TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 - SECT 87
Issue of restricted licence to disqualified person
TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 - SECT 87
Issue of restricted licence to disqualified person
87 Issue of restricted licence to disqualified person
(1) If a person is convicted by a court of an offence under section 79or 80(5A) and—
(a) by order of the court, is disqualified from holding or
obtaining a Queensland driver licence; or
(b) by operation of law and without
specific order, is disqualified from holding or obtaining a Queensland driver
licence;
the court may, where it has received an application from the person,
make an order directing that the person be issued with a restricted licence.
(2) An application for an order under this section may be made—
(a) at the
proceedings in which the conviction is recorded against the applicant by
reason of which the applicant is disqualified from holding or obtaining a
Queensland driver licence; and
(b) in a case where the court makes an order
disqualifying the applicant from holding or obtaining a Queensland driver
licence—before the court makes that order;
and not otherwise.
(2A) An
application must be made in the approved form and in respect of every
application—
(a) the applicant must, if required by the court so to do,
submit himself or herself as a witness; and
(b) other persons may be called
as witnesses;
to give evidence in respect of all matters relevant to the
application and may be cross-examined.
(3) An order under this section may be
made—
(a) at the proceedings in which the conviction is recorded against the
applicant by reason of which the applicant is disqualified from holding or
obtaining a Queensland driver licence; and
(b) in a case where the court
makes an order disqualifying the applicant from holding or obtaining a
Queensland driver licence—in conjunction with that order;
and not otherwise.
(3A) To remove doubt, it is declared that if a court makes an order under
subsection (1) directing that a person be issued with a restricted licence,
the person—
(a) is disqualified from holding or obtaining a Queensland
driver licence, other than the restricted licence; and
(b) may not drive a
motor vehicle during the period of the disqualification unless the person
applies for and obtains the restricted licence the court ordered be issued.
(3B) Also, to remove any doubt, it is declared that, if the person is
disqualified from holding or obtaining a Queensland driver licence as
mentioned in section 91D(1) (b) , part 3A applies to the person in relation
to the grant of the restricted licence.
(4) A court that grants an
application must make an order directing that a restricted licence be issued
to the applicant during the period of the applicant’s disqualification
subject to restrictions specified in the order—
(a) which must restrict the
use of the restricted licence by the applicant to specified circumstances
directly connected with the applicant’s means of earning the applicant’s
livelihood; and
(b) which may include, but are not limited to the
following—
(ii) the purpose
for which a vehicle may be driven;
(iii) the times at which or period of time
during which a vehicle may be driven.
Note—
A restricted licence issued to
an applicant convicted of an offence against section 79(1F) involving a motor
vehicle is subject to the interlock condition. See section 91K.
(4A) An
order under this section may relate only to a restricted licence that is of
the same class as the probationary, provisional or open licence which is held
by the applicant for the order immediately before the disqualification in
respect of which his or her application is made.
(5) An application for an
order under this section must not be granted—
(a) unless the applicant
satisfies the court that hears the application that—
(i) the applicant is a
fit and proper person to hold a restricted licence, having regard to the
safety of other road users and the public generally; and
(ii) a refusal would
cause extreme hardship to the applicant or the applicant’s family by
depriving the applicant of the applicant’s means of earning the
applicant’s livelihood;
(b) if the applicant’s provisional or open
licence has been suspended or cancelled, or the applicant has been
disqualified from holding or obtaining a Queensland driver licence, within 5
years before the application is made;
(c) in a case where the applicant has
been previously convicted—
(i) under section 79or 80(5A) or the Criminal
Code , section 328A ; or
(ii) elsewhere than in Queensland of any offence
which if committed in Queensland would be an offence under section 79or 80(5A) ;
within a period of 5 years before the conviction that results in the
disqualification in respect of which the application is made;
(d) in a case
where the disqualification in respect of which the application is made
resulted from a conviction of the applicant—
(i) for an offence committed
while the applicant was engaged in an activity directly connected with the
applicant’s means of earning the applicant’s livelihood; or
(ii) for an
offence committed when the applicant was driving a motor vehicle the applicant
was not authorised, under a provisional or open licence, to drive; or
(iii)
for an offence committed at a time when the applicant was the holder of a
restricted licence issued under an order made under this section;
(da) if the
disqualification for which the application is made resulted from the
applicant’s conviction for an offence against section 79(1) , (2A) , (2B) ,
(2D) , (2J) , (2K) or (2L) ;
(db) if—
(i) the disqualification for which
the application is made resulted from the applicant’s conviction for an
offence against section 79(1F) or (2) ; and
(ii) the applicant is a person
to whom section 79(2A) , (2B) , (2D) , (2J) , (2K) or (2L) would have applied
apart from the fact that the person was over the general alcohol limit;
(dc)
if—
(i) the disqualification for which the application is made resulted from
the applicant’s conviction for an offence against section 79(2AA) ; and
(ii) the applicant is a person to whom section 79(2A) , (2B) , (2D) , (2J) ,
(2K) or (2L) would have applied if, at the time of the offence, the person
were over the no alcohol limit but not over the general alcohol limit;
(e)
unless the disqualification for which the application is made resulted from
the applicant’s conviction for an offence committed when the applicant held
a provisional or open licence (other than a corresponding document);
(f)
unless the applicant is the holder of a provisional or open licence (other
than a corresponding document) immediately before the disqualification in
respect of which the application is made.
