Letter to Department of Transport concerning camera detected seatbelt offences

The General Manager (Land Transport Safety and Regulation)

Department of Transport and Main Roads

PO Box 673

Fortitude Valley QLD 4006

ltsr.correspondence@tmr.qld.gov.au

Dear Madam

We refer to your letter reference MC149224.

Since we received your letter, it seems to us that the public disquiet about the seat belt program regime has increased. We have received an increasing number of complaints and media inquiries about it.

In the circumstances, we consider it appropriate to revisit the issue.

Our concerns continue with respect to this law and the artificial intelligence aspect of its enforcement.

1.         Onus of Proof

In relation to the law itself we return to one of the concerns addressed in our previous letter, the reversal of the burden of proof. We also raise a new concern of general principle, making one person liable for the voluntary independent conduct of another.

We simply do not accept that this legislation does not reverse the onus of proof.

Your letter under reply says this:

The reversal of onus applies only to the extent where necessary for camera enforcement. That is:

·         to establish the identity of the driver under section 114; and

to prove elements of the offence that are not possible to detect by camera under section 120D, but also not material to the core offending behaviour. This includes:

o   that the vehicle was moving, or stationary and not parked;

o   that the vehicle was fitted with approved seatbelts; and

o   only if the image depicts the person to be not wearing a seatbelt, the person is taken to be not wearing an approved seatbelt.

The evidentiary provisions within section 120 do not reverse the onus of proof in relation to the elements of a seatbelt offence. As explained throughout this response, provisions that enable images to be submitted as evidence do not reverse the onus of proof. The prosecution must still prove beyond a reasonable doubt that the image depicts a person not correctly wearing a seatbelt and the Magistrate must ultimately be satisfied of this to convict the alleged offender.

The legislation is clear:

An image or video produced by the prosecution, complying with subsection (2AA), purporting to be an image or video that was properly made by a photographic detection device of a matter happening at a specified location and time is evidence of the following matters —

(a) the image or video was made of a matter happening at the specified location and time;

(b) the accuracy of the image or video;

(c) the things depicted in the image or video (section 120(2))

What most people want to do is to contest the proposition that the photo shows them or the passenger not correctly wearing a seatbelt. The effect of this provision must be that once a photo is tendered which appears to not show a correctly fitted belt the onus shifts to the defendant to rebut that proposition.

Reporting suggests that at least one Magistrate agrees with us.: Gary Moorhead Monday mornings in Court Seven[1].

We invite you to provide us with a reference to any Court decision which supports your understanding of the law.

2.         Vicarious liability

The law generally does not impose a duty in criminal law to act positively to prevent harm from being caused to others. There are exceptions where legal duties to act have been created[2]. One of these exceptions is where a special or protective relationship exists, such as in the case of a parent in respect of a child.

This point can be illustrated by the cases concerning passengers. Where a passenger is not the owner or possessor of the vehicle and is not in the position of supervisor they will not generally have the right to control the driver and so an omission to prevent the criminal driving will not make them an accomplice[3]. On the other hand, a driving instructor can be liable where they are aware that the learner is driving negligently and fails to take action to stop them[4].

One of the reasons for not imposing positive criminal law duties is that the corollary of such a duty must be a requirement on the person to intervene actively to prevent the commission of an offence. The obvious difficulty this causes in the situation under consideration is that it potentially creates a safety risk by requiring drivers to take their eyes off the road to check their passengers. Fortunately, this issue is being mitigated somewhat by the application of the Courts of section 24 of the Criminal Code. However, it remains a concern to us.

3.         Accuracy of System

You say:

In relation to system accuracy when glare, contrast or weather is present, before these devices were approved for use on Queensland roads, they were trialled in both portable and fixed modes for several months as part of evaluating the suitability and accuracy of the technology.  During the trial, thousands of images were scrutinised by TMR to ensure the accuracy of the images during different environmental conditions, including glare, reflection and weather.  Again, if glare, reflection or weather impact the adjudicator's ability to clearly see an offence has been committed, then no infringement is issued. 

But we have seen a number of images that are clearly affected by glare or reflection.

As Brown and Raj say[5]:

In contrast with Acusensus' claims that their system produces ‘high resolution, prosecutable evidence', there are hundreds of examples of extremely poor-quality seatbelt infringement images on social media. A review of these images suggests that image quality is frequently better on the driver's side of the vehicle. On the passenger side, there are often areas of bright light or over-exposure, and some objects in those parts of the image (including seatbelts) may reflect more light than the maximum capabilities of the imaging sensor, and cannot be seen at all. This problem of over-exposure has been recognised by overseas researchers, who report that detection systems do not perform well for light coloured vehicles in bright light conditions. This even if it cannot be seen there either, and an infringement notice is issued to the driver. In Queensland, most seatbelt infringements (nearly 75%) are for incorrect wear rather than a complete failure to wear one. It follows that most contested infringement notices in QLD are for incorrect wear.

