South Australian Current Acts

ROAD TRAFFIC ACT 1961 - SECT 45D

45D—Power of police to impose licence disqualification or suspension for section 45C etc offences

        (1)         This section applies to the following offences:

            (a)         an offence against section 45C that is a second or subsequent offence;

            (b)         an offence against section 79B constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45C(1) ("a section 79B offence") that is a second or subsequent offence.

        (1a)         In determining whether an offence to which this section applies is a second or subsequent offence for the purposes of this section—

            (a)         in the case of an offence against section 45C, any previous offence against section 45C for which the person has been convicted or that the person has expiated will be taken into account; and

            (b)         in the case of a section 79B offence, any previous section 79B offence for which the person has been convicted or that the person has expiated will be taken into account,

but only if the previous offence was committed or, in the case of an offence that has been expiated, was alleged to have been committed, by the person within the period of 5 years immediately preceding the date on which the offence under consideration was committed.

        (2)         Subject to this section—

            (a)         if a person is given an expiation notice for an offence to which this section applies, a police officer may give the person a notice of licence disqualification or suspension that includes the prescribed particulars; or

            (b)         if a police officer reasonably believes that a person has committed an offence to which this section applies, the police officer (or another police officer authorised to do so on behalf of that officer) may give the person such a notice.

        (3)         The notice must specify the offence to which the notice relates.

        (4)         If a person is given a notice of licence disqualification or suspension under this section—

            (a)         in the case of a person who does not hold a driver's licence—the person is disqualified from holding or obtaining a driver's licence for the relevant period; or

            (b)         in the case of a person who holds a driver's licence—the person's driver's licence is suspended for the relevant period.

        (5)         If a person is given a notice of licence disqualification or suspension under this section—

            (a)         the Commissioner of Police must ensure that prescribed particulars of the notice are forwarded to the Registrar of Motor Vehicles; and

            (b)         the Registrar of Motor Vehicles must, on receiving those particulars, send, by post, a notice to the person of the name and address specified by the Commissioner containing the prescribed particulars of the notice of licence disqualification or suspension (though the operation of the notice is not affected by any failure to comply with this paragraph),

and if such a notice of licence disqualification or suspension is subsequently withdrawn, the Commissioner must ensure that notice of the withdrawal (specifying the reason for the withdrawal) is forwarded to the Registrar.

        (6)         If a person is given a notice of licence disqualification or suspension under this section but is not given an expiation notice for the offence to which the notice relates or another offence to which this section applies arising out of the same course of conduct (or such an expiation notice is withdrawn or the person elects to be prosecuted in accordance with the Expiation of Offences Act 1996 ), the Commissioner of Police must ensure—

            (a)         that a determination is made, within a reasonable time, as to whether to charge the person with an offence to which this section applies or give the person an expiation notice in respect of such an offence; and

            (b)         if a determination is made that the person should not be charged with, or given an expiation notice in respect of, any offence to which this section applies, that—

                  (i)         the person is given, or sent by post, written notice of that determination (which notice should include any prescribed particulars relating to the effect of the determination on the notice of licence disqualification or suspension); and

                  (ii)         written notice of the determination is forwarded to the Registrar of Motor Vehicles,

but—

            (c)         the laying of charges against a person, or the giving of an expiation notice, is not prevented by a failure to comply with this subsection in relation to the person or by the making of a determination referred to in this subsection or the notification of such a determination; and

            (d)         subject to the making of an order of the Magistrate's Court under section 45E(2)(b), the operation of the notice of licence disqualification or suspension is not affected by any failure to comply with this subsection.

        (7)         If a person who is given a notice of licence disqualification or suspension under this section is charged with an offence, or given an expiation notice in respect of an offence, that is not the offence specified in the notice but is instead another offence to which this section applies arising out of the same course of conduct, that offence will then be taken to be the offence to which the notice relates.

