A correspondent writes:
I’m a paramedic living and working in just one state at the moment. For family reasons I’ll soon have to live/work between two different states and I’m hoping to work part time/casual for two state government ambulance services.
One problem raised is that it is a condition of each service that a full unrestricted licence is held in that state. A quick web search shows that a citizen can have a licence in only one Australian state/territory.
Can you see any way around this impasse? I know of a few paramedics who have worked this way in the past. Is there any special consideration for this type of situation?
It’s true, you can only have one driver’s licence but each state and territory is to give full faith and credit to the licence issued by the other jurisdictions. I don’t know where my correspondent is based so for the sake of the argument I’ll assume he or she is based in NSW and planning to work in both NSW and the ACT, but the answer won’t be different regardless of the two jurisdictions involved.
In NSW the issue of drivers’ licences is regulated by the Road Transport Act 2013 (NSW). Section 28 of that Act provides that a licence is not to be issued unless the person is resident in New South Wales and, if they hold a licence issued in another jurisdiction, that licence has been ‘surrendered’ (see also Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 45). Equally the authority must not renew a licence if the licence holder is no longer resident in NSW. Rules, in the same terms, apply in the ACT (Road Transport (Driver Licensing) Act 1999 (ACT) s 10).
Even so as Australians we are allowed to travel in other jurisdictions so there is no need to obtain a local licence whilst resident in another state or territory (see for example Road Transport Act 2013 (NSW) s 29; Road Transport (Driver Licensing) Regulation 2008 (NSW) r 99 and Road Transport (Driver Licensing) Act 1999 (ACT) ss 11 and 31). If you do move interstate, you must get a new, local licence within three months (Road Transport (Driver Licensing) Regulation 2008 (NSW) r 99; Road Transport (Driver Licensing) Regulation 2000 (ACT) r 92).
So the critical issue is where is the primary place of residence – if it is NSW you have to have a NSW licence, but you can drive in the ACT and the ACT will give full recognition of the class and restrictions on the license, so if you’re are licensed to ride a motorcycle, or drive a heavy rigid vehicle in NSW, you can drive the same vehicles in the ACT.
So where does that leave my correspondent? He or she has to determine where is the primary place of residence. He or she then has to hold a licence issued from that state or territory.
If it really is the case that ‘is a condition of each service that a full unrestricted licence is held in that state’ that condition cannot be met. If on the other hand what is required is a full unrestricted right to drive then that can be met. I would suggest, however, that an obligation to hold the licence of a particular state is unconstitutional. The Australian Constitution says:
117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.
I would argue that requiring you to have a local licence is to impose a ‘disability or discrimination’ that you are not subject to in your own state and more importantly fails to give good faith and credit to the local laws of the other state. Further, requiring you to hold a licence in one particular state is a restraint of trade to the extent that it stops my correspondent practising his or her trade, across state boundaries. There is a common law doctrine of ‘restraint of trade’:
Briefly, the doctrine renders provisions which impose restrictions on a person’s freedom to engage in trade or employment illegal and therefore unenforceable at common law unless they are demonstrated to be reasonable. The provision must be reasonable both in the interests of the parties and in the interests of the public. (See The Australian Competition and Consumer Commission, ‘Restraint of Trade‘ <http://www.australiancompetitionlaw.org/law/rot.html>).
Requiring a person to hold the local licence would require the person to reside in that particular state (and why should someone who say, lives in Queanbeyan not be able to work as a paramedic in the ACT; or who lives in Albury not be able to work in Victoria etc) and would be an unlawful and unreasonable restraint of trade and unconstitutional.
I would suggest the reason that the condition is stated in those terms is that they simply did not really think the issue through. When writing the duty statement they would have considered that everyone who they employed was also a resident in that state and it would be necessary for any person who is resident in a state to obtain a licence from that state. This factual situation I’m sure has just raised an issue that was not fully considered. My suggestion would be that when addressing that selection criteria, you would argue that you had a full, unrestricted right to drive in the relevant state as you are exempt (by virtue of holding the relevant interstate licence) from the obligation to hold the licence in the second state. If they understand you are intending to permanently reside in the ‘other’ state and only work on a part time/casual basis that should not be an issue. If it is an issue it would be possible to make submissions, and ultimately seek an order from a court that the requirement is unlawful.
