Road Transport (General) Act 1999: Disallowance of the Road Transport (General) Amendment (Driver Licence Appeals) Regulation 2004

About this Item
SubjectsFines and Penalties; Law and Legislation: New South Wales; Speed limits; Motor Vehicles
SpeakersPresident; Gay The Hon Duncan; Chesterfield-Evans The Hon Dr Arthur; Wong The Hon Dr Peter
BusinessDivision, Motion
Commentary Disallowance of Regulation

Page: 10334

    The PRESIDENT: Pursuant to standing orders the question is: That the motion proceed as business of the House.

    Question agreed to.

    Motion by the Hon. Duncan Gay agreed to:

    That the matter proceed forthwith.
    The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [11.16 a.m.]: I move:

    That, under section 41 of the Interpretation Act 1987, this House disallows the Road Transport (General) Amendment (Driver Licence Appeals) Regulation 2004 published in the Government Gazette No. 77, dated 30 April 2004, page 2241, and tabled in this House on 4 May 2004.

    The Opposition is moving to disallow the Road Transport (General) Amendment (Driver Licence Appeals) Regulation 2004 because of the basic premise that it denies natural justice through the appeals process. We are indebted to the Law Society, among others, for bringing this matter to our attention and for speaking to other members of Parliament. Amendments to provisions relating to appeals to the Local Court from decisions of the Roads and Traffic Authority [RTA] were made by regulation in New South Wales Government Gazette No. 77 on 30 April 2004. The regulation is the Road Transport (General Amendment (Driver Licence Appeals) Regulation 2004.

    The Opposition believes there should always be a mechanism for reviewing administrative decisions or actions in the Local Court; in this case, the decisions or actions of the RTA as they affect people's licences. The right to appeal an administrative decision is one of the cornerstones of our justice system. In fact, I am at a loss to understand why the Government moved this regulation in the first place, because it very much denies natural justice.

    The regulation removes the right of appeal for a driver who attracts 12 or more demerit points in three years. This regulation gives greater power to the RTA, such as in the well-known Hillyard case. In 2003 Mr Hillyard incurred demerit points for disobeying traffic lights. The Local Court found the offence proved, but did not record a conviction because Mr Hillyard was not the driver of the car at the time. Nevertheless the RTA attributed three demerit points to Mr Hillyard, which meant that he then had accumulated 12 points within three years and his licence was suspended.

    The court upheld Hillyard's appeal because he was not the driver. The RTA appealed to both the Supreme Court and the Court of Appeal, but they both ruled in favour of Hillyard. Under the regulation we are moving to disallow today, although Mr Hillyard was not even driving the car when the infringement occurred, he would lose his licence with no right of appeal. Surely any right-thinking person could not allow that to happen. Interestingly, the right of appeal is retained for provisional licence holders who incur four or more demerit points, for prescribed speeding offences at greater than 30 kilometres per hour or greater than 45 kilometres per hour, and for visiting drivers, both interstate and international, driving in New South Wales without obtaining a licence.

    It is difficult to understand why highly experienced drivers may be suspended without the prospect of appeal, yet younger, inexperienced drivers rightly maintain the full right of appeal. This means that an experienced driver with a long record of good, safe driving can lose his or her licence, without any right of appeal, for exceeding his or her 12 points over a short period through a couple of offences. For example, consider long weekends when double demerit points apply: Even a driver with a long and relatively clear driving record could acquire more than 12 demerit points. Perhaps our hypothetical driver—it is not so hypothetical, because I know of at least one example in this House, but it is not me.


    I now know of two examples. Perhaps our hypothetical driver exceeded the speed limit by more than 15 kilometres an hour but less than 30 kilometres an hour. On a long weekend that is six demerit points. And perhaps on the same weekend another family member driving the same car went through a red light. That means his or her licence would be gone instantly, with no right of appeal. I am not saying that anyone here condones dangerous and irresponsible driving—we all know that speeding kills—but extreme circumstances can sometimes occur, and the driver should have the right to make his case to the Local Court should he lose his licence under such circumstances. Suspension by the RTA, without any regard for who was actually driving the car and whether that person had a blemish-free licence, should be appealable to the Local Court.

    The Local Court is ideal to review such decisions as it deals with the vast majority of traffic-related offences. It can either confirm the Roads and Traffic Authority's decision or vary the decision to allow the person to retain their licence in appropriate circumstances. The removal of the right to appeal means that a court cannot take into account the particular important personal circumstances of the driver involved. Despite Minister Scully's assurances that it is a nationally agreed position that there should be no appeal in relation to demerit points, New South Wales is in fact going it alone on this unjustified and incomprehensible measure. Why am I not surprised that Carl Scully has once again mislead us when he said that it was a nationally agreed position?

