4.7 Licences issued outside Queensland

Section 35 of the Transport Operations (Road Use Management - Driver Licensing) Regulation provides that a valid non-Queensland driver licence authorises the licensee to drive a class of motor vehicle that the licensee is authorised to drive under the licence on a road in Queensland.

Section 35(5) and 35(7) of the Transport Operations (Road Use Management - Driver Licensing) Regulation provide that a person's authority to drive on a road in Queensland under the person's non Queensland driver licence is withdrawn for a person under certain circumstances.

Section 35(6) of the Transport Operations (Road Use Management - Driver Licensing) Regulation provides that s. 35(5)(a), does not apply to a defence force member, or eligible family member who carries a defence force identification while driving. Section 35(5)(a) provides that the authority given to the holder of a valid interstate driver licence is withdrawn three months after the holder takes up residence in Queensland. Effectively, a defence force member, or eligible family member, may continue to drive on their valid interstate driver licence even after living in Queensland for more than three months provided that they carry defence force identification while driving.

Section 35(3) of the Transport Operations (Road Use Management - Driver Licensing) Regulation provides that the chief executive may withdraw the authority of a non-Queensland driver licence holder to drive in Queensland if the chief executive reasonably considers that the licensee has a mental or physical incapacity that is likely to adversely effect the licensee's ability to drive safely.

Section 26 of the Transport Operations (Road Use Management - Driver Licensing) Regulation provides for the suspension of a person's authority to drive on Queensland roads under the person's non-Queensland driver licence due to the accumulation of demerit points.

4.8 New South Wales driver licence information

An agreement exists between the Queensland Police Service and the New South Wales Roads and Traffic Authority concerning the release of registration and driver licence information from the NSW Roads and Traffic Authority through the computer system. Included in the agreement are conditions that information so obtained:

(i) only be used for official purposes;

(ii) will not be released to any person or body outside the Service without the consent of the NSW Road and Traffic Authority unless in accordance with law; and

(iii) will be guarded against unauthorised access, use or disclosure by the Service.

ORDER

Members are not to release information accessed from the NSW Roads and Traffic Authority (through the computer system) unless the release falls within the ambit of the agreement.

4.9 Production of driver licences and verification of identity

It is important that the identity of a holder of a driver licence be verified by the sighting of the particulars of such licence and the photograph. Section 58: 'Production of driver licence' of the Police Powers and Responsibilities Act (PPRA) provides a power for an officer to require a person to produce the person's driver licence under particular circumstances. It is an offence for a person to fail to comply with such a requirement unless the person has a reasonable excuse (see s. 791: 'Offence to contravene direction or requirement of police officer' of the PPRA).

Section 40: 'Person may be required to state name and address' of the PPRA provides that in prescribed circumstances (see s. 41: 'Prescribed circumstances for requiring name and address' of the PPRA) a police officer may require a person to:

(i) state the person's name and address; and

(ii) give evidence of the correctness of the stated name and address, if in the circumstances it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address.

A person who holds an open driver licence issued under the Transport Operations (Road Use Management) Act who is unable to produce that driver licence immediately upon requirement may, unless the person is in control of a heavy vehicle, comply with the requirement by producing the licence to the officer in charge of a nominated police station within forty-eight hours after the requirement is made (see ss. 58(3) and 58(5) of the PPRA).

It is possible that a person whose driver licence has been suspended or cancelled may produce that licence (an invalid driver licence) to an officer in purported compliance with a requirement to produce a driver licence (see Schedule 7 of the Transport Operations (Road Use Management - Driver Licensing) Regulation for the definition of 'valid' in respect of a driver licence).

An officer who finds an invalid Queensland driver licence may seize that driver licence (see s. 42: 'Seizing licences' of the Transport Operations (Road Use Management - Driver Licensing) Regulation).

POLICY

Officers who intercept drivers of motor vehicles should require the driver to produce their driver licence (see s. 58 of the PPRA).

Where practicable officers should check the validity of driver licences which are produced to them at the time of production by querying QPRIME through whatever means are most convenient (e.g. radio, telephone, MINDA/MAVERICK). Where it is not practicable to check the validity of a driver licence at the time of production, officers should note the details of the driver licence and ensure that the validity of the driver licence is checked as soon as reasonably practicable.

