Saturday, July 22, 2017

Waiting Game

 
Trephina Gorge, nr Alice Springs, Central Australia
(photo credit: Richard Abbott)

Last Monday seems months ago!

Adelaide, wet, cold, windy, off I headed to the Magistrates Court.

In defence of my unhelmeted cycling behaviour, I raised section 41BD (1)(a) of the Therapeutic Goods Act interspersed with the relevant table and columns from Therapeutic Goods (Excluded Goods) Order No.1 of 2011. I also mentioned bicycle helmet law was a law of oppression and privilege, and that there were very few middle-aged to elderly women like me on the roads anymore, cycling purely for transit purposes, and that Australia was the poorer for it.

And the result ...

... judgment has been reserved for two months so that the magistrate can read the entire 300 page Therapeutic Goods Act in addition to the material I raised.

Whatever the eventual outcome I feel quite uplifted because essentially I was heard, and am to be considered most carefully.

And now after a quick detour to the Outback, dry, cold, starry, I am heading home with my daughter's car and my beloved ... funtimes

Sunday, July 16, 2017

Australia: Land of helmet laws & fossil fuels

Berlin not Adelaide
I am in Adelaide
Typing, printing, downloading, printing

 ... not cycling.

Another bicycle helmet trial tomorrow.

Will the Therapeutic Goods Act save me this time?
Or serve me up 'conviction no.5'?

... not cycling

Will keep you posted.

Friday, July 14, 2017

Helmet Exemption PLEEEEEEEZE

Photo credit: Nancy Steward, Next Bikes in Berlin

Dear Melinda,

I would like an exemption from wearing a bicycle helmet and here are the reasons why:

The provisions of regulation 256 state that:

(1) The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction.

I believe that the Therapeutic Goods Act 1989 supports my case for an exemption in that a bicycle helmet can be classified as a medical device meaning I need to provide informed consent or informed refusal before I adopt such a device or not.

The Therapeutic Goods Act 1989 is Federal legislation and therefore has jurisdiction over all state laws.

Inter alia section 41 BD (1) (a) ofthe Therapeutic Goods Act 1989 provides that:

(1) A medical device is:
(a) any instrument, apparatus, appliance, material or other article (whether used alone or in combination, and including the software necessary for its proper application) intended, by the person under whose name it is or is to be supplied, to be used for human beings for the purpose of one or more of the following;
(iii) investigation, replacement or modification of the anatomy or of a physiological process;

A bicycle helmet is an ‘apparatus’ that is used by ‘human beings’ for the purpose of ‘modification of the anatomy’ ostensibly to provide protection on Australian roads.

However section 41 BD (3) of the Therapeutic Goods Act 1989 provides that:

3) The Secretary may, by order published in the Gazette or on the Department's website, declare that a particular instrument, apparatus, appliance, material or other article, or that a particular class of instruments, apparatus, appliances, materials or other articles, are not, for the purposes of this Act, medical devices.

… though interestingly it is noted under sub-section (3) of the Therapeutic Goods Act 1989 that: A declaration under this section does not stop articles from being therapeutic goods.

Notwithstanding the note, the Therapeutic Goods (Excluded Goods) Order No.1 of 2011 specifically excludes non-sterile protective or safety apparel or equipment used in the home or for occupational or recreational use from regulation by the Therapeutic Goods Act 1989.

It would appear that bicycle helmets could be captured by this exclusion but only contingent with the dictated circumstances set out in Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

I do not use a bicycle helmet in the home or for occupational use or recreational use because I do not use a bicycle in the home or for occupational use or recreational use. I only use a bicycle for transit purposes. ‘Non-sterile protective or safety apparel or equipment’ for this type of behaviour is not prescribed in the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Prima facie a bicycle helmet in my circumstances is a medical device and not an excluded good, and therefore requires my informed consent or informed refusal with regard to whether I wear one or not.

