Has your licence been disqualified for more than two years?

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Disclaimer

This guide is intended to provide you with information only. If you have a legal problem, you should get legal advice from a lawyer. Legal Aid Queensland believes the information provided is accurate as at January 2021 and does not accept responsibility for any errors or omissions.

We are committed to providing accessible services to Queenslanders from all culturally and linguistically diverse backgrounds. If you would like this publication explained in your language, please call the Translating and Interpreting Service on 13 14 50 to speak to an interpreter. Ask them to connect you to Legal Aid Queensland. This is a free service.

How can this guide help me?

This guide can help you if:

• you have been disqualified from holding or obtaining a driver licence absolutely or for more than two years, and
• you have already served at least two years of the disqualification period, and
• your disqualification was imposed in Queensland, and
• you want to apply to get your driver licence back.

This guide provides information on where to apply to get your licence back (court or the Department of Transport and Main Roads) and how to complete the relevant application forms. If you need to go to court to get your driver licence back, this guide provides information on how to prepare for court and what to expect when you go to court.

Do not use this guide if:

• you were disqualified from holding or obtaining a driver licence for two years or less, or
• your disqualification was imposed outside of Queensland. If this has occurred, contact the Legal Aid office in the location where your disqualification was imposed for information and advice on how to get your driver licence back.

Do I need to get legal advice?

You should get legal advice before filing your application to remove your licence disqualification in the court.

Contact Legal Aid Queensland

Legal Aid Queensland gives free legal advice, and you can call us on 1300 65 11 88 (for the cost of a local call from a landline in Australia). If it is appropriate in your circumstances, a client information officer will give you legal information and make a booking for you to talk with one of our lawyers. You can talk with the lawyer over the phone or visit one of our offices and talk with them face-to-face.

Contact a private lawyer

You may have your own lawyer, but if not, you can find one by:

• looking in the phone book
• calling the Queensland Law Society’s private lawyer referral line on (07) 3842 5842
• visiting the Queensland Law Society’s website www.qls.com.au

Contact your local community legal centre

Community legal centres give free legal help. They can usually only give legal advice. To find out where your closest centre is, call Legal Aid Queensland on 1300 65 11 88 (for the cost of a local call from a landline in Australia).

Applying to remove a disqualification period of more than 2 years

When am I disqualified?

A court may order you be disqualified from holding or obtaining a Queensland driver licence if you are convicted of an offence relating to operating or interfering with the operation of a motor vehicle. If you are convicted of drink or drug driving, dangerous driving, or driving while disqualified, then the court must make an order disqualifying you from holding or obtaining a driver licence for a stated period.

Your driver licence is cancelled from the day you are disqualified by the court and you cannot drive any motor vehicle during this period. If this has happened to you, it means you have been ‘disqualified’ from driving.

The disqualification period may be for a few months or for more than two years, depending on the circumstances of the offence. The court looks at the seriousness of the offence and your traffic history when deciding how long to disqualify you for.

If you are convicted of driving a motor vehicle while disqualified, then a court must disqualify you for at least two years, but no more than five years. You cannot apply for or obtain a driver licence until each disqualification period has ended, or a court removes the disqualification. You cannot apply to a court to remove the disqualification until you have served at least two years of your disqualification period.

Who can apply?

Section 131(10) of the Transport Operations (Road Use Management) Act 1995 allows a person who has been disqualified from holding or obtaining a driver licence for more than two years to apply to a court to remove the disqualification.

Where do I apply in Queensland?

• If the disqualification order was made by a Magistrates Court, then the application must be made to the Magistrates Court in the area you live.
• If the disqualification order was made by a judge of the District Court or Supreme Court, then the application must be made to the District Court or Supreme Court for the area in which you live.
• If you now live outside Queensland, then the application must be made to the Magistrates Court in Brisbane.

If you have been disqualified both in the Magistrates Court and in the District or Supreme Court, then you must make separate applications to the courts to remove the disqualifications. You are not allowed to apply for a driver licence until all of your disqualifications are removed, or the disqualification periods have ended.

