Introduction

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. [1] 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.” [2]

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.” [3]

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. [4] 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.” [5] 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.” [6] Subsequently, the High Court of Australia acknowledged “the paramount consideration that a person is entitled to make his own decisions about his life.” [7]

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.” [8]

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.” [9]

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.” [10] 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. [11] 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.

Motorcycle helmets

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, [12] 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. [13] 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.” [14] 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. [15] 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, [16] 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.” [17]

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.” [18] 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. [19] 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. [20] 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. [21] 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, [22] but when requested could not provide supporting evidence for it: [23]

“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. [24] 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. [25] A 1987 report of the Federal Office of Road Safety recommended that occupants of cars should use protective head wear, but governments did nothing. [26] “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. [27] Clearly, the helmet wearing laws fall short of accepted standards in a democracy.

Seat belts

In compelling the wearing of seat belts in cars in 1970, Victoria was again first in the world [28] 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. [29] 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. [30] 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. [31] 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, [32] but this was on the assumption that the rising trend of the 1960s would have continued. [33] 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. [34] 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, [35] 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. [36] Moreover, FORS misrepresented Hamer, citing him as saying that the theory was refuted by statistics produced by the DoT. [37] 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. [38]

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. [39] 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.” [40] Perhaps the most insidious effect of the seat belt laws was to blunt people’s sensitivity to infringement of their civil liberties.

Pedal cyclists

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. [41] 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. [42]

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. [43][44][45] 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.” [46] 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. [47]

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. [48] 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. [49] 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.” [50] 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. [51]

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.” [52] 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.” [53] 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, [54] 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. [55] 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, [56] 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.” [57] He also said that the black spots program was not evaluated properly and was driven by opinion polls, [58] 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 [59] 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. [60][61] In the ACT, automatic counters on bicycle paths registered an average decline of 37 per cent. [62]

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. [63] 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.” [64]

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. [65] 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.” [66] 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, [67] 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. [68] 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, [69] 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.” [70] 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. [71] 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. [72] 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.” [73] 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. [74] One author of the FORS report that recommended car occupants wear protective hats suggested bicycle helmets [75] – 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.

Acknowledgments

I thank Jim Arnold, Ralph Curnow and James Grieve for their helpful comments.

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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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Special Notes

This article, written and researched by Bill Curnow, has been published (with only minor differences to the original version appearing here) in Current Affairs Bulletin, Vol 74 No 6, April/May 1998.

Current Affairs Bulletin is refereed, with manuscripts reviewed by specialists in relevant fields. Final decision on publication rest with the editors.

Wearing of helmets has been compulsory for cyclists in Australia for years, but how many people know that reports of the Federal Office of Road Safety, in 1987 and 1998, recommend them for occupants of motor vehicles too?

Hoping that helmet wearing would reduce serious head injury and satisfied that the costs and inconvenience to bicycle riders were “more than balanced by the savings to the community”, Australian governments made it compulsory for cyclists. They have not applied this reasoning to vehicle occupants, whose head injuries cost $1.5 billion a year! Instead, FORS published the 1998 report “so that the community can make informed choices” and emphasised helmet wearing as a voluntary measure only – in contrast to giving cyclists no choice.

As costs of helmets to motorists and cyclists would be the same, governments must be assumimg that helmet wearing would cause greater inconvenience to motorists. As shown below, the reverse is true.

Important inconveniences of wearing a helmet are difficulty of secure storage, less protection from the sun than is provided by a normal hat and a restricted flow of air to keep the head cool.

For cyclists, secure storage of helmets can be difficult. At places of work, storage may be easy, but at schools is likely to be difficult. In retail premises and public buildings it is usually not possible. For occupants of motor vehicles, secure storage would be easy.

Medical research has found “for people outdoors in Australia, a hat with at least a 7.5 cm brim is necessary to provide reasonable protection around the nose and cheeks, those sites on which non- melanoma skin cancers commonly occur.” As helmets have narrower brims, a cyclist wearing one is not adequately protected, whereas the roofs of motor vehicles shade their occupants.

Helmets restrict the flow of air needed to dissipate heat generated through the exertion of cycling, causing discomfort in hot weather. Occupants of motor vehicles do not exert themselves and would suffer less discomfort.

It has been argued that some vehicles provide insufficient headroom to allow occupants to wear a helmet. The argument is spurious. Such vehicles would be rare, only tall people would be affected and could use a headband as an alternative – see media release below.

Clearly, helmets cause much more inconvenience to cyclists than they would to occupants of motor vehicles, and bicycle helmet laws discriminate unfairly.

The inconvenience of helmets to cyclists is of course borne out by the decline in cycling, by about a third, after the introduction of compulsory wearing. As rates of casualty to the remaining cyclists increased, this inconvenience was not balanced by savings to the community.

