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Wednesday, May 1, 2019

Matters bicycle helmet and the Minister

Enjoying the cooler weather ... and my bicycle
On the off chance that you're interested, the content of my letter (15/04/19) sent to The Hon. Andrew Constance MP Minister for Transport & Roads is below the dotted line:
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Dear Minister Constance, 

RE: Bicycle helmet regulation and exemption in NSW  

I am writing to you as a result of correspondence I have had with Chief Inspector Guy Guiana, of the Hunter Valley Local Area Command, in relation to whether or not I am exempt from wearing a bicycle helmet when riding a bicycle.  

As you would be aware, the provisions of regulation 256 (NSW Road Rules) state that:  

(1) The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction. 

 In light of the rule’s mention of possible ‘exemption’ I believe that you could accept that I am “exempt from wearing a bicycle helmet” by virtue of the Australian Consumer Law which provides me with a number of consumer guarantees and protections from questionable products (in this case the bicycle helmet). 

Australian Consumer Law 
Thus, to recap the framework of my exemption, the Australian Consumer Law provides consumers such as me with a number of consumer guarantees. 

 Inter alia, statutory warranties exist in addition to any other warranty provided by suppliers, importers or manufacturers. Consequently suppliers, importers and manufacturers of bicycle helmets cannot limit, restrict or exclude consumer guarantees, or avoid their obligations. 

 The consumer guarantees are relevant to the bicycle industry particularly because people selling bicycle helmets are generally regarded as suppliers as they sell goods (bicycle helmets) to consumers such as me. 

 As you would be aware, the definition of ‘consumer’ is restricted to persons who acquire goods and services with a value less than $40,000: in my experience bicycle helmets tend to have a value of less than $40,000 (certainly the ones I might consider).  

Fitness for purpose  
The relevant consumer guarantees in relation to fitness for purpose and quality for goods and services are:  

(1) Guarantee as to fitness for any disclosed purpose where the goods are reasonably fit for a purpose for which the supplier represents that they are fit; or a purpose the consumer makes known to the supplier or manufacturer that they will use the goods for;  

(2) Guarantee as to acceptable quality where goods will be considered to be of acceptable quality if they are safe, durable and free from defects; acceptable in appearance and finish; and do everything that they are commonly used for;  

In relation to fitness for purpose, a bicycle helmet is bought to protect the cyclist from acquiring brain injury whilst the cyclist is riding a bicycle. Accordingly, there is an implied condition that they will do just that: protect the cyclist from acquiring brain injury.  

Yet in a letter addressed to me from the former Roads & Maritime Minister’s department dated 11/04/2017, it was communicated in a binary manner that 76% of cyclists killed over the period of ‘2009 – 2013’ in NSW were wearing helmets. This information revealed the implied condition that bicycle helmets will protect cyclists from acquiring catastrophic brain injury was not being met, meaning the relevant consumer guarantee in relation to fitness for purpose for bicycle helmets is not being fulfilled.  

To reiterate my summation of the information in the minister’s letter with the backdrop of Australian Consumer Law, whilst bicycle helmets are sold for the sole purpose of protecting cyclists from catastrophic brain injury and death when cyclists are riding bicycles, three quarters of the cyclists killed in NSW are wearing bicycle helmets and their helmets are not protecting them from acquiring catastrophic brain injury.  

Therefore, it is only logical I would conclude that helmets are not fit for the purpose under Australian Consumer Law. Furthermore, it is only logical I would conclude that it is illogical cyclists are compelled by NSW law to wear a product that is not fit for purpose.  

Merchantable quality  
In relation to merchantable quality, a bicycle helmet is bought to protect the cyclist from acquiring brain injury. Australian Consumer Law provides that bicycle helmets must be of acceptable quality, meaning that they must be safe, durable and free from defects. 

Bicycle helmets contain latex which many people (and I am one) are allergic to especially health workers and former health workers (the latter being a group I fall into from my time working as a registered nurse back in the 1980s at St Bartholomew’s Hospital, London). Whilst latex allergies vary in grades of severity from contact dermatitis to anaphylactic shock, all people with a latex allergy are strongly advised to avoid any contact with the substance as the potential for life-threatening reaction increases every time an individual allergic to latex is exposed to latex.  

Additionally, bicycle helmets contain polystyrene which according to the US National Toxicology Program, Department of Health and Human Services, is “reasonably anticipated to be a human carcinogen based on limited evidence of carcinogenicity from studies in humans, sufficient evidence of carcinogenicity from studies in experimental animals and supporting data on mechanisms of carcinogenesis.”  

