MHL Repeal

Going to Court in Queensland

Traffic Infringement Notice issued 4 August 2017

Timeline

4 August 2017

On 4 August I was issued with a TIN for not wearing a helmet.  Three members of the QPS bike squad saw fit to attend to the matter.

Initially they asked for a reason, possibly expecting an exemption letter to be produced, they asked if I had one.  I do not and said as much.  At all times being courteous.

They then asked for my reason for riding without a helmet.  I explained that I felt I did not need to basically starting to explain the TGA exception that Sue Abbott has tried (and subsequently she has lost that case in Adelaide).  For whatever reason that is only apparent to themselves they were not interested in me completing my explanation, constantly interjecting, ridiculing me and claiming I should choose other transportation options.  I also explained to them that I was disabled and this is my preferred choice in order to minimise my discomfort and maximise my mobility.  

After a period of time they basically said they were not interested in anything I had to say and were going to issue the TIN, despite saying at the outset that they would take away my details and consider issuing a TIN at a later time.  At this time they also threatened me with arrest and a trip to the watchhouse if I mounted my bike again that day without a helmet. I thought this was particularly over the top.

All three were wearing body cams, and unknown to them I was also recording the interaction with a bike mounted DVR, Fly 12.  It was also obvious that they were checking out my bike in detail in order to see if they could issue any other TINs.  No chance since I know the ADRs and TORUM possibly better than they do, so my bike has everything required.

I was then forced to walk my bike around 2kms to my workplace.  Having a mobility disability, and back issues meant that this caused me to endure a great deal of pain, pain that lasted all day and through the weekend.

I was told that I could have the matter heard in court or pay the fine.  I intended to take the matter to court.  Theoretically not paying should have had the matter sent to court.

2 October 2017

I received a SPER (State Penalties Enforcement Register) notice, advising that I had an outstanding fine, the original fine plus $67.45 administration.  Obviously someone screwed up.  I signed the form, ticking the box for a court hearing.

24 October 2017

Acknowledgment letter that I would be given a preliminary court hearing date.

23 November 2017

Letter advising of my court date on 23 January 2018.  Letter also comes with official complaint from the ticketing officer stating the basics of the complaint.

23 January 2018

Court date, I arrived first so I jumped the queue from 4 to number 1, that a tip if you want to be in and out quicker.  The prosecutor advised the process while waiting for the magistrate.  Basically guilty or not guilty, most are there because they are pleading not guilty.  This means being given a “Notice to Defendant”, a trial date, when your brief of evidence will be available, and bail to ensure you turn up for the trial date.  The Notice to Defendant is to ensure you know what you can ask for as if the prosecutor needs expert witnesses they need to be organised in advance, mostly for speeding fine contests.

In my case I can ask for the body cam footage and for the three officers to attend court for questioning over the matter.  This is my email to the prosecutor, two days later on 25 January 2018:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

WITHOUT PREJUDICE

Hi Mark,

Please let me know when the Brief of Evidence will be available for collection from the court, the indicated day was 5 February 2017 for the trial date of 15 February 2017, 9:00am.  All three officers were using body cameras so I expect that there will be three videos available, plus whatever other paperwork is necessary to be provided in the brief.  I would also like to know if it is standard practice for the officers issuing the ticket to be present on the trial day?  The Notice to Defendant – Traffic Matters information suggests this is the case.  I would like to question all three officers about matters that occurred on the day as I would personally like to understand their motives behind some of their actions towards me as I am sure the magistrate would also.

Thank you in advance.

As you can see out of the box I put him on notice that I was serious about this matter and I intended to vigorously defend the matter.

2 February 2018

I received his response a week later as follows:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

Hello,

The officer has asked me to withdraw the ticket as the court date clashes with his Commonwealth Games commitments. You can come to court on the 15th if you want or not.

Regards,

Mark XXXXXX

Senior Sergeant XXXX| Police Prosecution Corps

BRISBANE MAGISTRATES COURTS

Level 8, 40 Tank Street, Brisbane Q 4001

P: (07) 3099

F: (07) 3099

My Response:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

WITHOUT PREJUDICE

Hi Mark,

Thanks for getting back to me.  In light of that I will not attend court and consider the matter closed.  Thanks for letting me know.

Now based on some feedback, I will have someone attend court on my behalf, my daughter as I do have a business appointment to attend to that was made after this matter was considered closed.  She will have my complete file including the correspondence from the prosecutor advising the matter was withdrawn to prevent him from reopening the matter in my absence.