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Media Release

COMMONWEALTH DEPARTMENT OF
TRANSPORT AND REGIONAL
DEVELOPMENT

18 September 1998
D2/98

PROTECTIVE HEADWEAR FOR CAR OCCUPANTS

Head injuries to car drivers and passengers could be reduced by as much as 25% if they wore light protective helmets or even padded headbands, according to a research report released today by the Federal Office of Road Safety (FORS).

The report presents findings from a two-year study on head and brain injuries among car occupants. It was jointly conducted by the NHMRC Road Accident Research Unit (University of Adelaide) and the Monash University Accident Research Centre.

The study found that bicycle-style helmets would be as effective as driver airbags in preventing head injuries, and would provide considerably greater head protection than many other in-vehicle options, such as improved interior padding, side-impact airbags or advanced seat-belt designs.

Professor Jack McLean, head of the Road Accident Research Unit, said that use of protective headwear could be a particularly valuable safety option for people with older cars, but even drivers with airbags would benefit significantly from the added protection.

While full helmets would provide the greatest safety benefits, Dr McLean’s detailed study of head injuries found that specially designed headbands could offer an innovative and practical alternative.

The proposed headbands would apply padding to the front and sides of the head. where most impacts occur. They would be lighter, cooler and less bulky than a conventional helmet.

A FORS spokesperson emphasised that protective headwear was being put forward as a voluntary measure only. “Car occupants are already better protected than cyclists or motorcyclists. But this research shows that safety could be improved quite a lot by using simple, low cost head protection. We are publishing these results so that the community can make informed choices.”

Head injuries to vehicle occupants account for almost half of all injury costs from passenger car crashes. Beside the costs in human suffering, this represents a monetary cost to the community of about $1.5 billion per year.

The research report will be given to Australian helmet designers and manufacturers.

Copies of the report, Prevention of Head Injuries to Car Occupants: An Investigation of Interior Padding Options (CR 160), are available from the Federal Office of Road Safety by phoning (02) 6274 7185.

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Ms Pam Leicester, a behavioural scientist from the NRMA’s Road Safety Department, said the idea had merit, but it would not be easy to persuade motorists to wear helmets. – Sydney Morning Herald, 22 September 1998

Introduction

by Peter van Schaik

Medical Doctors have frequently claimed the right to enforce compulsory helmets on cyclists, to protect the public purse. For example in his review entitled “The Effectiveness of Bicycle Helmets: A Review” (1995), Dr. Michael Henderson says: “There remains a proportion of the riding population who are opposed to legislation requiring the use of helmets on grounds of principle. They simply cannot accept that society has the right to make them do something that protects only them.”

Henderson is completely wrong. He has nothing to back up his claim that societal interest prevails. Society has in fact consistently protected the rights of individuals to choose whether or not to accept a medical treatment. Wearing a helmet is really just another form of medical treatment, and in the form of legislation it is a medical treatment which has been administered by doctors onto their patients against their will.

Doctors tend to only see the end result of an accident, which they may reasonably feel a helmet would have prevented, from which they decide that all cyclists must wear helmets. Medical doctors and other medical staff are really just another minority group with extreme views. They have had an unreasonably large influence over the Government in the bicycle helmets issue. They have a lot to answer for! It could be said that if you can’t stand the sight of blood or human suffering, you shouldn’t become a doctor in the first place.

Compulsory helmets considered as a medical treatment

by Bill Curnow

The Royal Australasian College of Surgeons, Victorian Branch, was the prime mover towards compulsory helmet wearing. The Federal Government then took action to bring it about. Announcing this, then Prime Minister Mr Hawke said:

“I pay tribute in the development of this proposal to Sir Dennis Paterson, President of the International Society of Orthopaedics and Traumatology, whom I met earlier this year. As a result of his advocacy of the need for the Commonwealth to take the lead in this area, I asked Bob Brown and Neal Blewett to put together this package.”

Who’s who in Australia notes Sir Dennis’s prominent role in the Royal Australasian College of Surgeons.

In effect, then, surgeons, per medium of statute, are imposing upon cyclists a treatment intended to reduce head injury. This action runs counter to the common law governing medical treatment.

Fetal welfare and the law, a report of an inquiry commissioned by the Australian Medical Association, provides a useful summary of relevant common law concerning the rights of the patient versus those of the surgeon and the duty owed by the surgeon to the patient.

1. Rights of the patient

Courts have consistently upheld the right of the individual to decide how to protect his or her own body from injury or death, and have rejected claims that the medical profession has a right to impose treatment.

