2015 November

Senate Committee Public Hearing

Report on the Senate committee hearing into Bicycle Helmet Laws

The hearing was held at the Victorian Parliament on Monday 16th November. Nineteen witnesses had been called to give evidence in support of their submissions to the enquiry, and to answer questions from the committee.

Senator Leyonhjelm chaired the meeting, and was assisted by Senator Canavan, who is also a sitting member of the committee. The witnesses were heard in groups of two to seven, with one individual presentation. Three of the witnesses appeared by teleconference.

A full transcript is available for anyone interested. What follows here is an impression and a summary of the major points discussed.

From the outset, it was clear that the senators were quite well informed, and were not going to fall into the usual assumptions we are so used to hearing from government – a good start. The purpose of the hearing was not to debate so much, rather to afford the senators an opportunity to gain further insights from the witnesses.

In the opening sessions we heard from six experts on the reform side, including Professors Rissel and De Jong, and Dr Dorothy Robinson. We heard how MHLs did not achieve the health benefits of reduced injury, while having a negative impact on health due to reduced activity. Bill Curnow explained how helmets, by increasing the turning force on the head in an accident, can increase the risk of brain injury.

All witnesses agreed, and presented credible evidence in support, that MHLs had caused a significant reduction in cycling participation. More recent research would also indicate that this deterrent effect continues even now. Up to one quarter of Australians would cycle, or cycle more, if they were not required to wear a helmet. Reductions in cycling were particularly severe among teenagers and non commuting transport cycling. The senators were clearly persuaded of this. Professor De Jong concluded that the net health outcome of MHLs had been negative, even assuming quite good performance from helmets in the event of an accident, due to the loss of health by reduced participation. A further negative outcome was raised by Chris Gillham, who observed that the generation of children who stopped cycling in the nineties were now driving, and doing so without any idea of how to drive safely around cyclists. Evidence was presented that the health benefits of cycling outweigh the risks by a factor of between 9 to 1 and 24 to 1.

Dorothy Robinson, who would be one of the world’s most respected published academics on bike helmet law, presented a number of her key findings. Overall she has found that there is no evidence from studies of injury rates that helmet laws reduce head injuries. In this respect helmet laws were different to other road safety initiatives like seat belt laws and drink driving laws. When asked whether helmets themselves could cause increased risk of head injury, she replied that helmet laws increase the risk of head injury; whether helmets do or do not is open to question. The main effect of the law was to reduce cycling, with any measured drops in head and other injuries being largely explained by this. Her findings were backed by solid data that was accepted by the senators.

The morning presentations concluded with Kathy Francis and Jai Cooper. Kathy and Jai explored the policing of the law.

Jai gave examples from his work of selective enforcement, enforcement for purposes other than safety, aboriginal incarceration for inability to pay fines and a youth with a $5000 helmet fine debt. He described the law as well intentioned but with many undesired side effects.

Kathy described her experience in a small Victorian town where cyclists were fined and gave up cycling (herself included) in the years following helmet mandation. She did not believe the much talked about ‘helmet hair’ was the main reason women dislike helmets, saying women were affected by the fear created by helmets signifying danger. They were also more likely to be utility cyclists and so the helmet was an inconvenience for that type of riding. Kathy also described her experience of being jailed when six months pregnant for refusing to pay a number of helmet fines.

After lunch we had a group presentation from seven assorted surgeons and safety professionals, all of who were passionately opposed to helmet law reform.

They all believed in the protective value of helmets and the success of the helmet law. Whenever evidence was called for, they returned to belief. Their presentation created a sense of fear around the cost and trauma of brain injury without linking this successfully to cycling or even helmet laws.

Closer scrutiny led to confusion. Lack of evidence for their position was followed by visible frustration.

Professor Rosenthal denied there had been a reduction in cycling after helmet laws were introduced.

When asked about a cost/benefit analysis on helmet laws Jake Olivier replied

To be honest there is not enough Australian data to make that assessment”

Senator Canavan followed with “ has any State done a regulatory impact statement?”Again the response was “No”

Jake Olivier continued to obfuscate, giving different census results to Dr. Robinson. His trick was to use capital city data only, and lump states together whether they had passed the helmet law or not, and to ignore the increase in participation in the late eighties just prior to the laws’ introduction. In the past he has published “evidence” that cycling levels returned to normal shortly after the legislation based largely on distorted cyclist number counts in Melbourne. When questioned by the senators, he stated:

If you are trying to estimate the prevalence of people cycling, you do not do it by standing on the street corner and counting. That is not a proper statistical method for estimating prevalence.” 

