102Refusal, cancellation or suspension of authorities

102 Refusal, cancellation or suspension of authorities (1) Subject to this Act, section 62(2A) of the Fines and Penalties (Recovery) Act 2001 and to any directions of the Minister, the grant or renewal or transfer of any licence, permit or registration is to be in the discretion of the Registrar. Note for subsection (1) Recovery Unit may determine that the Registrar is to cease to perform a number of functions under this Act, including in relation to: (a) the grant or renewal of a person's licence; and (b) the grant or renewal of the registration of a motor vehicle owned by a (2) Without affecting the generality of subsection (1) the Registrar may, subject to any directions of the Minister: (a) refuse to grant a licence to any person who has been found guilty of driving or attempting to drive a motor vehicle while under the influence of intoxicating liquor or of negligently or recklessly driving a motor vehicle, or who, in the Registrar's opinion, is unfit to hold a licence; or Motor Vehicles Act 1949 80 (aa) refuse to grant a licence to or renew the licence of a person, or may cancel a licence of a person, where the person is not, or does not have a genuine intention of, residing in the Territory; or (ab) refuse to grant a licence to or renew the licence of a company, or may cancel a licence of a company, where the company is not incorporated or taken to be incorporated under the Corporations Act 2001 or is not a foreign company within the meaning of that Act; or (ac) refuse to register or renew the registration of a motor vehicle or trailer, or cancel the registration of a motor vehicle or trailer, in the following circumstances: (i) if the owner is an individual – the owner is not able to satisfy the Registrar that the owner is, or has a genuine intention of, residing in the Territory; (ii) if the owner is a body corporate incorporated or taken to be incorporated under the Corporations Act 2001 or is a foreign company as defined in section 9 of that Act – the owner is not able to satisfy the Registrar that the vehicle or trailer is to be used primarily in the Territory or that there is an operational base for the vehicle or trailer in the Territory; or (b) cancel, or suspend or restrict the use of, for such period as the Registrar thinks fit, a licence granted to a person where, in the opinion of the Registrar, the person is unfit to hold a licence or a licence with unrestricted use, having regard to: (i) the person's finding of guilt for an offence in the Territory or in a State or another Territory of the Commonwealth; or (ii) the person's age; or (iii) any mental or physical condition, disorder or disability of the person; or (ba) cancel a licence, a permit or the registration of a motor vehicle or trailer where the Registrar is satisfied it was obtained by fraud or deception; or Motor Vehicles Act 1949 81 (c) refuse to register or to renew the registration of, or cancel or suspend for any period the Registrar thinks fit the registration of, a motor vehicle or trailer that: (i) does not comply with the requirements of Schedule 4 and the Standards; or (ii) does not comply with the identification requirements specified in section 101; or (iii) cannot reasonably, in the opinion of the Registrar, be relied on to operate without being a source of danger or annoyance to a person, or a source of damage to public streets, due to its condition, design or construction; or (d) cancel or suspend for such period as the Registrar thinks fit any motor vehicle trader's licence; or (da) suspend, for such period as the Registrar thinks fit, a licence granted under section 10 to a person to drive a commercial passenger vehicle of the class specified in the licence where, in the opinion of the Registrar, having regard to any: (i) mental or physical condition, disorder or disability; or (ii) previous conduct, of the person the public will be, or is likely to be, placed at risk by that person continuing to drive such a vehicle; or (db) suspend, for such period not exceeding 4 weeks as the Registrar thinks fit, a licence granted under section 10 to a person to drive a commercial passenger vehicle of the class specified in the licence where the Registrar is satisfied that the person has contravened or failed to comply with this Act or the Regulations in respect of the person driving a commercial passenger vehicle of that class; or (e) cancel or suspend a permit issued under section 107B, where the vehicle is driven in contravention of section 107, or cancel or suspend a permit issued under section 137B where the vehicle is driven in contravention of section 137B; or (f) cancel the registration of, or the licence or permit issued in respect of, any motor vehicle or trailer which was, in the opinion of the Registrar, registered in error or where the licence or permit was issued in error or in any case where: (i) the motor vehicle or trailer is destroyed by accident; or Motor Vehicles Act 1949 82 (ii) application is made by the person in whose name the vehicle or trailer is registered, or the licence or permit is issued, for the cancellation of the registration, licence or permit; or (iii) the vehicle or trailer is re-registered on account of an alteration in the construction, equipment or use thereof or an amendment to the registration is made under section 107A. (2AA) The Registrar must not grant or renew a licence to drive a commercial passenger vehicle if the