Driver licence related issues

6.73     A person that drives without a valid driver licence commits a criminal offence. Penalties include: court imposed fines; licence suspension and disqualification; and imprisonment, with penalties increasing with each related infraction. Aboriginal and Torres Strait Islander people are susceptible to licence suspension due to fine default, or may never gain a valid driver licence.

Impact on Aboriginal and Torres Strait Islander peoples

6.74     Where public transport is limited or not available—which is particularly relevant for remote communities—Aboriginal and Torres Strait Islander peoples without a valid driver licence or under a licence suspension may still be required to drive in order to maintain employment, fulfil cultural and family obligations, or drive to obtain medical assistance or necessities such as food.

6.75     Driver licence related offences affect Aboriginal and Torres Strait Islander communities, particularly where regionally or remotely located. For example, the NSW Aboriginal Legal Service reported that, in 2010 in NSW, 12% of people charged with driving while suspended or disqualified were Aboriginal and Torres Strait Islander peoples. Of those charged with driving unlicensed, 21% were Aboriginal and Torres Strait Islander peoples.^[85] The NSW Bureau of Crime Statistics and Research data shows that in 2016, Aboriginal and Torres Strait Islander peoples constituted 31% of all people imprisoned for driving while suspended or disqualified.^[86] This is similar in other states and territories, and is particularly high in the NT.^[87]

6.76     Nationally, 3% (270) of the total Aboriginal and Torres Strait Islander prison population in 2016 were imprisoned for traffic and vehicle regulatory offences. This proportion was similar in the non-Indigenous prison population, at 2% (556).^[88]

Loss of licence through fine default

6.77     Loss of licence through fine default is common. For example, in WA up to 308,400 licence suspensions were imposed by the Fines Enforcement Registry in 2014–15. 270,843 suspensions were lifted during the same period (for fines paid or for people entering a time-to-pay arrangement).^[89] Up to 67% of licence suspensions in NSW are the result of fine enforcement measures, as shown in the table below.

Table 2: The source of NSW driver licence cancellations and disqualifications at March 2016 ^[90]

Prison for driving while disqualified

6.78     A person cannot go directly to prison for driver licence suspension due to fine default. The person must be consequently convicted of driving while suspended and then be disqualified. Continuing to drive while disqualified can result in a sentence of imprisonment. This is generally rare, but can be pronounced in some regions. For example, the NSW ALS observed that 50% of their clients in the Dubbo region who were charged for driving while disqualified received a sentence of imprisonment. They were generally sentenced to imprisonment on their second to fourth offence.^[91]

6.79     Driver licence disqualification periods, which are imposed when a person is caught driving while suspended, are mandatory in some jurisdictions. In the ACT, NSW, and Queensland, courts do not have a discretion whether or not to apply a statutory disqualification period.^[92] Where there is more than one disqualification period, the periods can be required to be served consecutively—which can result in extremely long periods of disqualification.

Impact on Aboriginal and Torres Strait Islander peoples

6.80     Driver licences can be suspended as a result of fine default—even where the originating fine was unrelated to the defaulter’s driving ability. The ALRC has heard, for example, of Aboriginal and Torres Strait Islander people caught fishing without a permit, which resulted in driver licence suspension.

6.81     The ALRC has been told that some Aboriginal and Torres Strait Islander peoples face particular difficulties relevant to remoteness and transiency that can make them highly susceptible to licence suspension for fine default. The NSW Ombudsman reported that

Aboriginal people are far less likely than non-Aboriginal people to pay their fines by the due date and there is a high likelihood that they will remain in the fines enforcement system for up to several years after they have committed the offence(s) for which one or more penalty notices were issued.^[93]

6.82     This means that Aboriginal and Torres Strait Islander people are likely to be over-represented in licence suspension due to fine default. For example, in 2013, the NSW Auditor-General reported that Aboriginal and Torres Strait Islander peoples were suspended for fine default in NSW at over three times the rate of non-Indigenous people.^[94]

Whether state debt recovery agencies should skip licence suspension step

6.83     Where a person has funds but is refusing to pay an unpaid fine, licence suspension (or the threat of) can be effective in encouraging payment.^[95] However, where a person is not paying an unpaid fine because they simply do not have the funds, licence suspension can have grievous consequences for people, especially Aboriginal and Torres Strait Islander peoples. There have been calls to reconsider the fine enforcement step of licence suspension. For example, a report to the then Roads and Traffic Authority (NSW) noted that, if licence suspension was to continue to be one consequence of fine debt, the SDRO needed to work more closely with the community to minimise adverse or unintended consequences.^[96] The ALRC goes further to ask whether—considering the option for civil orders—the step is really necessary.

6.84     In 2017, NSW introduced a statutory discretion allowing the SDRO to skip licence suspension where the person in fine default is deemed to be ‘vulnerable’. Instead, the SDRO can use discretion to skip the RMS step, and recover fines earlier via civil enforcement action with ‘less negative impact on vulnerable members of the community’.^[97] The SDRO may decide that civil enforcement action is preferable in the absence of and without giving notice to, or making inquiries of, the fine defaulter.^[98]

Whether disqualification periods should be discretionary

6.85     The ALRC notes that in certain jurisdictions, the court has little discretion as to the disqualification period.^[99] In NSW, for example, if the court wants to impose a lesser penalty than one prescribed, it only has limited discretion to make a non-conviction order.^[100] It has been suggested that expanding the discretion of the courts is a better solution than introducing a process to apply to have the disqualification quashed after a period of good behaviour,^[101] although that option already exists in some jurisdictions.^[102]There may be an option for discretionary disqualification periods to apply only to licence suspensions due to fine default.

