Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 (Qld)

Queensland Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 Subordinate Legislation 2006 No. 303 made under the Transport Operations (Road Use Management) Act 1995 Contents Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 Amendment of s 5 (Motorbike licences) . . . . . . . . . . . . . . . . . . . . 3 5 Amendment of s 6 (Other types of licences) . . . . . . . . . . . . . . . . 3 6 Amendment of s 14B (Definitions for pt 3A) . . . . . . . . . . . . . . . . . 3 7 Amendment of s 14D (Application). . . . . . . . . . . . . . . . . . . . . . . . 4 8 Amendment of s 14E (Licences authorising learning to ride under Q-Ride training) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9 Amendment of s 23 (Allocation of demerit points) . . . . . . . . . . . . 4 10 Amendment of s 25 (Queensland driver licence holder) . . . . . . . 4 11 Insertion of new s 25A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 25A Recording of demerit points while subject to section 79E order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 12 Amendment of s 30 (Application of pt 6A) . . . . . . . . . . . . . . . . . . 6 13 Insertion of new pt 6B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Part 6B Provisions relating to section 79E orders Division 1 Purpose of part 6B 30E Purpose of pt 6B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 30F Definitions for pt 6B . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Division 2 Application for section 79E order 30G Persons who are eligible, or not eligible, to apply for order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 30H Applying for order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Division 3 Deciding application for section 79E order 30I Hearing of application. . . . . . . . . . . . . . . . . . . . . . . . . 10 30J Criteria for deciding application for order . . . . . . . . . . 11 30K What order must state and restrictions applying to licence to which order relates . . . . . . . . . . . . . . . . . . . 12 Division 4 Variation of a section 79E order 30L Person may apply for order to vary restrictions . . . . . 13 30M Applying for order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 30N What order must state . . . . . . . . . . . . . . . . . . . . . . . . 15 Division 5 Driving under section 79E order 30O Failing to comply with order . . . . . . . . . . . . . . . . . . . . 15 30P Suspension for allocation of demerit points while order applies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 30Q Committing high speed offence while driving under order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 14 Amendment of sch 1 (Fees) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 15 Amendment of sch 2 (Licence codes) . . . . . . . . . . . . . . . . . . . . . 18 16 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 18

s1 3 s6 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 1 Short title This regulation may be cited as the Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 . 2 Commencement This regulation commences on 15 December 2006. 3 Regulation amended This regulation amends the Transport Operations (Road UseManagement—Driver Licensing) Regulation 1999. 4 Amendment of s 5 (Motorbike licences) Section 5— insert— ‘(3AA) However, subsection (3) does not apply to a person authorised to continue to drive motor vehicles under a section 79E order.’. 5 Amendment of s 6 (Other types of licences) Section 6— insert — ‘(7A) However, subsections (2)(b), (3)(b), (4)(b), (5)(b), (6)(b) and (7)(b) do not apply to a person authorised to continue to drive motor vehicles under a section 79E order.’. 6 Amendment of s 14B (Definitions for pt 3A) Section 14B— insert—

s 7 4 s 11 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘ declared class RE licence means a licence granted to a person by the chief executive because the person holds a competency declaration for a class RE motorbike.’. 7 Amendment of s 14D (Application) Section 14D— insert— ‘(2) This part does not apply to the holder of— (a) an authorising licence in relation to which a section 79E order applies; or (b) a declared class RE licence in relation to which a section 79E order applies.’. 8 Amendment of s 14E (Licences authorising learning to ride under Q-Ride training) Section 14E(4)— omit. 9 Amendment of s 23 (Allocation of demerit points) Section 23(6)— omit. 10 Amendment of s 25 (Queensland driver licence holder) Section 25— insert— ‘(1A) However, this section does not apply if section 25A or 30P applies.’. 11 Insertion of new s 25A After section 25—

