09 August 2009

Cyclist versus Goliath - Fighting Australian Bike Helmet Laws

Australian cyclist goes to court to fight ticket for cycling without a helmet.

Cyclists have been fighting for their rights for more than a century. It has largely been an uphill battle but in some countries, like Denmark and the Netherlands, political lobbying has paid off and the bicycle is a main feature on the urban landscape. Much of the battle has been waged from the grassroots angle.

In Australia there is a woman named Sue. She has always cycled and when Australia passed mandatory, all-ages bike helmet laws in the 1990's, Sue kept on cycling while many Australians parked their bikes in the garage. Despite the helmet laws, Sue continued to cycle without a helmet and she has never felt as though she needed one.

It took the better part of 15 years before Sue was finally stopped by the Austalian police earlier this year and ticketed for not wearing a helmet. After the formalities, Sue struck up a conversation with the policemen:

"One of the policemen expressed interest in why I wasn't wearing one. I mentioned I had done some research which had confirmed my view that helmets put me at risk. He was somewhat surprised, and so I continued that there was further information to show that there is a correlation between fat nations and helmet laws, and that in some parts of the US, much of Europe, the UK and Asia there were no such laws. I mentioned that now I had been issued with an infringement ticket I intended to take this matter to court.

Both he and his mate were really startled at that, and he wished me good
luck in my quest and hoped I got somewhere with it. He admitted that he had
given up cycling when the legislation became enacted in the early 90s, and
that his bicycle had sat in his garage since that time."

Sue has recently had her preliminary day in court in Australia. Normally defending traffic violations is a speedy process but Sue's solicitor surprised the magistrate by asking to be served with a 'brief of evidence' from the prosecution on 'the grounds of necessity' in order to adjourn the case to a later date for a defended hearing.

"The police prosecutor was not happy about this and raised the issue with the magistrate that the crime of 'not wearing a helmet' is one that is usually dealt with by way of an infringement notice, and that therefore, under section 187 of the Criminal Procedure Act 1986 (NSW), the prosecution does not necessarily have to serve a brief. Undeterred, the Magistrate informed the police prosecutor that the prosecution would have difficulties if a brief was not served."

"So on Monday 28th September 2009 I am to appear again in the local court to defend my criminal action of riding a bicycle without a helmet. I am going to argue that my criminal act of riding my bicycle without a helmet was a question of necessity and therefore:

- I should be excused if I can show that it was done in order to avoid consequences of risk of severe brain injury and/or death which could not otherwise be avoided, and which, if they had followed, would have inflicted upon me 'inevitable and irreparable evil'.

- The act of me riding my bicycle without a helmet was no more than was reasonably necessary for the purpose, and that the 'evil inflicted' by the crime of not wearing a helmet was 'not disproportionate to the evil avoided by consequences' of risk of severe brain injury (R v Davidson [1969] VR 667).

Alternatively, I am going to argue that my criminal act of riding my bicycle without a helmet was a question of self-defence and therefore:

- I was entitled to take evasive steps which I believed were reasonably proportional to the threat of the risk of wearing a bicycle helmet (R v Viro (1978) CLR)

Plus I would like to raise the fact that by prosecuting cycling, which is beneficial to health, sedentary lifestyles have been encouraged which in turn have led to worse health outcomes and greater costs for the community. Undoubtedly, Australia has the worst public cycling participation rate in the world, and instead, has ignorantly embraced the greatest health risk of them all - inactivity. I truly believe that my beliefs are reasonably held as I perceive them and that my conduct was and is a question of my survival. Therefore I shall conclude that it was and is necessary for me to cycle and to cycle without a helmet in order to prevent severe brain injury and / or death.

It really is Sue versus Goliath and the odds for success in the court case may be slim but at the end of the day this is a woman with a bicycle fighting for her right to ride. Which is the very same battle that cyclists have been fighting for over 120 years.

Placing focus on the folly of helmet laws and the scientific data that has showed that bicycle helmets can be dangerous and lead to brain injury is a bonus in a country where the press is reluctant to tackle the issue of helmet laws.

The recent study by Professor Piet de Jong that shows that Australia's helmet laws cost the country $519 million AUD each year have caused a stir around the world. The big numbers and the failed helmet laws serve a good purpose in the discussion of how promotion and legislation of helmets is destructive to cycling and public health.

But one woman with a bicycle in one local court room fighting for her right to ride as she sees fit is, for me, an inspiration to cyclists everywhere. And Copenhagenize.com wishes her the best of luck.

For more Australian angles:
- www.cycle-helmets.com - Website that explores the Australian helmet laws, with focus on Western Australia.
- The British CTC has information on helmet laws here.

From Yehuda Moon.