A subject of current controversy in Australia is the role of governments in individuals’ choices about protecting themselves against disease and injury. Concerns have been expressed about infringement of civil liberties and possible adverse effects of preventive medical treatments that governments are urging, immunisation for example. People are rightly demanding the full scientific knowledge that shows the efficacy of these, but have never done so for preventive treatments in the form of compulsory self- protection of road users, namely helmet wearing for motorcyclists, beginning from the 1960s, seat belts for motorists from the 1970s and helmets for pedal cyclists from the 1990s. Authorities have accorded to these much of the credit for the halving of fatalities on the roads since 1970. Is this true? Does it compensate for loss of the centuries-old right of individuals to choose how to protect their own persons? These questions are important now because the relevant laws are scheduled to be entrenched as uniform Australian Road Rules.
Self-protection and the individual
In our system of government, the powers of public authority are contained within law consistent with two basic beliefs of Western Christendom: the rational and organic nature of society and the transcendent value of the human person.  A balance exists between the right of the state to impose legal sanctions and the rights of the individual, including self-protection. J.S. Mill defined the balance in 1858 as follows:
“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. … Over himself, over his own body and mind, the individual is sovereign.” 
Mill went on to describe a proper office of public authority to guard against accidents:
“When there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk: in this case, therefore he ought to be only warned of the danger; not forcibly prevented from exposing himself to it.” 
Under Hitler’s doctrine “Law is what benefits the people”, individual rights and freedoms in Germany were subjugated to the common good, as evaluated by the state, and the balance as Mill had defined it was destroyed.  The Universal Declaration of Human Rights, 1949 (UDHR) re-affirmed individual rights: freedoms to be limited only as necessary to safeguard rights of others. This established Mill’s definition as an international standard which liberal democracies have generally followed. In effect, they have left self-protection largely to the instinct of self-preservation, the function of public authority being to assist by providing information and advice and setting safety standards for protective devices.
Paradoxically, while legislation was taking away the right of individuals to choose whether to wear a helmet or seat belt, their right under the common law to decide upon other preventive medical treatment to protect their health was being strengthened. A 1990 guide to the law noted that over the previous twenty years it had “increasingly been recognised that patients have the right – indeed the responsibility – to decide for themselves what medical tests or treatment they will have” and doctors have a duty “to give patients sufficient information to enable them to make their own decisions about the treatment that is offered to them.”  Superior courts have since continued to strengthen individual patients’ rights. 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.”  Subsequently, the High Court of Australia acknowledged “the paramount consideration that a person is entitled to make his own decisions about his life.” 
The UDHR declares that everyone is entitled to all the rights and freedoms set forth in it, without distinction of any kind, such as race, sex or other status. The International Covenant on Civil and Political Rights, 1976 (ICCPR), to which Australia has acceded, provides that the law of parties to it shall guarantee protection against discrimination on any ground. Parties to the ICCPR may depart from it only in time of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” Avoidance of unfair discrimination has thus become a standard for laws in Australia.
Compulsory self-protection of road users in Australia
For compulsory self-protection of road users, the motive of reducing casualties is laudable, but, as an eminent American judge warned:
“Experience should teach us to be more on our guard to protect liberty when the Government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachments by men of zeal, well meaning but without understanding.” 
The late Justice Lionel Murphy similarly warned Australians:
“Every generation has to fight over and over again the battle for our fundamental rights and liberties and this generation has to do that also. In recent times, almost every one of our fundamental rights and liberties has been either trampled on, whittled away, challenged or ignored.” 
Nevertheless, the Australian public has hardly questioned the usurpation of the democratic right of individual road users to choose how to protect themselves.
Individuals could reasonably expect members of legislatures to protect their civil liberties from infringement, but few members have attempted this. Strident propaganda has generated a willingness to accept measures which appear to promise to reduce the road toll. Even the Victorian Council of Civil Liberties condoned compulsory bicycle helmets “in the interests of protecting people from further road disaster.”  The practice of governments acting in concert, such as state and federal ministers agreeing in conclave on the principles of the legislation for compulsory bicycle helmets, has facilitated the overriding of individual liberties in the supposed national interest. Action under an agreement between heads of government is now due to entrench compulsory wearing of helmets by motorcyclists and pedal cyclists and seat belts by motorists in law as Australian Road Rules.  These three forms of enforced self- protection are examined below against suggested criteria for measures to enforce behaviour in a democracy: the existence of a social ill needing a remedy, efficacy, and compliance with international standards.