Summary

As at 7 February 2018, the matter is closed, however I will update this summary in a week after the trial date has come and gone.

For those wondering, the words “without prejudice” on my emails mean that the prosecutor is unable to present that correspondence in court as evidence.  He however did not precede his email with those words so I should be able have his correspondence presented as evidence of the withdrawal of the matter.

Defense Summary

My defense was going to hinge on a number of matters.

Primarily, where any law of a state conflicts with a law of the commonwealth, the commonwealth law takes precedence.

First, the TGA defense of me riding the bike for transport and as a result a helmet is considered a medical device.  This would be further amplified by the TGA considering helmets as a medical device for the prescription of the drug Clobazam, they do not specify what the minimum requirement is for a helmet, only that one be used.

Second, that as a disabled person any device that I use to aid my mobility is considered to be a therapeutic device under the TGA as follows:

Therapeutic Goods Act 1989 Section 41 BD paragraph (1)(a)(ii) of said act which defines what a Medical Device is.

  1. 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:

(ii) diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap

Third, that as I was making a choice to ride without a helmet, I undertook a strict risk assessment of the possible routes into the city from where I was parked, choosing the longer route as it was all off road (shared pathways), contained only 6 road crossings of which only one was an uncontrolled crossing.  Importantly there were only 3 driveway crossings on the city paths being traversed (none prior to the city).  The shorter route contained 17 road crossings of which less than half were controlled intersections.  Further to that there were in excess of 50 driveways to houses, businesses and car parks along the entire trip.  Each one of those a potential hazard.  Under a Hierarchy Of Controls (HOC) hazard reduction process, the first step is to always eliminate the hazard which I did through route choice.  PPE is always the last resort in a HOC process.  Since I had undertaken every possible step prior to PPE, I felt there was no risk to myself.

Fourth, under the Queensland Criminal Code, S22 (2), even if none of the above defenses apply, if you act in a manner where you truly believe you are not in contravention of the law even with knowledge of the applicable law, you cannot be found guilty of contravening the law.  Since I believe that under points One and Two above I was not in contravention of the law as commonwealth law applied I cannot be found guilty under state law, based on state law itself.

Going to Court

If you have written an account of taking a helmet fine to court that might be helpful to others, please contribute via our contact form.

Victoria

Good behaviour bond, no fine – 2017

Good behaviour bond, costs – including bogus red light offence – 2014

Good behaviour bond, no fine – 2012

New South Wales

Section 10 dismissal – i.e. offence was “trivial”, had a doctors letter and was wearing a sun-hat to protect against sunburn – 2018.

Dismissed on medical grounds – 2016

Defence of necessity – 2011

Queensland

Ticket Withdrawn Before Court 2018

Bicycle Network’s Helmet Law Survey

Will Australia’s largest bike riding organisation be influenced by the majority of submitted participation/injury evidence and surveyed public opinion when it decides over the next few months whether to continue supporting Australia’s mandatory bicycle helmet laws?

