Imagine this.

Police allege that you were driving at excessive speed and immediately take away your licence.

You know they are wrong. In fact, suppose you have compelling evidence that proves you could not have committed the offence.

You want to go to court immediately, show a Magistrate that evidence and ask for your licence back.

You can’t.

It does not matter how strong your defence is. Under the law as it presently operates in South Australia, a driver given this particular type of Instant Loss of Licence for excessive speeding has no statutory right to apply to the Magistrates Court to have the disqualification lifted.

You can contest the speeding charge itself. You might ultimately be acquitted. But while you wait for that case to be determined, you may serve some—or even all—of the police-imposed disqualification.

That is the anomaly. Parliament has provided court processes for challenging other types of Instant Loss of Licence, but not this particular roadside excessive-speed ILOL.

Parliament has already recognised the problem and passed legislation intended to fix it. The problem is that the relevant amendments still have not commenced.

How did we get here?

The offence of excessive speed was introduced into the Road Traffic Act 1961 (SA) in 2005. Section 45A makes it an offence to drive at 45 km/h or more above the applicable speed limit.

At the same time, Parliament introduced section 45B, giving police the power to impose an immediate licence disqualification or suspension—commonly called an Instant Loss of Licence, or ILOL.

The policy is easy enough to understand. Driving at 45 km/h or more above the speed limit is potentially extremely dangerous, and Parliament wanted police to be able to get alleged excessive-speed drivers off the road without waiting for their cases to make their way through the courts.

But there was originally an important safeguard.

The original safeguard: elect to go to court

An excessive-speed offence could be dealt with by an expiation notice—a traffic fine.

A person who received an expiation notice did not have to accept the allegation. They could elect to be prosecuted, meaning they chose to have the allegation determined by a court instead.

Importantly, under the original version of section 45B, if the person elected to be prosecuted, the police-imposed licence disqualification or suspension was cancelled and their licence came back into force.

That was not an accidental consequence of the legislation. When the legislation was debated in Parliament in 2005, the Government explained that a disqualification would not proceed where a person elected to be prosecuted, so that a person who believed they had a defence could put that defence before a court.

In practical terms, the advice was straightforward: if a driver genuinely disputed the allegation, electing to be prosecuted brought the immediate disqualification to an end and allowed the substantive charge to be determined by a court.

Then the law changed

On 13 February 2023, amendments to section 45B came into operation.

Police no longer had to first issue an expiation notice. Under the new section 45B(1)(a), a police officer could issue an ILOL where the officer reasonably believed that the driver had committed an offence against section 45A.

The change allowed police to act at the roadside without first having to issue an expiation notice. But the old safeguard under which an election to be prosecuted cancelled the ILOL disappeared.

What if the police are wrong?

A police officer does not have to prove an excessive-speed offence beyond reasonable doubt before issuing an ILOL. The power arises if the officer reasonably believes the offence has been committed.

Those are very different things.

A driver might dispute the accuracy or use of speed-detection equipment. There might be an issue about which vehicle was detected. There could be an evidentiary problem, or some other reason why the prosecution ultimately cannot prove the charge.

The driver can contest the substantive excessive-speed allegation in court. But that does not give them a statutory right to ask the Magistrates Court to lift this roadside ILOL while they wait.

Under the present section 45B, the roadside ILOL generally operates immediately, although commencement can in some circumstances be postponed. It continues until the relevant proceedings are determined, withdrawn or discontinued, subject to the statutory maximum period.

So a driver can ultimately be acquitted of excessive speeding but still have spent months unable to drive while waiting for the court to reach that conclusion.

How is this different from other Instant Loss of Licence cases?

There is an important distinction.

A right to apply to the Magistrates Court to lift an ILOL does not mean that the application will necessarily succeed. For other types of ILOL, the legislation sets tests that must be satisfied before a Magistrate can intervene. A driver might fail in an application to lift the ILOL and nevertheless later successfully defend the underlying charge.

The problem with a roadside excessive-speed ILOL is more fundamental.