The Government of Victoria did not define a social ill needing a remedy when it introduced the world’s first legislation, in 1960, to compel motorcyclists to wear helmets. Though their death rate was much higher than occupants of cars, motorcyclists were mainly young men,  the group which also has the highest rate of accident as car drivers. There was no public emergency or even increase in casualties, deaths of motorcyclists having halved over the previous five years.  Despite voluntary wearing of helmets having reached 56 per cent, it was simply assumed that motorcyclists could not be responsible to protect themselves.
Proven efficacy is an obvious requirement for any safety measure, but the Government adduced no scientific evaluation of it. The minister merely said the police had been experimenting with helmets and “the Police Department and other organisations are now satisfied that the wearing of protective helmets will prevent deaths.”  It was assumed, perhaps by false analogy with helmets that protect workers from small fast-moving objects, that helmets would reduce brain injury, but, as pointed out in a 1987 study, the response of the head and neck system to impacts is an unsolved problem.  Testing of helmets is simply by simulation of direct impact, at only 22 kph for motorcycle helmets, 20 kph for bicycle helmets, of the top of the head onto a hard surface,  but oblique impacts are more common in actual crashes. These generate high rotational forces which are the main cause of brain injury, and which the 1987 study suggested are actually increased by helmet wearing.
Similarly, the National Health and Medical Research Council, in a report on football injuries in 1994, said helmets may possibly reduce the incidence of scalp lacerations and other soft tissue injury, but
“The use of helmets increases the size and mass of the head. This may result in an increase in brain injury by a number of mechanisms. Blows that would have been glancing become more solid and thus transmit increased rotational force to the brain.” 
A study of motorcycle collisions in the early years of compulsory helmet wearing in Victoria observed that “the only visible protective effect was that the helmet stopped soft tissue injury to the scalp.”  Thus, there was no sound basis for the assumption that standard helmets would protect against brain injury. That an innovative measure of unproved efficacy could be passed into law without question may perhaps be attributed to motorcyclists being a minority with a high rate of casualty, and a dread of brain injury.
Empirical studies have since claimed to show benefits from helmet wearing. A 1964 study by the Australian Road Research Board concluded, from statistics before and after legislation, that it had reduced the risk of death in Victoria by two-thirds, but the study lacked data for some important variables and had no basis in mechanics of head injury taking account of rotational forces.  In 1994, the Australian Government chose instead to cite an empirical study in America, which estimated that helmets are 28 per cent effective in preventing fatalities to motorcyclists involved in accidents.  As well as being narrowly based, that study did not allow for an effect suggested by Davis, namely that helmeted motorcyclists may feel safer, ride a little less carefully and therefore have more accidents, in which other road users may also be injured.  This suggestion is supported by detailed data for Britain, where compulsory helmet wearing was introduced in June 1973. Motorcyclists and pedestrians they collided with did not enjoy the decline in deaths and serious injuries that other road users experienced from 1972 to 1975, even after making allowance for an increase in distances travelled by motorcyclists. Claims have been made that death rates of motorcyclists increased after the repeal of helmet laws in some states of the USA, but Davis noted that the main evidence for this was a graph of fatality rates across states, whether they repealed the law or not, and the rate of increase was greater in states that did not repeal their laws.
In their inquiries on motorcycle helmets in 1978 and 1984, standing committees of the House of Representatives did not question efficacy. The Federal office of Road Safety (FORS) made the following strong statement to the 1984 committee,  but when requested could not provide supporting evidence for it: 
“At the outset, it is appropriate for the Office of Road Safety to re-affirm unequivocally that the wearing of safety helmets by motorcycle riders and pillion passengers and by bicyclists is the principal means of reducing casualties in crashes. … any doubts about the safety of helmets need to be quickly resolved. It is most important that there is no erosion of public confidence in the use of safety helmets.”
Compliance with international standards was not considered when the compulsory helmets law was introduced in 1960.  Debating it with twelve unrelated provisions in the same Bill, the Victorian Parliament did not even recognise it as a world precedent in enforced self- protection. Infringement of liberties was not mentioned, though self- protection on roads was an innovation and helmet laws discriminate unfairly, head injury being the commonest cause of death for occupants of cars also, and many more of them dying from it.  A 1987 report of the Federal Office of Road Safety recommended that occupants of cars should use protective head wear, but governments did nothing.  “Later FORS reports noted that the frequency with which injury to the head was still occurring “to front seat occupants wearing a seat belt is very disturbing.” Injury to the head was identified as by far the highest contributor to the total cost of injury but protective head wear was not even mentioned among protective measures canvassed.  Clearly, the helmet wearing laws fall short of accepted standards in a democracy.