The Bicycle Network has published the results of its open survey during August and September on public and membership opinion of the helmet laws.
• The survey was completed by 19,327 respondents
• Respondents were mostly Bicycle Network members and people who ride bikes with varying regularity. 2.6% of respondents were from overseas, and 1.9% of respondents said they never ride a bike.
• 58.3% of respondents said there should be a change to helmet laws, while the remaining 41.7% said helmets should be mandatory all the time
• 40.7% believe helmets should only be mandatory when the risk is high, for example, when racing, on road or for young people
• 30.4% would ride more if helmets weren’t mandatory
• If laws changed, almost all people who currently wear a helmet when they ride would continue to do so and the number of people who never wear a helmet when riding would only increase by 3.7%
As expressed by the Bicycle Network’s media release (https://www.bicyclenetwork.com.au/newsroom/2017/11/21/bicycle-network-helmet-survey-results/): A survey of almost 20,000 people has found that nearly two-thirds don’t believe you should have to wear a helmet every time you ride a bike in Australia.
Which sounds similar to what Freestyle Cyclists has been saying for the past decade.
Bicycle Network CEO Craig Richard says the network will use the membership and public responses when evaluating its position on helmets, along with literature and expert opinions, with a decision expected in April 2018.
“It’s great to get such a large amount of public opinion about bike helmets. It’s something people are clearly passionate about and it’s helpful to see how Australia’s helmet laws may impact people’s decision to ride,” said Mr Richards.
“The opinion of our members and people who ride bikes is important and will help inform our policy on Australia’s mandatory helmet law. Along with academic research and information from experts, we will be able to make a fully informed decision.”
The Bicycle Network has about 50,000 members. Its influence could force media and political consideration of the helmet law issue if its policy review objectively considers the mountain of evidence proving Australia’s helmet law failure and if it does the right thing in April by recommending repeal.
A majority of Bicycle Network members are lycra cyclists who always wear helmets and it is interesting that 38.9% wanted some form of repeal in their survey responses. Among the network members, 70.4% would continue to wear a helmet every time they ride.
Among all respondents to the Bicycle Network survey, 17.6% believed that bicycle helmets should never be mandatory, in line with the Freestyle Cyclists opinion that they should be voluntary among all ages. Only 1.9% of survey respondents said they never ride a bike and 30.4% of all respondents said they would cycle more if helmets weren’t mandatory.
Of course, the survey wasn’t measuring the hundreds of thousands of people who would actually ride a bike in the first place if not threatened with police punishment for cycling without a helmet. The public health and traffic safety benefits would be enormous with both more cyclists and a 30% increase in current cycling duration. All the newly participating riders would otherwise probably be driving a car and the hospital data suggests fewer cyclists will be crashing and injuring some part of their body.
The Bicycle Network is under pressure from many within its own membership, from Australia’s pro-law academia and from the media to make no change to its long-standing position of support for mandatory bike helmet laws. Most mainstream media such as in Western Australia continue to ignore any reference to the Bicycle Network’s helmet policy review, let alone the survey results. The few media outlets that have published stories online or in press about the survey results have highlighted the medical community’s opposition and/or quoted one of the many helmeted cyclists who so frequently crash and are convinced it has saved their life.
It’s likely that well over 99% of Australians are unaware of the review or survey, adding weight to the 19,327 who did know and let their majority helmet law opposition be known in the Bicycle Network survey.
Freestyle Cyclists urges the Bicycle Network to objectively evaluate the real world evidence of Australia’s mandatory helmet law failure and accept that its own pro-repeal survey results support the mountain of submitted evidence that the laws discourage a huge number of people from riding a bike, and with highly questionable injury results.

New South Wales – higher fines, greater injury risk

This is a guest post by Chris Gillham, who maintains http://www.cycle-helmets.com/, a rich repository of facts and statistics on Australia’s helmet law disaster.

A full twelve months have passed since higher cyclist penalties were introduced in New South Wales including quadrupling the helmet fine to $319 on 1 March 2016.  According to the Sydney Morning Herald:

• Cyclist fines up 38% to 9,760, with $2.2 million from the top five offences.
• $1.99 million from helmet fines compared to $337,000 in the previous year.
• Available figures for the first 10 months of tougher fines show cyclist total injuries were down about 7% to 1,858 and cyclist serious injuries down 6.5% to 1,506 (81% of all injuries serious).
National Cycling Strategy data for 2017 shows people cycling at least once a week in NSW dropped from almost 17% in 2015 to 12.5% in 2017, the lowest rate for any Australian jurisdiction.

The Sydney Morning Herald did publish a story re NCP 2017 on 19 June, albeit with the usual line that participation is falling because there aren’t enough cycle paths. My guesstimate is that about a third of cyclists in middle to outer suburban Sydney and regional NSW ride without a helmet and a big number decided the fine increase from $71 to $319 meant it was no longer worth the risk.
 
Regarding the weekly cycling figures as a proportion of the total NSW population aged 2+, the NCP data show 2011 – 14.8%, 2013 – 15.8%, 2015 – 16.7%, 2017 – 12.5%
 
Based on ABS 2016 population data, the figures translate as 173,413 fewer people cycling weekly in 2017 than in 2011, and 316,666 fewer people cycling in 2017 than in 2015 (1,259,126 in 2015, 942,460 in 2017, which is a 25.15% reduction in cycling participation). Cycling at least once a year in NSW dropped by 475,000 between 2015 and 2017.
 
So weekly participation drops 25% and injuries drop 7%. We have seen this so often in the last 25 years. The NCP data show cycling participation in NSW was growing from 2011 to 2015 but something, maybe a passing meteorite, caused a collapse in cycling sometime between 2015 and 2017. No, not the meteorite … it was the fact there wasn’t a nearby cycle path in 2015 and there still wasn’t a nearby cycle path in 2017.
 
