Ms JO HAYLEN (Summer Hill) (16:16:26): The Road Transport Amendment (Mobile Phone Detection) Bill 2019 amends the Road Transport Act 2013 to expand provisions outlawing the use of mobile phone devices whilst driving. It shifts the onus of proof from enforcement agencies to drivers, establishing the presumption that objects held by or resting on the driver in a photograph taken by a mobile phone camera are deemed to be a mobile phone for the purposes of enforcement. In plain language, if a mobile phone camera takes a picture of a driver with an object on their lap or in their hand it will be up to the driver to prove that it is not a mobile phone if they want to avoid loss of demerit points and a fine. The bill also amends the Road Rules 2014 to exempt drivers from committing an offence if they do so under instruction by police.
Labor supports measures to improve road safety, as foreshadowed by the shadow Minister for Rural Roads. However, we will seek to address deficiencies in the bill by moving amendments in the other place. We look forward to comprehensive consideration of the bill through the Committee process. I will focus on two clear deficiencies with the bill. First, the bill shifts the onus of proof to accused drivers, which fundamentally bucks core tenets underpinning our judicial system. Secondly, the Opposition objects to the blatant revenue-raising element in the bill. The Minister for Transport and Roads is ignoring best practice in failing to install proper warning signage before and after mobile phone cameras.
As the Minister reported in his second reading speech, 158 crashes were recorded in New South Wales between 2012 and 2018 where there was a clear link between the accident and the use of a mobile phone. Some 212 people were injured and, tragically, 12 people lost their lives. Protecting the lives of drivers and their families is paramount, as is the wellbeing of pedestrians and cyclists who are often caught up in these accidents. Road accident statistics indicate that accidents involving cyclists and pedestrians have risen by 1 per cent in the past 10 years in Australia. Cyclists and pedestrians are respectively involved in 3 per cent and 14 per cent of all accidents. The same statistics show that roughly 5 per cent of all accidents are caused by drivers not paying attention, including those using mobile phones devices while driving.
It is fair that those who are found illegally using their mobile phones should be subject to penalty. For decades we have heard the messages that drivers need to "Get their hand off it" and that no call or text message is worth the risk to your life or the lives of the passengers in your car. Those awareness campaigns are important and they should continue in conjunction with enforcement. Decades of experience show that this approach works. People will remember countless speeding campaigns such as the "pinkie" campaign that told male drivers in particular: "Speeding. No one thinks big of you". Those campaigns are an important element in changing driver behaviour.
The Government held a pilot program to test mobile phone cameras from January to June this year. In that time 8.5 million vehicles were checked and more than 100,000 people were detected using their mobile phones illegally. It is clear that action must be taken and that this problem is significant. I note that in his second reading speech the Minister assured the Parliament that the Government tested the global market and adopted the best available camera technology to conduct the trial early this year. Reportedly, high-definition cameras will be placed at 45 hotspots across the State, at a total cost of $88 million. They are able to detect phone use irrespective of the weather, light or the speed of the driver. Having the best available technology is a good thing. However, it must be used in conjunction with best practice.
The bill undermines some of the tenets of our legal framework—I mentioned earlier the onus of proof. In this case, rather than a police officer or Revenue NSW needing to prove that an object in the driver's hand or lap is a mobile phone, the driver will need to prove otherwise. Our judicial system rests upon the critical tenet that any accused person is innocent until proven guilty. The current drafting of the bill undermines that tenet and I believe it should be reconsidered. The Law Society of New South Wales has indicated the need for amendment in this area. In its material in relation to the bill it states:
The provision as proposed abrogates the prosecution's responsibility to prove an offence and instead places an unnecessary and unfair evidentiary burden on an individual to prove that they are innocent.
In addition, we are concerned that this amendment may, in practice, lead to additional disputes in court, resulting in an increase in work and costs for the Local Court.
I hope that the Committee process in the other place addresses those concerns. As I stated earlier, Labor will be seeking amendment in this regard. Practical considerations also need to be given to implementation. A massive number of drivers engage in this unsafe practice. Given the results of the trial, there is a strong likelihood that Revenue NSW and other agencies will see a huge increase in pressure on their processing capacities. In fact, the Government has said that it has a plan to expand progressively the capacity of those agencies to conduct 135 million vehicle checks by 2023. In the push to process those offences I am concerned that oversight will slip and innocent drivers may be penalised wrongfully.
I note that the Minister gave assurances in his second reading speech that photographs will not be the only screen used to enforce offences and that the final arbiter will be an appropriately trained officer. I raise the same concern I did earlier: Given the extraordinary influx of fines and offences that evidence suggests we will see following enactment of the bill, will the Minister guarantee that the department will be able to meet the increased demands on processing capacity and workload? I contend that this is going to be very difficult. If we want a system that is based on integrity and fairness, the last thing we need is for the onus of proof to be shifted onto drivers.
The bill should be about changing driver behaviour and saving lives. However, the community has rightly raised concerns that this may not be the Minister's prime objective here. The Minister clearly sees a huge opportunity to line the State's coffers in what might be the biggest revenue-raising exercise we have seen in quite some time. For reference, the current penalty for using a mobile phone while driving is five demerit points or $344—not an insignificant fine. The bill does not currently provide for any signage when a driver approaches a mobile phone detection camera or after they pass a mobile phone detection camera. Advisory signage is a critical component of raising road safety standards and awareness. It is crystal clear that their inclusion in this program would improve road safety across the board. The NRMA has been the strongest advocate on this front. It developed the key 2017 recommendations on which this legislation is based. In response to the failure by the Government to include warning signage in the scheme, the NRMA said:
We want people to change their behaviour behind the wheel—not three weeks later when they get the fine in the mail. Warning signs are a vital part of the enforcement and education mix.
If the Minister is serious about changing driver behaviour—and I think all members would agree that this is about changing driver behaviour—then he should heed advice from the experts and ensure that warning signage is included before and after a driver passes a mobile phone detection camera.
Finally, I note the issue raised by my colleagues about privacy. The community is rightly concerned about the Government's blatant disregard of privacy, particularly about information pertaining to road infringements. The technology requires photographs to be taken of drivers' laps from above and there is little clarity around how the photographs will be accessed, stored and disposed of. This is important because the positioning of the camera means that photographs are taken from above sensitive body areas, including down drivers' shirts and of their laps. We need to know who will see those photographs, where they will be stored and how they will be disposed of. I am pleased that the Privacy Commissioner is involved in the development of the scheme in this respect but urge the Minister to clarify the Government's response in his speech in reply to the bill before the Parliament this afternoon.
Let us protect the safety of drivers and road users. Let us use best-practice technology in education and changing driver behaviour and not miss the opportunity to make sure that we strengthen the integrity and fairness of our road rules, and not at the expense of revenue raising. Let us get this legislation right.