Traffic offences in NSW
Driving while disqualified, suspended, cancelled or unlicensed
These are the charges people plead guilty to before anyone checks whether the suspension notice ever reached them. The section number on your court attendance notice decides whether you are facing a fine, a further disqualification or a term of imprisonment, and whether the court has any room to move.
Do not tell police you knew, and do not plead guilty at the first mention
Knowledge of the suspension or disqualification is an element the prosecution has to establish, and a great many of these charges fall over on notice alone. Get your traffic record and the service history before you say anything. Call us on 0407 171 626 (Alicia) or 0407 534 594 (Michelle).
Catron Simmons Lawyers are traffic lawyers acting for drivers charged with unauthorised driving offences in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
Unauthorised driving offences sit in sections 53 and 54 of the Road Transport Act 2013. They look interchangeable on a charge sheet and they are not. Driving while disqualified by a court is a different offence from driving while suspended by Transport for NSW, which is different again from driving while suspended by Revenue NSW for an unpaid fine, and the last of those carries no imprisonment at all on a first offence.
The penalties were substantially reduced on 28 October 2017. Mandatory minimum disqualifications went, the habitual traffic offender scheme was abolished, and a pathway opened for long term disqualified drivers to apply to get back on the road. A good deal of the material still circulating online, including on other law firm websites, describes the old regime.
Know your charge
Which offence have you been charged with?
Check the section number on your court attendance notice. Everything that follows on this page turns on it.
Driving while disqualified
You were disqualified by a court, usually after a drink driving or other major traffic matter, and drove during the disqualification period. This is the most serious of the group because it is a breach of a court order, and the courts sentence it that way.
Driving while suspended
Your licence was suspended by Transport for NSW or by police, for demerit points, a speeding offence or an immediate suspension notice. Same maximum penalties as disqualified driving, though the moral quality of it is usually very different.
Driving after cancellation or refusal
Your licence was cancelled, or your application for one was refused, and you drove a vehicle of that class without having obtained a new licence. Medical cancellations and unrenewed licences are the common causes.
Driving while suspended for an unpaid fine
Your licence was suspended or cancelled under section 66 of the Fines Act 1996 for fine default. Treated distinctly and less severely: no imprisonment on a first offence, and the court must consider your employment and your ability to pay the fine.
Driving unlicensed
You hold no current licence, most often because it expired and was not renewed. A fine only, with no imprisonment and no automatic disqualification, although the court retains a general discretion to disqualify.
Driving while never licensed
You have not held a licence of any kind anywhere in Australia in the five years before the offence. A first offence is a fine. A second within five years carries imprisonment and an automatic twelve month disqualification.
A person who has never been licensed cannot be convicted under both section 53 and section 54 for driving on the same occasion, and cannot be convicted under both section 53(1)(a) and section 53(3). Duplicated charges on the one court attendance notice are worth raising early rather than at sentence.
The elements
What the prosecution has to prove
Each element must be proved beyond reasonable doubt. On these charges the police brief is frequently thin, because the offence looks self proving from a licence status check and the file is prepared on that assumption.
1. You were driving a motor vehicle
Driving means being in control of the steering, movement or propulsion of a vehicle. Sitting in a stationary car is not driving. Identity is genuinely in issue more often than you would expect, particularly where police did not intercept the vehicle at the time and are working from a camera image or a nomination.
2. On a road or road related area
The definition is broad and takes in car parks, driveways serving the public, footpaths and nature strips. It does not take in every piece of private land. Where the driving was on a farm, a private acreage or an enclosed worksite, the element is arguable.
3. Your licence status
The prosecution must prove the disqualification, suspension, cancellation or refusal was validly made and was in force on the date charged. Transport for NSW records are produced as a certificate. They are not infallible, and dates that were altered after the original order carry their own notice requirement under section 54(2).
4. That you knew, or ought to have known
This is where these matters are won. A suspension imposed by post takes effect only if the notice was properly served, and service is governed by section 276 of the Act. If you had moved, if the notice went to an old address on the licence record, if it was returned undelivered, or if the disqualification was calculated from a date you were never told about, the element is in doubt. Do not resolve that doubt for the prosecution by telling police you were aware.
Disqualified is not the same as suspended
A disqualification is imposed by a court. A suspension is imposed by Transport for NSW or by a police officer. People use the words interchangeably in conversation, but they are separate offences with separate proofs, and a charge laid under the wrong subsection cannot simply be corrected at the hearing.
What you are facing
Penalties and disqualification periods
Since 28 October 2017
Lower maximums, and real discretion
The reforms cut the maximum penalties, removed mandatory minimum disqualifications and abolished habitual traffic offender declarations. Anything you read describing an eighteen month or two year maximum for these offences is out of date.
