With mobile phone detection cameras deployed, a number of drivers complain that they have been penalised even when the phone is not in use.
The penalty itself is contained in section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 https://www.legislation.qld.gov.au/view/html/inforce/current/sl-2009-0194 – otherwise known as the “Queensland Road Rules”.
Section 300 provides that a driver must not use a mobile phone while the vehicle is moving or is stationary but not parked. The Transport Operations (Road Use Management) Act 1995 defines “Park” as meaning “incudes stop the vehicle and allow the vehicle to stay, whether or not the driver leaves the vehicle”. There is a question over whether a vehicle has to be turned off to be “parked” in particular a manual vehicle. Also it should be noted that there are further restrictions for drivers on provisional licenses.
In any event, section 300 clarifies that:
- The expression “mobile phone” includes a phone which cannot be used as a telephone (ie if it is in flight mode or the sim card removed) or is being used for a function other than the telephone function (eg for the camera or as a music player).
- The word “use” means to hold the phone in the driver’s hand or rest (or partly rest) the phone on any part of the driver’s body, whether or not the phone is operating , unless it is in a pocket of the driver’s clothing, or a pouch worn by the driver, and kept in a way that does not allow the driver to operate the phone, or any function of it, other than by using the driver’s voice, and which does not allow the driver to see the fact of the phone while the phone (or a function of it) is operating.
There are further provisions in section 300 relevant to using the phone for the production of identification or to obtain or use money (eg in a drive through situation), or for uses of bicycles or personal mobility devices.
So is a smart watch a mobile phone? Unfortunately the regulation does not say what is or is not a mobile phone. It excludes a CB or two way radio, so it clearly isn’t intended to be limited to a traditional telephone. And a smart watch performs the same functions as a mobile phone – calls, texts, emails, media player. And it could be every bit as distracting.
So if one then assumed that a smart watch is a mobile phone, would wearing one offend section 300? Well it isn’t in the driver’s hand. Is it “resting” on the driver’s body, if it is strapped to the wrist? If it is, then wearing a smart watch while driving would be using a mobile phone.
Oddly enough, it has been reported that Queensland Road Rules do not deal with smart watches. that would not necessarily be consistent with a literal reading of section 300, and assumes that a smart watch is not a mobile phone.
The miscellaneous provisions of the road rules (sections 288 to 300E) cover a number of other interesting situations including:
- Sec 293 – the obligations to remove from a roadway things that have fallen from a vehicle, if there is a risk of obstruction or injury;
- Sec 296 – a driver must not reverse a vehicle further than is reasonable in the circumstances;
- Sec 299 – that drivers must not drive if there is a visual display unit in the vehicle operating, if any part of the image on the screen is visible to the driver in a normal driving position, or is likely to distract another driver (excluding driver’s aides);
- Sec 300E – drivers must not interfere with or interrupt the free passage of a funeral procession – which oddly enough was only inserted in 2022.