In compelling the wearing of seat belts in cars in 1970, Victoria was again first in the world  and there was no suggestion of any emergency. Though undefined, the social ill presumably was seen as continuation of the two-thirds increase in deaths of occupants of cars in the 1960s. In the first half of the 1960s, when many families were first experiencing motoring, fatalities increased more rapidly than the numbers of licensed drivers and vehicles on register. In the second half, the reverse was true, not only in Victoria but also for deaths and injuries in Australia as a whole.  It would seem that experience had taught safer driving, towards a remedy for the social ill.
Again, no thorough evaluation of efficacy was made by competent authority, to support the legislation. There was just a report by a parliamentary committee, citing statistical correlations of casualties with voluntary seat belt wearing in Sweden and Victoria and with compulsory wearing in vehicles operated by the Snowy Mountains Authority.  Despite this, the other states quickly followed Victoria’s lead and wearing has been compulsory throughout Australia since 1972. New South Wales did a feasibility study, but it did not discuss efficacy because the political decision on compulsory wearing had already been made.  There was no nationally co-ordinated monitoring in Australia to evaluate compulsory wearing in practice. From a review of the studies that were done soon after its introduction, FORS reported that the reduction in occupant fatalities from expected trends was 15-20 per cent,  but this was on the assumption that the rising trend of the 1960s would have continued.  More recently, FORS has chosen instead to cite American research of the 1980s which estimated that seat belts would reduce the rate of fatality to front-seat occupants of cars involved in fatal accidents by 40 per cent.  Again, this is narrowly based and, if drivers wearing seat belts drive a little less carefully, the risk to other road users would be increased. According to Hamer,  a report by the British Department of Transport supports this theory. He said “The DoT found that making drivers belt up had no significant effect on injuries among car users. However, it did find a significant increase in injuries among other road users.” This possibility was neglected in Australia; an official report in New South Wales in 1972 stated that only occupants of cars would be affected.  Moreover, FORS misrepresented Hamer, citing him as saying that the theory was refuted by statistics produced by the DoT.  No conclusive evidence of the efficacy of seat belts in practice in Australia has been adduced. On the contrary, from a wide-ranging study of accidents in New South Wales, Knott concluded in 1994 that no specific improvements in road traffic engineering and vehicle design, including seat belts, have had a measurable effect on the road toll. 
Democratic standards for laws were given scant consideration. In Victoria, the parliamentary committee considered objections on grounds of infringement of personal liberty, but declared “there should not be a compromise with death and injury where motor vehicle accidents are concerned.” Civil liberties were lightly dismissed in the parliamentary debate. Some legislators argued that injured people became a burden on the community, and compulsion was justified to reduce costs to hospitals.  In New South Wales, objections based on preserving the traditional liberty of persons were disposed of by an argument similar to Hitler’s doctrine, namely that “compulsion is necessary to secure the greatest good for the greatest number, that society is entitled to protect individuals from their own foolishness, and that it is superficial for the individual to assert that his own death or incapacity because of accident affects only himself.”  Perhaps the most insidious effect of the seat belt laws was to blunt people’s sensitivity to infringement of their civil liberties.
Confident that compulsory motorcycle helmets and seat belts had been successful, governments were careless about meeting criteria for measures to enforce self-protection upon cyclists. Victoria was the first in the world again, announcing compulsory helmet wearing in September 1989. In the following December, the then Prime Minister, Mr Hawke, announced that a condition of providing federal funds to the states and territories for eliminating “black spots” was that they should pass helmet laws by 1992.  No social ill had been shown, deaths of cyclists having been in long-term decline despite bicycle travel in Australia increasing by 10-12 per cent a year from 1986 to 1989. 
The Federal action was based on recommendations by Federal, New South Wales and Victorian parliamentary committees, but all lacked good evidence of the efficacy of helmets.  The 1978 Federal committee, which recommended “that cyclists be advised of the safety benefits of helmets and the possibility of compulsory wearing be kept under review,” simply took efficacy for granted. So did its successor, the 1985 committee, saying, early in the course of its inquiry: “It is, of course, this Committee’s belief that all cyclists should wear a helmet to increase cycling safety.” In support of its subsequent recommendation of compulsory wearing it used evidence of efficacy from only one study, by Dorsch and others, which estimated from statistics for self-reported injuries to members of bicycle clubs up to 5 years earlier “that the risk of death from head injury was considerably reduced for helmeted relative to unhelmeted bicyclists, depending on helmet type.”  This was a tentative finding only, acknowledging reporting bias and a need for further research. The Victorian Government noted that the study was based on a small sample of users and use of bicycle helmets had not reached a sufficiently high level anywhere for a scientific examination of its efficacy. 
