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Too many demerit points?

Too many demerit points?

If you commit a traffic offence, whether here or interstate, then in all probability you will also incur demerit points.

The loss of demerit points is a problem to many drivers on the road today.  Being issued an Expiation Notice might mean the driver simply pays it without realising that the payment of the fine means demerit points apply too.

"Once the Expiation Notice is paid that means those offences can’t be reviewed or appealed."

It comes as quite a shock to many when a letter arrives from the Registrar of the Department of Planning, Transport and Infrastructure that an “administrative licence disqualification” applies.  That is, a driver has incurred a total of 12 or more demerit points within three years from the date of the offence. 

Once the Expiation Notice is paid that means those offences can’t be reviewed or appealed. I’ve heard many stories where the partner of the registered owner of the car commits a traffic offence and pays the expiation notice without telling their partner. Then the registered owner is disqualified from driving on the basis that the demerit points have actually been incurred in the registered owner’s name, and there is no recourse.

There is, however, an “out” to this administrative disqualification under the Motor Vehicles Act 1959 (section 98BE).  The Good Behaviour Option/Agreement was introduced in 2001 and it’s an attractive option.  By entering into the agreement the driver undertakes not to incur two or more demerit points over a 12 month period.  This is a lifeline for the driver who has accumulated 12 or more demerit points within a three year period.  But wait there’s more!

"If the driver...  on entering the Good Behaviour Option, breaches the agreement it results in a disqualification twice the length of the original period and with no right of appeal."

If the driver, or probationer as they become known on entering the Good Behaviour Option, breaches the agreement it results in a disqualification twice the length of the original period and with no right of appeal.  So if the original licence disqualification was for three months and they enter into an agreement and breach that agreement, the licence disqualification becomes six months and so on.

Is that the end of it?  No, there’s more.  A driver might be advised to elect to be prosecuted for the offence and make application under the Motor Vehicles Act to have the offence declared “trifling” (however having an offence declared as trifling is rather onerous) or a finding made that any other proper cause exists to reduce the demerit points to a minimum of zero or a lesser number.

So what is trifling?

In the case of Siviour-Ashman v Police, Doyle, Chief Justice reviewed the authorities and trifling can be summarised as follows:

  • The word “trifling” means of slight importance, insignificant or of little moment;
  • The fact that an offence is serious does not, of itself, preclude the finding that a particular instance of it is trifling;
  • A normal or typical example of the offence ordinarily will not be trifling;
  • Ordinarily there should be a soundly based belief in the lawfulness of the impugned conduct;
  • The court must pay regard to the purpose behind the obligation to observe the statutory requirement in question;
  • A deliberate breach will rarely be described as trifling save in cases where humanitarian considerations or considerations of urgency arise.

The critical features for consideration in a finding of “proper cause” (as referred to above) can be considered as follows:

  1. The proper cause must relate to the circumstances of the offence rather than the offender.  Since the introduction of good behaviour options the hardship suffered by the driver (for example the driver claims they’ll lose their job if they can’t drive) is not as much a relevant consideration as the driving (for example, the driver was only exceeding the speed limit by 2kph), in determining whether “any proper cause exists”.
  2. The offence must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence.
  3. There are no closed classes’ cases (meaning there is no black and white), but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections.  Moreover, the need to exercise a rapid judgement in a particular situation may also be important.

The person making a trifling application must give evidence on oath after pleading guilty to the offence and being convicted.  It is not straight forward so you will need to contact a lawyer experienced in criminal law and traffic offences to get advice and have representation in these matters.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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