PROCEDURE

Officers who require the driver of a motor vehicle to produce their driver licence should require the person to state their correct name and address and ensure that the particulars are consistent with the information on their driver licence. If the particulars of the licence are inconsistent with the apparent identity of the person producing such licence, officers should make inquiries in order to verify the person's identity.

Officers who require a person to produce an open driver licence issued under the Transport Operations (Road Use Management) Act to a police station within forty-eight hours should ask the person which police station the person wishes to produce the person's driver licence at.

Where it is found that the holder of a driver licence has been driving a motor vehicle:

(i) while their driver licence or privilege to drive in Queensland under a non-Queensland driver licence, is suspended;

(ii) after their driver licence has been cancelled; or

(iii) after their privilege to drive in Queensland under a non-Queensland driver licence has been withdrawn,

officers should:

(i) question the person as to their knowledge of the suspension, cancellation or withdrawal of their driver licence or privilege to drive in Queensland;

(ii) if the person claims not to have known that their driver licence or privilege to drive in Queensland was suspended, cancelled or withdrawn at the relevant time, make further enquiries to establish whether the person was given any required notice or appropriately informed that their driver licence or privilege to drive in Queensland was to be suspended, cancelled or withdrawn before taking any enforcement action (see ss. 23 to 34 of the Transport Operations (Road Use Management - Driver Licensing) Regulation and ss. 104 to 108 of the State Penalties Enforcement Act);

(iii) if the person was informed or given notice that their driver licence or privilege to drive in Queensland has been suspended, cancelled or withdrawn by written notice, ascertain whether the person received that written notice. If, in the case of a notice sent by post, it can be proven that the person did not receive the notice, e.g. a notice sent by mail has been returned unclaimed to the issuing authority, no action should be taken to prosecute the person for an offence of unlicensed driving. Generally, where a notice sent by post is returned to the issuing authority unclaimed, the issuing authority will remove the suspension of the person's driver licence until notice can be given;

(iv) if the person resides at an address which is different from that shown on their Queensland driver licence, ascertain whether the person has notified Queensland Transport of their changed address in accordance with s. 39: 'Change of Name or Address' of the Transport Operations (Road Use Management - Driver Licensing) Regulation;

(v) if the person disputes that their driver licence or privilege to drive in Queensland has been suspended by the State Penalties Enforcement Registry (SPER):

(a) contact SPER (see Contact Directory) to verify that the person's driver licence or privilege to drive in Queensland is suspended; and

(b) if SPER advises that the person's driver licence or privilege to drive in Queensland is suspended or SPER cannot be contacted, tell the person that their driver licence or privilege to drive in Queensland is suspended and the person should contact SPER to resolve the matter.

Where the person raises the excuse of an honest and reasonable belief that their driver licence was not suspended by SPER prior to the alleged offence, officers should investigate the matter with a view to gathering evidence to negate the excuse. Such evidence may include obtaining statements from witnesses, including officers, that support the person having had knowledge of the SPER suspension prior to the offence, e.g. previous intercepts by police and/or previous contact with staff from SPER;

(vi) in every case of a person whose driver licence or privilege to drive in Queensland has been suspended by SPER, complete a Suspended Driver Licence Interception Report (see Appendix 4.1 of this chapter) and send the report to SPER as soon as practicable. SPER will provide details of the person's driver licence suspension and any contact the person has had with SPER or other interceptions since the driver licence suspension commenced;

(vii) where appropriate, take action to commence a prosecution for an offence of unlicensed driving. A proceeding for an offence which relates to driving a motor vehicle while the person's driver licence was suspended by SPER should not be commenced, or if commenced should be discontinued, if:

(a) the person denies that they were aware of the relevant driver licence suspension at the time of the alleged offence; and

(b) there is insufficient admissible evidence to negate the excuse of honest and reasonable mistake of fact see s. 24: 'Mistake of fact' of the Criminal Code Act (see also s. 3.4.3: 'The discretion to prosecute' of the Operational Procedures Manual); and

(viii) where a certificate is required under s. 157: 'Evidentiary provisions' of the State Penalties Enforcement Act for a police prosecution set down for hearing, officers are to complete a Police request for Certificate of SPER Registrar (see Appendix 4.2 of this chapter) and send the report to SPER as soon as practicable. SPER will provide the required certificate to the requesting officer.

