Licence disqualification after certain offences: when will I receive cumulative disqualification periods? by Rachna Nagesh
Licence disqualification after certain offences: when will I receive cumulative disqualification periods?
Introduction
A driving licence is essential to our daily lives for a range of reasons – getting to and from work, driving children to school and extra-curriculars, and social lives outside of both. It is a critical component to our right to move freely and the freedom to choose where to live under the Human Rights Act 2019 (Qld).
For this reason, it is incredibly important to be aware of the consequences to your driver licence if you are charged with a traffic offence or certain criminal offences.
When you are charged with a traffic offence or certain criminal offences, you may be faced with a licence disqualification. In certain cases where you have been charged with more than one relevant offence, regardless of whether they occurred at the same or different times, the Court may be required to impose a cumulative disqualification.
What is a cumulative disqualification?
A cumulative disqualification is where periods of disqualification are imposed for each offence and required to be served one after the other. The first disqualification period will start on the date of the court conviction and the second and later disqualification periods will start when the previous disqualification period has been served.
Sections 90A to 90D of the Transport Operations (Road Use Management) Act 1995 (Qld) govern the circumstances where licence disqualifications are to operate cumulatively.
The offences which are part of this regime are:
- Drink driving;
- Drug driving;
- Disqualified or unlicenced driving, or driving outside the conditions of your licence (e.g., conditions of restricted licence);
- Failing to provide a breath, blood or saliva specimen;
- Driving outside the conditions of your restricted licence (e.g., driving without an interlock); and
- Dangerous operation of a motor vehicle under the Criminal Code 1899 (Qld) only if the person was affected by drugs or alcohol at the time of the offence.
When will I receive cumulative disqualification periods?
This means that if any of the below scenarios apply, then your licence disqualification periods must operate cumulatively:
- You are charged with one of the above offences and issued a notice to appear. After this but before you plead guilty to the charge, you are charged again with another of the above offences and issued a further notice to appear.
- You are charged with two of the above offences arising from the same incident (e.g., you were driving while disqualified and had consumed drugs or alcohol above any legal limit).
This means that if you are disqualified for 6 months on a drink driving charge, and disqualified for 2 years on a disqualified driving charge, the overall period of your disqualification is 2.5 years.
However, certain offences do not fall within this regime. Importantly, evasion of police under the Police Powers and Responsibilities Act 2000 (Qld), and dangerous operation of a motor vehicle where the person was not intoxicated at the time, are not captured.
This means that, for example, if you are charged with both drink driving and evasion of police, your licence disqualification periods will begin at the same time (concurrent). Your licence disqualification will end when the longer disqualification period ends. For example, if you are disqualified for 6 months on a drink driving charge and 2 years for an evasion of police charge, the overall period of your disqualification is 2 years.
Can I drive after my cumulative disqualification period is over?
Before you can legally start driving again, you need to visit your nearest Department of Transport and Main Roads customer service centre, authorised Queensland Government Agency Program office or licence issuing police station. They will issue you with a new driver licence.
Depending on the nature of your offending, your age and whether you were on your L or P plates, you may have further restrictions on your licence.
Sentencing young adults by Rachna Nagesh
Sentencing young adults
The present positions of the Queensland Government and Opposition regarding youth justice, as a matter of policy, are extremely concerning.
They also stand in contrast to the principles of sentencing of young adults, to whom a sentence of imprisonment remains a last resort. In the case of R v Hamstra [2020] QCA 185, Sofronoff P (with Fraser JA and McMurdo JA agreeing) discuss the purposes of sentencing and the importance of considering the useful purpose to be served by sentencing a youthful offender to a period of imprisonment.
His Honour poses three important questions earlier in the judgment:
‘1. Does general deterrence require the defendant to be imprisoned?
- Does the need to satisfy the community’s justifiable sense of outrage require for its vindication the actual incarceration of a young person?
- Does the need for personal deterrence require that the applicant serve a period of actual imprisonment?’
In many cases dealt with by the courts, as in this case, the answer to all three questions will be ‘No’.