Therefore the reason that you will accept that I should be granted an exemption to wearing a bicycle helmet is because section 41 BD (1)(a)(iii) of the Therapeutic Goods Act 1989 defines a bicycle helmet as a medical device, and also because of the way I use a bicycle cannot exclude a bicycle helmet from regulation by the Therapeutic Goods Act 1989 under the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Using a bicycle for transit allows a bicycle helmet to come under the provisions of the Therapeutic Goods Act 1989 and therefore can be defined as a medical device.

To conclude whilst regulation 256 of the NSW Road Rules 2014 provides that the rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction, in my interpretation of the law the Therapeutic Goods Act 1989 provides me with reasons for exemption from wearing a bicycle helmet.

Melinda, I have to say this is all so daft - I have a trial in Adelaide next Monday 17 July for bicycle helmet crime followed by two further bicycle helmet crime matters rolled into one in the Scone Local Court. I could end up with three more criminal convictions which will make a total of seven criminal convictions for the Australian crime of riding a bicycle without a helmet.

We are outliers in the world on this issue, and rapidly becoming outliers on many other issues too. The world is not impressed with us what with air pollution that breaches World Health Organisation standards, the prospect of Adani coal mine going ahead, the death of the Great Barrier Reef , motor vehicle traffic toll, obesity, inactivity. Yet for all this I am the one who is consistently punished for my very innocuous transport habits.

This particular request is about an exemption for me and I need an answer to that query.

When I wrote to you earlier this year asking for this, I received a very obtuse reply from your department stating and quoting the usual guff provided by the usual guff-producing academics that Australia so loves to engage with ... but nothing pertaining to the actual issue in hand which was 'can I have an exemption please?'

I rang your department and raised this issue with them, and was informed that the inference would have been that I did not get one. Notwithstanding I pointed out to your staff that there was nowhere in the letter that actually spelt that premise out. Once again I was informed by your staff that the presumption was I did not get one but yet again I pointed out there was no one part of the letter where either of us could see where the presumption might be at play and given that the bicycle helmet punitive system is so precise I actually do want it spelt out. The conversation finished with your staff member saying that they would hopefully get back to me the next day (I so wanted to say 'hopefully doth butter no parsnips' in true Joe Lycett style but resisted the temptation).

Anyway that is several months ago now and in the meantime I have been cycling around the world sans helmet: London, Dublin, Paris, Torbole, Arco, Rive Del Garda, Berlin, and I might add Scone as well since I got home - the world has been mine and any available bicycle's oyster.

Please, Melinda, grant me an exemption so that I can tell Australian courts starting from next Monday what they would really like to hear.

Kind regards,
Sue Abbott (Scone)

Wednesday, April 26, 2017

My issue is their denial of evidence

The Mall (helmet-free if you want)
Photo credit: Georgie Abbott

Whilst she gets her shit together in order to change (?) bicycle helmet law, I have written to our newly annointed Roads, Maritime and Freight minister requesting an exemption from wearing a bicycle helmet when riding a bicycle!

And because I wrote a letter I had to get a reply and boy was it a doozy ... an utterly obtuse response from staffers.

In their usual binary way they quote stats to me which when reversed make out cycling with a helmet to be getting more and more dangerous by the day ... oop la!
They say:
- 24% cycling fatalities NOT wearing helmets
- 19% cycling injuries NOT wearing helmets
- 15% all cycling casualties NOT wearing helmet


So I say back to them:
- 76% cycling fatalities WEARING helmets
- 81% cycling injuries WEARING helmets
- 85% all cycling casualties WEARING helmets

Hmmm which appears more dangerous?

Methinks their framework doth make them look oh so silly

And continuing with Matters Bicycle-And-A-Waste-Of-Time I have received a Court Attendance Notice (CAN) requesting (actually ordering) me to turn up to the Local Court in Scone.

