What about, for the sake of argument, we flip everything upside down, and see how the state government would go defending an 'imaginary' charge of 'Deprivation of Civil Liberties' as a result of excessive helmet promotion followed by mandatory helmet laws - with a defence of necessity!
As we all know, for the defence of necessity to be available, the circumstances must create a situation of necessity whereby a person commits a crime in order to avoid serious consequences that could arise from the situation. An accused must honestly believe that serious consequences would ensue if they did not commit the crime, and they must hold this belief on reasonable grounds. In addition, the conduct of an accused must be proportional to the consequences sought to be avoided.
1. Necessary belief - so would the government have it?
Could the government respectfully submit that the evidence collected by the Royal Australasian College of Surgeons during the 1980s in a bid to bolster helemt promotion would be important in assisting the court to assess their evidence as a ‘genuine belief’ and not a misconceived notion?
To establish that government belief is based on expert opinion and not a misconceived notion, the government would have to demonstrate that the Royal Australasian College of Surgeons are experts.
Questions to ask would be were the Royal Australasian College of Surgeons experts under section 79(1) of the Evidence Act? Did the Royal Australasian College of Surgeons have specialised knowledge based on their training, study and experience with regards to the mechanics of brain injury and design of devices for anatomical modification ? Did the Royal Australaian College of Surgeons' evidence contain the required elements of knowledge in this area as distinct from belief, and was their knowledge specialised in this area rather than generally held in the community?
Upon the facts it would appear that whilst the Royal Australasian College of Surgeons are experts in the field of surgery, it may be questionable as to whether they are experts in the field of the mechanics of brain injury, design of anatomical devices and traffic engineering.
2. Proportionate response - has the harm inflicted been less that the harm sought to be avoided?
Questions to ask would be whether the conduct of enacting the restrictive Road Rules 2008 Regulation 256 has been proportional to the consequences that government sought to avoid?
It would appear that govenment rationale for the enactment of the Road Rules Regulation 256 was that it was necessary to protect the community from the risk of serious danger to their lives from cycling accidents.
But in the circumstances was it out of proportion to the danger to be averted ('supposed' severe brain injury or death)?
No randomized controlled trials have been done on the subject of helmet safety. Current data comes from two main types of observational study; "time trend analyses" and "case control studies". Most of the literature that mentions helmets and helmet promotion refers back to a small number of these studies, rather than actually providing primary evidence. Notions of common sense, anecdotal evidence and medical supposition would not constitute a proportionate response, and any imagined community benefits from helmet promotion and mandatory helmet laws would appear to have been outweighed by the distinct and damaging disadvantages in the decreased numbers in overall cycling.
3. Imminent peril - the situation must be so urgent and the danger so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable (Perka v The Queen  2 SCR 232)
The legal safeguards established by the Magna Carta and the Bill of Rights (1688), which are received law in Australia, appear to have been suspended. There was no documented imminent risk to the community and there was no emergency - merely supposition. In fact we know that general road safety in the 1980s had been improving as a result of many factors including improved road conditions.
There were reasonable alternatives to the 'Deprivation of Civil Liberties'. Notwithstanding the recommendation by the Royal Australasian College of Surgeons that helmets offered significant benefits in terms of the community and cycling, a committment by government to invest in cycling infrastructure and an intensive education programme for motorists would have ensured that 'Deprivation of Civil Liberties was not necessary - the imminent peril requiring the enactment of mandatory helmet laws was not evident.
Therefore in view of all the facts & circumstances and upon my understanding , I believe a defence of necessity would not be able to be found in an imaginary charge of 'Deprivation of Civil Liberties'.
(...a couple of my 'London' pals, prior to our 'London' days)
Naturally, helmet manufacturers have had a problem with bias and this in itself has skewed an over-emphasis on the safety of helmets. Further, public policy has allowed helmet manufacturers to promulgate their spin, which in turn has convinced Australian governments and communties that helmets are better than they really are.
Evidence for their mandatory requirement has been sorely lacking.
