Work Licence Eligibility
Like any application to a court, there are legal tests you must pass. First, you must be eligible for a work licence and second you need to convince a court you are the right person to get one. They are separate issues and it is a trap for people to believe simply because they are eligible it will be granted.
In order to be eligible for a work licence, you will need to say ‘yes’ to the following questions:
- You hold a current open Queensland driver licence;
- Your alcohol reading (if relevant) was lower than 0.15 BAC (blood alcohol concentration);
- You were not driving for a work purpose when caught for a relevant offence;
- You did not hold a restricted work licence at the time you were caught for a relevant offence;
- You have not previously been convicted of drinking driving, drug driving or dangerous driving in the last five years; and,
- You have not had your licence disqualified, suspended or cancelled in the last five years (noting there are some exceptions to this under the law in Queensland).
If you have been able to say ‘yes’ to each of the above matters, then you satisfy the mandatory criteria for a work licence application. If you do not satisfy the criteria, then you cannot get a restricted work licence. That is not everything though, as you will still need to meet other criteria, namely you:
- apply for the work licence at the appropriate time;
- satisfy the court that you are a ‘fit and proper person to hold a restricted licence’; and,
- substantiate through evidence that refusal of a restricted work licence would cause ‘extreme hardship’ by depriving you of a means of earning a living.
‘Fit and Proper Person’
By virtue of section 87(5)(a)(i) of Transport Operations (Road Use Management) Act 1995 (Qld), it is essential that you are found by the court to be a ‘fit and proper person’:
(5) An application for an order under this section must not be granted-
(a) unless the applicant satisfies the court that hears the application that-
(i) the applicant is a fit and proper person to hold a restricted licence having regard to the safety of other road users and the public generally; and …
The term ‘fit and proper person’ is a phrase used in a number of laws in Australia and the United Kingdom, so many courts have given guidance as to what this means. Any lawyer preparing a work licence application should really ensure these cases are considered in preparing an application.
“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”
Preparation of Work Licence Application
The essential documents you need for a work licence are the following:
- The application form (Application for an Order directing the issue of a Restricted Licence (s87);
- Affidavit material from you and your employer or supervisor. If you are self-employed, affidavit material will need to be prepared to reflect your situation; and,
- Your traffic history and your criminal history.
So these are really the essential materials that you must have for the preparation of your work licence application. If you don’t have a traffic history or criminal history that is fine but it is something you don’t want to get wrong. If you tell the court you don’t have one and you do, at worst you could face a criminal offence (given it may be false information in an affidavit) and at best it will damage your prospects of succeeding in your application. It would not be surprising if a Magistrate took it into account in assessing whether you are a fit and proper person.
Any experienced traffic lawyer appreciates that the Magistrates Court is busy and looks to have cases dealt with efficiently. This means that having too much material or evidence placed before the court can frustrate magistrates, just as too little information may not sufficiently cover the relevant issues. In either case, if your evidence is not properly prepared to be as persuasive as possible, you may actually fail to get a work licence where it really should have been ordered in your favour.
Essentially though, I would say that at a minimum, the following needs to be addressed by you:
- Your personal details, such as your name, residential address, family circumstances and employment status.
- With respect to your employment, it is necessary to provide some real detail about it and why it is that you need a work licence. Included in this information will be the consequences for you if you do not obtain a work licence.
- With respect to your financial situation, it is necessary to address the details about it and particularly any financial commitments you maintain.
- In addressing the issue of whether you are a fit and proper person, there are a number of matters to outline:
- The details of the offence or offences for which you were charged, including the purpose for which you were driving at the time;
- Any reflections or insight gained following the commission of the offence;
- Any information about any traffic history you may have;
- Any information about any criminal history you may have; and,
- Any changes to your life following any earlier traffic history or criminal history issues.
If you are employed, it will be necessary to obtain evidence from your employer, manager or supervisor to explain why you need a licence for you job and what the consequence will be for your employment if you do not get a work licence. Alternatively, if you are self-employed, you will need to provide evidence about these issues and the consequences the loss of a licence will mean for your business.
For some of these details, it may be necessary to attach evidence that corroborates or substantiates any claims you make. Whether that is necessary will depend on the facts of the case. I should add that each case needs to be prepared on its own merits, which means different information or issues will need to be addressed as the case demands.
It is really important to remember that it is on your shoulders to convince the court you should be given a work licence application. The police prosecutor will make submissions whether they oppose the application on any technical or other ground and a magistrate will decide it on the evidence.
It really is important to remember that anybody who puts forward an affidavit may be cross-examined by the police prosecutor (and, where appropriate, a magistrate). While it doesn’t always happen, there is always a chance either the prosecutor or magistrate may want to have certain evidence tested before a decision is made. This means that anybody who applies for a work licence needs to be prepared for giving evidence and all of the consequences that can involve.
So the task of the lawyer is to firstly ensure that the evidence is prepared properly and secondly that the application is presented in a way that is clear and compelling. I will often try to resolve any questions or disputes with a police prosecutor before court in an attempt to try to get them to consent to the order being made. While it is not always possible, at least everybody then knows how much argument there may be.
A skilled courtroom advocate will understand the strengths and weaknesses of the application and endeavour to persuade the court why it should succeed. You don’t win cases by ignoring the points against you so the task of the lawyer is to identify the relevant issues and ensure they are properly addressed in court, so far as possible.
If You Are Granted a ‘Work Licence’
If your application for a work licence is successful, then you cannot immediately drive following the order of the court. You must take the formal court order to Queensland Transport. Until you attend Queensland Transport and are issued with a restricted licence, you cannot drive. You will be required to hold the restricted licence for the duration of the suspension period.
From this it should be obvious that you should have alternative transport arranged for your court appearance, so that you are not caught out in breach of any suspension periods or court orders. Contravening these will generally see you charged with unlicensed driving and generally means you will face a further, cumulative disqualification period for which no work licence can be issued.
Any lawyer representing you should not just have the work licence application on their minds. Obtaining one is obviously a big priority for most people, but there are other consequences that can follow that people may not realise. For instance, whether a conviction being recorded will be an issue for you, or if being charged and convicted of such an offence may breach your employment contract, are issues we frequently are required to consider.
Another issue is the consequences of delay. When you go to court for the first court appearance, you may be eager to have your case finalised. However, not all courts have the capacity to hear and decide a work licence application on the first court date. Some courts do allow it, which means any delays in preparing your material may lead to unnecessary adjournments. So I always advise people to seek legal advice as soon as possible to ensure you don’t face any unnecessary delays.
From the general overview I have provided I hope it has helped you to better understand some of the important issues surrounding obtaining a work licences. For people who are eligible for a work licence, it is essential to not be complacent about the onus you have to convince the court you are a fit and proper person. It is a discretionary decision based on a ‘value judgment’.
If you are seeking specific advice or representation regarding a drink driving or drug driving charge and seek to make a work licence application, you are welcome to contact me or one of our team for a free case assessment.
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving work licence applications. Although available for all courts throughout Queensland, our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.