Today’s question relates to the use of radios and telephones whilst driving.  A correspondent, from Queensland, asks

A debate that often comes up is about using CB radios or Mobile phones while driving.

I believe but without any reference to written acts that if the user has an accident then they would be charged with “Failure to drive with due care and attention!”

Is that true?

Is that what the offense is called?

Please use Qld as a reference if your wish.

It’s not true that ‘if the user has an accident they will be charged with …’  What a person is charged with, after an accident or even whilst driving, depends on what the police think they can prove.  A person who has an accident whilst using their phone may be charged with anything ranging from negligent driving to manslaughter depending on the circumstances and the consequences.

It is however an offence to use a mobile phone whilst driving.  The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) is the law that adopts the National Road Rules in Queensland.  It says (at r 300)

The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone that the driver is holding in the driver’s hand while the vehicle is moving, or is stationary but not parked.

The maximum penalty is a fine of 20 penalty units.  A Queensland penalty unit is $126.15 (Penalties And Sentences Act 1992 (Qld) s 5A and Penalties And Sentences Regulation 2015 (Qld) r 3) so the maximum fine is 20 x $126.15 which equals $2523.00.  If dealt with by way of infringement notice (ie on the spot ticket) the penalty is 3 penalty units or $378.45 (State Penalties Enforcement Regulation 2014 (Qld) Sch 1). The offence also attracts 3 demerit points or, if it is a second offence within one year, 6 demerit points (Transport Operations (Road Use Management–Driver Licensing) Regulation 2010 (Qld) rr 75 and 78A).

It should be noted that the rule does not apply to the driver of an emergency or police vehicle. Social media loves photos showing a police officer on the ‘phone usually with commentary about ‘one law for them and another for us’.  As r 300 shows, there is indeed one law for ‘them’ and another for people who are not driving an emergency or police vehicle.

It should also be noted that r 300(2) says ‘mobile phone does not include a CB radio or any other two-way radio’ so it is not an offence to use your two-way radio whilst driving.

It is also interesting to note that r 300 (2) says:

use, in relation to a mobile phone, includes any of the following—

(a) holding the phone to, or near, the ear, whether or not engaged in a phone call;

(b) writing, sending or reading a text message on the phone;

(c) turning the phone on or off;

(d) operating any other function of the phone.

A mobile phone does not include a radio, but what it does include is not defined.  I have an ipod in my car which I can use as a GPS, to play music, and to send messages.  I can’t use it to make a phone call.  It is a ‘mobile phone’?  Literally I don’t think it is but I think a court, having to interpret the Act and considering the mischief that it is meant to avoid would say that it is.  One reason is that if the Act meant literally a phone, then excluding CB radios would not be necessary.  If ‘mobile phone’ means ‘a telephone with access to a cellular radio system so it can be used over a wide area, without a physical connection to a network’ then a CB or two-way radio is not a mobile phone so specifically excluding them from the definition is unnecessary.  The fact that the Parliament did expressly exclude them, means that they intended or understood ‘mobile phone’ could be more than what is technically a mobile phone.  It’s an argument I’ll try to avoid having.

As for driving without due care and attention, that is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld) s 83.  That section says:

CARELESS DRIVING OF MOTOR VEHICLES

Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence.

The maximum penalty is 40 penalty units ($5046.00) or 6 months imprisonment.

It should be noted that because that offence is in the Transport Operations (Road Use Management) Act 1995 (Qld) the exemptions for the drivers of emergency and police vehicles set out in the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) rr 300 (discussed above), 305 (Exemption for drivers of police vehicles) and 306 (Exemptions for drivers of emergency vehicles) won’t be relevant.  So a police or emergency services officer could be charged with careless driving for using a phone, even though he or she could not be convicted of the specific offence of using a mobile phone whilst driving.

Conclusion

One can’t ever make a definitive statement such as ‘if the user has an accident then they would be charged with “Failure to drive with due care and attention!”.’  What a person may be charged with, after an accident, would depend on all the circumstances.  Both careless driving and using a mobile phones are offences contrary to Queensland law and there are equivalent offences in every other state and territory.