By Taylor Ford and Shane Herbst
Perhaps the most unfortunate aspect of the failed Voice referendum is the now seeming lack of political appetite to close the gap in outcomes between Aboriginal and non-Aboriginal Australians. The same gap and underlying issues that have stubbornly existed for decades remain and will not go anywhere without sustained parliamentary focus. There is, of course, no silver bullet solution to this complex and enduring problem, but there are potential reforms that present as low-hanging fruit, and can be easily legislated, carry minimal political risk and offer immediate public benefit.
One such potential reform relates to WA laws pertaining to lifetime driving disqualifications and extraordinary driver’s licences (EDLs). These laws are intended to serve important dual purposes of keeping the public safe and guarding against disproportionate punishment. Currently, however, these laws are not achieving the second purpose, with many current law-abiding and responsible Western Australians unable to drive because of historic traffic offences.
Being prohibited from driving most impacts people living in regional, rural and remote WA. Vast distances and often poor public transport infrastructure make driving necessary to access essential goods and services, healthcare, education and training, employment, family and cultural commitments. In these areas, a driver’s licence is a lifeline, and not having one is a major barrier to economic, social and cultural participation. Given the high numbers of Aboriginal Australians living in remote WA lifetime driving disqualifications directly contribute to their relative disadvantage. Consequently, any positive reform to those laws will contribute to closing the gap.
A case study: Johnson v Williams
Justice Solomon’s decision in Johnson v Williams (2022) 296 A Crim R 354 provides a useful case study on how the current laws can lead to excessive and unjust punishment for someone living in remote WA.
This case concerned an appeal against a conviction under the Road Traffic Act 1974 (WA), rather than an application under the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act) for an EDL or to remove a correctly imposed permanent driving disqualification. Despite that, and the matter’s “apparent banality” (Solomon J described the matter as having “all the hallmarks of being unremarkable”), the decision addressed the “unjustifiable and excessive use of executive power by the State”, a recurring theme in applications to remove lifetime driving disqualifications.
Mr Johnson, an Aboriginal man in his late fifties, was convicted in 2008 of refusing to undergo a breath test. The Magistrates Court ordered that he be permanently disqualified from holding a driver’s licence. For the next 14 years, unable to drive and absent public transport, Mr Johnson had to walk five kilometres each day from where he lived to Halls Creek, the nearest town.
Justice Solomon said it was “clear beyond argument” that Mr Johnson’s lifetime disqualification was “excessive and manifestly unjust”. In support of this finding, his Honour referred to the “[t]he vast distances of the East Kimberley and the paucity of public transport services”, which rendered “transport by private vehicle the only viable option for travel”. This was “all the more so for someone who [lived] 5 km from the only town along the 600 km stretch of the only highway in the region”. His Honour also acknowledged that “[t]he impact on Indigenous Australians of reliance on private motor vehicle transportation is well known, if inadequately addressed”. His Honour ultimately quashed Mr Johnson’s lifetime disqualification and retrospectively re-sentenced him to a 30-month disqualification, the effect being that Mr Johnson’s disqualifications were treated as having long expired, and that he had, for many years, been unjustly deprived of his licence and the convenience, dignity and opportunities that holding a licence affords.
Current laws and their flaws: lifetime disqualifications
The Court may – having regard to public safety, the applicant’s character, the circumstances of the case, the nature of the offences that led to disqualification, and the applicant’s subsequent conduct – grant an application to remove a driving disqualification. These are fair and reasonable criteria. However, the RTAD Act contains other provisions that create unnecessary complexity and procedural hurdles.
For example, an application must be made for each cumulative disqualification (other than cumulative lifetime disqualifications) that a person seeks to remove: Michael v The Rd Traffic Board (District Court of Western Australia, LA Jackson J, 9 December 1996). A single application cannot be made to remove multiple, cumulative non-lifetime disqualifications, as each disqualification will only commence upon discharge of the previous disqualification, and the waiting period in relation to the next disqualification has to expire before an application can be made to remove it. Requiring applicants to make a separate application for each disqualification they seek to remove, even though they are likely to put on nearly identical evidence and submissions in each application, wastes the Court’s, the applicant’s, and the Department of Transport’s time and resources.
