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Helmet camera deemed illegal

Max fronts media outside Frankston Magistrates Court
Defendant Max Lichenbaum outside court

A Victorian Magistrate has upheld a $150 fine against a motorcycle rider for wearing a helmet camera, finding that the relevant laws were publicly available despite evidence that they weren’t.

Defendant Max Lichenbaum says he is disappointed and is considering an appeal to the Supreme Court through his lawyers Maurice Blackburn.

Legal representative Malcolm Cumming says they tried to obtain the relevant Australian Standards first by phoning VicRoads, but were told they could not give them out over the phone.

“So we sent someone to VicRoads, but the receptionist was not sure and asked someone in a back room who said, ‘no, we can’t have them; they’re available by subscription only’,” Malcolm says.

Max fronts media outside Frankston Magistrates Court helmet camera
Max fronts media outside Frankston Magistrates Court

The Australian Standards used to be available in a public library on the ground floor, but it has been closed and they are now held on the fifth floor which does not have public access under tighter anti-terrorism measures.

Malcolm says this evidence was presented in court, but Frankston Court Magistrate Rodney Crisp made the point that the lawyers needed to prove that on the date of the offence the relevant Australian Standard was not available.

“He wasn’t satisfied that, in all probability, it wasn’t available,” Malcolm says.

The other legal argument was that the standard applies at the point of manufacture and cannot be unapproved.

However, the Magistrate found that there was an ongoing obligation to comply with the standard.

“This is inconsistent with the laws in Queensland and South Australia. In their road rules, they make it clear and explicit that road rule 270 means that you comply at manufacture and that’s the end of the story.

“I’m very disappointed with the verdict and we will be advising Max about appeal options to the Supreme Court.

“Max was also very disappointed as he is always a good risk manager and always wears full leathers and boots and uses a helmet camera to manage risk, improve driver behaviour and as evidence after the fact.

“We’re now going to ask the State Government for legislative change to remove the ambiguity and make it clear that as in Queensland and South Australia, once it’s approve it can’t be unapproved.”

Media and observers packed the Frankston Magistrates Court, including cyclist representatives such as Dallas Goldburg of the World Naked Bike Ride.

He said the legal interpretation also affected cyclists.

“We use cameras to protect ourselves,” he says.

In Queensland, a former police minister even encouraged cyclists to wear helmet cameras to collect evidence in the case of an incident.

“You don’t get given the government standard when you buy a helmet,” he says.

“We’re also amazed that GoPro have no formal comment on it.

“You can now buy a GoPro at Target, Woolies, Kmart and Dick Smith, but there’s nothing to show there is a warning that they can’t be on a helmet.

It’s the helmet that’s not approved, not the camera, or the 3M adhesive, or the standard at the point of manufacturer or at the point of being picked up by the police.”

Cyclist helmet camera
Cyclist helmet camera

Edward Hore from Cycle says helmet cameras are a safety feature used by many bicycle riders.

“A number of commuters use them to get to and from home and have them mounted on their helmet as it allows the camera to see what they see,” he says.

“Over the years helmet cameras have become required and even recommended by other jurisdictions including Queensland where Police Chief Ian Stewart told bike riders to use them in order to film cars passing too close. In the past few years they have become a safety item more synonymous with YouTube, but are still used by riders as a deterrent to road rage when pointed out the perpetrator may be filmed.

“It is sad to see the Victorian courts uphold a conviction on a motorbike helmet and it is yet to be tested in court for push bike helmets, but we hope that we can get a better ruling that helps the safety on our roads.”

The only bright news from today’s court appearance is that the original fine of $289 was reduced to $150 with no conviction recorded . It is believed the three demerit points still stand.

