South Australian Current Acts South Australian Current Acts19AF—Power of police to impose immediate licence disqualification or
suspension for certain offences
(1) If a police
officer reasonably believes that a person has, after the commencement of this
section, committed—
(a) an
offence against section 19A (being an offence where a motor vehicle was
used in the commission of the offence); or
(ab) an
offence against section 19AB (being an offence where a motor vehicle was
used in the commission of the offence); or
(ac) an
offence against section 19ABA (being an offence where a motor vehicle was
used in the commission of the offence); or
(b) an
offence against section 19ADA(1),
the police officer may give the person a notice of immediate licence
disqualification or suspension.
(1a) A notice of
immediate licence disqualification or suspension under this section
must—
(a)
contain the prescribed particulars; and
(b)
comply with any requirements specified by the regulations.
(2) If a person is
given a notice of immediate licence disqualification or suspension under this
section—
(a) in
the case of a person who does not hold a driver's licence—the person is
disqualified from holding or obtaining a driver's licence for the
prescribed period; or
(b) in
the case of a person who holds a driver's licence—the person's driver's
licence is suspended for the prescribed period.
(3) The Commissioner
of Police must ensure that the prescribed particulars of a notice of immediate
licence disqualification or suspension given to a person under this section
are forwarded to the Registrar of Motor Vehicles.
(4) The Registrar of
Motor Vehicles must, on receiving particulars of a notice of immediate licence
disqualification or suspension from the Commissioner of Police, send, by post,
a notice to the person of the name and address specified by the Commissioner
containing the prescribed particulars of the notice of immediate licence
disqualification or suspension.
(5) The operation of a
notice of immediate licence disqualification or suspension is not affected by
any failure to comply with subsection (4).
(6) A court may, on
the application of a person to whom a notice of immediate licence
disqualification or suspension is given under this section, if the court is
satisfied on the basis of evidence given on oath by or on behalf of the person
that—
(a)
exceptional circumstances exist in relation to the person or the
alleged offence such that it is, in all the circumstances, appropriate that an
order be made under this subsection; and
(b) the
person does not pose a substantial risk to other members of the public if an
order is made under this subsection,
order that the disqualification of the person from holding or obtaining a
driver's licence be removed, or the suspension of the person's driver's
licence end, (as the case requires) on the date specified in the order.
(7) The Crown is
entitled to be heard on an application under subsection (6).
(8) Without limiting
the evidence that may be adduced by the Crown on the question of whether a
person poses a substantial risk to members of the public, the Crown may, in
relation to an application under subsection (6)—
(a)
adduce evidence of previous offences relating to the applicant's use of a
motor vehicle for which the applicant has been found guilty or that the
applicant has expiated; or
(b)
adduce evidence of the alleged offence to which the notice of immediate
licence disqualification or suspension under this section relates.
(9) The court must
ensure that the prescribed particulars of an order under subsection (6)
are forwarded to the Registrar of Motor Vehicles.
(10) If a person is
given a notice of immediate licence disqualification or suspension under this
section and a determination is later made that the person should not be
charged with an offence against section 19A, section 19AB,
section 19ABA or section 19ADA(1), the Commissioner of Police must
ensure that the person is given, or sent by post, written notice of that
determination containing the information required by the regulations.
(11) The Commissioner
of Police must ensure that the prescribed particulars of a determination
referred to in subsection (10) are forwarded to the Registrar of
Motor Vehicles.
(12) The laying of
charges against a person is not prevented by a failure to comply with
subsection (10) in relation to the person or by the making of a
determination referred to in that subsection or the notification of such a
determination.
(a) a
period of licence disqualification or suspension has applied to a person as a
result of the person having been given a notice of immediate licence
disqualification or suspension under this section; and
(b) a
court convicts the person of the offence to which the notice relates or
another offence arising out of the same course of conduct; and
(c) a
mandatory minimum period of disqualification would (apart from this
subsection) be required to be imposed for the offence,
then—
(d) the
court must order that the person be disqualified from holding or obtaining a
driver's licence for a period determined by the court (and if the person is
the holder of a driver's licence, the disqualification operates to cancel the
licence from the commencement of that period); and
(e)
despite any other provision of this or any other Act, the court must, in
determining the period, take into account the period of licence
disqualification or suspension that has applied to the person as a result of
the notice and may for that purpose order that the period imposed be taken to
have commenced on the day on which the licence disqualification or suspension
commenced (provided that the period imposed is not less than the mandatory
minimum period of disqualification), and if the person is the holder of a
driver's licence, the licence will be taken to have been cancelled from the
day on which the order of the court is made.
(13a) If the
Commissioner of Police is satisfied that a notice of licence disqualification
or suspension under this section should not have been given because—
(a) the
notice has been given to a particular person in error; or
(b) the
notice is defective; or
(c)
there is other proper cause for which the notice should not have been given,
the Commissioner may authorise the withdrawal of the notice.
(13b) A withdrawal
referred to in subsection (13a) is effected by giving notice of the
withdrawal, in a manner and form determined by the Commissioner of Police, to
the person to whom the notice of licence disqualification or suspension was
given.
(13c) The notice of
withdrawal must specify the reason for withdrawal.
(13d) If a notice of
licence disqualification or suspension under this section is withdrawn, the
Commissioner of Police may, if satisfied that there are proper grounds to give
a fresh notice of licence disqualification or suspension to any person,
authorise the giving of such a notice (provided that in the case of a notice
relating to an offence against section 19ADA(1), the relevant period for
the fresh notice must, if it is given to the same person as was given the
withdrawn notice, be reduced by the period for which the withdrawn notice was
(or purported to be) in operation).
(14) No compensation
is payable by the Crown or a police officer in respect of the exercise, or
purported exercise, of powers under this section (however, nothing in this
subsection protects a police officer from liability in respect of the
exercise, or purported exercise, of powers otherwise than in good faith).
(15) This section is
in addition to, and does not derogate from, the Road Traffic Act 1961 or
any other Act or law.
(16) For the purposes
of this section, a reference to the charging of a person with an offence will
be taken to include a reference to the laying of an information charging a
person with such an offence (and the person will be taken to have been charged
at the time the information is laid in court in accordance with the
Criminal Procedure Act 1921 ).
(17) For the purposes
of this section, the "prescribed period" is a period that—
(a)
commences at the time the person is given a notice of immediate licence
disqualification or suspension under this section; and
(b)
ends—
(i)
if the notice of immediate licence disqualification or
suspension relates to an offence against section 19A, section 19AB
or section 19ABA (in any case being an offence where a motor vehicle was
used in the commission of the offence and where the offence caused the death
of, or serious harm to, a person)—
(A) if a court makes an order under
subsection (6)—on the date specified in that order; or
(B) if the person is charged with such an
offence—at the time the person is issued a notice of immediate licence
disqualification or suspension under section 19AE in relation to the
charge; or
(C) if a determination is made that the
person should not be charged with such an offence—at the time the
determination is made; or
(ii)
if the notice of immediate licence disqualification or
suspension relates to any other offence against section 19A or
section 19AB or an offence against section 19ADA(1)—
(A) if a court makes an order under
subsection (6)—on the date specified in that order; or
(B) if a determination is made that the
person should not be charged with an offence against section 19A,
section 19AB or section 19ADA(1)—at the time the determination
is made; or
(C) if proceedings for the offence to which
the notice relates are determined by a court or are withdrawn or otherwise
discontinued; or
(D) in any event—at the end of
12 months from the commencement of the prescribed period.