When can I apply?

You may apply to remove a disqualification any time after two years since the start of the disqualification period.

Remember, if your application is refused, you cannot apply again until 12 months after the refusal date. This is why it is important to get legal advice before making an application to remove the disqualification.

If you have a bad traffic history or have been previously disqualified for several periods of more than two years and you have served at least two years of the latest disqualification period, then you should think about waiting a bit longer than the two years to improve your chance of success.

This is important when, for example, you have been imprisoned for part of the two years since the disqualification or have had further traffic offences since the disqualification that you want to have removed. In these circumstances, it may be better to wait two years after being released from prison. The court looks at any offences you have committed since the disqualification. If you have committed any criminal or traffic offences since the disqualification, then get legal advice before filing your application.

If you have had two or more cumulative disqualifications (to be served one after another) that are still current, then you should get legal advice. The law is not clear as to whether you will be eligible to apply until you have served at least two years of the latest disqualification. You will not be able to have your disqualifications removed less than two years after the date of the last disqualification order.

Make sure you carefully prepare all the information you need to present to the court.

What if I received my disqualification outside Queensland?

If you have been disqualified from holding or obtaining a driver licence outside of Queensland, then you need to get advice from a lawyer in the location where your disqualification was imposed to find out whether you can apply to have your disqualification removed. You cannot have it removed by a Queensland court. If you have been disqualified from holding or obtaining a driver licence outside Queensland, then it is an offence to apply for or obtain a Queensland driver licence without first having each of those other disqualifications removed.

Remember, this guide relates to Queensland and cannot be used for removing disqualifications outside Queensland.

How to apply to a Magistrates Court

Step 1. Get a copy of your traffic history

Fill in the Release of Information Application form (F2121). The identifying number can be found in the bottom right hand corner of the form. You can get the form from a Department of Transport and Main Roads customer service centre or download it from the department’s website www.tmr.qld.gov.au.

Take the completed form to a customer service centre to get a copy of your traffic history. You can find the nearest centre to you by looking on the Department of Transport and Main Roads website. You can call 13 23 80 to find out the fee to get a copy of your traffic history. If there is not a centre near you, then you can post the completed form together with the fee to:

Customer Service Support
Department of Transport and Main Roads
GPO Box 2451
Brisbane Qld 4001

Step 2. Get a copy of your criminal history

If you have been convicted of criminal offences in Queensland, then you must apply in person to your local police station to get a copy of your criminal history, or you can download the Copy of Own Criminal History form (QP349a). If you have been convicted of offences in other states, you must get a National police certificate.

Your criminal history is a record of all your criminal convictions. If you are not sure whether you have criminal convictions, then ask for your criminal history. To find out the fee to get a copy of your criminal history, call the Queensland Police Service on (07) 3364 4089 or visit their website www.police.qld.gov.au.

Step 3. Check your details

Check your traffic and criminal histories carefully to make sure they are correct. You should also make sure two years have passed since your disqualification date. If not, then you should wait until the two years are up before applying.

Step 4. File an Application for removal of disqualification form

Get an Application for Removal of Disqualification of Driver Licence form from the Magistrates Court (see the sample form). Fill out the form and make two copies of it. Make sure you list all of your disqualifications on the form. When you have completed the form, give the original and copies to the court. You will need to pay a filing fee to the Magistrates Court. Check with the court to find out the current filing fee.

The court keeps the original form, one copy goes to the police and the other one is returned to you when a date has been set for the hearing. In some Magistrates Courts you may have to serve (deliver) the copy to the police prosecutor yourself—the court staff will usually tell you when you file the form.

Applications to remove a licence disqualification are usually heard in court about six to eight weeks after the application is filed.

When the police receive your application, they may ask you, your employer, neighbours, family and friends whether there is evidence you have driven a motor vehicle since being disqualified. They may also ask about your general behaviour.

Even though you have applied to remove your disqualification, you must not drive a motor vehicle at this time. If you are convicted of driving while disqualified again, you will be further disqualified from holding or obtaining a driver licence and your application for removing the previous disqualifications will be refused.