In one of Mr William Curnow's peer reviewed papers, he questions the Cochrane review’s conclusion that its five included studies established scientific evidence that standard bicycle helmets of all types protect against injury to the brain. Curnow claims that it is not supportable because none of the studies possessed the requisite scientific rigour.
Further evidence from Curnow cites a report from the National Health and Medical Research Council, warning that ‘the wearing of helmets may result in greater rotational forces and increased diffuse brain injury.’ Curnow reiterates that the Cochrane ‘review’s conclusion is not in accord with scientific theory of brain injury which is supported by experimental evidence and that it is a result of misinterpreting data.’ In fact, Curnow recommends that ‘in view of the influence of a Cochrane review of bicycle helmets on policies for wearing’ the current review on bicycle helmets should be removed from the Cochrane Library.
It is interesting to note that the Cochrane Collaboration is currently under scrutiny for a review concerning the effectiveness of tamiflu against swine flu. In December 2009, they proffered a ‘media mea-culpa’ when Professor Chris Del Mar, the coordinating editor of the Cochrane Collaboration's acute respiratory infections review group, revealed that data collected in a review by the Swiss Professor Laurent Kaiser, summarising ten different trials, upon further analysis could not be found to draw the same conclusions. When questioned about this discrepancy, Professor Kaiser admitted that the trials had been conducted by Roche Pharmaceuticals, and referred the subsequent reviewers to the company for the information they were seeking.
Given that Curnow provides compelling evidence that mandatory helmet laws are irrational, I can see no reason why I should be required by law to don a helmet which offers next to no protection. I am not lacking capacity, and there are no circumstances in which the current interfering with my liberty is justified. Unquestionalby, these laws are an infringement on our civil liberties & they must be repealed ASAP.
Voila! le "Bike Pod", a rather weird bicycle tardis
This 'bike pod' was located in the car park just off Swanston Street where I deposited my humble vintage bicycle (sniff! - parting is such sweet sorrow!)
"...I cycle therefore I shower"
...a quick "Cycling-Pit-Stop" provided by Glen & his mate at their new cycling enterprise along the Yarra River Trail
Cycling in Melbourne is popular, and almost totally helmet compliant (unlike Sydney!) The infrastructure is well established, and motorists appear to 'watch-out' for cyclists. Sharing the road with the trams is comfortable once you've appreciated the yellow-line factor and that you must always cross tram-tracks with wide angles!
For sure, the cycling culture is well and truly entrenched...but it's not an inclusive one, and was evidently hi-jacked by the 'Sport of Cycling' long ago.
As a result the actual separate cycle-ways are a 'bun-fight' and surprisingly intimidating. They look like they have been designed:
(a) as exclusive outdoor velodromes, admittedly somewhat linear minus the steeply banked tracks & bends, and
(b) purely for elite cyclists
Speed is definitely of the essence (as is lycra), and this makes sharing the pathway with other pathway users tense. Bell ringing abounds, and hopping on & off your bicycle to take photos along the way is discouraged.
I much preferred the cycling experience on the city streets, where there were plenty of magical Melbourne moments to 'smell the roses' and take in the surroundings...and it's this part of the cycling story that is so exciting in Sydney!!!
Cycling is rejuvenating in Sydney through a heady mix of 'grass-roots' and 'political' will. Consequently the wishes of a very diverse group of stakeholders are being taken into account, and this element promises to deliver an inclusive and vibrant cycling culture. We know we're all entitled to share the road 'dressed-however' and 'riding-whatever', so perhaps our intitial cycling weakness in terms of infrastructure will turn out to be a strength as we rebuild our car-congested city into one that accommodates all cyclists of 'all tastes, ages & stages' with infrastructure for all cyclists of 'all tastes, ages & stages'.
Oh! and back to Melbourne, all 'merit' points earned for 'fabulous cycling infrastructure' are completely deleted for hosting 'hideous 2010 Formula 1 Australian Grand Prix' - when is the global community going to ban this destructive event? - we can only weep for Albert Park, unprotected by tokenism in the face of dollars and G-forces.