applicant has been convicted of a disqualifying offence. (2AB) Subsection (2AA): (a) applies regardless of when the offence was committed and despite subsection (2); but (b) does not apply if: (i) the applicant's criminal record for the conviction is a spent record within the meaning of the Criminal Records (Spent Convictions) Act 1992; or (ii) the applicant was discharged without any penalty being imposed for the conviction. (2AC) Subsection (2AA) does not apply to the renewal of a person's licence in relation to the person's conviction of a disqualifying offence if: (a) the Chief Executive Officer has previously decided under this Act the person may hold, or continue to hold, the licence despite the conviction; or (b) the Local Court has, after the commencement of this subsection, decided under this Act the person may hold, or continue to hold, the licence despite the conviction. (3) Any licence, permit or registration cancelled under this section shall be of no effect, and any licence, permit or registration suspended under this section shall cease to be of any effect during the period of suspension. (3A) Any licence or registration suspended by the Fines Recovery Unit under Part 5, Division 7 of the Fines and Penalties (Recovery) Act 2001 is taken to have been suspended under this section, but notice of the suspension is not required to be given under subsection (7). Motor Vehicles Act 1949 83 (4) A person shall not, upon the cancellation or suspension of a motor vehicle trader's licence, use or cause or permit to be used any trader's plate referred to in the licence. (5) The Registrar may, subject to any direction of the Minister, take such action as the Registrar thinks fit: (a) for the purpose of determining whether a licence, permit or the registration of a motor vehicle or trailer should be cancelled or suspended; and (b) for preventing the driving on public streets of any motor vehicle or trailer that in the opinion of the Registrar, due to its condition, design or construction, cannot reasonably be relied on to operate without being a source of danger or annoyance to a person or a source of damage to public streets. (5A) The Registrar may, subject to any direction of the Minister, grant or renew a licence under section 10 subject to such conditions as are prescribed or as the Registrar thinks fit. (5B) The Registrar may cancel a licence, permit or registration granted or renewed under: (a) this Act; or (b) any other Act by or under which the Registrar is empowered to grant or renew a licence to a person or to register a motor vehicle or trailer; where an amount required to be paid under the Act in respect of the grant or renewal is paid by cheque and the cheque is dishonoured when duly presented for payment. (6) A cancellation or suspension of a licence to drive a commercial passenger vehicle takes effect 7 days after the day of the decision of the cancellation or suspension. (7) The Registrar must give written notice of a decision, or action taken, under this section to the person in relation to whom the decision is made or the action is taken. (8) The Territory is not liable for any loss or damage suffered by a person because of a decision under this section. Motor Vehicles Act 1949 84 102AAA Cancellation of licence to drive commercial passenger vehicle for disqualifying offence (1) The Registrar must cancel the licence of a licensee to drive a commercial passenger vehicle on becoming aware the licensee was convicted of a disqualifying offence (whether or not the conviction occurred after the commencement of this section). (2) Subsection (1) does not apply if: (a) the licensee's criminal record for the conviction is a spent record within the meaning of the Criminal Records (Spent Convictions) Act 1992; or (b) the licensee was discharged without any penalty being imposed for the conviction. (3) If the conviction occurs on or after the commencement of this section, subsection (1) does not apply if: (a) the Chief Executive Officer has previously decided under this Act the licensee may hold, or continue to hold, the licence despite the conviction; or (b) the Local Court has previously decided under this Act the licensee may hold, or continue to hold, the licence despite the conviction. (4) If the conviction occurred before the commencement of this section, subsection (1) applies: (a) whether or not the Registrar had previously decided under this Act the licensee may hold, or continue to hold, the licence despite the conviction; and (b) whether or not the Local Court had previously decided under this Act the licensee may hold, or continue to hold, the licence despite the conviction; and (c) whether or not the conviction had otherwise been taken into account in any decision under this Act to grant the licence to the licensee or renew the licence. (5) The Registrar must give written notice to the licensee of the (6) The cancellation takes effect 7 days after the day of the decision. (7) The lodging of an appeal against the conviction does not affect the operation of this section. Motor Vehicles Act 1949 85 (8) However, if the appeal is successful, the licence is taken to be in force again on the decision on the appeal. (9) The Territory is not liable for any loss or damage suffered by the licensee because of the decision. (10) This section applies despite section 102. 