Of course, because the quadrupling in the helmet fine has been so good for public health and road safety in NSW, and has slashed cyclist injuries by about 7%, the NSW helmet fine increased from 1 July in line with inflation from $319 to $330. The inmates are running the asylum.
 
 
 

Watch the Documentary

Our new documentary is available for viewing at https://www.youtube.com/watch?v=nGsM-XIuGwo

Made by Geoff McLeod of Sputnik Films it interviews a range of people to explore the damage being done in Australia by mandatory bicycle helmet laws. Public launch in Melbourne September 2nd, details to follow.

Our Media Release on the film is here.

Federal Election 2016

Senator Janet Rice has been engaging on helmet law recently:
From @KathyFrancis: @janet_rice I will repeat my question for your convenience. Will the @Greens be repealing the mandatory bike helmet law if in Government?
From @Janet_Rice: @kathyfrancis56 No at this stage. But I’m open to considering the evidence.
From @JimMoore @janet_rice So exactly how did @greens form pro-MHL policy w/o considering all the evidence?! What an inane thing to say.

Alan Davies has published an excellent analysis of The Greens’ announced transport policy.

The Greens are more interested in electric cars than cycling.

Meanwhile, Anthony Albanese is defending his seat against the insurgent Greens with an opinion piece which makes no commitments and isn’t backed by ALP policy.

Nobody is joining the dots on health, e.g. diabetes type II treatment costs which will exceed entire state budgets within two decades.

Here’s the election advice we posted to supporters:

The Australian Cyclists Party are standing in the Senate in the Federal election in all States except Tasmania. In Victoria and New South Wales they are standing on a coalition joint ticket with the Science Party. The new voting rules make it easy to vote above or below the line. You can give cycling your #1 preference and then use your other preferences to decide who gets elected.

The Australian Cyclists Party’s policy on bike helmet law is:
“We also believe that it is time for Australia to remove penalties for not wearing a helmet. We advocate for a significantly large-scale pilot program to be supported where the positive effects of increased ridership can be weighed against any increased negative risks. Evidence tendered to date at state and national inquiries indicate support for this approach. Nations that enjoy the highest participation rates do not require helmet use and also enjoy low injury rates for cyclists.”

Their website and policies can be viewed here:

https://australian-cyclists-party.org.au/

Our recommendations for Senate voting, if helmet law reform is the most important issue to you are

1 ACP – they support helmet law reform and have a coherent vision for cycling in Australia
2 LDP- they have a proven track record of support for helmet law reform
3 Sex Party – their stated policy position is support for helmet law reform

Beyond that, there’s not much to choose. The other minor parties haven’t made any public statements, and the majors, including the Greens, are wedded to mandatory helmet laws. None of the majors really have a clue about what is required to make cycling take off as a common choice for transport.

Senate enquiry – Helmet Laws

The Senate interim report on bicycle helmet laws (terms of reference (d) personal choice and community impacts) has finally been tabled. Eagerly awaited by anyone concerned with advancing Australian cycling beyond its current doldrums, it is disappointing to find that the report is best described as underwhelming, with the concluding recommendations frankly lame and unhelpful.

To summarise: The report itself does a reasonably good job of presenting the views of submitters, both for and against Mandatory Helmet Laws (MHLs). But there it ends. The report is framed as a “he said she said” rundown, with no attempt made to critique any point of view, nor any sign of independent research from the Senate to verify (or discount) the claims made by the many parties. What is lacking too is any overarching cohesive frame of reference, such as might give an idea of what the context of all this is. A context not only of cycling safety, but of participation, free choice, and a nationwide cycling culture, and what the effect of helmet laws can be seen as having had in these areas. Maybe I expected too much, but what we got in the end didn’t really add to any more than could be gleaned from reading the individual submissions. There was also little reference to the open public hearing, which did at the time give serious critique, particularly to the supporters of MHLs. It was there that it was really teased out that we do not have consistent reliable data on exposure (the amount and type of cycling done) in Australia, and that consequently the claims made for the benefits of MHLs are without solid supporting evidence.

So at the end of all this, like a lame appendix, came two recommendations. I’ll quote them in full:

The committee recommends that a consistent and comprehensive national data set be established. The data set should provide nationally consistent information on cycling-related injury trends as well as cycling participation rates. The committee recommends that the Department of Health in cooperation with the Department of Infrastructure and Regional Development and state and territory counterparts develop the national data set for application across all states and territories.

4.16 The committee recognises that it is only once such nationally consistent information is gathered and assessed that a national assessment of the impact of mandatory helmet laws can be undertaken.