Further, a disqualification can currently only be removed by a court if the disqualification is for three years or more. Where a person has a lifetime suspension in addition to a shorter suspension, those suspensions run cumulatively, but they are treated as distinct for the purpose of having the disqualifications removed: see Traffic Board v Rigg (1996) 24 MVR 529. If a person succeeds in having their lifetime disqualification removed, their other, shorter disqualification remains in force, and they must separately apply to the Court to remove that disqualification. But if that shorter disqualification is for a period of less than three years, it cannot be removed, meaning a person may have to wait years serving shorter cumulative disqualifications. This occurs despite the applicant having demonstrated to the Court they are now of good character, pose no threat to the safety of the public, and are deserving of having their disqualifications removed: see Henderson v Chief Executive Officer of Department of Transport [2020] WADC 59. This seems an unintended and unfortunate consequence of the current laws.
The current laws and their flaws: EDLs
The RTAD Act allows disqualified drivers to obtain an EDL. Section 30(2) requires the Court to consider the same factors as it must consider in an application to remove a lifetime disqualification, being public safety, the applicant’s character, the circumstances of the case, the nature of the offences that led to disqualification, and the applicant’s subsequent conduct.
As a result of 2010 amendments, the RTAD Act now imposes tougher requirements upon EDL applicants, with s 30(4) requiring applicants to demonstrate that they would suffer “extreme hardship” if their EDL application was refused. Prior to these amendments, hardship to an applicant and their family was a mandatory consideration but was not dispositive. Under the newer “extreme hardship” threshold, the Court must refuse an EDL application unless doing so would:
(a) deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family; or
(b) place an undue financial burden on the applicant or his or her family, by depriving the applicant of his or her principal means of obtaining income; or
(c) deprive the applicant or a person who is a member of the applicant’s family of the only practicable means of travelling to and from the place at which the applicant or that person, as the case may be, is employed.
When these amendments were implemented, the then-Minister for Police acknowledged during his second reading speech that “[g]ood legislation must ensure…that the consequences of a sanction do not result in an inappropriately harsh outcome”.
Regrettably, the amendments have unintentionally caused inappropriately harsh outcomes. The decision of Chief Executive Officer of the Department of Transport v Messer [2024] WADC 60(Messer) illustrates this point. The Department appealed a decision to grant Mr Messer an EDL on the basis that Mr Messer needed to drive his elderly parents to medical appointments, with his father suffering from dementia and his mother from breast cancer. The appeal concerned whether refusing to grant Mr Messer an EDL would deprive him of the means of obtaining “urgent” medical treatment for his parents. The Court allowed the appeal, denying Mr Messer an EDL, on the basis that:
‘urgency’ in this context connotes the lack of an opportunity to seek other means to obtain the necessary medical treatment … taking an 80-year-old to a hospital emergency department following a fall has a sense of ‘urgency’ about it … [t]aking an 80-year-old to a pre-arranged (perhaps on many weeks or months’ notice), periodic, review appointment does not. (at [45])
This narrow construction of s 30(4)(a) substantially limits the scenarios that may constitute “urgent” medical treatment, leading to outcomes that may “deprive the applicant of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the applicant or a person who is a member of his or her family”. To successfully demonstrate “urgency” in the example scenario given by the Court in Messer, it seems that in the period between the 80-year-old’s fall and taking them to the emergency department, an applicant would be expected to apply for an EDL, provide the supporting affidavit evidence, attend a hearing, and obtain court orders granting the application. Clearly, this is not what was intended by the amendments.
The Court’s construction in Messer more closely aligns with an “emergency”, being “an unforeseen occurrence; a sudden and urgent occasion for action” (Macquarie Dictionary) rather than “urgency”, which has the following ordinary meanings (Macquarie Dictionary):
- pressing; compelling or requiring immediate action or attention; imperative.
- insistent or earnest in solicitation; importunate, as a person.
- expressed with insistence, as requests or appeals.