This occasion will be a 'mention' where I literally get to mention my matter and request another date for a 'defended hearing.' However as per normal I have to bear in mind that the magistrate may not grant me another date and may insist on hearing my submissions right there and then ...

So ...

I am ready, and the crux of my argument is essentially the following argument:

The provisions of regulation 256 state that:

(1) The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction.

I believe that the Therapeutic Goods Act 1989 supports my case for an exemption in that a bicycle helmet can be classified as a medical device meaning I need to provide informed consent or informed refusal before I adopt such a device or not.

The Therapeutic Goods Act 1989 is Federal legislation and therefore has jurisdiction over all state laws.

Inter alia section 41 BD (1) (a) ofthe Therapeutic Goods Act 1989 provides that:

(1) A medical device is:
(a) any instrument, apparatus, appliance, material or other article (whether used alone or in combination, and including the software necessary for its proper application) intended, by the person under whose name it is or is to be supplied, to be used for human beings for the purpose of one or more of the following;
(iii) investigation, replacement or modification of the anatomy or of a physiological process;

A bicycle helmet is an ‘apparatus’ that is used by ‘human beings’ for the purpose of ‘modification of the anatomy’ ostensibly to provide protection on Australian roads.

However section 41 BD (3) of the Therapeutic Goods Act 1989 provides that:

3) The Secretary may, by order published in the Gazette or on the Department's website, declare that a particular instrument, apparatus, appliance, material or other article, or that a particular class of instruments, apparatus, appliances, materials or other articles, are not, for the purposes of this Act, medical devices.

… though interestingly it is noted under sub-section (3) of the Therapeutic Goods Act 1989 that: A declaration under this section does not stop articles from being therapeutic goods.

Notwithstanding the note, the Therapeutic Goods (Excluded Goods) Order No.1 of 2011 specifically excludes non-sterile protective or safety apparel or equipment used in the home or for occupational or recreational use from regulation by the Therapeutic Goods Act 1989.

It would appear that bicycle helmets could be captured by this exclusion but only contingent with the dictated circumstances set out in Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

I do not use a bicycle helmet in the home or for occupational use or recreational use because I do not use a bicycle in the home or for occupational use or recreational use. I only use a bicycle for transit purposes. ‘Non-sterile protective or safety apparel or equipment’ for this type of behaviour is not prescribed in the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Prima facie a bicycle helmet in my circumstances is a medical device and not an excluded good, and therefore requires my informed consent or informed refusal with regard to whether I wear one or not.

Therefore the reason that you will accept that I should be granted an exemption to wearing a bicycle helmet is because section 41 BD (1)(a)(iii) of the Therapeutic Goods Act 1989 defines a bicycle helmet as a medical device, and also because of the way I use a bicycle cannot exclude a bicycle helmet from regulation by the Therapeutic Goods Act 1989 under the Therapeutic Goods (Excluded Goods) Order No.1 of 2011.

Using a bicycle for transit allows a bicycle helmet to come under the provisions of the Therapeutic Goods Act 1989 and therefore can be defined as a medical device.

To conclude whilst regulation 256 of the NSW Road Rules 2014 provides that the rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction, in my interpretation of the law the Therapeutic Goods Act 1989 provides me with reasons for exemption from wearing a bicycle helmet.

So here's hoping I have a little more luck in court this time ... and as per usual I shall keep you posted!

Oh this is all so daft - air pollution that breaches World Health Organisation standards, prospect of Adani coal mine going ahead and destroying the Great Barrier Reef completely, motor vehicle traffic toll, obesity, inactivity, and I'm the one punished ... 

... dumb dumb dumb australian australian australian 

Sigh

Tuesday, April 25, 2017

Ever Ready For War

My father's wing
 I carry this wing with me wherever I go; whether it's to defend myself in court, or to put forward motions in council chambers, or to protest in marches against coal and coal seam gas, or to marvel at the beauty of mountains and deserts or to weep whilst gazing upon Rayner Hoff's 'Sacrifice' in the Anzac Memorial in Hyde Park.