  1. Appeal….we as riders need this, its been proven that riding a motorcycle and lane splitting reduces traffic congestion, but what happens if we have an accident??? Car drivers have every right to have a dash cam installed in their cars and those camera’s sit upon cradles which were not part of the car’s original design….we as bike riders deserve the same rights, wearing a helmet cam does not affect the integrity of the helmet if using the 3m tape, we pay registration to use the roads, as do the car drivers, what makes our safety less important that the ones who choose 4 wheels over 2

  2. does this mean cyclists can’t attach cable ties to stop magpies swooping or attach flashing safety lights to their helmets

    1. We will be discussing this tomorrow on behalf of the cycling community with the Transport Safety Ministers office and other stakeholders.
      I am the President of the Australian Cycle Alliance Inc, and am very concerned about the implications.

      1. As you should be as the standards are worded identically. Wonder if Vicroads has yours publicly available?

  3. You can’t fight city hall. I guess the judge didn’t want to be seen to be “changing” things. Piss poor effort by the coppers though. Just using it for an excuse to write a ticket. Just another jury buster!

  4. We need a crowd funding excercise to challenge all these fines

    The brief of evidence though must have been quite convoluted to overcome the lack of provisions in the Vic Road Rules to empower police to void the compliance of a helmet

    At the end of the day though the fact that when there is a question of a piece of safety equipment meeting a standard a car driver is given a minor defect notice which has no points attached and a bike rider is given a punitive fine with points shows the discrimination and hypocrisy of the current system

  5. Magistrates in general rarely dispute a police issued infringement even when there is a mountain of evidence the cop is either wrong or being dishonest ( they might actually be taken into a room and warned that kiddy pics will be found in their possession if they go against the police that or they’re just plain ignorant) that said there are ways to beet a fine and the most commonly successful way is failure to follow procedure or incorrect charge.
    The charge was not ware a helmet(at all), not ware an unapproved helmet or even defective helmet as you can render a helmet defective that’s still approved. If the lawyer took that tack the magistrate would probably ruled differently as he would not have been risking the eyre of the police because it was a mistake being corrected not defiance.

    1. I think the offence is actually ¨failure to wear an approved motorcycle helmet¨ which is where this grey area of if the helmet is approved or not comes into it.

      in saying that I don’t believe the standard has any provisions for a helmet becoming unapproved after being approved.
      there are a million and one ways this charge is BS and shouldn’t of been upheld

  6. flood the streets, every motorcyclist should be encouraged to wear a helmet cam, and every charge should be contested regardless of legal grounds.
    fill the courts to the point where they have to change the letter of the law to make it clear that this is not illegal, if they so choose to change the wording of the law to make it illegal the fight continues the courts will not be able to handle the work load from everyone contesting the fines.
    someone needs to organise a protest in melbourne cbd over this or something, couple hundred bikers all wearing cameras.

  7. Well isn’t this just a pointless waste of everybody’s time! Once again the over-intrusive nanny state imposes yet another restriction on freedom of the individual. No matter where you are, or what you are doing, here in Australia there is always a pointless little man hiding behind a tree or something ready to slap a fine on you for some “offence” that you probably didn’t even know you were committing. Are we overgoverned or what!

  8. All the above derogatory remarks against the police and the courts are certainly no help to the cause.
    Most are also missing the point of the charge.
    The ADR for manufactures states that nothing protrude beyond 5mm ( from memory that is correct ) on the helmet. They ( the manufacture ) must provide a document at the point of sale ( usually enclosed in the packaging) stating that nothing is to be attached to the helmet that is not approved by the manufacturer. If something is attached, it the renders the helmet non-compliant to the manufactures ADR.
    There is no rule in the traffic regulation stating that a camera cannot be attached to a helmet. There is a ruling that states that nothing can be attached that reduces the integrity of the product ie cutting into the surface, drilling holes etc. even painting. The paint could cover a defect, apparently.
    Unfortunately the police are using the manufactures ADR to deem the helmets non-compliant ( to the manufactures ADR therefore unwearable on a public road). What their motivation for pursuing this line of action is, who knows.
    Of course this would also deem a large percentage of BlueTooth devises to be non-compliant also.