102AAB Suspension of licence to drive commercial passenger vehicle for disqualifying offence (1) If a licensee under a licence to drive a commercial passenger vehicle is charged with a disqualifying offence, the Registrar may suspend the licence for the period the Registrar considers appropriate. (2) The Registrar must give written notice to the licensee of the (3) The suspension takes effect 7 days after the day of the decision. (4) If the licensee is not convicted of the disqualifying offence, the licence is taken to be in force again on the decision on the charge. (5) The Territory is not liable for any loss or damage suffered by the licensee because of the decision. (6) This section applies despite section 102. 102AAC Reviews by Chief Executive Officer for disqualifying offences (1) This section applies to a person if: (a) under section 102(2AA), the Registrar refuses the person's application for a licence or the renewal of a licence to drive a commercial passenger vehicle because the person has been convicted of a disqualifying offence; or (b) under section 102AAA, the Registrar cancels the person's licence to drive a commercial passenger vehicle because the person has been convicted of a disqualifying offence; or (c) under section 102AAB, the Registrar suspends the person's licence to drive a commercial passenger vehicle because the person has been charged with a disqualifying offence. Motor Vehicles Act 1949 86 (2) The person may request the Chief Executive Officer to review the decision to decide whether there are any exceptional circumstances that warrant the person holding, or continuing to hold, a licence to drive a commercial passenger vehicle despite the conviction or charge. (3) The request must: (a) be made within 28 days after the person receives notice of the Registrar's decision; and (b) state the circumstances the person considers to be exceptional as referred to in subsection (2). (4) On the review, the Chief Executive Officer must decide to confirm or revoke the Registrar's decision. (5) The Chief Executive Officer must give the person written notice of the Chief Executive Officer's decision and the reasons for it. (6) On and after the revocation of the cancellation or suspension by the Chief Executive Officer, the person's licence is taken to be in force again. (7) If the Chief Executive Officer acts with reasonable timeliness in relation to the review of the cancellation or suspension of a person's licence, the Territory is not liable for any loss or damage suffered by the person because of the cancellation or suspension. (8) If: (a) the Chief Executive Officer revokes the Registrar's decision to refuse an application referred to in subsection (1)(a); and (b) the Registrar did not refuse the application because of one or more provisions in this Act (other than section 102(2AA)) or the Regulations, the Chief Executive Officer must substitute the Registrar's decision for the application and direct the Registrar to grant the licence to the person or renew the person's licence (as the case requires). (9) The Registrar must comply with the request as soon as possible. (10) The Chief Executive Officer may make procedural guidelines for reviews under this section. Motor Vehicles Act 1949 87 102AAD Appeal to Local Court (1) This section applies to a person (the aggrieved person) who is aggrieved by: (a) a decision under section 102 to refuse to grant, transfer or renew a licence, permit or registration other than a refusal under section 102(2AA); or (b) a decision under section 102 to cancel, suspend or restrict the use of a licence to drive a commercial passenger vehicle; or (c) a decision under section 102 to impose a condition on a licence granted or renewed under section 10; or (d) a decision under section 102AAC confirming: (i) the Registrar's decision to refuse to grant or renew a licence to drive a commercial passenger vehicle; or (ii) the Registrar's decision to suspend a licence to drive a commercial passenger vehicle; or (iii) the cancellation of a licence to drive a commercial passenger vehicle; or (e) a decision under regulation 9A(1) of the Motor Vehicles Regulations 1977 to refuse to grant or renew a licence to drive a commercial passenger vehicle. (2) The aggrieved person may appeal to the Local Court against the (3) If a person is entitled to have a decision reviewed under section 102AAC, the person must first exhaust the remedy under that section before applying under subsection (1) in relation to the (4) Without limiting subsection (3), the person must first exhaust the remedy under section 102AAC before applying under subsection (1) if: (a) the person may seek a review under section 102AAC of a decision arising from a particular provision in this Act (for example, a refusal to grant a licence to the person because of section 102(2AA)); and Motor Vehicles Act 1949 88 (b) the person may also apply under subsection (1) in relation to the decision because it also arose from another provision in this Act (for example, if the refusal is also based on regulation 9A(a)(i) of the Motor Vehicles Regulations 1977. (5) The application for the appeal must be made: (a) within 28 days after: (i) if subsection (3) does not apply – notice of the decision is given to the person; or (ii) if subsection (3) applies – notice of the decision under section 102AAC is given to the person; or (b) as otherwise decided by the Court if satisfied it is just and reasonable to do so in the circumstances. (6) The appeal must be by way of hearing de novo. (7) The Court must confirm the decision, or revoke it and substitute its own decision. (8) At the hearing of the appeal, the Court may make an order about costs it considers appropriate. 