Following an unsuccessful attempt by the State Opposition to introduce laws that permit the use of privately owned motorised scooters and similar vehicles, the State Government has announced a review of e-scooter laws which will include public consultation.

The recently proposed laws would have allowed e-scooters to be ridden on South Australian roads. In the Society’s view, such a move would have been premature given the lack of analysis and consultation on the safety implications of allowing e-scooters on roads, not least of which is the fact that little consideration has been given to the extent to which people ought to be covered for injuries involving e-scooters.

But one thing is for certain: the legal landscape around e-scooters needs a major overhaul.

What’s wrong with the current laws?

The State’s road laws have not been seriously examined since e-scooters and e-bikes have been introduced to the city’s transport mix, and this has caused significant uncertainty about what constitutes legal and illegal use of a scooter, as well as major question marks over who is liable for injuries involving e-scooters.

The simple fact is that e-scooters are not only here to stay, they will become more and more common on our roads and footpaths as people increasingly look for convenient short-stretch transport options. So we need laws that recognise their legitimacy as a form of transport while ensuring that the laws protect the safety of road users and pedestrians.

What is the legal definition of an e-scooter?

E-scooters meet the legal definition of motor vehicles under all South Australian Legislation. A motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

What this means is that the laws that apply to motor vehicles, including careless or dangerous driving, drink driving and the Australian Road Rules also apply to e-scooter riders. However, because e-scooters do not meet safety standards under the Australian Design Rules, they cannot be registered, do not have a licensing regime and cannot be covered by CTP insurance.

We therefore have a strange situation where e-scooters cannot be driven on roads because they do not meet official design standards, but also cannot be ridden on footpaths because they are classified as motor vehicles.

Authorised e-scooter hire companies such as Beam and Neuron have an exemption to operate e-scooters in defined council areas. This is because these hire companies have their own insurance schemes. But privately purchased e-sooters can only be used on private property. It is clearly an untenable situation to be legally able to buy a motorised scooter but be prohibited from taking it past your driveway.

What speed limits should apply to e-scooters?

The Liberal Party’s Bill proposed that e-scooter speeds be restricted to a maximum of 25km/h on roads. This is because the definition of a “personal mobility device” in the Bill (which captures e-scooters) limits their speed to 25km/h. If the Bill were passed and the law changed, it appears such devices capable of exceeding this speed would be outside of this regulated definition and would be deemed to be “motor vehicles” and, as such, illegal to operate on South Australia’s roads and footpaths, as is the case with privately-owned e-scooters now.

Currently, hire company e-scooters, which are only permitted on footpaths and shared pathways, reach a top speed of 15 km/h.

Before any proposals to legalise e-scooters are submitted, consideration will need to be given to appropriate speed limits that should apply to e-scooters on roads, shared pathways and footpaths. Such a proposal would also need to include measures that address risks associated with people modifying e-scooters to increase their speed. It is likely that the ability to “soup up” an e-scooter will merely require overriding software limitations on the vehicle’s speed.

Should e-scooters be registered?

This question raises similar issues to the age-old debate about whether bikes should be registered. A registration scheme for bikes would provide far greater cover for pedestrians and other road users who were injured due to a cyclist’s actions. But a registration scheme would significantly increase the costs of bike-riding and be administratively onerous.

Similar issues would arise for e-scooters, although arguments can be made that e-scooters are potentially more dangerous than bikes due to their relative weight, the fact that they are motorised and the likelihood that e-scooter operators would be generally less experienced than road bike users.

Why are electric bikes treated differently from e-scooters?

There are two kinds of e-bikes - the type of e-bikes owned by transport hire companies such as Beam and Neuron, and motor-assisted pedal bikes (called “pedelecs”). Pedelecs are not considered “motor vehicles” and are therefore legal to be ridden on roads, mainly because these bikes can still be propelled by manual pedalling, with the motor cutting out at certain speeds. To be exempt from the definition of “motor vehicles”, power-assisted bicycles must have motors that produce no more than 200 watts and Pedelecs must produce no more than 250 watts.

