LEGAL OPINION: Reaching the demerit point threshold may trigger a loss of licence.
We receive lots of calls from truck drivers about demerit points. When your licence is your livelihood, points are a real concern. This month I thought I’d answer some of our most commonly asked questions.
These answers relate to the laws in New South Wales. Remember the laws are different in every state, so make sure to seek advice from the local jurisdiction if you have an offence or hold a licence in another state.
How do demerit points work?
The NSW Road Transport legislation has a list of offences that carry demerit points. It prescribes how many points apply for each of these offences.
The points are automatically added to your record if you pay a penalty notice or get conviction of one of these offences. The points will also be added to your record if your fine goes overdue.
The legislation also sets a ‘demerit point threshold’ for each type of licence. If you reach this threshold within a three-year period then you will receive a Notice of Suspension. The thresholds are:
• Unrestricted licence holder: 13 points
• Professional driver: 14 points
• Provisional 1 licence holder (red Ps): 4 points
• Provisional 2 licence holder (green Ps):7 points.
How long do points count for?
You will trigger a suspension if you incur the threshold number of demerit points within a 3 year period.
Your points are applied to your record based on the day the offence happened (not when you pay the fine). This means that they count all the points within three years before the date of your most recent offence.
The fact the points are applied for the offence date is important, because even if you have received some of your points back recently before paying the fine they might still count towards a suspension. It’s a good idea to get a copy of your traffic record and speak with us before paying the fine to work out whether the old points still count.
The other way to ‘use up’ points is to serve a suspension or good behaviour licence period. The points for any of the offences on the suspension notice will not be counted towards future suspensions.
Can I avoid demerit points?
There are a few options to avoid points being recorded against you in NSW.
Firstly, you can apply to Revenue NSW for a review of the penalty notice. If Revenue NSW agrees to issue a caution, the points will not be added to your driving record.
The other option is to take the offence to court. If you are found ‘not guilty’ then the offence is not placed on your record and there are no points. Also, even if you are pleading guilty to the offence there is still a way to avoid the points.
When a magistrate is sentencing for a traffic offence they can make a ‘non-conviction’ order. You might also hear this called a ‘section 10’. This is where the magistrate finds the person guilty but does not record a conviction.
If the magistrate grants a ‘non-conviction’ the offence is still put on the person’s driving record, but the magistrate cannot impose a fine and more importantly the demerit points aren’t applied.
It’s important to speak with a lawyer before you take your fine to court. There are some risks of taking a penalty notice to court (e.g. increased fine or a conviction) and it’s not always possible to achieve a non-conviction. So it’s important to get advice about how strong your case is.
Can you pay the fine but not get points?
Unfortunately it’s not possible to pay the fine and avoid the points. Demerit points are applied automatically once you pay
the penalty notice. If you take the fine to court and plead guilty, then the only way to avoid the demerit points it to get a ‘non‑conviction’. If the magistrate grants a ‘non-conviction’ they are not allowed to impose a fine.
Can a court reduce the points I get?
A magistrate cannot reduce the number of demerit points you receive. The number of points for each offence are prescribed by law. They are automatically applied when the penalty notice is paid or the person is convicted. No one has legal power to adjust how many points you receive for a particular offence.
What are your options if you receive a suspension notice?
Your options depend on what class of licence your hold.
Unrestricted licence holders: If you have an unrestricted licence then you can choose to either serve the suspension or go on a good behaviour licence.
A good behaviour licence is where you are given one demerit point for 12 months. If you successfully complete this period then the suspension is waived. However, if you receive two or more points within the 12 months you will receive double the original suspension (e.g. 6 months instead of 3).
Good behaviour licences can be a good option if you’re confident to get through 12 months without new offences, but it’s also a risky option because you risk a much longer suspension. It’s important to think carefully before choosing.
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Provisional licence holders: P plate drivers can choose to either serve the suspension or lodge an appeal against the suspension.
If you appeal against the suspension your case will be heard by a magistrate in the Local Court. They can do one of 3 things:
1. Remove the suspension entirely
2. Reduce the suspension to a shorter period
3. Make you serve the full suspension.
Again, it’s a good idea to speak with a lawyer before deciding to appeal. We can help you understand the likely outcomes in your particular circumstances and how to improve your chances.
Claiming a professional driver point
Professional drivers who hold a NSW unrestricted licence can claim an extra demerit point, meaning they need to incur 14 points before their licence is suspended.
You may be eligible for a professional driver point if you work as a paid driver for over 20 hours per week driving:
• A motor vehicle transporting goods within NSW or interstate; or
• A bus, taxi, hire car with authorisation under the Passenger Transport Act 1990.
There are some restrictions on what counts as a professional driver so you should seek some guidance from Transport for NSW or a lawyer.
You can apply for the professional driver point once you receive the Notice of Suspension. You need to make the application before the suspension period begins. You can apply by attending a Service NSW registry with the appropriate forms and evidence. The Transport for NSW website has all the information you need to apply.
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Sarah Marinovic is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at sarah@ainsleylaw.com.au or phone 0416 224 601