If you accumulate too many demerit points or commit a high-speed offence, you face a mandatory licence suspension imposed by Queensland Transport. In most cases, the period of suspension will be six months.
For many people, the loss of their driver’s licence would be devastating. It can impact their families and can prevent them from doing their jobs.
If a person faces the loss of their licence, but they rely on their licence for personal or work reasons, they may be able to apply for a Special Hardship Order (“SHO”).
What is a Special Hardship Order?
A special hardship order allows a person to obtain a restricted licence, despite a driver licence suspension. The restricted licence is also known as a special hardship licence.
Applications are made in a Magistrates Court.
You cannot apply for a special hardship order for all types of licence suspensions. For example, you cannot apply for a hardship licence if your licence has been suspended by SPER due to unpaid fines.
It is essential to understand that a SHO only allows a person to drive in very limited circumstances. They are therefore not the same as a normal driver licence.
For example, a Magistrate can order that the hardship licence only allows you to drive to and from work. The order could also require that you only drive between certain hours and on certain days, as decided by the Magistrate.
Am I Eligible to Apply for a Special Hardship Order?
Not everyone can apply for a special hardship order, as there are a number of preconditions that must first be satisfied.
If you fail to convince the Magistrate that you are eligible for a special hardship order, your application will be refused.
To be eligible for a hardship licence, you will need to prove the following:
You can only apply for a hardship licence if your licence has been suspended for specific reasons.
The first reason is that you have accumulated too many demerit points while on a good driving behaviour period.
The other reason is that you committed a high-speed offence, which involves driving 40km/hr or more above the speed limit.
You hold a Suitable Licence
You must hold a valid Provisional Licence or Open Licence. Learner licence holders cannot apply for a hardship licence.
In addition, you must hold a Queensland licence. Applicants who hold a non-Queensland driver licence are not eligible to apply.
You will also need to show that your licence has not been suspended or disqualified in the last five years (some exceptions apply). A hardship licence application cannot be granted if a person has a recent licence disqualification.
You are a Fit and Proper Person
The Magistrate will need to consider whether you are a “fit and proper person” to hold a driver’s licence. In other words, the Magistrate will decide whether you deserve to be a licence holder.
To make this decision, the Magistrate will look at several factors.
For example, the Magistrate will review your previous traffic history to consider any previous traffic offences you have committed (including speeding, drink-driving etc.).
The Magistrate may refuse your application if you have previously committed a serious offence, such as dangerous driving or unlicensed driving.
If you have a poor traffic history, you might consider completing the Queensland Traffic Offenders Program or a similar program.
The Magistrate will also consider any criminal history you might have.
You will Suffer Hardship
A Magistrate will not grant you a hardship order unless you can prove that you will suffer extreme hardship without a licence.
Most applicants argue that the loss of their licence will cause severe financial hardship because it will impact their ability to earn an income.
Some applicants, however, need their licence to avoid what is called “unusual hardship”. This could include needing to drive family members to receive medical treatment.
In most cases, a hardship order application will not be granted to allow a parent or caregiver to drive children to school, as this is not considered “unusual” hardship.
How do I Apply for a SHO?
There are strict procedures that must be followed when applying for a SHO. If you do not follow the procedures correctly, you may lose your ability to make the application.
Prepare the Paperwork
The first step to making a hardship licence application is to prepare the necessary paperwork. This includes the completion of a special hardship order application form.
You will also need to prepare detailed affidavits which support your application (a statutory declaration is not sufficient).
Most importantly, you will need to prepare an affidavit for yourself which explains why you should be granted the application. For example, you should explain why you cannot take public transport or alternative transport instead of driving.
Your affidavit may need to include documentary evidence about other information, such as your income and expenses or details about relevant medical conditions.
Your employer will also need to provide an affidavit confirming that you need your licence for work (unless you are self-employed).
Lodge The Application
Once you have prepared the required paperwork, you will need to lodge the documents at a Magistrates Court registry. The registry will choose a hearing date for the application.
Next, you will need to serve a copy of the application on the Department of Transport and Main Roads. The Department will record the application date in their system.
Appear In Court
You will need to attend court on the hearing date. If you do not attend court, the Magistrate can dismiss your application.
During the application hearing, the Magistrate will review your paperwork to decide whether the grant the application or not.
A representative from the Department of Transport will often appear in court as well. He or she can oppose the application if they believe it should not be allowed.
The final decision, however, is up to the Magistrate.
Obtain a Replacement Licence
If your application is successful, you will be able to obtain a replacement driver licence.
Immediately after your application hearing, you will be given a court order confirming the outcome. You must take the court order to any Queensland Transport centre so that they can give you a replacement driver licence.
You cannot drive from the courthouse to Queensland Transport as your licence will still be suspended. However, once you have the replacement licence, you can start driving again – as long as it is in accordance with the licence conditions.
Special Hardship Order Conditions
If you are granted a special hardship order, the Magistrate will impose restrictions on your driving.
Some of the conditions and restrictions might include:
The Purpose of Driving
You will only be allowed to drive for the purposes permitted by the court.
In most cases, a magistrate will only allow you to drive for work purposes so that you do not lose your employment.
However, if there are other reasons you need to drive, such as attending doctors for a medical condition, a magistrate can allow you to drive for these purposes.
The Class of Vehicle
Your vehicle class is another factor that can be restricted. You may therefore be prevented from driving vehicles that are not covered by the special hardship order.
The Days and Times for Driving
You can be restricted to driving only during specific days and times. This will be determined by the Magistrate according to the information you provide in your affidavit.
Can I Change the Order Conditions?
If you have been granted a hardship licence but your circumstances change, you can go back to court and ask for the conditions to be varied.
For example, your hardship order might only allow you to drive from 9am – 5pm but your employer has asked you to start doing night shifts. In that situation, you could ask the court to change the order to allow you to drive at night.
If you are in this position, we recommend that you seek legal advice.
What if I Breach a Special Hardship Order?
If you do not comply with a hardship order condition, the police will charge you with failing to comply with the order.
You will be required to attend a court where a Magistrate will determine what punishment to impose. Ordinarily, this will include a fine, the cancellation of your hardship order and a further licence disqualification.
What if the Magistrate Refuses my Application?
If your application is unsuccessful, there will be no other opportunity for you to apply. Your licence will be suspended and you will be unable to drive for any reason during the suspension period.
Does my Employer Need to Come to Court?
Provided that your employer has provided a sworn affidavit, he or she will ordinarily not need to come to court.
However, in some situations, the Magistrate or the Queensland Transport representative might want to question your employer to find out more information. In that case, your employer might be required to attend.
We have also seen situations where an employer refuses to provide an affidavit. In that case, the employer can be ordered to attend court to give evidence in person, rather than by providing affidavit evidence.
How can Harper Finch Lawyers help?
We highly recommend hiring a lawyer to assist with your application.
You only get one chance at making the application and the consequences can be serious if you are unsuccessful.
We know exactly what needs to be done to apply for a special hardship order and we have made hundreds of successful applications.
Our experienced traffic lawyers will prepare comprehensive affidavit material on your behalf and will do all the talking in court.
We will guide you through the process from start to finish and will answer any questions you might have along the way.
Contact us for an obligation-free chat about how we can save your licence.