The RTAD Act, and s 30(4) in particular, appears to invoke this ordinary meaning. For example, the text refers to depriving applicants of the means of obtaining urgent medical treatment for an illness, disease or disability — as opposed to accidents, acute incidents or emergencies. Treatment for an illness, disease or disability known at the time of making an EDL application will often, if not always, involve attending pre-arranged, periodic appointments. If s 30(4) is intended to avoid inappropriately harsh outcomes, it does not achieve this by depriving, for example, an elderly cancer patient from the means to seek essential medical treatment
The preferable construction of “urgent” medical treatment in the context of s 30(4) ought to include any treatment the failure of which to obtain could result in serious health consequences or death. Whether such treatment is arranged by way of pre-planned appointment or otherwise is irrelevant to whether it is “urgent” (having regard to the ordinary meaning of that term). However, until Messer is superseded, or the RTAD Act amended, it seems that EDL applications will continue to be refused, despite any consequent extreme hardship.
Section 30(4) also contains other deficiencies. The Court may grant an EDL if refusing it would deprive the applicant of their principal means of obtaining income where the applicant is employed or has an employment offer, but an EDL cannot be granted where one is needed to search and apply for employment, or to attend training to enable the applicant to gain employment. Again, this can and does cause hardship. Section 30(4) also fails to recognise that hardship may arise in other circumstances, such as where the applicant would be deprived of the ability to attend to their familial and cultural obligations.
Evidently, s 30(4) has significant capacity to impose inappropriately harsh outcomes on applicants who are often vulnerable individuals. The legislation ought to be revisited to address this.
Proposed reforms
Common-sense changes could be made to the licence disqualification removal and EDL schemes to promote fairness and justice, without derogating from the objective to ensure public safety. Amendments should be directed at broadening the Court’s ability to consider applicants’ particular circumstances, streamlining the application process and introducing measures tailored to applicants’ needs.
Specifically, the licence disqualification removal scheme could be amended to:
- broaden the factors a Court may consider to include such things as the applicant’s access to other modes of transport, need for access to private transport (noting the applicant’s location), the proportionality of the disqualification to the hardship faced, and any other relevant circumstances; and
- streamline the application process by allowing for a single application to remove all driving disqualifications (including short disqualifications), permitting the Magistrates Court to determine applications where the matter disqualifying the licence was heard in that Court, and allowing applicants to provide oral evidence as an alternative to affidavit evidence.
The EDL scheme should be amended to:
- broaden the grounds on which a Court may grant an EDL so that it may do so to enable an applicant to look for and apply for employment, attend or access education or training, access medical treatment (for the applicant or a family member), meet family and cultural obligations, or where it is otherwise just in the circumstances; and
- reduce fees for applicants by providing the Court with discretion to waive the fees associated with applying for an EDL if the applicant is experiencing financial hardship, and permitting entry into a payment plan.
These amendments would not affect the Court’s current obligation to consider public safety – this obligation is of paramount importance and should be maintained.
Finally, s 49(8) of the Road Traffic Act should be repealed to remove the cumulative effect of periods of driver’s licence disqualification. The default position should be that periods of disqualification will run concurrently, unless the Court orders otherwise. This is consistent with s 105(2) of the Sentencing Act 1995 (WA) and would avoid the common scenario where a person successfully removes their lifetime disqualification but then must serve years’ worth of shorter, cumulative disqualifications.
Conclusion
The Drivers Licence Reform Working Group – a partnership between Community Legal WA, Regional Alliance West, Peel Community Legal Services, Goldfields Community Legal Centre, Street Law Centre, Pilbara Community Legal Services, Aboriginal Legal Service, Kimberley Community Legal Services, Legal Aid WA and Corrs Chambers Westgarth, which has provided pro bono assistance in this area for a number of years – was formed in 2024, with the goal of advocating for reform to WA’s drivers’ licence laws to mitigate the significant injustices the current laws cause, improve outcomes for individuals, and make the system fairer and more responsive to the circumstances of Aboriginal Australians, especially in regional or remote locations.
The Working Group’s particular focus is reforming the regimes as set out in this article. Simplifying and streamlining WA’s driver’s licence laws would have a significant, positive impact on the lives of many. Reform in this area would also provide an important opportunity for the WA Government to work to improve outcomes for individuals in regional and remote areas and progress WA’s Closing the Gap commitments.
All roads should lead to reform. The Working Group looks forward to engaging with the WA Government on this important project.