Step 5. Get evidence to support your application

If your probation order includes a condition to undertake a driving-related rehabilitation program, and you have successfully completed the program, get a copy of the completion certificate to support your application. In circumstances where you have attended intervention to change your driving behaviour and/or address substance abuse, consider asking your treating practitioner to provide confirmation of your attendance and progress. You may also consider getting character references to further support your application.

You will need to give evidence supporting your application at the hearing. You need to prepare an affidavit (see the sample form). An affidavit is a written statement you make under oath (you promise to tell the truth) with your signature witnessed by a justice of the peace. You can download an Affidavit form from the Queensland Courts website www.courts.qld.gov.au.

How to prepare your affidavit

Your affidavit should include:

• your age, marital status and occupation
• the work you do and how long you have had your job
• your average weekly income (after tax) and any extra income received
• whether you have a family to support, how many children you have and how old they are
• whether your spouse works and how much they earn each week
• full details of your work history
• details of the circumstances that led to the offence(s) that resulted in disqualification
• the nature of the offence(s) that led to the disqualification
• your behaviour after the offence(s) and any criminal behaviour since the disqualification
• whether you need a driver licence to earn a living or get to and from work
• difficulties experienced because you do not have a licence
• your attitude towards holding a licence, including a statement, if it is true, that you realise holding a driver licence is a privilege and not a right
• your statement, if it is true, that you have not driven a motor vehicle in Queensland since you were disqualified from driving
• your statement, if it is true, that you have not been disqualified from holding or obtaining a driver licence outside Queensland during the last two years
• your statement, if it is true, that you have a current disqualification from holding or obtaining a driver licence outside Queensland, and
  1. that you have not driven in Queensland on a licence issued since the disqualification(s), and
  2. the steps you will take to remove the disqualification(s) before obtaining a licence to drive in Queensland
• your reasons for needing a driver licence
• any changes in behaviour or lifestyle which indicate you are less likely to commit further offences and details of any courses or counselling you have completed to change your behaviour
• any other relevant circumstances.

If you need to attach a document to your affidavit (eg your traffic history or criminal history), this document is called an ‘exhibit’. You need to attach a Certificate of exhibit to the document. This is a statement that confirms the document is the true copy of the document referred to in the affidavit. It will need to be signed by the justice of the peace who witnesses your affidavit. You can download a Certificate of exhibit from the Queensland Courts website www.courts.qld.gov.au. See the sample Certificate of exhibit.

Things to consider before your hearing

Going to court checklist

Before you go to court for your hearing, use the following list to check you have remembered everything.

• I have thought about my case carefully and think I have a reasonable chance of success.
• I have copies of my traffic and criminal histories.
• I have checked my traffic and criminal histories to make sure they are correct.
• I have made three copies of the Application for Removal of Disqualification form.
• I have filed the Application for Removal of Disqualification form in the Magistrates Court.
• I have asked for an affidavit from my probation officer and affidavits or references in support my application, if appropriate.
• I have done something about the disqualifications imposed on me outside Queensland, if applicable.
• I have prepared an affidavit.
• I know the date, time and place of my hearing.
• I have arranged for someone to look after my children while I am at court, if applicable.

When you arrive at court

1. On the date of the hearing, dress neatly and arrive at court 30 minutes early to work out which court room you need to go to.
2. Give your name to the court clerk or police prosecutor. Tell them you are applying to remove a disqualification and that you are representing yourself.
3. You should have the original and two copies of the affidavit, signed and witnessed by a justice of the peace. The original is for the court, the first copy is for the prosecutor and the second copy is yours.
4. Before the court proceedings begin, you should give the prosecutor a copy of the affidavit.
5. Ask the prosecutor whether your application is opposed and, if so, why.
6. Ask to see the prosecutor’s copy of your traffic and criminal histories to check they are the same as the ones you have—check whether the prosecutor’s copy includes convictions you do not know about.

What to do in court

Address the magistrate/judge

Address the magistrate or judge as ‘Your Honour’. Always stand and face the magistrate/judge when speaking or being spoken to. Speak slowly, clearly and loudly—courts can be noisy places.

