Two policing changes to road traffic law in South Australia are intended to bolster the enforceability of existing laws. Whether they will alter drivers conduct or just raise more dollars for State coffers however remains to be seen.

We are masters at adding to the statute books in order to create media moments for politicians, with little or no return to the public. Additionally any law reform usually fails to allow for any further funding for legal aid or added resources for the courts, but that is another question.

SPEED CAMERAS

The first reform is that in true Big Brother style, we have installed cameras to detect those who use phones whilst driving. The programme is expanding, with further cameras planned. At present SA Police have installed these mobile detection cameras in five locations around metropolitan Adelaide, with two more locations under immediate consideration.

Some are placed at or near controlled intersection, and risk detecting drivers who use their phones while stationary at road traffic lights. During the first three months of what was a testing phase, police say that they made no less than 71,044 detections from 6,794,050 vehicles, which seems extraordinary. That however amounts to just over 1% of the driving population of surveilled, which puts things into perspective.

At present we are in a grace period. We will, if detected, receive a warning letter with an indication of what would have been imposed as a fine, had it not been for the existence of the grace period. Those fines are at least $540, plus a $99 Victims of Crime Levy, together with three demerit points. That regime will commence on September 1.

Do the maths. That equates to over $45m raised in just three months. With the addition of further cameras the State may be raising in the order of $200m+ from the South Australian driving public, per annum, with these measures. And that is likely just the beginning.

Will this have any impact of motor vehicle accident and corresponding injury and death? At present, we don’t know how many of the 71,044 detections were of motorists who were stationary waiting for the light to turn green. There have also been earlier ‘sting’ operations involving plain clothed police detecting mobile phone use by drivers stationary at traffic lights.

Albeit such drivers may cause inconvenience to those behind if they do not move off from their stationary position in a timely manner because they are distracted by their mobile phone, little harm is likely to come from someone using a mobile phone whilst stationary. That is all the more so if the vehicle is stationary because the driver is waiting by the roadside to pick someone up, and is using a phone app, for instance, to read. Yet that constitutes an offence if the engine is left running to say heat or cool the car. The problem with the offence is its ‘one size fits all’ approach.

Another element to take into consideration is the complexity of the modern car and its driving cockpit. The opportunity for distraction from all number of permanent features in a car, such as satnav GPS, screens, music applications, and buttons and controls for all number of things is considerable, and unrelated in any respect to the use of the mobile phone.

Further, there is also the fact that the definition for a mobile phone in South Australia does not include a CB radio, nor a two-way radio or other like communication devices. To cap it off, use of a mobile phone is lawful as long as it is through voice command, however that can be distracting in itself.

‘Use’ of a mobile phone has a broad definition. It includes in essence touching a mobile phone whilst driving. Use of a mobile phone includes turning it on or off, entering or placing anything other than by use of voice into the phone, sending or looking at anything that is in the phone or operating any other function of the phone. ‘Driving’ a vehicle ‘includes [to] be in control of the steering, movement or propulsion of the vehicle’, which is similarly broad, and in practice amounts to being in the driver’s seat with the engine running, even if stationary.

The inconsistent aspect of our laws is that many functions of a mobile phone, such as GPS or music apps, can be transferred onto a screen within a car before use, and then used perfectly lawfully on that touchscreen (except by P-plate drivers), as long as we do not drive without due care and attention.

Obvious inconsistencies in the law, as well as penalising conduct that whilst annoying likely has little or no adverse impact to public safety, like using a mobile phone whilst stationary,  is bound to cause some cynicism amongst the public as to the true purpose of the laws.

Undoubtedly though, mobile phone use has the capacity to distract drivers whilst in motion – and that ought to be our real target. Thus cameras monitoring and penalising mobile phone use whilst a driver is in motion, especially on a highway, may be regarded by many as reasonable. It would assist in maintaining public confidence if South Australia Police would tell us what fraction of drivers charged with mobile use were vehicles in motion. That would give us an assurance that the efforts are directed at ensuring public safety, rather than being the latest cash grab by public authorities.

