By Alex Maschmedt & Rebecca Searle King & Wood Mallesons’ Melbourne office.
As driverless vehicles become more sophisticated and their economic and societal benefits become more widely accepted, competition is heating up between Australia’s State Governments (which are responsible for setting road rules and managing road infrastructure) to attract trials of driverless vehicles on their roads.
If you are developing Autonomous Vehicle technology or infrastructure, or looking to apply it in your business, the success of implementation will rest heavily on your (and your supplier’s) ability to test this piece of innovation. Understanding the legislative regimes that apply to testing in Australia will help you to make sure your tests are compliant and you can maximise the benefits of that testing.
In light of Victoria passing legislation to enable driverless car trials on Tuesday 20 February, this article looks at the legislation to permit trials of driverless vehicles passed in Australia to date.
Trials of driverless car technology have been ongoing in Australia for some time now, with the first on-road trial of a highly automated driverless car occurring in South Australia in 2015. In 2016 South Australia also was the first State to set up a legislative scheme for authorising trials of highly automated vehicles on its roads.
Despite these developments, and trials proceeding in a number of states on an ad-hoc basis, a national best practice approach to driverless car trials was not set out until the National Transport Commission published the Guidelines for Trials of Automated Vehicles in Australia (NTC Guidelines), in May 2017 (see KWM’s update on the NTC Guidelines here).
Since the NTC Guidelines were published, NSW and most recently Victoria have followed South Australia in passing legislation to allow road authorities to issue permits for trials of driverless vehicles on public roads
Each piece of driverless vehicle trial legislation passed so far adopts a similar general approach, allowing the relevant Minister or statutory authority to issue individual trial permits that exempt trialling organisations from road rules and other laws that would otherwise prohibit operation of highly automated vehicles, subject to a number of conditions.
Each piece of legislation generally touches on the key elements of the NTC Guidelines ie:
- Trial management
- Insurance coverage
- Safety management plans
- Collection of trial data
It is notable that only Victoria mandates a safety management plan as part of an application for a trial permit.
Each piece of legislation also gives the Minister or relevant authority the ability to set out guidelines, statutory rules or regulations providing more details on the requirements for trials – so far there have not been any such regulations.
In other areas, each jurisdiction diverges somewhat in its approach. For example:
The South Australian legislation deals comprehensively with the interaction between the new laws and existing road rules, as well as the publicising of the trial regime. The legislation gives the Minister broad powers to exempt people from the operation of any law for the purpose of an authorised trial. The legislation also requires the Minister to publish details of an authorised trial online at least one month before the trial commences, and to report on trials to the South Australian Parliament. No such requirement exists in New South Wales or Victoria.
All three jurisdictions provide that approval for a trial can be limited by time and area, but Victoria also places a statutory maximum time limit on a permit of three years (with the possibility of renewal after expiry).
South Australia and NSW create an offence of hindering a trial, but Victorian legislation lacks a parallel protection for trials. New Victorian legislation is also the only jurisdiction to not include specific requirements relating to insurance coverage for trials, leaving such matters for regulations (that are yet to be made). NSW and South Australia both require public liability insurance (and in the case of NSW third party insurance as well).
NSW legislation takes a more stringent approach to in-vehicle supervision of trials, and mandates that a vehicle supervisor must be in the relevant vehicle at all times the vehicle is in use, and must consistently be in a position to take control of the vehicle (unless the trial approval states otherwise). SA and Victoria do not set out such a requirement, leaving the determination up to each individual trial approval.
Victoria is the only jurisdiction that imposes a positive duty on people operating an automated driving system to hold a permit for that operation – other legislation does not spell this out, though it is implied that any driving where a human being is not in control of a vehicle will be a violation of road rules and other laws, absent a permit exempting the vehicle owner from those laws.
It is clear from the above that Australia does not have a uniform legislative approach to driverless car trials. Indeed, the example of WA, which is proceeding with a number of driverless car trials without any specific legislative regime in place, shows that such a uniform approach may not be necessary.
However, the NTC Guidelines, and the passing of trial legislation in three states (with other states potentially to follow) shows that driverless car trials are likely to ramp up in Australia, as the technology moves towards maturity and towards commercial deployments in the next decade.
The tables below sets out in a bit more detail the requirements of the trial laws in NSW, SA and Victoria mapped against the requirements of the NTC Guidelines.
Comparison of driverless car trial legislation across jurisdictions
 Motor Vehicles (Trials of Automotive Technologies) Amendment Act 2016 (SA).
 National Transport Commission Guidelines for Trials of Automated Vehicles in Australia (May 2017).
 Transport Legislation Amendment (Automated Vehicle Trials and Innovation) Act 2017 (NSW).
 Road Safety Amendment (Automated Vehicles) Bill 2017 (Vic).