Maximum gaol, disqualified driving, first offence
Shortest disqualification the court can order
Imprisonment for a first fine default offence
A penalty unit in NSW is currently $110. Any disqualification imposed is in addition to the fine or other penalty, and in addition to any disqualification you are already serving.
| Offence | Maximum fine | Maximum gaol | Automatic disqualification | Minimum disqualification |
|---|---|---|---|---|
| Disqualified, s 54(1) | $3,300 | 6 months | 6 months | 3 months |
| Suspended, s 54(3) | $3,300 | 6 months | 6 months | 3 months |
| Cancelled or refused, s 54(4) | $3,300 | 6 months | 6 months | 3 months |
| Fine default suspension, s 54(5) | $3,300 | Not applicable | 3 months | 1 month |
| Unlicensed, s 53(1) | $2,200 | Not applicable | None, court discretion | None |
| Never licensed, s 53(3) | $2,200 | Not applicable | None, court discretion | None |
| Offence | Maximum fine | Maximum gaol | Automatic disqualification | Minimum disqualification |
|---|---|---|---|---|
| Disqualified, s 54(1) | $5,500 | 12 months | 12 months | 6 months |
| Suspended, s 54(3) | $5,500 | 12 months | 12 months | 6 months |
| Cancelled or refused, s 54(4) | $5,500 | 12 months | 12 months | 6 months |
| Fine default suspension, s 54(5) | $5,500 | 6 months | 12 months | 3 months |
| Unlicensed, s 53(1) | No second offence provision. The maximum remains $2,200. | |||
| Never licensed, s 53(3) | $3,300 | 6 months | 12 months | 3 months |
Disqualification periods are set by section 205A of the Act. The court can order longer than the automatic period, or shorter down to the minimum shown, but it cannot go below the minimum once a conviction is recorded. The only way to avoid disqualification altogether is a non conviction order.
Check this before you plead
What makes it a second or subsequent offence
Being charged as a second offence roughly doubles your exposure. The rules are set out in section 9 of the Act and they are not the same for every offence, which is a common source of error on both sides of the bar table. The five year period runs backwards from the date you are convicted of the new offence.
- Sections 54(1), (3) and (4). A second or subsequent offence if, within the previous five years, you were convicted of an offence against section 54(1), (3) or (4), or of never licensed driving under section 53(3), or of a major traffic offence.
- Section 54(5), fine default. A second or subsequent offence only if you were convicted of another section 54(5) offence within the previous five years. A prior drink driving conviction does not make it a second offence.
- Section 53(3), never licensed. A second or subsequent offence only if you were convicted of another section 53(3) offence within the previous five years.
The court attendance notice will usually state whether police allege a second offence. It is worth checking against your actual traffic record rather than accepting it, because the allegation is sometimes made on a conviction that falls outside the period or is not of a qualifying kind.
What counts as a major offence
Major traffic offences are defined in section 4 of the Act and are relevant to the section 54(1), (3) and (4) charges above. They include:
- murder or manslaughter arising out of the use of a motor vehicle, and wounding, actual bodily harm or grievous bodily harm so arising
- predatory driving, police pursuit, and failing to stop and assist after an impact causing death or grievous bodily harm
- driving furiously, recklessly or in a manner or speed dangerous to the public, and menacing driving
- negligent driving occasioning death or grievous bodily harm
- drink driving, refusing breath analysis, or wilfully altering the concentration of alcohol in your blood or breath
- driving under the influence of alcohol or a drug, and driving with an illicit substance present
- refusing or failing to provide an oral fluid, blood or urine sample, obstructing a sample being taken, or introducing or altering a drug in the sample
Note that unauthorised driving offences under sections 53 and 54 are not themselves major offences, which matters for the availability of a section 10 order and for the disqualification removal scheme.
A different offence with a different answer
Suspended for unpaid fines
If Revenue NSW suspended or cancelled your licence under section 66 of the Fines Act 1996, the charge is section 54(5) and it is treated separately for good reason. There is no imprisonment available on a first offence, the automatic disqualification is three months rather than six, and it can be reduced to one month.
More usefully, section 54(6) obliges the court to take into account the effect the penalty and the disqualification will have on your employment and on your ability to pay the very fine that caused the suspension. That is an unusual statutory direction and it is not always drawn to the magistrate’s attention. It is the strongest thing you have on these matters.
Deal with the underlying fine at the same time
Appearing at court with the fine debt already under control changes the complexion of the plea entirely. Options through Revenue NSW include a payment plan, a Work and Development Order for people experiencing hardship or with a health condition, a hardship review, or an application to have the suspension lifted while you pay. A driver who has arranged this before the hearing presents very differently from one who has not.
Your options
Defences
These charges are laid on the assumption they cannot be contested. Often they can. The most productive ground is almost always notice.