4.10 Licence production/surrender register

Section 130 of the Transport Operations (Road Use Management) Act provides that in certain circumstances where any licence is deemed to be cancelled or suspended or is surrendered or is required for the purpose of making an endorsement thereon under the Transport Operations (Road Use Management) Act the licensee shall forthwith deliver that licence to the superintendent, who is the officer in charge of the police station in the police division in which the address of the licensee, as indicated on the licence in question, is situated.

In accordance with s. 4.9: 'Production of driver licences and verification of identity' of this chapter an officer may request a person to produce an open Queensland driver licence to a specified police station.

PROCEDURE

Officers in charge of stations and establishments should maintain a register at their station/establishment for the purpose of recording details of all driver licences surrendered or produced for inspection.

Officers who, in accordance with s. 4.9: 'Production of driver licences and verification of identity' of this chapter, require a person to produce an open driver licence to a police station should check after the appropriate time to ascertain whether the person did produce an open driver licence.

4.11 Issuing infringement notices for unlicensed driving offences

Section 78 of the Transport Operations (Road Use Management) Act (the Act) allows an infringement notice to be issued to a person driving a motor vehicle if:

(i) the person is an unlicensed driver for the motor vehicle driven by the person; and

(ii) the person had not, in the five years before the contravention, been convicted of another offence against s. 78(1): 'Driving of motor vehicle without a driver licence prohibited' (unlicensed driving).

(iii) subsections 78(1B) to (1D) of the Act do not prevent the infringement notice being issued to the person, i.e. the person was not:

(a) unlicensed in circumstances where if the person had been granted a Queensland driver licence, that licence would be subject to an interlock condition (see s. 78(1B); or

(b) unlicensed in circumstances where the person had been an interlock driver but at the time of the unlicensed driving offence:

• did not hold a valid Queensland driver licence (except where their licence had expired within 4 weeks of the offence); and
  
• their interlock period had not ended.

See s. 78(1C) and (1D) of the Act.

The infringement notice fine amount varies depending on the circumstances of the alleged offence.

Section 78(6) of the Act provides the following definitions.

'disqualified driver' means a person:

(i) who is disqualified from holding or obtaining a driver licence because of any court order; or

(ii) who is disqualified from holding or obtaining a driver licence because:

(a) of the allocation of demerit points; or

(b) the person was convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit; or

(c) the person's driver licence is suspended under the State Penalties Enforcement Act; or

(iii) whose authority to drive on a Queensland road under the person's non-Queensland driver licence is suspended:

(a) because of the allocation of demerit points; or

(b) the person was convicted of an offence against the Queensland Road Rules, section 20, for driving more than 40km/h over the speed limit; or

(c) under the State Penalties Enforcement Act.

'unlicensed driver', for a motor vehicle, means a person, other than a disqualified driver, who does not hold a driver licence authorising the person to drive the vehicle on the road.

Section 78A(6) of the Act provides the following relevant definition:

'recently expired licence', in relation to a person's contravention of s. 78(1) of the Act, means:

(i) a driver licence that has been expired for no more than 1 year before the contravention; or

(ii) a non-Queensland driver licence if, within the 1 year before the contravention, the authority to drive on a Queensland road under the licence has been withdrawn, other than because:

(a) the person was granted a Queensland driver licence; or

(b) the chief executive reasonably believed the person had a mental or physical incapacity that was likely to adversely affect the person's ability to drive safely.

Schedule 4 'Dictionary' of the Act also provides that:

'convicting' a person includes:

(i) a court finding the person guilty, or accepting the person's plea of guilty, whether or not a conviction is recorded; and

(ii) the person paying a penalty under the State Penalties Enforcement Act.

PROCEDURE

Before issuing an infringement notice for an alleged offence of unlicensed driving, officers should:

(i) check QPRIME to ascertain whether the alleged offender's driver licence is a recently expired licence;

(ii) ascertain whether the alleged offender has a current 'Permit to Drive (recently expired driver licence)';

(iii) check the alleged offender's traffic history to ascertain whether the person had not, in the five years before the contravention, been convicted of another offence against s. 78(1);

(iv) check QPRIME to determine whether subsections 78(1B) to (1D) of the Act prevent the infringement notice being issued to the person;

(v) check QPRIME with a view of establishing whether the alleged offender has been charged with or found guilty of, another type 2 vehicle related offence of the same type within the relevant period.  This will be shown as a flag in QPRIME (see s. 13.35: 'Impounding Motor Vehicles' of the Operational Procedures Manual);

