CAMERA DETECTED ENFORCEMENT FOR SEATBELT OFFENCES
Hon Brent Mickelberg
Minister for Transport and Main Roads
1 William Street
BRISBANE QLD 4000
Dear Mr Mickelberg,
By Email: transportandmainroads@ministerial.qld.gov.au
CAMERA DETECTED ENFORCEMENT FOR SEATBELT OFFENCES
Background
1. The Queensland Council for Civil Liberties (‘QCCL’) is a not-for-profit organisation that promotes and protects civil liberties and individual rights for Queenslanders.
2. This submission arises from a complaint we have received from a member of the public about what she alleges are deficiencies in the cameras used to detect and prosecute cases of failing to wear and incorrectly wearing a seatbelt. I emphasise that this submission is not made on behalf of the complainant. QCCL does not represent individuals. This submission is informed, in part by information supplied to us by the complainant but reflects the QCCL’s broader concerns about due process rights particularly with the increasing use of AI technology in our Courts and government generally.
3. Our correspondent was charged after a photograph was taken originally showing her passenger not wearing her seatbelt correctly. The principal complaint of our correspondent is that the photo produced by the prosecution at the hearing was of such poor quality, that it could not be ascertained from the image whether the passenger was wearing a seatbelt or not. Our correspondent was nonetheless informed by the Magistrate that the effect of the evidentiary provisions of the Transport Operations (Road Use) Management Act 1995 (‘TORUM’) was that unless our correspondent could positively establish that the camera was faulty, that the photograph was evidence of the commission of the offence. The Magistrate is reported to have said ‘the presumption at law is that everything in the photo is evidence of what happened.’ Our correspondent was duly convicted.
4. We enclose herewith, various photographs supplied to us and from the media, along with demonstration photos from Acusensus. We submit the photos essentially demonstrate the plausibility of our correspondent’s claims.
5. The following submissions will contend that:
(a) the presumption in favour of the prosecution is misinterpreted by the Courts and/or is effectively insurmountable according to that interpretation;
(b) the accuracy of the technology and the Acusensus’ testing methods do not justify the readiness with which the human reviewers are issuing infringements;
(c) that compliance with the provisions in question requires breaches of other road safety laws and obligations; and
(d) the penalty is excessive compared to similar schemes in other jurisdictions and road offences with comparable fines in Queensland.
The submission will conclude with some requests and recommendations.
The effect of the presumption in favour of the prosecution
9. It is our position that reverse onus offences are never justified, as the burden of proof should always be borne by the State, with its superior powers and resources. However, since this is unlikely to be accepted, we submit that if members of the public must have the burden of proving their innocence, then the evidentiary standard must be possible for a private citizen to feasibly challenge, and judges must have sufficient discretion to ensure a fair trial. The scheme as currently implemented satisfies neither of these criteria.
10. While it can be conceded that the statement ‘the presumption at law is that everything in the photo is evidence of what happened’ might constitute a vernacular description of the presumption, it is submitted that it is an inaccurate one.
11. The relevant presumptions are that a photograph submitted by the prosecution with a valid calibration certificate is evidence of ‘the things depicted in the image/video’ [1] for camera-detected offences generally, and ‘if the image or video depicts the driver or passenger not wearing a seatbelt, the driver or passenger is taken not to be wearing an approved seatbelt’ [2] for seatbelt offences specifically.
12. A plain reading of these provisions suggests that a photograph which is of such poor quality, that it cannot be ascertained whether or not the person in question is wearing a seatbelt correctly, either does not raise the presumption, or must surely displace that presumption.
13. If we are wrong, and the reversal of the onus of proof means that the defendant is guilty, simply because the devices have sent a photograph to the relevant department, regardless of the content depicted in that photograph, unless the defendant can prove that the camera was technically faulty, then this is completely unacceptable.
14. It is unacceptable not just because it upsets the presumption of innocence, but also because the burden it imposes is impossible for the defendant to meet in a trial.
