South Australian Helmet Legislation - An Independent Review

This document is no longer current and only maintained for historic purposes.

Released : 06/03/2016
Updated : 06/03/2016
Version : 1.0
Prepared by: Tim Kelly

Foreword

This originally started out as another post for Ride To Review but like my paper into the AS1698 Helmet Standard, the more I looked at our current legislation here in South Australia (SA), the worse it got.

So sit back, enjoy and learn how current Helmet Use and Supply laws in SA

I will also demonstrate that historical legislation

Preface

The first thing we need to clarify is that these laws that have resulted in the above mentioned calamities are not old. In fact, they are relatively new with the legislation currently responsible for denying South Australian motorcyclists legal access to use ECE helmets on South Australian roads and blocking South Australian businesses the opportunity to stock and sell ECE helmets to all Australian's being the 'Road Traffic (Miscellaneous) Regulations 2014' legislation which was written and released by the current State government in September 2014 (or roughly 20 months ago).

The second important piece of information is that in February 2015 (13 months ago), the National Helmet Forum in Sydney hosted by "Standards Australia" was held where the focus of the forum was to discuss the issues of harmonising regulation surrounding the supply and use of motorcycle helmets across all Australian States and Territories.

Representatives from New South Wales (NSW), Victoria (VIC), Tasmania (TAS) and Western Australia (WA) were present. I have not yet been made aware of any South Australian government delegation attending.

At this forum

Overall, the most favoured outcome by advocates at the forum was to "remake the mandatory safety standard allowing the supply of helmets which comply with AS/NZS 1698:2006 and certain international standards" (ECE) with a caveat the State and Territory governments align supply and use laws across Australia. First ministers from every State and Territory responsible for overseeing and controlling helmet legislation in their respective jurisdictions were later provided a copy of the forum outcomes.

Since the forum concluded

The third and final piece of information valuable to this discussion is that in August 2013 (31 months ago) the ACCC released 'Review of the Consumer Product Safety Standard for Protective Helmets for Motor Cyclists'. A document which outlined Helmet Legislation, Consumer Law and the Helmet Use implications of CPN9.

Key points from this document highlight that

​The Actual Legislation

Below is the section of legislation as last updated in the 2014 that applies to Helmet Usage Laws and Helmet Sale Laws in South Australia.

51—Safety helmets for riders of motor bikes and bicycles (section 162B of Act) (1) Helmets are approved for motor bike riders if— (a) the helmets— (i) have been manufactured, tested and marked in accordance with the requirements of the Standards Association of Australia contained in— (A) Australian Standard E33/1959—Protective Helmets for Motor Cyclists; or (B) Australian Standard E33/1968—Protective Helmets for Motor Cyclists; or (C) Australian Standard E43/1968—Protective Helmets for Racing Motor Cyclists; or (D) Australian Standard 1698/1974—Protective Helmets for Vehicle Users; or (E) Australian Standard 1698/1988—Protective Helmets for Vehicle Users; or (F) Australian/New Zealand Standard 1698:1992—Protective Helmets for Vehicle Users; or (G) Australian/New Zealand Standard 1698:2006—Protective Helmets for Vehicle Users; and (ii) in the case of helmets manufactured on or after 1 January 1972—bear a prescribed certification mark or the certification mark of a body declared by the Minister by notice in the Gazette to be an approved body for the purpose of certifying compliance with the relevant standard; or (b) the helmets— (i) have been manufactured, tested and marked in accordance with the requirements of the British Standards Institution contained in— (A) British Standard 2001/1972—Protective Helmets for Motor Cyclists; or (B) British Standard 1869/1960—Protective Helmets for Racing Motor Cyclists; or (C) British Standard 2495/1960—Protective Helmets and Peaks for Racing Car Drivers; or (D) British Standard 6658:1985—Specification for Protective Helmets for Vehicle Users; and (ii) bear the certification mark of the British Standards Institution; or (c) the helmets have been manufactured by Arai Hirotake Limited and are marked as model SP-21, SP-22, TX-7, X-7, S-70, R-6m, or XR. (2) A person must not sell, or offer for sale, a helmet for use by a motor bike rider or passenger on a motor bike unless— (a) the helmet, if manufactured before 1 January 1976, complies with 1 or more of the standards contained in subregulation (1); and (b) the helmet, if manufactured on or after 1 January 1976, complies with— (i) Australian Standard 1698/1974—Protective Helmets for Vehicle Users; or (ii) Australian Standard 1698/1988—Protective Helmets for Vehicle Users; or (iii) Australian/New Zealand Standard 1698:1992—Protective Helmets for Vehicle Users; or (iv) Australian/New Zealand Standard 1698:2006—Protective Helmets for Vehicle Users. Maximum penalty: $2 500

​ Is it illegal to offer an ECE Helmet for sale in SA?

