Monday, 5 October 2009

Licences and international students

The new Road Safety (Driver) Regulations 2009 will take effect on 9 November 2009.

The drafters have made the effort to correct the unwieldly numbering system in the previous regulations (though the (Driver) Regs 1999 had fewer than 50 regulations, the last one in the booklet is numbered Reg 703).

Some steps have also been taken to make the position of driving licences more clear. While they have retained the exception-to-the-exemption-to-the-rule system from the Road Safety (Driver) Regulations 1999, some additional definitions have been provided to clarify the obligations of foreign licence holders.

The Exemption

Section 18 of the Road Safety Act 1986 specifies that all drivers must hold a valid licence. Reg 17 of the Road Safety (Driver) Regulations 2009 provides an exemption to this requirement, provided various requirements are met. Reg 221 of the Road Safety (Driver) Regulations 1999 (which is in very similar terms at new Reg 18) then creates an exception to the exemption to the rule:

18. Exceptions to exemption under regulation 17

(1) A person who holds a driver licence or learner permit referred to in regulation 17 is not exempt, or ceases to be exempt, under that regulation if—

(a) the licence or permit was issued in another jurisdiction or New Zealand and the person has resided in Victoria for a continuous period of 3 months or more; or

(b) the licence or permit was issued in a country other than Australia or New Zealand, and—

(i)the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was outside Australia and 6 months or more have elapsed since the person arrived in Australia; or

(ii) the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was in Australia and 6 months or more have elapsed since the visa was issued; or

(c) the person is disqualified from driving a motor vehicle in another jurisdiction or another country; or

(d) the person has had the licence or permit suspended; or

(e) the person has been notified under subregulation (3) that he or she is no longer exempt.

(2) Subregulation (1)(a) does not apply if the person also holds a valid Driver Identification Document issued by the Commonwealth Department of Defence.

The definition of jurisdiction for the purposes of Reg 18(1) is provided at Reg 104 (and is the same in the new Reg 5),

"jurisdiction" means an Australian State or internal Territory;

Why a New South Welshman who stays within our borders for more than 3 months should have to obtain a local licence while a true Welshman does not is not explained in the regulations. Doubtless it has to do with the revenue our nation derives from tourism, business and foreign study, and doing everything possible to make our shores an attractive place for people from overseas to visit.

A person who is not the holder of a permanent visa but does have a valid foreign licence (apart from poor old New Zealand) does not need to obtain a local licence, no matter how long they have resided in Victoria. The VicRoads website states this slightly more clearly than the regulations:

The requirement to change your overseas driver licence to a Victorian driver licence depends on whether your stay in Victoria is permanent or temporary.

If you are in Victoria on a temporary visa, you can drive on your overseas licence (provided it is current and valid) for an indefinite period provided your overseas licence is in English (or you have an English translation or an International Driving Permit).

If you are in Victoria on a permanent visa issued under the Migration Act 1958, you may drive on your overseas licence for three months from the date you first entered Australia or from the time the permanent visa was issued to you (whichever is the later). If you want to continue to drive in Victoria after this time you must hold a valid Victorian driver licence.

Learner Permits

The situation where the holder of an overseas licence is also the holder of a Victorian Learner Permit is more difficult. It has sometimes been said that the holder of a licence or permit is bound by all of the conditions of that licence or permit. While as a general statement that's probably correct, in the case of a Learner Permit I think there's scope to argue that many of the requirements don't apply to a person who holds both a Learner Permit and a valid foreign licence. On my reading of it, the regulations permit the holding of dual authorities (and probably always did).

The relevant provisions are at Regs 213 and 214 (which will become Regs 46 and 47). Both provisions, which require the display of L-plates and the presence of an accompanying driver, apply to a learner driver.

According to the definitions at Reg 104 (and this will remain in new Reg 5):

learner driver means a person who has a learner permit (including an interstate learner permit) and does not have an appropriate driver licence or other permit;

In the new (Driver) Regs a definition of appropriate driver licence or other permit is inserted:

"appropriate licence or permit", for a category of motor vehicle, means a driver licence or learner permit that authorises the holder of the licence or permit to drive a motor vehicle of that category in the jurisdiction or, if issued in another country, the country in which it was issued;

At least arguably, the regulations anticipate a situation where the holder of a Learner Permit is also exempt from holding a licence by virtue of Reg 18. If such a person is considered not to be a learner driver, it follows that regs 213 and 214 do not apply to them.

As I said at the start, this regulatory system is complex. If I were the holder of a foreign licence I wouldn't take the risk; I'd be surrendering my Learner Permit to VicRoads immediately.

The contrary argument (that the holder of a Learner Permit is bound by all the conditions of a learner driver) has been accepted by magistrates in the past. While I don't agree that this is a correct statement of law, that's no guarantee that a court might not do so again.

The final point that needs to be made regards the assertion of an honest and reasonable mistake of fact. If a court finds that an accused is not a learner driver then not obeying the conditions which attach to a learner driver will simply mean no offence has occurred.

However, if the court finds that a holder of a permit is a learner driver, an accused is unlikely to escape the charge although they might have been entirely ignorant of their obligations (or may have even been given the wrong advice by a person in authority). While the belief of the accused may be honest and reasonable it is unlikely to avail an accused of a Proudman v Dayman claim; first, because the offences are arguably of absolute liability (applying the considerations to such offences from Kearon v Grant (1990) 11 MVR 377); and secondly, because the mistake would not be one of fact, but instead a mistake of law: Ostrowski v Palmer.


Anonymous said...

What do you say is the situation when an L-plater with a foreign licence is driving, and the holder of a full licence IS in the passenger seat, for .05 and other offences?

Dr Manhattan said...

I hadn't considered that, Anon.

I'll have a look into it and post what I discover.