In evidence to the 1985 committee, Dr Dorsch emphasised the need for care in using an estimate in the study that people wearing good, hard helmets were 19 times less likely to die, saying: “That was a hypothetical procedure based largely on an adult group of cyclists” and warning against generalising the findings to young bicyclists. Yet the committee’s report cited the 19 times estimate without qualification, adding that the Dorsch study had “received almost universal acceptance by bicycle groups who have been working for many years to have bicycle helmets widely accepted.” FORS, the proper authority to advise the Government on the efficacy of helmet wearing, did no evaluation of it. Though the stated purpose of the compulsory helmet wearing was to reduce the cost of bicycling injuries to the community, FORS did not seek advice from the NHMRC or other health authority.  No competent state or territory authority evaluated efficacy. Helmet manufacturers submitted no evidence of it, but said it was essential that helmets be used.
Moreover, the standard for helmets was degraded. The 1985 committee thought it should allow for soft-shell helmets, which would be more acceptable to users, but commissioned research on the matter in 1987 took account of the lethal effect of rotational forces and recommended that shells of helmets should be very stiff, with a low impact sliding reaction.  FORS said: “This research was made available to Standards Australia and assisted one of its committees to recommend changes to the bicycle helmet standard. The amended standard allowed the introduction of “soft top” helmets, improving the comfort of helmets helping to overcome an obstacle in introducing mandatory helmet wearing.”  The implication that there was research backing for soft top helmets is wrong and the amendment to the standard compromised safety. Tests of impacts of helmets on asphalt have since shown that, unlike hard-shell helmets which slide, soft helmets grab the surface, rotating the head. 
After the report of the 1985 committee but before the 1989 announcement of compulsory helmet wearing as Federal policy, statistical studies of helmet wearing and injury were done overseas. Those of Thompson, Rivara and Thompson, and Mills purported to show benefits of helmet wearing, but the British Medical Association commented that though these studies and that of Dorsch and others “provide useful preliminary data, further research is required.”  Rodgers examined a larger sample of cyclists than the others: 8 million cases of injury and death in the USA over 15 years. He concluded that “There is no evidence that hard shell helmets have reduced the head injury and fatality rates. The bicycle- related fatality rate is positively and significantly correlated with increased helmet use.”  Though this study was published in 1988, the year before Mr Hawke’s announcement of compulsory helmet wearing as Federal policy, FORS gave no warning about it to the ministers who decided on the policy and its implementation,  and did not act upon the 1985 committee’s recommendation that it should establish the costs and benefits of universal bicycle helmet usage. This was negligence.
Mr Hawke’s announcement acknowledged the advocacy of a prominent member of the Royal Australasian College of Surgeons (RACS), which had long been campaigning for compulsory helmet wearing. The RACS told the 1978 committee that cyclists should wear helmets, but provided no evidence of efficacy.  As Dr Trinca said,
“We could perhaps worry a little less about and take a little less time in proving what is precisely right according to all standards … As doctors we are impatient. We cannot wait for 2 or 3 years’ evaluation.”
Consequently, and in advance of research cited later in support of helmet wearing, the RACS pressed Victoria to make it compulsory, which eventually influenced Federal policy. Similarly, the denial of medical exemptions for both cyclists and motorcyclists is based on advice from the RACS,  but imposition of preventive medical treatment careless of conclusive evidence of its efficacy and particular medical circumstances is the antithesis of scientific medicine and medical ethics. In the absence of an evaluation of the efficacy of helmet wearing by public authority, the RACS’s views would appear to have been unduly influential. A former minister in the Hawke Government observed that after 1987 “increasingly, the Government, and most importantly Hawke, became hostage to narrow and unrepresentative pressure groups.”  He also said that the black spots program was not evaluated properly and was driven by opinion polls,  a view supported by official documents.
