The term 'mobile phone' doesn't include a CB radio. However, if using the radio causes distraction, drivers could still be prosecuted
Crossed Lines
In June 2007, Justice Tom Gray of the Supreme Court of SA found against an appeal by a contractor over a fine he'd incurred for using a hands-free phone while waiting for traffic lights to turn green. Why did he make this decision, when Australian Road Rule (ARR) No. 300 in 2006 made it legal to use a hands-free phone while driving?
At the time in SA, the state government hadn't ratified and included this road rule in its legal framework.
A press release a couple of days after the ruling indicates the strong reaction the ruling brought: "AMTA (Australian Mobile Telecommunications Association) chief executive officer Chris Althaus said the mobile telecommunications industry was pleased drivers in SA doing the right thing by using a hands-free mobile phone would no longer be penalised following the clarification of the issue by the state government."
Irrespective of these decisions, there is a grey area in what's legal with mobile phone usage when driving. The Supreme Court of SA's decision was based on an interpretation of another ARR, which requires a driver to be fully attending to the road. It was held that the driver was fined for pressing a button to take a call while he was waiting at a red light.
The Australian Federal Police addresses the issue on its website in reference to policing in the ACT, as follows:
- Can I use my hands-free phone? If you can work your phone without holding it, then yes.
- What about if it's in a cradle? Again, if you don't hold the phone, you're fine. Pushing buttons on a phone that's in a cradle or on a steering wheel or handlebars is not prohibited.
- So is using a hands-free not dangerous then? Using a hands-free phone is distracting. You still risk prosecution for failing to have proper control of your vehicle. If you have an accident and are using a hands-free phone you could still be charged with various offences depending on the circumstances.
- Can I text? If you have to hold your phone to text, you can't do it. Neither can you use Internet or video technology.
- Can I use my phone between my shoulder and my ear? Absolutely not. This still counts as holding the phone to make or receive a call.
- So can my passengers use their mobiles while I'm driving? Yes.
- I'm stuck in a traffic jam, what then? The ban still applies. The ban applies when driving and driving includes time stopped at traffic lights or other hold-ups when a vehicle is expected to move off after a short while. Your vehicle must be parked before you can use your phone.
- What if I'm driving and my phone rings? Not good enough. Let the call ring and use your phone when you've parked. Better still switch it to voicemail before driving.
- But I have to use my mobile for my job. You can't use your hand-held phone while driving, full stop.
- I've heard two-way radios can still be used, is that true? Yes, the term "mobile phone" does not include a CB radio or any other two-way radio. However, if using the radio causes distraction drivers could still be prosecuted depending on the circumstances.
- Surely making an emergency call is OK? There is no exemption for calls to 000. Park first!
Learners, probationary
Fact Sheet 8 - Driving and Mobile Phone Use – prepared by The Shopfront Youth Legal Centre in Darlinghurst, NSW, says, "If you have a P2 or full licence you may use a hands-free phone, only if you are sure that you can talk and have proper control of your vehicle at the same time. If you cannot keep control of your vehicle, you could be charged with negligent driving or a similar offence."
Learner and probationary drivers in the state of Vic can not use mobile phones. The internet site for Victorian Legal Aid states, "Learner and probationary drivers can't use their mobile phones at all while driving (including SMS and hands-free)."
It's puzzling that there's a risk of prosecution for using a hands-free mobile phone while driving, but use of other communications devices are accepted as legal. Do we even know what the definition of hands-free is? If pushing a button is such a distraction that invites prosecution, then does this mean that one may not touch the horn, adjust a seat belt or turn on the windscreen wipers?
If you can work out what the actual legal status is for mobile phones when driving, then you're smarter than most. Is it the law that's an ass, is it those who make them, or those who enforce such patently inconsistent rules?