Under stricter penalties introduced from 1 February 2020, Queensland drivers caught illegally using a mobile phone while driving will receive a $1000 fine and 4 demerit points. Keeping in mind that drivers on an open licence receive a sanction after accumulating 12 demerit points within a 3-year period and all other licence types after accumulating just 4 demerit points, the penalties are significant. But will the changes work to make our roads safer or will they simply raise more revenue?
Relevantly, section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation Queensland provides:
‘Holding’, although not defined in the Act, is ordinarily defined as gripping or grasping. Presumably wearing a watch with phone capabilities will not be ‘holding’ but tapping the watch might be.
Accordingly, the way in which the legislation is drafted suggests that conduct will not be illegal unless the driver has physically picked up, and is holding the phone in their hand.
It could be argued that placing a phone in a dash mount, and tapping the screen to accept calls or change music, would not be in breach of the law but it could be. Similarly, despite subsection 2(b), placing a phone on the passenger seat or in the driver’s lap, and reading a text message would not appear to constitute a breach unless the driver picked up the phone to read it.
On the contrary, if you enter a drive through and use your iPhone to pay for your meal with Apple Pay, you would appear to have broken these laws upon picking up your phone.
It is submitted that the law, as it is currently drafted, is therefore ineffective in achieving its objective of ensuring safer roads. There is no doubt that a person taking their eyes off the road to read a text message, even with both hands on the wheel, is far more dangerous than one who has pulled up at a drive through and opted to tap their phone, rather than credit card, on the eftpos machine. But what of a person who takes their eyes off the road to change the radio or even adjust their air-conditioning? That is not an offence but might have the same effect.
Drivers do get distracted whilst driving but laws cannot be enacted which will prevent all distractions. It is clearly appropriate to introduce a law to punish inappropriate use of mobile devices, as we all too often see people texting while driving. However, the penalties seem too harsh, particularly when there are similar distractions that cannot be avoided. Before introducing these laws, the government ought to have first considered drafting the legislation to redact the requirement that the driver must be holding the device. The provision is unnecessarily restrictive and provides limited further protection to Queensland’s drivers. Instead, in implementing more carefully considered legislation, regard ought to be had to the practical consequences of the law.
James Conomos is the Managing Director of James Conomos Lawyers where he practices in the areas of insolvency, bankruptcy and commercial litigation. If you or your business needs assistance navigating a legal dispute, please do not hesitate to contact him.
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