Two police changes to road traffic laws in South Australia are intended to strengthen the enforceability of existing laws. Whether they will change drivers’ behavior or just bring more money into the state coffers remains to be seen.

We are masters at amending laws to give media attention to politicians who bring little or no benefit to the public. Moreover, any reform of the law does not usually provide additional funding for legal aid or additional resources for the courts, but that is another question.

Radar cameras

The first reform is that, in true Big Brother style, we have installed cameras to detect those using their phones while driving. The program is being expanded, with more cameras planned. Currently, the South African Police Service has installed these mobile detection cameras at five locations in the greater Adelaide area, with two more locations currently under consideration.

Some are installed at or near controlled intersections and risk detecting drivers using their phones while stopped at traffic lights. During the first three months of this trial, police said they made no fewer than 71,044 detections from 6,794,050 vehicles, which seems extraordinary. However, that only represents just over 1% of drivers monitored, which puts things in perspective.

We are currently in a grace period. If we are caught, we will receive a warning letter indicating what the fine would have been without the grace period. These fines are a minimum of $540 plus a victim levy of $99 and three penalty points. This rule will come into effect on September 1st.

Do the math. That’s over $45 million raised in just three months. With the installation of more cameras, the state could collect over $200 million annually from South Australian motorists through these measures. And that’s likely just the beginning.

Will this have an impact on car crashes and the injuries and deaths that result from them? We don’t currently know how many of the 71,044 arrests involved drivers waiting at a traffic light until it turned green. There have also been previous “sting operations” where plainclothes police officers have found drivers using their cell phones at traffic lights.

Although such drivers may cause inconvenience to vehicles behind them if they fail to move off in time because they are distracted by their mobile phone, someone using a mobile phone while stationary is unlikely to cause harm. This is even more so if the vehicle is stationary because the driver is waiting at the side of the road to pick someone up and is using a phone app to read, for example. However, this is an offence if the engine is left running to heat or cool the car, for example. The problem with this offence is its one-size-fits-all approach.

Another aspect to consider is the complexity of modern cars and their cockpits. The risk of distraction caused by the numerous permanent functions of a car such as navigation devices, screens, music applications and buttons and controls for all kinds of things is considerable and has nothing to do with using a mobile phone.

Additionally, the definition of a mobile phone in South Australia does not include a CB radio, two-way radio or similar communication devices. To top it all off, using a mobile phone is legal as long as it is done via voice commands, but this can be distracting in itself.

“Using” a mobile phone is broadly defined. It essentially includes touching a mobile phone while driving. Using a mobile phone includes turning it on and off, entering or placing data on the phone, sending or displaying data located on the phone, or operating other functions of the phone. “Driving” a vehicle “includes controlling the steering, movement, or propulsion of the vehicle,” which is similarly broad and in practice means sitting in the driver’s seat with the engine running, even when the vehicle is stationary.

The inconsistency of our laws is that many functions of a mobile phone, such as GPS or music apps, can be transferred to a screen in the car before use and then used on that touchscreen perfectly legally (except by drivers with P plates), as long as we do not drive without due care and attention.

Apparent inconsistencies in the law, as well as the punishment of behaviour that, while annoying, is likely to have little or no negative impact on public safety, such as using a mobile phone while it is idle, will inevitably lead to cynicism among the public about the true purpose of these laws.

There is no doubt that mobile phone use can distract drivers while driving – and that should be our ultimate goal. Therefore, many believe it is sensible for cameras to monitor and penalise mobile phone use while driving, particularly on motorways. It would help to maintain public confidence if South Australia Police told us what proportion of drivers accused of using mobile phones were driving while the vehicle was moving. This would give us reassurance that efforts are being directed at ensuring public safety, not just the latest money-making scheme for the authorities.

That said, unless you’re a complete idiot, you’d expect drivers to quickly learn where static cameras are and not use mobile phones near them. Of course, there are always those who don’t learn. Three drivers were caught 19 times in total. That’s all there is to say. But whether static cameras will really lead to a general reduction in mobile phone use, apart from in the areas monitored by cameras, remains to be seen.

DRUGS ON THE DRIVER

The second upcoming reform to our traffic laws concerns the definition of driving under the influence of drugs. Current laws allow police to test a driver for drugs or alcohol and determine whether they have taken or drunk them. If the level is above the prescribed limit, positive tests can lead to a traffic violation charge, which can result in heavy fines, mandatory disqualification from driving, and in some cases, jail time.

Interestingly, the laws apply not only to car and motorcycle drivers, but also to riders of animals such as horses and camels, as well as boaters and cyclists. They also apply to electric scooter riders, although there has been no concerted effort to test people using alternative modes of transport. When someone is charged in these circumstances, it is usually a fluke on the part of the police.

Until now, drug testing in South Australia, which allows police to charge a person with driving under the influence of drugs, has been limited to cannabis, methamphetamine and MDMA. From 2025, South Australia Police will begin testing drivers for cocaine at the roadside, stepping up their testing procedures and introducing a new device that can supposedly detect the presence of cocaine in a driver’s oral fluid. It is believed that penalties for driving with cocaine in oral fluid will be the same as currently for cannabis, methamphetamine or MDMA.

If you have a previous conviction for drunk driving or driving under the influence of drugs, a positive cocaine test will count your offense as a second or subsequent offense, even if the previous offense did not involve cocaine. A second or subsequent offense carries greater penalties, longer suspension periods, and possibly jail time.

If found guilty of such an offense, it may also result in the court ordering a drug test before the driver can apply to have his or her license reinstated.

Research from the University of Adelaide and SAHMRI suggests that cocaine use increased significantly between 2007 and 2019. Use rose from 1.3% of the population to 2.5% during this period. In 2019, the national average use was 4.2%, so South Australia was fortunate to lag behind. However, this data is five years old and there is ample anecdotal evidence of increased cocaine use in South Australia, particularly among the more affluent members of our society, despite drugs not discriminating.

With any new drug or alcohol testing procedure, especially when the law requires that the tests be conducted in a prescribed and very precise manner, there may be a time limit within which the courts must decide whether tests of this type were conducted lawfully or unlawfully. However, for any recreational cocaine user, this is clear. Cocaine is treated the same as cannabis, methamphetamine and MDMA. Stay tuned as more prescription drugs may be added to the list.

There is irrefutable evidence that driving under the influence of drugs or alcohol poses a significantly higher risk to the driver, their passengers and other road users. Driving under the influence of alcohol or drugs should not be tolerated and, given the insidious and dangerous effects, it is entirely right to extend testing to include cocaine.

There is also a suggestion that while cannabis, methamphetamine and MDMA are more commonly used by people of lower socioeconomic status, cocaine has always been considered a drug of the wealthy, so adding it to the list of substances prohibited when driving achieves a certain level of social justice. One law for all.

Our laws are constantly changing to meet societal expectations and most parliamentarians cannot risk giving the impression that they do not care about law and order, even though our statistics have been generally declining for a long time. In particular, road deaths in Australia have fallen from a peak of 100,000 per capita per year (30.4 in 1970) to 4.8 in 2023.

Whether installing cameras to penalize drivers for using cell phones at intersections really does anything, apart from filling the state coffers, is a fair question. Cameras on highways might help to some extent. However, it is fair to add cocaine to the list of substances that drivers are drug tested for by the police. No one should be above the law, and anyone who has taken alcohol or drugs before driving is a danger to us all.

If you receive a ticket for using your mobile phone or are charged with drink-driving or drug-driving, you have the right to seek legal advice, just as any other person in our society does for any other crime, whether or not we approve of the alleged conduct. Lawyers will advise you without fear and without favour, although parliamentarians are always biased.

Morry Bailes is a senior lawyer and corporate consultant at Tindall Gask Bentley Lawyers, a past President of the Law Council of Australia and a past President of the Law Society of South Australia.