SUBMISSION TO NATIONAL HUMAN RIGHTS CONSULTATION May 2009

1. Introduction

This submission comments upon the specific application of the three key questions of the Consultation to cyclists. Enclosure A, being my chapter 6 of the book Transportation Accident Analysis and Prevention provides supporting data and argument. References to it are simply by page number designated as [141] etc. Other references are listed in the endnotes.

1. Which human rights (including corresponding responsibilities) should be protected and promoted?

The right of cyclists to choose how to protect their own persons from injury, there being no question of harm to other people.

Do you think that you also have responsibilities along with those rights and liberties?

Yes; it is simply to abstain from all actions which restrict the free and legal activities of others.

2. Are these human rights currently sufficiently protected and promoted?

No; cyclists in all public places are compelled to wear helmets. The Commonwealth adopted this policy in 1989, by offering funds for roads in the states and territories conditional upon them legislating for it. The Australian Road Rules now require it too. It responds to fear of death and disability from head injury, which mainly result from damage to the brain. Its rationale or purpose is to minimise the medical and other public costs of accidents to cyclists (Enclosure B). A mandatory standard for helmets prescribed by Commonwealth legislation supports the legislation.

3. How could Australia better protect and promote human rights?

(a) Abolish the policy, remove from the Australian Road Rules the provision for

compulsion to wear a helmet and repeal the legislation that gives effect to it.

(b) Incorporate the ICCPR, in particular Articles 7, 9 and 26, into Australian law,

and consider human rights more formally in the process of legislating.

This Group has been campaigning against the helmet laws since 1992.

 

2. Right of self-protection

In Western civilisation, protection of one’s own person has been regarded, at least from the time of St Thomas Aquinas, as a private matter not subject to public law. Law in Europe developed from his emphasis on avoiding harm to others to become the primary rule of the civil code of Austria in the 19th century: ‘Abstain from all actions which restrict the free and legal activities of others’.[1] Later in the century, J.S. Mill declared that individuals are sovereign over their own bodies and minds, and power can be rightfully exercised over them only to prevent harm to others[2] This principle was taken up in the Universal Declaration of Human Rights 1948. Also, Mill defined the proper function of public authority in guarding against accidents as being only to warn of danger; not forcibly to prevent individuals from exposing themselves to it [166-68].

3. Helmet laws harmful

Though the helmet laws are intended to provide benefits to cyclists and to improve public health, they are harmful. First, cyclists have suffered harassment and punishment for non-compliance. In Victoria, in the first year of the law, 19229 Bicycle Offence Penalty Notices (fine of $15 then) were issued to adults and 5,028 Bicycle Offence Reports (no fine) to parents of children. In 2003, Victoria Police said that they still issued around 20,000 Bicycle Offence Penalty Notices a year (fine $50).

Exemptions have been provided for in most jurisdictions, mainly for medical reasons, but have not been easily obtained. In Victoria only 52 were granted in more than two years of operation of the helmets law.[3] Generally, provisions for exemptions have been phased out on the advice of the Royal Australasian College of Surgeons in 1992 (Enclosure C). Considering, among other things, the poor state of knowledge about the efficacy of bicycle helmets then [158] the advice had no scientific basis.

For refusing to pay fines for not wearing a helmet, people have been imprisoned in five jurisdictions. In Victoria on 8 May 1996, a woman who was refused an exemption and would not pay a fine was imprisoned for 24 hours, despite being six months pregnant. In a letter the Adelaide Advertiser on 16 August 1993, Mrs Ricky Kaak stated that her “71 year-old father-in-law was picked up by the Ceduna police the day before Christmas, 1992, because he refused to pay a fine for consistently not wearing a safety helmet while riding his bike. This elderly gentleman endured two days and two nights in the Ceduna lock-up”. In the Northern Territory, a 15 year-old girl was jailed. In the ACT, 16 residents’ driving licences and 143 non-residents’ right to drive a motor vehicle in the Territory were suspended in the first five years of the helmets law. None of these punishments was condign.

Discouragement

Not surprisingly, many people who do not want to wear a helmet have been discouraged from cycling. Using data from surveys in five states and two territories [162, Table 1] it is estimated that cycling by children and by adults declined by 40 per cent perhaps 30 per cent respectively. These people would have lost its benefits, including better health from the exercise and, for children, early opportunity to learn how to use roads safely [163-64]. And it is likely that motorists seeing fewer cyclists made less allowance for them, thus increasing their risk of accident.

Increased risk of brain injury

There is evidence that the risk of serious casualty, including fatal head injury, increased after the helmet laws [164-66]. This came about because governments failed to meet their prime responsibility to cyclists: to verify that helmets protect the brain and will not harm it. They took no account of scientific research on brain injury [141-52]. Further, in prescribing the mandatory standard, Commonwealth authorities brushed aside findings of commissioned research which showed deficiencies in helmets including potential to increase diffuse injury to the brain [153-55]. This Group brought these deficiencies in the standard to the attention of authorities in 1998 and we have since been pressing for remedial action, but to no avail. And authorities have never warned the public of the deficiencies.

4. The ICCPR

Article 7 provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” As we interpret the article, the second sentence helps to define the meaning of the first, not vice versa, by making clear that it includes any enforced medical or scientific experimentation.

The Productivity Commission recently pointed out that it is not possible to have certainty in public policy: always it is experimentation. But it needs a good rationale or theory, and all policy experiments need to be monitored and evaluated.[4]

Because Australia was the first country in the world to compel the wearing of bicycle helmets, the policy is, more than most, an experiment, that is, “a procedure adopted in uncertainty whether it will answer the purpose” (SOED). Moreover, having regard to its purpose – see above – the policy amounts to (preventive) medical experimentation. Some other policies adopted for purposes of medical treatment would also be experimentation, but they normally are evaluated against scientific knowledge and by proper monitoring. Before drugs and therapeutic devices are permitted to be sold in Australia, the Therapeutic Goods Administration evaluates their efficacy and safety, having regard to all relevant knowledge, and thereafter monitors the use of them and published reports about them. If adverse effects or dangers in their use come to light, they are withdrawn from the market.

