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1. In 1991 it became law, by way of regulation, for a rider of a bicycle to wear an approved bicycle helmet securely fitted and fastened on the rider’s head. This regulation also extended to a passenger on a bicycle that is moving or is stationary but not parked unless that passenger is a paying passenger on a three or four-wheeled bicycle. The representations of this compulsory requirement were and remain flawed, fragmented and confused and to date it has never been explained why it was and still is considered safer to be a paying passenger than a non-paying passenger.
2. In applying the ‘Taco Bell Test’ (Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177), mandatory helmet laws have misled ‘the astute and the gullible, the intelligent and the not-so-intelligent, the well-educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations.’ As the target audience, neither the people of NSW (and the likelihood that the people of NSW could be misled or deceived by the conduct and representation of the regulation), nor the context in which the people of NSW read or heard about the representation with its accompanying mandatory compliance requirements has been considered by the NSW Government.
3. For the past 20 years the NSW Government has commissioned many studies yet none have provided class one evidence categorically stating that helmets provide the level of protection we have been led to believe that they do. Notwithstanding that money for further bicycle helmet studies continues to be granted by both state and federal governments, the academics and experts still cannot agree with each other, and this in turn has led to widespread confusion within the public domain. Even studies that support helmet legislation admit that the ‘lack of population level exposure and helmet wearing data for cyclists mean that several assumptions were necessary for an analysis to be possible’ [Scott R Walter, Jake Olivier, Tim Churches & Raphael Grzebieta, ‘The impact of compulsory cycle helmet legislation on cyclist head injuries in New South Wales, Australia’ (2011) Accident Analysis and Prevention (Article in Press), 7]. Many people who use bicycles (or would like to use bicycles) contend that false and misleading representations have been made about the characteristics and benefits of bicycle helmets that have not and can never be substantiated.
4. Furthermore many people who use bicycles (or would like to use bicycles) are also concerned that Government-funded safety representations have become a powerful marketing tool and are overstated. Given that there is ‘currently no helmet standard test method that assesses angular acceleration, in part because this requires a biofidelic head and neck, as well as injury assessment reference values for angular acceleration,’ [T.Y. Pang, K.T. Thai & A.S. McIntosh, ‘Head and neck dynamics in helmeted hybrid III impacts’ (Paper presented at the IRCOBI Conference, York, United Kingdom, September 2009) p.315, para 1, & relied upon by the NSW Government to support regulation 256, Road Rules 2008 (NSW)] the accuracy of the claims are misleading and fail to disclose the accuracy of the level of protection provided by bicycle helmets. Moreover research published in May 2011 has found that bicycle helmets provide little protection.
5. There is considerable confusion with bicycle helmets and their application to very young children. Prior to the law, helmet-wearing by children under 12 months was discouraged (see paras 30 & 110). Despite the passing of two decades since the introduction of mandatory bicycle helmet regulation, the law is silent on this issue today, and the Roads & Traffic Authority’s (RTA) Bicycle Handbook avoids this matter by publishing vague and ambiguous advice: ‘young children must wear a helmet whenever riding – whether sitting in a child carrier or a cycle trailer. Please consider the stage of development of your child before placing a helmet on the child’s head for long periods.’ Moreover statutory regulations do not apply to bicycle helmets of a size too small to be reasonably fitted to ‘Headform AA’ used in the testing of bicycle helmets, defined in Australian/New Zealand Standard AS/NZS 2512.1:2009 and published by Standards Australia on 7 April 2009.
6. When the overall impression of bicycle helmets is considered from what is said and what is not said, from what is implied and what is not implied, it is not difficult to appreciate that many people who use bicycles (or would like to use bicycles) contend that the safety representations made about bicycle helmets are fraught with ambiguities. In addition the disclaimer in the guise of ‘important information’ and ‘warning’ in the Owner’s Manual cannot correct the false misleading main safety protection premise of the bicycle helmet.
7. It is a matter of enormous concern that the ACCC have highlighted a risk of hanging or strangulation if a child gets trapped whilst wearing a helmet. Bearing in mind claims must be specific, representations of bicycle helmet safety protection are misleading given that a significant number of children have died whilst wearing bicycle helmets. Indeed when people who use bicycles (or would like to use bicycles) consider the ACCC's position that regulations are intended to ensure accurate and adequate disclosure to consumers, they cannot help but wonder how a claim of safety protection made without disclosing the percentage of protection or level of actual protection obtained was ever considered accurate instead of misleading .
8. Prima facie, the evidence pertaining to helmets providing safety protection is conflicting and unsubstantiated. Yet despite the fierce academic debate on the matter, we are still legally compelled to wear one in Australia. Most nation states across the globe openly acknowledge that mandatory helmet laws raise issues of civil liberties and accordingly the decision ‘to helmet or not’ is left to their individual citizens. It is time such practice was adopted here.
9. Inter alia over the last 20 years many people who use bicycles (or would like to use bicycles) have submitted that, on the premise that the law is fragmented, uncertain and inconsistent, mandatory bicycle helmet legislation ought to be repealed. The time has passed for preliminary and on-going investigations into this matter.
10. Unquestionably it is time to revoke mandatory bicycle helmet laws - NOW
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