The mandatory bicycle helmet law debate in Australia is well-worn territory. Being one of the few nations to have regularly enforced legislation on the topic, the laws can set many riders on a collision course with those charged with enforcing them, such as the police and judiciary.
Elsewhere, legislation of this kind might seem odd, even humorous – with some places in the US not even requiring their motorcyclists to wear helmets. In Australia, however, such laws are no laughing matter.
According to recent statistics, more than 5000 fines for failing to wear a helmet when cycling were issued in Victoria in 2016. This has led some to query whether such laws truly exist for the benefit of cyclists or if other revenue-raising reasons have motivated their introduction.
However, while arguments around the safety and efficacy of mandatory bicycle helmet laws have had many words devoted to them, less attention has been directed towards the effects these laws have on the disabled.
This was something I discovered when conducting research for an article published recently in the Alternative Law Journal on the topic.
Across the medical, sociological and political perspectives on the issue, most people have largely ignored the law’s effect on the disabled. Assessments of the legislation are conducted with a certain person in mind who rides a bike, acts rationally and is aware of the risks – financially and physically – that can result from failing to wear a helmet.
My work took a very different tack and aimed to consider the issue from the perspective of someone with a cognitive impairment. I drew on my time representing clients with intellectual disabilities at the Melbourne Magistrates’ Court, and argued that mandatory bicycle helmet laws were an unnecessary imposition and exposed them to the criminal justice system.
This not only demonstrates the limitations of mandatory bicycle helmet legislation in Victoria, but more broadly suggests an ongoing failure by legislators to appreciate how regulations such as those in question affect people who tend to breach them.
Just as one’s religious practices might make [bike] helmet use impossible, so too can a disability.
In theory, legislation is created with an average person in mind, but regrettably, statistics consistently show that certain types of people are more likely to fall foul of the law than others – particularly those who are disabled, mentally ill, homeless, or suffering from drug or alcohol addictions.
The legislation regarding compulsory helmet usage in Victoria follows a familiar format. Section 256(1) of the Road Safety Road Rules 2017 (Vic) makes it an offence of five penalty units to ride a bike without a helmet.
This is a rule that can only be avoided where, according to s 256(4), it is "impractical, undesirable or inexpedient" to do so. This means that those with an intellectual disability are required to wear a helmet at all times when riding, unless they've sought, and been granted, an exemption.
It's a relatively convoluted exemption process that involves doctors' visits, form-filling and the exchange of documents with VicRoads. Following this, a pass is issued that must be carried by the rider at all times. Counterintuitively, this applies even if the person’s disability makes applying for a pass or carrying one difficult – a particular problem for those with an acquired brain injury or other cognitive disability.
Representing clients in the Magistrates’ Court, I saw first-hand that intellectual impairments were a fact of life for many people dealing with these types of offences. Such impairments made common tasks very difficult and, for some, remembering to wear a helmet was practically impossible.
Similarly, the exemption process was often a bridge too far, as they did not have the ability to make a doctor’s appointment, or put together a complex submission on the topic that demonstrated to VicRoads’ satisfaction why they should be granted an exemption. Accordingly, when they forgot to wear a helmet (or were unable to apply for an exemption) they could be picked up by the police, fined and – in some circumstances – end up in court.
The problems this caused were immense. It created an unnecessary strain on the criminal justice system requiring lawyers, doctors, counsellors, magistrates and prosecutors to dedicate their time and resources on a relatively benign issue.
More personally, those fined were often deeply distressed by the experience. Frequently, paying the infringement would be too difficult to manage. Failing to do so would then create another set of problems that if not dealt with would mean the original offence could end up putting the person through the criminal justice system. This would then produce a whole other set of stresses for people faced with the pressure and anxiety that going to court inevitably entails.
Time for change
It's time for the law surrounding compulsory bicycle helmet laws to be changed. Those with disabilities shouldn't have to choose between getting around town and incurring a fine. Instead, the law should be brought in line with the needs and requirements of those living with such impairments.
In this regard, the experience of certain religious groups provides some assistance. Sikhs and Muslims, for instance. It's clear that the law is well-adapted to their particular circumstances. Section 256(7) of the Road Safety Road Rules 2017 (Vic) indicates that those who wear religious outfits that make a helmet impractical don't need to apply for special treatment in order to ride their bikes without one.
Instead, there's a general exemption if their religious wear makes fitting a helmet impractical. This seems an appropriate response to an issue faced by a specific and small section of the community – it's tailored to their requirements and designed to avoid unfairly marginalising them.
Why a similar approach for those with intellectual disabilities could not be established is unclear.
Rather than having to go through a series of convoluted forms and doctors' visits, surely a general exemption such as this would be preferable?
This would recognise that, just as we don't ask religious people to choose between their faith and a common means of transport, neither should we put up obstacles for the disabled that prevent them undertaking tasks many of us take for granted.
As I note in the piece mentioned earlier:
Reforming the law in the way described…would constitute a recognition by the state that a disability is as immutable (if not more so) as a religious conviction, and should therefore be similarly accommodated. Just as one’s religious practices might make helmet use impossible, so too can a disability.
Such a change would not only mean less strain is placed on the criminal justice system, but also show a much greater respect for individual differences within our society.
The experiences of those with an impairment show how laws that seem to generally apply often have a disproportionate effect on certain people, such as the disabled.
The helmet narrative described above isn't an unusual one for those with disabilities.
Indeed, many laws don't accommodate the disabled in their application or operation. The experiences of those with an impairment show how laws that seem to generally apply often have a disproportionate effect on certain people, such as the disabled.
These people regularly go unconsidered when laws are drafted.
What compulsory bicycle helmet laws show is that legislators must ask themselves whether such laws can be justified when their effect isn't felt equally by everyone.
In fact, this is what all legislators should ask before creating new laws: Would we pass such a law when we know it will be the disabled, homeless or mentally ill who are most likely to be affected by them? Because too often it is.