The State of Queensland recently introduced a $1,000 fine and 4 demerit points for anyone caught using their phone while driving.
From 1 September 2020, Western Australia introduced a similar increased penalty of $1,000 and 4 demerit points for any driver caught using their phone in any way other than to make an audio call. This includes texting, emailing, using social media, taking photos and watching videos.
What did the law say before?
Previously, Regulation 265(2) of the Road Traffic Code 2000 said that ‘a driver of a vehicle must not use a mobile phone while a vehicle is moving, or is stationary but not parked’. The penalty for the offence was a $400 fine and 3 demerit points.
What does the new law say?
Regulation 265(2) still provides that a person must not use a mobile phone while driving a vehicle that is moving or is stationary but not parked. Both of these things are considered ‘driving’ and you will face the same penalty for doing either of these things.
However, the new law makes two key changes:
1) An increased penalty for anyone caught holding or touching their mobile phone to make an audio phone call, if the phone is not secured in a phone cradle.
New penalty: $500 fine and 3 demerit points.
2) Introduction of a specific list of ‘uses’ which attract a higher, ‘modified penalty’. These uses texting, emailing, using social media, taking photos and watching videos.
Modified penalty: $1,000 fine and 4 demerit points.
What does ‘use’ mean?
Using your phone means a number of things – including:
Holding a phone;
Resting a phone on any part of your body – for example resting in your lap;
Entering or placing anything into a phone;
Sending or looking at anything in a phone;
Turning a phone on or off;
Operating any other function of a phone.
The above may include but are not limited to making phone calls, using facetime, choosing or changing music or volume, texting, sending emails, using social media, looking at videos or photos, using the internet, checking the time, turning your screen on/off, or setting up maps/navigation.
For the purposes of the offence ‘use’ of a phone involves situations where you are using a phone while the vehicle is being driven and is actually moving. ‘Use’ of a phone also includes using a phone while your vehicle is stationary but not parked – for example if you are pulled over at the side of the road, or sitting at traffic lights.
Both situations will attract the same penalty.
What is NOT using your phone?
You will not be using your phone in a way that breaches the law if:
You use your phone to accept or terminate an audio call and the phone is in a cradle.
You use your phone to accept or terminate an audio call and the phone is not in a cradle, but the call is made completely hands free (for example hands-free Bluetooth or voice activation).
The phone is being used as a drivers’ aid (such as navigation), it is secured in a cradle and you do not press anything on the phone or manipulate any part of the phone;
You are an on-demand vehicle (e.g. taxi or uber) using your phone to accept/confirm/start/cancel a booking, and you are not in a ‘restricted area’ (such as a school zone or a freeway), and it is safe for you to do so.
Your phone automatically receives a text, video, email etc and only a notification (not the message itself) is visible on the phone screen.
You are parked.
You are an ‘on-demand’ vehicle (such taxi or uber driver) and the visual display of the phone is displaying work-related information such as maps or dispatch systems;
Can I still use my hands free?
You can use your hands free to make calls, provided the phone is in a holder or you do not hold or touch your phone in any way while making the call. However, you cannot use hands free/Siri etc to dictate text messages or emails – this would be considered ‘creating’ and ‘sending’ a text message.
Can I still listen to music on my phone?
Yes, you can still listen to music – but you cannot touch your phone in any way. You should have your music selected before you start driving, or utilise the control buttons on your steering wheel to change songs.
What about using maps/navigation?
You can use maps or other navigation on your phone because this is considered a ‘drivers aid’. However – the phone must be secured in a mounting affixed to your vehicle and you cannot press anything on your phone or touch your phone in any way. You should have your navigation set up before you start driving your vehicle.
What happens if I get caught using a phone while driving and accumulate all of my demerit points?
If you are caught using a phone while driving and it means that you accumulate all your demerit points you will be served with an Excessive Demerit Points Notice (EDPN). This means you will have two options:
1) Serve a 3, 4 or 5-month licence suspension (depending on the number of points accumulated), or
2) ‘Double or Nothing’ - undertake a 12-month good behaviour period. You can continue to drive during this period, however you cannot accumulate more than one demerit point or commit any offence which results in a licence disqualification. If you do – your original suspension period will be doubled and you must serve that suspension period. If you choose to elect to undertake ‘double or nothing’ you must do so within 21 days of your EDPN.
A $500/3 demerit penalty will generally only apply if you touch your phone to make an audio call in any way, but your phone is not in a cradle. You will receive this penalty if you are moving or stationary.
Essentially, “parked” means your vehicles is stationary, your gear should be in park and your hand brake should be on. However, the regulations do not specify that your engine must be off and your keys must be out of the ignition.
According to the Road Safety Commission: ‘Police consider a vehicle parked if it is off the road, not in the line of traffic and it is stopped where it is both safe and legally permissible to park’.
This means that having your handbrake on while stationary in a traffic jam is not be considered ‘parked’ and you will face a penalty if caught using your phone.
No – if you touch your phone, the same penalty will apply whether you are driving a moving vehicle, or your vehicle is stationary (but not parked), such as at traffic lights.
The severity of the penalty that is imposed will depend on what you are doing with your phone, rather than what you are doing with the vehicle. The penalty will depend on what you are doing while touching your phone.
This is illegal. If you touch your device while driving to do anything to start, end or change your navigation, even when secured in a mounting, you will receive a $1000 fine and 4 demerit points.
We Can Help
Andrew Williams represents clients in all courts for criminal and traffic related charges. As an experienced lawyer, Andrew is passionate about attaining the best possible outcome for his clients. He is a phone call away and will provide sensible, easy to understand legal advice as well as committed and determined representation on all traffic and driving related matters.
Contact the law offices of Andrew Williams on (08) 9278 2575 or enquire online today to discuss your traffic matter.
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
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