15. Prosecutors appearing on behalf of your Department have a duty of fairness and to assist the Court. We ask what submission is standardly made to Court in these cases on the effect of section120D
16. The difficulties for the Defendant are compounded by some further matters that have been brought to our attention.
17. Firstly, we note that when an defendant person expresses an intention to challenge the infringement, they are informed that they face a potential costs order of $8,000.00 to $12,000.00 for an ‘expert’ from Acusensus to give evidence on the accuracy of the system for the prosecution.
18. Secondly, we observe that the technical specifications for Acusensus’ ‘Heads Up’ are unpublished. Presumably, any demand to disclose information on the accuracy and operation of the system would be refused by the Acusensus on the basis of commercial-in-confidence.
19. This means the defendant, most likely unrepresented and self-funded, is obliged to question the accuracy of a device about which the defendant has been denied access to all material information, pitted against a fully informed ‘technical expert’ from the company. It is difficult to see how such a person could be accepted by the Court an expert witness, given that they are an employee of the owner of the system with a financial incentive to maintain that the system is accurate.
20. As Justice Deane remarked in Dietrich v the Queen ‘it is a fundamental prescript of the criminal law of this country that no person shall be convicted of a crime except after fair trial according to law.’ This right is now enshrined in section 31 of the Human Rights Act. The right of a fair hearing, before an impartial and human arbiter, is a fundamental aspect of natural justice. Judges must have discretion to do justice. Moreover, that the final arbiter is a human being, possessing both reason and empathy, is a strength of the common law system. To replace the judgement of the bench with that of a machine is to render absurd the concept of ‘fair trial according to law’ as it has always been understood in Australia.
21. It might be said that there should be an appeal. However, for persons of limited means given the amount of the fine and the costs involved this is hardly a realistic option.
The Accuracy of Technology and Administrative Bias
22. Of course, we do not say that the machines alone are deciding on the commission of the offence at present. We acknowledge there is a human review stage, where employees of the government, peruse the photos. We are concerned that these officers are giving the devices the benefit of the doubt, and referring equivocal images to the infringement stage, on the mistaken view that the devices are infallible.
23. Firstly, we note that there is very recent evidence that the system is prone to error. As you are no doubt aware, in 2023 an urgent review was commissioned into the camera detected offence program after the system incorrectly applied double demerits to road users who were detected committing seatbelt offences twice in one year. [3] The acting TMR director-general Sally Stannard is reported to have said that the issue stemmed from the system’s inability to confirm a passenger’s age. [4] The fault led to at least 1843 instances of incorrectly applied double demerits with 626 wrongful license suspensions. The loss of a license can have disastrous effects, including loss of livelihood.
24. Secondly, the devices seem to be regarded as if they were no different to fixed speed cameras. To determine the speed of a motor vehicle requires a simple mathematical process, whereas the observation and identification of an object is a far more complex and emerging technology. It has simply not reached the stage of development that it can be trusted uncritically.
25. Thirdly, we are concerned that the testing methods used by Acusensus to demonstrate the accuracy of its system do not ensure the devices operate accurately in practical conditions. In the absence of any disclosure of the testing standards it is not clear that the devices allow for glare or contrast or weather. Our correspondent for example informs us that the passenger was wearing a garment with a large collar which may have been dangling over the sash of the belt. It seems feasible that an AI camera aimed at the driver’s side on a highway in a 110km zone might struggle to correctly identify a detail of this kind. In any event, the enclosed photographs indicate that the photographs on Acusensus’ website and photographs submitted by defendant persons are of a very different quality.
26. As a single test deems these devices to produce accurate results for an entire year from the date of the test,[5] it is important that the public can have confidence that the tests actually establish the efficacy of the devices to the level of certitude that such a presumption warrants.
27. Finally, we understand that the officers who review the images decide whether to refer them for enforcement on the basis of ‘business rules’ which are not published. [6] The decision-making process, therefore, from the detection stage, to the review stage is utterly inscrutable. On the basis of what we have been told about the approach of the Courts to this legislation, by the Court stage, there is very little the Magistrate can do for the defendant absent positive proof that the specific device malfunctioned.
28. The obligation on a Court to give reasons for its judgement is said to be one of the fundamental protections that the common law provides against arbitrary and oppressive punishment. For Queenslanders to have confidence in the criminal justice system of this State, they must know both that the technology is accurate and understand the process of reasoning by which the human administrator has arrived at his or her decision to issue an infringement.