The report on fetal welfare says it is for the patient, not the doctor, to decide whether the treatment will be performed. In Canada, the Ontario Court of Appeal, in Malette and Shulman, awarded damages against a doctor who transfused blood into a patient who was unconscious as a result of a motor accident, but who carried a card saying that she would refuse blood transfusions. In delivering the court’s judgment, Justice Robins said at page 328, quote: ”

“A competent adult is generally entitled to reject a specific treatment, or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment. … The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others.”.

Justice Robins posed the question why Mrs Malette should be transfused against her will. Quoting him again, at page 333:

“The appellant’s answer, in essence, is that the card cannot be effective when the doctor is unable to provide the patient with the information she would need before making a decision to withhold consent in this specific emergency situation.”

The doctor’s emphasis on the need to take account of specific circumstances at the time contrasts strongly with a law that compels cyclists to wear helmets in all circumstances. Justice Robins continued:

“In the absence of an informed refusal, the appellant submits that Mrs Malette’s right to protection against unwanted infringements of her bodily integrity must give way to contervailing societal interests which limit a person’s right to refuse medical treatment. The appellant identifies two such interests …” – end of quotation. He went on to say that the first was the interest of the state in preserving life, but declared that, quote:

“The state’s interest in preserving life or health of a competent patient must generally give way to the patient’s stronger interest in directing the course of her own life.”

On page 334, Justice Robins added:

“Recognition of the right to reject medical treatment cannot be said to depreciate the interest of the state in life or in the sanctity of life. Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life. This state interest cannot properly be invoked to prohibit Mrs Malette from choosing for herself whether or not to undergo blood transfusions.” At page 336 he said, “The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.” – end of quotation.

In England, in Re T (Adult: Refusal of medical treatment), the House of Lords has made it plain that the right to refuse medical treatment extends even to the point where refusal will result in the likely or certain death of the patient. In this case, at pages 652 to 653, Lord Donaldson acknowledged the “absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered … notwithstanding that the reasons for making the choice are irrational, unknown or even non- existent.” At page 661, he said:

“This situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives. The patient’s interest consists of his right to self-determination – 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. It is well established that in the ultimate the right of the individual is paramount.” – end of quotation.

In Australia, the same doctrine has been affirmed by superior courts. In F against R (1993) 33 SASR 189, the Supreme Court of South Australia considered a surgeon’s duty to inform the patient of the risk that an operation will not succeed in its aim. Chief Justice King remarked at pages 192/193, quote:

“The governing consideration is the right of every human being to make the decisions which affect his own life and welfare and to determine the risks which he is willing to undertake.” He also referred to, quote, “the paramount consideration that a person is entitled to make his own decisions about his life”, a passage which the High Court of Australia cited in Rogers and Whitaker (1992) 175 CLR 479, at page 487.

In summary, superior courts have upheld the right of the individual to decide how to protect his or her own body from injury or death and have rejected claims that the medical profession has a right to impose treatment. As the report on fetal welfare puts it, “Consent is the crucial concept”.

Against this background of common law, it would be reasonable to expect that governments and legislators would give careful consideration to the principles developed in the common law before abrogating them by statute. In fact, the reports of the introduction of and debate on the Traffic (Amendment) Bill 1992, Hansard 9 April 1992 pages 143 to 145 and Hansard 19 May 1992 pages 568 to 586, make no mention of its effect of overriding common law applicable to medical treatment. Similarly, there is no mention of it in documents received from the Department of Urban Services in response to a wide- ranging request of 4 October 1994 under the Freedom of Information Act 1989.

2. Duty of the surgeons

(a) The applicable law

The applicable law is summarised in the report on fetal welfare. It says on page 69, that, in broad terms the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. In the past, identification of the appropriate standard of skill and care has been greatly infuenced by the views of the profession. This test was known as the Bolam standard. It is derived from the direction given to the jury in Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. It was explained in the following way by Lord Scarman, in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985) AC 871 at 881:

The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.

In Australia, in Rogers v Whitaker, Chief Justice Mason and Justices Brennan, Dawson, Toohey and McHugh of the High Court said at page 487, quote, “the Bolam principle has been discarded and the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life” – end of quotation.

The duty of care of the common law would require that those responsible for imposing upon cyclists the medical treatment of helmet wearing, surgeons in particular, should have certain knowledge of the efficacy of helmets in mitigating injury and should draw attention to any uncertainties or adverse effects.

(b) Evidence relevant to standard of care

(i) Evidence of surgeons

There is evidence that the care taken by those responsible for imposing the medical treatment of helmet wearing falls short of an appropriate standard.

The Hansard record of the evidence which the Royal Australasian College of Surgeons, per Drs Dooley and Trinca, submitted to the House of Representatives Standing Committee on Road Safety in the course of its inquiry on motorcycle and bicycle safety in 1978, shows that they had no evidence of efficacy, merely of numbers of cyclists killed and injured.

