Restricted licence applications under section 87

The two limbs, and which one applications fail on

There are only two things the Magistrate has to decide, assuming you are eligible.

Fit and proper person

This is assessed by reference to the safety of other road users and the public generally. Your traffic history is the main evidence, and so is what you say about the offence itself. An affidavit that minimises the drinking, blames the police or describes the charge as bad luck damages this limb badly.

Extreme hardship depriving you of your livelihood

This is narrower than most applicants realise. It is not general inconvenience, and it is not hardship to your family in the broad sense. It is hardship caused by the loss of your income. If someone can drive you to work, if public transport is realistic, or if your employer can redeploy you, the application is weak.

Where you are not self-employed, an affidavit from your employer is required, confirming that you will lose your job or your income if you cannot drive.

What goes into the material

The application is decided on affidavit evidence and submissions, usually on the same day you are sentenced. There is no second attempt, so the material is the whole case.

• Your affidavit. Personal and family circumstances, your occupation, the exact driving your job requires, your income and your household expenses, an honest account of the offence, your attitude to it, and your traffic and criminal history.
• Your employer’s affidavit. Your role, why the role requires driving, what happens to your employment if you cannot drive, and confirmation the employer knows about the charge.
• The draft order. The specific times, days, vehicle classes and purposes you are asking to be allowed to drive. Ask for too much and the application looks like an attempt to keep your licence rather than to keep your job.
• Supporting documents. Payslips, a letter of employment, a mortgage or rent statement, medical material where relevant.

Affidavits must be sworn or affirmed properly. A defective affidavit is not a technicality on the day.

The conditions that come with it

A restricted licence is not your licence back. It authorises driving only for the purposes and within the limits the order specifies, and only while you carry the order and comply with every condition on it.

• A zero blood alcohol requirement applies at all times you drive.
• You must carry the order and produce it to police on request.
• The order specifies the vehicle classes, the hours, the days and the purposes. Driving outside them is unauthorised driving.
• Breaching the restricted licence is an offence under section 79(2J), carrying a maximum of 20 penalty units or 6 months imprisonment, and it exposes you to a fresh disqualification.

Timing, and the mistake that ends most applications

The application must be made in the proceeding in which you are convicted, before the Magistrate makes the disqualification order. Section 87 does not allow it at any other time.

That means the single most damaging thing you can do is turn up to your first mention, plead guilty to get it over with, and then look into a work licence afterwards. Once the disqualification is imposed, there is no application to make. It cannot be reopened and it cannot be appealed on that basis.

If you think you might be eligible, adjourn the matter, get the material together and file the application. Then read the eligibility criteria carefully, because most applications that fail were never eligible in the first place.