By contrast, on the critical issue of protecting the brain from fatal or disabling injury, the policy of compulsion to wear a helmet runs contrary to scientific knowledge [150-52], the mandatory standard for them is deficient and Commonwealth authorities have not done proper monitoring. The policy was adopted in uncertainty whether it would answer the purpose of reducing the risk of brain injury and its resulting social costs. Later, authorities failed to consider the implications of a report of the NHMRC in 1994 which warned that the wearing of helmets may result in an increase in diffuse brain injury [160]. It would appear that compulsion to wear a helmet contravenes Article 7 of the ICCPR.

Article 9

Article 9 provides that everyone has the right to liberty and security of person, but there is evidence that compulsion to wear a helmet increases the risk of serious casualty to cyclists, and of fatal head injury [164-66]. It would appear, then, that Article 9 is also contravened.

 

Article 26

Article 26 provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Compelling cyclists to wear helmets for the purpose of minimising the public costs of accidents contrasts sharply with motorists, who suffer many more head injuries; in 1988, 690 occupants of motor vehicles died from head injury compared to 40 cyclists.  Whether there is discrimination according to Article 26 depends, first, on whether for its purposes category of road user may be a status. As the examples of grounds that are listed do not seem to imply limitation to any class, it would appear that status has a wide meaning. According to Bailey, the intention of Article 26 is to prohibit discrimination of certain kinds, either those specified or extrapolated by using the concept of status.[5]

Second, the UN Human Rights Committee has observed that not every differentiation of treatment will constitute discrimination if the criteria for it are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. Differentiation therefore might be reasonable if authorities believed that compelling occupants of motor vehicles to wear helmets would not reduce their head injuries and the resulting medical and other public costs. But authorities do not believe that; the media release in 1998 of a study of head and brain injuries to occupants of cars (Enclosure D) shows that their belief is that bicycle-style helmets would provide great protection. Enclosure E depicts the study’s principal author, Professor Jack McLean, and others wearing helmets in a car.

It would appear that the laws that compel cyclists to wear helmets contravene Article 26 of the ICCPR.

4. The common law

The purpose of minimising the medical costs of cycling accidents makes the policy of compulsion to wear a helmet a preventive medical treatment in effect. An issue is whether the helmet laws take away human rights under the common law pertaining to medical treatment. Two such rights are the choice to be treated or not, and to be warned of likely adverse effects.

Over the twenty years before the helmet laws, it was increasingly recognised that people have the right – indeed the responsibility – to decide for themselves what medical treatment they will have and doctors have a duty to give them sufficient information to make their decisions.[6] Courts have expressed these rights in strong terms. In 1992, England’s highest court upheld the right to refuse medical treatment, as follows: “The patient’s interest consists of his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. … In the ultimate the right of the individual is paramount.”[7] In the same year, the High Court of Australia made it clear that all medical treatment is preceded by the patient’s choice to undergo it, and that a doctor has a duty to warn a patient of a material risk inherent in it.[8]

Clearly, the helmet laws take away cyclists’ right to choose whether to wear a helmet, there being no question of harm to any other person. This contrasts with the respect which government accords to the right of persons to reject other preventive medical treatment, such as vaccination against whooping cough and other contagious illness, even though others are put at risk. And authorities have never warned the public that wearing a helmet is likely to increase the risk of diffuse injury to the brain. Rather, they proclaim that helmets save lives (Enclosure F).

We do not question the right of parliaments to override the common law, but suggest that they should make provision for more formal consideration of human rights in the process of legislating.

5. Conclusions

(a) Legislation which the Australian states and territories enacted to give effect to a Commonwealth policy that cyclists should be compelled to wear helmets removes a long-standing right to choose how to protect one’s own person.

(b) There is evidence that the legislation has harmed cyclists by subjecting them to penalties, by discouraging cycling, with loss of its benefits for health, and by increasing the risk of serious casualty including fatal head injury. It would appear that the legislation contravenes Articles 7, 9 and 26 of the ICCPR and takes away human rights under the common law.

(c) The policy of compulsion to wear a helmet should be abolished, the provision for it in the Australian Road Rules removed and the legislation giving effect to it repealed.
(d) The ICCPR, at least Articles 7, 9 and 26, should be incorporated into Australian law and human rights should be considered more formally in the legislative process.


References

[1] Strakosch, H.E., State Absolutism and the Rule of Law, p. 208, Sydney University Press. 1967.

[2] Mill, J.S., On Liberty and other Essays, World’s Classics, New York, Oxford University Press, 1991, p. 14.

[3] Vulcan, AP, Cameron MH, Finch CF, Newstead SV (Monash University Accident Research Centre). Establishing compulsory bicycle helmet wearing – the experience in Victoria, Australia. In Proceedings of European Consumer Safety Association meeting  “Helmets for all”. April 1993.

[4] Gary Banks speech ANZSOG/ANU Public Lecture Series 2009, Canberra, 4 February.

[5] Bailey, PH. Human Rights, Australia in an international context, Butterworths, Sydney. 1990.

[6] Skene, L., You, your doctor and the law, Oxford University Press, Australia, Melbourne, 1990.

[7] Re T (Adult: Refusal of medical treatment), (1992) 4 ER 649 at 668.

[8] Rogers v Whitaker (1992) 175 CLR 479, at 487.

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