I carry it everywhere.

It was my father's wing and he wore it on his uniform as a navigator in the Royal Air Force.

Today I remember him even though he wasn't an Anzac.

Actually I remember him every day.

Not a day has passed since he was killed after a birdstrike event in his RAF Jaguar (he ejected but got caught up in an incorrectly packed parachute and so drowned in the Atlantic Ocean), not a day has passed that I have not thought of him ... not a day.
Flt Lt Sean Sparks (my father) Limassol, Cyprus
Most of this post I wrote last year in the midst of my sorrow for the woodchipped trees and animals on Anzac Parade and Alison Road.

Mike Baird was a NSW premier then waiting in the wings for a Big Corpa gig which he got so now we've got Gladys as political head-puppet ... but nothing has changed, only the suit.

We're still getting dodgy light rail, dodgy WestCONnex and dodgy metro trains ... trees and animals continue to be woodchipped, and now we are even having to take to the streets in defence of science.

The world is mad, and no doubt it'll only be a matter of hours before I get the usual hate-mail from US marines ... c'est la blooming vie I suppose ... sigh

People who read my blogs will know that I am no fan of either Anzac Day or Remembrance Day. I hate the jingoism, the constant call to arms, the constant grooming of our young. 

As a child of military generations, I am not held hostage to the 'glory-of-war' mantra, too often trotted out for a political purpose.

Looking at the direct female line in my family I cannot help but note that I am the first woman in four generations whose children reached their 20s with their father in their lives. My great-grandmother, my grandmother, my mother were not so lucky - the military and politicians saw to that. I grew up amongst fatherless grandmothers, fatherless mothers, fatherless aunties and uncles, fatherless cousins, fatherless siblings. 

I grew up in a family on the other side of the world, and in my home and in all my relations' homes there were pictures of dead uniformed loved ones always in pride of place. And when I arrived in Australia back in the 80s as a brand new bride married to a civilian (a fact which caused the widows in my family much relief) the family I married into contained the same revered photo of a lost uniformed loved one, similarly in pride of place. His death broke his mother's heart; I know this because the women in this new family of mine told me then, and have continued to do so over the past 30 years. 

This young man, the son of my husband's grandmother, was 21 years old and he died in France on the 9th November 1918 from bronchitis and pneumonia. In his soft gentle picture I see my husband and my children and I weep for him and his heartbroken mother. 

And I know that this story plays out in millions of Australian households, all equally touched and scarred by the emotional war-wounds of losing loved ones, emotional war-wounds that fester over generations. Contrary to the 'freedom-and-this-way-of-life' spin, it turns out they all died for #BigCorpa, lobby groups and politicians. 

Shame on all politicians who glorify war and bow down to the commercial whims of market players who ruthlessly make a buck or a billion out of the misery of others ... shame on them all.

And back to the subject of Anzac Parade, our once beautiful living memorial to those Anzacs who marched down Randwick Road, before it was renamed in their honour after Gallipoli, those Anzacs who marched from Victoria Barracks to Circular Quay, those Anzacs we shipped off to death and destruction, those very same Anzacs whom we purport to commemorate today, how could our politicians have so wilfully desecrated such an important site of mourning and remembrance, how could they have desecrated one of the world's most beautiful war memorials and then still turn up to Anzac Day commemorations? 

I will never forgive them.

'Lest We Forget' those past ... present ... and those to come ... 




... weep.

Sunday, April 9, 2017

My Shire Notes: Things That Keep Me Awake At Night (Director's Cut)

Bayswater Power Station, Upper Hunter, New South Wales)

Every week in our local (and slowly dying) paper an Upper Hunter Shire councillor writes a column entitled 'Shire Notes.' Given that there are nine councillors, I get (yes I was elected last September 2016) a turn every 9 weeks. Here are my latest ones.