With efficacy unproved and the standard degraded on political whim, compulsory wearing of helmets is a reckless experiment with cyclists’ safety. It is also an uncontrolled experiment; transport authorities neglected the unique opportunity to make a scientific examination of the costs and benefits of helmet wearing when it reached a high level after compulsion. One cost was that cycling was discouraged. Though such an effect had not occurred with motorcyclists and motorists, it was known to be likely with cycling  and could have been measured on a consistent national basis. Instead, measurements of cycling before and after compulsion were mainly incidental to surveys of helmet wearing. Surveys in Victoria and the NT indicated that cycling by children declined by 36 per cent.  In the ACT, automatic counters on bicycle paths registered an average decline of 37 per cent. 
In NSW, matched surveys counted 6072 child cyclists (under 16) passing survey sites in April 1991, before the law commenced on 1 July, and 3887 and 3478 passing the same sites in April 1992 and 1993, declines of 36 and 43 per cent respectively.  Numbers of head injuries and other injuries to child cyclists before and after the helmets law are shown in Table 1, with, in brackets, my calculation of the numbers if they had declined in proportion to the number of cyclists counted in the surveys.
TABLE 1 HOSPITAL SEPARATIONS, INJURIES TO NSW BICYCLISTS UNDER 16 (source NSW Department of Health) Year ended Head Incr. Other Incr. 30 June Inj. risk inj. risk 1991/91 384 926 --------------------------------------------------law for <16 y.o 1991/92 272 (246) 815 (593) 1992/93 273 (219) +24% 893 (528) +68%
Contrary to a general trend to improved road safety for other road users, these data suggest that for those still cycling after the law the risk of serious injury, both to the head and otherwise, increased substantially. Robinson’s analysis put it that “if similar numbers of child cyclists had been on the roads in 1993 as before the law, deaths and serious injuries to child cyclists would have increased by 21 per cent, compared with a decrease of 21 per cent for child pedestrians and 20 per cent for child road users in general.” But the Roads and Traffic Authority, conveniently disregarding the decline in the number of cyclists, interpreted the data as “a substantially larger decrease in bicycle head injuries than other types of injuries, and increased helmet wearing has had a positive effect on the head injury rate.” 
For Victoria, Robinson’s analysis of statistics suggested that for the same cycle use as before the law there would now be no fewer head injuries and more total injuries to children.  For the ACT, admissions of cyclists to public hospitals hardly changed, suggesting the risk of serious injury increased by more than 50 per cent. Further, former cyclists who travel by another mode may still be injured, and they lose the benefits of the exercise for their health, which the British Medical Association has estimated “are likely to outweigh the loss of life through cycling accidents.”  Hence, it is likely that the helmet laws have increased costs of medical care, not saved on them, and distracted attention from measures to prevent accidents.
Official evaluations of the helmet laws commonly employ biased selection of research and statistics, resulting in benefits being unduly attributed to them and adverse effects underestimated. Examples abound. One from NSW is given above. In the ACT, the Department of Urban Services tried to explain away the post-law decline in cycling as being due to changes in the weather,  but its report says “all bicycle data collection was undertaken on rainless days”, and detailed records show little variation of weather. In Victoria, a government-funded study pointed to a post-law decline in the proportion of head injuries among injured bicyclists without acknowledging that this was so for pedestrians too.  It would seem that better detection of drink-driving and speeding had changed the character of accidents generally. The same study claimed that use of bicycles by adults during the first two post-law years “increased markedly,” but the only increase measured had been from the first to the second year, that claimed for the first year being by comparison with a survey in 1987/88 but subject to the caveat that it was “made at different times of the year and almost 3.5 years apart and therefore considered unreliable.” Though bicycle use by persons under 18 years declined by 43 per cent during the first post- law year and 29 per cent fewer adult cyclists were observed in Melbourne than in a survey the year before,  the study did not suggest the likelihood of a similar decrease in use by adults in the first year, and a net decrease over the first two years.
Later authors further distorted the findings of this study. Two members of the RACS said “Teenage cycling decreased … while adult cycling continued to increase. Overall bicycle use has continued to increase.”  They did not mention the applicable caveat. Nor did FORS, which cited them to support the following two statements in advice it gave in 1994 to a parliamentary committee inquiring into mandatory helmet wearing in Western Australia: “Adult riding continued to increase. Overall bicycle use has continued to increase since the law.” In the first statement, FORS accepted uncritically what the RACS authors said, though it was unsubstantiated and the evidence indicated the contrary was likely. In the second, the addition of the words “since the law” excluded the true interpretation of the continued increase being from 1987/88. Thus, FORS’s statement was positively misleading.
