Australian Transport Ministers agree on framework to ensure driverless cars are safe

First published 17 November 2018

This week, Australia’s Transport Ministers took another important step in developing a legal framework that can support the safe, commercial deployment of more highly automated vehicles in Australia.

The Ministers have agreed to develop a safety assurance system that will require the entity that wishes to bring the automated driving system to the Australian market (the “automated driving system entity” or “ADSE”) to:

• self-certify how it has managed various prescribed safety criteria, and

• obtain Federal Government approval of the self-certification,

before the automated driving system can be supplied in Australia.

The same process will apply to significant modifications or updates to an automated driving system, including software updates.

The safety criteria that must be met will be prescribed by the Vehicle Safety Standards Branch within the Department of Infrastructure, Regional Development and Cities - the Federal Department that administers the legislation that controls vehicle standards for vehicles entering the Australian market for the first time. The VSSB will also assess whether the self-certification should be approved.

The VSSB will not test and validate the safety of the ADS. Rather, responsibility for this will fall on the ADSE. The VSSB will simply satisfy itself that the ADSE has appropriate processes in place to identify and manage the safety risks, based on the information provided in the self-certification.

The mandatory self-certification model is designed to provide assurance to Australian governments and the community that companies developing ADS technology are managing safety risks appropriately. The safety criteria will be principles-based, to enable industry to innovate and bring a variety of technologies and business models to Australia. 

As part of the self-certification, the ADSE will also be required to:

• outline the data it will record and how it will provide the data to relevant parties;

• have a corporate presence in Australia; and

• provide evidence of its financial position and its grounds for claiming it will have a strong financial position in the future and the level of insurance held.

It is noteworthy, however, that the Ministers didn’t embrace the recommendation of the National Transport Commission to introduce a new statutory safety duty on ADSEs. It seems that strong lobbying by automotive manufacturers, coupled with questions as to whom the duty should apply to and the embryonic state of international regulatory approaches, has caused the Ministers to pause before proceeding down this path.  

Whether much turns on this omission is debatable, as manufacturers and suppliers of automated driving systems will owe a continuing duty of care to under Australian negligence laws in any event. This duty will be owed to vehicle users and others whom the manufacturer or supplier ought reasonably to have foreseen may be harmed by the vehicle, such as other road users. But it won’t be actionable by government in the same way that a statutory safety duty would be.

Most importantly, this weeks’ agreement should enable Australians to promptly access the safety and other benefits that increasingly automated vehicles offer, without exposing us to unnecessary safety risks. It will also gives our regulators greater capacity to align with future international regulatory developments in this space.