NSW Our Constitution, law and human rights

[Homer007]

Hi all

First post, and I'm no lawyer so please forgive anything that I may say that is wrong.

My question is around the Australian Constitution, our personal rights and the law. Specifically I want to refer to the law that requires all motorcycle riders and passengers to wear helmets.

What I've read is that we have the right to make choices about our lives, so why is it that we can't choose to ride a motorcycle without a helmet under any circumstance? Doesn't the law that insists that helmets be used go against this human right?

I understand that it's very possible that the law was created due to the many deaths/disabilities that occur when a rider with no helmet is involved in a serious accident, but surely there were other options, like create a law that states that if I rider chooses to ride with no helmet, they must have appropriate personal insurance? This would mean that the rights of the individual and the rights of everyone else are upheld.

I'm super keen to hear from others who know more about this than me!

Thanks

 

[Rob Legat - SBPL]

What I've read is that we have the right to make choices about our lives

And exactly where did you read this? (because there is no such ‘right’ in Australia).

 

[Tim W]

Except for a very few rights that are a product of statute,
pretty much anything that an everyday person would think of as a right,
if it exists at all, only exists to the extent that there is no bit of law somewhere regulating it,
adding conditions to it, or out an out prohibiting it.

To address your particular question

...What I've read is that we have the right to make choices about our lives...

No, you don't.
Whatever you've read is either wrong, or you've misunderstood it.
Most of it isn't even true in the US, where most of this... guff... comes from.

Now, let's talk about what we are really talking about.
You do not have freedom to choose whether or not to wear a helmet.
The law (in this case, Road Rule 270) says you must wear a helmet.
The choice is not yours to make.
The right to make the choice you're asking about does not exist.

The Local Court will have no truck with a human rights defence to a court elected traffic fine.
Pay the fine, @Homer007, and move on with your life.

 

[sammy01]

section 52 (i think) of the constitution outlines the role of the federal govt. So fed make laws to do with trade, defence, marriage among other stuff. The states have the authority to pass laws. This is known as 'residual power'. So each state has the authority to pass laws in relation to stuff like criminal law, traffic law. NSW state govt have passed a law on helmets. The constitution allows it.

Yep this whole human rights arguments / constitution argument is going nowhere.
But for fun... Australia is signatory to the United Nations Declaration of human rights. So your human rights are protected. One right you have is "the right to life, liberty and security of person." I'd argue the nsw helmet laws are protecting your right to life because riding a motorbike without a helmet is suicidal...

 

[Homer007]

Thank you everyone for your comments. It's clear that you are all much more educated than me, which clearly shows in your responses, yet they have been written in a way that a person like me can get some understanding from, which I appreciate.

What I plan to do is look further into the points that have been raised once I find the time, but I will quickly address a couple things.

Firstly, work background is in Community Services. Given that Australia is a signatory to the human rights charter, I come to the conclusion that we have the right to make decisions that affect us. The sentence I wrote that was quoted here a couple times, I found on a human rights website run by the government, as well as another government run website for people with disabilities. In fact the Australian Human Rights Commission says we have the right "to make genuine choices in our daily lives". The Australian Constitution Centre states on their website that "The rule of law gives us a predictable and ordered society. It promotes justice, fairness and individual freedom." A law, such as the one that states that helmets must be worn, does not promote individual freedom.

There was once a time in NSW when one could obtain an exemption from having to wear a helmet. I believe that this changed most likely due to the cost on the public health system. But there are other activities that many people do that place themselves and others at risk. Anyone can drown, and many do (not just poor swimmers) yet we don't make everyone wear a life jacket. Is anyone able to explain the legal reason why this is so?

Again, I appreciate everyone's comments, and while I do ride a motorbike, there is no way I would choose to not do so without something protecting my head!

 

[Rob Legat - SBPL]

Okay, so what's you're missing is the unspoken text in the wording you've referenced, which is "...up to a certain point". What seems to be often misunderstood about personal freedoms is that there must be inherent limits imposed. That limit, which is usually 'topic specific', is usually imposed right around the point where one person's 'right' conflicts with another 'right or interest'. Without such limits society would (possibly arguably) eventually decay into anarchy.

This is easiest to explain by way of examples. Let's contrast some perceived freedoms of choice, from practical to ridiculous for the point of illustration:

1. Choice: To play the drums at all hours of day and night. Conflict: This causes a nuisance to others, especially at night when people require rest. Outcome: There are laws prohibiting excessive noise, and torts like 'private nuisance'.