Sadly yes! A student from the Universtiy of Sydney incurred one of these 'bicycle-bullying' messages on her bicycle last week outside the building she was attending lectures in. The 'particular building' in question had no bicycle specific parks but did have a handy railing. She had already checked the closest 'designated bicycle-park' but it was full as is the general case, given that the University just cannot comprehend or compute how many of their students wish to cycle.
Just fathom the mind-set of a department that is so organised with it's warnings.
This card is made from heavy duty plastic and was attached with heavy duty cable ties also made of plastic. Think of the costs of the publising, printing, marketing & waste disposal! How can such costs be justified? Why is the university employing such a marked 'stick' approach rather than an encouraging 'carrot' one?
Time is of the essence; our young ones appreciate this, and we continue to 'clobber' them as we watch their future perish.
(everywhere possible to go!...but what is a "bike punt"?) (St Kilda, Melbourne) (Acland Street, St Kilda) (only for cyclists, very Copenhagen!) (bicycle traffic lights) THE MENU IN MELBOURNE, MONDAY 22 MARCH! Best friends Cycleways Traffic lights Signposts Trams
Is Australia small or what??? When we hired our bicycles from St Kilda Cycles, I was recognised as the 'woman who doesn't wear a helmet' by 'Lee' who happens to be friends with 'Jo' from Bike-Love - amazing!
Needless to mention, cycling around St Kilda & Port Melbourne on our lovely 'St Kilda Cycles' was sublime!!!
...and what did we leave behind in NSW?
THE MENU IN SYDNEY, SATURDAY 20 MARCH! Incessant Trackwork Clipboards Bus Marshalls Stations minus trains & passengers!
(NSW City-Rail administrators) (my son, his bike, my bike, all patiently waiting for me to arrive on a railway train, only I arrived on a railway bus & was deposited at the front of the station - silly boy! doesn't he know he's in NSW?) ==================================== ...having a wonderful time in Melbourne; wish you were here!!
(this cyclist deserves protection from mandatory helmet laws notwithstanding his type of bicycle - a 1980 Black Diamond road bike)
In view of all the scientific evidence, the continuation of our mandatory helmet laws is expressly a desire, and is NOT a legal basis for the infringement of our civil liberties.
Regulation 256 is conflicting and fragmented, and it has clearly increased the possibility of random interferences with our legitimate liberties. The existing evidence deduced so far is compelling to justify an immediate repeal of the mandatory requirement for wearing a helmet whilst riding a bicycle.
How can anyone explain why you must wear a helmet if you're a passenger on a 3 or 4 wheeled bicycle but not if you're a paying passenger on a 3 or 4 wheeled bicycle? Why is it safer to pay someone to be a passenger, yet more dangerous to get a free-ride? Why is it more dangerous for mothers and fathers to ferry around their children and if they imposed a "pocket money deduction" on their offspring, would they qualify for an exemption?
The most exasperating angle to all this is that we all know that my questions are silly, and that the reality is commercial. None of the state governments were ever prepared to anihilate the businesses of bicycle rickshaws, hence the legislated deviancy. In fact it appears in this instance that the rationale for safety was expediently dispensed with and continues to be so.
...and so back to the issue raised this week by the SMH's article on Tuesday. Pushing one type of bicycle over another automatically leads to questions of whether there are new commercial interests on the horizon. Exactly who are the stakeholders? and why are we becoming so polarised? Do advocates for the discriminating 'Road Rules amendment' have any vested interests in European bikes, or electric bikes, or green or blue paint? Could it even be more sinister? Could such an amendment be the prelude to eventually barring cyclists from the roads all together as Carl Scully expressly articulated last year.?
Should any one type of bicycle get more favourable treatment than another? I vehemently canvas "NO" in the name of civil liberties and anti-discrimination. Advocating 'no helmets' for 'sit-ups' but continuing with 'helmets' for the road bikes et al, is somewhat analagous to Noam Chomsky's blunt sentiment that "if we don't believe in freedom of expression for people we despise, we don't believe in it at all."
When mandatory helmet laws are repealed, they must be repealed for everyone - helmets ought to be a matter for choice, whatever the bike you ride & whatever the clothes you wear. (give him a break!)