Recommendation 2

4.17 The committee recommends that the Department of Infrastructure and Regional Development in cooperation with the Department of Health conduct a national assessment of mandatory bicycle helmet laws once a national data set of sufficient quality has been established. The impact of the Northern Territory legislation should form an important part of the overall assessment. In addition to safety concerns, this assessment should consider the relationship between bicycle helmets and cycling participation rates, drawing on the experience of bike share schemes and other initiatives directed at improving cycling participation rates.”

So what does this amount to? Yet another call for further research and data collection. Its not as if we haven’t already had 25 years of data, however imperfect. And its not as if the rest of the world (with some good data in places) doesn’t exist, to give a comparison to Australia, the helmet law outlier. I wouldn’t hold my breath waiting for this data either. And have a look at who is going to collect the data, and evaluate MHLs on that basis, and be afraid. We have experienced so much policy based research in Australia already on MHLs that I doubt if these agencies will break the mould.

I guess on the positive side, the recommendations show that the committee isn’t satisfied that we have enough accurate data to make a decision one way or another on MHLs. My oh my. I thought every transport department in the country was convinced MHLs had been a great success – but it turns out they never had the data to know in the first place! So what does the committee do with this bombshell? Do they recommend that we call the police off and stop punishing and deterring cycling by allowing people the choice in helmet wearing, pending consideration of the mythical data set? Oh no, that would be unAustralian, where the default position if in doubt is to regulate, control and ban. So 25 years on, with the rest of the world laughing at us, we have to wait yet again for our freedom to choose. And what of the coterie of professional public health experts, who so confidently spruiked the overwhelming benefits of MHLs? If, as the committee clearly found, they don’t even have the data to support their claims, wouldn’t a little criticism be in order? Just a little?

I have read all the submissions to the enquiry, and attended the public hearing. It would be simply absurd to believe that there is not a serious problem in Australia’s go it alone world of mandatory helmet laws. So why did the enquiry lead to such feeble recommendations? For this information, I am indebted to Senator Leyonhjelm’s office.

Just a couple of week before the report was tabled, it included recommendations much in line with those made in the 2013 Queensland enquiry – namely significant relaxation in MHLs. This is exactly what one would have expected from the work of the committee in assessing the various submissions. But that’s not how it works.

There were six senators on the committee, and at least three, preferably four, would have had to agree to the recommendations. Well the two liberals were never going to agree, as they have a natural instinct for authoritarian control. One of them even went so far as to issue a dissenting report, considering the collection of further data to be a waste of money as he notes that Australia enjoys some of the best cycling injury prevention rates in the world.” So that’s the liberals gone, as they obviously have privileged knowledge that doesn’t require any evidence.

What of labor? The problem labor had was that the labor states, especially Queensland, have policies supporting MHLs. And labor parliamentarians aren’t allowed to think for themselves, but only for their party. Yes, they couldn’t support relaxation of MHLs because that would make it hard for their state counterparts. Entrenched policy trumps evidence every time with labor.

So take your pick from Zig and Zag – policy based on revealed truth, or policy based on what won’t give trouble to your mates. Either way, I’m left wondering what these clowns actually think an enquiry is. I would have thought it involved collecting evidence, assessing evidence, and making appropriate recommendations based on that evidence. Not so Zig and Zag, where it seems to be a circus where you squander the goodwill, time and dedication of the public, waste public money, and end up pulling a rabbit out of your hat that says “I think what my mates think, and what benefits my party, and bugger the evidence”

So thanks to all those good people who gave of their time and wisdom to try and achieve positive change. Sorry it would seem to have been wasted. And don’t forget, your taxes paid for the public health professionals, the Senate committee members, and the Senators, so that they could give us their astonishing insights.

The End of Vehicular Cycling

Guest post

by Freestyle Cyclists member Tom Nockolds

News yesterday that the NSW government plans to drastically increase the fines for bicycle related road offences has left many in the cycling community feeling shocked and speechless. Myself, I feel a great sense of loss as I now weigh up my options and give serious consideration to the unpalatable option of not riding my bicycle ever again.

I doubt that we’ll see a reversal of these fines in my lifetime; forevermore we’ll have fines for cyclists that treat us as though we are equivalent to motor vehicles on our streets. The reality is cyclists are in no way equivalent to cars or trucks and have a lot more in common with pedestrians in terms of speed, attitude and vulnerability.