You will be referred to as the ‘applicant’. The prosecutor will usually call your name. You should show the magistrate/judge you are there by walking up to the table in front of them. Do not be shy and do not hesitate. The magistrate will understand you are inexperienced.

The magistrate/judge will ask you to give evidence

When the magistrate/judge is ready to begin hearing your application, they will ask about your application. You will usually need to go into the witness stand with the original affidavit and your copy and ask the magistrate/judge if you can present the affidavit as evidence instead of telling the court your evidence.

Although there is no rule saying that you must provide an affidavit, most magistrates/judges prefer the evidence to be given by affidavit. The prosecution does not usually object to an affidavit being presented as evidence unless it contains something they think is not really evidence. If you do not use an affidavit, then you will have to stand up in court and tell the magistrate/judge your evidence.

When you present your affidavit as evidence, you must take an oath (promise) to tell the truth and then state the affidavit is still true.

The prosecutor may cross-examine you

Even when the prosecution does not oppose your application, you will probably be cross-examined. The prosecutor usually asks questions about:

• the circumstances surrounding the offence which led to the disqualification such as accidents, why you drove etc
• the patterns of behaviour that led to you committing the offence such as drinking or drug taking habits
• what assurance you can give the court you will not drink or drug drive or do the things that led to the disqualification again.

Give extra information to the court

After you have finished giving evidence, the magistrate/judge may ask if you want to say anything more to support your application. If there is something you want to emphasise, then you should say so now, for example, that the application is not opposed (if this is the case) and that your behaviour since the disqualification date has been good.

Present any letter offering you employment, and character and employer references to the court. The prosecutor will be asked if they want to say anything about your application.

The magistrate/judge decides your application

The magistrate/judge will decide whether to grant your application to have your disqualification removed. If your application is granted, then the disqualification removal usually happens on the date it is granted. However, the court may grant the application but then decide to delay the order’s operation for a period.

Just because the disqualification is removed, it does not mean you can drive straight away. You must not drive until you have been given a driver licence.

If you also have been disqualified several times in Queensland in different courts (eg Magistrates Court and District Court) from holding a driver licence for more than two years, then you must apply separately to each of the courts to remove those disqualifications. If you have more than one disqualification in the same court, be sure to list all the disqualifications you are applying to have removed. You are not allowed to apply for a driver licence until all of your disqualifications are removed or the disqualification periods have ended.

Before you leave the court, make sure you get a copy of the order from the court clerk. You will need to produce it when you apply for your driver licence at a Department of Transport and Main Roads Customer Service Centre.

Remember, if the court refuses your application, you cannot apply again for at least 12 months after the refusal date.

If you are applying to remove your disqualification in the Magistrates Court, you do not need to read about the District or Supreme Court process. For information about how to apply for a driver licence, see Getting back on the road.

What if I was disqualified before 13 March 2002?

If you were absolutely disqualified from driving before 13 March 2002 for unlicensed driving (this includes disqualified driving), you may apply to the Department of Transport and Main Roads to remove the disqualification. This is instead of applying to the court.

Am I eligible?

You are eligible to apply to the department to have the absolute disqualification removed if:

• you were disqualified absolutely from holding or obtaining a driver licence for the offence of unlicensed or disqualified driving before 13 March 2002
• when you were disqualified, you were not convicted and disqualified absolutely for any other offence at the same time
• you have not applied to the court or department to remove the disqualification in the last 12 months.

If you were absolutely disqualified from driving on or after 13 March 2002, or if you do not meet any of the other requirements, you are not eligible to apply to the department to remove the disqualification. However, you may apply to the court to remove your absolute disqualification.

Example

Jane Doe was caught driving without a driver licence on 1 January 2002. She was not charged with any other offence at the same time. Jane now wants to have the disqualification removed. She is eligible to apply to the department to have the disqualification removed.

How to apply to the Department of Transport and Main Roads?