Yes, as per Section 51 (2) - "A person must not sell, or offer for sale, a helmet for use by a motor bike rider or passenger on a motor bike unless" it meets the list of approved Helmet Standards in section (a) or (b).

Therefore, as ECE 22.05 is not listed as an approved standard legal for sale, any South Australian business that offers for sale or supply an ECE helmet is in breach of the South Australian regulation, punishable by a $2500 fine.

As such, you could argue that for local private off-road and on track use or nationally where ECE is legal for road use, the consumer should be able to make a decision to purchase an ECE helmet given no Australian consumer laws forbid it and the overwhelming evidence supporting the safety credentials of the standard would make it a sensible and prudent purchase. However, the use of the term "motorbike rider" in this section unfortunately relates to any motorcyclist, not just those who use public roads

As an example of some of the affected motorbike riders currently denied access to purchase ECE helmets in store in SA for use on private property as a result of the current legislation include

​Is there really a Non Existent standard allowed?

Yes, as per section 51 (1) (a) (i) (F) - "Australian/New Zealand Standard 1698:1992—Protective Helmets for Vehicle Users;".

Despite my best efforts to obtain a copy of this standard,

As such, if any point in time this standard even existed, it has either been withdrawn or never designated as AS1698:1992 making it a non existent standard.

Can the SA Government Gazette ECE?

No, as per section 51 (1) (a) (ii) - "in the case of helmets manufactured on or after 1 January 1972—bear a prescribed certification mark or the certification mark of a body declared by the Minister by notice in the Gazette to be an approved body for the purpose of certifying compliance with the relevant standard;"

This particular piece of legislation was only introduced in the last revision to helmets laws in 2014, the first since 2007 and is significantly deficient and poorly conceived in that by it's definition, it only allows the Minister by notice of gazette to approve Helmet Certification Body, not the actual Helmet Standard itself. This means the Minister can only approve the Certification Body but not the ECE Helmet standard itself.

Can you really wear a helmet made 57 years ago?

Yes, as per section 51 (1) (a) (i) (A) - "Australian Standard E33/1959—Protective Helmets for Motor Cyclists". As this is an approved standard, providing a motorcyclist has a helmet that was manufactured, tested and marked in accordance with the requirements of the Standards Association of Australia using the research and technology as at 1959. This helmet is then entirely legal.

Not only that, but as per section 51 (1) (c) you can also wear helmets "manufactured by Arai Hirotake Limited and are marked as model SP-21, SP-22, TX-7, X-7, S-70, R-6m, or XR".

The only problem with this is that "Arai Hirotake Limited" was renamed to "Arai Helmet, Limited" in 1986. Essentially, the legislation by its requirement means should you choose to wear one of these models of helmets, it would of have need to have been manufactured at a minimum of at least 30 years ago.

As such, these laws are in direct conflict with Helmet Manufacturers own recommendations regarding helmet safety which stipulates that helmets should be replaced at least every 5 years to account for shell and interior foam degradation.

​The Legislation allows BSI Helmets, Is this good?

Not really. The British Standards Institute (BSI) Standard was last updated in 1985 with the ECE standard being legalised in the UK in 2005. As a result, BSI helmets quickly become an irrelevant standard as manufacturers swapped to the more modern, safer globally recognised ECE standard. The flow on effect of this was that the available range of helmets in SA became smaller between 2005-2007 until BSI certified helmets were no longer available, again reducing the availability of suitable sized helmets for South Australians.

​Were AS/NZS 1698:2006 Helmets illegal in SA until September 2014?

Yes, as per section 51 (1) (a) (i) - "Helmets are approved for motor bike riders if … (they) have been manufactured, tested and marked in accordance with the requirements of the Standards Association of Australia contained in... Australian/New Zealand Standard 1698:2006—Protective Helmets for Vehicle Users".

Now remember that really bad legislation that allowed the gazetting of a Helmet Certification Body but not the Helmet Standard itself that was introduced in late 2014? There was a reason for it.

The use of the term "Standards Association of Australia" in the Legislation. As per the National Library of Australia (http://trove.nla.gov.au/people/576795), the "Standards Association of Australia" ceased to exist in 1988 when it was renamed to "Standards Australia".

Further to this, in the official copy of the AS/NZS 1698:2006 standard, it explicitly states "This Joint Australian/New Zealand Standard was prepared by Joint Technical Committee CS-076, Protective Helmets for Vehicle Users. It was approved on behalf of the Council of Standards Australia".

Hence, as per the legislation until September 2014, it was not marked in accordance as defined by Section 51 (1) (a) (i) of the regulation by the "Standards Association of Australia" effectively rendering all helmets certified to AS/NZS 1698:2006 illegal for use in SA between the years 2007 when the standard was first listed, right through until 2014 when that new section of the legislation that allowed the minister to gazette the Helmet Certification Body but not the Helmet Standard slipped in.

