A NSW Parliamentary Committee has recommended the Legislative Council should proceed to consider the Transport Amendment (Mobile Phone Detection) Bill 2019, including any amendments in relation to the reverse onus of proof, the use of artificial intelligence and privacy.
NSWCCL agrees strongly that mobile phone use whilst driving is a serious issue which needs to be addressed to protect the safety of the community.
We do not, however, support this Bill on the basis that it unjustifiably reverses the onus of proof and fails to provide adequate protections to assure the public that the information captured by the cameras is used for the sole purpose of prosecuting mobile phone offences.
NSWCCL also has concerns about the inherent risks of using AI to identify criminal behaviour given the lack of transparency as to the underpinning algorithms driving the assessment.
We welcome the Committee’s recognition of these concerns in their report and single recommendation.
The Bill should be amended significantly to address these problems before the Legislative Council approves it.
The reverse onus of proof
The Bill, as it is currently drafted, provides that if a photograph taken by an approved traffic enforcement device ‘shows an object held by the driver of a motor vehicle, the object is presumed to be a mobile phone held by the driver for the purposes of a mobile phone use offence’.
A defendant may “rebut” this presumption by establishing, on the balance of probabilities, that the object was not a mobile phone.
Minister Constance, when introducing the Bill, indicated that the technology used would produce ‘high-resolution images…[which] clearly depict drivers holding objects that have the form of a mobile phone and are being held in a manner consistent with using the functions of a mobile phone’ and that ‘an infringement notice will not be issued if there is doubt that the object is a mobile phone’.
On the basis of the Minister’s assurance as to the quality of the images and the circumstances in which infringements would be issued, reversing the onus of proof is unnecessary as the photo should, on his own reasoning, prove the object is a phone, beyond a reasonable doubt.
Where there is no good policy reason established to depart from the onus of proof lying on the prosecution to prove a criminal offence, there is no justification for a departure from this fundamental principle.
The additional disputes in court that this Bill is likely to attract would be an unwelcome strain on the already stretched resources of the Local Court.
Artificial intelligence decision making
Stephen Blanks, on behalf of NSWCCL, gave evidence to the Inquiry that the implementation of AI requires consideration of ethical frameworks and the way the algorithm actually works. We remain concerned as to whether, in this context, the AI decision making unintentionally discriminates against certain groups of people or whether it operates objectively across the population as a whole.
More information and greater transparency in relation to the underlying algorithm is essential before the Bill is passed by the Legislative Council.
Inadequate protections around privacy and use of data collected
NSWCCL is concerned at the lack of any clear proposals in the Bill as to how the captured data may be used, accessed, stored or when it will be deleted and by whom.
This issue must be addressed explicitly in the Bill before it is passed by the Legislative Council.
Role of Privacy Commissioner
The Committee Report makes critical comments in relation to the assistance and guidance provided to it by the NSW Privacy Commissioner. It notes that the Commissioner “said she supported the bill, subject to strong privacy controls”, but failed to provide useful guidance:
In terms of the specific privacy issues raised by the bill, the Privacy Commissioner’s evidence was of minimal assistance to the committee. Despite being asked directly, the Commissioner was unable to inform the committee which privacy principles would be impacted by the bill. (p13)
In light of the substantial privacy concerns raised by stakeholders and inherent in a program that relies on high definition photographic images taken of the inside of people’s motor vehicles it was disappointing to receive limited assistance from the Privacy Commissioner. Given her role as the principal advocate for privacy protection, the Parliament is entitled to expect more from this office. (p25)
This apparent failure to provide useful guidance to the Committee is disappointing and concerning. It may be that the Office of the Information and Privacy Commission is under resourced. Whatever the cause- it is an unsatisfactory situation and should be addressed by the relevant Minister.
NSWCCL urges the NSW Legislative counsel not to pass this Bill unless significantly amended to fully address the acknowledged issues discussed above.