Evidence given by Dr Trinca shows that he was negligent about establishing the efficacy of helmet wearing with certainty before taking action towards it. He said, “If we could perhaps worry a little less about and take a little less time in proving what is precisely right according to all standards and get something that protects and get it agreed to by that particular group, at least we would be getting somewhere. I have a feeling that it is in much of our research work that a lot of delay happens. As doctors we are impatient. We cannot wait for 2 or 3 years’ evaluation.”

(ii) Evidence adduced by parliamentary committees

Following the impetus of the surgeons, public authorities took up the task of imposing upon cyclists the medical treatment of helmet wearing, starting with recommendations by parliamentary committees.

Recommendations by parliamentary committees in New South Wales in 1988 and Victoria in 1986 were influential in forming the Federal Government’s policy of compulsory helmets. The House of Representatives Standing Committee on Transport Safety also recommended compulsory helmets in its 1985 report. The evidence of efficacy of helmets that these committees adduced is examined in a paper by Bill Curnow entitled “Review of evidence on the efficacy of helmets”. The paper concludes that the Federal Government’s policy on compulsory helmets was decided without sufficient knowledge of the efficacy of helmets in reducing injury to cyclists.

(iii) Evidence used by Commonwealth and ACT Governments

The ACT introduced the helmets law in response to a financial inducement from the Commonwealth Government. An FOI request made by CRAG to the Department of Urban Services on 6 January 1992 requested, among other things, the rationale which the Commonwealth provided to ACT authorities. We expected that it would at least describe the social ill requiring a legislative remedy, provide evidence that helmets are efficaceous, and discuss possible adverse effects of helmet wearing. Concerning the matter of a social ill, one would expect evidence of a sharp increase in casualties to cyclists, but deaths to cyclists had actually been declining.

The response received shows that neither the rationale nor the written advice to the then Minister included any of these matters. This shows that both the Commonwealth and the ACT authorities exercised a less than acceptable standard of care.

Further, in our FOI request of 4 October 1994 to the Department of Urban Services we sought documents concerning any consultations with, or requests for advice from health authorities and any advice received. No such documents were provided in the Department’s response of 2 February 1995. Again, the ACT authorities exercised a less than acceptable standard of care.

Other evidence of ACT authorities’ lack of care is evident in the matter of exemptions for medical reasons. In a letter of 4 May 1993, the then Minister for Urban Services said that he did not intend allowing exemptions under any medical circumstances. He said that this view had been supported by the Australian Medical Association and the National Road Trauma Advisory Council – NRTAC. Through FOI, CRAG requested from the Department documents showing the terms in which the organisations which had advised their support for compulsory helmets had expressed it. The letter from NTRAC merely says that it supports the advice of the Royal Australasian College of Surgeons, but the Department did not obtain that advice. The Minister’s claim of support from the AMA is false, as is shown in another document. Again, ACT authorities exercised a less than acceptable standard of care.

The ACT Government’s 1992 information bulletin, “Compulsory wearing of helmets for bicyclists in the ACT”, which is currently being promulgated through official outlets, says helmets are extremely effective in reducing injuries to the head. Although the Minister for Urban Services was advised by letter of 6 April 1995 of the NHMRC’s warning of possible increase in brain injury from wearing a helmet, the bulletin makes no mention of it – a less than acceptable standard of care.

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Other Considerations

by Peter van Schaik

Henderson says: “When protection can be proven by good science- -as is the case for helmets and seat belts–then even those who hold most firmly to civil libertarian principles must concede that to compel protection for a few does bring benefit to many”.

Henderson makes these claims of helmets being proven by good science, but doctors pushed for compulsory helmets before any scientific evidence even existed. As for those studies that have since appeared in the world literature, the tag “good science” is a very questionable one. Nevertheless, Why are these same principles not extended to other areas? Why is it just cyclists who must wear helmets?

Pedestrians suffer many more head injuries than cyclists, and most of these are resultant from a collision with a motor vehicle, much the same as the accidents Henderson describes: “The predominant collision was between a cyclist and the front of a car” (Otte, 1989). According to the UK Govt yearly digest of statistics published by HMSO, called “Social Trends”, the deaths per billion kilometers travelled are: bicyclists (53), pedestrians (71). Using data derived from fatality rates per million hours (Vicroads, 1990), percentages of deaths from head injury (FORS, 1992), and ratio of hospital admission for head injury (HI) to death from HI (Queensland Health Department Statistics), it is possible to estimate the risks of serious HI and death by HI per million hours of activity. These are: cyclists (2.39), pedestrians (2.34), motor vehicle occupants (1.77), motor cyclists (20.9). Pedestrians are at about the same risk as cyclists.