What this judgment does not discuss, as it did not arise in the circumstances, is the rehabilitative purpose of sentencing, especially crucial in dealing with young adults. A fourth question that should be asked is:
Will the actual incarceration of a young person disrupt their rehabilitation and instead expose them to and/or entrench further criminogenic behaviour?
Publication of identity of defendants to certain sexual offences no longer prohibited by Rachna Nagesh
Publication of identity of defendants to certain sexual offences no longer prohibited.
The Criminal Law (Sexual Offences) Act 1978 (Qld) was amended effective 3 October 2023 such that it no longer prohibits the publication of the identity of defendants to certain sexual offences.
Overview of the changes
Prior to the amendments being made, there was a prohibition in Queensland on the identification of an adult defendant charged with certain sexual offences prior to the finalisation of committal proceedings. The sexual offences to which the provision applied were rape, attempt to commit rape, assault with intent to commit rape and sexual assault.
The new amendments to this legislation have removed this prohibition and put in place a process by which defendants can apply to the Magistrates Court for a non-publication order prohibiting the publication.
The application process
There is a prescribed process for this application, including giving three clear business days’ notice of the intention to make the application to both the court and any other eligible person. The court must also notify “each accredited media agency” so that they can appear and be heard on the application.
The procedure regarding making the application has been outlined in a Magistrates Court Practice Direction 4 of 2023.
The court may make a non-publication order where an adult defendant is charged with a prescribed sexual offence if satisfied of one or more of the following grounds:
(i) the order is necessary to prevent prejudice to the proper administration of justice;
(ii) the order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge;
(iii) the order is necessary to protect the safety of any person.
In hearing the application, the court may receive and take into account evidence of any kind it considered credible or trustworthy, and must consider the following:-
(i) the primacy of the principle of open justice;
(ii) the public interest;
(iii) any submissions made or views expressed by or on behalf of the complainant about the application;
(iv) any special vulnerabilities of the complainant or the defendant;
(v) any cultural considerations relating to the complainant or the defendant;
(vi) the potential effect of publication in a rural or remote community;
(vii) the potential to prejudice any future court proceedings;
(viii) the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history);
(ix) any other matter the court considers relevant.
Potential consequences
Parliament has made clear that the possibility of reputational damage to a defendant is not in itself sufficient grounds for a non-publication order.
Furthermore, making the application may itself incentivise the media to publish a report revealing the defendant’s identity in relation to the charges. This is because they would have been advised of the application by the court and had the opportunity to be heard on the application in court. This is exacerbated if the court rules that they are not prohibited from publication of the defendant’s identity.
In those circumstances, adult defendants should be extremely cautious in deciding whether to make an application for non-publication and ensure to receive legal advice on the issue. This is especially the case where there has been little to no media attention on a defendant’s charges.
Protection by proxy?
There are other prohibitions in place that may, by proxy, protect a defendant’s identity. For example:
- Child complainants cannot be identified under the Child Protection Act 1999 (Qld). If identification of the defendant could identify the child complainant, then the identification of the defendant is also prohibited.
- Complainants to sexual offences cannot be identified unless a court orders otherwise. If identification of the defendant could identify the complainant and there is no court order permitting publication of the complainant’s identity, then the identification of the defendant is also prohibited.
How ROG can help you
Our team has significant experience in criminal matters of this nature. Contact us on our website or call (07) 3034 0000 for a free case appraisal.
AFS LICENSEE AND CREDIT LICENSEE DISCLOSURE OBLIGATIONS by Rachna Nagesh
Background
Companies that offer financial advisory services must hold an Australian Financial Services licence (“AFS licence”). If they employ financial advisors, they can appoint them as “authorised representatives”. Bodies corporate, partnerships or trustees can also be appointed as authorised representatives.
Companies that offer mortgage broking services must hold a credit licence with the National Credit Code (“credit licence”). If they employ mortgage brokers, they can appoint them as “credit representatives”.
The obligations for authorised representatives of AFS licence and credit licence holders are the same.
When appointing an authorised representative or credit representative, there are requirements for background checks, for the licensee (i.e. company) to ensure the representative is adequately trained, and that there are adequate systems and procedures in place for monitoring and supervising their representatives. Appointments must be made with written consent.
Is there a disclosure obligation?