        (8)         If—

            (a)         a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of licence disqualification or suspension under this section; and

            (b)         a court convicts the person of the offence to which the notice relates or another offence arising out of the same course of conduct; and

            (c)         a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence,

then—

            (d)         the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence and the mandatory minimum period of disqualification required to be imposed for the offence for which the person was convicted operates to cancel such a licence, the period of disqualification ordered by the court under this subsection operates to cancel the person's licence from the commencement of that period); and

            (e)         despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may for that purpose—

                  (i)         if the relevant period of licence disqualification or suspension under the notice has not ended, order that the period imposed be taken to have commenced on the day on which the relevant period commenced (provided that the period imposed is not less than the mandatory minimum period of disqualification); or

                  (ii)         if the relevant period of licence disqualification or suspension under the notice has ended, impose a period that is less than the mandatory period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum period of disqualification and the period that has applied as a result of the notice),

and if the person is the holder of a driver's licence and the mandatory minimum period of disqualification required to be imposed operates to cancel the licence, the licence will be taken to have been cancelled—

                  (iii)         where subparagraph (i) applies—from the day on which the order of the court is made; or

                  (iv)         where subparagraph (ii) applies—from the commencement of the period of disqualification ordered by the court.

        (9)         If the Commissioner of Police is satisfied that a notice of licence disqualification or suspension under this section should not have been given because—

            (a)         the notice has been given to a particular person in error; or

            (b)         the notice is defective; or

            (c)         there is other proper cause for which the notice should not have been given,

the Commissioner may authorise the withdrawal of the notice.

        (10)         A withdrawal referred to in subsection (9) is effected by giving notice of the withdrawal, in a manner and form determined by the Commissioner, to the person to whom the notice of licence disqualification or suspension was given.

        (11)         The notice of withdrawal must specify the reason for withdrawal.

        (12)         If a notice of licence disqualification or suspension under this section is withdrawn, the Commissioner of Police may, if satisfied that there are proper grounds to give a fresh notice of licence disqualification or suspension to any person, authorise the giving of such a notice (provided that the relevant period for the fresh notice must, if it is given to the same person as was given the withdrawn notice, be reduced by the period for which the withdrawn notice was (or purported to be) in operation).

        (13)         Subject to subsection (14), no compensation is payable by the Crown or a police officer in respect of the exercise, or purported exercise, of powers under this section.

        (14)         Subsection (13) does not protect a police officer from liability in respect of the exercise, or purported exercise, of powers otherwise than in good faith.

        (15)         For the purposes of this section—

            (a)         the "relevant period" commences—

                  (i)         in the case of a notice of licence disqualification or suspension under this section for an offence against section 45C—at the time at which the person is given the notice of licence disqualification or suspension or, if a police officer referred to in subsection (2) is satisfied that, in the circumstances, it would be appropriate to postpone the commencement of the relevant period and the notice indicates that the commencement is to be postponed, 48 hours after the time at which the person is given the notice; or

                  (ii)         in the case of a notice of licence disqualification or suspension under this section for a section 79B offence—28 days after the notice of licence disqualification or suspension is given to the person;

            (b)         the "relevant period" ends—

                  (i)         if the Magistrates Court, on application under section 45E, makes an order that the person given the notice is not disqualified, or that the driver's licence held by the person is not suspended, by the notice; or

                  (ii)         if the person given the notice is notified in writing by or on behalf of the Commissioner of Police (whether that notification is given personally or by post) that the person—

                        (A)         is not to be charged with any offence to which this section applies arising out of the course of conduct to which the notice of licence disqualification or suspension relates; and

                        (B)         is not to be given an expiation notice in respect of such an offence; or

                  (iii)         if proceedings for the offence to which the notice relates are determined by a court or are withdrawn or otherwise discontinued; or

                  (iv)         if the person given the notice is notified in accordance with subsection (10) that the notice has been withdrawn; or

                  (v)         in any event, at the end of 6 months from the commencement of the relevant period.

        (16)         The Commissioner of Police must establish procedures to be followed by police officers giving notices of licence disqualification or suspension under this section for the purpose of determining whether the commencement of the relevant period should be postponed under subsection (15)(a)(i).