(San Francisco, California, a 'no-bicycle-helmet-law' state - well, not for the over 18s anyway!)It has been said before, and I'm going to say it again, bicycle helmets should be a matter of choice, rather than a legal requirement. To get this 'matter of choice' to actually be the situation here in Australia, a 'concerted community campaign' is necessary to persuade our state governments to act upon the evidence provided by the countless independent researchers across the globe.
There are a significant number of us in Australia who have urged the various state governments to restore our right to choose and to cease their pathetic executive subscription to the philosophy that helmets are the 'first & last' words on road safety for cyclists. Yet we continue to be either ignored or disregarded or both.
However I have no intention to accept this 'continued' dismissal, and in fact, intend to 'cycle' to MacQuarie Street the next time I am in Sydney to ask some of my 'pressing' questions in person to any minister who comes within 'spitting' distance of me and my bike (figuratively speaking, of course - the 'spitting' distance that is!!)
Feel free to join me at any time whilst I continue with this important quest!
Hi Sue,
ReplyDeleteWhat is the best way to reverse these mandatory laws:
- via lobbying of politicians to reverse them, or
- in the courts?
I have serious doubts that any politician would touch these laws as they're only concerned about getting re-elected.
Can a person take the government to task in a court of law and have this law overturned? Is that the best way of doing it?
I ask this as I'm seriously considering the latter option here in Queensland but I'm going to have to hire some big guns to pull it off, if it is even possible.
If it were to be successful, would it overturn the laws nationwide or are these pesky laws state-based?
Now that you are a solicitor (congratulations by the way), I thought you may be able to shed some light on the matter.
Regards,
Dr Paul Martin
hi paul,
ReplyDeletethanks for your post(s)! - your questions are tricky (and please let's not forget i'm only a 'baby' solicitor at this stage! ha! ha! thanks for your congrats though!)
- the regs are state regulations and therefore need to be changed at a state level - of course if you think you can find anything that raises the spectre of the constitution and the premise that state laws must not be in conflict with commonwealth laws then perhaps you might have an argument for the high court who deal in constitutional matters - i briefly glanced at the therapeutic goods act (commonwealth legislation) to see whether helmets ought to be declared medical devices under the act's provisions given that they modify part of the human anatomy, but i really haven't done much more than that - perhaps there is some scope there?!
as you know i've decided to try the avenue of defending the charge by arguing that i have a defence, in fact one of necessity, a common law defence which is a long shot really given that this 'crime' is statutory - however i am arguing that i should be excused from the charge as i committed the crime in order to avoid detrimental and serious consequences that i believe could flow from me being 'helmeted', perhaps falling off (there is always that possibility if only slight whilst riding a bicycle) and then hitting the ground with the mass of my head increased and therefore at risk of acceleration of the rotation of the brain - i will try and persuade the district court that i hold this belief on reasonable grounds and that my conduct was proportional to the serious consequences i was seeking to avoid - i am raising the abortion cases of the 60s and 70s, and the menhennit ruling (davidson) - should the notion of common sense be raised i will mention sids and how it took years for the safest sleeping position for babies to be actually recommended (it wasn't until the 90s that 'backs' were finally declared the safest postion for babies despite the availability of this conclusive evidence having been around for decades)
sooooo we'll have to see how it all progresses next friday 5th march!! i should have my submissions finished by next monday and if you like i'd be happy to send them to you!
thanks for all your support - it's great to have a medico on board who doesn't automatically subscribe to the helmet safety mantra!
the other commonwealth legislation that mandatory helmet laws might be in conflict with is the 'trade practices act' - questions to be asked could be whether they (helmets) are actually 'fit for purpose' or whether they are 'misleading and deceptive' - worth a further look - i've only glanced at it - i think CRAG had consultations with the ACCC but you'd have to check with bill curnow for more detailed information on the final outcome
ReplyDeleteThat last angle, regarding the Trade Practices Act, looks interesting. I'm no lawyer so I can't offer much help other than moral support!
ReplyDeleteBicycle helmets do appear to be marketed to be as effective as motor cycle helmets when it comes to crash protection. This is clearly not the case.
Perhaps the courts could recommend:
A) that cyclists must wear motorcycle helmets to ensure adequate protection if they're serious about preventing head injury from 'interactions' with motor vehicles (after all, isn't this why they say we need them?), or
B) that bicycle helmet advertising must disclose their limitations and how useless they really are in anything other than a slow speed fall from standing height, or
C) that it be optional to wear helmets and let individuals make up their own minds!!
Clearly A) and B) are not going to happen so that only leaves C)!
I have had a few pedestrians (mostly obese) yell at me for not wearing a helmet and numerous 'sporty' cyclists shake their heads at me while they fly past me at great speed, only to narrowly miss knocking over a pedestrian on 'their' bike path/training strip.
Once the notion of peak oil settles in and its consequences emerge I don't think the police are going to bother cracking down on cyclists without helmets - that will be the least of their worries. There will also be fewer cars around which will be quite pleasant.
Good luck with the case, Sue.
Regards,
Dr Paul Martin
...my favourite line routinely hurled at me is: 'what if you get hit by a truck?' !!!!!!! (yeah what if!)
ReplyDeleteYes - what if!?
ReplyDeleteI've seen plenty of serious road trauma (including fatal) in my career and that is such a ridiculous thing to say! The helmet would offer the same protection as a rubber glove would offer should you put your hand in a mincer!
I really do think that a 'reasonable person' believes that a bicycle helmet would be of some utility in such circumstances - surely that is a sign of a flawed 'system'.
The helmets are marketed as an accessory not as serious safety equipment in my opinion.
For example, I cannot find any information on the limitations of cycle helmets on any of the major manufacturer's websites:
http://www.giro.com/en-ap/support/faqs/
(they recommend - of course! - that helmets are replaced every three years - another win for the environment!)
http://www.bellbikehelmets.com/helmet101.asp
(they mention no real figures)
If the authorities are serious about how good bicycle helmets are then they would:
- require helmets to be replaced regularly (proof of purchase)
- require helmets to be inspected (a small crack renders them useless)
- require that helmets are properly stored
- require the public to know how low an impact a bicycle helmet is really good for.
Clearly these are all ridiculous propositions (except the last one) - so either they're serious about bicycle helmets, or they're not; there is no 'grey area'.
Regards,
Dr Paul Martin
you are completely spot on - i couldn't agree with you more!
ReplyDelete