Can a Driver be Fined if the Passenger is Using a Mobile Phone in NSW?

Poppy Morandin and Jimmy Singh.

NSW Police have reviewed and withdrawn multiple fines given to drivers queueing for coronavirus tests in Bondi, after facing public backlash.

After the recent coronavirus outbreak in the Northern Beaches, record numbers of Sydneysiders visited testing centres, ultimately creating huge queues and long waits as 40,000 aimed to get tested.

During the week leading up to the 19 December 2020, testing numbers almost doubled compared to the previous week.

Motorists received fines after they were found to be using their mobile phones while waiting in lengthy drive-through testing queues, for nearly six-hours in some cases.

The nine people who were fined were stationary in their vehicles at the time of the offence.

The fines prompted the public to label the response as “revenue raising” and displaying a “lack empathy and common sense”, with a member of the public commenting that “this is how you discourage people from getting a test”.

Multiple sources at the scene confirmed that police were allegedly patrolling the queue and fining individuals caught.

The NSW Police then reviewed the decision and ultimately decided that “of the 9 infringement notices issued, 7 were changed to cautions and 2 were reviewed and deemed appropriate to stand.”

Premier Gladys Berejiklian commented that “common sense prevailed, and we always ask for discretion at this time.”

“Nine people were in that category (of being fined), seven of which have been reverted to a caution. Seven of those fines have been revoked but I understand for two of those fines, there were additional issues,” she explained.

An NSW Police spokeswoman confirmed that the two fines remained issued because of mobile phone use and other issues but would not explain what those were.

In NSW, the applicable penalty for using a mobile phone while driving as an unrestricted licence holder is a fine of $349 and 5 demerit points.

The fine rises to $464 if the offence is detected in a school zone.

If the fine is disputed, you may court-elect the penalty notice and take it to the Local Court before a Magistrate. The maximum penalty that a person may face if court elected, and the matter is heard in court, is a fine of $2,200 and 5 demerit points, pursuant to section 300(1) of the Road Rules 2014 (NSW).

Can you Touch Your Mobile Phone While Driving?

In NSW, the driver of a motor vehicle must not use a mobile phone while the vehicle is moving or is stationary but not parked.

Using a mobile phone includes, operating any function of the mobile phone, holding the phone, looking at the screen of the phone, turning off the phone, or using the phone by entering something into it.

Exceptions include, where a phone is being used to make or receive an audio phone call or to play audio, and the body of the phone:

• is secured in a mounting affixed to the vehicle while being so used, or
• 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.

Other exceptions to the rule include where:

• 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,
• the vehicle is an emergency vehicle or a police vehicle, or
• the driver is exempt from this rule under another law of this jurisdiction.

‘L’ or ‘P’ plate licence holders in NSW are prohibited from using mobile phones whilst driving, regardless of whether the device is being held by the driver, is affixed to the vehicle, or is being utilised via Bluetooth or Wi-Fi, under rule 300-1 of the Road Rules 2014 (NSW).

Can a Driver be Fined if the Passenger is Using a Mobile Phone?

A driver in NSW can still be fined with demerit points if the passenger is using a mobile phone if the image or screen from the phone is visible to the driver from the normal driving position or is likely to distract another driver, according to rule 299 of the Road Rules 2014 (NSW).

This carries an on-the-spot fine or penalty notice of $349 with 3 demerit points.

If the offence is likely to distract another driver, the max penalty attracts $349 with no demerit points.

If the matter is court-elected, and heard in court, the Magistrate can impose up to a $2,200 fine, unless he/she imposed a non-conviction section 10 penalty on sentence.

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