Driverless cars or automated vehicles (AVs) are a step closer to becoming reality on Australian roads.
One of the stumbling blocks to the widespread adoption of AVs has been Australian Road Rule 297, which requires that a physical driver has ‘proper control’ of a vehicle while driving. This rule has caused some angst in the context of AVs, particularly as to how law enforcement agencies should interpret and enforce Australian road traffic laws in relation to AVs.
The National Transport Commission’s (NTC) National Enforcement Guidelines for Automated Vehicles November 2017 (Enforcement Guidelines) now offer guidance as to what comprises ‘proper control’ of an AV and the role of the human driver when automation features are engaged, including automated parking assistance features. Importantly for the development and uptake of advanced automation, the Enforcement Guidelines provide for the use of up to Level 3 conditional automation by drivers, which while still requiring a human to be seated in the driver’s seat provides for sustained periods of hands free driving. Highly automated (Level 4) and fully automated (Level 5) vehicles are not addressed by the guideline, with these levels of automation requiring greater law reform, including redefinition of the concepts of “driver” and “control”.
Who is this update relevant to?
Businesses in the transport and logistics sector, businesses that otherwise rely on vehicles/fleets as a key input, vehicle manufacturers, and peripheral technology design and supply businesses, drivers looking to purchase and use vehicles with automation functions, and law enforcement agencies.
The NTC has been tasked by the Transport and Infrastructure Council (Council, which comprises the federal, state and territory transport ministers) to investigate and propose solutions addressing the legal barriers to the use of AVs on Australian roads. The NTC has developed a work program to undertake these tasks, and has to date released two practical guidelines, namely the Guidelines for Trials of Automated Vehicles in Australia (Trial Guidelines) and the Enforcement Guidelines.
The Enforcement Guidelines are drafted for immediate use and are not reliant on any legislative amendments. As is the case with the Trial Guidelines, the Enforcement Guidelines do not have the force of law and set out only to provide guidance. Indeed, as we note below, the Enforcement Guidelines do not fetter police discretion to determine proper control and the appropriate use of automation features on a case by case basis. Notwithstanding these considerations, the Enforcement Guidelines are a critical step in the recognition and interpretation of Australian Road Rules, finding that drivers of AVs can be found to have proper control of their vehicles, including in instances where they do not have their hands on the steering wheel and where they use automated parking assistance (while remaining in the driver’s seat).
Consistent with the objectives of the NTC’s program of work, together the Trial Guidelines and Enforcement Guidelines provide welcome certainty to a range of stakeholders, particularly manufacturers, suppliers, drivers and the police.
What the Enforcement Guidelines achieve
What is proper control?
A threshold issue for the introduction of AVs onto Australian roads has been the question of what comprises ‘proper control’ of a vehicle. Under Australian Road Rule 297, a driver must be in proper control of their vehicle when driving. Prior to the Enforcement Guidelines, Australian police have interpreted proper control to mean that the driver is sitting in the driver’s seat and has at least one hand on the steering wheel.
The Enforcement Guidelines provide guidance as to what is proper control in relation to the ‘Levels’ of automation described in the SEA International Standard Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, namely Levels 1 – 3, which the NTC defines as follows:
Level 1 – Driver Assistance
The driving automation system may take control of steering or acceleration and braking (speed), but the human driver is responsible for the rest of the driving task.
Level 2 – Partial Automation
The driving automation system may take control of all of the steering, acceleration and braking in defined circumstances, but the human driver must continue to monitor the driving environment and the driving task, and intervene if required.
Level 3 – Conditional Automation
The automated driving system (ADS) drives the vehicle for sustained periods of time. The human driver does not have to monitor the driving environment or the ADS but must be receptive to any system failures and intervene if requested and be the fall-back driver for the dynamic driving task.
Regarding what is proper control when Levels 1 – 3 automation are engaged, the Enforcement Guidelines indicate that:
- Levels 1 and 2: one hand must remain on the steering wheel at all times, other than for Level 2 parking assistance where the driver may remove their hands from the wheel for this task only;
- Level 3: no hands are required on the wheel; and
- All Levels: the driver must remain seated in the driver’s seat, be alert to the environment and resume driving in response to the AV’s request to resume the dynamic driving task or where there is an evident system failure.