(5A) For subsection (5) (a) (ii) ,
if the applicant is not self-employed, the applicant must produce to the court
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.
(5B) In subsection (5) (b) , the reference to a suspension,
cancellation or disqualification does not include—
(a) a suspension,
cancellation or disqualification that was set aside on a review or appeal; or
(b) a suspension, cancellation or disqualification because of the
applicant’s mental or physical disability; or
(da) if the disqualification for which the
application is made resulted from the applicant’s conviction for an offence
against section 79(1F) —a suspension under section 79Bresulting from the
applicant being charged with the offence; or
(e) a 24 hour suspension under
section 80(22AA) ; or
(f) a suspension, if a court has, on application made
in relation to the suspension, made a special hardship order.
(5C) For
subsection (5) (f) , if—
(a) the disqualification for which the application
is made resulted from the applicant’s conviction for an offence against
section 79(1F) ; and
(b) immediately before the disqualification, the
applicant’s provisional or open licence was suspended under section 79B(2)
as a result of the applicant being charged with the offence;
despite
section 127(4) , the applicant is the holder of a provisional or open licence
immediately before the disqualification.
(6) If—
(a) an order is made under
this section by a court directing the issue of a restricted licence to an
applicant in conjunction with an order disqualifying the applicant from
holding or obtaining a Queensland driver licence; and
(b) the provision of
this Act that empowers a court to impose the disqualification specifies a
maximum period of time for which a disqualification may be imposed;
for the
purpose of making the order disqualifying the applicant, the maximum period
for which the court may impose the disqualification is twice that specified in
the provision.
(6A) A court, in considering whether an order disqualifying
the applicant from holding or obtaining a Queensland driver licence should be
made under section 86(5) , and in considering the terms of any other
disqualification order it proposes to make, must have regard to any order it
proposes to make under this section as a circumstance indicating that the
disqualification imposed should be for a longer period of time than if it made
no order under this section.
(7) If an order is made under this section and
the person in respect of whom the order is made makes an application to a
superintendent for a restricted licence under and in accordance with this Act,
the superintendent must issue to the person a restricted licence subject to
the restrictions imposed by the court by the order made under this section,
and such other terms, provisions, conditions, limitations or restrictions,
consistent with the order, as are specified on the licence in accordance with
this Act.
Note—
A restricted licence issued to a person convicted of an
offence against section 79(1F) involving a motor vehicle is subject to the
interlock condition. See section 91K.
(8) A restricted licence issued
pursuant to an order under this section—
(a) must be issued in the first
instance for such period as is prescribed by regulation and thereafter must be
renewed from time to time for such period as is prescribed by regulation until
the period of disqualification in respect of which the order under this
section was made expires; and
(b) in a case where it is renewed during that
period of disqualification—must, subject to section 88(7) , be renewed
subject to the restrictions specified in the order last made whether under
this section or section 88.
(8A) A restricted licence issued or renewed
under an order made under this section remains in force until it expires or is
cancelled, surrendered or suspended in accordance with this Act.
(9) The
power of the Governor in Council to make regulations in respect of a
restricted licence includes the power to make regulations in respect of the
restricted licence provided for under this section including regulations in
respect of its cancellation or suspension notwithstanding that it is issued or
renewed under an order of the court.
(10) Any person who, being the holder of
a restricted licence issued pursuant to an order made under this section,
drives a motor vehicle otherwise than in accordance with the restrictions to
which the licence is subject as a consequence of that order or an order under
section 88commits an offence and is liable to a penalty not exceeding 20
penalty units.
(10A) Whether or not any other sentence is imposed for an
offence under subsection (10) —
(a) if the restricted licence issued to the
person is still current at the time of the conviction—it is by virtue of the
conviction thereby cancelled without specific order; and
(b) the person is,
because of the conviction, disqualified from holding or obtaining a Queensland
driver licence for a period of 3 months from the expiration of the
disqualification in respect of which the order was made under this section or,
where the conviction is later than the expiration of that disqualification,
for 3 months from the date of conviction.
(11) For the purposes of this
section, the proceedings in which a conviction is recorded are taken to
continue until the court has completed the exercise of its jurisdiction to
sentence the defendant in respect of the conviction, notwithstanding that the
proceedings have been adjourned.