All that said, unless you are a complete dill, you would anticipate that motorists will quickly learn where static cameras are and not use mobile phones in their vicinity. Needless to say there is always some who don’t learn. Three drivers were caught a total of 19 times each. Say no more. But whether static cameras will really lead to an overall reduction of mobile phone use, other than in the camera surveilled areas, remains to be seen.

DRUG DRIVING

The second imminent reform to our traffic laws is in relation to the definition of drug driving. Present laws enable police to test for, and detect drugs or alcohol, that a driver may have taken or ingested. If above the prescribed limit, positive tests may result in road traffic charges being laid before the courts, and penalties imposed by the courts of steep fines, mandatory disqualification, and in some instances, imprisonment.

Interestingly, the laws do not only apply to drivers of cars and motorbikes, but also to riders of animals, such as horses and camels, and to drivers of boats and bicycles. They also apply to drivers of electric scooters, however there has been no concerted attempt to test people using alternate forms of transport. If someone is charged in those circumstances it is usually fortuitous on the part of police.

Until now, the testing of drugs in South Australia enabling police to charge a person with drug driving have been limited to cannabis, methamphetamine and MDMA. In 2025, South Australia police will commence testing drivers roadside for the presence of cocaine as well, increasing their testing procedures, and introducing a new device which they say can detect the presence of cocaine in a driver’s oral fluid. It is understood that the penalties for driving with cocaine in your oral fluid will be the same as they currently are for cannabis, methamphetamine or MDMA.

If you have an earlier offence for drink or drug driving, a positive test for cocaine will result in your offence being considered a second or subsequent offence, even though the earlier offence did not involve cocaine. A second or subsequent offence will attract higher penalties, longer disqualification periods, and potentially imprisonment.

Being found guilty of such an offence may also result in court ordered drug dependency testing before a driver is permitted to apply to receive their driver’s license back again.

Research conducted by the university of Adelaide and SAHMRI, suggests that cocaine use has increased considerably since 2007 to 2019. Usage increased from 1.3% of the population to 2.5%, within that period of time. In 2019, the national average usage was 4.2%, so South Australia was mercifully behind the curve. However, that data is dated by five years, and there is plenty of anecdotal evidence of increased cocaine use in South Australia, particularly amongst the more affluent members of our society, although drugs do not discriminate.

With any new drug or drink-driving regime, particularly when the law requires the testing to be conducted in a prescribed and very exacting way, there may be a period of time within which the courts are asked to rule upon whether or not tests of this nature have been conducted lawfully or unlawfully. However, for any recreational cocaine user, the writing is on the wall. Cocaine will be treated in exactly the same way as cannabis, methamphetamine and MDMA. Watch this space, as other prescribed drugs may be added to the list.

There is irrefutable evidence that driving when compromised by drugs or alcohol leads to a significantly greater risk to the driver, for their passengers, and for other road users. Drink and drug driving should not be tolerated, and it is quite right to expand testing to include cocaine, given its insidious and dangerous effects.

There is also a hint that although cannabis, methamphetamine and MDMA might be regarded as used more frequently by those of lower socio-economic means, cocaine has always been regarded as the drug of the affluent, thus there is some element of social justice that is achieved by its inclusion in the list of banned substances whilst driving. One law for all.

Our laws continually change to meet societal expectations, and most parliamentarians cannot run the risk of not appearing to care about law and order, even though our statistics have generally been on a downward trend for a long period of time. Specifically in relation to fatalities from motor vehicle accident, we have fallen in Australia from a high of 100,000 per population per year of 30.4 in 1970, to 4.8 in 2023.

Whether or not installing cameras to charge stationary drivers for mobile phone use at traffic intersections is going to make any real difference, other than to line State coffers, is a genuine question. Having cameras on highways may assist to some extent. However, including cocaine in the list of substances that drivers will be drug tested for by police, is fair enough. No one should be above the law, and anyone who has taken alcohol or drugs on board before driving is a danger to all of us.

If you are on the receiving end of an expiation notice for mobile phone use, or charged with a drink or drug driving offence, you are entitled to seek and receive legal advice, as is any person in our society in respect of any offence, whether we approve of the alleged conduct or not. Lawyers will advise without fear or favour, even though parliamentarians will always be partisan.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia