[LINK] Mobile phone use set to be banned in vehicles - nanny state??

Steven Clark steven.clark at internode.on.net
Wed Feb 9 19:24:34 AEDT 2011

On 08/02/11 07:43, Philip Argy wrote:
> Part of the problem is the way the current law is enforced.
yes. and not the least because enforcement is largely arbitrary -
dependent upon being 'caught'.

>   The definition
> of 'driving' includes sitting behind the wheel of a stationary vehicle if
> the engine is running, so pulling to the side of the road, with the
> transmission in Park and the handbrake on, talking on your phone,
> technically still leaves you liable to a fine.  That is absurd and although
> most police wouldn't do it but I know of cases where they have fined people
> who are only pulled over and stopped with their foot on the brake.
> Similarly, being stopped in traffic or at the lights, even if they have just
> turned red and you want to dial in a number while there is no prospect of
> moving for some minutes, makes no difference.
i have a vague recollection that the legal basis of this comes from an
insurance case, where the court decided that having keys in the ignition
was enough to say the car was being 'driven'. so the occupant/s of the
car, not wearing seatbelts at the time, lost out on insurance - despite
the *other* car/driver being found at fault - because they were not
wearing seatbelts while 'driving'.

[as an aside, it annoys me that media report accidents as if it were the
cars that 'had' the accident, not the drivers ... "this afternoon, two
cars collided", "the car came off the road and hit a tree" ...]

> I can't say I've seen people actually sending a text message while driving
i have.

> but why isn't that covered by the requirement to be properly in control of a
> vehicle
it is - but that general provision has to be proved in court. whereas
this kind of regulatory offence needs only the say-so of the reporting
officer. and delivers a direct financial result, the fine. the other
requires a trial/hearing, and leads to a relatively trivial penalty
(when compared to the cost of the trial/hearing in court.)

>  - negligent driving and related offences are also perfectly adequate
> to deal with these kinds of things, and are technology neutral.  However,
> the police don't want to have to give evidence and risk a magistrate taking
> the view that no harm was done, so we get more and more strict liability
> offences which require only simple factual evidence without evidence of the
> danger or circumstances.  
it's an issue of evidence - how do you prove that the driver was
'texting' at the time of the accident. phone records are usually far
more precise than accident reports regarding time-of-incident. it's more
the futility of putting forward evidence that defence can have either
disregarded or simply challenge on relevance, than police 'not wanting'
to give evidence.

also, if there is another person in the car, it's easy to claim that
*they* were using your phone.

both of these will plague attempts to prosecute this kind of offence.
and encourage police demands for more video surveillance tools to ensure
they have the time-stamped, geo-coded, audio-visual 'proof' to back
their claims/observations.

the rapid rise in strict liability offences is coming from parliament.
it's much cheaper for everyone in the executive branch. a cop just has
to pull you over and tap a screen a few times and you're billed.

as i've said before: unless a fine also risks your license, this does
nothing to stop serial offenders (whom we suppose are intended to be
dissuaded by the costs) - they tend to add the fine to their fee
structure, or find a way to write them off as business expenses (i've
seen that done in the past). and the peeps who can't afford the fines
just clog up the courts - either the fines payment offices, or the minor
matters hearings.

few believe that it'll happen to them, and when it does, they're more
inclined to rail against the system for being so unfair, than do much to
change their behaviour. it's the same for parking fines.

> Even worse than the lazy legislation on mobiles is the obsessive war on
> speed, and the reduction of speed limits on even major 'secondary' roads to
> 50 km/h is a case in point.  Soon we'll be back to requiring a man with a
> red flag to walk in front of every vehicle!   When will pollies understand
> that it's speed that is too fast for the circumstances that is dangerous,
> and that out of context absolute speed limits are just illogical.  They're
> just convenient for low-intelligence enforcement authorities to get
> convictions, especially on freeways at 2 am and at the bottom of hills.
it is much easier to measure speed, than assess the cognitive capacity
of the driver. it's a simple matter of which is easier to 'prove' (and
easier to automate). it's probably also easier to encourage police to
'catch' speeding drivers than provide the resources they'd need to find
and prosecute actual dangerous behaviour - to fund real criminal
intelligence and on-the-ground investigators.

[the trend towards data-driven 'intelligence' appears to be running in
the same direction as loyalty cards and direct marketing: assuming that
the patterns their algorithms find in their data-soup are *caused* by
the behaviours they assume explain those patterns. (those patterns often
being determined by themselves in the first place ...)]

we all rail against the stupidity of hard and fast speed limits: though
if you're prepared to go to court (aka have the money to burn) you can
present your case that you were acting reasonably and safely in the
circumstances - but those opportunities are/can vanish(ing) under regs
as well ...

[NOTE: i spent a chunk of the 2000s in legal practice in criminal
defence and in civil litigation. i've handled *lots* of strict liability
matters - especially speeding fines, 'minor' traffic offences, and
parking fines! and more than a few indictable offences as well. the
former are bread and butter for criminal defence. and many people are
angrier about being caught 'doing' them than they are for the more
serious offences.]

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