29. We of course do not allege that the relevant officers are doing anything improper. It is more likely that they have an understandable bias toward trusting the technology. But in the absence of publication of the ‘business rules’ many Queenslanders will assume that the government is encouraging revenue-driven enforcement.
30. Accordingly, we call upon the government to publish the “business rules”.
Coherency with Other Duties
31. Our correspondent informs us that the Magistrate stated that the passenger probably had the seatbelt sash below the shoulder and that our correspondent ought to have been checking periodically whether the seatbelt was being worn ‘properly.’
32. On the trip in question our correspondent was travelling down a high-speed section of the Gold Coast Motorway, a road which is no stranger to serious collisions.
33. While it is desirable that road users wear seatbelts, a driver’s paramount duty is surely to the people in front of them on the road. To require drivers continually to look away from the road and at their passengers, to assess whether each passenger is wearing a seatbelt perfectly at all times, is inconsistent with this duty and simply unsafe.
34. Furthermore, the public must be rationally capable of complying with all legal obligations simultaneously. An incoherent legal system, where the citizen is issued contradictory commands, is an arbitrary one.
35. For example, it is well known that in a running-behind accident, the rear vehicle’s liability in negligence is essentially a foregone conclusion. Would there be any defence in saying ‘I turned to make sure that my passenger had the sash over the shoulder, like this Magistrate said I should?’
36. We further submit that to make the driver liable for an adult passenger’s conduct is unfair and offends basic principles of criminal responsibility.
The Severity of the Penalty
39. We observe that the current out-of-Court infringement is $1,209.00. We note, that there is no proposal to reduce the fine.
40. No doubt significant harm flows from not wearing a seatbelt. However, this penalty needs to be considered in the light of the following facts.
41. We note that the penalty is approximately three times that in NSW [7] and Victoria [8] for the same offence. This extreme disparity is likely to cause some Queenslanders question the motivation of the scheme.
42. On the spot fines, i.e. the fine imposed by the issuing of the ticket with a right to go to Court challenge where the offences have been committed, were introduced to reduce the burden on the Courts. At the time these changes were made the fines were sufficient to mark the communities, disapproval of the relevant offence but not so large that people might feel they had been wrongly deprived of their right to their day in Court. These new penalties do raise this question. Members of the community are concerned that they are being unfairly subject to significant fines without due process.
Requests and Recommendations
43. Having regard to the foregoing our requests and recommendations are as follows:
(a) that a review is held into both the efficacy of the devices and the testing methods used by Acusensus and the findings published;
(b) that the evidentiary provisions are amended to remove the reversal of the onus of proof, or alternatively, amended to ensure procedural fairness is accorded the defendant, such as by clarifying that the image must clearly display that the offence has been committed for the presumption to arise;
(c) that independent experts, not employees of Acusensus, are called upon to give evidence in any trial, and that the costs of this are made reasonable;
(d) that detailed information is published on the functionality of ‘Heads-Up’ and any similar future devices so that legal practitioners, members of the public and defendants can understand how the devices work;
(e) that the ‘business rules’ by which the human reviewers are deciding to issue infringements are published;
(f) that it be made mandatory by legislation, and not by mere regulation that a human being, specifically an employee of the public service and not a private company, checks each image before an infringement is issued;
(g) that adult passengers who do not wear a seatbelt are criminally responsible for their own conduct and not the driver;
(h) that the fine for this offence be brought in line with the other states.
[1] TORUM, s 120(2)(b)-(c).
[2] TORUM, s 120D(2)(c).
[3] https://statements.qld.gov.au/statements/98643
[4] https://www.brisbanetimes.com.au/politics/queensland/design-fault-leaves-almost-2000-drivers-with-incorrect-double-demerits-20230908-p5e30e.html
[5] TORUM, s 120(2A)(b).
[6] https://johnmenadue.com/monday-mornings-in-Court-seven/.
[7] $410.00: https://www.nsw.gov.au/driving-boating-and-transport/demerits-penalties-and-offences/offences/search-offences-and-penalties.
[8] $395.0: https://www.vic.gov.au/fine-amounts-and-demerit-points.