Driverless vehicle trial legislation – state-by-state

This article was written by Alex Maschmedt and Rebecca Searle.

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.

Summary

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.[1]

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),[2] in May 2017 (see KWM's update on the NTC Guidelines here).

Since the NTC Guidelines were published, NSW[3] and most recently Victoria[4] 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.[5]

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

Management criteria Key requirements setting out how the trialling organisation intends to conduct the relevant trial
An application for a trial permit must be made to VicRoads and include details of the applicant, the vehicle(s), any vehicle supervisor and the nature of the trial. A vehicle supervisor (if any), which is a physical person inside a vehicle during a trial, is taken to be in charge of the vehicle for the purposes of laws applying to people in charge of vehicles (eg drink and drug driving laws). A permit holder is taken to be driving the vehicle any time it is operating in automated mode. A vehicle supervisor or other person taking control of the vehicle is taken to be driving the vehicle when the vehicle is operating other than in automated mode. VicRoads may specify conditions on a permit, including: Specific trial roads and time periods (days and times) Required tests and training before operating under a permit Whether a human driver is required to take control of a vehicle at specified times A trial permit remains in force for a maximum of three years. VicRoads can, at its discretion, suspend, cancel or vary a permit, including where VicRoads is advised to do so by a law enforcement authority. It is an offence to operate an automated vehicle on a highway without an automatic driving system (ADS) permit.	The responsible Minister may permit a trial by an approved person of a specific vehicle or class of vehicles in a certain manner and in certain circumstances. The responsible Minister must set conditions on the permit, including: The specific roads where the trial will take place (this may be all roads in the NSW) A trial period Whether the trial vehicle must be registered Any other conditions on the trial The organisation conducting the trial must ensure that the trial vehicle is only used in accordance with the trial approval. A vehicle supervisor (holding an Australian driver licence and who is approved by the Minister) must be in the trial vehicle at all times the vehicle is in use. The vehicle supervisor must be able to take control of or stop the trial vehicle in an emergency or if required to do so. The responsible Minister can revoke or suspend an approval at any time. The vehicle supervisor is considered the person in charge of a vehicle for the purposes of offences relating to persons in charge of vehicles, but the responsible Minister may specify a different interpretation. The responsible Minister may make further statutory rules to provide for such matters as the identification of trial vehicles, notification to the public of approved trials, qualifications required of a vehicle supervisor, identification requirements for vehicle supervisors, relevant records to be kept, confidentiality of information, privacy of personal information collected and waiver of fines and demerit points. It is an offence to hinder or obstruct the movement of a trial vehicle, including via electronic signal.	A trial permit application must be made to the responsible Minister. A trial permit must set out the: Area or areas of the State where the trial will take place The period of the trial The scope and nature of trial Such other information required by the Minister The responsible Minister must publish details of an approved trial online at least 1 month before commencement of the trial. The responsible Minister can vary or revoke an authorisation at any time. The responsible Minister can exempt a person or class of people from any laws or statutory provisions in order to enable that person to conduct an authorised trial. In online guidance, South Australia's Department of Planning, Transport and Infrastructure (DPTI) recommends all aspects of the NTC Guidelines be addressed in a trial permit application. It is an offence to hinder an authorised trial or interfere with equipment or devices, including interfering via electronic signals.

Management criteria

Key requirements setting out how the trialling organisation intends to conduct the relevant trial

Victoria

New South Wales

South Australia

An application for a trial permit must be made to VicRoads and include details of the applicant, the vehicle(s), any vehicle supervisor and the nature of the trial.

A vehicle supervisor (if any), which is a physical person inside a vehicle during a trial, is taken to be in charge of the vehicle for the purposes of laws applying to people in charge of vehicles (eg drink and drug driving laws).

A permit holder is taken to be driving the vehicle any time it is operating in automated mode. A vehicle supervisor or other person taking control of the vehicle is taken to be driving the vehicle when the vehicle is operating other than in automated mode.

VicRoads may specify conditions on a permit, including:

Specific trial roads and time periods (days and times)
Required tests and training before operating under a permit
Whether a human driver is required to take control of a vehicle at specified times

A trial permit remains in force for a maximum of three years.