You were never properly notified
A suspension or cancellation imposed by post is only effective if the notice was served in accordance with the Act. Notices sent to a superseded address, returned undelivered, or never sent at all are common. So are disqualification periods recalculated after the event without written notice, which section 54(2) expressly addresses.
Honest and reasonable mistake of fact
A genuine and reasonable belief in a state of facts which, if true, would mean you were entitled to drive. Believing the disqualification had expired, or that the appeal had succeeded, or that the licence had been restored. The belief must be reasonable, so it needs support beyond your own assertion.
The disqualification had in fact ended
Disqualification periods are miscalculated with some regularity, particularly where several run consecutively, where a period was varied on appeal, or where an earlier order was set aside. The certificate produced by the prosecution is evidence, not proof, and it can be wrong.
Not a road or road related area
The driving occurred on private land that does not fall within the definition. Narrower than most people hope, but real on rural properties, enclosed worksites and genuinely private driveways.
Identity
You were not the driver. Where police did not stop the vehicle, the case may rest on an image, a registration check or an assumption about who normally drives the car. You are not obliged to fill that gap for them.
Necessity or duress
You drove to avoid serious and immediate danger, and the driving was a reasonable and proportionate response. Rarely available and closely scrutinised, but a genuine medical emergency or a threat of violence has succeeded.
Even where the charge cannot be defended, the police fact sheet is worth close attention. Distance driven, the reason for driving and the manner of driving all bear directly on sentence, and the first draft of a fact sheet routinely overstates them.
Sentencing
What a court can order, and what police can do to your car
Get advice before pleading guilty. On a first suspended driving charge with a good record, a non conviction order is a realistic outcome, and it is the only outcome that avoids disqualification entirely. The court also gives a discount for a plea entered early.
- Section 10(1)(a) dismissal. Guilty, but the charge is dismissed. No conviction, no penalty and no disqualification.
- Conditional Release Order without conviction. A good behaviour bond of up to two years with no conviction recorded, supervised or unsupervised.
- Conviction with no other penalty. Under section 10A a conviction is recorded, and the disqualification follows, but no further penalty is imposed.
- Fine. Usually payable within 28 days, with time to pay available on application. On a fine default matter, take care that the sentence does not simply compound the problem.
- Conditional Release Order with conviction. A bond following a conviction, with conditions such as supervision or treatment.
- Community Correction Order. Up to three years, and may include community service, a curfew or supervision by Community Corrections.
- Intensive Correction Order. A sentence of imprisonment served in the community under strict supervision.
- Full time imprisonment. Available on all the section 54 offences except a first fine default offence, and a real risk on repeat disqualified driving.
Vehicle sanctions
Repeat unauthorised driving is a sanctionable offence. Police can confiscate your number plates or impound the vehicle on the spot, ordinarily for three months and for up to six months where you were disqualified at the time. If the same vehicle is used for another sanctionable offence within five years, it can be forfeited and sold. Where you are not the registered operator, Transport for NSW may issue the owner a suspension warning notice instead. The Local Court can order the vehicle or plates released, but movement, towing and storage fees still have to be paid.
The Traffic Offender Program
The Traffic Offender Intervention Program is a court recognised road safety course with legislated content. Completing it before sentence demonstrates insight rather than asserting it, and magistrates give it real weight on driving matters. Make sure the provider you enrol with is on the Local Court’s registered list. We refer clients to a provider near them as soon as we are engaged.
Your licence
Getting back on the road
Appealing a suspension
If Transport for NSW or police have suspended your licence, you may be able to appeal to the Local Court. The time limit is short and cannot be extended, and the suspension stays in force while the appeal is pending. See licence suspension appeals. Appealing is a great deal cheaper than driving and being caught.
Appealing a disqualification
A court imposed disqualification is a different thing and is dealt with differently. You appeal the severity of the sentence to the District Court, as of right within 28 days and by leave for up to three months. Lodging within 28 days stays the disqualification, so you keep driving while the appeal is on foot, which is why that date matters.
Removing a disqualification early
Since 2017 a disqualified driver can apply to the Local Court to have all outstanding disqualifications removed, provided they have been free of any driving offence for the relevant offence free period. That period is four years where a disqualification arose from a serious offence, and two years in other cases. Convictions for the most serious offences, such as causing death or grievous bodily harm by driving, make a person permanently ineligible. See removing a licence disqualification.
Habitual traffic offender declarations are gone
The scheme was abolished on 28 October 2017 and no new declaration can be made. If you have an old declaration still running, that is precisely the situation the removal scheme was designed for.
The Driver Knowledge Test
If you have had two or more suspensions within five years, Transport for NSW may require you to sit the Driver Knowledge Test again before you can resume driving. The requirement is usually noted on the second suspension notice and you will not be reminded after your court date. Driving without having completed it is not defensible on the basis that you did not know about it, so read the notice carefully and book the test as soon as you can.