While AVs hold out the promise of the driver being entirely disconnected from the dynamic driving task, the Enforcement Guidelines clearly state that ‘the driver must not engage in any activity other than driving’ while Levels 1 and 2 automation are engaged. The NTC appears to indicate that the driver may engage in activities other than driving when Level 3 automation is engaged, however the Enforcement Guideline is ambiguous in this respect, and in any event existing restrictions concerning mobile phones and visual display units will continue to apply. We expect further guidance will be required when Level 3 automation becomes available for public use1.
Who is responsible for the vehicle under automation?
A further barrier to the uptake of AVs has been the question as to who is responsible for the vehicle when automation is engaged. The answer to this question is critical to the advancement of AVs, particularly in resolving liability for incidents involving the use of an ADS, and accommodating AVs under private/individual level insurance arrangements and compulsory third party and national injury insurance schemes.
The Enforcement Guidelines clarify that the driver is in control of and responsible for their vehicle when Levels 1 – 3 automation are engaged. Regarding Level 3 automation, the NTC acknowledges that while the ‘ADS entity’ is capable of ‘driving’ the vehicle it cannot be in control because it is not currently recognised in legislation. Given that legal recognition of ADS entities is likely to be a critical dependency for the development of AVs (particularly with respect to Levels 4 and 5 automation) we expect the NTC will provide legislative options addressing this issue as a matter of priority (see Next steps, below).
Guidance for the police (and AV manufacturers and service providers)
The Enforcement Guidelines are not a legal instrument, and do not amend or subordinate the Australian Road Rules (or their state and territory implementations) in any way. Consequently, the requirement for drivers to have proper control of their vehicle remains in place, and state and territory police will remain able to use their discretion in determining whether a driver has exercised proper control over their vehicle.
Whether the Enforcement Guidelines will be taken up as the preferred interpretation of proper control in practical policing remains to be seen. However, there are indications that they will, including that Australian police forces have been key stakeholders throughout the NTC’s program of work, and the Enforcement Guidelines have been endorsed by the Council.
The Enforcement Guidelines provide a summary as to how proper control may be policed for vehicles with Levels 1 – 3 automation, noting:
- police will largely rely on observed behaviour (as they will not necessarily be able to identify AVs and/or the level of automation they are operating under), and there will be no onus on the relevant officers to determine whether a vehicle is operating under any level of automation; and
- if there is a query as to whether a driver has exercised proper control over their vehicle, the driver may provide the defence that automation was engaged at the relevant time and the control they exercised was appropriate to the Level of automation, and provide evidence demonstrating this.
On the latter point, the Enforcement Guidelines suggest that statements, driver’s manuals, make and model and capabilities information, and visual observation of in-vehicle dashboard screens (which contain information about safe driving behaviours), are suitable forms of evidence that automation was engaged at the relevant time. AV manufacturers and service providers should consider the Enforcement Guidelines in their development of features for AVs and how they can assist drivers to demonstrate, and ensure police are satisfied, that vehicle automation is engaged, including the ability to provide drivers with real time (or near real time) access to driver automation data/driver logs.
As we have noted, the Enforcement Guidelines consider that when a human driver engages Level 2 parking assistance whilst seated behind the wheel, they are exercising proper control of an AV. However, while the Enforcement Guidelines acknowledge that Level 2 parking assistance can also include remote parking capabilities (where the driver parks the vehicle using a smartphone app or key fob from a position near, but not in, the vehicle) they note that such features are out of the Enforcement Guidelines’ scope, and cannot legally be used on public roads in Australia without an exemption or permit. Given this technology is already available to the market, we would expect further guidance and reform for remote parking assistance features in the near future.
The Enforcement Guidelines represent a significant step on the path to developing a national legal framework that fully accommodates the use of AVs on Australia’s public roads and provides valuable guidance to AV manufacturers and suppliers, police and drivers as to what proper control means when using AVs. The NTC are in the process of developing legislative reform options necessary to further build this framework, and have scheduled May 2018 for the release of their next artefact on this point.
1 The Enforcement Guidance notes that at the time of publication in November 2017, there are no vehicles on the market operating at Level 3 (Conditional Automation). However, such vehicles are likely to be on the market in the near future. These vehicles could operate without legislative amendments, permits or exemptions.