VicRoads can, at its discretion, suspend, cancel or vary a permit, including where VicRoads is advised to do so by a law enforcement authority.

It is an offence to operate an automated vehicle on a highway without an automatic driving system (ADS) permit.

The responsible Minister may permit a trial by an approved person of a specific vehicle or class of vehicles in a certain manner and in certain circumstances.

The responsible Minister must set conditions on the permit, including:

The specific roads where the trial will take place (this may be all roads in the NSW)
A trial period
Whether the trial vehicle must be registered
Any other conditions on the trial

The organisation conducting the trial must ensure that the trial vehicle is only used in accordance with the trial approval.

A vehicle supervisor (holding an Australian driver licence and who is approved by the Minister) must be in the trial vehicle at all times the vehicle is in use. The vehicle supervisor must be able to take control of or stop the trial vehicle in an emergency or if required to do so.

The responsible Minister can revoke or suspend an approval at any time.

The vehicle supervisor is considered the person in charge of a vehicle for the purposes of offences relating to persons in charge of vehicles, but the responsible Minister may specify a different interpretation. The responsible Minister may make further statutory rules to provide for such matters as the identification of trial vehicles, notification to the public of approved trials, qualifications required of a vehicle supervisor, identification requirements for vehicle supervisors, relevant records to be kept, confidentiality of information, privacy of personal information collected and waiver of fines and demerit points.

It is an offence to hinder or obstruct the movement of a trial vehicle, including via electronic signal.

A trial permit application must be made to the responsible Minister.

A trial permit must set out the:

Area or areas of the State where the trial will take place
The period of the trial
The scope and nature of trial
Such other information required by the Minister

The responsible Minister must publish details of an approved trial online at least 1 month before commencement of the trial.

The responsible Minister can vary or revoke an authorisation at any time.

The responsible Minister can exempt a person or class of people from any laws or statutory provisions in order to enable that person to conduct an authorised trial.

In online guidance, South Australia's Department of Planning, Transport and Infrastructure (DPTI) recommends all aspects of the NTC Guidelines be addressed in a trial permit application.

It is an offence to hinder an authorised trial or interfere with equipment or devices, including interfering via electronic signals.

Insurance Insurance for a trial should ensure an injured party is "no worse off" than if the car had a human driver
The legislation does not mandate any insurance requirements for trialling organisations – instead the responsible Minister has the power to publish specific requirements for insurance of trials in binding guidelines.	One of the objects of the legislation is to ensure adequate insurance is in place to cover any personal injury or property damage arising during a trial. A trialling organisation must have: A third-party policy in place for the trial vehicle for the duration of the trial, or make other arrangements for the indemnification of a nominal defendant for any claims arising as a result of the trial vehicle not being insured as a motor vehicle Public liability insurance (of at least $20 million or a larger amount specified by the Minster) covering damage arising out of the use of the trial vehicle The responsible Minister may make further rules requiring other insurance policies.	A trialling organisation must hold public liability insurance indemnifying the owner and any authorised driver of the automated vehicle for an amount not less than the amount specified by the responsible Minister in relation to the trial, in relation to death or bodily injury cause by or arising out of the use of the vehicle.

Insurance

Insurance for a trial should ensure an injured party is "no worse off" than if the car had a human driver

Victoria

New South Wales

South Australia

The legislation does not mandate any insurance requirements for trialling organisations – instead the responsible Minister has the power to publish specific requirements for insurance of trials in binding guidelines.

One of the objects of the legislation is to ensure adequate insurance is in place to cover any personal injury or property damage arising during a trial.

A trialling organisation must have:

A third-party policy in place for the trial vehicle for the duration of the trial, or make other arrangements for the indemnification of a nominal defendant for any claims arising as a result of the trial vehicle not being insured as a motor vehicle
Public liability insurance (of at least $20 million or a larger amount specified by the Minster) covering damage arising out of the use of the trial vehicle

The responsible Minister may make further rules requiring other insurance policies.