Motor vehicle occupants are at a slightly lower risk, but they account for 17 times as many head injuries as cyclists. The mechanics of their head injuries are not necessarily the same, but a great many result from their head striking the door frame (despite wearing a seatbelt) – surely a helmet would help there. At least one researcher has stated that bicycle helmets would be suitable, and a standard for car helmets is now available.

Bicycle helmets first became popular amongst racing cyclists, then spread to other cyclists. In the form of helmet laws, the standards of the professional and ‘more serious’ cyclists have been forced upon the general cycling public. Professional motor racing drivers wear helmets, so by the same reasoning, if it is good enough for them it’s good enough for the general motoring population, the same as with cycle helmets.

Given his great concern about head injury, I could fully expect Dr. Henderson to be wearing a helmet if I met him on the street, or saw him driving a car.

And what about people who use stairs? They account for a great many head injuries of a preventable nature, and their risk per time factor or risk per kilometre must be absolutely overwhelming!

There are many other areas where protection has been proven by “good science”. Here in Australia, many people die from skin cancer each year. In NSW in 1992, skin cancer claimed the lives of 226 men and 141 women, but 1990 (the last pre-helmet law year) saw only 20 cyclists killed. Why not compulsory shirts and wide brimmed hats whilst outdoors? Acceptance is already high so surely this legislation would be easy to implement. Then there are those other activities where compulsory abstenance would certainly be beneficial to the societal purse: smoking, drinking, overeating, growing old. Why stop at bicycle helmets?

Although compulsory bicycle helmets may not be of much concern to most people at this time, the real concern should be: what will the ‘Safety Nazis’ be legislating for in 10 or 20 years time?

Almost everything we do has some risk attached and it’s a question of how we estimate the situation. For many people, for whatever reason, it is just not worth the inconvenience of wearing a helmet, as evidenced by the huge declines in cycling recorded after introduction of the law. Cycling without a helmet is really little different from other potentially harmful activities such as smoking and drinking. The difference is that cycling in itself is healthy, the chance of serious head injury is actually very small, whereas the loss in health and subsequent cost to the health system from those other activities (or from not exercising and becoming sedentary) is virtually guaranteed. The main effect of the helmet law has been to discourage a healthy activity.

Bicycle helmet laws remove freedom of choice. The aim may well be to preserve life but the secondary effect is to restrict freedom. In supporting the helmet laws, doctors often talk about the loss of freedom and quality of life in head injury victims as if they own the book on the subject. But without personal freedom of choice the quality of life is diminished. It is wrong for doctors to have the final say over what form an individual’s freedom should take. It would seem that Medicare has been a sinister tool for removing individual freedom, since it has made it possible for doctors to make the claim of “it being for the greater good” in protecting the investments of others, thereby bypassing the long-standing principles of common law and abrogating individual freedom.

A. AUSTRALIA

1. Lionel Murphy, address to ALP National Conference, 1967

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. We Australians tend to think that our civil rights are beyond question. In recent times, almost every one of our fundamental rights and liberties has been either trampled on, whittled away, challenged or ignored in Australia.

2. Constitutional Commission, Report of the Advisory Committee on Individual and Democratic Rights under the Constitution, Canberra, Commonwealth of Australia, 1987

Deprivation of Liberty of Property (pages 45/46)

Perhaps the most fundamental principle of English law is that embodied in Magna Carta, which states the basic rule that no persons may be arbitrarily deprived of their liberty.

The committee recommended that a new subsection 80(ii) be inserted in the Constitution in the following terms:

80. The Commonwealth or State shall not

***
(ii) deprive any person of liberty or property except in accordance with a procedure prescribed by law which complies with the principles of fairness and natural justice.

Chapter 8 Australians And Equality Rights

Stemming from Magna Carta, the notion that everyone should be treated equally before the law found its way through the English legal system into the general body of Australian law.

The committee then noted that the Aborigines and other races were not included in the concept of “equal rights to all persons”, and discriminatory Federal and State laws founded on race continued to operate in Australia until relatively recent times. … “The committee considered that a general restatement of the ancient principle of equality embodied in Magna Carta should be stated in general terms which make it clear that any unfair discrimination between Australians should be placed beyond the powers of governments.

“Of course it is clear the governments should not be prevented from making appropriate distinctions between different Australians, founded on a rational basis. Ultimately it is only those who are unfairly discriminated against who are being denied equality before the law. It is clearly appropriate for a discrimination on the basis of age to be implemented, so that governments can enact laws which require that children must attend school, or which provide for the age at which children obtain full legal capacity.”

Other examples of justifiable discrimination were cited.