Democratic standards for laws again were given scant consideration. Governments argued that civil liberties are not infringed because compulsory helmet laws are intended to save the cost to the community of bicycle accidents.  The argument is superficial; the helmet laws take away the individual’s long-standing right under the common law to decide what treatment he will undergo to protect his own health. As shown above, wearing a helmet is likely to increase injury to the brain. The Supreme Court of the ACT has interpreted the common law so as to provide people with a remedy against risking such an outcome: a cyclist who believes on reasonable grounds that wearing a helmet will increase the risk or severity of injury is not compelled to do so.  This is testimony to the inconsistency of the helmets law with democratic standards. Further, on the governments’ argument, behaviour such as wearing a hat to reduce skin cancer could be made compulsory. Already, in the ACT, so-called mandatory procedures of the Department of Education and Training say “Protective hats are to be worn by all members of the school community including staff and parents assisting at outdoor functions.”  The helmet laws discriminate unfairly against cyclists compared to other road users, who suffer far more head injuries. In Australia in 1988, 17 motorists and six pedestrians died from head injury for each cyclist.  One author of the FORS report that recommended car occupants wear protective hats suggested bicycle helmets  – as illustrated by personnel of the NHMRC’s road accident research unit. [photograph courtesyAdelaide Advertiser].
Gain or harm to society?
Any gains would be in terms of the stated purpose of compulsory self- protection, to reduce death and injury and the consequent costs to society, mainly to the health care system. They would need to be substantial to compensate for the departure from the traditional balance between the rights of the state and the individual. A difficulty in assessing gains is that no social ill needing a remedy was ever clearly defined. Nor did governments establish systems to monitor compulsory use and evaluate it with accuracy, but the available data indicate that gains have been problematic at best. For bicycle helmets, the indications are of a net loss in health and welfare.
Three important harms to society have occurred: the rights of individuals to choose self-protection and medical treatment eroded; unfair discrimination institutionalised in statutory law; and democratic processes and institutions corrupted. Corruption occurred, first, by governments not trusting the people and their instinct for self-preservation, and disregarding their rights. Individuals’ rights under common law to protect their own persons and to refuse medical treatment were lightly set aside. Second, governments failed to use democratic processes to identify the social ill for which compulsory helmets or seat belts were supposed to be the remedy, and to ascertain their efficacy. They did little more than adopt popular notions that were largely a product of the propaganda of narrowly-based groups, and never soundly evaluated. Lacking a basis of experience of enforced wearing of helmets and seat belts in any other country, and conclusive evidence of their efficacy, governments were only experimenting when they made use compulsory. Social ill and efficacy should have been ascertained through open public debate informed by all available knowledge. Would compulsory helmet wearing have been supported if people had known that fatalities to motorcyclists and cyclists were decreasing? In a process of open public debate, proposals having mere popular appeal but no scientific validity, such as the degradation of the standard for bicycle helmets, could hardly have been adopted, and the1988 finding of an increased fatality rate to helmet wearers would have been taken into account. After such a finding, what government would endorse the use of any other medical treatment, say a new therapeutic device?
The third and perhaps most serious corruption is that transport authorities have made unsubstantiated claims for the success of compulsory self-protection and have insisted that it is up to opponents to disprove them, a reverse onus contrary to democratic practice. From such research as has been done, much of it of dubious rigour, authorities have selected findings that appear to show benefits. They have disregarded or misrepresented findings that suggest that compulsion to wear seat belts and motorcycle helmets has done little or nothing to reduce casualties, and that compelling cyclists to wear helmets has been harmful. Moreover, general acceptance of authorities’ claims might well increase support for other forms of enforced preventive medicine. To reduce costs of public health care, why not compulsory wearing of hats in the summer sun, a ban on smoking? … the list goes on.
To undo the harm of compulsory self-protection of road users, and check a trend to enforced preventive medicine, independent and open inquiries into the three measures should first be conducted, beginning with the most recent, helmets for cyclists. This might well result in the making of better policies in the future, that respect democratic values and are more broadly based, with, for example, health authorities making input where reduced costs of health care are sought. Technical matters such as evaluation of efficacy should be removed from the political process to an independent statutory authority with the requisite capability.
I thank Jim Arnold, Ralph Curnow and James Grieve for their helpful comments.
