Wednesday, April 26, 2017

My issue is their denial of evidence

The Mall (helmet-free if you want)
Photo credit: Georgie Abbott

Whilst she gets her shit together in order to change (?) bicycle helmet law, I have written to our newly annointed Roads, Maritime and Freight minister requesting an exemption from wearing a bicycle helmet when riding a bicycle!

And because I wrote a letter I had to get a reply and boy was it a doozy ... an utterly obtuse response from staffers.

In their usual binary way they quote stats to me which when reversed make out cycling with a helmet to be getting more and more dangerous by the day ... oop la!
They say:
- 24% cycling fatalities NOT wearing helmets
- 19% cycling injuries NOT wearing helmets
- 15% all cycling casualties NOT wearing helmet


So I say back to them:
- 76% cycling fatalities WEARING helmets
- 81% cycling injuries WEARING helmets
- 85% all cycling casualties WEARING helmets

Hmmm which appears more dangerous?

Methinks their framework doth make them look oh so silly

And continuing with Matters Bicycle-And-A-Waste-Of-Time I have received a Court Attendance Notice (CAN) requesting (actually ordering) me to turn up to the Local Court in Scone.

This occasion will be a 'mention' where I literally get to mention my matter and request another date for a 'defended hearing.' However as per normal I have to bear in mind that the magistrate may not grant me another date and may insist on hearing my submissions right there and then ...

So ...

I am ready, and the crux of my argument is essentially the following argument:

The provisions of regulation 256 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.

I believe that the Therapeutic Goods Act 1989 supports my case for an exemption in that a bicycle helmet can be classified as a medical device meaning I need to provide informed consent or informed refusal before I adopt such a device or not.

The Therapeutic Goods Act 1989 is Federal legislation and therefore has jurisdiction over all state laws.

Inter alia section 41 BD (1) (a) ofthe Therapeutic Goods Act 1989 provides that:

(1) A medical device is:
(a) any instrument, apparatus, appliance, material or other article (whether used alone or in combination, and including the software necessary for its proper application) intended, by the person under whose name it is or is to be supplied, to be used for human beings for the purpose of one or more of the following;
(iii) investigation, replacement or modification of the anatomy or of a physiological process;

A bicycle helmet is an ‘apparatus’ that is used by ‘human beings’ for the purpose of ‘modification of the anatomy’ ostensibly to provide protection on Australian roads.

However section 41 BD (3) of the Therapeutic Goods Act 1989 provides that:

3) The Secretary may, by order published in the Gazette or on the Department's website, declare that a particular instrument, apparatus, appliance, material or other article, or that a particular class of instruments, apparatus, appliances, materials or other articles, are not, for the purposes of this Act, medical devices.

… though interestingly it is noted under sub-section (3) of the Therapeutic Goods Act 1989 that: A declaration under this section does not stop articles from being therapeutic goods.

Notwithstanding the note, the Therapeutic Goods (Excluded Goods) Order No.1 of 2011 specifically excludes non-sterile protective or safety apparel or equipment used in the home or for occupational or recreational use from regulation by the Therapeutic Goods Act 1989.

It would appear that bicycle helmets could be captured by this exclusion but only contingent with the dictated circumstances set out in Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

I do not use a bicycle helmet in the home or for occupational use or recreational use because I do not use a bicycle in the home or for occupational use or recreational use. I only use a bicycle for transit purposes. ‘Non-sterile protective or safety apparel or equipment’ for this type of behaviour is not prescribed in the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Prima facie a bicycle helmet in my circumstances is a medical device and not an excluded good, and therefore requires my informed consent or informed refusal with regard to whether I wear one or not.

Therefore the reason that you will accept that I should be granted an exemption to wearing a bicycle helmet is because section 41 BD (1)(a)(iii) of the Therapeutic Goods Act 1989 defines a bicycle helmet as a medical device, and also because of the way I use a bicycle cannot exclude a bicycle helmet from regulation by the Therapeutic Goods Act 1989 under the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Using a bicycle for transit allows a bicycle helmet to come under the provisions of the Therapeutic Goods Act 1989 and therefore can be defined as a medical device.

To conclude whilst regulation 256 of the NSW Road Rules 2014 provides 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, in my interpretation of the law the Therapeutic Goods Act 1989 provides me with reasons for exemption from wearing a bicycle helmet.

So here's hoping I have a little more luck in court this time ... and as per usual I shall keep you posted!

Oh this is all so daft - air pollution that breaches World Health Organisation standards, prospect of Adani coal mine going ahead and destroying the Great Barrier Reef completely, motor vehicle traffic toll, obesity, inactivity, and I'm the one punished ... 

... dumb dumb dumb australian australian australian 

Sigh

3 comments:

  1. good luck, if the preceding 'law' has not being recinded then you might say that the helmet law is invalid as it contradicts existing law.

    ReplyDelete
  2. Excellent. Good luck and keep us posted. We have the same obnoxious law here in NZ.

    ReplyDelete