Step 1. Fill out an application form

Fill out a Removal of Absolute Disqualification for Unlicensed Driving Application form (F4252). This form is available on the Department of Transport and Main Roads website www.tmr.qld.gov.au or at any of the department’s customer service centres.

Step 2. Send your application form

Once you have filled out the form, send it to:

Charleville Customer Service Centre
Department of Transport and Main Roads
PO Box 240
Charleville Qld 4470

Make sure to keep a photocopy of the completed form for your records.

What happens next?

The department will consider your application. When looking at removing the disqualification, the department may consider:

• whether you gained any demerit points in the two years immediately before you applied
• whether you have been disqualified from holding or obtaining a driver licence anywhere else in Australia since your Queensland licence disqualification.

The department may decide to:

• remove the disqualification from the court date
• remove the disqualification from a nominated date in the future
• refuse to remove the disqualification.

The department will write to you with their decision within 30 days from when you applied. The department will give reasons if your application is refused.

What if the department refuses to remove the disqualification?

In this case, you must wait at least 12 months before re-applying to the department or court to remove the disqualification.

If you are applying to remove your disqualification at the Department of Transport and Main Roads, you do not need to read about the District or Supreme Court process. For information about how to apply for a driver licence, see Getting back on the road.

How to apply to a District or Supreme Court

Step 1. File an originating application

You must file an Originating Application (Uniform Civil Procedure Rules Form 5) in the District or Supreme Court registry (see the sample form).

Check your records to see which court disqualified your licence and file the form in the court that disqualified your licence.

You can download an Originating Application from the Queensland Courts website www.courts.qld.gov.au. The form is identical whether you are applying in the District or Supreme Court except for the heading, which you will need to change depending on the court you are applying to.

Step 2. Pay the filing fee at the relevant court

You will need to pay a filing fee to the District or Supreme Court when you apply to remove your licence disqualification. Check with the court to find out the current filing fee. If you are experiencing financial hardship, you can ask the court to waive the filing fee. For more information, see the Queensland Courts website under “Representing yourself in court” or ask at the court registry.

Step 3. File a supporting affidavit

You must then file a supporting affidavit with the court. This should include the same type of information as is in the sample Magistrates Court affidavit (see samples) but your affidavit needs to follow the appropriate District or Supreme Court heading and format. The affidavit needs to be in the format of a Form 46 of the Uniform Civil Procedure Rules forms on the Queensland Courts website. You can download the affidavit from the Queensland Courts website or get a copy from the court registry. The affidavit is filed on the actual application date.

You need to apply through Q Transcripts (www.courts.qld.gov.au/services/transcripts-and-recordings) for a copy of the court transcript. If you can’t access the online order form, you can get a copy of the form by calling 1800 842 122 or by visiting a courthouse. The application is not heard in court, but by the judge in their chambers.

The application is not heard in court, but by the judge in their chambers.

Getting back on the road

How to apply for a driver licence

You can apply for a driver licence at any Department of Transport and Main Roads Customer Service Centre. Remember, you must not drive until you have been given a driver licence. This means you must not drive to a customer service centre to apply for your driver licence.

At the customer service centre, you must tell the issuing officer a court has ordered your disqualification be removed and you now want to apply for a driver licence. The officer will tell you whether you need to apply for a learner licence or a provisional licence and whether you need to pass a written and/or practical driving test. The type of licence you are eligible to apply for and whether you will need to take a test depends on how long you have been disqualified from holding a licence and the type of licence you held before you were disqualified.

If you are given a provisional licence rather than a learner licence without having to pass a driving test, it will only be for the vehicle class for which you previously held a licence. If you want to drive a new vehicle class, you will have to apply for a learner licence for that vehicle class.

When making your application, you must:

• complete an application form
• bring proof of identity (eg Australian birth certificate, Australian or foreign passport, Queensland 18+ card or Medicare card)
• bring proof of Queensland residence (eg ATO tax file number confirmation, bank statement or Queensland local government rates notice).

You also may need to pass an eyesight test.

If you believe the Department of Transport and Main Roads has incorrectly assessed your eligibility for a particular licence class, or you have a special need for a licence, get legal advice about your options.

