Published by Geoff Harrison | 11 July 2023
Arguably one of the biggest distractions whilst driving or riding a vehicle is using a mobile phone. In NSW between 2012 and 2020 there have been 18 deaths and 271 injuries attributed to a driver or rider using a mobile phone. Hence, probably why the legislature's tough stance in relation to mobile phone use whilst driving/riding. The current penalty for using a mobile phone whilst driving or riding is an infringement notice of $362 or $481 (if detected in a school zone) or a maximum court imposed fine of $2200 all with the accrual of 5 demerit points.
The law allows for a mobile phone to be used by a driver/rider to make or receive an audio phone call or to play music, only if the body of the phone is is secured in a mounting affixed to the vehicle (see r300(2) as to what constitutes, "a mounting affixed to a vehicle"). As to what constitutes 'use' of a mobile phone see r300(4) below. There are some other exemptions as outlined below, such as the phone being used as an aid eg. navigation however, again the phone must be in a mounting affixed to the vehicle. Emergency service vehicles and police vehicles are exempt from this legislation.
A Learner, P1 or P2 licence holder must not use a mobile phone - see r300-1. As to what constitutes 'use' of a mobile phone see r300(4). Maximum court imposted fine is $2200.
This is an offence, that is often taken to the courts given the number of demerit points involved; where leniency is often requested from the court to avoid the number of demerit points and the subsequent action in relation to one's driver's licence. However, a non conviction cannot be imposed to circumvent the operation of some other legislative provisions; see:
R v Sutton [2021] NSWDC 640 at [38]
R v Fing (unreported, NSWCCA, 4/10/94)
A good resource in relation to the use of mobile phones is the Transport for NSW website.
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ROAD RULES 2013 - REGULATION 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 :
"Emergency vehicle" ,
"park" and
"police vehicle" are defined in the Dictionary.
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 :
"Provisional P1 licence" and
"provisional P2 licence" are defined in the Dictionary and
"learner licence" is defined in the Act.
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--
"affixed to" , in relation to a vehicle, includes forming part of the vehicle.
"audio phone call" does not include an email, text message, video call, video message or other similar communication.
"body" , in relation to a mobile phone, means the part of the phone that contains the majority of the phone's mechanisms.
"held" includes held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver.
"mobile phone" does not include a CB radio or any other two-way radio.
"use" , in relation to a mobile phone, includes any of the following actions by a driver--
(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.
300-1 NSW RULE: USE OF MOBILE PHONES BY DRIVERS WHO ARE HOLDERS OF LEARNER OR PROVISIONAL P1 OR P2 LICENCES
(1) 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.
Maximum penalty--20 penalty units.
Note :
"Emergency vehicle" ,
"park" ,
"police vehicle" ,
"provisional P1 licence" and
"provisional P2 licence" are defined in the Dictionary, and
"learner licence" is defined in the Act.
(2) In this rule,
"held" ,
"mobile phone" and
"use" have the same meanings as in rule 300.
(3) Subrule (1) does not apply if--
(a) the motor 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 rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules .
138 ADMISSIBILITY OF PHOTOGRAPHS TAKEN BY DEVICES--GENERALLY
(cf STM Act, ss 47(2)-(5), 47B(1) and (2), 57(2) and (3) and 57B(2)-(4))
(1) In proceedings for a detectable traffic offence, any one or more photographs that are tendered in evidence on any of the following bases are admissible in the proceedings--
(a) if the proceedings concern a speeding offence in which evidence of an average speed is relied on--photographs that are tendered as--
(i) being photographs taken by means of the operation, on a day or days specified on the photographs, of approved traffic enforcement devices that are approved for average speed detection installed at the locations specified on the photographs, and
(ii) if the photographs are taken by digital camera devices-- each bearing a security indicator of a kind prescribed by the statutory rules,
(b) in the case of proceedings for a speeding offence in which evidence of an average speed is not relied on--a photograph that is tendered as--
(i) being taken by an approved traffic enforcement device that is approved for excess speed imaging on a day and at a location specified on the photograph, and
(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the statutory rules,
(c) in the case of proceedings for a traffic light offence--a photograph that is tendered as--
(i) being taken by means of the operation, on a day specified on the photograph, of an approved traffic enforcement device that is approved for red traffic light detection installed at a location specified on the photograph, and
(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the statutory rules,
(d) in the case of proceedings for a public transport lane offence--a photograph or photographs that are tendered as--
(i) being taken by means of the operation, on a day specified on the photograph or photographs, of an approved traffic enforcement device or devices that are approved for traffic lane use detection installed at a location or locations specified on the photograph or photographs, and
(ii) if the photograph or photographs are taken by a digital camera device--each bearing a security indicator of a kind prescribed by the statutory rules,
(e) in the case of proceedings for a dimension offence--a photograph that is tendered as--
(i) being taken by means of the operation, on a day specified on the photograph, of an approved traffic enforcement device that is approved for dimension imaging installed at a location specified on the photograph, and
(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the statutory rules,
(f) in the case of proceedings for a mobile phone use offence--a photograph that is tendered as--
(i) being taken by means of the operation, on a day specified on the photograph, of an approved traffic enforcement device that is approved for mobile phone use offences, and
(ii) if the photograph is taken by a digital camera device--bearing a security indicator of a kind prescribed by the statutory rules.
