South Australian Helmet Legislation

This document is no longer current and only maintained for historic purposes.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

• Make it illegal for any South Australian business to sell or offer to sell ECE 22.05 (ECE) certified helmets to any Australian.
• Make it legal to use and sell a helmet standard (AS1698:1992) that has not ever in the history of time, existed.
• Provides provision for the Minister to gazette a new helmet certification body but not a new helmet standard.
• Make it legal to use helmets constructed, tested and supplied as far back as 1959.

I will also demonstrate that historical legislation

• Between the years 2007 to September 2014, made it illegal for any motorcyclist from or visiting SA to use any helmet certified to the AS/NZS 1698:2006 standard (the most common and current AS/NZS 1698 helmet standard in Australia since 2007).
• Since at least 1999 was in direct contradiction of Consumer Law- Consumer Protection Notice 9 (CPN9) until November 2015, when it was finally revoked by the ACCC.

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

• “Standards Australia” clarified it’s position an as independent, non-government organisation that was not involved in regulation, certification or auditing of helmets.
• “Standards Australia” also stated they where not responsible for helmet use laws or legislation in any Australian jurisdiction.
• The ACCC reaffirmed it was still investigating the revocation of CPN9, a consumer law notice forbidding the sale of any helmet not meeting the AS1698:1988 standard (the only approved standard under Australian consumer law legally allowed for sale until it’s notice revocation in 2015).
• Both “Standards Australia” and the ACCC strongly urged respective Ministers from each State and Territory to work together on the harmonisation of helmet laws across Australia by making legislative decisions independent of the ACCC and “Standards Australia”.
• The Motorcycle Council of NSW and the Australian Motorcycle Council (AMC) highlighted how the current certification system in Australia was completely broken and argued that ECE should be immediately adopted into law based on the science and research that had gone into the development of the standard. They also indicated the ECE Standard was already in use in over 50 countries around the world.
• Queensland (QLD) indicated it had already legalised ECE and NSW confirmed it had done significant research into ECE and was now considering amending it into law.
• NSW road safety scientists reported cases of motorcyclists being unable to find a suitably fitting AS1698 helmet and as a result, medical exemptions where now being sought to obtain and wear a larger helmets certified to an international standard.

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

• NSW, VIC, the Australian Capital Territory (ACT), TAS and the Northern Territory (NT) have all legalised ECE.
• CPN9 was revoked by the ACCC.
• Many States and Territories acted independently of the ACCC and legalised ECE prior to CPN9 being revoked.

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

• CPN9 was published by Commonwealth gazette in December 1990.
• CPN9 stipulated that the current mandatory standard (at the time) to be Australian Standard AS 1698:1988 Protective Helmets for Vehicle Users was the only helmet standard legal for sale in Australia under the notice.
• Due to the requirements of Commonwealth law, notices cannot be automatically updated to reflect new standards (i.e. AS/NZS 1698:2006).
• Since 2006 when AS/NZS 1698:2006 was released, CPN9 has effectively made the sale of helmets meeting this standard an offence as in order for a retailer to sell it, a retailer must be able to verify it meets AS1698:1988.
• It is State and Territory road and traffic agency Ministers that make legislation in relation to motorcycle helmet use since it is each State and Territory that requires motorcyclists and their passengers to wear an approved motorcycle helmet while riding a motorcycle on public roads. Therefore, each jurisdiction then defines what is an approved motorcycle helmet. Not the ACCC.
• The 3 options under consideration as at result of the review all included the repeal of the current mandatory standard (CPN9).

​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.

​ 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

• Little kids, Teenagers and Adults who on the weekend share the experience of riding motocross at the private dirt bike track.
• Farmers who use daily use motorcycles for complete farm work on their private property.
• Trail bike riders whom spend no time on our roads, instead deep in the hills riding bush tracks or exploring the magnificent South Australia coasts.
• Sportsbike riders whom monthly are heading to Mallala and to Mac Park in Mt Gambier taking their street bikes onto the track.
• Sponsored Racers whom tour the country competing in National Championships and require FIM approved helmets for road racing.

​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,

• I have came up empty handed every single time with all references found to this particular standard designation always leading back to the SA government’s own website for SA legislation.
• Not even the company SAI GLOBAL whom is the sole entity responsible for the selling and distribution of Australian standard has one single reference to it on its own website.
• The closest reference to any helmet standard produced in 1992 I could find according to SAI Global was NZS 5430:1992
• In the AS/NZS 1698:2006 Standard it states “This Standard was prepared by the Joint Standards Australia/Standards New Zealand Committee CS-076, Protective Helmets for Vehicle Users, to supersede AS 1698—1988/ NZS 5430:1992, Protective helmets for vehicle users, and NZS 1215:1969, Specification for protective helmets for motor cyclists“.
• In an ACCC review published 2013, it stated that “Australian Standard AS 1698 and the New Zealand standard for protective helmets (NZS 5430:1992) were jointly revised and designated as AS/NZS 1698:2006”.

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:

• The first in 2007 to include AS1698:2006.
• The second in 2014 to actually make AS1698:2006 legal

​​​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

• If the ACCC indicated in 2013 it’s intentions were to repeal CPN9 why has the SA government not acted to prepare legislation. How does the current SA legislation impact on and benefit South Australian and Australian Businesses?
• Crash statistics across Australia indicate that roughly 20% of motorcyclists had an incorrectly fitted helmet at the time of their death. How does the current SA legislation which as indicated is forcing sales online impact on motorbike riders having the ability to have their helmet professionally fitted prior to purchase?
• Whom is advising the current South Australian government on Helmet Law and sale regulations in this State? As demonstrated in this document, it is and has always been woefully inadequate, incorrect and in direct breach of Consumer Laws since the turn of the century.
• Why has the current South Australian government chosen not to announce its policy position on ECE which would allow all South Australian motorcyclists to determine whether they support the current State government.
• How does the current South Australian governments failure to announce an ECE policy position provide confidence and assurances to helmet importers they are making sound business decisions and investments in stock?
• How does the current legislation impact on interstate riders travelling through SA? The SA police have indicated ECE helmets worn by interstate riders will be illegal. The Minister therefore should direct police to exercise “discretion” in applying SA law to interstate riders while helmet standards issues are resolved. Similar to our State governments request of other States in 2011 when paperless registrations labels were implemented.