How this worked was at the time, there were already provisions in the current legislation which defined a "prescribed certification mark means the certification mark of - (a) Standards Australia; or (b) a body accredited under the system established by Australia and New Zealand known as the Joint Accreditation System of Australia and New Zealand;".

Therefore, once section 51 (1) (a) (ii) - "in the case of helmets manufactured on or after 1 January 1972—bear a prescribed certification mark or the certification mark of a body declared by the Minister by notice in the Gazette to be an approved body for the purpose of certifying compliance with the relevant standard;" was introduced, the reference to "prescribed certification mark" made AS/NZS 1698:2006 Helmets finally legal.

I would also add that the current State government has had the opportunity to address this issue in legislation a total of 42 times between 2007 and 2014.

How was SA legislation a breach of Australian Consumer Law until 4 months ago?

The actual legislation that currently blocks South Australian Businesses from offering for sale ECE helmets is the exact same law that has breached Australian Consumer Law (ACL) since 2011. Before that, it was in breach of The SA Fair Trading Act 1987 proclamations that had mirrored CPN 9 between 1990 and 2010.

ACL is by it's definition, a mandatory law for all Australian businesses to adhere by and therefore as the SA legislation specifically lists and allows other non AS1698:1988 helmet standards as legal for sale and supply, it was is direct contradiction and breach of CPN9.

It is also important to note that it was not the current SA government that addressed this issue by amending legislation and instead, it was only by revocation of CPN9 by the ACCC that resulted the SA legislation no longer breaching Australian Consumer Law.

Finally, I would add that matters relating to the CPN9 breach of SA Legislation was not recently discovered. In March 2013, Peter Mount on behalf of the MRASA released "Motorcycle Helmet Standards: A National Appraisal" which documented and demonstrated by definition of the law how the certification markings of AS1698 as required by SA were a legal contradiction against CPN9 as per the current legislation at the time.

​Does the current SA regulations affect other States & Territories?

Yes. Again this week (First in March 2016) I have been informed that some Australian importers are still holding off on bringing in new helmet stock into the country as buying a batch of ECE helmets means you take SA out of the marketplace, and buying a batch of AS1698 helmets means their businesses are effectively removing all the other States from the market as AS1698 helmets are no longer demanded by consumers at the same volume as they were prior to ECE legalisation being announced across multiple Australian States.

As a consequence of this, fewer helmets are now being imported into this country meaning not only is the current South Australian Legislation currently denying South Australian businesses the opportunity to stock and sell ECE Helmets, they're also denying interstate businesses the opportunity to stock and offer for sale ECE helmets.

The final and most serious concern as a result of the current South Australian Legislation is that as indicated, a larger number of ECE helmet purchases are now being undertaken online and off-shore. As such, this is an extremely sad indictment of road safety in this country with riders primary motivated into purchasing an ECE helmet doing so for it's safety benefits whilst at the same time, having the current South Australian State governments legislation resulting them be denied opportunity to have them professionally fitted in-store across Australia.

​​What is the current SA Governments position?

Unknown. Despite advocates all across SA and Australia having petitioned and requested the current State government for a public position in regards to ECE legalisation in SA regularly and persistently over the past several years, any and all official requests have been responded to with generic statements outlining just how much the current State government know and just how aware they are of everything that is going on across the nation.

Unfortunately though, it would appear that in some aspects, the knowledge maybe be blinkered or even unknown both by the Minister and Department, and as an example, shown below is the response from the current Transport Minister of SA in May 2015 in relation to being asked to support and legalise ECE Helmets in SA, this was the justification given for not acting on ECE Legislation.

I am advised by the Department of Planning, Transport and lnfrastructure (DPTI), the supply (being the sale, exchange, lease or hire) of motorcycle helmets is governed by a mandatory consumer product safety standard known as Consumer Protection Notice No. 9 of 1990 (the Notice). This declares the current mandatory standard for motorcycle helmets to be Australian Standard 1698-1988: Protective helmets for vehicle users. The effect of the Notice is all helmets supplied in Australia must meet Australian Standard 1698-1988.

Shown below is a history of Road Regulation Ammendments or Revisions in SA since 2000. The blue bars represent the number of revisions per year and the orange bars indicate where helmet related changes were made.

Changes related to the 2 Helmet Law Revisions are:

​​​What can we do?

If you want to support ECE on our roads in SA and support not only South Australian businesses, but all Australian businesses, then I implore you to write to the relevant ministers of all the other Australian States and Territories. Ask them to help us and the people they represent in their electorates. Ask them to contact our minister and convince him it's in the current SA State governments best interest to act. It's not just South Australian motorcyclists being denied access to ECE helmets. It's every motorcyclist and business in Australia right now seeking the benefits of modern safety and technology and as is currently stands, everyone is losing out in terms of road safety and business opportunities whilst the current SA State government continues to fail to act and keep our laws and regulations in step with the rest of the nation and common sense.

​ Final Thoughts