The driver does not presently have that statutory opportunity at all.

However persuasive the evidence may be that the excessive-speed allegation is wrong, the driver cannot invoke the Magistrates Court procedure in section 47IAB to ask that the roadside ILOL be lifted on that basis.

It doesn’t matter how strong your defence is: you cannot make an application Parliament has not provided for.

But some people can ask the Magistrates Court to lift an excessive-speed ILOL

This is where the anomaly becomes even more unusual.

Section 47IAB of the Road Traffic Act already allows certain people affected by an ILOL to apply to the Magistrates Court to have it lifted.

That includes a person who receives the particular excessive-speed ILOL presently captured by section 45B(1)(b), including the photographic-detection/vehicle-owner pathway. One of the statutory grounds is directed to whether there is a reasonable prospect of acquittal.

But section 47IAB does not presently give that same statutory application to a driver who is given the roadside ILOL under section 45B(1)(a).

Two people can therefore face an excessive-speed allegation, yet only one has the statutory avenue to ask a Magistrate to intervene.

Parliament has recognised the problem

This is not simply an obscure interpretation of the legislation. The South Australian Government has itself recognised the inconsistency.

In 2024, Parliament passed amendments intended to provide excessive-speed drivers with a right to apply to the court to lift the disqualification or suspension, bringing the roadside driver into line with the court remedy already available in the other pathway.

There is just one problem.

The relevant amendments still have not commenced.

When it comes to fixing an obvious hole in the law about excessive speeding, Parliament has not acted with excessive speed.

Can a roadside excessive-speed ILOL still be challenged?

Possibly—but this is where things become much more complicated.

Section 45B gives the Commissioner of Police a discretionary power to authorise withdrawal of an ILOL in specified circumstances, including where the notice is defective or there is other proper cause why it should not have been given.

There may also be an avenue through judicial review in the Supreme Court.

In Police v Conway; Police v Parker [2006] SASC 186, the Full Court considered analogous ILOL provisions and described the giving of an immediate disqualification notice as appearing to be an administrative act by the police officer.

“A penalty is imposed by an administrative act without a complaint having been laid, without any court process, without any adverse finding and without the right to be heard.” — Full Court of the Supreme Court of South Australia, Police v Conway; Police v Parker [2006] SASC 186

That reasoning provides a basis for considering whether a roadside excessive-speed ILOL may be susceptible to judicial review—for example, where a statutory precondition for issuing the notice was not satisfied.

However, our research has not identified a reported South Australian decision since the present roadside power commenced in February 2023 in which a driver has actually sought judicial review of a section 45B(1)(a) notice.

Judicial review should therefore not be presented as a settled or straightforward substitute for the Magistrates Court remedy Parliament has decided these drivers ought to have.

Any potential challenge also needs to be considered promptly because the ILOL is already operating while the substantive charge works its way through the court process.

Why does this matter?

An immediate loss of licence can have serious consequences. For some people, a driver’s licence is essential to their employment or business. For others, it is necessary to care for children or family members or simply to manage ordinary daily life.

There are good public-safety reasons for giving police powers to immediately remove genuinely dangerous drivers from the road.

But an allegation is not a conviction.

The original excessive-speed legislation recognised that by providing a mechanism under which a person who disputed the allegation could elect to have a court decide it without continuing to serve the police-imposed disqualification in the meantime.

The law changed. A gap emerged. Parliament has recognised that gap and enacted legislation intended to address it.

Drivers affected by it are still waiting for that legislation to commence.

Have you received an Instant Loss of Licence for excessive speeding?

The options available following an ILOL depend upon how and why the notice was issued, and the distinction can be important.

If you have received an immediate licence disqualification or suspension for alleged excessive speeding—particularly if you dispute the allegation—you should obtain legal advice promptly about both the underlying charge and whether there may be any avenue to challenge the ILOL itself.

Websters Lawyers’ traffic lawyers can advise you about an excessive-speed allegation, an Instant Loss of Licence and the options available in your particular circumstances.

Contact us to speak with one of our traffic lawyers.