Why the mobile phone detection legislation won’t work

By Sebastian De Brennan|22 December 2019

The NSW government has pushed ahead with its controversial mobile phone detection legislation, writes Sydney barrister Sebastian De Brennan.

No one would quibble with the need to do more about car crashes caused by mobile phone use. Mobile phone use while driving is associated with at least a fourfold increase in the risk of having a casualty crash. Indeed, according to government figures, from 2012 to 2018 there were at least 158 casualty crashes involving a driver or rider using a handheld mobile phone on NSW roads, resulting in 12 deaths and 212 injuries.

These figures are bound to be conservative; experts suspect that mobile phones have been involved in other motor vehicle accidents although because of under reporting and the destruction of evidence at collision scenes, this can be difficult to substantiate.

The NSW government has been a pioneer in the use of mobile phone detection cameras and technology. Using these cameras, it conducted a pilot study from January to June 2019.

Over 8.5 million vehicles were “checked” and over 100,000 drivers were detected using their phones illegally. While euphemisms such as checked have been invoked by our politicians to describe these cameras, we should not be under any illusions as to what this means. Sociologists such as Michel Foucault warned decades ago that surveillance is not only on the rise but is deeply embedded, if not omnipresent, in our communities.

And in the old days it was the province of independent judges to determine the guilt or innocence of those that transgressed the law. Nowadays cameras using artificial intelligence (developed by private corporations) automatically analyse images and identify those that are likely to show a driver using a mobile phone which are then reviewed by “appropriately trained personnel”.

Of significant concern to law reform and advocacy groups, the legislation reverses the onus of proof by stipulating that an object being held by a driver, as taken by a mobile phone detection camera, is deemed to be a mobile phone unless the accused driver can establish that it was not.

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This departure from the presumption of innocence has been justified on the basis that, without it, countless challenges by drivers caught by the cameras could be mounted in the Local Court of NSW.

This is a curious justification. If the camera technology and artificial intelligence are as sophisticated and accurate as the NSW government contends, then there would be little utility in wasting one’s time and money in seeking to challenge it in the Local Court. Commentators have also pointed to other problems with the legislation including privacy concerns and the spectre of further revenue-raising.

The real problem with this legislation is that it is destined to fail. In debating the legislation, NSW Parliament acknowledged that the statistics for the use of mobile phones has not gone down despite several education and awareness campaigns to let people know how risky the behavior is.

Mobile phone use is ubiquitous. This is not drink-driving. The idea that law can simply be used in a punitive way to curb mobile phone use in the same way as was done with driving under the influence is misguided.

Countless studies internationally tell us that people are addicted to their handsets. That horse has bolted. As early as 2011, a study by the University of Maryland, demonstrated the growing reliance that the younger generation has on technology and how it has become central to their lives.

Many young people reported mental and physical symptoms of distress, addiction, depression, dependency and anxiety, when reporting their experiences of endeavouring to go unplugged. One participant in the study compared not having her mobile phone as akin to having a missing limb. Handset use among all generations but younger generations in particular is not simply a problem that can be legislatively overcome.

If the NSW government were serious about reducing mobile phone road-related deaths and injury, the installation of mobile phone cradles in all vehicles but particularly those of young drivers would be a good place to start. So too would be the installation of dictation texting technology (such as that used by Apple CarPlay) to ensure people are not reaching for their phones in the first place.

A truly responsible government might even use the $176 million obtained from red light and speed cameras in the 2018-19 year to fund that installation.

Until that happens expect further mobile phone road-related deaths and injuries and for the legislation to be dismissed as yet another form of revenue-raising.

Sebastian De Brennan is a Sydney Barrister specialising in criminal and traffic law.

Why the mobile phone detection legislation won’t work
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