffic – 3• overtakingorpassingstationaryvehicleatpedestrian

or children’s crossing – 3• increasespeedwhilebeingovertaken–3• longvehiclefollowingotherlongvehicletooclosely

– 3• makingunlawfulUturn–2• notgivingpropersignalwhenpullingoutfromside

of road – 3• nothavingpropercontrolofvehicle–3



• ‘NoStanding’,whichmeansthatavehiclemay not stop except when picking up orsettingdownpeople

• ‘NoStopping’,whichmeansthatavehiclemaynotwaitatthekerbforanyreason

• ‘Clearway’,whichmeansthatavehiclemaynotstopatthekerbforanyreason,exceptthatabus,taxiorhirecarmaystoptopickuporsetdownpassengers

• ‘LoadingZone’,whichmeansthatatruckmaystandforupto30minutesorastationwagonfor15minuteswhenactuallypickinguporsettingdowngoods.

[22.200] Parking ticketsReceiving a ticketWhereadriverhasoverstayedinaparkingareaor parked in a restricted area (see above), aticketmaybeissuedinperson,throughthepostorbybeingleftonorattachedtotheoffendingvehicle.Peoplewhomayissueparkingticketsare:

• thepolice• aparkingpatrolofficer (specialconstablesemployedbytheCommissionerofPolice)

• acouncilordinanceinspector.The ticketwill showafine tobepaidwithin21days.

If the driver believes there was no offence Adriverwhobelievesthatnoparkingoffencewas committed (for example, a driver whobelieves their car was parked in a two-hourzone for less than two hours but receives aticketforoverstaying)maycontestthematterintheLocalCourt.

Get legal advice!Challenging a parking ticket can be expensive and time-consuming, and may expose the driver to higher penalties and costs if it is unsuccessful. It is advisable to obtain legal advice from a chamber magistrate or community legal centre before deciding to contest a parking ticket.

Reasons for contesting a parking ticketTheremaybeaverygoodreasonforcontestingaparkingticket.In some cases, themattermay be quickly

resolved.Forexample,iftheoffenceoccurredwhile the vehicle was stolen or being usedillegally, and the theft or illegal use has beenreported to police, a telephone call to the Infringement Processing Bureau is usuallyenoughtoendthematter.Ifnoreportwasmade,thereasonsforthis

andthecircumstancesofthetheftorillegalusemustbesetoutinastatutorydeclaration.

If the owner was not the driverIf someone else was in charge of the vehiclewhen the ticketwas received, and the ownerwishes thatpersontopaythefine, theownershould send a statutory declaration to theDirector, Infringement Processing Bureau,settingoutthenameandaddressofthepersonandthecircumstancesinwhichtheycametobeinchargeofthevehicle.If the bureau rejects the explanation, the

owner may challenge the ticket in the LocalCourt.

Common parking problems[22.210] Blocked drivewaysItisanoffencetoparkavehicleinawaythatobstructs traffic or ‘unreasonably’ inconveni-ences someone else. This includes parkingacrossadriveway.Apersonwhosedriveway isblockedbya

vehiclemayreportthemattertothepoliceandrequestthataticketbeissued.

Police have no power to remove thevehicle.

[22.220] Difficulty parking near homeIfapersonhasdifficultyparkingclosetotheirhome, and this is due to an illegally parked



vehicle blocking access, the vehicle shouldbereported(seeBlockeddrivewaysat[22.210]).

Residents’ parking schemesSomecouncils reserve streetparking for localresidentsbyrestrictingnon-residentialparkingto certain times of the day, or limiting non-resident parking to one or two hours whileresidents have unlimited parking. In theseareas, local residents can obtain a sticker toattachtotheirvehicle,indicatingtheirrighttounrestrictedparking.Proofof residence (such as a ratesnotice)

and, usually, payment of a fee is required toobtainasticker.

If there is no residents’ parking schemePeople having trouble parking in their street, especially in areas where there is little off-street parking, should contact the council and suggest that a residential parking scheme be set up, or their street be included in an existing scheme.

It is often a good idea to join with other residents and make a joint submission to council.

[22.230] Abandoned vehiclesThe Impounding Act 1993 giveswidepowerstocouncilstodealwithabandonedvehicles.Ifthevehicleappearstobeunregisteredand

worth less than$500, thecouncilmaytowitawayanddestroyit.In other cases, the council may ask the

police for the name and address of the last registeredownerandthengivethatowner28days’writtennoticetoremoveit.If the vehicle is not removed within 28

days,itmaybeimpoundedandsoldatpublicauction,andcouncilcostsdeducted fromanymoneyreceived.



Law Society of NSWwww.lawsociety.com.auph:99260333

Roads and Traffic Authority (RTA)www.rta.nsw.gov.auph:131213

Infringement Processing Bureau www.ipb.nsw.gov.auOffice of State Revenueph:1300138118

[22.240] Contact pointsIfyouaredeaforhaveahearingorspeechimpairmentand/oryouuseattyoracomputerwithamodem,youcanringanynumberthroughtheNationalRelayServicebyphoning133 677(localandchargeablecalls)or1800 555 677(freecalls)or1300 555 727(SpeakandListencalls).Formoreinformation,seewww.relayservice.com.au.Non-EnglishspeakerscancontacttheTranslatingandInterpretingService(TIS)on131 450 to

useaninterpreteroverthetelephonetoringanynumber.Formoreinformationortobookaninter-preteronlineseewww.immi.gov.au/living-in-australia/help-with-english/help_with_translating/.

Personal Property Securities Resisterwww.ppsr.gov.auph:1300007777

Police, NSWwww.police.nsw.gov.aupoliceassistanceline:131444Police Customer Assistance Unitph:1800622571

Consumer, Trader and Tenancy Tribunalwww.cttt.nsw.gov.auph:1300135399

Motor Vehicle Repair Industry Authoritywww.fairtrading.nsw.gov.auph:133220

NRMA Member Legal Servicewww.mynrma.com.auph:1800427426or87416280

[22.250] Internet• NationalRoadsandMotoristsAssociation(NRMA)–www.nrma.com.au• RoadsandTrafficAuthority(RTA)–www.rta.nsw.gov.au


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