s 11 5 s 11 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 insert — ‘25A Recording of demerit points while subject to section 79E order ‘(1) This section applies to a person who holds an open licence if— (a) the person commits a demerit points offence or interstate offence (a previous offence ) when there is no section 79E order in relation to the person; and (b) a section 79E order is subsequently made in relation to the person; and (c) while the person is authorised to continue to drive motor vehicles under the section 79E order, either of the following happens— (i) the person is convicted of the previous offence; (ii) an order is made against the person under— (A) the StatePenaltiesEnforcementAct1999 , section 38 for the previous offence; or (B) a corresponding law for the interstate offence; and (d) because of the conviction or the order mentioned in paragraph (c), demerit points are recorded on the person’s traffic history for the previous offence; and (e) because of the recording of the demerit points for the previous offence, 12 or more demerit points are recorded on the person’s traffic history and the demerit points were allocated in a continuous 3 year period. ‘(2) The chief executive must give the person a written notice stating the person’s Queensland driver licence is suspended for the requisite suspension period starting on the date stated in the notice. ‘(3) The date stated must not be less than 14 days after the date of the notice.

s 12 6 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘(4) The person’s Queensland driver licence is suspended for the requisite suspension period starting on the date stated in the notice.’. 12 Amendment of s 30 (Application of pt 6A) Section 30— insert — ‘(2) However, this part does not apply if section 30Q applies to the person.’. 13 Insertion of new pt 6B After part 6A— insert — ‘Part 6B Provisions relating to section 79E orders ‘Division 1 Purpose of part 6B ‘30E Purpose of pt 6B ‘This part provides for matters relating to a section 79E order. Note — A section 79E order authorises a person whose Queensland driver licence has been suspended under section 79B(2) of the Act to continue driving motor vehicles under the licence, including a renewal of the licence, in circumstances stated in the order. Despite the order, the person can not drive a motor vehicle under a Queensland driver licence until the person obtains a replacement licence under section 79F of the Act. ‘30F Definitions for pt 6B ‘In this part—

s 13 7 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 relevant charge , for a person’s suspended licence, means the charge that resulted in the licence being suspended under section 79B(2) of the Act. suspended licence , of a person, means the person’s Queensland driver licence that has been suspended under section 79B(2) of the Act, because the person has been charged as mentioned in section 79B(1)(a), (b) or (d). ‘Division 2 Application for section 79E order ‘30G Persons who are eligible, or not eligible, to apply for order ‘(1) A person who has a suspended licence is eligible to apply for a section 79E order if— (a) the suspended licence is an open licence; and (b) the application relates to a licence of the same class as the suspended licence. ‘(2) A person who has a suspended licence is not eligible to apply for a section 79E order if— (a) at the time of the relevant charge for the suspended licence— (i) the person had been previously charged for an offence under section 79 or 80 1 of the Act; and (ii) the previous charge had not been dealt with by a court, withdrawn or otherwise discontinued; or (b) the act or omission that resulted in the relevant charge for the suspended licence happened, or is alleged to have happened, in 1 or more of the following circumstances— 1 Section 79 (Driving etc. whilst under influence of liquor or drugs or with prescribed concentration of alcohol in blood or breath) or 80 (Provisions with respect to breath tests and laboratory tests) of the Act

s 13 8 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 (i) while the person was engaged in an activity directly connected with the person’s means of earning a living; (ii) while the person was driving a motor vehicle the person was not authorised, under an open licence, to drive; (iii) while the person held a restricted licence issued under an order made under section 87 2 of the Act; (iv) while the person was driving a motor vehicle to which section 79(2B) of the Act applies; (v) during a period for which the person had agreed, under section 25(2)(b), to be of good behaviour while driving; (vi) after the person had been given a notice to choose under section 25(2), but before the person had chosen as mentioned in that section in relation to the notice; or (c) within 5 years before the relevant charge for the suspended licence— (i) a Queensland driver licence held by the person had been suspended or cancelled, or the person had been disqualified from holding or obtaining a Queensland driver licence; or (ii) an authority to drive on Queensland roads under a non-Queensland driver licence previously held by the person had been suspended; or (iii) the person was made ineligible to hold a Queensland driver licence under section 28(2) or 30C; or (iv) the person had been convicted— (A) of an offence against section 79 or 80(11) of the Act; or 2 Section 87 (Issue of restricted licence to disqualified person) of the Act

