Can a Driver Face Penalties for a Passenger’s Use of a Mobile Phone?

Using a mobile phone while driving is one of the most common traffic offences in New South Wales, and indeed across the nation.

The rules that apply to the conduct have been tightened in recent years, with the scope of what it means to use a phone broadening, and fines as well as demerit points increasing to reflect what has become known as an act that can distract and thereby endanger drivers and other road users.

And while it is known and accepted that handling your phone while driver is prohibited, except in limited circumstances, there’s a less understood road rule that can lead to a driver being penalised for the use of a mobile phone by their passenger.

The rule

In that regard, Regulation 299(1) of the Road Rules 2014 (NSW) makes it an offence for the screen of a mobile phone – or another device such as an Ipad, laptop or, tablet etc – to be visible to a driver or that would otherwise be a distraction.

The Regulation states:

“A driver must not drive a vehicle that has a television receiver or visual display unit in or on the vehicle operating while the vehicle is moving, or is stationary but not parked, if any part of the image on the screen:

(a) is visible to the driver from the normal driving position, or

(b) is likely to distract another driver.”

The definition is extremely broad, some might say unrealistically so.

It means that not only can a driver face penalties for not putting his or her own phone away from view – such as inside a bag or pocket – he or she may equally be fined and accrue demerit points for a passenger beside them surfing the internet, posting on social media or watching a video – provided this “is visible” to the driver from their normal position (without turning around to the back passenger seats, for example). 

A passenger making an audio call by holding the phone to his or her ear or playing music without video is perfectly ok, provided a visual display cannot be seen by the driver.

The penalty that a driver currently faces for the offence is $344 and 3 demerit points, or $457 and 4 demerits in a school zone.

Exceptions to the rule

Regulation 299(2) provides that the above rule does not apply if:

Driving in a bus lane and the visual display unit is, or displays, a destination sign or other bus sign,

Or:

The visual display unit is used as a driver’s aid and either:

• is an integrated part of the vehicle design, or
• is secured in a mounting affixed to the vehicle while being used,

Or:

The visual display unit is a mobile data terminal fitted to a police or emergency vehicle,

Or:

The driver is otherwise exempt by the operation of a law.

In the context of mobile phones, this means you have not committed the offence if a phone is securely mounted to an approved mounting device on the dashboard within the vehicle. 

Drivers are encouraged not to have their phones anywhere close by while they are driving, not on their laps, or on the console in the middle of the car – and while each jurisdiction in Australia has slightly different rules, they are generally similar. 

What does the law say about using a mobile phone while driving?

The rules that apply to handling a mobile phone while driving – including where the vehicle is stationary but not parked – depend on whether a person is an unrestricted licence holder, in other words, an L or P Plater.

Unrestricted licence holders are permitted to make or receive audio phone calls, and use music or audio functions, if the phone is either secured in a cradle fixed to the vehicle or operated without touching the phone (eg by Bluetooth), can use navigation if it is in a cradle fixed to the vehicle, and use wallet functions only if the vehicle is stationary and off the road (eg in a car park, drive way or drive thru).

L and P Platers are prohibited from doing any of the above under any circumstances.

It is not, however, an offence for a driver to hand a mobile phone to a passenger.

The fines and demerit points that apply to handling a mobile phone while driving have increased significantly in recent years, and the offence can see a driver have their licence suspended, which can affect their ability to perform their jobs and fulfil other commitments.

But it is important to be aware that the prosecution bears the onus of proving this offence beyond a reasonable doubt, and it is advisable for those who are unjustly penalised for these offences to consult a lawyer for advice about seeking to have the penalty notice withdrawn, defending the matter in court or, in certain circumstances, appealing any resulting driver licence suspension.

Safe driving

To avoid being distracted on the road, Transport for New South Wales recommends that drivers:

• Use a mobile phone cradle fitted in your vehicle,
• Get Bluetooth set up or installed in your vehicle,
• Get a passenger to answer your messages/calls,
• Put your phone on silent,
• Activate the ‘Do not disturb while driving’ function  ,
• Tell others not to call or text you when you’re driving,
• Divert your calls to voicemail, and
• Pull over only when and where it’s safe and legal to do so. 

With regard to the last point – you should make sure that your vehicle is parked properly and the engine is turned off, before you use your phone. 

Driver distraction is a major killer on our roads 

The road rules around mobile phones are harsh because mobile phones present a real danger. 

Driver distraction reduces your awareness of your surroundings and increases your chances of having a crash, because reaction times are slowed, the driver is in danger of failing to see hazards – animals cross the road, potholes, cars slowing down, traffic signs and signals, and other road users, including cars, pedestrians cyclists and motorcyclists. 

Research also demonstrates that a person using their phone while driving quadruples their probability of collision. 

In 2018, the New South Wales Government invested heavily in a network of sophisticated mobile cameras which are reportedly capable of detecting illegal mobile phone use from as far as a kilometre away, and issuing fines without drivers being aware.