The law?
In the
state of NSW, the laws in relation to the offence of ‘Driver use mobile
phone’ is contained in Regulation 300 & Regulation
300-1 in Road Rules 2014.
What does
the Law say? Below is a rundown of the Law per Regulation 300.
|
‘’Use of mobile phones– ‘’300 Use of
mobile phones (1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked,
unless– (a) the phone is being used to make or receive an
audio phone call or to perform an audio playing function and the body of the
phone– (i) is secured in a mounting affixed to the vehicle while being so used, or (ii) is not secured in a mounting affixed to
the vehicle and is not being held by the driver, and
the use of the phone does not require the driver, at any time while using it,
to press any thing on the body of the phone or to otherwise manipulate any
part of the body of the phone, or (b) the phone is functioning as a visual display
unit that is being used as a driver’s aid and the phone is secured in a
mounting affixed to the vehicle, or (c) the vehicle is an emergency vehicle or a police vehicle, or (d) the driver is exempt from this rule under
another law of this jurisdiction. : Maximum penalty–20 penalty units. Examples of driver’s aids : 1 Closed-circuit television security
cameras. 2 Dispatch systems. 3 Navigational or intelligent highway
and vehicle system
equipment. 4 Rearview screens. 5 Ticket-issuing machines. 6 Vehicle monitoring
devices. Note 1 : Note 2 : Subrule (1) is not
uniform with the corresponding subrule in rule 300 of the Australian Road Rules . Different
rules may apply in other Australian jurisdictions. (1-1) Subrule (1) does not apply
if– (a) the vehicle is stationary in a road related area, and (b) the phone– (i) is functioning as a payment device to enable
the driver to pay for goods or services that are required to be paid for in
the road related area, or (ii) is being used to display an electronic
coupon, voucher, card or similar article that requires the body of the phone
to be held in close proximity to another device located in the road related area in order for the article to be
used or redeemed, or (iii) is being used as an electronic device that
enables the driver to enter another road related area or land adjacent to the road related area. Note : This subrule is an
additional NSW subrule. There is no corresponding subrule in rule 300 of the Australian Road Rules . (2) For the purposes of this rule, a mobile phone
is secured in a mounting affixed to the vehicle only if– (a) the mounting is commercially designed and
manufactured for that purpose, and (b) the mobile phone is secured in the mounting,
and the mounting is affixed to the vehicle, in the manner intended by the
manufacturer. (3) For the purposes of this rule, a driver does
not use a phone to receive a text message, video message, email or similar
communication if– (a) the communication is received automatically
by the phone, and (b) on and after receipt, the communication itself
(rather than any indication that the communication has been received) does
not become automatically visible on the screen of the phone. (3A) For the purpose of this rule, a vehicle may be parked even though– (a) the key to the vehicle is located in the vehicle‘s ignition lock, or (b) the engine of the vehicle is running. (3-1) This rule does not apply to the driver of
a motor vehicle who is the holder of a learner
licence or a provisional P1 or P2 licence. Note 1: Note 2 : Rule 300– 1 provides for
the use of mobile phones by drivers of motor vehicles who are
holders of learner licences or provisional P1 or P2 licences. Note 3 : This subrule is an
additional NSW subrule. There is no corresponding subrule in rule 300 of the Australian Road Rules . (4) In this rule– (a) holding the body of the phone in her or his
hand (whether or not engaged in a phone call), except while in the process of
giving the body of the phone to a passenger in the vehicle, (b) entering or placing, other than by the use of
voice, anything into the phone, or sending or looking at anything that is in
the phone, (c) turning the phone on or off, (d) operating any other function of the phone.’’ |
Does the offence of ‘Driver Use
Mobile Phone’ differ for Full Licence Holders/ Provisional Drivers/ Learner
Drivers?
In short, yes,
they differ, we will discuss how they differ in more depth (below).
Please note that Regulation 300 is the law for Unrestricted Licence
Holders and Regulation 300-1 is the law for Restricted (Provisional
or Learner) Licence Holders. It should also be noted however that under both
regulations it is an offence for a person to hold/touch a mobile phone while
driving or riding and the exception is passing the phone to a passenger in the
car.
THE OFFENCE OF ‘Driver Use Mobile
Phone’ for
UNRESTRICTED LICENCE HOLDERS.
Main
points to note from the regulation (above).
In the
simplest of terms, the Road Rules 2014 states that ‘’The Driver
of a vehicle must not use a mobile phone while the vehicle is moving or is
stationary but not parked.’’
How
is the term ‘’use’’ defined by the law?