s 13 9 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 (B) of an offence against the CriminalCode, section 328A; 3 or (C) outside Queensland of an offence that if committed in Queensland would be an offence against section 79 or 80(11) of the Act. ‘(3) In subsection (2)(c)(i), the reference to a suspension, cancellation or disqualification does not include the following— (a) a suspension under section 79(9) of the Act; (b) a suspension under section 79B(2) of the Act; (c) a 24 hour suspension under section 80(22AA) of the Act; (d) a suspension or cancellation that was set aside under section 38(4); (e) a suspension, cancellation or disqualification that was set aside on appeal; (f) a suspension, cancellation or disqualification because of the person’s mental or physical incapacity; (g) a suspension under the State Penalties Enforcement Act1999 , section 105. 4 ‘30H Applying for order ‘(1) A person may apply for a section 79E order only to a court in the division of the Brisbane Magistrates Courts District, or other Magistrates Courts district— (a) in which the relevant charge for the person’s suspended licence was laid; or (b) in which the person resides. ‘(2) An application for a section 79E order must be— 3 Criminal Code, section 328A (Dangerous operation of a vehicle) 4 State Penalties Enforcement Act 1999 , section 105 (Suspension of driver licence)

s 13 10 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 (a) made within 21 clear days after the applicant’s licence was suspended under section 79B(2) of the Act; and (b) made in the approved form; and (c) accompanied by the information, or details of the information, the applicant intends to rely on for the application. Note — See section 30J(2) and (3) for particular evidence the applicant must give to the court. ‘(3) Subsection (2)(c) does not prevent the applicant from giving or producing further evidence at the hearing of the application. ‘(4) The applicant must give the commissioner a copy of the application, including the information or details mentioned in subsection (2)(c)— (a) if the day of the hearing is within 4 days after the day the application is made—as soon as practicable but before the day of the hearing; or (b) otherwise—as soon as practicable but at least 3 days before the day of the hearing. ‘Division 3 Deciding application for section 79E order ‘30I Hearing of application ‘(1) For an application for a section 79E order— (a) the applicant must, if required by the court, submit himself or herself as a witness; and (b) other persons may be called as witnesses; to give evidence in relation to all matters relevant to the application and may be cross-examined in relation to the evidence. ‘(2) The commissioner may—

s 13 11 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 (a) appear and be heard at the hearing of the application; and (b) give and produce evidence at the hearing for or against the making of the order; and (c) examine and cross-examine witnesses called to give evidence at the hearing. ‘30J Criteria for deciding application for order ‘(1) A court may make a section 79E order only if the court is satisfied— (a) the applicant for the section 79E order is a fit and proper person to continue to drive, having regard to the applicant’s traffic history, the safety of other road users and the public generally; and (b) that if the order is made, having regard to the applicant’s traffic history, there would not be an unacceptable risk of the applicant committing an offence against section 79 or 80 of the Act; and (c) a refusal to make the order would— (i) cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or (ii) cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living; and (d) when the order is made, the applicant holds an open licence that would be valid but for the suspension, under section 79B(2) of the Act, to which the section 79E order relates. Note — See also section 79E(1) of the Act for requirements about eligibility for a section 79E order and the charges in relation to which a section 79E order may be made.

s 13 12 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘(2) For subsection (1)(c)(i), the applicant must give the following to the court— (a) an affidavit made by the applicant outlining how the refusal to make the order would cause extreme hardship to the applicant or the applicant’s family; (b) if the applicant is not self-employed—an affidavit made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application is refused. ‘(3) For subsection (1)(c)(ii), the applicant must give to the court an affidavit made by the applicant that— (a) outlines how the refusal to make the order would cause severe and unusual hardship to the applicant or the applicant’s family; and (b) has attached to it statutory declarations from persons other than the applicant, other documentary evidence, or certified copies of evidence, in support of each matter stated in the affidavit. ‘30K What order must state and restrictions applying to licence to which order relates ‘(1) If a court decides to make a section 79E order in relation to a person, the order must state the following— (a) that the order only applies while the person holds a valid open licence and until the relevant charge for the person’s suspended licence in relation to which the order is made is dealt with by a court or is withdrawn or otherwise discontinued; (b) that while the order applies in relation to the person’s licence, including a renewal of the licence, the licence is subject to the restrictions stated in the order; (c) that, despite the order, the person is not authorised to drive a motor vehicle under a Queensland driver licence until the person obtains a replacement licence under section 79F of the Act.

