The curious case of road safety rules and helmet regulations in Australia

Helmet laws have undergone drastic changes the past couple of years and this understandably has led to significant confusion amongst riders – particularly around differences in road safety rules between states. With many riders cruising across state lines, you should be prepared for what is legal in each state so you don’t cop any unnecessary fines.

Background to the Australian Road Rules

In 2018, the model Australian Road Rules were reformed, notably in the area of helmet laws. The push for these reforms stemmed from issues around inconsistent regulation and enforcement of motorbike helmet use within and between the States and Territories of Australia.

The significant changes in the new Australian Road Rules (ARR) included:

• Formalising the use of European Helmets certified to UN/ECE 22-05, which provides safer helmets and a more competitive market,
• Providing clarity that standards compliance for helmets is required at the point of manufacture only,
• Removing legal grey area on issues such as the use of dark visors in bright daylight, and the use of communicators and cameras, and
• Providing greater consistency around rules for lane filtering.

Australia’s Constitution means there’s no practical avenue to legislate these new road rules at the federal level and the expectation was that each state and territory would legislate to implement the ARR. Unfortunately, the changes have not been adopted in a timely fashion and the Road Rules still differ from state to state. This inevitably leads to undesirable outcomes for riders as police from each jurisdiction struggle to properly enforce the state Road Rules.

State by state helmet standards

The overarching safety standards for helmets in Australia are:

• AS 1698
• AS/NZA 1698, or
• UN/ECE 22-05

The Road Rules in South Australia, New South Wales, Tasmania and the Northern Territory arguably mean that the user of the helmet has to continue to ensure that the helmet complies with the relevant safety standard in-use (to the extent this is possible). The alternative interpretation is that that once a helmet is approved (by complying with the Standard when manufactured) it cannot be considered unapproved and non-compliant at a later date because a camera is attached. In our view this is the better interpretation, however the ambiguity in these states Road Rules has in our opinion led to a number of fines being incorrectly issued due to interpreting the manufacturing standards as providing an ongoing system of regulation.

Prior to Victoria adopting the ARR amendments, the wording of the Victorian Road Rules was similar to the above states. This problem was highlighted by the case in Victoria that we won in the Victorian County Court 2016 for a rider who was fined for not wearing an approved motorcycle helmet because it had a camera affixed.

Victoria fortunately recently adopted the ARR amendments.  The legislation states that an approved motor bike helmet is one that was made in compliance with safety standards.  The modifications can be made after purchase, as long as it does not impact the helmet’s working order and condition.

Proper working order and condition means that a helmet can be scratched or marked, but the scratch or mark has not:

• Penetrated the helmet’s outer shell, or
• Damaged the helmet’s retention system, or
• Damaged the helmet’s inner lining.

A helmet is not in working order if it’s damaged to a degree beyond what might reasonably be expected from the normal use of the helmet.

In Western Australia, the standards are based around production only. There is no language around any ongoing obligation after the point of purchase, which suggests that there is no ongoing, in-use helmet regulation and that helmet cameras are legal.

In the ACT, there are provisions which modify the application of the Standards that deal explicitly with communication and recording devices allowing devices with frangible mountings including cameras to be used.

Where to from here?

It goes without saying that helmet laws are in place to help keep you safe. You should never wear a broken or damaged helmet and you should check in with the helmet manufacturer regularly to see if there are any known issues or defects. The inconsistency for riders between helmet laws is confusing and where possible, you should keep an eye on changes at a state level to see if these may affect you. Rider advocacy groups, motorcycle magazines and the Stop SMIDSY Facebook page will cover off important issues as they are happening. Our view is that the ARR should be adopted by states as a matter of priority to keep the playing field fair for riders.

Ultimately, it’s entirely dependent on state governments to implement the changes. The adoption of the reformed Australian Road Rules will facilitate national consistency and remove the ambiguity that is present in South Australia, New South Wales, Tasmania and the Northern Territory. We recommend that you get in touch with your local member and ask them about the progress, if any, they are making on this important issue.