AFS and credit licensees must report all ‘reportable situations’ to ASIC.[1]
It is automatically considered to be a ‘reportable situation’ if an AFS or credit licensee has committed:[2]
- A dishonesty offence under any law that has a maximum penalty of 3 months’ imprisonment or more, or
- Any offence under any law that has a maximum penalty of 12 months’ imprisonment or more.
Failure to report to ASIC in accordance with the obligations is an offence and can lead to criminal or civil penalties.[3]
Who has the obligation?
This obligation attaches to the licensee itself, not to the authorised representative or credit representative. However:[4]
“[l]icensees must have robust arrangements in place with their authorised representatives and credit representatives… that are effective in identifying, recording and escalating possible breaches by an authorised representative or a credit representative, and ensure appropriate supervision in respect of these arrangements.”
The legislation does not prescribe what these reporting arrangements will be, meaning the authorised representative or credit representative will have to refer to their company’s policy and/or employment contract.
When does the obligation arise?
A report must be lodged with ASIC within 30 calendar days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe a reportable situation has arisen.[5]
Knowledge and recklessness are defined in accordance with their definition in the Commonwealth Criminal Code.
What is “commission of an offence”?
This phrase is not defined in either legislation.
However, the Regulatory Guide RG 78 provides an example:
“For example, if the licensee identifies, after complaints have been lodged by clients, that an authorised representative has given advice to clients to dishonestly obtain client funds and use them for personal expenses or other purposes, the licensee must report that breach to ASIC.”
This shows that the obligation arises upon the licensee identifying that client funds had been dishonestly obtained.
Therefore:
- The obligation arises when the authorised representative or credit representative reports the breach (in accordance with their company policy or employment contract) to the licensee.
- At this point, the licensee is required to report the breach within 30 calendar days.
- Of course, if they were aware of the breach earlier, or reckless with respect to whether there were reasonable grounds to believe a breach had occurred, the obligation arises earlier.
Implications of disclosure
Once the authorised representative or credit representative reports the breach, the licensee is required to report it to ASIC within 30 days.
Once ASIC receives the report, they may contact the licensee for further information. They do not take action on all reported matters, and will only contact the licensee company if they consider it necessary to do so.
However, the licensee is bound by ASIC’s reference checking and information sharing protocol. If the authorised representative or credit representative is to change jobs and work as in the same capacity at another AFS or credit licensee (“recruiting licensee”), then their current employer (“referee licensee”) is required to share information with the recruiting licensee about them when recruited.
One such piece of information that the referee licensee is required to share is if they reported a breach to ASIC in respect of the representative, and if yes, to provide details of the breach.
The recruiting licensee is required to ask the authorised representative or credit representative for consent to request a reference, and they are within their rights to deny consent. While they can still be employed by the recruiting licensee, the recruiting licensee is required to be able to demonstrate that they complied with their general conduct obligations in employing the representative. This may mean that they do not employ the representative if they decline consent.
Conclusion
If an AFS or credit representative has been convicted of a dishonesty offence punishable by a maximum of three months’ imprisonment or any offence punishable by a maximum of 12 months’ imprisonment, then they may be required to report this to their employer (i.e. an AFS or credit licensee).
Consequently, the AFS or credit licensee must report this to ASIC, who may investigate it.
Even if ASIC do not investigate the breach, the employer will be required to disclose it to any recruiting AFS or credit licensee if the representative applies for a new job.
How ROG can help
We can provide specialised advice regarding your reporting obligations and any investigations by ASIC.
For assistance, please contact our office at (07) 3034 0000.
[1] Corporations Act 2001 (Cth) s 912DAA (“Corporations Act”) and National Consumer Credit Protection Act 2009 (Cth) s 50B (“National Credit Act”).
[2] Corporations Act 2001 (Cth) s 912D(4)(a) and National Credit Act s 50A(4). See also Corporations Act s 912D(1)(a) and National Credit Act s 50A(1)(a).
[3] Corporations Act s 912DAA and National Credit Act s 50B.
[4] Regulatory Guide RG 78.
[5] Corporations Act s 912DAA(3) and National Credit Act s 50B(4).