    The ADR for the manufactures is available in NSW. ( although not publicly nor readily available). It took me about 4 hours of searching through Government gazettes to locate it. It is not listed amongst Road Regulations but under Government Gazettes ( go figure ) To get a copy to be able to read it will cost you $65.

    Perhaps a approach to the manufactures asking for authority to attach a camera might be the way to proceed. However since they would have no control over how it would be attached by individuals I doubt this would be forthcoming.

    The idiocy of this argument is that as we all know if the camera is attached using the 3M tape provided and the plastic clips provided there is no way known that it will not be the first thing to break free when impacting the ground or any other object. The police argument is that anything attached to the helmet could cause drag when coming into contact with the road surface, therefor increasing the chance of injury.
    Many riders have lost their cameras simply by them blowing off while riding.

    5 November 2010
    Roads and Traffic Authority
    ROAD RULES 2008
    Approved Motor Bike and Bicycle Helmets
    FOR the purposes of the definition of an approved bicycle helmet in the Dictionary to the Road Rules 2008, an approved
    bicycle helmet is a protective helmet for bicycle riders of a type that:
    (i) complies with Australian/New Zealand Standard AS/NZS 2063:2008 Bicycle helmets; or
    in the case of helmets manufactured in Australia, complies with the version of AS/NZS 2063 that was in force at the time of manufacture or any later version; or
    in the case of helmets imported into Australia, complies with the version of AS/NZS 2063 that was in force at
    the time of importation or any later version; and
    has an identifying mark certifying compliance with an above standard.

    For the purposes of the definition of an approved motor bike helmet in the Dictionary to the Road Rules 2008, an approved motor bike helmet is a protective helmet for motor bike riders of a type that:
    (i) complies with Australian/New Zealand Standard AS/NZS 1698:2006 Protective helmets for vehicle users, as
    amended by Amendment No. 1 of 28 September 2007 and Amendment No. 2 of 27 May 2009; or
    in the case of helmets manufactured in Australia, complies with the version of AS/NZS 1698 or Australian Standard AS 1698-1988 Protective helmets for vehicle users that was in force at the time of manufacture or any later version; or
    in the case of helmets imported into Australia, complies with the version of AS/NZS 1698 or Australian Standard AS 1698-1988 Protective helmets for vehicle users that was in force at the time of importation or any later
    version; and
    has an identifying mark certifying compliance with an above standard.
    Compliance marking for helmets manufactured after 31 March 2011
    For the purposes of the definitions of an approved bicycle helmet or approved motor bike helmet approved in the Road Rules 2008, a bicycle or motor bike helmet manufactured after 31 March 2011 must have an identifying mark from a body
    accredited or approved by the Joint Accreditation System of Australia and New Zealand certifying compliance with an above standard.

    1. Your memory is incorrect or you read the wrong document. Have a look at Figure 1 in the standard. The bit that says “no limit”

  9. It doesn’t mean that we can’t use cameras – it only means we can’t mount them on our helmets. There are still the options of mounting them on the back of your wrist, or on your chest (clipped/slipped into a breast pocket) or attached to handlebars or windscreen.

    I would however be interested to know if the defence team showed the magistrates photos of police helmets with cameras and bluetooth devices attached externally.

  10. Calls are monitored and recorded, our rides should be able to be monitored the same way for our protection, because cagers most of the time when it is their fault lawyer up and make it the motor bikers fault and those devices prove otherwise.

    1. As as far as mounting other places, it does not give the same view and can change the entire “view” of what the rider saw.

  11. Maybe we should mount them on the handlebars with an extension so it sits right in front of our faces, much in the same way people mount GPS’ and mobile phones in front of their faces in cars.

  12. I wonder what the story will be with ECE R22-05 approved helmets. Will Australian courts decide what does or does not meet international standards?
    What about helmets that are approved by both standards?

  13. What a joke and what a waste of tax payers money.
    The police and the judge involved should be ashamed!
    Perhaps a more media publicity is needed to see common sense prevail.

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