This is a common traffic offence in New South Wales.

The offence is found in Regulation 300 of the Road Rules 2014 which states,

The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless – it is being used to make or receive an (audio phone) call or to perform an audio playing function AND THE BODY of:

  • The phone is secured in a mounting affixed to the vehicle OR
  • Is not secured in a mounting affixed to a 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 anything on the body of the phone or otherwise manipulate any part of the body of the phone OR
  • The phone is functioning as a visual display unit that is being used as a drivers aid AND
  • The phone is secured in a mounting affixed to the vehicle, OR
  • The vehicle is an emergency vehicle or police vehicle OR
  • The driver is exempt from the rule under another law of the jurisdiction.

What Does This Actually Mean?

The first aspect is that you simply can’t use the mobile phone while you are driving.

That means, while you are driving or stationary (but not parked) the simple act of picking it up and moving it from one location to another, say from the seat to the middle console while driving.

An exception is if you have picked it up and are handing it to a passenger in the vehicle.

Being stationary would include sitting stopped in gridlock on the M2 or waiting at the traffic lights for a green signal.

You can only touch your phone if you’re parked and not stationary.

An example may be if you go to the shops, positioned the car (as best you can) between the parking lines, put the handbrake on and turned off the engine, or you have pulled to the side of the road, put the car in park, applied the parking break and turned off the engine.

There are exceptions to touching or using your mobile phone when you are stationary, such as if you are going through the McDonalds Drive Through (which is a road-related area) and you are using it to pay for your Big Mac Meal  – in that circumstance, you are using the phone as a payment device for goods and services: Regulation 300(1-1)(b)(i) of the Road Rules 2014.

You are also not committing any offence under the Regulation if the device receives a communication automatically and after receipt of the communication, it does not become automatically visible on the screen of the phone.

However, if you have a device such as an iPod or smart-watch connected to your phone and it notifies you of an email or text message, and that shows on the screen of the watch, then that could be an offence because the District Court has found that any Bluetooth Device could be considered a ‘mobile phone’ because it is capable of conveying or activating a ‘carriage service’: Crescente (Lionel) v DPP [2009] NSWDC 129 :

“Any device which activates a carriage service so that there can be a transmission of a telecommunication and is portable constitutes a mobile phone. If the Bluetooth device is one capable of being held in the hand and capable of conveying or activating a carriage service then it constitutes a mobile phone. What other functions it does, does not matter”.

That means any device that has a Bluetooth function could be deemed a mobile phone if the circumstances arose where a police officer observes you applying a function to your smartwatch, for instance. One might also speculate that if it is an ANT+ activating device, that too could be considered a mobile phone.

Learner and Provisional Drivers (P1 or P2) cannot use the Bluetooth Function on their phones while driving or riding – This means that Apple CarPlay is not allowed to be used, nor can they stream music from their phone through their car stereo system.

What is “Use” of a Mobile Phone?

This includes any of the following actions by a driver –

  • 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,
  • 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,
  • Turning the phone on or off,
  • Operating any other function of the phone.

Transport for New South Wales also has information on their website under Know the Rules

use mobile phone while driving

What to do now – Call Richard 

If you have been issued an infringement notice of Using a Mobile Phone, don’t risk going it alone call McDonald Law now on (02) 8824 4736 or 0411460034 to speak with one of Sydney’s most experienced traffic lawyers.

If it is more convenient for your situation we will even come to you, or we can meet in one of our comfortable conference rooms or offices.

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