Introduction

In 2002, the Government of the Australian Capital Territory established a Consultative Committee to consider the introduction of a Bill of Rights. The following is the submission which CRAG made to the Committee in September 2002.

1. Protection of human rights

The concern of Cyclists’ Rights Action Group is to uphold the right of cyclists to choose how to protect their own persons without, of course, harming others. We consider that this right is not adequately safeguarded in the ACT because legislation compels cyclists on all public streets and in all public places to wear helmets. We consider whether the legislation contravenes Articles 7 and 26 of the International Covenant on Civil and Political Rights, ICCPR.

The concept that protection of one’s own person is an individual right and responsibility and not a fit subject for law has been traced back to St Thomas Aquinas. Law in Europe developed from his emphasis on avoiding harm to others to become the primary rule of the civil code of Austria early in the 19^th century: ‘Abstain from all actions which restrict the free and legal activities of others’. Later in the century, J.S. Mill declared that individuals are sovereign over their own bodies and minds, and power can be rightfully exercised over them only to prevent harm to others, a principle taken up in the Universal Declaration of Human Rights 1948. Also, Mill defined the proper function of public authority in guarding against accidents as being only to warn of danger; not forcibly to prevent individuals from exposing themselves to it.

Mill’s principle is expressed in the common law with respect to medical treatment, which is relevant here because compulsory helmet wearing is, in substance, preventive medicine - see below. It has increasingly been recognised that patients have the right - indeed the responsibility - to decide what medical tests or treatment they will have. In 1992, the right of patients to live as they wish, even if it will damage their health or lead to premature death was upheld in England. It is also upheld by the Medical Treatment Act 1994 (ACT); section 6 empowers people to make a direction to refuse medical treatment either generally or of a particular kind and section 11 requires health professionals to warn of consequences. The High Court of Australia has acknowledged people’s right to live as they wish and to be warned of the risks of treatment.

The Constitution of Germany 1949 follows Mill by providing that everybody has the right to self-fulfilment in so far as they do not violate the rights of others and in declaring that personal freedom is inviolable. Its guarantee of individual rights of course follows their subjugation under Hitler. According to Radbruch, German justice was rendered helpless when confronted with cruelty and injustice wearing statutory vesture. Post-war, he noted a revival of belief in a transcendent law above statute, however one might like to describe it: the law of God, the law of nature, the law of reason. We suggest a similar guarantee is needed here to safeguard freedom of self-protection as with, say, freedom of religion.

Along with all other jurisdictions in Australia, self-protection is enforced in the ACT in the form of compulsory wearing of motorcycle helmets, seat belts in cars and bicycle helmets. All were introduced without adequate evaluation of their efficacy and with scant regard for traditional liberties. In New South Wales, for example, the Government justified compulsory seat belts with the argument that "compulsion is necessary to secure the greatest good for the greatest number, society is entitled to protect individuals from their own foolishness, and it is superficial for the individual to assert that his death or incapacity affects only himself".

Legislation to compel cyclists to wear helmets, the world’s first, was passed by all states and territories to qualify for additional funds for roads, which the then Prime Minister offered in 1989. Lacking competence to evaluate the efficacy of helmets, the ACT relied on the Prime Minister’s assurance that the measures were "known and effective" and on advice from the Federal Office of Road Safety, FORS, that there was overwhelming evidence that compulsory helmets would improve safety. FORS itself had not verified this, however; it was unable to substantiate a similar statement made to a parliamentary committee. Moreover, FORS withheld from its advice warnings in 1987 from research which it itself commissioned, that helmets had serious deficiencies and could increase the risk of serious brain injury. Some deficiencies remain and the warnings have been ignored.

(Inquiries to all eight governments in Australia, some through FOI, have shown that no competent authority verified the efficacy of bicycle helmets before the legislation to compel their use. Some transport authorities have since made evaluations which purport to verify efficacy, but they will not withstand critical analysis. The most recent, June 2000, is a report of the Australian Transport Safety Bureau, ATSB, and also published in 2001 in the international journal Accident Analysis & Prevention. It claims to provide scientific evidence that helmets reduce serious injury to the brain, but an article by the undersigned in the same journal disputes this claim and concludes that the Australian policy of compulsory wearing of helmets lacks a basis of verified efficacy against brain injury. This is a scientific debate, clearly not for the consultative committee, but, to aid appreciation of it.)

Governments dismissed objections of infringement of civil liberties, citing seat belt laws as a precedent.