s 13 13 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘(2) The restrictions stated in the section 79E order must include the following— (a) the purpose for which a motor vehicle may be driven under the licence; (b) the class of motor vehicle that may be driven under the licence; (c) the times at which or period of time during which a motor vehicle may be driven under the licence; (d) that a motor vehicle may be driven under the licence only if the person is carrying a copy of the order. ‘(3) Also, the restrictions stated in the section 79E order may include the following— (a) restrictions on where a motor vehicle may be driven under the licence, including, for example, the starting and ending places for journeys under the licence; (b) whether or not passengers may be carried in a motor vehicle being driven under the licence and, if they can be carried, the names or other identifying details of the passengers who may be carried; (c) any other restriction the court considers appropriate. ‘Division 4 Variation of a section 79E order ‘30L Person may apply for order to vary restrictions ‘(1) This section applies if— (a) a court makes a section 79E order authorising a person to continue to drive motor vehicles under the person’s licence, including a renewal of the licence, in stated circumstances; and (b) the circumstances change. Example — A person is authorised under a section 79E order to continue to drive motor vehicles under the person’s licence, including a

s 13 14 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 renewal of the licence, to and from a stated place of work, and the person’s place of work changes. ‘(2) On application to a court by the person, the court may, by order (a section 79E variation order ), vary the restrictions applying to the person’s licence under the section 79E order. ‘30M Applying for order ‘(1) A person may apply for a section 79E variation order only to a court in the division of the Brisbane Magistrates Courts District, or other Magistrates Courts district— (a) in which the relevant charge for the person’s suspended licence in relation to which the relevant section 79E order applies was laid; or (b) in which the person resides. ‘(2) An application for a section 79E variation order must be— (a) made in the approved form; and (b) accompanied by the information, or details of the information, the applicant intends to rely on for the application. ‘(3) Without limiting subsection (2)(b), if the reason for the application is that the applicant has changed employer, the applicant must give to the court an affidavit made by the applicant’s new employer confirming the applicant— (a) is currently employed by the new employer; and (b) would be deprived of the applicant’s means of earning a living if the application is refused. ‘(4) Subsection (2)(b) does not prevent the applicant from giving or producing further evidence at the hearing of the application. ‘(5) For an application for a section 79E variation order— (a) the applicant must, if required by the court, submit himself or herself as a witness; and (b) other persons may be called as witnesses;

s 13 15 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 to give evidence in relation to all matters relevant to the application and may be cross-examined in relation to the evidence. ‘(6) The applicant must give the commissioner a copy of the application, including the information or details mentioned in subsection (2)(b)— (a) if the day of the hearing is within 4 days after the day the application is made—as soon as practicable but before the day of the hearing; or (b) otherwise—as soon as practicable but at least 3 days before the day of the hearing. ‘30N What order must state ‘A section 79E variation order must state the new restrictions that are to apply to the applicant’s open licence during the remainder of the period for which the section 79E order applies in relation to the licence. ‘Division 5 Driving under section 79E order ‘30O Failing to comply with order ‘(1) A person authorised to continue to drive motor vehicles under a section 79E order must comply with the order, including the restrictions applying to the licence that are stated in the order, subject to any variation of the restrictions under a section 79E variation order. Maximum penalty—20 penalty units. ‘(2) Subsection (3) applies if— (a) a person is convicted of an offence against subsection (1); and (b) the relevant charge for the person’s suspended licence in relation to which the section 79E order applies has not been dealt with by a court or has not been withdrawn or otherwise discontinued.