In relation to durability, bicycle helmets significantly add to landfill because cyclists are widely exhorted to replace helmets regularly (every two years or after any significant knock within that timeframe). As you would know, there is much discussion in the community as to whether polystyrene can be recycled, but the general consensus is that it rarely is due to the nature of the product and the high energy costs to do so, and that inevitably polystyrene ends up sitting in landfill for centuries.  

Thus, when the implications of latex allergies, carcinogenic defects and the significant landfill concerns are taken into account underpinned by the fact that bicycle helmets cannot be guaranteed to provide protection from acquiring brain injury they are commonly used for and legislated for, merchantable quality cannot be guaranteed either, meaning the relevant consumer guarantee in relation to merchantable quality for bicycle helmets is not being fulfilled.  

Therefore, it is only logical I would conclude that helmets are not of merchantable quality under Australian Consumer Law. Furthermore, it is only logical that I would conclude it is illogical that cyclists are compelled by NSW law to wear a product that is not of merchantable quality. 

Implied condition, s19 Sale of Goods Act (NSW)   
To conclude whilst regulation 256 of the NSW Road Rules 2014 states that the rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction, under the ‘Implied Condition as to quality or fitness’ provisions of section 19 Sale of Goods Act 1923 (NSW) you will find that bicycle helmets are not fit for purpose nor of merchantable quality.  

Therefore, I believe that you can accept I am exempt from wearing a bicycle helmet under s19 of the Sale of Goods Act (NSW) and the Australian Consumer Law.  

Alternatively, exemption provisions could be read down in s256 of the NSW Road Rules in light of the fact that there are exemptions for not wearing seat-belts in cars and other motor vehicles (s267 NSW Road Rules), for not wearing motor-bike helmets on motor-bikes (s270 NSW Road Rules) and also for P plate drivers driving with passengers after 23:00hrs when their passengers are their siblings and/or their children. It is unlikely when the Road Rules were being constructed that exemptions for not wearing bicycle helmets would not have been intended to be read down in the relevant road rule as well (s256 NSW Road Rules).  

Thank you for your time and consideration - I look forward to hearing from you. 

Yours sincerely,  
Sue Abbott  

Cc: The Hon. Michael Johnsen MP, 20 Bridge Street, MUSWELLBROOK NSW 2333 ; Chief Inspector Guy Guiana, Hunter Valley Local Area Command, 20 William Street, MUSWELLBROOK NSW 2333; Mr Mike Pritchard, ABC Rural,pritchard.michael@abc.net.au; Ms Liz Flaherty, “scone.com.au,” elizabeth@scone.com.au; Ms Kathy Francis, Freestyle Cyclists, kathy.francis@westnet.com.au

Wednesday, April 17, 2019

On and on and on it goes

Cooking with granny!
 The past nine months have been a emotional jumble box and consequently I'm sure you will have noticed that I have neglected this blog. Yes life matters have been scattered on my planetary journey, and they have appeared as figurative de-railing tin tacks.

Losing my beautiful mother last October opened up a pantry of emotions and piled them all into a life-time mixing bowl.

There was bereavement and happiness and gratitude and hilarity and a tonne of memories swirling around, and I suppose really I just feel so immensely grateful that I was (am) her daughter and equally so contented that today I see her all around me, in myself and my sister, and my children and my nieces. She has left an indelible stamp on all of us who were lucky enough to know her, and no kidding a pile of funny, loving, cranky, outspoken women with opinions who pipe up continuously and see themselves as life advisors for everyone, politicians and all.

Darling Mum, thank you! Xx

But you lose one beautiful person, and another comes into your life who then prodigiously proceeds to turn everything upside down in the most magical and wondrous way.

Meet Harriet the most wonderful baby ever, my beautiful gorgeous fabulous granddaughter.

Oh boy, the fight in me just got a whole lot bigger and fiercer!

And so back to all things bicycle - I mean that fight is just not over yet, is it!!!

Thus having had a bit of a hiatus in relation to riding my bicycle around Scone what with unbearable 'heatwave weather' conditions and unbearable 'heatwave police' enthusiasm for issuing me with helmet infringement notices, the actual weather now in Scone is utterly glorious and autumnal and perfect for using my bicycle for popping into town.

So two weekends ago, my husband and I cycled the 8½ kms into town to have dinner with two of our friends at one of the local pubs, the fabulous Thoroughbred Hotel.