(2) If one or more photographs are tendered in evidence as referred to in subsection (1), a certificate purporting to be signed by an appropriate inspection officer in relation to the approved traffic enforcement device concerned that certifies the following matters is also to be tendered in evidence--
(a) that the person is an appropriate inspection officer in relation to the device,
(b) that on a day and at a time specified in the certificate (being within the period prescribed by the statutory rules, whether for a specified kind of device or generally, before the time recorded on the photograph or the earliest photograph as the time at which that photograph was taken), the person carried out the inspection specified in the certificate on the approved traffic enforcement device by means of which the photograph was taken,
(c) that on that inspection the device was found to be operating correctly.
(3) A single certificate may be tendered in proceedings for a public transport lane offence for the purposes of subsection (2) if more than one photograph taken by an approved traffic enforcement device is tendered in evidence, but only if--
(a) each photograph is of the same vehicle, and
(b) each photograph is taken on the same day at approximately the same time and at approximately the same location.
(4) If a photograph is tendered in evidence in proceedings for a speeding offence involving a vehicle in which evidence of an average speed is not relied on, a certificate referred to in section 137 concerning the accuracy and reliability of the device used to measure the speed at which the vehicle was travelling must also be tendered along with the certificate required by subsection (2) in relation to the camera device that took the photograph.
(5) A photograph tendered in evidence as referred to in subsection (1)--
(a) is to be presumed to have been taken by the approved traffic enforcement device concerned unless evidence sufficient to raise doubt that it was so taken is adduced, and
(b) if it is tendered on the basis that it bears a security indicator--is to be presumed to bear such a security indicator unless evidence that is sufficient to raise doubt that it does so is adduced, and
(c) is prima facie evidence of the matters shown or recorded on the photograph.
(6) Evidence that a photograph tendered in evidence as referred to in subsection (1) bears a security indicator of a kind prescribed by the statutory rules is prima facie evidence that the photograph has not been altered since it was taken.
"detectable traffic offence" means any of the following kinds of offences--
(a) a speeding offence,
(b) a traffic light offence,
(c) a public transport lane offence,
(d) a dimension offence,
(e) a mobile phone use offence.
139 ADMISSIBILITY OF PHOTOGRAPHS TAKEN BY DEVICES--UNAUTHORISED VEHICLE USE OFFENCES
(cf VR Act, s 22C(2)-(5))
(1) A photograph of a vehicle--
(a) taken by an approved traffic enforcement device that is evidence under this Division of a detectable traffic offence, or
(b) taken by an approved toll camera that is evidence of a toll offence against section 250A of the Roads Act 1993 ,
may also be tendered in evidence in proceedings for an unauthorised vehicle use offence involving the same vehicle.
Note : For example, a photograph taken by an approved traffic enforcement device that is approved for red traffic light detection that is evidence of a traffic light offence against section 138(1)(c) may also be tendered in evidence in proceedings for an unauthorised vehicle use offence involving the same vehicle.
(2) For this purpose, the provisions of this Division or section 250A of the Roads Act 1993 that apply in relation to the tendering, admission and use in evidence of a photograph for the detectable traffic offence or toll offence of which the photograph is also evidence are taken to extend to the tendering, admission and use in evidence of the photograph for the unauthorised vehicle use offence.
Note : For example, a photograph of a vehicle taken by an approved traffic enforcement device that is approved for excess speed imaging may be tendered in evidence in proceedings for an unauthorised vehicle use offence by complying with the requirements of this Division concerning the tendering, admission and use in evidence of a photograph to prove a speeding offence.
(3) Nothing in this section prevents a photograph taken by an approved traffic enforcement device being tendered and used in evidence both in proceedings for an unauthorised vehicle use offence and proceedings for a detectable traffic offence or toll offence.
(4) In this section and section 139A--
"approved toll camera" and
"toll offence" have the same meanings as in section 250A of the Roads Act 1993 .
139A ADMISSIBILITY OF PHOTOGRAPHS TAKEN BY DEVICES (OTHER THAN A DEVICE APPROVED FOR MOBILE PHONE USE OFFENCES) FOR MOBILE PHONE USE OFFENCES
(1) A photograph of a vehicle--
(a) taken by an approved traffic enforcement device (other than a device approved for mobile phone use offences) that is evidence under this Division of a detectable traffic offence (other than a mobile phone use offence), or
(b) taken by an approved toll camera that is evidence of a toll offence against section 250A of the Roads Act 1993 ,
may also be tendered in evidence in proceedings for a mobile phone use offence involving the driver of the vehicle.
(2) For this purpose, the provisions of this Division or section 250A of the Roads Act 1993 that apply in relation to the tendering, admission and use in evidence of a photograph for the detectable traffic offence (for which the device is approved) or toll offence of which the photograph is also evidence are taken to extend to the tendering, admission and use in evidence of the photograph for the mobile phone use offence.
(3) Nothing in this section prevents a photograph taken by an approved traffic enforcement device being tendered and used in evidence both in proceedings for a mobile phone use offence and proceedings for a detectable traffic offence (other than a mobile phone use offence) or toll offence.