Slow progress on removal of regulatory barriers for automated vehicles

First published 22 May 2018

Last November I published this article on regulatory barriers to more highly automated vehicles and how they should be removed. The article coincided with the release of a white paper published by the NRMA, PwC and Keolis Downer, which also coincided with submissions to the National Transport Commission, in response to its call for submissions on how driving laws should be changed to support automated vehicles.

Last week, the Transport and Infrastructure Council met to consider the NTC's recommendations on how Australia's driving laws should be changed to support automated vehicles. The Council includes Transport, Infrastructure and Planning Ministers from the Commonwealth, States and Territories, New Zealand and the Australian Local Government Association.

Unfortunately, it appears not much progress was made. The Council agreed that a harmonized, purpose built national law should be developed to ensure that automated vehicles, as they become available, are required to be used safely and legally on public roads, noting the importance of not getting ahead of international developments. The Council also agreed that the NTC should analyse existing regulatory frameworks, ahead of making further policy recommendations to Council and propose legislative change.

The Council's Communique states that key elements of the proposed national law would include:

• requiring the automated driving systems to be approved under a future safety assurance system, before they are able to be used legally in vehicles on public roads;

• ensuring that automated system driving entities can be held liable for the actions of vehicles which are operating in automated mode;

• determining who should be held responsible for vehicles operating at low, conditional and high levels of automation; and

• providing mechanisms for ensuring compliance and enforcement.

So precisely how our road rules and other driving laws will be amended is still up in the air. I was hoping we'd at least have proposed amendments to our uniform Australian Road Rules at this point. Perhaps the NTC has something else in mind, as a 'purpose built national law' suggest something other than amendments to existing laws?

It also seems from the second bullet point that we are heading for a system where the "automated driving system entity" will become legally responsible for ensuring that the automated driving system complies with the road rules. The NTC has previously suggested that the automated driving system entity would be the entity that applies for approval to sell the vehicle in Australia, which will ordinarily be the manufacturer of the vehicle, or perhaps the local supplier. 

Under this arrangement, if a vehicle speeds, or runs a red light, or otherwise breaks the road rules when the automated driving system is driving, the police would issue the infringement notice direct to the manufacturer/local supplier. 

Sounds like a good result for the owners and users of the vehicles doesn’t it? 

But what if the owner of the vehicle has had the vehicle maintained or modified by someone other than the manufacturer, and the defect in the automated driving system is due to the work carried out by these third parties? 

If liability for traffic offences is going to be imposed on vehicle manufacturers in such circumstances, the manufacturers are likely to insist that those who wish to buy their vehicles must agree to only use the manufacturer or its approved maintainers and modifiers to maintain or modify the vehicle. Purchasers will effectively have to give up their right to use independent maintainers/modifiers, competition will be diminished, and consumers will end up the losers. 

I continue to believe a better approach is to adopt the same approach that presently applies to infringements detected by fixed speeding cameras and red light cameras, where the fine is issued to the registered owner/operator of the vehicle, who remains liable unless they can demonstrate that someone else is responsible for the infringement. If the traffic infringement occurs as a result of a failure of the vehicle’s automated driving system through no fault of the registered owner/operator, the registered owner/operator should be able to bring a claim against the party that is responsible for the fault in the automated driving system, including the supplier/manufacturer of the vehicle, the maintainer of the vehicle or any party that the registered operator has engaged to modify the vehicle. 

So under this arrangement, ultimate liability for traffic offences will still flow through to the vehicle’s manufacturer, maintainer or modifier if they are at fault, which will motivate such parties to carry out their work so that the automated driving system is and remains capable of complying with the road rules. This arrangement will also result in a more competitive environment for the maintenance and modification of vehicles, which will ultimately benefit vehicle owners and users.