Public consultation is now open on a new national law on ‘in-service safety’ of autonomous vehicles
Australia’s National Transport Commission (NTC) is conducting a public consultation on a proposed new national law for autonomous vehicles. The consultation covers “in-service safety” – which focuses on the ongoing regulation of autonomous vehicles once they are operating on our roads, and is distinguished from related discussions that centre around pre-deployment issues of manufacture and ‘first-supply’. This development is part of NTC’s work towards a harmonised regulatory framework in Australia for autonomous vehicles.
The NTC has released a comprehensive discussion paper (A national in-service safety law for automated vehicles), as well as a consultation paper (A national in-service safety law for automated vehicles: Summary of proposals), outlining its proposed national in-service Automated Vehicle Safety Law (AVSL). The consultation seeks feedback on the proposed AVSL from government road transport and enforcement agencies, regulators and agencies with a connection to in-service safety, vehicle manufacturers, road managers, transport industry bodies and other entities with an interest in the regulatory framework for automated vehicles in Australia.
The consultation period, which runs until 11 December 2020, will inform NTC recommendations to relevant ministers in 2021 and forms part of the NTC’s broader mission to improve Australian preparedness for an increasingly driverless future.
What is the Automated Vehicle Safety Law?
The AVSL is intended to fill some of the existing gaps in Australia’s legal framework presented by autonomous vehicles. It will address some of the most pressing safety-focused issues confronting the sector ahead of the wider deployment of autonomous vehicles on Australian roads. As part of the AVSL, state transport ministers have agreed that the AVSL will include:
- the application of a general safety duty on automated driving system entities (ADSEs). ADSEs are entities who are responsible for an in-service automated driving system (ADS) (the core hardware and software technology underpinning autonomous vehicles that classify as SAE levels 3 to 5 of driving automation (SAE International Releases Updated Visual Chart for Its “Levels of Driving Automation” Standard for Self-Driving Vehicles)). This general duty requires ADSEs to take reasonable steps to manage safety risks that are within their control;
- the imposition of due diligence obligations on executive officers of ADSEs to support the ADSE’s compliance with the general safety duty; and
- the creation of a national regulator for in-service safety to regulate ADSEs, their executive officers and remote drivers of automated vehicles (the in-service regulator would be separate from the regulation of the pre-deployment ‘first-supply’ stage).
The consultation paper is seeking public comment on a number of issues related to the AVSL’s proposed responsibility regime and sets out specific questions for feedback. Some of the key matters for consultation are summarised below.
What are the Automated Driving System Entities’ (ADSE) duties?
The discussion paper proposes that the general safety duty be an outcomes-focused duty that will require an ADSE to take positive steps ‘as far as reasonably practicable’ to ensure the safe operation and performance of an ADS over the ADS’ lifecycle. The general safety duty is proposed to be complemented by more prescriptive duties, including those that can be set by a future regulator, together with regulatory guidance. By proposing a general outcomes-based safety duty, the NTC notes that the AVSL can accommodate both known and unknown risks in relation to ADS safety, rather than a more prescriptive set of expectations that may lose relevance as the technology develops. Notwithstanding, a similar dual general-specific duty approach has been taken by other national transport regulations, and previous public consultations (Summary of consultation outcomes) have identified respondent preference for a mix of prescriptive and performance-based regulation.
The NTC is seeking feedback on:
- what prescriptive duties under the general safety duty should be included in the AVSL to manage in-service safety risks;
- the role and legislative force of regulatory guidance in relation to compliance with the general safety duty; and
- the role of existing and proposed regulatory frameworks in addressing third-party interference with an ADS, and whether this should be a specific prescribed offence.
In-service modifications and after-market installations of autonomous vehicles
ADSEs and third parties could make modifications to ADS functionality while they are in-service (for example, software updates that expand an ASD’s level of automation or operational design domain), or install kits could enable third parties to install an ADS into conventional vehicles. Modifications and after-market activity with autonomous vehicles and ADSs could have significant impacts on the safety and accountability arrangements necessitated by the technology. Ensuring a continuity of safety will be difficult without proper consideration being given to these ancillary, but critical matters.
The consultation paper is seeking feedback on how to manage and regulate the modifications and installation of ADSs in-service (whether by a regulatory approval or accreditation process) and whether a different regulatory approach should be taken depending on whether those modifications are made by the ADSE or a third party (such as an installer).
Market entry and exit for ADSE
Ensuring an appropriate framework for ADSEs to enter and exit the market without compromising the ongoing accountability attached to an ADS is also critical. Consideration needs to be made to the risk of an ADSE exiting the market without an appropriate transfer (or no transfer at all) of the ongoing responsibility for the safety of the ADS. The AVSL proposes defining a clear accreditation (and accreditation transfer) scheme process by which ADSE’s can enter and exit the market, such as through a business transfer. Such a scheme would be managed by the future regulator to ensure certain minimum technical, financial and corporate requirements were met in order that ADSE responsibility for an in-service ADS can be transferred as seamlessly as possible.
The consultation paper is seeking comment as to whether or not it is desirable for ADS accountability to be transferable, how to handle situations where an ADSE exits the market without a transfer, but with its ADS still ‘in-service’ on our roads (for example recall measures), and what role the regulator may play in both these situations.
Role of a future regulator
The scope of the role of the in-service regulator and how it should interoperate with existing regulators and enforcement bodies is up for determination. The in-service regulator is proposed to be responsible for matters such as monitoring compliance with the AVSL, enforcement action (including the application of civil and criminal penalties and suspension powers), crash investigations, accreditation, as well as educational and policy functions. Finalising this scope will likely require consideration of the financial, resourcing and technical constraints present at the regulator’s outset.
As there will be a long period of time where autonomous vehicles will be operating alongside human-driven vehicles, the regulatory approach will involve juggling existing road law enforcement and other roadside matters that apply to an ADS, their ADSE, and the human riders of autonomous vehicles.
The consultation paper seeks feedback on the powers and functions that a future in-service regulator should hold, and its interaction with existing roadside regulatory frameworks and government agencies.
The consultation paper also touches on a number of legalistic concerns about the most effective method of legislative implementation (including across the different states and territories), as well as more specific process and policy questions. One of these question areas is how a future in-service regulator will effectively access and exchange the data it requires vis-a-vis other government agencies and regulators.
Autonomous vehicle regulations: Another step toward preparedness
As traditional driving laws in Australia (which are designed on the basis of a human driver being in control) do not support the deployment of autonomous vehicles, establishing appropriate regulatory frameworks is paramount to the preparedness for automated vehicles. The AVSL, including the current consultation process, marks another step in the NTC’s goal of end-to-end regulation of autonomous vehicles.
In KPMG’s annual Autonomous Vehicle Readiness Index (AVRI) Australia remains one of only 4 countries to receive the highest AVRI score for its autonomous vehicle regulations. However, on the broader AVRI, Australia maintained its global rank of 15 (among 30 assessed countries) for the second year running, demonstrating that establishing an appropriate regulatory framework is only one of multitude barriers to the safe deployment of autonomous vehicles. Earlier this year, we commented on some of the legal issues presented by autonomous vehicles and other roadblocks to their effective deployment on Australian roads (Legal issues with driverless cars and autonomous vehicles in Australia).
Authors: Lesley Sutton, Jen Bradley and Bryce Craig