Victoria has become the latest State to create a legislative regime relating to driverless vehicles, with the Victorian Government recently passing legislation amending the Road Safety Act 1986 (the Act) to allow for ‘automated driving systems’ – essentially, trials of technology capable of performing the ‘dynamic driving task of a motor vehicle’.
The Road Safety Amendment (Automated Vehicles) Act 2018 has introduced a new Part 3A to the Act, establishing a permit scheme for the trialling of automated vehicles on Victorian roads (Victorian Regime). While the testing of ‘driverless’ vehicles was previously permitted on certain roads in Victoria, authorisation to do so was granted on an ad-hoc basis.
The Victorian Regime came into effect on 27 February 2018, and clarifies the legal responsibility for such tests and also outlines the penalties that will apply for not complying with the requirements of the legislation. The process for applying for an ‘Automated Driving System permit’ (ADS permit) is analogous to the permit scheme for human learner drivers, and enables VicRoads to grant permits to individuals or organisations to run a trial of driverless car technology.
The Victorian legislation is the latest in a number of legislative regimes relating to driverless vehicles created around Australia over the last two years – namely in New South Wales and South Australia. This article sets out the details of Victoria’s new regime, and compares this approach to the other legislative frameworks already established in Australia.
HOW DOES THE VICTORIAN REGIME WORK?
Applying for an ASD permit
Under the new Victorian Regime, an organisation seeking to trial an automated vehicle (being a vehicle equipped with an automated driving system) must apply to VicRoads for an ADS permit for that vehicle. That is, the legislation imposes a positive duty on anyone seeking to operate an automated vehicle to apply for and hold an ASD permit.
Applications for ASD permits for must contain details of the applicant, the vehicle(s), any vehicle supervisor and the nature of the trial. The application must also contain a safety management plan.
VicRoads has the power to require applicants to pass certain appropriate tests or examinations. VicRoads also has broad powers to refuse to grant an ADS permit.
When granting an ADS permit, VicRoads can impose certain conditions, including:
- what days the automated vehicle can participate in trials;
- whether a human driver is required to take control of the vehicle at specified times;
- compliance with safety management plans;
- a 0% blood alcohol limit;
- the display of an ‘automated vehicle’ mark or symbol on the vehicle; and
- real time monitoring of the performance, location and compliance of the automated vehicle.
An ADS permit may remain in force for no more than three years.
Operating a vehicle with an ADS permit
The ADS permit scheme clarifies that the legal obligations applicable to a human driver also apply to an ADS permit holder or any vehicle supervisor specified in the permit. Importantly, the ADS permit holder will be taken to be driving the vehicle whenever the vehicle is operating in automated mode (even if the permit holder is not physically present in the vehicle at that moment).
When the vehicle is not operating in automated mode (for example, in between trial periods where the vehicle is operating in automated mode), the vehicle supervisor (being the person physically in the vehicle) is taken to be in charge of the vehicle.
This allows for the clear identification of "drivers" for the purposes of law enforcement and accident investigation.
Offences and penalties
Under the Victorian Regime, it is an offence to:
- cause another person to drive or be in charge of automated vehicles where an ADS permit is not in force for that vehicle; or
- drive in breach of any permit condition.
The legislation attaches a significant penalty – $79,285 for a Corporation or $15,857 for individuals – for offences under the Victorian Regime.
The Victorian Regime also states that the legal burden for any accidents – or complications with the trial – fall on the legal entity responsible for the trial.
Insurance and safety management plans
The legislation itself does not set out any particular requirements for insurance for ASD permit holders. However, the responsible Minister has the power to publish binding guidelines addressing specific requirements for insurance of trials – for example, the kinds of insurance required to be held in relation to risks associated with trials.
The responsible Minister can also publish binding guidelines setting out the content to be included in the safety management plans.
COMPARISON WITH OTHER AUSTRALIAN REGIMES
Thus far, the Australian states have taken their own approach to the regulation of driverless car trials. To address the disparate approaches to regulation, Australian transport ministers have agreed to a phased reform program, so that conditionally automated vehicles can operate safely and legally on our roads before 2020. The National Transport Commission (NTC) released Guidelines for trials of automated vehicles in Australia in May 2017, and recently released a Policy Paper in May 2018, aiming to support the safe commercial deployment and operation of automated vehicles at all levels of automation.