Then at around 10:30pm we said our fond farewells, and off we went to our respective homes. Scone on a typical Saturday night is .... shhhhhhhhh very quiet, yes we're talking country town here ... very very quiet!!!! ... a cat, a fox, a wombat, a mopoke ... nothing else!

But no kidding within minutes  of us un-padlocking our bikes and setting off for home those familiar blue and red lights that I have come to know and not love were lighting up the valley and I was being pulled over for ... yup you guessed it "AUSTRALIAN BICYCLE HELMET CRIME" ...

"Oh Sue" (policeman to me)

"Oh Dave" (me to policeman)

And after languishing for so long, having been kicked into touch some time ago, my Groundhog-Day-Australian-bicycle-helmet-saga" was tossed back into the line-up.

Sigh.

And so it came to pass that I sat myself down this week and wrote to Minister Andrew Constance, head pooh-bah of the Department of Transport, which since the recent NSW elections has subsumed the former stand-alone Roads and Maritime Services, setting out why I should be exempt to rule 256 in the NSW Road Rules by virtue of s19 Sales of Goods Act 1923 (NSW).

In my letter, I copied in my local member, the Hon. Michael Johnsen MP, Chief Inspector Guy Guiana of the Hunter Valley Local Area Command, Mr Mike Pritchard of ABC Upper Hunter Rural radio, Ms Liz Flaherty of the "scone.com.au" blog and Ms Kathy Francis of Freestyle Cyclists, and now I wait to see what if anything will come out of this latest episode, including even an actual ticket, which as I type this blogpost, still hasn't eventuated! - and maybe it won't!!!

Oh funtimes indeed - here we go again.

Wednesday, March 20, 2019

The right to clean air; it ought to be a thing



It’s time to press the panic button on the air we breathe in the Upper Hunter and there’s no time to waste.
At the Upper Hunter Health Forum (Tuesday 12th March ) presented by Dr Ben Ewald, Dr John Van Der Kallen and Dr Bob Vickers from Doctors of the Environment (DEA), we heard how air pollution is a major environmental risk to health and how it is killing us. 
We also heard that there is strong evidence that we can reduce illness and death from stroke, heart disease, lung cancer, and respiratory diseases by significantly reducing air pollution levels but … and it’s a big ‘but’ … we need political will and leadership from those who represent us.
With the NSW election only 3 days away, we have an opportunity to make a difference in our health outcomes by voting for politicians who take climate change seriously and who are prepared to transition quickly to renewable energy. 
The DEA doctors told us that stopping emissions from coal-fired power stations would immediately improve our health with fewer deaths, fewer incidences of cardiovascular disease, fewer low birth weight babies, fewer premature babies and fewer new cases of diabetes.
In a nutshell, choosing a politician prepared to deal with climate change would provide us with an opportunity to improve our health. We need to vote for this sort of a politician.
In the Upper Hunter, air pollution routinely breaches Australian national standards and nothing is done about it. Yes, there are monitoring stations and we monitor that we are steadily being poisoned but nothing is actually done to stop the breaches re-occurring. It is air pollution ‘Groundhog Day’ over and over again.
So, what to do! 
Hit that panic button and vote for the candidate who takes our Upper Hunter predicament seriously and who recognises that we have a right to breathe clean air … 
… and PS don’t forget to number all the boxes to get the most out of your vote!!!
(this post has been cross-posted at Scone Blogger)

Wednesday, August 1, 2018

Time spent on helmet laws expensive for all of us

Queen's Park on the way to Waverley Court

The magistrate was none too pleased to see me in front of him today (yesterday) nor to hear that I would be raising necessity at a future defended hearing.

Further he was none too pleased that I had raised necessity in front of him before and that after that hearing I had cycled away on my bicycle without wearing a helmet, and that I had then gone and got myself plastered all over the papers and the media across New South Wales.

He said that I seemed to be making a bit of a celebrity of myself but I pointed out that that was not the case; rather I was highlighting that bicycle helmet law is flawed.

He asked me if I was going to ride away from court on my bicycle without a helmet today (yesterday) and I said that I was not because unfortunately I had a flat tyre and so had had to walk (from Randwick). He then asked if I would be able to assure if that I would not ride away again without a helmet, and I said that I could for today (yesterday) as my bicycle was not with me.

He told me that my fines were mounting, and was I aware that the maximum fine was $2,200. Yes, I said that I was aware.

He then said was I aware of all the medical journal papers detailing brain injuries that helmets protect you from. I said that I was aware and that I was also aware of other ones detailing that bicycle helmet law has been a public health disaster for Australia.

