Citation: [2018] NSWLC 16
Court: Local Court of New South Wales
Date: 31 August 2018
Judge: Magistrate Still
Background
The applicant sought an order from the Local Court to remove his driver licence disqualifications under Division 3A of the Road Transport Act 2013 (NSW). His traffic record showed he had committed an offence of driving while disqualified on 15 June 2016, but was not convicted of that offence until 25 October 2016 at Parramatta Local Court. He was disqualified for two years following that conviction, and an outstanding habitual offender declaration also remained in force.
The central question was whether the date of the offence or the date of conviction should be used when calculating the two-year "relevant offence-free period" that governs both eligibility to apply and the court's power to grant relief.
Legal Issues
- Whether the date of the offence or the date of conviction is the operative date for determining when the "relevant offence-free period" begins.
- Whether the applicant was eligible to make an application under Division 3A of the Road Transport Act 2013 (NSW), given that a driving offence had occurred within two years before the application.
- Whether the Local Court had jurisdiction under s 221B to actually determine and grant the application, notwithstanding the applicant's eligibility to lodge it.
Decision
On eligibility to apply: Magistrate Still held that the date of the offence is the relevant date for the purposes of s 221D(3), which bars a person from making an application if they have "committed a driving offence" during the relevant offence-free period. Because the drive while disqualified offence occurred on 15 June 2016, it fell outside the two-year window preceding the application. The date of conviction was held to be irrelevant to this gateway question. The applicant was therefore eligible to lodge his application.
On the court's power to grant relief: The analysis then turned to s 221B(1)(a), which empowers the Local Court to remove disqualifications only where the person "has not been convicted of any driving offence for conduct during the relevant offence-free period." Magistrate Still found that the word "conduct" in that provision refers to the date of the offence, not the date of conviction. Because the applicant's driving offence was committed during the two-year period before the application, the prerequisite in s 221B(1)(a) was not satisfied.
On the second reading speech and explanatory note: Magistrate Still examined parliamentary materials from the Attorney-General's second reading speech and the Explanatory Note to the amending legislation. Both suggested that the legislative intention was that conviction for offences during the offence-free period should be determinative. The Magistrate noted, however, that this intention was not accurately reflected in the text of the Act as enacted.
Conclusion: While the applicant could lawfully make an application, the Local Court lacked jurisdiction to deal with it at that time. The court could not hear the application until two years had elapsed from the date of the conviction on 25 October 2016.
Orders Made
• The Local Court cannot deal with Mr Masri's application until such time as 2 years have passed from the date of his conviction for the offence of drive while disqualified, namely 25 October 2016.
Key Takeaways
- The Local Court held that the date of the offence, not the date of conviction, is the operative date for determining whether a person has "committed a driving offence" during the relevant offence-free period under s 221D(3) of the Road Transport Act 2013 (NSW).
- A distinction exists between eligibility to lodge an application and the court's jurisdiction to grant relief. A person may clear the s 221D(3) eligibility threshold using the offence date, yet still be unable to obtain relief under s 221B(1)(a) if a conviction relates to conduct that falls within the relevant offence-free period.
- Under s 221B(1)(a), the word "conduct" refers to the date of the relevant driving offence. Where conduct occurred within the relevant offence-free period, the prerequisite for the court to exercise its removal power is not met.
- Magistrate Still found that the second reading speech and explanatory note to the amending legislation did not accurately map onto the statutory text as enacted, creating an awkward result that the court was nonetheless bound to apply.
- The two-year relevant offence-free period applicable in "other cases" (as opposed to the four-year period for serious offences) runs before the determination of the application, not merely before its lodgment.
Legislation and Cases Referenced
Legislation:
- Road Transport Act 2013 (NSW), ss 221A, 221B, 221D
- Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), Schedule 1 [15]
Parliamentary Materials:
- Second reading speech, Attorney-General Mark Speakman, 12 September 2017
- Explanatory Note to the Road Transport Amendment (Driver Licence Disqualification) Act 2017
Cases: None cited in the judgment.