Victoria, along with New South Wales and South Australia, have now passed specific legislation to regulate driverless car trials. While there remain differences in the approach adopted by each state, there are some key themes followed by each legislature: the relevant Minister or statutory authority has the power to issue trial permits to applicants, with permit holders exempt from road rules and other laws that would otherwise prohibit trials of automated vehicles, subject to the conditions imposed by the relevant Minister.
At a high level, South Australia requires organisations to apply directly to the South Australian Minister for Transport, and to meet certain insurance benchmarks. New South Wales allows the responsible Minister to approve trials – including type of vehicles, roads used and trial time period – and require trial applicants to have the appropriate insurance provisions and safety management plans in place. 
Western Australia is currently trialling electric driverless shuttle buses and autonomous taxis, however no specific legislation has been passed to date.
The table below sets out a high level overview and comparison of the requirements under the South Australian, New South Wales and Victorian regimes:
Comparison of State driverless vehicle regimes
New South Wales
27 February 2018
14 August 2017
31 March 2016
- Application to VicRoads with details of applicant, vehicle, vehicle supervisor (if applicable) and nature of trial.
- Application to responsible Minister for use of a trial vehicle on a road for the purposes of a trial of automotive technology.
- Minister may approve use of trial vehicle by the applicant – the approved person – by order published in the Gazette.
- Minister may authorise trials of automotive technologies.
- Minister must be satisfied that the applicant has arrangements for public liability insurance in place and complies with any other requirement set out in the regulations.
Conditions on permit
- VicRoads may impose conditions on ADS permit (e.g. days and times the automated vehicle can participate in trials; whether a human driver is required to take control of the vehicle at specified times; compliance with safety management plans; real time monitoring of the performance, location and compliance of the automated vehicle).
- Minister must identify trial area (e.g. the roads on which the trial vehicle can be used) and period of the trial.
- Trial approval is subject to any conditions imposed by the Minister or the Act.
- Vehicle Supervisor (approved person for purposes of trial) must be in the trial vehicle at all times; must hold current driver licence.
- Authorisation must specify the trial area, the trial period, the scope and nature of the trial and the name of the person authorised to undertake the trial.
Cancellation of permit
- VicRoads may cancel, suspend or vary ADS permit at any time in accordance with regulations.
- Minister may revoke or suspend trial at any time.
- Minister may revoke or suspend authorisation or vary conditions for any reason.
Exemptions from legislative regimes
- Minister May (at own initiative or on application) exempt a person or trial vehicle from any laws or statutory provisions in relation to an authorised trial.
- No specific insurance requirements.
- Minister may issue guidelines regarding the kinds of insurance required to be held.
- Condition of trial approval that a third-party policy is in force and Minister-approved arrangements are in place for the indemnification of Nominal Defendants (i.e. for no fault incidents).
- Authorised person or trial must have public liability insurance and any other insurance required by the Minister in place.
Safety management plans
- Application must be accompanied by safety management plan.
- Compliance with safety management plan is condition of ADS permit.
- Minister may issue guidelines regarding required contents of safety management plans.
- No specific requirement for a safety management plan in legislation.
- No specific requirement for a safety management plan in legislation.
Records and data
- VicRoads may create and retain records of persons driving, or in charge of, automated vehicles.
- Condition of ADS permit to real-time monitor and record the performance, location and compliance of automated vehicles.
- Approved person must notify Minister of any collisions or accidents.
- Approved person must provide any information regarding trial to the Minister, upon request.
- The Minister must prepare report following completion of trial.
- Offence to cause another person to drive or be in charge of automated vehicles where an ADS permit is not in force for that vehicle; or drive in breach of any permit condition (maximum penalty of $79,285 for a Corporation or $15,857 for individuals).
- Offence to interfere with a trial or trial vehicle (maximum of 100 penalty units).
- Offence to contravene condition of exemption (maximum penalty of $2,500)
- Offence to hinder authorised trial or interfere with equipment (maximum penalty of $10,000)
With this new legislation, Victoria takes the lead in the nationwide race to become a tech hub for driverless cars. This new regime opens doors for Victoria to be the location of choice for trials of this technology, which has the potential to ultimately revolutionise transport and the way we commute.
You can find a copy of the Road Safety Act 1986 online here, which includes the Road Safety Amendment (Automated Vehicles) Act 2018.
 Road Safety Amendment (Automated Vehicles) Act 2018.
 Motor Vehicles (Trials of Automotive Technologies) Amendment Act 2016 (SA).
 Transport Legislation Amendment (Automated Vehicle Trials and Innovation) Act 2017 (NSW).
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This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.