The committee recommended that in substitution for the existing non- discrimination provisions of section 117, there should be proposed the following:

117. The Commonwealth or a State shall not deny equality before the law to all the citizens and to all of the permanent residents of Australia and in particular the Commonwealth or a State shall not unfairly discriminate between any of them on any grounds.

B. INTERNATIONAL AND HISTORICAL

3. J.M. Kelly, A Short History Of Western Legal Theory, Oxford University Press, 1992

Plato suggested that the dominant element in a state tends to make laws benefiting itself. He assigned to law not merely the regulation of conditions … but also the deliberate training (in the gardener’s quite as much as the teacher’s sense) of that society towards an ideal state of perfection. Thus he visualised law in an extra dimension which, although various regimes have tried to make it a reality, the West has on the whole rejected. Sparta is thought to have been his inspiration. This city enforced its manners by education and training on the young, and maintained them among them as adults. These manners had no basis in what we might recognize as a religious morality, but were geared to the production and constant renewal of a militarist and irresistible state.

Aristotle: Justice is of two kinds: `distributive’ and `corrective’. By distributive justice he meant `that which is exercised in the distribution of honour, wealth and other divisible assets of the community, which may be allotted among its members in equal or unequal shares. Allowing for the far greater range of material regulation characteristic of the modern state, we might say this definition corresponds evidently with `legislative justice’, the kind we expect to see displayed in statutes or other governmental measures which distribute benefits or impose burdens in patterns and proportions which we can accept as fair or rational having regard to the subject matter; the kind which is free of invidious discrimination. Aristotle’s meaning emerges from some general propositions, for example, that equals are to be treated equally, unequals unequally; that justice is proportion, injustice is disproportion.

Cicero the philosopher assigned to the positive laws of humans an altogether subordinate place by comparison with the law of nature. The mere fact that a measure has been enacted by a commonly accepted method does not of itself entitle it to respect as being just, or perhaps even to the title of `law’ at all if it defies higher principles.

St Thomas Aquinas insisted on the connection of law with reason, the channel through which the law of nature could be apprehended by human intelligence: `Human law has the quality of law only in so far as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. In so far as it deviates from reason it is called an unjust law, and has the quality not of law but of violence. … Laws may be unjust … if the burdens, even though they are concerned with the common welfare, are distributed in an inequitable manner throughout the community. Laws of this sort have more in common with violence than with legality.’

Laws that are rightly enacted prove deficient where to observe them would be to offend against natural right. In such cases judgement should be delivered, not according to the letter of the law, but by recourse to equity, this being what the lawgiver aimed at.

`Now human law is enacted on behalf of the mass of men, the majority of whom are far from perfect in virtue. For this reason human law does not prohibit every vice from which virtuous men abstain; but only the graver vices from which the majority can abstain; and particularly those vices which are damaging to others.’ This emphasis on the element of `harm to others’ appears in another passage in briefer form, where St Thomas derives the law against murder from the natural- law precept, `Do harm to no man’. It will be noticed that this theoretical basis for punishment, though St Thomas did not expressly declare it the only legitimate one, will not stretch far enough to cover the punishment of acts of moral turpitude not impinging on others – a curious premonition of the views of J.S. Mill.

English lawyer Christopher St German (c.1460-1540) stated the criteria for legislative justice in terms which come straight from St Thomas: `A human law is called just, by the standard of its end, its author, and its form. Its end: when it is designed for the common good. Its author: when it does not exceed the powers of him who enacts it. Its form: when its burdens are laid upon the subjects in a due proportion, with the common good in view. And if its burdens are laid upon people in an unfair way, even if its purpose be the common good, it does not bind him in conscience.’

Locke `A man … having, in the state of Nature, … only so much [power] as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative (sic) can have no more than this. Their power in the utmost bounds of it is limited to the public good of the society.’

The French Declaration of the Rights of Man and the Citizen, made by the National Convention in 1789, identified as the object of all political association the conservation of `the natural and imprescriptible rights of man: liberty, property, security and resistance to oppression’; and defined liberty as the freedom to do whatever does not injure others, who also enjoy the same freedom.

Montesquieu perceived that political liberty could not exist where any two of the three powers – legislative, executive and judicial – were in the hands of the same organ of the state.

In France, in the 1760s, a group of Enlightenment authors known as Physiocrats contended that judges, before enforcing the laws, ought to satisfy themselves that the laws they were being called on to apply actually conformed with the dictates of the `natural laws of the social order’ and of justice.
`It is clear that any judge who took it upon himself to inflict penalties on his fellows by virtue of obviously unjust laws would be guilty of fault. Judges, therefore, should measure the ordinances of positive law against the laws of essential justice which govern the rights and duties of all men … before taking it upon themselves to give judgement according to those ordinances.’