The team had no coherent vision for cycling. The safety people credited the laws with making cycling safer while Dr Rosenthal said it was too dangerous to ride and there was no way he would let his children ride under present conditions. Dr. Kenfield agreed :

I certainly do not ride because of that. I have a very nice bike at home and it has not been ridden.”

This fear of cycling as too dangerous was despite what Prof Ivers claimed was:

“… a very proud tradition of legislation and enforcement in improving road safety and in other forms of health and safety across Australia.”

Professor Ivers also created confusion when asked about cycling safety in Darwin following relaxation of the laws there by observing that NT had 3 times the road deaths (for all vehicle types). When further questioned she agreed this did not relate to cycling. Despite offering no evidence on the NT’s cycling safety, she flatly rejected their helmet model as not best practice.

They did not even come to the hearing with evidence that helmet laws had made Australia safer than countries without helmet laws.

CHAIR : Does Australia have a significantly lower rate of serious head injuries and deaths amongst cyclists than other countries in the OECD ?

Mr Healy : “We would have to take that question on notice “

Not one member of this group was prepared to countenance any trial relaxation of the laws of any sort or for any age. Professor Rosenthal thought any relaxation would ‘allow creep’ while Dr Brown felt it was unethical to expose people to the risks inherent in a relaxation trial.

Professor Grzebieta did not accept any of the pro reform witnesses’ evidence:

Prof. Grzebieta: And you have to go back to the source of the data that is being used for those papers which you are quoting and citing. Every time we have looked at the source of the data we have found that there is an issue with that source in its accuracy and its relevance.

CHAIR: That is what other submitters have said about your submissions as well.

Prof. Grzebieta: Yes they would say that.”

As evidence of his expertise, Professor Grzebieta also offered the following example:

I am a road safety person. Actually, my qualifications are in crashworthiness. And I work in a similar field to Dr Brown, in crashworthiness. Senator, imagine if you were about to be hit in the head with a hammer. What would you rather: not have a helmet on, or have a helmet on? “

Which sadly displays a lack of understanding of the reality of bike riding.

Lastly, it appears that this team may have used costings of head injuries to motor cyclists instead of cyclists in their submission, the former being significantly higher.

This group was followed by Australian Cyclist Party advocate Nik Dow and cyclist, blogger and bicycle helmet law specialist Daniel Woodall.

In Mr. Woodall’s opening remarks he asked a pertinent question:

One wonders if the doctors who appeared earlier who so vehemently support mandatory helmet legislation for cyclists were also very carefully donning their motoring helmets, when they drove here today, to make sure their burden on society and risk to themselves was being suitably reduced. “

Nik Dow tabled new Canadian research which found that helmet laws did not affect head injury rates. In addition, a Victorian study pointed to cycling speed as being the most significant contributor to head injuries.

The safest cyclists were likely discouraged by the helmet law:

So the effect of removing a helmet law would be to bring back the lower-risk cyclists with, therefore, the best cost-benefit ratio, in terms of health benefits versus risk”.

Mr. Woodall, who rides without a helmet, has been stopped on maybe 20 occasions, ticketed 12 times and made 3 court appearances. He observed in relation to policing:

It is also very clear that some of the police doing this can really see this is not an especially productive use of their time and they can also see that it probably is not an especially useful law in terms of actually helping to reduce the kinds of societal impacts, injuries and all the wider things that police deal with day to day.”

Mr. Woodall’s major contribution to the Inquiry was to set a clear framework for evaluating Nanny State legislation. For those interested, the proposal should be read in Mr. Woodall’s submission. Five tests could be applied to such legislation to see if it is fair and equitable. Mandatory helmet legislation fails all five tests.

Alan Todd of Freestyle Cyclists was the next witness called. Alan characterized Australia’s helmet laws as an experiment that had run its course. The rest of the world had rightly judged that it led to no significant improvement in cyclists’ safety, not even in head injury rates. It had crippled the growth in cycling enjoyed by other developed nations, and shifted the whole culture of cycling from everyday low risk transport to one of sport. It was time, he said, to call it a day and discontinue the experiment.

When asked what was so hard about putting a helmet on, Alan explained

It would not be hard for men to put on a skirt and high heels to go to work, but they are not going to want to do it. Maybe a helmet is not quite that extreme, but it does seem to push the wrong buttons for a lot of people”.