(vi) ascertain the circumstances of the alleged offence, which will determine the appropriate offence code and infringement notice fine amount, by questioning the alleged offender, checking QPRIME and making any other necessary enquiries with the Department of Transport and Main Roads to establish whether:

(a) the alleged offender's driver licence:

• expired no more than one year before the contravention;
   
• expired more than one year before the contravention;
   
• was surrendered by the person; or
   
• was suspended or cancelled because the person had a mental or physical incapacity likely to adversely affect the person's ability to drive safely; or

(b) the alleged offender:

• was disqualified by a court order from holding or obtaining a driver licence for a period and has not obtained another driver licence at the end of the period of disqualification;
   
• holds a driver licence but is not authorised by the driver licence to drive, or learn to drive, the class of vehicle involved in the contravention; or
   
• has never held a driver licence; or

(c) the person's authority to drive under a non-Queensland driver licence was withdrawn under:

• s. 35(3) of the Transport Operations (Road Use Management - Driver Licensing) Regulation; or
   
• s. 35(5) of the Transport Operations (Road Use Management - Driver Licensing) Regulation; and

(vii) consider whether to commence proceedings by way of a notice to appear or arrest as opposed to the issuing of an infringement notice. Officers should note that an unlicensed driving offence is a type 2 vehicle related offence for the purpose of Chapter 4: 'Motor vehicle impounding powers for prescribed offences and motorbike noise direction offences' of the Police Powers Responsibilities Act. Issuing a PT56 'Infringement Notice' will most likely not result in the person being found guilty of the prescribed offence. The payment of an infringement notice fine is not an admission or finding of guilt. Consequently, the offence cannot be relied upon in future impounding or forfeiture order applications.

POLICY

Officers may issue an infringement notice to a person, if:

(i) the person is an unlicensed driver; and

(ii) the person does not hold a current 'Permit to Drive (recently expired driver licence)'; and

(iii) the person has not been convicted of another offence against s. 78(1) of the Act during the preceding five years; and

(iv) subsections 78(1B) to (1D) of the Act do not prevent the infringement notice being issued to the person, i.e. the person was not:

(a) unlicensed in circumstances where if the person had been granted a Queensland driver licence, that licence would be subject to an interlock condition (see s. 78(1B); or

(b) unlicensed in circumstances where the person had been an interlock driver but at the time of the unlicensed driving offence:

• did not hold a valid Queensland driver licence (except where their licence had expired within 4 weeks of the offence); and
  
• their interlock period had not ended.

See s. 78(1C) and (1D) of the Act; and

(v) the person has not been charged with or found guilty of another type 2 vehicle related offence of the same type within the relevant period; and

(vi) in light of the requirements of Chapter 4: 'Motor vehicle impounding powers for prescribed offences and motorbike noise direction offences' of the Police Powers Responsibilities Act, it is not more appropriate to commence proceedings by notice to appear or arrest; and

(vii) the circumstances of the alleged offence can be ascertained in order to determine the correct offence code and infringement notice fine amount to enter onto the infringement notice.

In cases where an officer intercepts a driver who the officer reasonably believes is an unlicensed driver but the circumstances of the alleged offence cannot be established within a reasonable time, the officer should not issue an infringement notice but should instead issue a notice to appear or complete a breach report in respect of the matter.

Permit to Drive (recently expired driver licence)

If an officer issues an infringement notice to a person with a recently expired licence for an offence under s. 78 of the Act, the officer may also issue a 'Permit to Drive (recently expired driver licence)' (Permit to Drive) under s. 78A of the Act. A Permit to Drive may not be issued unless an infringement notice has been issued for this offence.

A Permit to Drive is only valid within Queensland.

POLICY

Officers should issue Permits to Drive in any case where the issue of such a permit is lawful and necessary. It may not be necessary to issue a Permit to Drive to a person who is in a vehicle with an appropriately licensed person who could drive the vehicle instead.

In cases where a Permit to Drive cannot be issued, officers are not to explicitly or tacitly permit a person whose driver licence has expired to drive. Wherever necessary, officers are to comply with s. 14.28.1: 'Rendering assistance to stranded motorists' of the Operational Procedures Manual.

PROCEDURE

When completing the Permit to Drive, officers should ensure that the stated place to which the person is permitted to drive is clearly described, e.g. the person's home address or a nominated place of safety. The term of the Permit to Drive must commence from a specific time and date after the time of the offence and must not exceed twenty-four hours.