2. Choice: To express yourself in whatever way you desire. Conflict: While we have an 'implied right' of free speech in Australia, the government has decided that that 'right' is unacceptable when used in certain manners - i.e. hate speech, racial vilification, workplace bullying, unlawful discrimination, etc. Outcome: There's laws that make it unlawful to say/print certain things.

3. Choice: To not wear a helmet while riding a motorcycle. Conflict: The costs to society from head injuries caused by motorcycle accidents. This is not just the hospital/medical costs, but also the costs to the person's family, losing a viable societal member (whether deceased, or through an acquired brain injury), rehabilitation, and the diversion of resources which comes with all of this (and the list goes on). This cost is considered unacceptable by the government when compared to the importance of your 'personal freedom'. Plus, what's often not talked about but it readily apparent is that the government often makes laws because they figure the average person is considered 'too dumb' to make the right decision on their own and they're doing it to protect you. Outcome: There's a law requiring you to wear a motorcycle helmet.

4. Choice: That person annoyed/upset/assaulted me and I want to kill them. Conflict: Well, the other person's interest in remaining alive for a start. Also, modern society tends to frown on the indiscriminate killing of citizens and visitors. Outcome: There are laws making it illegal to kill people.

 

[Atticus]

Anyone can drown, and many do (not just poor swimmers) yet we don't make everyone wear a life jacket.

Mandatory to at least have them on board any motorboat I believe.... obviously not practical for swimmers, surfers etc.

 

[Homer007]

Thank you for the above posts.

The examples make sense, and I totally agree why in those examples laws need to be in place, but I'm still hung up on the helmet example. My thinking is that absolutely as things stand, the law needs to be in place, but the only reason I believe the law is required as things currently stand, is the impact an injury or death may have on society, and I believe that requiring one to have sufficient personal injury insurance would cover that. When it comes to the law being required to ensure society maintains an individual as part of that society, and think that's overreaching and I don't think lawmakers have that right.

When I think about it more, I think my example about life jackets while swimming is a good one; a law demanding all swimmers wear a life jacket would almost bring the number of deaths due to drowning down to zero, but of course there is no such law because the way we think about it now is that it doesn't make sense. But if it was made a law, say 50 years ago, we would have gotten used to it and we would come to see that it does make sense. In this way of looking at it, it's the same as the current helmet law because my guess is when they made the law many many years ago, it probably didn't make sense in that time, but when we think about it now, we see that it does. But there must be a good reason to have a law, and with regards to the helmet law, I believe that if one had appropriate insurance, then the law wouldn't be required.
Of course this is just my opinion, and I've never studied law, which is why in very much appreciate all the comments made above. And I also appreciate the patience you all have afforded me while I thrash out this idea!

 

[Tim W]

Firstly, work background is in Community Services.

I teach the people who go on to become your boss.
On that basis, I like to flatter myself that I have a 2% clue about the topic of the interplay between human rights and the substantive law.

Given that Australia is a signatory to the human rights charter, I come to the conclusion that we have the right to make decisions that affect us.

You are incorrect, insofar as you think that that's a generally applicable and universal principle, let alone an enforceable legal institution.

Here it is again:
A person is only free to act (in your words "make their own choices") up to a point.
In simple terms, that point is where either

• there is a bit of law somewhere that regulates the action (or as you called it "choice"), or puts conditions on it, or prohibits it; and/or
• the/those "choice(s)" has/ have some sort of adverse effect* on somebody else, or on the person themselves**

Let me be clear - there is no universal right to do dumb or dangerous acts,
just because you are personally willing to take a particular risk.

In full:
The supposed right that you're asking about,
that is, the supposed right to choose to take a particular risk,
with the culturally specific assumption that a person can and subsequently get treated, and perhaps rehabilitated,
and perhaps even supported for a lifetime, at public expense, when that risk materialises,
does not exist.



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* beyond the trivial, but otherwise however minor
** note that "somebody else" here can be a single person, or a group or class of people, or can be the community as a whole

 

[Atticus]

the only reason I believe the law is required as things currently stand, is the impact an injury or death may have on society, and I believe that requiring one to have sufficient personal injury insurance would cover that.

So you're okay with a law that says you must have insurance but not with a law that says you must wear a helmet on a motorcycle?

& what is society to do with a person who doesn't take out that insurance, has an accident & suffers severe head trauma as a result of not wearing a helmet? ... are we to deny that person medical aid? ... Bill his family?

Seems to make a lot more sense to have a simple law that says you must wear a helmet along with a fine & loss of demerit points if you don't.