What the law says
Section Part 14 of the Transport Operations (Road Use Management – Drivers Licensing) Regulation Queensland states:
Section 106:
(1) A person who has a suspended open or provisional licence is eligible to apply for a special hardship order if the application relates to a licence of the same class as the suspended open or provisional licence.
(2) A person who has a suspended open or provisional licence is not eligible to apply for a special hardship order if, within 5 years before the licence became a suspended open or provisional licence-
- (a) a Queensland driver licence held by the person had been suspended or cancelled, or the person had been disqualified from holding or obtaining a Queensland driver licence; or
- (b) an authority to drive on Queensland roads under a non-Queensland driver licence previously held by the person had been suspended; or
- (c) the person was made ineligible to hold a Queensland driver licence under section 28(2) or 30C; or
- (d) the person had been convicted of an offence against the Criminal Code, section 328A.
(3) In subsection (2)(a), the reference to a suspension, cancellation or disqualification does not include the following-
- (a) a suspension under section 79(9) of the Act;
- (b) a suspension under section 79B(2) of the Act;
- (c) a 24 hour suspension under section 80(22AA) of the Act;
- (d) a suspension, cancellation or disqualification that was set aside under section 38(4);
- (e) a suspension, cancellation or disqualification that was set aside on appeal other than under-
(i) section 29 of this regulation as in force before the commencement of this section; or
(ii) section 30D of this regulation as in force before the commencement of this section;
- (f) a suspension, cancellation or disqualification because of the person’s mental or physical incapacity;
- (g) a suspension under the State Penalties Enforcement Act 1999, section 105.
Section 107:
(1) A person may apply for a special hardship order only to a relevant court for the person.
(2) An application for a special hardship order must be-
- (a) made within 21 clear days after the applicant’s open or provisional licence was suspended under a relevant provision; and
- (b) made in the approved form; and
- (c) accompanied by the information, or details of the information, the applicant intends to rely on for the application.
(3) Subsection (2)(c) does not prevent the applicant from producing further evidence at the hearing of the application.
(4) The applicant must give the chief executive a copy of the application, including the information or details mentioned in subsection (2)(c)-
- (a) if the day of the hearing is within 8 days after the day the application is made-as soon as practicable but before the day of the hearing; or
- (b) otherwise-as soon as practicable but at least 7 days before the day of the hearing.
(5) In this section- relevant court, for a person, means-
- (a) if the person resides in the Brisbane Magistrates Courts District-a court in the division of the Brisbane Magistrates Courts District in which the person resides;
or
- (b) otherwise-a court in the Magistrates Courts district in which the person resides.
Section 108:
The suspension of a person’s open or provisional licence is stayed from the day the chief executive receives a copy of the person’s application for a special hardship order until the day preceding the day of the hearing of the application.
Section 111:
(1) A court may make a special hardship order only if the court is satisfied-
- (a) the applicant for the order is a fit and proper person to continue to drive, having regard to the applicant’s traffic history and the safety of other road users and the public generally; and
- (b) a refusal to make the order would-
(i) cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or
(ii) cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living; and
- (c) when the order is made, the applicant holds an open or provisional licence that would be valid but for the suspension, under a relevant provision, to which the order relates.
(2) For subsection (1)(b)(i), the applicant must give the following to the court-
- (a) an affidavit made by the applicant outlining how the refusal to make the order would cause extreme hardship to the applicant or the applicant’s family;
- (b) if the applicant is not self-employed-an affidavit made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application is refused.
(3) For subsection (1)(b)(ii), the applicant must give the court an affidavit made by the applicant that-
- (a) outlines how the refusal to make the order would cause severe and unusual hardship to the applicant or the applicant’s family; and
- (b) has attached to it statutory declarations from persons other than the applicant, other documentary evidence, or certified copies of evidence, in support of each matter stated in the affidavit.
What you must prove
In order for you to be successful in your application for a restricted licence, you must show the following:
(1) You were a holder of an open or provisional licence at the time of the suspension and continued to hold that licence up until the hearing of your application ; AND
(2) Your open or provisional licence has been suspended; AND
(3) You are a fit and proper person to continue to drive (i.e. you do not have an extensive traffic history); AND
(4) If you were refused a restricted licence:
- (a) you or your family would suffer extreme financial hardship as you would loose your means of living; OR
- (b) you or your family would suffer some other sever and unusual hardship; AND
(5) You do have not in the past 5 years been imposed with a Queensland driver licence suspension, cancellation or disqualification had a non-Queensland drivers licence suspended in Queensland other than a licence that has been suspended, cancelled or disqualified as follows:
- (a) a suspension imposed by SPER (the State Penalties Enforcement Registry);
- (b) a suspension imposed as a result of:
(i) a result of failing to appear at court,
(ii) an immediate suspension, or
(iii) a 24 hour suspension; OR
- (c) a suspension, cancellation or disqualification that was set aside on reconsideration or appeal;
- (d) a suspension, cancellation or disqualification because of the person’s mental or physical incapacity; AND
(6) You have not in the past 5 years:
- (a) been imposed with a disqualification from obtaining a Queensland drivers licence due to accumulating more than 4 demerit points in one 12 month period whist unlicensed under s28(2) of the Transport Operations (Road Use Management – Drivers Licensing) Regulation; OR
- (b) been imposed with a disqualification from obtaining a Queensland drivers licence due to driving more than 40km/hr over the speed limit whilst unlicensed under s 30C of the Transport Operations (Road Use Management – Drivers Licensing) Regulation; OR
- (c) been convicted of dangerous driving under s328A of the Criminal Code; AND
(7) The application was made in the approved from (available from your local Queensland Transport Office); AND
(8) The application is for a restricted licence is in respect of the class of licence that has been suspended; AND
(9) The application was made within 21 clear days after your open or provisional licence was suspended; AND
(10) The application was accompanied by an Affidavit sworn by you, outlining how refusal would:
- (a) result in you loosing your means of living ,including an explanation of how a licence is integral to your job and details of your work hours, where you application is in respect of financial hardship to you or your family; OR
- (b) result in severe hardship other than loss of your means of living, including an explanation of what that hardship is and why your licence is required to alleviate that hardship; AND
(11) The application was accompanied by an Affidavit of:
- (a) your employer, outlining why a licence is integral to your job and your work hours, where your application is in respect of loss of a means of living (if the you are not self-employed); OR
- (b) other persons who can verify the unusual hardship to you or your family, where your application is in respect of hardship other than a loss of your means of living; AND
(12) The Application was made in the Magistrates Court District in which the person resides; AND
(13) You provided a copy of your application, Affidavit and employer’s Affidavit to Queensland Transport at least 7 days prior to your hearing.
Possible results
Once you provide a copy of your application to your local Queensland Transport, your licence suspension is stayed until the day prior to the hearing of your application. You will be provided with a temporary licence that will entitle you to drive up until 11:59pm on the day prior to the hearing of your application.
This also means that your period of suspension does not begin until after the hearing of your application, regardless of whether your application is successful or not. Further, the period of suspension is the same whether you are successful or not.
However, if you are successful, you will be entitled to drive during the period of your suspension in accordance with the conditions of the order after you present a copy of the order to your local Queensland Transport obtain your Restricted Licence.
Which court will hear the matter
This is a Civil application and will be heard in the Magistrates Court.
Possible defences
This is an application made after a suspension had already been imposed. Accordingly, defences to the offence you are charged with are irrelevant.