When mandatory helmet laws go wrong

by Matt de Neef


Mandatory helmet laws are controversial at the best of times. Even the words “mandatory helmet laws” are enough to whip some people into a veritable frenzy (RIP comments section). But when local authorities are seemingly more interested in using such laws to make money than they are in protecting cyclist safety, well, that’s when things get really messy.

More than four years after the Australian state of New South Wales made sweeping changes to its road rules for cyclists — sparking considerable outrage from the cycling community — two researchers have crunched the data and published a scathing critique of the state’s helmet laws. Buckle up.

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New South Wales introduced mandatory helmet laws for cyclists back in 1991, joining an Australia-wide push to improve rider safety and reduce rates of injury and death on the nation’s roads. Controversy about mandatory helmets aside, the trouble really began 25 years later.

Among the changes implemented in March 2016 was the introduction of a minimum passing distance law, requiring drivers to provide at least a metre of space when overtaking cyclists — an apparent boon for cyclists around the state. Among the less positive changes was a significant increase to the penalty for riding without a helmet.

Prior to March 1 2016, a cyclist caught riding sans helmet would incur a $71 fine. Overnight, that fine surged to $319 — an increase of roughly 350%. Thanks to indexing, that penalty is now worth $344.

In an article published in the Alternative Law Journal this month, law researchers Russell Hogg (of Queensland University of Technology) and Julia Quilter (of the University of Wollongong) have reflected on the changes to NSW laws in 2016, and the impact of those changes since. And they aren’t mincing their words.

“The safety concerns that originally animated the mandatory helmet law [have], at least in NSW, receded behind what can only be described as a brazen exercise in revenue-gouging of its citizen-cyclists,” they write. “The penalty is now ludicrously excessive.”

To illustrate their point, Hogg and Quilter point to the magnitude of the fine for the same offence in other jurisdictions around Australia. As of July 2019, the penalty in Northern Territory was as low as $25, and as high as $207 in Victoria. At the same time in NSW, the same offence would cost a cyclist $344. As the researchers note:

“There is no evidence that a penalty of the order of the NSW fine is necessary to ensure general compliance with the law, that compliance is higher in NSW than elsewhere, or that cyclists in the ‘premier state’ are safer than their counterparts in other states and territories as a consequence of the higher fine.”

Even more telling is the magnitude of the NSW “no helmet” fine in relation to other offences for errant road users. At the time of the law change, the same $319 fine would be handed to a rider caught without a helmet and a driver failing to leave the minimum distance when overtaking a cyclist. As the researchers note, this seems a little odd when you consider the former is only jeopardising the rider’s own safety, while the latter is endangering others.

Not only that, but the value of the helmet fine far exceeds that for other, more dangerous on-road behaviours. For example, the fine for driving over the speed limit by 10 km/h in NSW is worth barely a third of the fine for riding without a helmet. You need to be speeding by more than 20 km/h over the limit before the fine exceeds that for riding helmetless. And as Hogg and Quilter note, that’s despite a note on the NSW Roads and Maritime Services website which declares ‘Speeding is the most common contributing factor to road fatalities in NSW’.

The researchers pose a pertinent question: “Are we really talking safety here? Is there any nexus or proportionality between the penalties and the gravity of the offences and risks?”

They go on to answer their own question, at least in part: “What we do know is that the helmet offence has risen to be a terrific little earner for NSW governments.”

From 2012-13 to 2018-19, the number of penalty notices issued in NSW for riding without a helmet more than doubled. And with the cost of each notice going up so much in March 2016, the value of those notices increased by more than $1.7 million in the same timeframe.

In the four-year period from 2016 to 2019, a total of 17,560 helmet notices were issued. In the same period, just 95 notices were issued for drivers overtaking a cyclist without the required amount of room. That’s roughly 200 cyclists penalised for each driver.

Admittedly, it is easier to detect and penalise those riding without a helmet than it is for close passes — which happen quickly and often without evidence — but still: the contrast between enforcement numbers is stark. Or as Hogg and Quilter put it: “Cyclists might reasonably wonder whose safety and welfare is the priority here. The goal of law and policy relating to cycling should be to ensure a safe environment for cyclists.”

The researchers suggest that if the NSW government was really concerned with the safety of cyclists, then infrastructure, driver education, and enforcement of appropriate driver behaviour should really be the focus. Instead, “as is clear from the above data relating to its enforcement, the safe passing law represents little more than a hollow gesture in this regard.”

Hogg and Quilter make it clear that they aren’t opposed to mandatory helmet use — “in appropriate circumstances” — but they are also clear that the enforcement of that law needs to be proportional to the safety it provides, and the relatively minor nature of the offence.

“A small fine to provide an additional incentive for compliance may be justified,” they write, “but in our view there is no case for a punitive fixed financial penalty such as the current one under NSW law.”

They have other concerns as well. They believe that the current system unfairly penalises young people, who are both more likely to ride a bike for transport, and less likely to be able to afford the fine for riding without a helmet. They also have broader concerns about the penalty notice system as a whole, something they describe as “a hidden justice system, devoid of the safeguards assumed to apply to the administration of justice”.

In the same vein, the researchers point to the “quite arbitrary” enforcement of the law in some cases, due to an apparent lack of formal guidelines which seek to “ensure that enforcement serves a legitimate safety purpose rather than some other questionable aim.” A questionable aim like revenue raising, for example.

On this point, Hogg and Quilter point to the Byron Bay region where, in September 2019, 80 fines were issued to cyclists caught riding without a helmet in one weekend. A total of 70 fines were issued in the region for the entirety of the previous financial year.

“Was this the result of a sudden outbreak of defiance of the helmet law on the part of Byron residents and visitors,” the researchers write, “or a case of the police most of the time ignoring the offence until a decision was taken to enforce a crackdown in which more fines were issued in a weekend than in the entire previous year and more than twice as many as in the year before that?

“As one local observed, ‘I think it’s a dirty tactic by the police to allow non-compliance most of the time in Byron Bay and then have a “blitz” without warning and fine $350 a pop’. It is impossible to discern any legitimate safety rationale in such an enforcement strategy.”

Hogg and Quilter aren’t only interested in criticising the current system; they also have suggestions about how to improve it. They believe riders caught without a helmet should be given an initial caution, “and perhaps also a second one”, before a penalty notice is issued. They also believe the value of the fine should be reduced significantly. Such measures would tilt enforcement back towards a fair and proportional response, rather than one that seems more interested in raising money than it is in rider safety.

It’s hard to imagine too many cyclists disagreeing with that idea.

Follow the link to read the full Alternative Law Journal article.

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