Michael Eburn
7 January 2014
Australian Emergency Law 
Michael,
You should probably ask the Paramedic about his authority to administer
drugs whilst in another state.
Drug classifications aren’t the same in each state.
Ambulance Officers in NSW break SA Law if they administer certain drugs in
SA (respond to a MVA)
I believe there needs to be a working group put together to sort all the
cross border red tape out.
Regards
Kelvin, that’s a good but very different point. A paramedic’s authority to carry and administer drugs is not something they carry with them. In the absence of professional registration a paramedic’s authority is restricted to the authority granted to them by both their employer and the relevant state health department. If my correspondent is employed by two ambulance services his authority in one state is that granted by that state; his authority in the other state is that granted by that other state. To limit myself to my two chosen jurisdictions, NSW and ACT if he is already a paramedic in NSW and then gets employed in the ACT he’s not carrying any NSW authority over to him; his authority in the ACT will be that granted to employees of ACT Ambulance.
I’m not sure if ‘Ambulance Officers in NSW break SA Law if they administer certain drugs in SA (respond to a MVA)’. Let’s think that through. It’s true that the NSW officers authority will be found in NSW law (the Poisons and Therapeutic Goods Act 1966 (NSW) and its regulations). So the first thing is assume a NSW ambulance has travelled into South Australia and assume that paramedics in NSW have an authority to carry and use a drug that SA Paramedics cannot use. Can there be any offence of being in posession of that drug because it is in the NSW Ambulance? I would think not; without pointing to an Act, chapter and verse, they are working for NSW ambulance, they are lawfully in possession of the drug, they travel across the state border presumably as part of their duty (whether that’s transporting someone to or from a NSW hospital or responding to an accident in SA in response to a request for interstate assistance) so their authority has been met and would have to be recognised.
Can they then use the drug? That’s a slightly different issue but the principles above would, I think apply. Further the Minister can grant various exemptions and authorities and may well have granted authority to NSW Ambulance paramedics in cross border areas.
If the paramedic is off duty, say on holidays in SA then that’s a different matter. As a paramedic qualification is not transportable, they would have no particular authority at all and may commit an offence if they use drugs, even if they are drugs they are authorised to use in NSW. Hopefully they are not carry the drugs themselves but if they are assisting SA paramedics there would also be so many defences, one being ‘necessity’ and the other being that it is no offence to administer a drug to someone for whom the drug is prescribed, so if the SA paramedic asks the NSW paramedic to administer a drug the NSW paramedic is trained to administer, it is the SA paramedic who is administering the drug and his or her authority that is relevant (see Controlled Substances Act 1984 (SA) s 18(1c)(c)). The real question is who is going to prosecute an interstate paramedic assisting a local officer if their action was well motivated and life saving.
A working group may help sort out the cross border issues, but it would certainly be assisted by national professional registration. It’s interesting that in NSW there is a Cross Border Commissioner (http://www.business.nsw.gov.au/doing-business-in-nsw/cross-border-commissioner) “to provide advocacy for businesses, organisations and residents in border communities” and to enable “those issues to be raised with NSW Government.” I don’t know if other jurisdictions have a similar office.
Hello M,
Section 92 free trade Act allows one to transverse states for business, pleasure etc., without hindrance. Also, I hold a HR licence which allows me to drive in any state unhindered by relevant state law all I need to do if I intend to permanently reside in another state is change my address details.
Regards
NigelM
Thanks Nigel, I think you mean s 92 of the Australian Constitution which says “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” I’m not a Constitutional lawyer but I remember when studying constitutional law my lecturer asking ‘free from what’? I would infer that this is referring to fees and charges, that is we don’t have interstate customs barriers, but of course interstate trade and commerce isn’t entirely free, there are interstate quarantine borders.