Beccaria (1764): `Every individual would choose to put into the public stock the smallest possible portion of his own liberty; as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishment; all that extends beyond this is abuse, not justice.’

A core belief of the Benthamites was the sacredness of individual freedom, including freedom to contract, on the grounds that the individual must know best for himself what was most conducive to his own welfare.

J.S Mill, Utilitarianism, ed. H. Acton (London, 1972):
`All persons are deemed to have a right to equality of treatment, except when some recognised social experience requires the reverse. And hence all social inequalities which have ceased to be considered expedient, assume the character not of simple inexpediency, but of injustice, and appear so tyrannical, that people are apt to wonder how they ever could have been tolerated; forgetful that they themselves perhaps tolerate other inequalities under an equally mistaken notion of expediency, the correction of which would make that which they approve seem quite as monstrous as what they have at last learnt to condemn. The entire history of social improvement has been a series of transitions, by which one custom or institution after another, from being a supposed primary necessity of social existence, has passed into the rank of a universally stigmatised injustice and tyranny. So it has been with the distinctions of slaves and freemen, nobles and serfs, patricians and plebeians; and so it will be, and in part already is, with the aristocracies of colour, race and sex.’

Herbert Spencer: `Only one essential rule bound men, namely, that while each may do what he likes, he may not injure the equal freedom of others’ – a kind of restatement of Kant’s formula.

German jurist Gustav Radbruch: As for positivism, the doctrine that law was whatever a statute said, had rendered German justice helpless when confronted with cruelty and injustice once these wore statutory vesture. Post-war decrees invalidating Nazi laws, even though not in force, `their content was already binding before those deeds were committed; and in their content such laws correspond to a law which is above statute, however one might like to describe it: the law of God, the law of nature, the law of reason’. … Radbruch saw a revival of belief in a transcendent law by which evil positive laws may be condemned as `legal injustice’.

A much stronger recognition now exists that the rights of a majority, while they must include the determination of the state’s general policy, cannot extend to invading a range of irreducible individual and hence also minority rights. This is reflected in the European Convention on Human Rights and Fundamental Freedoms (1950).

Radbruch: When laws deliberately defy the instinct for justice, then they are void, `the people owe them no obedience, and lawyers, too, must find the courage to deny them the character of law.’ Another German jurist, Helmut Coing, (1985): `Deliberate violations [of natural law] must be met with passive resistance.’

Dworkin (1978): `Justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.’

4. Henry E. Strakosch, State absolutism and the rule of law, Sydney University Press, 1967. (a history of the codification of civil law in Austria)

The author argues that codification, not only in Austria but also elsewhere, was an essential step in the creation of the modern state. In both France and Austria the new codes preserved the rule of law and (in an age when the state was arrogating to itself a monopoly of government) they safeguarded individual freedom. Indeed the author argues that codification of civil law provided the legal basis of European liberalism.

“It is necessary to make a clear distinction between civil law and public law and ‘the ordinances arising from the latter. … If administrative ordinances are being confused with laws as such the latter will soon be regarded as unstable, because dependent from the whims of the supreme power. That cannot fail to have a deleterious influence on the confidence in the administration of justice, because justice means always a fixed norm, of equal validity for all.” (author’s translation of Ofner, Vienna 1889)

“The fact that there is a nexus between the positive law of the state and universally binding norms of human behaviour, in other words, between the coercive and the normative aspect of law, has always been recognized.”

“Legal rationalism aimed at a concordance of the normative and the positive function of law, at an agreement between them which left to each its specific function. It was developed by the great scholastic masters of the thirteenth century in the doctrine of natural law. … Law was an instrument of government, directed towards a rationally conceived common good. Its purpose was rational and so was its content. Precisely for that reason the relation between law as a norm and law as a command, or between the moral and legal order, was real, without being one of identity. Each of them retained its specific character and yet they formed an indivisible whole.

Positive laws had to fit into the more universal framework of the moral order: that alone gave them their character as laws. But it was never postulated that every positive law expressed a moral norm. The content of many laws was morally neutral (traffic laws are a modern example) and such laws were morally obligatory simply because they belonged to a morally valid legal order. Any law made by public authority was valid so long as it did not offend against the more universal norm of the moral law.” [The law for compulsory wearing of helmets is not a traffic law. Traffic laws deal with competing claims and correlative rights and obligations of road users. Helmet laws regulate individual behaviour irrespective of other road users, or, indeed, any other persons, and questions of competing claims and the rights and obligations of others do not arise.]

