Section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 has been amended to insert a new definition for a mobile phone.
Previously, section 300 provided a definition of mobile phone as:-
mobile phone does not include a CB radio or any other two-way radio.
The amendment now provides the following definition:-
Mobile phone –
- includes a mobile phone
- Whose telephone function is not capable of being used; or
Example for subparagraph (i)—
a mobile phone whose telephone function is not capable of being used because the phone does not have a SIM card or other means of connecting to a cellular radio system
- that is being used for a function other than its telephone function; but
Example for subparagraph (ii)—
a smartphone being used as a music player or camera
- Does not include a CB radio or any other two way radio
The amendment appears to have been made to address the decision of Her Honour, Magistrate Balic in Department of Transport and Main Roads v Konrad Gordon Gallaher [2022] QMC 2.
In that decision, Mr Gallaher was found not guilty of an offence against section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 after the Magistrate was not satisfied beyond a reasonable doubt that the device which was depicted in a photograph as being held by Mr Gallaher while he was driving was a mobile phone. Her Honour considered the dictionary definitions of a mobile phone as a portable cellular telephone and a telephone as a system or process for the transmission of sound or speech converted into electrical or radio signals to a distant point and an electrical device consisting of a microphone and a receiver with a handset, used to connect to this system.
Gallaher who was self-represented gave evidence that the device was an iPod 6 and being used as a portable music player. Although there was no evidence to the contrary, the Magistrate found that the device was an iPhone based on her own knowledge. This is despite iPod Touch 6 devices being virtually identical to some iPhones.
The effect of this amendment is that drivers will not be able to rely on a defence to a charge under section 300 that the device they are using or holding does not have the functionality of a mobile phone to make or receive calls.
