For Max Lichtenbaum, having cameras attached to his motorcycle helmet made him feel safer on the road. It was also a way for him to capture some of the beautiful sights he saw on recreational rides, and the camera footage certainly came in handy, when following an incident he had with another motorist, he could prove that the car had not sustained anywhere near as much damage as the driver was falsely claiming.
Lichtenbaum is also far from being alone in his belief that driver behaviour improves markedly when motorists realise they’re being filmed. He claims there is a lot less SMIDSY (Sorry Mate I Didn’t See You), and a lot more awareness and respect for him as a motorcyclist and fellow road-user.
So imagine his surprise when he was fined $289 and lost three demerit points in early 2014 for not wearing an approved motorcycle helmet because it had cameras affixed. He was volunteering at an ironman on the day, and was tasked with transporting officials around the course on the back of his motorbike.
Standing beside him as the infringement notice was being issued was Peter Baulch, vice president of the Victorian Motorcycle Council. Baulch said: ‘Max, you’ve got to defend this and I think we can get your represented. We have a really good association with Maurice Blackburn, and I know this is an area they don’t normally operate in, but we’ll see what we can do to get them to help’.
Maurice Blackburn decided to take on the case. And following a hearing in the Frankston Magistrates Court, Lichtenbaum’s fine was reduced to $150. But the charge was upheld, and the firm was still not happy with the outcome. We opted to appeal the decision in Victoria’s County Court.
County Court appeal hearing
The appeal before Judge John Jordan lasted one-and-a-half days and was essentially a re-hearing of the case that went before the magistrate. Maurice Blackburn argued that VicRoads had failed to meet its legal obligation to provide the Victorian public with access to the Australian Standard in relation to motorcycle helmets, therefore, a rider could not be found guilty of breaching the standard. The standard needed to be not just theoretically, but practically and actually available and accessible to the public, and a hard copy in a fifth-floor legal library with no practical public access did not, we argued, meet this requirement.
We also argued that motorcycle helmets in Victoria needed to meet the relevant standard at the date of manufacture and supply, and could not be considered non-compliant at a later date, such as if a camera was attached. In other words, once the helmet has been approved, it cannot be unapproved. We firmly believe that manufacturing standards were never intended to and do not provide an ongoing system of regulation, so the date of compliance with the standards should be the date of manufacture, as is clearly and explicitly the case in several other states.
The judge ruled that the charge could not be sustained because the law being relied upon was not publicly available. He dismissed the charge. But that meant he did not need to rule on the second argument, hence confusion around the interpretation of the standard in Victoria regarding when a motorcycle helmet must comply with this standard, remains.
Inconsistencies in regulation and interpretation in different states
The rules and regulations around helmet cameras are inconsistent and unclear across Australia. A motorcyclist can be wearing a legal helmet camera in South Australia, for instance, then cross the border into Victoria and find themselves slapped with an infringement notice and fine. In Queensland, South Australia and the ACT, on the other hand, the use of helmet cameras is allowed, which leads to varying interpretations of the relevant laws and regulations. Riders from other states need the same clarity and confirmation that the relevant standard applies at the date of manufacture and supply, and not beyond.
Maurice Blackburn is determined to continue lobbying for legislative change in relation to this aspect of the case, so that riders across the country know that the same law applies, regardless of which state or territory they are riding in.
Malcolm Cumming is a Principal in Maurice Blackburn's Ringwood office.