Although the road rules are meant to be the same across Australia, each state does have the power to make rules that apply on in their state.   On 1 November some new Road Rules will come into effect in NSW; the changes are contained in the Road Amendment (Miscellaneous) Rules 2012 (NSW).  One area of interest for the drivers of emergency vehicles is the rule 300 that relates to the use of mobile phones.  A brochure issued by Roads and Maritime Services says:

Use of mobile phones

While a vehicle is moving or stationary (but not parked), a driver may only use a mobile phone to make or receive a call or use the audio playing function:

• If the mobile phone is secured in a fixed mounting; or

• If not in a mounting, use of the mobile phone must not require a driver to touch or manipulate the phone in any way.

All other functions including texting, video messaging, online chatting, reading preview messages and emailing are prohibited.

The new laws make it clear that a driver in a moving or stationary vehicle (unless parked) MUST NOT HOLD a phone in his or her hand other than to pass the phone to a passenger.

Penalty: 3 demerit points (4 in a school zone) and $298 ($397 in a school zone)

NOTE: Learner and Provisional P1 drivers are not allowed to use ANY function of a phone (including hands-free) while driving.

Police and emergency services vehicles

Police and emergency service drivers may continue to use mobile data terminals in the course of their work to receive job allocations, licensing, registration and other important information.

Visual display units in motor vehicles

A visual display unit (including a mobile phone), which is being used as a driver’s aid function, such as a GPS, may only be used in a motor vehicle if it is secured in a fixed mounting. This mounting must be commercially designed and manufactured for this purpose. It must be positioned in the vehicle to not distract or obscure the driver’s view.

Penalty: 3 demerit points (4 in a school zone) and $298 ($397 in a school zone)

A member of the NSW RFS has brought these changes to my attention and says:

Reflecting on these changes there are still some ambiguities around using a handheld radio or even reading a pager whilst driving. We routinely receive jobs via pager (and mobile phone text message) and use a handheld radio to coordinate our response.

This is more an SES problem as individuals call-on and proceed to, say, a road crash.’

The problem with a brochure is it is just that, it is not the law.  The new regulation that will come into force on 1 November is set out below.

 300        Use of mobile phones by drivers (except holders of learner or provisional P1 licences)

(1)          The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:

(a)          the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone:

(i)           is secured in a mounting affixed to the vehicle while being so used, or

(ii)           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, or

(b)          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, or

(c)           the vehicle is an emergency vehicle or a police vehicle, or

(d)          the driver is exempt from this rule under another law of this jurisdiction.

Maximum penalty: 20 penalty units.

Note 1. Emergency vehicle, park and police vehicle are defined in the Dictionary.

Note 2. See rule 299 (2) for examples of driver’s aids.

Note 3. Subrule (1) is not uniform with the corresponding subrule in rule 300 of the Australian Road Rules. Different rules may apply in other Australian jurisdictions.

(2)          For the purposes of this rule, a mobile phone is secured in a mounting affixed to the vehicle only if:

(a)          the mounting is commercially designed and manufactured for that purpose, and

(b)          the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.

(3)          For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if:

(a)          the communication is received automatically by the phone, and

(b)          on and after receipt, the communication itself (rather than any indication that the communication has been received) does not become automatically visible on the screen of the phone.

(3–1)     This rule does not apply to the driver of a vehicle who is the holder of a learner licence or a provisional P1 licence.

Note 1. Provisional P1 licence is defined in the Dictionary and learner licence is defined in the Act.

Note 2. Rule 300–1 provides for the use of mobile phones by drivers who are holders of learner licences or provisional P1 licences.

Note 3. This subrule is an additional NSW subrule. There is no corresponding subrule in rule 300 of the Australian Road Rules.

(4)          In this rule:

affixed to, in relation to a vehicle, includes forming part of the vehicle.

body, in relation to a mobile phone, means the part of the phone that contains the majority of the phone’s mechanisms.

held includes held by, or resting on, any part of the driver’s body, but does not include held in a pocket of the driver’s clothing or in a pouch worn by the driver.

mobile phone does not include a CB radio or any other two-way radio.

use, in relation to a mobile phone, includes any of the following actions by a driver:

(a)          holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle,

(b)          entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone,

(c)           turning the phone on or off,

(d)          operating any other function of the phone.

The relevant rule is 300(1).

  • You may ‘use’ a pone whilst driving provided it is only used to make or receive voice calls  and the phone is either secured in a cradle for that purpose or is not being ‘held’ (and if it is in your pocket or a belt pouch, it is not being ‘held’).  So if you have your phone in your pocket with your hands free kit connected, and it can automatically answer the call, you can receive phone calls.
  • You can use the phone as a visual display unit (eg a GPS) provided the phone is in a commercially manufactured mounting.
  • You can use the phone if the vehicle is an emergency vehicle.  In NSW:

emergency vehicle means any vehicle driven by a person who is:

(a)  an emergency worker, and

(b)  driving the vehicle in the course of his or her duties as an emergency worker. (Road Rules 2008 (NSW), Dictionary).

and

 emergency worker means:

(a)  a member of the Ambulance Service rendering or providing transport for sick or injured persons, or

(b)  a member of a fire brigade, rural fire brigade or the State Emergency Service providing transport in the course of an emergency, or

(c)  a person (or a person belong to a class of persons) approved by the Authority. (Road Rules 2008 (NSW), Dictionary)

These definitions will not be changed by the new, 2012 rules.

A vehicle is an emergency vehicle if it is being driven by an emergency worker in the course of his or her duties.  It includes the worker’s private vehicle if they are using it to respond to an emergency like a road crash if that is in accordance with their duties.  The fact that their vehicle is an emergency vehicle does not give them any exemption from the road rules under rule 306 as that rule requires, before the exemption applies, that if the vehicle is moving, it is ‘displaying a blue or red flashing light or sounding an alarm’ and presumably people driving their private cars do not have either a red or blue flashing light, or a siren.  That does not mean they are not driving an emergency vehicle, just that they don’t fall under rule 306, the general exemption in the road rules.  They will however fall under rule 307 (Stopping and parking exemption for police and emergency vehicles and authorised persons) so the person who responds to a road crash in their private vehicle should not get, or be able to defend, a parking ticket for parking near the crash site, and also will enjoy the exemption under rule 300(1)(c).

It follows that an RFS or SES volunteer that is coordinating a response, or responding to a phone call whilst travelling to a job is exempt and allowed to use their phone.  Of course whether that is a good idea is all together another question.  Using your phone whilst driving is dangerous and it would be prudent, if not required, to have the phone in a cradle and use a hands free kit and not try to send SMS messages, or read them, whilst driving.

The use of hand held radios is not covered by this regulation: ‘mobile phone does not include a CB radio or any other two-way radio.’  There is no ambiguity here, using a CB or other two-way radio is not the same as using a mobile phone and is not prohibited by this regulation.

I would suggest a pager, also, does not fit the definition of a mobile phone even if it uses the mobile network, but that is not clear.  Again, regardless of the law, it would be prudent not to read a pager whilst travelling but it does not appear to be prohibited.

Michael Eburn

29 October.