    The Hon. Dr Arthur Chesterfield-Evans: He's always misleading us.

    The Hon. DUNCAN GAY: He is a much misunderstood person, as we all know. Just ask Minister Costa. Mislead, indeed! The Minister knew what he was talking about. Victoria, Western Australia and South Australia still have the right of appeal in such cases, and in Tasmania a court can vary demerit points. Queensland drivers have a right of appeal in circumstances relating to extreme hardship to the person or their family. So bang goes Carl's statement! Disallowance of the regulation will reinstate some existing appeal rights with regard to the administrative decisions of the Roads and Traffic Authority.

    Frankly, limitations on appeal rights are a denial of natural justice and fail to acknowledge the consequences that may flow from the application of a rigid administrative regime for drivers with previously longstanding good records. We are not saying that people should be let off; we are saying that the Government should put in place an appeal process so that if someone has been wrongly convicted in this situation there is natural justice and they can lodge an appeal. It is not a case of the rich of our society being able to rort the system when the underprivileged cannot. This is a simple case of natural justice. I hope we will have support for disallowing the regulation.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.25 a.m.]: I support the motion. The fact is that since speed cameras were introduced, and since the speed limit was lowered, many more people have been caught. Of course, if more and more people are caught, more and more people will get points and lose their licence. Presumably this will clog up the courts, and that is why the Government has gone ahead with the regulation. The difficulty with losing one's licence is that public transport in most parts of New South Wales is absolutely hopeless. It inevitably takes people hours to get from A to B if they have to go by other than a direct route, unless they are on a train line or a bus route. Buses are not frequent and most people simply cannot live without a car. We are a car-dependent society.

    Because of speed cameras, I have many more demerit points than I used to. When I drove around Bangalow I noticed the huge change in speed limits. When I went to Wollongong, where I grew up, I found that the speed limit on the main road had been lowered by 10 kilometres an hour. Where I now live in Lane Cove the speed limit has been lowered by 10 kilometres an hour. Each time a person gets caught—and many people are getting caught—the idea that others simply sneer and say, "It's your own damn fault" is hardly the point. I do not believe that most of us are driving more unsafely than we used to. However, we are collecting a lot more points, and the Government is collecting a lot more revenue. It is a bit rough if the RTA suspends a licence without taking all this into account under this cumbersome and unreasonable regulation. I believe that the regulation should be disallowed.

    The Hon. Dr PETER WONG [11.27 a.m.]: I support the motion moved by the Deputy Leader of the Opposition. I believe that in some instances we inadvertently break the rules—it is not deliberate. The fact that double demerit points apply during holidays is a good example. Anyone standing in one of the school zones along Parramatta Road, Leichhardt, during school hours would see that probably one in two drivers is driving above 40 kilometres an hour, and they should probably lose points every day. I predict that once the speed limit on Sydney's streets is lowered to 40 kilometres an hour the traffic police will catch many drivers driving above 40 kilometres an hour at night. I think it is dangerous that there is no appeal system. I congratulate the Deputy Leader of the Opposition on moving this motion.

    The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [11.28 a.m.], in reply: I commend the motion to the House. Once again I indicate that my aim is not to allow people who have accumulated points for speeding to avoid having those points. Rather, and quite simply, it is to give a right of appeal to a person caught speeding, other than by a speed camera, and whose licence is suspended. The reality of this regulation is that a person who might not have been the driver is deemed to have been the driver because they are the owner of the car, without any appeal. So disallowing the motion would reinstate natural justice. Disallowance will not enable restoration of points that any of us have lost—and, from discussions in the Chamber, it seems quite a few have lost points—it will simply ensure natural justice.

    Question—That the motion be agreed to—put.

    The House divided.
    Ayes, 22
    Mr Breen
    Dr Chesterfield-Evans
    Mr Clarke
    Mr Cohen
    Ms Cusack
    Mrs Forsythe
    Miss Gardiner
    Mr Gay
    Ms Hale
    Mr Jenkins
    Mr Lynn
    Reverend Dr Moyes
    Reverend Nile
    Mr Oldfield
    Ms Parker
    Mrs Pavey
    Mr Pearce
    Ms Rhiannon
    Mr Tingle
    Dr Wong
      Mr Colless
      Mr Harwin
      Noes, 15
      Ms Burnswoods
      Mr Catanzariti
      Mr Della Bosca
      Mr Egan
      Ms Fazio
      Ms Griffin
      Mr Kelly
      Mr Macdonald
      Mr Obeid
      Ms Robertson
      Mr Roozendaal
      Ms Tebbutt
      Mr Tsang

      Mr Primrose
      Mr West
      Mr Gallacher
      Mr Costa
      Mr RyanMr Hatzistergos

      Question resolved in the affirmative.

      Motion agreed to.