102AA Applications made by certain offenders (1) In this section: approved course means the relevant course of education and training relating to the problems arising from driving a motor vehicle while affected by alcohol or a drug: (a) approved by the Registrar in relation to the kind of offence in question; or (b) accredited by a person or body approved by the Registrar. approved treatment means an intervention course, the object of which is to promote responsible driver behaviour and raise awareness of the risks associated with driving while affected by alcohol or a drug: (a) approved by the Registrar; or (b) accredited by a person or body approved by the Registrar. column means a column in the Table. Motor Vehicles Act 1949 89 commercial passenger vehicle has the same meaning as in the heavy vehicle means a motor vehicle having a gross vehicle mass exceeding 15 tonnes. item means an item in the Table. order means: (a) a conviction or finding of guilt; or (b) a dismissal of a charge under section 10 of the Sentencing Act 1995; or (c) a community correction order made under the Sentencing Act 1995 without recording a conviction; or (d) an order made under section 11 of the Sentencing Act 1995 as in force before the commencement of Part 2 of the Sentencing and Other Legislation Amendment Act 2022. Table means the Table to this section. (2) In items 1 to 4 (inclusive) motor vehicle does not include a commercial passenger vehicle or a heavy vehicle. (3) In item 5 motor vehicle means a commercial passenger vehicle or a heavy vehicle. (4) This section is in addition to and not in derogation of the other provisions of this Act. (5) Subject to subsections (6) and (7), the Registrar shall refuse to grant a licence or a licence of a class of licence on an application made by a person after an order has been made against that person in relation to an offence punishable under a provision of the Traffic Act 1987 specified in column 1 and briefly described opposite in column 2 unless the Registrar is satisfied with respect to the matters specified opposite in column 3 in relation to the applicant. (6) A person to whom item 4 or 5 applies who desires to obtain the approval of the Local Court for the purposes of making an application for a licence to drive a commercial passenger vehicle or a heavy vehicle shall not apply for that approval earlier than 3 months before the expiration of the period for which his or her licence is cancelled. Motor Vehicles Act 1949 90 (7) For the purposes of considering an application made under subsection (6), the Court shall: (a) consider the report (if any) made to the Court by the Registrar or the Commissioner of the Police Force with respect to any offence, an element of which includes being affected by alcohol or a drug, committed by the applicant during the period since the order was made cancelling or resulting in the cancellation of the person's licence; and (b) consider such medical or other evidence as the Court considers relevant as to the applicant's fitness to hold a licence, and may grant or refuse its approval of the application as it thinks fit. TABLE Item Column 1 Traffic Act 1987 Column 2 Offence Column 3 Requirements 1 section 22 A first offence of driving a motor vehicle with a medium range breath or blood alcohol content section 29AAA A first offence of driving a motor vehicle under the influence of alcohol or a drug an approved course 2 section 22 A second or subsequent motor vehicle with a medium range breath or blood alcohol content section 29AAA A second or subsequent motor vehicle under the influence of alcohol or a drug an approved course or undergone an approved treatment, or both, at the discretion of the Registrar 3 section 21 A first offence of driving a motor vehicle with a high range breath or blood alcohol content an approved course or undergone an approved treatment, or both, at the discretion of the Registrar Motor Vehicles Act 1949 91 section 29AAE A first offence of failing or refusing to submit to a breath analysis in relation to the driving of a motor vehicle 4 section 21 A second or subsequent motor vehicle with a high range breath or blood alcohol content committed within 3 years after being convicted of an offence referred to in item 3 or in this item That the period for which the person was disqualified from obtaining a licence declared or imposed by the Court has elapsed since the making of the order and the approval of the Local Court to make an application for a licence has been obtained section 29AAE A second or subsequent offence of failing or refusing to submit to a breath analysis in relation to the driving of a motor vehicle 5 section 22 First or second or driving a motor vehicle with a medium range breath or blood alcohol content section 29AAA First or second or driving a motor vehicle while under the influence of alcohol or a drug That the period for which the person was disqualified from obtaining a licence declared or imposed by the Court has elapsed since the making of the order and, if the application for a licence relates to a heavy vehicle, or commercial passenger vehicle, the approval of the Local Court to make the application has been obtained Motor Vehicles Act 1949 92 section 29AAE First or second or failing or refusing to submit to a breath analysis in relation to the driving of a motor vehicle