4.         Denial of fair trial

QCCL argued for greater transparency about the evidence concerning the efficacy of the devices and testing methods used by Acusensus.

You responded with a number of propositions.

First you said 

The seatbelt cameras are regularly subject to a thorough program of maintenance and undergo comprehensive accuracy checks before and during deployments. Given the commercial arrangement between TMR and the camera supplier, TMR cannot release commercially sensitive information or intellectual property which belongs to the camera supplier.

However, this points to one of the great concerns about the use of technology in courts. These concerns were essayed by the Wisconsin Supreme Court[6] in Wisconsin v Loomis[7], a case about the use in sentencing of a tool said to be able to predict an offender’s risk of reoffending. In that case the private corporate provider of the tool would not allow the defence to review the data behind the tool based on claims of commercial confidentiality, exactly as asserted here.

At page 20 of its decision the Court said:

the right to be sentenced based upon accurate information includes the right to review and verify information contained in the PSI upon which the circuit court bases its sentencing decision. 

We ask how can a defendant charged with a seatbelt offence be assured of this right when there is no publicly available data from validity studies to support the claims of Acusensus?

The Court in Loomis held that the tool, though it could not be determinative, could be used as part of a pre-sentence report but that any presentence report using the tool:

must inform the sentencing court about the following cautions regarding a COMPAS risk assessment's accuracy:  (1) the proprietary nature of COMPAS has been invoked to prevent disclosure of information relating to how factors are weighed or how risk scores are to be determined; (2) risk assessment compares defendants to a national sample, but no cross-validation study for a Wisconsin population has yet been completed; (3) some studies of COMPAS risk assessment scores have raised questions about whether they disproportionately classify minority offenders as having a higher risk of recidivism; and (4) risk assessment tools must be constantly monitored and re-normed for accuracy due to changing populations and subpopulations.[8]

It is clear that our rules violate a fundamental protection for the right to a fair hearing: the legislation in question gives the product of this system a privileged status as evidence before the Court. Furthermore, application of the principles enunciated by the Wisconsin Court would require the Department when a defendant challenges an image to inform the Court that Acusensus would not reveal to the Defendant its proprietary information relating to the accuracy of the system.

You also make this extraordinary statement which would be of concern to anyone who believes in the right of a person to contest a charge:

However, the court may not recognise them as an expert witness as they are unlikely to have the appropriate qualifications to be able to provide expert evidence about the operation of the device, or how the device is deployed and setup. Only the camera supplier could be considered an expert in relation to their own device.

Whilst it is no doubt the case that employees of Acusensus, despite their obvious conflict of interest, can give expert evidence one would expect it to be treated with a degree of caution by the Court[9]. We would think this would be particularly so if the defence expert was not given access to proprietary information necessary to assess the claims being made by the company. Especially as we can see no justification for such a position. The civil courts are very well versed in dealing with confidential information in a way that protects the interests of the holder of that information, including allowing experts access to confidential information so as to allow them to be able to give effective evidence. This is a regular occurrence in the commercial courts, especially in intellectual property cases[10].

In summary our view is that these laws significantly curtail the right of those charged to a fair trial.

5.         Current Bill

We note the current Bill before Parliament which allows drivers to name the passenger and thereby avoid liability for the offence. Whilst this change addresses, at least partly, one of the issues set out above, the others will remain of concern.

[1] October 26, 2024, https://johnmenadue.com/post/2024/10/monday-mornings-in-court-seven/

[2] Cf sections 285-290 of the Criminal Code

[3] D Lanham, Drivers, Control and Accomplices [1982] CrimLR 419

[4] Rubie v Faulkner [1940] 1 KB 571

[5] Wendy Brown and Matthew Raj Harnessing Ai: Seatbelts and the Law in Queensland Volume 13 Issue 1 2025 hundred page 37

[6] The fact this is a US decision is irrelevant. The decision relates to the right to a fair hearing which is just as fundamental to the rule of law here as it is in the United States.

[7] 881 N.W.2d 749 (Wis. 2016),

[8] see pages 28 and 36 of the judgment

[9] Heydon Cross on Evidence para 29080

[10] There are many many such cases but perhaps the leading Queensland decision is Ex parte Fielder Gillespie Ltd [1984] 2 Qd R 339