6.86     The ALRC seeks input on the best way to minimise the impact of licence suspension on Aboriginal and Torres Strait Islander peoples who have defaulted on fine payments, and welcomes submissions on these questions as well as any other relevant material.

Access to driver licences

6.87     Some Aboriginal and Torres Strait Islander people can face particular obstacles in getting a driver licence. These include: limited access to registered vehicles and licensed drivers to supervise learners; the number of learner hours required to become licensed; difficulty in obtaining identity documentation (such as birth certificates); and any literacy issues and corresponding difficulty passing written tests.^[103]

6.88     In 2013, the NSW Auditor-General reported that fewer than half of eligible Aboriginal and Torres Strait Islander peoples held a driver licence, compared with 70% of the non-Indigenous population, and observed that ‘meeting the Graduated Licensing Scheme requirements is difficult if your literacy is poor, you cannot access a vehicle or there is not a licensed driver to supervise you’.^[104] Being in fine default can also prevent a person from applying for a driver licence.

Whether to introduce a regional driver permit scheme

6.89     In preliminary consultations in this Inquiry, the ALRC has been told that there should be a driver permit scheme for Aboriginal and Torres Strait Islander peoples living in some regional and remote areas. This has been raised previously in other inquiries. For example, in 2010, the Standing Committee on Aboriginal and Torres Strait Islander Affairs recommended the introduction of ‘special remote area’ driver licences.^[105] The recommendation was supported in a 2012 report to the NT Government, which suggested that the reform be ‘carefully studied’ as a way to increase employment opportunities for young Aboriginal and Torres Strait Islander peoples.^[106]

6.90     In 2009, the North Australian Aboriginal Justice Agency suggested that community members in the NT should be able to drive unlicensed or in unregistered cars within communities and on Aboriginal land on bush tracks, especially for hunting purposes.^[107]

6.91     The ALRC envisages that, in order to address the current obstacles preventing Aboriginal and Torres Strait Islander peoples from accessing driver licences, a regional driver permit is likely to require fewer identity documents and cost less to access. The driving requirements prior to receiving the permit would likely be less arduous. It would need to be limited to use in certain areas, and should not qualify as equivalent personal identification to a standard driver licence for the purposes of confirming identity.

Whether it is better to focus on the obstacles to becoming licensed

6.92     The ALRC has also heard that regional driver permit schemes would only provide ‘band aid’ solutions, and be difficult to implement and administer. Instead what needs to be addressed are the obstacles to receiving a driver licence in the first place. This is not a new issue: the RCIADIC recommended that, in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment, these causal factors should be identified, and, in conjunction with Aboriginal community organisations, programs should be designed to reduce the incidence of offending.^[108]

6.93     There are some driver licence schemes already operating, such as the Aboriginal Justice Project in WA, which provides travelling services to assist Aboriginal and Torres Strait Islander peoples to pay fines, access birth certificates and apply for or reinstitute their driver licence. To this end, representatives from the Department of Transport, Centrelink, Registry of Births, Deaths and Marriages, Fine Enforcement Registry, and the Aboriginal Justice Program attend ‘open days’ in identified priority locations.

6.94     In 2015–16 the Aboriginal Justice Project reported that it had:

• conducted 73 open days, which 2,751 people attended;
• converted over $300,000 worth of fines to time to pay schemes or stayed;
• provided for 33 people to enter time to pay schemes;
• lifted 684 licence suspensions caused by fine default;
• enabled 900 people to apply for a birth certificate; and
• conducted 146 practical driving assessments and over 200 theory tests.

6.95     The Royalty for Regions program in WA also provided enhanced driver training and education in regional and remote communities.^[109]

6.96     There are similar driver licence programs in NSW, including Driving Change; the Balunda-a program (for offenders); and Birrang Enterprises, which provides literacy and training to adult Aboriginal and Torres Strait Islander peoples.Driver training is also a key element of the Maranguka Justice Reinvestment Program in Bourke. The ALRC has also heard about driving programs developed for Aboriginal and Torres Strait Islander peoples in Queensland and the NT.

6.97     The NSW Auditor-General’s 2013 report on Improving Legal and Safe Driving among Aboriginal People, outlined the characteristics of successful programs, including using and building on community capacity; having program champions; and involving Aboriginal and Torres Strait Islander peoples in program development and delivery.^[110]

6.98     Driving programs are necessarily limited by resources and geography. Other issues include the small scale and short lifespan of most programs; the practical constraints of insurance cover; volunteer driver reimbursements; and lack of ownership, funding and evaluations.^[111] Driver licence programs require coordination between different government departments, such as Births, Deaths and Marriages, Attorneys-General, and Roads and Maritime Services. This happens under the Aboriginal Justice Program in WA, but lack of coordination can be a problem in other states and territories. The NSW Auditor-General identified coordination as a key gap in the steady provision of driving programs to Aboriginal and Torres Strait Islander peoples in NSW.^[112]

6.99     Considering the suite of current driver programs, and identification of best practice for the successful delivery of driver programs for Aboriginal and Torres Strait Islander peoples, the ALRC welcomes submissions on whether a limited driver permit scheme is necessary, or whether the focus should remain on expanding and enhancing the current service provision.

6.100  The ALRC also welcomes submissions on the best way to deliver driver licence programs to regional Aboriginal and Torres Strait Islander communities. For example, it has been suggested to the ALRC in consultations that, where Aboriginal and Torres Strait Islander young people are likely to complete high school education and unlikely to face other identified obstacles (such as access to birth certificates), driver licence programs could constitute an elective in the school curriculum. It has also been suggested that state and territory governments enhance and commit to current government driver education programs, so as to extend the geographic reach of the program and the consistency of service in certain areas.