1. Strakosch, H.E., State absolutism and the rule of law, Sydney University Press, 1967, p. 221.
2. Mill, J.S., On liberty and other essays, World’s Classics, OUP, Oxford, New York, 1991, p. 14.
3. Mill, ibid., p.107.
4. Strakosch, ibid., p. 243.
5. Skene, L., You, your doctor and the law, Oxford University Press, Australia, Melbourne, 1990.
6. Re T (Adult: Refusal of medical treatment), (1992) 4 ER 649 at 668.
7. Rogers v Whitaker (1992) 175 CLR 479, at 487.
8. Justice Brandeis, Olmstead v United States 277 US 438, 1928.
9. Lionel Murphy, Address to Australian Labor National Conference, 1967.
10. The Age, Melbourne,1 July 1990.
11. The Light Vehicles Agreement, 1992.
12. Foldvary, L.A. and Lane, J.C., The effect of compulsory safety helmets on motor-cycle accident fatalities, Australian Road Research, September 1964.
13. Federal Office of Road Safety, Road traffic accident data and rates: Australia, States and Territories 1925 to 1981, Canberra, 1984.
14. Minister for Local Government, Hansard p. 2356, Melbourne, 1960.
15. Corner, J.P., Whitney, C.W., O’Rourke, N. and Morgan, D.E., Motorcycle and bicycle protective helmets: requirements resulting from a post crash study and experimental research, Federal Office of Road Safety report no. CR 55, Canberra 1987, p. 5.
16. Australian Standards AS 1698 and AS 2512.3.1.
17. National Health and Medical Research Council, Football injuries of the head and neck, AGPS, Canberra, 1994.
18. Tony Ryan, NHMRC Accident Research Unit, Crash injury biomechanics, Proceedings of a conference held in Adelaide, July 1992.
19. Foldvary and Lane, ibid.
20. Evans, L.E. and Frick, M.C., Helmet effectiveness in preventing motorcycle driver and passenger fatalities, Accident Analysis and Prevention, Vol. 20, No. 6, 1988.
21. Davis, R., Death on the streets, Cars and the mythology of road safety, Leading Edge Press, Hawes, North Yorkshire, 1993, p. 171.
22. Federal Office of Road Safety, Submission to House of Representatives Standing Committee on Transport Safety, Canberra, 23 May 1984.
23. Federal Office of Road Safety, letter of 25.9.97.
24. Motor Car (Amendment) Bill 1960.
25. Attewell, R.G. and Dowse, M.J., Fatal crash types. Analysis of 1988 fatality file, Federal Office of Road Safety report No. CR 105, Canberra 1992.
26. McLean, A.J., Simpson, D.A., Cain, C.M.S., McCaul, K.A., Freund, J.R. and Ryan, G.A., Head and neck injuries in passenger cars: a review of the literature, Federal Office of Road Safety report No.CR 59, 1987.
27. Fildes, B.N., Lane, J.C., Lenard, J. and Vulcan, A.P., Passenger cars and occupant protection, Federal Office of Road Safety report No. CR 95, Canberra, 1991.
28. Except for Malawi
29. Federal Office of Road Safety, Road traffic accident data and rates: Australia, States and Territories 1925 to 1981, Canberra, 1984.
30. Victoria, Joint Select Committee on Road Safety, 3rd progress report, Votes and proceeding s and papers, session 1969-70, 9 September 1969.
31. Skinner, N., Henderson, M. and Herbert, D., Compulsory wearing of seat belts a feasibility study, Traffic Accident Research Unit, Department of Motor Transport, New south Wales, Sydney, 1970.
32. Milne, P.W., Fitting and wearing of seat belts in Australia, the history of a successful countermeasure, Federal Office of Road Safety report No. OR 2, AGPS, Canberra, 1985.
33. Adams, J., The efficacy of seat belt legislation, Society of Automotive Engineers, SAE Transactions, 1982.
34. Evans, L., The effectiveness of safety belts in preventing fatalities, Accident Analysis and Prevention, Vol. 18, No.3 June 1986.
35. Hamer, M., Report questions whether seat belts save lives, New Scientist, 7 February 1985.
36. Traffic Accident Research Unit, Department of Motor Transport, Compulsory wearing of seat belts, a preliminary evaluation of effects, Sydney, 1972.