What action can someone take if injured by an e-scooter?

If, say, a pedestrian is knocked over and injured by a person riding an e-scooter from a hire company, the injured person may be able to seek compensation via the hire company’s public liability insurance. However, if the person riding the scooter was breaking the law or breaching the terms of the e-scooter contract (which is accepted upon scanning the QR code to activate the vehicle), then the insurance cover becomes void. That means, unless the injured person can sue the individual rider, they will not have any recourse for damages if the rider was not wearing a helmet, was under 18, was over the blood alcohol limit, was riding in a dangerous manner, or violating any other terms of the contract. There have been numerous reported cases of people being seriously injured by an e-scooter but who have had a torrid - and in many cases unsuccessful - time attempting to receive any recompense for their pain and suffering, medical expenses and lost income.

Even if injured pedestrians or motorists are able to claim compensation under a scooter hire company’s public liability insurance or an individual’s public indemnity cover, it is likely that the insurance would not provide the same coverage as the CTP scheme currently provides to those injured on South Australia’s roads.

What’s the solution?

This is obviously a complex question but one that needs to be addressed as the use of e-scooters continues to increase.

The Law Society has suggested that there is a need to determine the insurance implications of the use of e-scooters and similar devices in the near future. The Opposition’s Bill took an approach whereby such devices were simply excluded from the obligation to register and insure. This was the primary basis on which the Law Society opposed the Bill, noting that this question needs to be addressed through significant consultation with stakeholders.

By way of example, the Law Society pointed to the potential to create a conditional registration scheme for e-scooters. Such schemes already exist for certain classes of vehicles that don’t comply with design safety rules but can be registered on a conditional basis. These vehicles include historical cars, hot rods, and left-hand drive vehicles, and bring such vehicles within South Australia’s CTP Scheme at a discounted registration rate noting their limited use. The Law Society does not necessarily advocate for this proposal, however, raises it as a potential possibility and considers that it should be a part of the discussion in the Government’s upcoming review of e-scooter laws.

What the Law Society does strongly advocate for, however, is a comprehensive legislative reform focussed on e-scooters that is clear, consistent, and certain on the question of insurance.

How does a conditional registration work?

Eligible vehicles can be registered and be permitted to be operated on roads under particular conditions. For example, certain historical vehicles can only be driven on a road for 90 days in a year, the details of each journey must be recorded in a logbook, and the drivers must be a paying member of a motor vehicle club. These cars can be registered and fully covered under CTP insurance for a significantly reduced fee of about $90.

A conditional registration fee could potentially be viable for e-scooters, but the conditions imposed may relate more to the kinds of roads and speeds that the e-scooter can go, rather than duration limits.

An advantage of the conditional registration scheme is that provides CTP injury cover for a modest premium. Also, the registration of e-scooters could allow actuarial data to be built up over a period of time to determine the risk profile of e-scooters on roads.

The Law Society understands that the CTP Regulator has the power to create a new class of CTP registration, which could apply to operators of e-scooters and similar vehicles.

However, whether such a scheme is suitable for e-scooters is a matter of policy that will need to be evaluated by the Government in consultation with several stakeholders.

Safety first

A number of groups, particularly disability groups, have raised concerns about the use of hire e-scooters, in terms of both the danger e-scooter riders can pose to pedestrians and the haphazardly parked e-scooters that block pathway access for people using mobility devices.

On the other hand, e-scooters are a convenient form of transport and there is a clear commuter demand for them, and transport options that provide an alternative to cars is generally considered a sound policy objective.

Carefully considered legislative reforms will go a decent way towards establishing a framework that accommodates alternative forms of transport in a manner that protects community safety, but other factors such as scooter friendly transport infrastructure, road safety education, and adequate insurance policies will also need to play a part in paving the way for a transport system that works for everyone.