The Motor Vehicles Act 1959 (SA) governs the law relating to driving licences; including provisions relating to the obtaining of a learner’s permit, probationary licence, and full licence [see Motor Vehicles Act 1959 (SA); Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) for the law relating to the obtaining of a learner’s permit, probationary, provisional and full licence, and for specific offences for holders of learner’s permits, probationary and provisional licences]. Some commonly encountered offences under this Act are referred to below.
The Motor Vehicles Act 1959 (SA) prohibits a person from driving a motor vehicle on a road unless they hold a current and appropriate driver’s licence or learner’s permit for that particular class of vehicle [see s 74(3)].
Where the person has previously held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty is a fine of $1250 [see s 74(1)].
Where the person has never held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty for a first offence is a fine of $2,500, but for a subsequent offence, the maximum penalty is a fine of $5,000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. A subsequent offence includes any previous offence against this section or section 91(5) or (5a) (see Drive whilst disqualified (below)) for which the defendant has been convicted, but only if the previous offence was committed within three years prior to the date of the offence under consideration [see Motor Vehicles Act 1959 (SA) s 74(6); Police v Hallett (2010) 56 MVR 179; [2010] SASC 256; Camplin v Police [2007] SASC 94 for subsequent offence]. Where a person is convicted of an offence against section 74(2) which is a subsequent offence, there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. A subsequent offence under s 74(2) is not an expiable offence [see s 74(2b)].
If a driver has been disqualified for certain drink or drug driving offences, and drives without first reapplying for their licence at the end of the disqualification period, they will face a maximum penalty of a fine of $5000 or imprisonment for 1 year [see Motor Vehicles Act 1959 (SA) ss 74(2ab) and 74(2ac)].
This applies in one of the following circumstances where the offence for which the person was disqualified for:
Where a driver is convicted in these circumstances, and where the maximum penalty is a fine of $5000 or imprisonment for 1 year, they will also be liable to serve a mandatory 3 year licence disqualification [see Motor Vehicles Act 1959 (SA) s 74(5)(a)]. This disqualification period cannot be reduced or mitigated in any way [see Motor Vehicles Act 1959 (SA) s 74(5)(b)].
Where the person has been disqualified from driving as a consequence of being convicted of a serious drink driving offence, and has not since the end of the disqualification been authorised to drive a motor vehicle, the maximum penalty for driving disqualified is a fine of $5,000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)].
See section 81E of the Motor Vehicles Act 1959 (SA) for definition of serious drink driving offence.
This offence differs to the offences contained in section 74(2ab) of the Motor Vehicles Act 1959 (SA), which consider a person's drink and drug driving convictions and/or expiations from the preceding 5 years.
Where the person is convicted of an offence against section 74(2a) there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. An offence under section 74(2a) is not an expiable offence [see s 74(2b)].
| DEALING WITH DRIVING UNLICENSED MATTERS |
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| In respect of a first offence for driving unlicensed, a defendant can expect to be fined. As such, the duty solicitor does not usually deal with these matters.
However, the law has significantly changed in relation to repeat or serious drink and drug drivers who fail to reapply for their licence at the end of the disqualification period. A potential term of imprisonment can apply where a person is charged with driving unlicensed where that person has never previously held a driver’s licence or learner’s permit, or has been disqualified for a serious drink driving offence. Where there have been previous drink or drug convictions or expiations within the past 5 years, or where the offence is committed while a child aged under 16 years was present, there is also the possibility of a period of imprisonment being imposed and a mandatory licence disqualification of at least three years. Extreme speed and excessive speed are now offences with imprisonment penalties. The duty solicitor should approach these matters in a similar way as for the offence of driving whilst disqualified, as discussed below. |
As part of the penalty enforcement provisions under Part 7 Division 1 of the Fines Enforcement and Debt Recovery Act 2017 (SA), the Chief Recovery Officer may suspend a debtor’s driver’s licence by written determination [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 38(2)]. Such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence [see s 38(1)]. The suspension takes effect 14 days from the date of the determination and remains in effect until cancelled by the Chief Recovery Officer [s 38(3)].
A copy of the written determination must be given to the debtor [see s 38(2)(a)]. The person will have a defence to this charge if the notice of suspension was not received.
It is an offence to drive a motor vehicle on a road while a driver’s licence is suspended or or a person is disqualified from driving (see Motor Vehicles Act 1959 (SA) s 91). This section states that a person must not drive a motor vehicle on a road while his or her driver’s licence or learner’s permit is suspended, or while disqualified from driving in this State or any other State or Territory of the Commonwealth or from holding or obtaining a licence or learner’s permit [see Motor Vehicles Act 1959 (SA) s 91(5) and (5a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. Where licence is suspended under section 38 of the Fines Enforcement and Recovery Act 2017 (SA) the maximum penalty for a first offence is imprisonment for six months and for a subsequent offence the maximum penalty is imprisonment for two years [see Motor Vehicles Act 1959 (SA) s 91(5)]. In all other cases, the maximum penalty is imprisonment for 12 months for a first offence or imprisonment for 3 years for a subsequent offence (making the subsequent offence a minor indictable offence) [s 91(5a)].
| CHECK THAT THE CORRECT OFFENCE HAS BEEN LAID |
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| It is important to note that the penalties under section 91 now differentiate between a licence suspension under section 38 of the Fines Enforcement and Debt Recovery Act 2017 (SA) (fines suspension) and where the license is suspended or disqualified in any other case.
It is important to determine the nature of the operating order of disqualification or suspension and ensure that the correct offence has been laid before the Court. If in doubt, always seek the advice of a senior practitioner. |
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