We need a Royal Commission into Lack of State Pollution Control

Bayswater Power Station, Hunter Valley

Bayswater and Liddel Power Stations, Hunter Valley

Coal mines and coal fired power stations, Hunter Valley

We are dying in the Upper Hunter from the toxic air we breathe and the process is being comprehensively monitored by the New South Wales Government.

Yet what is the government actually doing about it apart from collecting data and sending out endless air quality alerts informing us that PM10 and PM2.5 levels for Aberdeen, Merriwa, Muswellbrook and Singleton have exceeded national air quality standards?

From what I have observed, absolutely nothing, apart from additionally giving us advice about ‘staying indoors’.

And all our local member (aka Michael Johnsen MP) has to say on the topic (and he was an apology for Tuesday night’s air quality meeting hosted by Friends of the Upper Hunter in Muswellbrook with the EPA in attendance) is that there are many “unsubstantiated claims out there” and that the government “wants everyone to be healthy” and that “this is not a political issue, it’s a weather issue.”

Despite his uninformed opinion, everyone who actually did turn up to last Tuesday night’s meeting, and that included Dr Richard Abbott from Doctors for the Environment Australia, Kirsty O’Connell from Friends of the Upper Hunter, Adam Gillegan from the EPA and approximately 50 worried community members from across the Upper Hunter, all fully accepted that air pollution is a major environmental risk to health. 

Moreover, they all fully accepted that there is no safe level of pollution and that if we stopped emissions from coal fired power stations and coal mines, our health would immediately improve with fewer deaths, fewer incidences of cardiovascular disease, fewer low birth weight babies, fewer premature babies and fewer new cases of diabetes.

They also all fully appreciated that even though the law says that prescribed standards of air impurities are not to be exceeded, the standards are routinely exceeded, and no polluter is ever satisfactorily prosecuted.

Hence why I now think that there is nothing else for it but to hold a ‘Royal Commission into Lack of State Pollution Control.’

We cannot keep on dying with the NSW Government watching on doing nothing.

We need protection – enough is enough.

I'm back and I'm still fighting helmet laws (naturally)

Blurb from Daily Telegraph (I'm not a subscriber!)

 Finally the hearing to solve our bicycle helmet matter has happened and been decided.

After waiting since Saturday 17th March 2018 when approx 40 of us joined the 'Freestyle Cyclists' Helmet Freedom' ride around Centennial Park and two of us received tickets for our pains followed by legal assistance and mentions in court, and notwithstanding two lots of counsel and instructing solicitors and expert witnesses plus us in Waverley Court on Thursday 24th October 2019, it was all over in 15 minutes!?

... and no mention of our freedom to political communication ... sigh.

The Magistrate entered the court room and read out his decision right at the beginning of proceedings whereby he held that the Crown was not able to prove beyond reasonable doubt that the two of us (the defendants) had breached s 18 of the Centennial Park and Moore Park Trust Regulation 2014 (NSW). 

 Therefore the case was dismissed without the need to address the constitutional questions!

Noooooooooooo - I wanted to address the constitutional questions!

Anyway a win I suppose, in that there were no court costs or convictions, but really, a win like a 'forfeit' - very empty.

So we all packed up our things and went our merry ways, with me chatting to a NewsCorp journalist on the way out of the courtroom (see photo and caption above), and then with me the next day chatting to 'Wendy and Robbie' on ABC Sydney (which you can listen to at the 2:53:56 mark if you like)!

The next bicycle helmet chapter in my life (a completely different 'me-being-non-compliant' bicycle helmet matter) is to be heard in Scone Local Court, next March 2020 ... I'll keep you posted!

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