The purpose of compulsory wearing of bicycle helmets is stated as being to reduce the risk of head injury to cyclists and the resulting medical and other costs to the community. This makes it a form of preventive medicine, but it does not comply with the applicable law as outlined above. Unlike the Therapeutic Goods Administration, which monitors the use of devices it approves and which reviews approvals if adverse effects are found, authorities responsible for helmets do not. Nor have cyclists been apprised of risks. Transport authorities have not passed on to them the 1987 warnings and a similar one by the NHMRC in 1994 that helmet wearing may increase diffuse brain injury. This contrasts with what the law requires for other medical treatment.

The best protection for human rights is of course a society that values them and is vigilant against threats to them. Though Australia led the world in voting rights a century ago and in establishment of the Human Rights Commission, now it leads in enforcing self-protection and is reluctant to incorporate international standards for rights into its domestic law. This would appear to mean that many politicians have less respect for principles of liberal democracy than for prospects of electoral gain. A striking example is one MLA’s comment in the debate on introduction of compulsory bicycle helmets: "I could not give a hang what John Stuart Mill said. He does not even vote in the ACT". To improve protection for human rights, clearly a better informed legislature would help.

We favour the ACT having a Bill of Rights. It would preferably be on the New Zealand model but should incorporate in full the following articles of the ICCPR.

Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

As we interpret the article, the second sentence helps to define the meaning of the first, not vice versa, by including any enforced medical or scientific experimentation. We suggest that such experimentation comprises action with effects on physical or mental health which are not known beyond reasonable doubt. For reasons stated above, compulsion to wear a bicycle helmet fits this description. Of course, the official rhetoric does not hint at it being experimentation, the Prime Minister describing it as a "known and effective countermeasure" and the ACT Minister, in introducing the legislation, as "an effective road safety measure". The fact, however, is that the government authorities responsible for advising them on the wearing of helmets do not know its effects because they have not investigated them by reference to knowledge of types of brain injury and their mechanisms. We submit that there is a need to protect cyclists from such experimentation without consent. If compulsion to wear a bicycle helmet comes within its terms, incorporation of Article 7 in a Bill of Rights would be sufficient; otherwise some further provision would be needed.

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

Our concern here is that compelling cyclists to wear helmets discriminates unfairly against them compared to other road users who are not so compelled, notably occupants of motor vehicles. Whether Article 26 is contravened will depend, then, on whether for its purposes category of road user may be a status and there is discrimination between categories. Dictionary definitions of status, like "the standing of a person before the law", are circular and of little help. As the examples of grounds that are listed do not seem to imply limitation to any class, it would appear that status has a wide meaning. Indeed, Bailey suggests that the intention of Article 26 is to prohibit discrimination of certain kinds, either those specified or extrapolated by using the concept of status.

We understand that the UN Human Rights Committee has observed that not every differentiation of treatment will constitute discrimination if the criteria for it are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. As the purpose of compulsory helmets is to reduce the risk of head injury to cyclists and the resulting medical and other costs to the community, differentiation might be reasonable if helmets would not protect occupants of motor vehicles, but that is not the official thinking - see Attachments G and H. Another ground might be that the saving in costs to the community of compelling occupants of motor vehicles to wear helmets would be much less than for cyclists. In fact, casualty data suggest the opposite; deaths by head injury in Australia in 1988 included 690 occupants of motor vehicles and 40 cyclists. Governments say motorists make their fair contribution by wearing seat belts, but in 1988 it was already near universal yet 17 times more people died of head injury in motor vehicles than from cycling. Further, an official report states that seat belts provide little protection from head injury.

We conclude that compulsion to wear helmets does amount to unfair discrimination and incorporation of Article 26 into a Bill of Rights would provide the requisite protection. If the consultative committee does not think this is so, we suggest a stronger provision in a Bill of Rights.

Bearing in mind the aversion shown to bills of rights by the Federal Government and ACT Opposition, and that the proposed Bill in the ACT would be the first in Australia, it should be treated as an experiment. At this stage it should be mainly a means to influence and enlighten the electorate, a reminder to MLAs of principles of good governance and, above all, an instrument of learning. Consequently, it should be enacted in the ordinary way, by simple majority vote and of course amendable in the same way.

We see no need for the Legislative Assembly to "override" a Bill of Rights but if any proposed legislation were inconsistent with it, the responsible minister should be required to justify the inconsistency, perhaps including an inquiry by a committee of the Legislative Assembly or other body.

The end result of compulsory helmet wearing is violation of the ancient right to protect one’s own person, without explanation or consultation, and people being forced, unwittingly, to risk greater injury. This surely underlines a serious malaise in the body politic and the law. A Bill of Rights in the ACT would be the start of a cure.

Further information is available from Bill Curnow at bilcurno@pcug.org.au

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