s 13 16 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘(3) The court must disqualify the person from holding or obtaining a Queensland driver licence until the charge of the offence is dealt with by a court or is withdrawn or otherwise discontinued. ‘30P Suspension for allocation of demerit points while order applies ‘(1) This section applies if— (a) a person holds a replacement licence issued under section 79F of the Act; and (b) 4 or more demerit points are allocated to the person’s traffic history during any continuous 1 year period while the section 79E order, for which the replacement licence was issued, applies in relation to the licence. ‘(2) The chief executive must give the person a written notice stating that the person’s Queensland driver licence is suspended, starting on the date stated in the notice, for the longer of— (a) 3 months; or (b) until the relevant charge for the person’s suspended licence in relation to which the section 79E order applies is dealt with by a court or is withdrawn or otherwise discontinued. ‘(3) The person’s Queensland driver licence is suspended for the longer of the following starting on the date stated in the notice— (a) 3 months; (b) until the relevant charge for the person’s suspended licence in relation to which the section 79E order applies is dealt with by a court or is withdrawn or otherwise discontinued. ‘(4) The date stated in the notice must not be less than 14 days after the date of the notice.

s 13 17 s 13 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 ‘30Q Committing high speed offence while driving under order ‘(1) This section applies to a replacement licence holder— (a) who has been convicted for a contravention of the Queensland Road Rules, section 20 5 for driving a motor vehicle under the licence at more than 40km/h over the speed limit; or (b) against whom an order has been made under the StatePenaltiesEnforcementAct1999 , section 38 6 for the contravention. ‘(2) The chief executive must give the holder a written notice stating that the holder’s Queensland driver licence is suspended, starting on the date stated in the notice, for the longer of— (a) 6 months; or (b) until the relevant charge for the holder’s suspended licence in relation to which the section 79E order applies is dealt with by a court or is withdrawn or otherwise discontinued. ‘(3) The holder’s Queensland driver licence is suspended for the longer of the following starting on the date stated in the notice— (a) 6 months; (b) until the relevant charge for the holder’s suspended licence in relation to which the section 79E order applies is dealt with by a court or is withdrawn or otherwise discontinued. ‘(4) The date stated in the notice must not be less than 14 days after the date of the notice. ‘(5) In this section— 5 Queensland Road Rules, section 20 (Obeying the speed limit) 6 State Penalties Enforcement Act 1999 , section 38 (Issue of enforcement order)

s 14 18 s 16 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 replacement licence holder means a person who holds a replacement licence issued under section 79F of the Act.’. 14 Amendment of sch 1 (Fees) (1) Schedule 1, items 5 to 7— renumber as items 6 to 8. (2) Schedule 1— insert — ‘5 Issue of replacement licence under section 79F of the Act 24.60’. 15 Amendment of sch 2 (Licence codes) Schedule 2, part 1, after entry for X1— insert— ‘X4 . . . . . . licensee may only drive while carrying, and in accordance with, a section 79E order and any section 79E variation order’. 16 Amendment of sch 6 (Dictionary) (1) Schedule 6— insert— ‘ declared class RE licence , for part 3A, see section 14B. demerit points offenc e means an offence, other than an offence committed by a person while riding a bicycle, against a provision mentioned in schedule 3. interstate offence means an offence under a corresponding law that corresponds to a demerit points offence. relevant charge , for part 6B, see section 30F. section 79E order see section 79F(1) of the Act. section 79E variation order see section 30L. suspended licence , for part 6B, see section 30F.’.

s 16 19 s 16 Transport Operations (Road Use Management—Driver Licensing) Amendment Regulation (No. 2) 2006 No. 303, 2006 (2) Schedule 6, definition requisite suspension period , paragraph (a), after ‘section 25(1)(c)’— insert— ‘, 25A(1)’. ENDNOTES 1 Made by the Governor in Council on 14 December 2006. 2 Notified in the gazette on 15 December 2006. 3 Laid before the Legislative Assembly on . . . 4 The administering agency is the Department of Transport. © State of Queensland 2006