-------------------------------------- 

Last week (Wednesday 29th March 2017) I attended the ‘Power Stations and Our Health Community Workshop’ held at the Upper Hunter Conservatorium of Music in Muswellbrook. 

It was chilling. 

According to Dr Ben Ewald from Doctors of the Environment the Upper Hunter community pays a high cost for the polluted air billowing out from our coal-fired power stations. We pay through heart disease, lung disease and asthma. There are no safe levels of pollution and both Bayswater and Liddell are health hazards to our community.

Despite the Australian government allowing coal-fired power stations to belch out a much higher level of polluting emissions than the World Health Organisation advises, Muswellbrook’s air quality shows air pollution levels beyond even our own paltry standard. 

There are five monitoring sites in the Upper Hunter, and the data collected tells us we have a problem.

The main pollutants from Bayswater and Liddell are sulphur dioxide, nitrogen oxides and small invisible particulate matter referred to as PM2.5 (product of combustibles), and they are absorbed through our lungs into our bloodstream where they can cause angina, heart attacks and strokes. Unsurprisingly, children are at an extreme risk from this toxic mix of air pollution.

Two AGL representatives at the workshop noted that Liddell is due for retirement in 2022 and Bayswater in 2035. But what concerns Doctors for the Environment is that closure schedules all too often pit commercial interests against health damage, and consequently power stations are retired first on economic grounds rather than health.

Bearing in mind that our power stations could actually close earlier than forecast, Doctors for the Environment raised the spectre that Australian governments are ill-prepared in creating new jobs and new industries for the inevitable transition away from coal-fired power stations. It is all a great worry.

The proposed Scone Bypass is also causing me concern.

The loss of part of the Bill Rose Sporting Complex, the impact on the Golf Club and White Park, the unsightliness of a significantly raised road through the floodplain area of Parson’s Gully and Kingdon Ponds … how is any of this going to improve our town?

The apparent minimal community discussion RMS have had (or not had) on the environmental and social impacts of the bypass alarm me. Whilst the removal of trucks from our high street has been flagged as a significant driver for the bypass, will we not also be removing essential traffic required for business along Kelly Street?

Yes Council is working hard with local stakeholders to have our town ready when the bypass is complete but this project is essentially about motorway building and the moving of freight on a national integrated system of super roads.

Today’s roads have morphed into mobile warehouses, and Scone bypass will be an imposed environmental grievance with lasting impacts on our town.

-------------------------------------- 

Wednesday, April 5, 2017

She's on the road again - oh no

Freedom fun on a bicycle
Booked again!

But this time right near my home, I mean right near my driveway which is pretty weird as I live almost 9kms out of town, and the last two are dirt and down a dead end.

Well to recount the saga, I had heard a car behind me on the very last hairpin bend before my house, and like all vehicles on my road it had been going very slowly and very carefully, so I started my customary wave as the car was passing (because I know everybody on this patch of the road and so wave to all) and then I saw it was the police, so then I was thinking "Oh dear I wonder what's happened down the road" and then they pulled over in front of me and said "Oh Sue ..."

I was amazed, and thought maybe they were hand delivering the last penalty notice but after a quick chat I remembered I had received it and had already applied for a court date (so many to keep up with!). And then they said to me that I might have my supporters in town but I also had my detractors and they'd received a call from someone who had said to them "she's on the road again ... without a helmet!"

Crime reported and here they were keeping the streets of Scone and environs safe and sound - astonishing.

No kidding, I am flabberghasted - I am clearly pissing someone off who is clearly none to impressed with me being a local councillor and a law breaker.

How incredibly exhausting!

What a funny country I live in ... and how extremely quiet my little country village is too - just shows you that nothing's happening of any note that requires some  serious policing ... sigh

... anyhoo tomorrow I post my application to the Roads Minister for a helmet exemption under the provisions of the Therapeutic Goods Act ... and I shall definitely keep you posted.

"Once more unto the breach, dear friends, once more ...."

Sigh