37. Federal Office of Road Safety, Vehicle occupant protection in Australia, report OR 10, 1988.
38. Knott, J.W., Road Accidents in New South Wales, Australian Economic History Review, XXXIV, Sept., 1994, pp. 80-116.
39. Hansard report of debate on Motor Car (Safety) Bill 1970, p. 2793.
40. Skinner et al, ibid
41. Prime Minister, media statement, 5 December 1989.
42. Department of Transport and Communications, SPOKES, Information for cycle-conscious communities, Canberra, 1993.
43. House of Representatives Standing Committee on Transport Safety, Final report on motorcycle and bicycle helmet safety inquiry, AGPS, Canberra, 1985.
44. Parliament of New South Wales, Joint Standing Committee on Road Safety, Staysafe 12, Bicycle safety, 1988.
45. Parliament of Victoria, Social Development Committee, Safe Roads for Children, inquiry into child pedestrian and bicycle safety, first report, 1986.
46. Dorsch, M.M., Woodward, A.J. and Somers, R.L., Do bicycle helmets reduce severity of head injury in real crashes?, Acc. Anal. & Prev. 19, 3, pp. 183-190, 1987.
47. Submission to the House of Representatives Standing Committee on Transport Safety inquiry on motorcycle and bicycle helmet safety, 1985.
48. Federal Department of Transport, response to FOI request, 21 September 1995.
49. Corner et al, ibid, p. 36
50. Federal Office of Road Safety, letter of 24 June 1992.
51. Andersson, T., Larsson, P. and Sandberg, U., Chin strap forces in bicycle helmets, Swedish National Testing and Research Institute, Materials & Mechanics, SP report 1993:42.
52. British Medical Association, Cycling towards health & safety, Oxford University Press, Oxford, 1992, p. 84.
53. Rodgers, G.B., Reducing bicycle accidents: a reevaluation of the impacts of the CPSC bicycle standard and helmet use, Journal of Products Liability, Vol. 11, pp. 307-317, 1988.
54. Federal Department of Transport, response to FOI request, 26 September 1995.
55. Evidence to the House of Representatives Standing Committee on Road Safety, 1978, p. 832.
56. National Road Trauma Advisory Council, letter to ACT Minister for Urban Services, 1992.
57. Walsh, Peter, Confessions of a failed finance minister, Random House Australia, Sydney, 1995, pp. 170, 227
58. Senator Peter Walsh, reported in the Australian Left Review of April 1992.
59. Evidence to the House of Representatives Standing Committee on Transport Safety, 1985, p. 1078
60. Cameron, M., Heiman, L. and Neiger, D., Evaluation of the bicycle helmet wearing law in Victoria during its first 12 months, Report No. 32, Monash University Accident Research Centre, Melbourne, July 1992.
61. Road Safety Council of the Northern Territory, Bicycle helmet wearing in the Northern Territory, Darwin, 1993.
62. Ratcliffe, P., Bicycling in the ACT – a survey of bicycle riding and helmet wearing in 1992, ACT Department of Urban Services, Canberra, 1993.
63. Smith, N.C. and Milthorpe, F.W., An observational survey of law compliance and helmet wearing by bicyclists in New South Wales – 1993, for the New South Wales Roads and Traffic Authority, Sydney, 1993.
64. Roads and Traffic Authority, New South Wales, The current state of bicycle riding, June 1994.
65. Robinson, D.L., Head injuries and bicycle helmet laws, Accid. Anal. and Prev. Vol. 28, No. 4, 1996, pp. 463-475.
66. British Medical Association, Cycling towards health & safety, Oxford University Press, Oxford, 1992, page 121.
67. Ratcliffe, ibid.
68. Finch, C.F., Newstead, S.V., Cameron, M.H. and Vulcan, A.P., Head injury reductions in Victoria two years after introduction of mandatory bicycle helmet use, Monash University Accident Research Centre report No. 51, July 1993, p.16.
69. Finch, C.F., Heiman, L. and Neiger, D., Bicycle use and helmet wearing rates in Melbourne, 1987 to 1992: the influence of the helmet wearing law, Monash University Accident Research Centre report no. 45, February 1993, pp. 35, 36.
70. Lane, J. and McDermott, F., Do helmet wearing laws prevent bicycle injuries? Medical Journal of Australia, Vol. 159, pp. 719-721, 1993.
71. Brown, Bob, Federal Minister for Land Transport, letter of 21 February 1992.
72. Van Schaik v Neuhaus, 1 May 1996.
73. Sunsmart policy and mandatory procedures, circular minute No. 49/93, 29 April 1993.
74. Attewell and Dowse, ibid.
75. Ryan, G.A., Improving head protection for cyclists, motorcyclists and car occupants, World J. Surg. 16, 398, 1992.
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