(a) On the s 6(2) charge, the magistrate imposed a driving disqualification of six months, and a fine of $802. The magistrate correctly noted that the penalties imposed were in accordance with the minimum permissible penalty. The commencement of the disqualification was postponed for a period of 42 days to enable the applicant to apply for a restricted driver licence.

(b) On the remaining matters, the magistrate imposed a global penalty of a fine of $700 and six months' driving disqualification. That disqualification was ordered to be served cumulatively on the disqualification imposed for the s 6(2) offence. Accordingly, there was an aggregate disqualification of 12 months.

1. The applicant has sought a review of the magistrate's decision. Although the notice refers to all complaints, it is apparent from the contents of the notice, and, in particular the grounds of review, that the applicant's principal contention is that the conviction in respect of the s 6(2) matter cannot be sustained, and that he seeks to have the conviction and penalty for that offence set aside. There may also be some concern expressed about the convictions for unlicensed driving. I will first consider the primary complaint, which relates to the legality of the conviction for the s 6(2) offence.
2. The applicant's argument, which crystallised during the course of the hearing, is that, as a matter of law, the applicant could not be guilty of the s 6(2) offence. Section 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 (RSADA) provides:

"(2) A person to whom, by virtue of subsection (3) or (4), this subsection applies who drives a motor vehicle while alcohol is present in his body is guilty of an offence."

1. The subsection relied upon by the prosecution to establish the offence is s 6(3)(a), which provides:

(a) who does not hold an Australian driver licence, foreign driver licence or international driving permit; ...".

1. The magistrate was told that the applicant's driver licence had expired on 7 June 2018, and had not been renewed prior to the commission of the offence on 2 January 2019. Hence, it was asserted, the applicant was not a person who held a licence when he drove with alcohol in his body.
2. However, information provided to me by the respondent's counsel on the hearing of the review confirms that, although the licence did expire on 7 June 2018, the applicant was subject to a Monetary Penalty Enforcement suspension (MPES suspension) placed on his licence between 2 May 2018 and 2 August 2019. In those circumstances, the provisions of s 6(3B) of the RSADA become relevant. That section is in the following terms:

"(3B) For the purposes of subsection (3)(a), a person -

(a) whose driver licence, within the meaning of the Vehicle and Traffic Act 1999, is suspended under Part 6 of the Monetary Penalties Enforcement Act 2005; or

(b) who is ineligible to hold such a driver licence by reason of Part 6 of the Monetary Penalties Enforcement Act 2005 but would otherwise be eligible to hold such a driver licence -

1. Part 6 of the Monetary Penalties Enforcement Act 2005 contains provisions which provide for the suspension of a driver licence where an enforcement debtor has failed to pay a monetary penalty under the Act within the required time. In particular, s 55 provides that the Director of Monetary Penalties may direct the suspension of the debtor's driver licence in those circumstances. Section 56 deals with the procedural aspects of the suspension. It provides a discrete procedure for suspension, separate to that contained in the Vehicle and Traffic (Driver Licence and Vehicle Registration) Regulations 2010, which is of general application. It seems clear from the material that has been provided to me, that the suspension of the applicant's licence was pursuant to Pt 6 of the MPEA, and not under the Vehicle and Traffic Act and regulations.
2. Of course, the applicant's licence had expired by the time that he committed the offence. By reg 21(1) of the Vehicle and Traffic (Driver Licence and Vehicle Registration) Regulations, a driver holds a licence for a term of years specified in the licence until it expires. Regulation 27 provides that the licence expires at midnight at the end of the day recorded on the licence as the expiry date. A licence that has expired can be renewed for a further period. Further, in relation to a licence which has been suspended under the Vehicle and Traffic (Driver Licence and Vehicle Registration) Regulations, reg 33(5) provides that the suspension terminates upon the expiry of the licence. Hence, in that situation, the person would, until the licence has been renewed, come within the description in s 6(3)(a) of a person who does not hold an Australian driver licence.
3. By contrast, s 56(4) of the MPEA provides that if a driver's licence is suspended under that section, the licence may not be renewed or replaced while the suspension is in place. Accordingly, a person whose licence is suspended by an MPES suspension, upon expiry of the licence, is ineligible to renew the licence. This is the situation covered by s 6(3B)(b) of the RSADA. The effect of that section is to exclude from the operation of s 6(2), a driver who does not hold or is ineligible to hold a licence only because of an MPES suspension. In the applicant's situation, this applied before and after the expiry of the licence, while the suspension was in place.
4. In case there be any doubt about the intended operation of the section, I refer to the second reading speech of the Bill which introduced s 6(3B) into the Act. The policy behind the introduction of the section was explained in the speech as follows:

"This Act is amended by the insertion of a new subsection (3B) in section 6 to exclude subsections (2) and (3) from applying to a person who does not have a driver licence because of a Monetary Penalties Enforcement Act suspension.

As the licence has been suspended to enforce payment of a monetary penalty and not because of a vehicle offence the imposition of the mandatory minimum penalties required for subsections 6(2) and (3), in addition to a discretionary penalty for driving without a licence, would be unfair."

