One of the most common traffic offences is driving without a valid drivers licence. The law recognises two classifications of this offence:
- Driving while unlicensed/never licensed as outlined in s 53 Road Transport Act 2013 (NSW), and
- Driving while suspended, disqualified, cancelled or refused as outlined in s 54 Road Transport Act 2013 (NSW)
The offence carries potential penalties that are as harsh as its commonality. Implications of being driving a motor vehicle contrary to the Transport Act can severely affect one’s ability to work, travel and apply for a licence in the future.
Drive while unlicensed/never licensed
Elements
To convict an individual of driving while unlicensed, the prosecution must prove two elements beyond a reasonable doubt:
- That the individual drove a vehicle on a public road, and
- That the individual did not hold a valid or appropriate licence at the time they drove, OR, that the individual never held any type of licence.
Penalties
If found guilty, the following penalties will apply. Much like other driving offences, the penalties vary in severity depending on whether the offence was a repeat offence.
| Offence | First offence within the past 5 years | Second or subsequent offence within the past 5 years |
| Driving while unlicensed | Fine of $2,200. | 12 months disqualification which can be reduced by the court to 3 months, a maximum fine of $3,300 and a maximum gaol sentence of 6 months |
Defences
Defences may reduce the severity of the penalty or have the effect of absolving an individual. Defences that may be raised include:
- Duress: where an individual is coerced or threatened into driving without possession of a licence
- Necessity: where an individual without a licence drives to avoid the prospect of serious injury or death, such as driving to a hospital in a medical emergency
- Honest and reasonable mistake of fact: where an individual honestly and reasonably mistakenly believes that they held a valid licence
Drive while suspended, cancelled, or disqualified
Elements
To convict an individual of driving whilst suspended, cancelled or disqualified, the prosecution must prove following elements beyond a reasonable doubt:
- That the individual drove a vehicle on a public road
- At the time the individual was driving the vehicle, their licence was suspended by the RMS or police, cancelled by the RMS, or disqualified by a court.
Penalties
If found guilty, the following penalties may apply. Much like other driving offences, the penalties vary in severity depending on whether the offence was a repeat offence.
| Offence | First offence within the past 5 years | Second or subsequent offence within the past 5 years |
| Driving while suspended, disqualified, cancelled or refused | 6 months disqualification which may be reduced by the court to 3 months, a maximum fine of $3,300, and a maximum gaol sentence of 6 months | 12 months disqualification from driving which may be reduced by the court to 6 months, a maximum fine of $5,500, and a maximum gaol sentence of 12 months |
| Driving while suspended or cancelled due to a fine default | 3 months disqualification which can be reduced by the court to 1 month, and a maximum fine of $3,300 | 12 months disqualification which may be reduced by the court to 3 months, a maximum fine of $5,500, and and a maximum gaol sentence of 6 months |
Judicial officers possess the discretion to impose ‘no conviction’, an outcome that will entail no disqualification, fine or any other penalty.
Applying for early return of licence or removal of disqualification
Eligibility
Following amendments in 2017, disqualified drivers now possess the ability to remove disqualifications and secure an early return of their licence after applying to the local court.
Disqualified drivers may apply for removal of disqualification if they satisfy the following conditions:
1. Their disqualification period is attributed to one or more of the following offences:
- Drink driving
- Drug driving
- Driving recklessly, furiously, in a manner or at a speed dangerous
- Driving under the influence of alcohol or illegal drugs
- Exceeding the speed limit by more than 30km/h or 45km/h
- Menacing driving.
Or, if the individual has been convicted with a driving offence in the past four years or, their remaining disqualification periods are attributed to a habitual offender declaration
2. The individual has been convicted of a driving offence in the past 2 years or, in any other case, they have not been guilty of a driving offence for the past 2 years.
However, individuals who have been found guilty of committing the following crimes will be unable to apply for removal of their disqualifications:
- Any Crimes Act offence that causes death, grievous bodily harm or wounding by the use of a motor vehicle
- Predatory driving
- Intentional menacing driving
- Police pursuit
- Negligent driving causing death or grievous bodily harm
- Failing to stop and assist after a collision.
Application Process
The application will be filed in the NSW local court. The application will specify that it is made under s 221B of the Road Transport Act 2013. The application will also be accompanied by a driving record and the particulars of pending proceedings for alleged driving offences. A court date will be decided upon at the time of successful filing.
A judicial officer will determine whether it is “appropriate” to remove licence disqualifications on the court date. The magistrate will consider the following factors when determining whether or not to remove disqualifications:
- The safety of the public
- The individual’s driving record, including any pending proceedings for driving offences
- Whether the individual drove or was in a position to drive during the offence free period
- The individual’s conduct after disqualification/s
- The nature of the offences giving rise to the disqualification/s
- Other relevant matters including availability of alternative forms of transport and the impact of the disqualification/s on:
- The individual’s capacity to travel for employment, business, education or training purposes
- Their ability to carry out carer or family responsibilities
- Their health
- Their finances.
Relevant information can be communicated to the magistrate to assist in decision making through:
- character references
- a letter from explaining the individual’s situation, including the hardship they experienced whilst disqualified and their need for a licence,
- any relevant medical letters from a medical professional, or the doctor/s of anyone they care for, explicating their need for a licence,
- relevant financial documents
- verbal submissions from the individual or their legal representatives
If the applications are rejected, an application cannot be filed within 12 months of the date of rejection. After 12 months, another application may be filed.