With respect to this situation I did consider s 92 and was not sure of its relevance but having looked at it again, if my correspondent is required to have a particular driver’s licence to work in a state that would require him to live in that state and that could well be seen as a cost for conducting his trade so that too would be an argument to support the claim that the obligation being imposed is unconstitutional.
As for the HR (Heavy Rigid) licence, interstate trucking is governed by the Interstate Road Transport Act 1985 (Cth). Although the Commonwealth cannot, generally, make laws with respect to road use, the Commonwealth can make laws with respect to interstate trade and commerce (Australian Constitution s 51(i)), hence this Act. This Act provides for registration of trucks used in interstate transport of people or goods. The Interstate Road Transport Act deals with registration but not licencing.
Then National Driver Licencing Scheme is a cooperative scheme to ensure all the jurisdictions have similar laws – hence we can say that the requirements I’ve quoted with respect to NSW and ACT apply in all jurisdictions, that is you must be resident in the state to get a licence; you must get a licence from the state in which you are resident and each jurisdiction must give full faith and credit to licences issued in other states (see ADMINISTRATIVE GUIDELINE: NATIONAL DRIVER LICENSING AND HEAVY VEHICLE REGISTRATION SCHEMES Compilation JANUARY 2006 ). Consistent with the reforms there is a national heavy vehicle driver licence but these are issued by state authorities (see http://www.rms.nsw.gov.au/publicationsstatisticsforms/statistics/registrationandlicensing/licensing_glossary.html; see also https://www.nhvr.gov.au/registration-licensing/licensing).
There is a National Heavy Vehicle Law but this is in fact a law of Queensland that has been adopted in other states (see Heavy Vehicle National Law Act 2012 (Qld) and Heavy Vehicle (Adoption of National Law) Act 2013 (NSW)). That national law does not deal with licensing. It appears that what makes the heavy vehicle licence a national licence is that there are standard competencies that must be demonstrated but it remains a state issued licence. For my correspondent if he had a National heavy licence he could drive vehicles in a lower class (see ROAD TRANSPORT (DRIVER LICENSING) REGULATION 2008 (NSW) rr 5-7) so it may make it easier but the State’s may still want it issued by them in which case he would have to change his address and if both require that, it would be impossible.
The Queensland ambulance Role description states
Applicants are required to hold an open Queensland “C” Class Driver’s Licence (for a manual motor car) prior to closing date for applicants. (Interstate and International applicants must hold an equivalent licence at the time of applying and will be expected to obtain a Queensland Driver’s Licence upon appointment).
As a casual in Queensland, you are not appointed to a position, you must meet the criteria for Authority to Practice, but are not appointed to a position or station.
As you say Michael, the person who wrote this has not considered the probably rare situation that the original author will be employed under and therefore this paragraph requirement would not apply.
Your thoughts on this?
My thoughts are as noted; I can imagine when writing this document it seemed reasonable but it doesn’t really reflect reality which, you would think, Queensland with its large FIFO workforce, would understand. The requirement to hold a Queensland licence is not merely a requirement to hold the licence but to live in Queensland (either you can’t get a Queensland licence) but why can’t a person live in Tweed Heads South (NSW) and work in Coolangatta (Qld) in which case they would have to hold the NSW licence. The statement “Interstate and International applicants must hold an equivalent licence at the time of applying and will be expected to obtain a Queensland Driver’s Licence upon appointment” is unnecessary. Interstate and International applicants who moved to Queensland would be required to obtain a Qld licence within three months of the move so having Queensland ambulance impose that obligation is simply unnecessary. Presumably QAS have sufficient imagination to deal with what would, undoubtably be the rare case of someone wanting to work for QAS whilst having their principal place of residence in another state, but the issue could be resolved if the Role Description said “Applicants are required to have the unrestricted right to drive in Queensland…’ That would include interstate licence holders but, as noted, if the applicant moved to Queensland, they would have to get a Queensland licence within three months.
Thanks for the reply Michael. It will be interesting to see what happens with the correspondent.