So how did we end up with these laws? Well a short history lesson. For the last 30 years, there has been a great schism that has divided the world of bicycle advocacy. On the one side of this divide has been most of the english speaking world who have tended to subscribe to the Vehicular Cycling school of thought, while on the other side, dominated by most of continental Europe and exemplified by cities such as Amsterdam and Copenhagen sit the Segregated Cycling camp.

Vehicular Cycling, whose principal advocate has been John Forrester, has the belief that cyclists need only claim their space among motorised vehicles to remain safe on the road and that increasing cycling participation depends on nothing more than promoting this idea. While the arguments for and against Vehicular Cycling and Segregated Cycling are complex, the good news is that we don’t need to delve into these too deeply to see which has been the more successful strategy for promoting vibrant cycling cultures. As I mention, this schism has been in place for well over 30 years and we can merely look at the success of each side based on the outcomes they have achieved.

Amsterdam and Copenhagen have been for a long time the most successful cycling cities in the world. Indeed, the Netherlands have been widely recognised as being the gold standard for cycling participation and safety. Both these places have implemented Segregated Cycling policies for three decades or more. These ideas have been so popular that their policies have been copied by other European cities such as Paris and Barcelona. Good ideas tend to travel and even London, located behind enemy lines in Vehicular Cycling territory, has converted to the Segregated Cycling ethos. The results in these cities are dramatic and couldn’t be any clearer: separated cycling infrastructure that recognises bicycles as a third type of road user – neither car nor pedestrian – will see a dramatic increase in utility cycling across all demographics.

And what about Vehicular Cycling examples of success? Simple – there are none. There has been not one case of successful use of Vehicular Cycling as a way of increasing cycling participation in a city, country or otherwise.

Australia, sits at the extreme end of the Vehicular Cycling schism. In the early 1990s we were the first country in the world to boldly implement mandatory all-ages helmet laws. New Zealand quickly followed Australia’s lead and since then…well…no other country has followed our lead. As mentioned earlier, good ideas tend to travel, and this is one idea that hasn’t gone very far at all.

I want to repeat this, because I don’t think it’s appreciated by enough Australians: we, along with New Zealand, are the only countries in the world with mandatory helmet laws for adults. Everywhere else in the world makes it the choice of cyclists to look after their own safety; to make decisions like adults about what is safe and what isn’t safe when it comes to riding their bike. In other words, they are treated just like pedestrians.

Helmet laws do not make cycling safer and they do a whole lot to discourage cycling. As a direct result of our helmet laws, thousands of cyclists stopped riding their bikes and Australia now has a malformed cycling culture that is sports-oriented, male oriented and almost entirely devoid of everyday people using their bikes as a normal form of transport.

The end destination for Vehicular Cycling is to have bicycles treated the same as motor vehicles, creating the final barrier that will prevent almost everyone from hopping on their bike to make simple journeys. Sadly, New South Wales will arrive at this destination in March 2016 when new fines for bicycle offences are introduced – such as a fine of $425 for running a red light. This contrasts with the ongoing journey for Segregated Cycling – in Paris earlier this year new laws were passed making it LEGAL for cyclists to proceed through a red light.

I’m heartbroken. I have previously vowed that I will not wear a helmet while riding my bicycle. Partly because I don’t like the feeling of false security a helmet gives me; partly because I refuse to be a part of creating a false image that cycling is more dangerous than it actually is. A $320 fine for not wearing a fine is too hefty for me. Perhaps my best strategy is to set myself a yearly ‘budget’ for cycling fines of $320. If I get a fine in that year then I’ve blown my budget and will ride my bike no more. Or maybe I’ll just wear a helmet – but I know it’ll make me less safe because of the risk compensating behaviour I’ll undertake and it’ll do further damage to cycling by making it look like riding a bike is complicated and dangerous – something that requires special safety equipment.

For now, I’m going to get out on my bike as much as I possibly can before these new fines come in. It’ll be a few melancholy weeks through the autumn of Australian cycling, after which the long dead winter will begin. Nothing much will grow after these laws come into force. Vehicular Cycling has led us to this end. It will not lead us any further, so this is the end of Vehicular Cycling. We can only hope that one day in the future we’ll see green shoots start to show themselves – the shoots of Segregated Cycling advocacy. When we see these appear in Australia we’ll know that there can be hope for a vibrant and popular utility cycling culture to grow again in this country.

Victorian Cycling Strategy Update 2015

Freestyle cyclists submission can be downloaded here.

 

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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