He asked me if I had talked about this bicycle helmet law issue with politicians and I said that I had but to no avail.

He wanted to know if I was prepared to waste valuable police time in expecting them to come to court for a future defended hearing and I said that if it would assist the court  I was happy to read their statements beforehand and that if their facts were essentially that I was riding a bicycle without a helmet, that would be fine by me.

He then rather helpfully recused himself from my future defended hearing and set down a date.

So Friday 2nd November 2018 here we come!

Tuesday, July 31, 2018

Protest in March court appearance in July - this is Australia

Obviously not Australia
And so it comes to pass that after our St Patrick's Day Freestyle Cyclist Protest Ride in Centennial Park, Sydney (2018), I have since been issued with a Court Attendance Notice and am to appear in Waverley Local Court later on this morning. This appearance will be a mention which essentially is a session for sorting out the magistrate's diary.

I intend to plead 'Not Guilty' of course, and when asked, as I'm sure I will be, what could possibly be my defence, I shall raise the environmental spectre of necessity.

I will keep you posted - off to bed now for some all important zzzzzzz

Sunday, April 22, 2018

My challenge of stupidity: bike helmet laws


Guilty as charged ...  sigh

Yet you know, step by step we are getting a little closer to our goal of getting rid of bicycle helmet law. I am sure so!

Oh I know winning slowly feels much the same as losing but I am a firm believer of the principles set out in Rebecca Solnit's article "Protest & persist: why giving up hope is not an option."

Truly, giving up is not an option!

However back to Friday and my day in court.

Essentially the magistrate refused to entertain my defence of necessity.

But the most startling moment of the whole morning was when he alleged that I wasn't using the Queen's english properly and that I had split my infinitives!!!!

I was so taken aback I had to clarify what he had actually said!!! Once clarified I then launched into a defence of necessity for splitting infinitives, you know how doing so can make meaning clearer, more illustrative, that plenty of grammarians don't agree with the rule, that moving the adverb can be awkward, blah de blah de blah de blah!

Oh lordy, but I think he may have been a touch muddled on what actually splitting infinitves entail because the words he used to demonstrate that I had done so bore no resemblance to splitting infinitives.  Oop-la!

But how is any of this relevant to me riding a bicycle on a New South Wales road without a securely fastened helmet I hear you ask?

Quite.

But on the bright side, it was a packed court and I got to sombrely talk (split infinitive) about the perils of climate change and how a non-recyclable plastic styrofoam bicycle helmet that needs to frequently be (split infinitive) replaced just adds to plastic pollution and landfill. I got to passionately exhort (split infinitive) his honour that since the legislative and the executive had completely failed us in relation to protecting us against climate change I was now turning to him as part of the judiciary, to boldly go (split infinitive) where no magistrate had gone before in Australia and to jolly well find (split infinitive) for me. I got to diligently remind (split infinitive) him that a US court found the former deputy president's daughter, Kareena Gore and her fellow activists not responsible of the crime of trespass because their actions were done "out of necessity." Furthermore I got to solemnly state (split infinitive) that I believe it is necessary that we force our government to jolly well face (split infinitive) our role as a country in this global climate emergency just as the Dutch did with their government in 2015 when three judges ruled that the Dutch government plans to superficially cut (split infinitive) emissions by just 14-17% compared to 1990 levels by 2020 were unlawful, given the scale of the threat posed by climate change.

That my unhelmeted conduct was a question of my survival and the planet's survial left his honour unmoved. And me concluding that it was and still is necessary for to me to regularly cycle (split infinitive) and to routinely cycle (split infinitive) without a helmet in order to hopefully prevent (split infinitive) risk of brain injury, plastic styrofoam consumption, plastic pollution, landfill, carbon emissions pollution was never going to wash.

Nope, it turns out that I must continue to stupidly be (split infinitive) compelled by the NSW government to ridiculously do (split infinitive) an act which puts my health and life and that of the planet's in greater danger than if I declined to do the act.

Appeal lodged and to be mentioned at the end of May 2018 in the Newcastle District Court.

Thursday, April 19, 2018

Hey ho it's off to court I go

When you have a bicycle culture instead of an oil one
Half a century in court appearances, 27 years of evidence-bereft helmet law, and $1,000s spent on court costs. 
Tomorrow's day in court for bicycle helmet crime is another chance to potentially convince the magistrate why he or she should find me 'not guilty' by way of necessity.
I'll keep you posted!