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What are the legal consequences of wearing a helmet camera?

22 Sep , 2016,
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We’ve all seen the footage. A motorcyclist overtakes a car, the driver takes offence, speeds up, tailgates and tries to push the motorbike off the road. Scenes like this are becoming increasingly familiar on YouTube and sometimes even the nightly news. More often than not, the footage is from the point of view of a GoPro camera attached to the motorcyclist’s helmet. How does this new phenomenon fit into our road rules and traffic laws?

Some motorcyclists consider a helmet camera to be an important safety device. They report that driver behaviour tends to improve markedly when the motorist realises they’re being filmed–there’s less SMIDSY (Sorry Mate I Didn’t See You) and more awareness and respect. Helmet cameras can also provide important footage if there’s an incident or accident on the road.

But, across Australia, the rules and regulations around helmet cameras are inconsistent and unclear. A motorcyclist can be wearing a legal helmet camera in South Australia, then cross the border into Victoria and find themselves slapped with an infringement notice and fine. In Queensland and South Australia, the law is clear that the use of helmet cameras is allowed. In other states and territories, it’s not so clear. This inconsistency is caused by different laws in each state and territory and varying interpretations of those laws.

Argument one: Interpretation

All motorcyclists in all states and territories must comply with the relevant road rules, which make reference to various versions of Australian Standards. Queensland and South Australian laws state that a helmet must comply with standards at point of manufacture. So, for example, once a Queenslander motorcyclist has purchased a helmet, they can legally attach a camera.

In Victoria and New South Wales, however, police have interpreted the law to require ongoing compliance with relevant standards beyond manufacture and supply. So, the argument goes, if you attach a camera to your helmet, it may no longer meet the required standards, and therefore may be unlawful. What was once a lawful helmet has become retrospectively unlawful.

Maurice Blackburn is currently representing motorcyclist Max Lichenbaum who was given an infringement notice by the police for‘failure to wear an approved motorbike helmet’on the basis of using a helmet camera.

Our argument is that once the helmet has been approved, it can’t be unapproved. Manufacturing standards were never intended to and do not provide an ongoing system of regulation. The date of compliance with the standards should be the date of manufacture, as it is clearly and explicitly in Queensland and South Australia.

Argument two: Accessibility

Even if you disagree with the first argument and believe that ongoing compliance with Australian Standards is required, there’s another issue. And that is: accessibility to the Australian Standards under which these infringements are being made. In Victoria, it is a defence to a charge that relies on breaching a document if that document is not publicly available without charge. How do we know we’re breaking a rule if we’ve never seen the rulebook?

In Lichenbaum’s case, our argument is that the Australian Standards are not publicly available at VicRoads. The standards need to be not just theoretically, but practically and actually available and accessible to the public. A hard copy in a third-floor legal library with no practical public access does not, we argue, meet this requirement.

Just as importantly, if not more, the helmet laws in all states and territories need to be brought in line with the more explicit and clear position of Queensland and South Australia – that is, that where compliance with a Standard is required, the relevant time for compliance is at manufacture, not after sale.

Australia is a large country connected by asphalt. Consistency and clarity of national rules is a good place to start if we’re to reduce accidents, injuries and fatalities on our roads.

Malcolm Cumming is a Principal in Maurice Blackburn’s Ringwood office.

https://www.mauriceblackburn.com.au/blog/2016/january/04/what-are-the-legal-consequences-of-wearing-a-helmet-camera/#sthash.GP4xJCy1.dpuf