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A friend was snapped recently by a NSW mobile phone traffic detection camera driving while holding her phone. Not texting, talking or browsing; touching the device. 

As proof of the illegal activity, the Transport Authority sent her a still image captured by a Big Brother-type camera hovering overhead, also declaring she’d copped five demerit points and a $352 fine. That took her to 13 demerit points, meaning automatic loss of licence. She is challenging the penalty in court. 

Offenders are identified by a pixelated photo, usually shot from the shoulders down, linking them to a separate image of their car registration. The idea of handling a phone in any way while behind the wheel is viewed as a distraction. 

My friend pleaded guilty. Who can argue with a gotcha pic? 

While questions concerning 13 demerit points may be raised over a person’s roadworthiness it’s important to note the nature of offences, how quickly penalties can accrue and whether they are merited.

The eight demerit points she had already clocked up were for sudden speed changes. For example, freeways where speed limits abruptly decrease from, say, 70kph to 40kph, are well recognised speeding fine traps which led to her licence loss. My friend travels long distances for work and most of her penalties were for incremental infringements, coming off freeways around 55kph. But that can earn you three demerit points right there. You can see how quickly a licence can be voided. 

In pleading guilty, litigants have the right to explain their circumstances in court and request leniency; for example, the possibility of no fine or a lesser fine, and no demerit points being enforced. The role of the magistrate is to consider the explanation, apply court discretion and provide reasons for the decision as part of the process.

In her statement to the magistrate, my friend tried to explain her licence was instrumental in caring for her two autistic grandchildren, who live outside Sydney. She specified she has never committed a serious traffic offence. 

At the nub of it, she argued she was not using her phone when the camera detected it. The phone had fallen from its mounted cradle, she had picked it up while stopped at traffic lights and placed it on the passenger seat. She had the required Bluetooth controls for audio and navigation. 

It was at this point the magistrate interjected, effectively blocking her right to explain and barking irrelevant comments such as, “that’s a furphy”. 

Some claim there is a rule for the elite and another for the masses. Remember Kathryn Greiner, then-wife of former NSW Opposition leader Nick Greiner, who was charged with drink-driving in 1987? Her blood-alcohol was more than double the limit but charges was dismissed, prompting an anonymous blogger alleging hundreds of shortfalls in the law to remark: “Under normal conditions, this offence would mean automatic licence loss however her case was dismissed. Obviously automatic licence loss does not apply when the rich and famous are involved.”

My friend, no stranger to public life, had made the ill-conceived judgment of mentioning her impressive credentials and understanding of the judicial system. This apparently served only to aggravate the magistrate whose tendentious sympathies appeared aligned to that of our blogger’s.  

He obsessed over her guilty plea, which had not been contended. Then, in a torrent of invective, he picked up her statement, recited it loudly at breakneck speed, briefly acknowledged her community contributions and abruptly closed the matter, confirming the conviction and increasing the fine to $550 without explanation. He did not ask a single question and there was no opportunity to be heard.  

Was this an inappropriate exercise of court discretion? My friend has appealed to the District Court in the hope of obtaining a fair and reasonable response. 

A former CEO of government departments who has served on tribunals mainly hearing complaints about lawyers’ conduct, she found the court experience not only disempowering, but demeaning. 

The Judicial Commission can examine complaints about the ability and behaviour of magistrates but it does not have the power to discipline them. This disregards addressing the culture, the oversight of the performance of magistrates, ongoing training, including listening skills, and their accountability. For those unrepresented litigants with little understanding of their rights, the system hardly appears illuminating or just. 

The law is the law, of course, but it’s interesting to note that unlike speed and red-light camera warnings, the fixed and mobile trailer-mounted cameras are not signposted. And in this murky space that deploys artificial intelligence to identify if a driver is using a device while driving, we are assured by the NSW Transport Authority that people’s privacy is protected. 

“The program will ensure only the minimum amount of data required to detect and enforce offences is retained. Images captured by cameras will be reviewed automatically by artificial intelligence software; those which do not contain evidence of an offence will be permanently and irretrievably deleted,” it states.  

Can we be sure our personal data is protected? Privacy is a major concern for 70 per cent of Australians who want more control over their personal information. These days, your personal details — which are extraneous in many circumstances — are a prerequisite to probably every formal phone and in-person inquiry. If your query crosses several departments seeking the correct one, the rigmarole is invariably repeated each time. No surprise that breaches recorded by the Office of the Australian Information Commissioner resulting from human error accounted for 30 per cent of the total in 2021. Still, they were down 34 per cent compared to the previous six months. 

Since NSW’s mobile phone detection rollout in December 2019, which aims to cut fatalities by 30 per cent, the contentious initiative has been adopted across Australia with various parameters and regulations enforced. 

Personally, I find the covert-like mobile and fixed cameras a source of anxiety. There is something sneaky and insidious about the way this law is applied, an invisible, ubiquitous presence, surveilling, spying. 

That NSW has seen more than a 20 per cent drop in road fatalities relating to mobile phones doesn’t mean warning signs would necessarily diminish that result. If you are texting you probably wouldn’t see the sign, anyway. As it stands, there is a whiff of a police state mentality or, at the least, an overzealous, opportunistic bureaucracy seeking to swell state coffers. 

The figures are indicative: a whopping, near $60 million was netted from mobile phone-related offences between January and December 2020, 9News reported. That compared to $8.6 million for the previous year, with monthly fines more than tripling since the changes were introduced. 

Plenty of outraged offenders have appealed the charges, many proving cameras wrong with misidentification of phones for objects such as wallets and food they were holding at the time. If you can hold a sandwich or a wallet while driving, why not a phone? 

Distractions come in all forms: take, for example, the screeching kids you’re ferrying in your car as you try to drown them out with a blaring radio. Comparably, it’s strange that taking half a second to adjust the angle of your phone is an unforgiveable distraction. 

It seems almost obscene that in the first two months of establishing mobile phone-detecting cameras, more than $7 million in fines from about 21,000 NSW motorists were issued, representing a 1500 per cent revenue spike in mobile phone offences.

9News revealed 11,790 mobile phone fines were issued in March 2020 alone, with a further 9000 drivers caught the following month despite the fact fewer cars were on the road during COVID-19 lockdowns.  

No surprise that many, querying the absence of phone camera detection warnings that are given for speed and red light cameras, claim the scheme is a pure revenue-raising exercise. 

For the record, NSW rules dictate unrestricted licence holders can only operate a phone while driving without touching it. It must be secured in a cradle fixed to the vehicle, with Bluetooth controls. If it’s a hand-held phone, it can only be operated while parked off the road. During double demerit periods, such as public holidays, the fine remains the same but the penalty increases to 10 demerit points. 

Are most people aware it’s illegal to drive while touching their phone, say, for navigation purposes, or retrieving or moving the device while stopped at traffic lights?

Deborah Cassrels was The Australian’s first Bali-based correspondent and has written extensively on refugees, politics, terrorism, crime and social justice. She was nominated for a Walkley Award in 2016 for her work on terrorism in Indonesia. Her first book, a memoir about her journalism in Indonesia, titled “Gods and Demons”, was published in 2020. 

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