A trialling organisation must hold public liability insurance indemnifying the owner and any authorised driver of the automated vehicle for an amount not less than the amount specified by the responsible Minister in relation to the trial, in relation to death or bodily injury cause by or arising out of the use of the vehicle.

Safety management plans A trialling organisation should have a safety management plan to outline and mitigate or eliminate all known safety risks of the trial
An applicant for a trial permit must prepare a safety management plan that complies with the NTC Guidelines to accompany any application for a trial permit. The responsible Minister can issue further binding guidelines setting out the content required to be in a safety management plan.	The legislation does not set out any requirement for a trialling organisation to prepare or maintain a safety management plan for a driverless vehicle trial.	The legislation does not set out any requirement for a trialling organisation to prepare or maintain a safety management plan for a driverless vehicle trial. However, see DPTI guidance recommending that all trial applications meet the requirements of the NTC Guidelines.

Safety management plans

A trialling organisation should have a safety management plan to outline and mitigate or eliminate all known safety risks of the trial

Victoria

New South Wales

South Australia

An applicant for a trial permit must prepare a safety management plan that complies with the NTC Guidelines to accompany any application for a trial permit.

The responsible Minister can issue further binding guidelines setting out the content required to be in a safety management plan.

The legislation does not set out any requirement for a trialling organisation to prepare or maintain a safety management plan for a driverless vehicle trial.

However, see DPTI guidance recommending that all trial applications meet the requirements of the NTC Guidelines.

Trial data Trialling organisations should comply with all relevant crash reporting requirements, and report on incidents involving the automated driving system to authorities
A permit holder must keep records about drivers and persons in charge of vehicles. A permit holder must disclose to injured parties and police at the scene of an accident whether a vehicle was in automated mode if an accident occurs. VicRoads may require real-time monitoring of the vehicle's performance and location as a condition of a permit.	The permit holder must notify the responsible Minister of: A vehicle collision with a person, another vehicle or road infrastructure An accident / incident that has / could have caused significant property damage, serious injury or death An accident / incident prescribed by statutory rules A permit holder must provide the responsible Minister with information about the trial on request, and the responsible Minister can provide that information to others for law enforcement or road safety purposes.	The legislation does not impose specific reporting obligations on a trialling organisation. However, see DPTI guidance recommending that all trial applications meet the requirements of the NTC Guidelines. The responsible Minister must prepare a report to Parliament about each authorised trial within 6 months of the trial's completion.

Trial data

Trialling organisations should comply with all relevant crash reporting requirements, and report on incidents involving the automated driving system to authorities

Victoria

New South Wales

South Australia

A permit holder must keep records about drivers and persons in charge of vehicles.

A permit holder must disclose to injured parties and police at the scene of an accident whether a vehicle was in automated mode if an accident occurs.

VicRoads may require real-time monitoring of the vehicle's performance and location as a condition of a permit.

The permit holder must notify the responsible Minister of:

A vehicle collision with a person, another vehicle or road infrastructure
An accident / incident that has / could have caused significant property damage, serious injury or death
An accident / incident prescribed by statutory rules

A permit holder must provide the responsible Minister with information about the trial on request, and the responsible Minister can provide that information to others for law enforcement or road safety purposes.

The legislation does not impose specific reporting obligations on a trialling organisation. However, see DPTI guidance recommending that all trial applications meet the requirements of the NTC Guidelines.

The responsible Minister must prepare a report to Parliament about each authorised trial within 6 months of the trial's completion.

[1] Motor Vehicles (Trials of Automotive Technologies) Amendment Act 2016 (SA).

[2] National Transport Commission Guidelines for Trials of Automated Vehicles in Australia (May 2017).

[3] Transport Legislation Amendment (Automated Vehicle Trials and Innovation) Act 2017 (NSW).

[4] Road Safety Amendment (Automated Vehicles) Bill 2017 (Vic).

[5] https://thewest.com.au/news/transport/driverless-cars-on-perth-streets-revolutionary-navya-trial-announced-by-rac-and-state-government-ng-b88674787z; https://www.computerworld.com.au/article/626782/australia-first-driverless-bus-trial-turns-one/