“The French Revolution seemed to mark the final victory of an ineluctable trend towards the subjection of the law to the sovereign will of the legislating power and all attempts to preserve a rule of law alongside effective government by a centralized and absolutist state seemed doomed to failure. … Kant cut that Gordian knot … . First, he denied the existence of a direct nexus between the moral and the legal order. … But at the same time Kant preserved fully the objective nature of the law. The law, though divorced from the moral order, did not become an instrument in the hands of the state, in whatever lofty metaphysical terms the latter might be conceived”

P. 206 “The means by which the Kantian critique of natural law was applied to the codification of civil law was the creation of the concept of `strict law’ … which could be fully expressed by way of positive laws. … Strict law was also restricted law: it could not operate throughout the whole realm of social and political relations. … It was a law whose formal character confined it to the production of the autonomy of the person; it was a law of freedom. … Strict law led, by the logic of its formal character, to the division of law into a zone of private law where `any action is lawful whose maxim allows the arbitrary freedom of each to co-exist with the freedom of everyone according to the a general law’, and a zone of public law.”

P. 208 Zeiller, honoured in 1811 as `the creator of the civil code’ in Austria – still in force – stated in 1801: “The primary rule of legal obligations is therefore: Abstain from all actions which restrict the free and legal activity of others.”

P.210 “Any preface to the code on the nature of law would have to be couched in approximately the following terms: `Law is the limitation of freedom to actions compatible with the freedom of others’. … The rights due to every man, in so far as he was a rational being, had been known to him by the creator of nature through reason and through a natural feeling for right and wrong. Justice had to be the basis of the positive law of the state if government were not to degenerate into arbitrary rule.”

“The Kantian doctrine, while removing the immediate obstacles on the way of a creation of a civil law, had therefore also destroyed any possibility of limiting the positive legislative power of the state by a set of norms of greater universality and inherent strength.”

Function of law to seek a balance in the socio-political order between anarchic individualism and totalitarian collectivism. … The law which evolved in Western Christendom established a point of balance in European history. It was able to perform that function because it expressed the two basic principles of Western Christendom: a belief in the rational and organic nature of society, and a belief in the transcendent value of the human person. … It gave rise to a form of political organization which became typical of European civilization, that of `lawful government’ which means the containment of the power of public authority within the framework of the law.

“The nadir of lawlessness in internal government was reached with Hitler’s doctrine of `Law is what benefits the people.’ (See Heinrich Mitteis, Uber das Naturrecht, Deutsche Akademie der Wissenschaften zu Berlin, Berlin 1948, p. 37.) This doctrine of a `common good’, which destroyed the last vestige of a balance between the rights of the person and the rights of the community, was carried by the totalitarian powers … into international relations. … Japan, Italy, Germany … flouting of the public law of the world. … the peoples of Britain and the USA rallied to the defence of what they again understood to be the basic law of civilized life: the preservation of personal freedom in the state.”

After referring to international institutions which influence on national policies, “the very existence of a forum where an international tension … is subjected to public debate … tends towards the establishment of the universal category of the law as the standard of action. But … international law is still confined to relations between sovereign states; individuals may become increasingly the objects, but they are not yet the subjects of international law. (Within the sovereign state the positive law of its making continues to hold sway.) The struggle between the obsolescent category of the absolute sovereignty of the state and the newly emerging fact of the international community is still far from being resolved; it is, in fact, the characteristic feature of the second half of the twentieth century. And it is also the struggle for peace and for the survival of civilization.

“If we apply the findings of historical analysis … we must conclude that only a state whose sovereignty is not absolute, that is, a state recognizing the obligatory force of law as arising ultimately from principles lying beyond and above the positive legislative power of government, can be integrated through the due process of law into an international community. … The restoration of a dualism of government, the restoration of an equality of status between the law and the state, is therefore the presupposition of the solution of the most urgent problem of modern civilization, the problem of an international order based on law. But that is the same as saying that the restoration of a balance between the autonomy of the person and the rights of the community which is the gravest problem of modern government, will come to pass by way of a new impact of international law on the internal law of the state.”

5. Justice Brandeis, Olmstead v United States, 1928

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.

6. Universal Declaration of Human Rights, 1949, as proclaimed by the General Assembly of the United Nations; the following are some extracts.

Preamble

… Whereas it is essential … that human rights should be protected by the rule of law, …

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, … or other status”.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 12

No one shall be subjected to arbitrary interference with his privacy … Everyone has the right to the protection of the law against such interference or attacks.

Article 29:

1. …

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Azzopardi’s summary: Freedoms to be limited only as necessary to safeguard rights of others.

7. International Covenant on Civil and Political Rights, 1976

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home … .

Article 26

All persons are equal before the law and are entitled without any distinction 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, … or other status.

On 25 September 1991, Australia acceded to the First Optional Protocol to the Covenant, making it possible for any individuals within Australia who considered that any of their human rights as set out in the Covenant had been violated to take their case to the United Nations Human Rights Committee.