1. There is no suggestion that the applicant was, at the date of the offence, ineligible to hold a licence other than because of the MPES suspension. It follows that the applicant cannot be guilty of the s 6(2) offence.
2. Of course, the applicant's plea of guilty amounted to an admission of the essential elements of the offence. The jurisdiction of this Court is limited to considering an error of fact and/or law which is established on the material presented to the magistrate. An "unwitting error" on the part of the magistrate will not activate the court's jurisdiction: see Marshall v Tasmania [2018] TASSC 11.
3. In this case, however, I am satisfied that the magistrate received sufficient information to put him on notice that s 6(3B) may be applicable. The applicant was unrepresented. The magistrate had quite properly initially entered a plea of not guilty on the basis of information given to him by the applicant, albeit not relevant to the question raised by the above provisions. He subsequently accepted a plea of guilty, noting the significance of the lack of a valid licence. Of course, the applicant had also pleaded guilty to the unlicensed driving charge. However, during the course of the prosecutor's facts, the prosecutor, somewhat cryptically, suggested that there was an MPES suspension in place at the time that the licence had expired, and at the time of commission of the offence. The prosecutor said this in relation to the facts of the matter:

"PROSECUTOR: 6th of October 2018. It was Saturday 9.25 am. The defendant was driving a grey Holden Commodore wagon on the Bridport road in George Town. He was intercepted for the purpose of a random breath test. He returned a negative reading and it was ascertained the defendant's licence had expired on the 7th of June 2018. He stated that he - had been sent his renewal notice for his licence and that his mate should have - sorry, he had been sent his renewal licence. He was confused in regards to that.

He had a suspension, he was on a payment plan for his licence and hadn't realised at the time it was actually had expired. At the time of travelling he had two children in the vehicle. Traffic though was light. Those are the facts for that now, your Honour. We've got 30400, which is a 6(2) matter.

PROSECUTOR: That was on - just before 10.00 pm on the 2nd of January 2019. The defendant was intercepted in a section of sledge track on the Tasman Highway, driving a white Holden Sedan. The defendant was given an oral - so, a random breath test - a breath test, which produced positive reading. He was taken to Scottsdale Police Station where he was breath analysed. It was ascertained that he was also unlicensed. His breath analysis returned a reading of 0.025 grams of alcohol in 210 litres of breath. He declined a blood test. He was asked about his licence status and he stated that he had too many fines and was not allowed to renew his licence because he hadn't paid his fines. Subsequently he was bailed. There were no passengers in the vehicle at the time." [Emphasis added.]

1. Although this information only hinted at the existence of an MPES suspension, it was sufficient to place the learned magistrate on notice that such a suspension may have been in place and, accordingly, was an issue with respect to the applicant's liability for the offence. However, it is apparent that neither the prosecutor nor the magistrate considered the provisions of s 6(3B) of the RSADA, or the impact that those provisions would have on the liability of the applicant for the offence. Given that the applicant was unrepresented, and taking into account the information provided by the prosecutor, an enquiry by the magistrate as to the basis upon which the applicant did not hold a licence, or had not renewed his licence, was warranted.
2. A plea of guilty must be an unequivocal admission of the facts which constitute the offence: Maxwell v The Queen (1996) 184 CLR 501. Where information provided to the sentencing court raises a question as to whether that is so, it is incumbent on the court to explore, identify and resolve that question. A failure to do so may amount to an error: Beechey v McDonald [2010] TASSC 47. In this case, I am satisfied that there has been such an error. Further, and in any event, the failure to comply with s 6(3B) amounts to an error of law on the basis of the material provided to the Court.
3. It follows that the review on this ground must succeed.
4. The notice was arguably wide enough to encompass a review with respect to the applicant's conviction for the unlicensed driving charges. This was not pressed by the applicant in the hearing before me, but in written submissions prepared by counsel who was then acting for him, it is suggested that the applicant should have been charged with driving while suspended in contravention of s 9 of the Vehicle and Traffic Act, rather than the offence of unlicensed driving contrary to s 8(1) of that Act. The basis of this submission is not explained, but I assume that it is related to the inability of the applicant to renew his licence while under suspension, having regard to the provisions already discussed. If that is the argument, then it is rejected. A person commits an offence under s 8(1) if he drives a motor vehicle without holding a driver licence authorising him to drive the relevant vehicle. The Act does not contain an exception to liability for this offence similar to that contained in s 6(3B) of the RSADA_._ Accordingly, the mere fact that a person is ineligible to renew or apply for a licence may explain why he does not have a licence, but cannot excuse his act of driving without the licence. I make no comment about the applicant's liability under s 9, but it is irrelevant in any event to his liability under s 8(1). The applicant was properly convicted of those offences on the basis of his plea of guilty to them.
5. Having regard to the successful ground, I uphold the motion. I order that the conviction and sentence imposed on the applicant in respect of count 1 on complaint 30400/19 be quashed. The sentence imposed for the other offences is unaffected, except that I will order that the 6 month disqualification imposed for them be backdated to the date of commencement of the quashed disqualification.