Issuing officers may place conditions upon the Permit to Drive. Any such conditions should be specific and relevant to the issuing of the Permit to Drive and/or relate to the movement of the vehicle. For example, the conditions placed on the Permit to Drive may:

(i) specify the particular vehicle to be used, this should be the vehicle which the person was driving at the time of their interception;

(ii) specify the route to be taken; or

(iii) require the holder to carry and produce the permit on demand by a police officer.

Officers who issue a Permit to Drive should ensure that the police copy of the permit is attached to the prosecution copy of the relevant infringement notice.

POLICY

Officers who issue a Permit to Drive are to ensure that any conditions placed on the permit are relevant and reasonable.

Officers should also consider fatigue management issues by ensuring that the stated place, the term and the conditions of the Permit to Drive do not require the person to whom the Permit to Drive is issued to drive for extended periods to comply with the permit. Where a person would not be able to complete their journey within a reasonable time, within the twenty-four hour maximum period, the Permit to Drive should authorise the person only to drive to a nearer place of safety.

Wherever possible, the officer should advise the person of the location of the nearest Department of Transport and Main Roads Customer Service Centre or if appropriate, the nearest police station where a driver licence may be renewed.

Failure to comply with the provisions or conditions of a Permit to Drive

If the permit is issued on a condition, the permit is cancelled if the condition is contravened (see s. 78A(4)).

POLICY

If an officer ascertains that the driver of a vehicle is a person to whom a Permit to Drive has been issued and that person has driven to a place other than the place stated in the permit or during a period outside of the term of the permit, the officer should consider taking appropriate action for an offence of unlicensed driving.

If an officer ascertains the driver of a vehicle is a person to whom a Permit to Drive has been issued on a condition and that person has contravened a condition of that permit, the officer should endorse the Permit to Drive with:

(i) the word 'cancelled';

(ii) the time and place of cancellation; and

(iii) the officer's name, rank and station; and

(iv) the words 'Permit to be delivered forthwith to the Officer in Charge of (police station in the area where the person to whom the permit was issued resides)'.

Section 49 of the Act provides the authority to require the production of a Permit to Drive and to make a note on it.

The cancelled Permit to Drive should be returned to the person to whom it was issued.

The officer should tell the person that the Permit to Drive is cancelled and that the person is no longer authorised to drive a motor vehicle until the person renews their driver licence. The officer should also tell the person that it is an offence to possess a cancelled licence, which includes a Permit to Drive, without reasonable excuse and that person is to deliver the permit forthwith to the officer in charge of the police station in the police division within which the person resides (see ss. 126: 'Fraud and unlawful possession of licences' and 130: 'Delivery of cancelled or surrendered licences, or licences for endorsement' of the Act).

It may be appropriate to consider taking action for an offence of unlicensed driving if:

(i) the contravention of a condition which caused the cancellation of the Permit to Drive was of a nature which shows a deliberate disregard for the conditions of the permit; and

(ii) there is sufficient evidence of the person having driven a motor vehicle for a reasonable period between the time of the contravention and the time of interception.

Officers in charge of stations receiving cancelled permits to drive should forward the permit to the officer in charge of the issuing station for filing with the prosecution copy of the relevant infringement notice.

Officers who are aware that a person has previously been issued a Permit to Drive should not issue another Permit to Drive to that person.

Issuing infringement notices for failing to produce driver licence

POLICY

When an officer requires a person to produce their driver licence, and the person fails to produce that licence after the officer has warned the person in accordance with s. 633 of the Police Powers and Responsibilities Act, the officer may issue an infringement notice for the offence under ss. 791 and 58(2) of the Police Powers and Responsibilities Act. It should be noted that open driver licence holders have the opportunity of producing the driver licence at a nominated police establishment within forty-eight hours of a requirement made by an officer.

PROCEDURE

Officers detecting an offence under this section should check QPRIME prior to the issuing of an infringement notice to ascertain whether the driver is licensed.

If an infringement notice is not issued, an officer should take such alternative enforcement action as is appropriate in the circumstances.

If it is determined that the driver is unlicensed, the officer should take appropriate enforcement action which may, if the person's driver licence has recently expired, involve issuing an infringement notice and Permit to Drive.

Issue 18 - December 2011