In response to questioning, Alan emphasized a number of issues, particularly the greater impact helmet legislation had in regional areas, where cycling had collapsed.

He also gave evidence of how safe public bike share schemes were (generally used without helmets). This could be explained by the low speeds on these bikes. Recent Australian research had found that cyclist speed was the critical factor for extent and severity of head injuries, not helmet wearing. As an example of how wrong headed our legislation and enforcement is, Alan gave the example:

So there you have me on my bike sitting up, looking where I am going, breaking the law without my helmet, and I am passed by, let’s say for argument’s sake, a neurosurgeon on his weekend training ride, fanging along at 35 kilometres an hour, with his helmet on but with his head down and his bottom up, not very good visually. He is putting himself at five times the risk of head injury that I am putting myself at.”

VicRoads was the final witness called to give evidence. They were represented by Robyn Seymour, Director of Vehicle and Road Use Policy.

VicRoads has been promulgating misinformation about bicycle helmet law for 25 years. Policy driven research and cherry picked data on their website is repeated to anyone who corresponds on the topic of helmet laws. All letters to Transport Ministers appear to be answered superficially with reference to this misinformation. Those questioning the law, the information on the website, the mysterious exemption process or the absurd level of the bike helmet fine are given the same garbage replies, regardless of which party is in Government. There is no right of reply, nowhere to appeal the lies and no way of challenging their unwavering support for their failed policy.

This was the first time in 25 years they had been subject to public scrutiny, and the result was telling.

Ms. Seymour was unable to answer a number of questions and was unaware of much of the history of the law. Like the surgeons/safety professionals she had a belief, a pride and was comfortable with the law, without being aware of the evidence these feelings were based upon.

In response to direct questioning she did not know:

  • Why the penalty was increased from one penalty unit to five penalty units in 2009.
  • Whether the increase in penalties corresponded to a decrease in head injuries
  • Whether any regulatory impact statements had ever been prepared in relation to MHL
  • Of any proposals to boost the use of the Melbourne bikeshare
  • Of any systematic review of the legislation
  • That the National Cycling strategy showed bicycle use to be in decline in Victoria
  • Why she believed cycling returned to normal levels two years after the introduction of MHL

She agreed that VicRoads had never:

  • Called for public feed back on helmet laws
  • Included any questions on helmet law from a Survey asking for public comment on cycling Road Rules in 2014, despite helmet law being the most heavily enforced bicycle road rule.
  • Looked at the evidence from the reform of bike helmet laws in the Northern Territory
  • Examined the impact of MHL in Rural Victoria

The response to this question summed up the VicRoads approach of the past 25 years:

CHAIR: Have you ever conducted an internal review of the helmet legislation?

Ms Seymour: VicRoads is very comfortable with the philosophy that the mandatory helmet law is really important in providing the level of protection to cyclists in relation to head injury. Based on that evidence, we are very comfortable that the regulation is justified and sound”.

Finally, when asked why the rest of the world had not followed Australia’s ‘lead’ after 25 years, she again retreated to the VicRoads comfort zone:

VicRoads is really comfortable with the evidence that supports the mandating of bike helmets in Victoria.”

Overall the senators appeared generally convinced that helmet laws had caused a significant decline in cycling for transport, particularly evident in regional areas. They also showed an unwillingness to be ‘overwhelmed’ by the cogency or relevance of the evidence presented by the helmet believers in support of their enthusiastic endorsement of helmet laws.

Those seeking reform were given a fair hearing. They were not, as so often happens in the Australian public realm, treated as foolish or misguided. Much of the evidence they presented seemed to be well accepted by the senators. This included evidence that MHLs continue to depress cycling levels, and that the protective effects of a helmet, in the event of an accident, may well have been overstated.

Though we cannot predict the outcome with any certainty, there was a mood for reform shown by the senators. One significant line of questioning, asked of a number of witnesses, was what extent of reform would they be comfortable with. The answers to this ranged from “none at all” from the surgeons, to “immediate complete repeal” from Bill Curnow and Colin Clarke. Most pro reform witnesses, accepting the compromising nature of political decision making, expressed a willingness to accept partial repeal, something along the lines of the Queensland recommendation where over sixteens on footpaths, bike paths and roads with a posted speed limit of 60 or below would be exempt from the requirement to wear a helmet.

From the perspective of a debate, the pro reform camp certainly carried the day.

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