Some
non-exhaustive examples of the term ‘’use’’ per Regulation 300
include:
–
Turning
the mobile phone on or off
–
Touching/holding
of the mobile phone while sending or looking at anything on the phone.
–
Operating
any function of the phone
–
Holding
of the body of the phone in the persons hand (however this does not include
giving the phone to a passenger in the vehicle).
–
Placing
or entering anything into the phone etc
(To name a
few)
What are the EXCEPTIONS for UNRESTRICTED
Licence Holders?
Regulation
300 notes that
the rules surrounding the use of mobile phone does NOT apply if the vehicle is parked (not
stationary) or if the phone is being used to make or receive an audio
phone call or to perform an audio playing function and the body of the
phone–
(i) is secured in a mounting affixed to the vehicle while being
so used, or
(ii) is not secured in a mounting affixed to
the vehicle and is not
being held by the driver, and the use of the phone does not require the driver,
at any time while using it, to press anything on the body of the phone or to
otherwise manipulate any part of the body of the phone, or
(b) the phone is functioning as a visual display
unit that is being used as a driver’s aid and the phone is secured in a
mounting affixed to the vehicle, or
(c) the vehicle is an
emergency vehicle or a
police vehicle, or
(d) the driver is exempt from this rule under another law of this
jurisdiction.
It should also be noted that further exemptions
apply if the vehicle is
stationary in a road related area, and the phone—
(i) is functioning as a payment device to enable
the driver to pay for goods or services that are required to be paid for in
the road related area, or
(ii) is being used to display an electronic coupon,
voucher, card or similar article that requires the body of the phone to be held
in close proximity to another device located in the road related area in order for
the article to be used or redeemed, or
(iii) is being used as an electronic device that
enables the driver to enter another road related area or land
adjacent to the road related area.
(2) For the purposes of this rule, a mobile phone
is secured in a mounting affixed to the vehicle only if—
(a) the mounting is commercially designed and
manufactured for that purpose, and
(b) the mobile phone is secured in the mounting,
and the mounting is affixed to the vehicle, in the manner
intended by the manufacturer.
THE OFFENCE OF ‘Driver Use Mobile
Phone’ for
LEARNER & PROVISIONAL Licence
Holders.
The law is
significantly stricter for Learner and Provisional Licence holders as they
cannot and must not use Bluetooth or ‘’Hands Free’’ Functions on a Phone. It
should also be noted that Leaner and Provisional Licence Holders cannot use
their phones as a Navigator, and this is because the use of the phone in such a
manner if you are a Leaner or provisional licence holder is an offence.
Please
note that the law states in Regulation 300-1 that ‘’The
driver of a motor vehicle (except an emergency vehicle or police vehicle) who
is the holder of a learner licence or a provisional P1 or P2 licence must not
use a mobile phone, whether or not held by the driver, while the motor vehicle
is moving or is stationary but not parked.’’
Factors
to take into consideration in NSW.
The rules
which are applicable to drivers as well as the associated penalties which apply
to the offence of ‘Driver use Mobile phone’ are subject to the following (non-exhaustive)
factors:
1.
Was
the driver an unrestricted licence holder?
2.
Was
the driver a Learner/Provisional driver?
3.
Is
the matter finalised in the Court?
4.
Is
the matter finalised by simply paying the fine?
5.
Was
the offence committed in a Double Demerit period which will attract up to 10
demerit points?
6.
Was
the offence committed in a School Zone?
What
about ‘Bluetooth Devices’ in General?
It should
be noted that in the case of Crescente v DPP [2009] NSWDC 129,
the Court found that:
“Any device which activates a carriage
service so that there can be a transmission of a telecommunication and is
portable constitutes a mobile phone. If the Bluetooth device, is one capable of
being held in the hand and capable of conveying or activating a carriage
service then it constitutes a mobile phone. What other functions it does, does
not matter.”
What does
this mean? This simply means that a device, whether it is an iPod, iPad, Apple Watch,
or a Smart Watch in general, Phones, CBS, SAT Navs, or in other words, any
navigation device which has the Bluetooth feature is deemed to be a
‘’Mobile Phone’’ and as such, the law considers these items the same
as a Mobile phone. (It should be noted that the list of items noted above is
not exhaustive as these are a few examples).
It is very important that you speak with a lawyer so that you can
get the appropriate legal advice which you require prior to going to court.
Our team
of experienced solicitors are there for you and can help you answer all your
questions, so be sure to contact
Nicopoulos Sabbagh Lawyers.
*This article correctly reflects the Laws of NSW as at 20th
February 2023.
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