Applying to a District or Supreme Court

How do I apply to the court to get my licence back?

If the disqualification you want to remove was made by a district or Supreme Court judge, you must take the following steps:

Step 1. File an originating application

You must file an Originating Application (Uniform Civil Procedure Rules Form 5) in the district or Supreme Court registry (see sample forms).

Check your records to see which court disqualified your licence and file the form in the court that disqualified your licence.

You can download an originating application from the Queensland Courts website www.courts.qld.gov.au. The form is identical whether you are applying in the district or Supreme Court except for the heading, which you will change depending on the court to which you are applying.

Step 2. Pay the filing fee at the relevant court

You will need to pay a filing fee to the district or Supreme Court when you apply to get your licence back. Check with the court to find out the current filing fee. If you are experiencing financial hardship, you may want to ask the court to waive the filing fee. You will find the necessary information on the Queensland Courts website under “Representing yourself in court”. Alternatively, ask at the court registry.

Step 3. File a supporting affidavit

You must then file a supporting affidavit with the court. This should include the same type of information as is in the sample magistrates court affidavit (see sample forms) but your affidavit needs to follow the appropriate district or Supreme Court heading and format. The affidavit needs to be in the format of a form 46 of the Uniform Civil Procedure Rules forms on the Queensland Courts website. You can download the affidavit from the Queensland Courts website or obtain a copy from the court registry. The affidavit is filed on the actual date of the application.

You need to attach a copy of the sentencing remarks made by the judge when he/she imposed the disqualification/s you are applying to have removed. You need to apply to Auscript (www.auscript.com or phone 1800 287 274) for a copy of the court transcript.

The application is not heard in court, but by the judge in their chambers.

Sample documents and forms

Sample 1 — Application for Removal of Disqualification of Driver Licence(PDF, 96KB)

Sample 2 — Affidavit — Magistrates Court(PDF, 77KB)

Sample 3 — Certificate of Exhibit(PDF, 50KB)

Sample 4 — Originating Application(PDF, 65KB)

Note:

• These are sample forms to give you an idea of the information you might need to put in. Do not copy the information on the sample forms. Use them as a guide only and put in the information about your situation.
• You will not need to use all these forms. Only use the ones that apply to you.
• Type your answers or write neatly in black or blue pen.
• Make sure the information you use is correct and always double-check the spelling of the names of other people involved.

Legal words and terms explained

Affidavit — a signed, written statement by a person involved in the case, stating what they know. It is sworn under oath.

Affirming — stating that what you say or write is the truth. It is used instead of ‘taking the oath’ if your religion does not allow you to take an oath or you do not have a religion.

Applicant — the person applying to the court to have their disqualification removed.

Conviction — this is where a person has been found guilty by a court of law of committing an offence and a record of their guilt has been recorded on their criminal or traffic history record.

Court clerk — the court officer who helps the magistrate in running the court.

Criminal history — a record of criminal offences for which a person has been convicted.

Cross-examination — when someone giving evidence in court is questioned about their evidence.

Deponent — the person who signs an affidavit.

Evidence — these are the facts that a court decides a case on. Evidence can be presented verbally to the court or in the form of an affidavit. Most of your evidence is presented in an affidavit when you apply to the court to remove a disqualification.

Filing — the process whereby documents are accepted by a court and often this is evidenced by the court stamping its seal on the filed document.

Judge — the judge is the person who will decide your case. They exercise control over the District and Supreme Courts and make all findings about law and fact.

Justice of the peace/commissioner for declarations — the person who must watch you sign your affidavit.

Magistrate — the magistrate is the person who will hear and decide your case. They exercise control over the Magistrates Court and make all findings about law and fact.

Oath — ‘taking the oath’ means swearing on the Bible you will tell or have told the truth. If you do not believe in the Bible you can affirm the content of your affidavit is true.

Police prosecutor — the police officer who presents the evidence in court.

Tender — to present your affidavit to the court as evidence.

Traffic history — a written record of the motor vehicle offences committed by you.

Last updated 3 November 2022