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