There is no work licence in NSW
Despite what you may have been told, New South Wales has no work licence, restricted licence or hardship licence. If you are disqualified you cannot drive at all, for any reason. That is why the sentencing hearing matters so much.
Other consequences worth knowing
- A conviction sits on your criminal record and can affect employment, professional registration, insurance and travel.
- Your insurer may decline a claim if you were not authorised to drive at the time of a collision.
- A new disqualification is served on top of any you are already subject to, which is how short disqualifications turn into long ones.
- Employers of professional drivers are usually notified through licence checks, whether or not you disclose it.
Why Catron Simmons
Why drivers choose us
We test the notice, not just the plea
With a background in prosecution and in highway patrol, we know how suspension notices are generated, served and recorded. That is the first thing we look at, because it is where these charges are most often defective.
The right subsection matters
A fine default suspension charged as an ordinary suspension, or a first offence charged as a second, changes your exposure by years. We check the charge against your actual traffic record before anything else.
Wherever your matter is listed
These charges are heard where the driving happened, which is often nowhere near home. We appear in Local Courts across New South Wales, so you are not left finding a second lawyer in another town.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Licence offences: your questions answered
What is the difference between disqualified, suspended and cancelled?
A disqualification is imposed by a court, usually as part of a sentence. A suspension is imposed administratively by Transport for NSW or on the spot by police, for demerit points, speeding or fine default. A cancellation ends the licence altogether, so a new one must be applied for rather than simply waiting out a period. They are separate offences under section 54 with separate elements, and the distinction affects both the penalty and the defence.
I never received the suspension notice. Is that a defence?
Frequently, yes. A suspension imposed by post takes effect only if the notice was served in accordance with the Act, and the prosecution must establish you knew or ought to have known. Notices sent to an old address, returned undelivered, or never sent are more common than people assume. Do not concede knowledge in a police interview, and get your licence and service history before entering a plea.
Will I go to gaol for driving while disqualified?
Imprisonment is available, up to six months on a first offence and twelve months on a second or subsequent offence, but it is not the usual outcome for a first offence with a good record. It becomes a genuine risk on repeat offending, where the driving was prolonged or dangerous, or where the disqualification came from a serious matter. A first offence of driving while suspended for an unpaid fine carries no imprisonment at all.
Can I avoid a further disqualification?
Only through a non conviction order, that is a section 10(1)(a) dismissal or a Conditional Release Order without conviction. If a conviction is recorded the disqualification follows automatically, and while the court can reduce it to the statutory minimum it cannot remove it. That is why the work goes into the plea in mitigation rather than into asking for leniency on the disqualification itself.
My licence was suspended for unpaid fines. Is that treated differently?
Yes. Section 54(5) carries no imprisonment on a first offence, a three month automatic disqualification reducible to one month, and the court is required by section 54(6) to consider the effect of the penalty on your employment and on your ability to pay the outstanding fine. Sorting out a payment plan or a Work and Development Order with Revenue NSW before the hearing makes a substantial difference.
How do I know if I am being charged with a second offence?
The court attendance notice usually says so, and your traffic record will confirm it. The five year period runs back from the date of conviction. For disqualified, suspended and cancelled driving, a prior major traffic offence such as drink driving will do it. For fine default driving and for never licensed driving, only a prior conviction for that same offence counts, so the allegation is sometimes wrong.
Can police take my car?
Yes. Repeat unauthorised driving is a sanctionable offence, and police can confiscate the number plates or impound the vehicle at the roadside, ordinarily for three months and up to six months if you were disqualified at the time. A further sanctionable offence in the same vehicle within five years can lead to forfeiture. The Local Court can order release, though the towing and storage fees remain payable.
Can I get my licence back before the disqualification ends?
You may be able to apply to the Local Court to have your disqualifications removed once you have gone four years without a driving offence, or two years where the disqualification did not arise from a serious offence. Some convictions, such as causing death or grievous bodily harm by driving, make a person permanently ineligible. It is a discretionary application and the court considers your whole driving record.
Do I have to go to court?
Yes. These offences are not dealt with by penalty notice. You can send in a written notice of pleading, but we do not recommend it, because the magistrate would have only the police fact sheet and your record, with nothing about you or your circumstances, and the penalty is usually heavier as a result. If you cannot attend, we can appear for you.
Keep reading
Related traffic law pages
Removing a disqualification →
Drink driving and PCA charges →
Driving under the influence (DUI) →
Driving with an illicit substance →
Negligent driving →
Reckless and dangerous driving →
Police pursuit →
Infringement notices and fines →
Camera detected offences →
Get started
Charged with a licence offence? Let’s talk today.
Send us your court attendance notice, the police fact sheet and any suspension notice you received. We will tell you whether the charge can be defended, whether it has been laid under the right subsection, and what your realistic options are.