How will government ensure the safety of self-driving vehicles in Australia?
First published on 9 July 2018
In brief
Self-driving vehicles promise significant safety benefits, as they could reduce or eliminate human error and dangerous human choices as a cause of serious accidents – factors which presently account for up to 94 per cent of serious crashes. However, self-driving technology is still emerging, and errors or deficiencies in this technology could cause road accidents. As the technology matures, it is expected that the net effect will be a significant improvement in road safety outcomes, but there could be some teething issues along the way.
There is a community expectation that governments will play a role in ensuring the safety of self-driving vehicles. Driver licensing laws, which require drivers to demonstrate that they are competent to drive, will cease to play any role in ensuring road safety when the entire dynamic driving task, including watching the road, is performed by an automated driving system. Accordingly, governments need to determine how they will ensure that the automated driving system is competent to perform the dynamic driving task.
A recent publication by Australia’s National Transport Commission (NTC) provides a good steer on how Australian governments are likely to perform this role. This article considers the emerging approach and its implications.
In detail
The favoured approach
The regulatory approach that the NTC favours essentially comprises three elements:
First, the entity that proposes to introduce the automated driving system (ADS) to the Australian market will be required to self-certify how it has addressed various safety criteria, before the ADS can be introduced into the market
Second, legislation will be enacted to put in place a suite of specific offences and compliance and enforcement tools that will be administered by a dedicated national agency, and
Third, the legislation will also impose a new ‘primary safety duty’ on ADS entities to ensure, so far as is reasonably practicable, that it is safe to use the ADS.
The NTC has considered a number of other options, including options that omit the last element, or the last two elements. The NTC believes the additional safety benefits obtained by having all three elements greatly exceed the additional costs.
The proposed regulatory approach focuses on the ADS rather than the vehicle to which it is fitted. This approach deals with the possibility that an ADS may be added to an existing vehicle, or that a vehicle’s ADS may be significantly modified, including by way of an over-the-air software update.
Proposed safety criteria
The safety criteria that the ADS entity will be required to self-certify against will be set by the new national agency. In broad terms, it is proposed that the ADS entity will need to:
Explain why it chose particular design, validation and testing processes, and how these ensure safe technology is developed
Identify the operational design domain of the ADS and how it will ensure that the ADS is able to operate safely within its defined operational design domain
Outline how the human-machine interface will facilitate interaction between the ADS and relevant parties (both within and outside the vehicle) that allows the vehicle to operate safely
Demonstrate how it will ensure that the vehicle complies with the road rules when the ADS is
engaged
Demonstrate how it will ensure the police can access information about the level of automation
engaged at any given time
Demonstrate how the ADS will detect when it cannot operate safely and ensure an appropriate
minimal risk condition is reached
Demonstrate how the ADS will respond appropriately to foreseeable and unusual conditions that
may affect its safe operation
Demonstrate how it will manage system upgrade risks, including ensuring safety-critical upgrades
are installed
Demonstrate how it has considered the Australian road environment
Demonstrate how it has developed an ADS that minimises the risk of cyber-intrusion and how it
will detect and minimise the consequences of intrusion that occurs, and
Outline the education that will be provided to relevant parties (for example, human drivers,
maintainers, repairers, distributors, and end users) and how this will minimise the safety risk of using and operating the ADS.
In addition, the ADS entity will need to:
Outline the data it will record and how it will provide the data to relevant parties (including police, road authorities, individuals and insurers)
Provide evidence of its corporate presence in Australia, and
Provide evidence of its current financial position, its grounds for claiming it will have a strong
financial position in the future, and the level of insurance held.
The NTC considered the twelve safety priority design elements identified by the United States National Highway Traffic Safety Administration (NHTSA) in formulating its proposed safety criteria. The NTC’s proposed safety criteria are largely consistent with the NHTSA’s. One notable departure is a stronger emphasis on ADS crashworthiness and post-crash response in the NHTSA’s guidance.
Offences and compliance and enforcement measures
The new (or amended) legislation will allow a national body to regulate the ADS entity and the in-service performance of the ADS. It will require that the ADS entity continues to comply with its certification, and reports safety critical events such as breaches of the road rules, crash data, near-miss data, cybersecurity vulnerabilities and other events to the national body. The proposed offences and compliance and enforcement measures that would be incorporated in legislation include:
Failure to lodge a certification to the relevant Government agency prior to introducing an ADS to market
False or misleading information provided in the certification
Failure to lodge a certification to the relevant agency of an in-service modification that results in a vehicle operating at a higher level of automation
Failure to inform the relevant agency of a significant safety risk or issue related to the ADS
Failure to follow a legal direction of the relevant agency in relation to the ADS
Failure to maintain ongoing adherence to the certification, and
Failure to provide data or meet reporting requirements.
Primary safety duty
Our driver laws impose a number of obligations on drivers that don’t relate to the dynamic driving task. The ADSE could be made responsible for ensuring compliance with a number of these obligations, such as the obligation to provide details to another driver involved in a crash, and the obligation to ensure passengers under 16 years wear seatbelts, but there are other obligations that an ADS can’t perform, such as the obligation to remove fallen items from the road. The NTC has recommended that all such obligations are reviewed to determine whether they should be assigned to the ADSE and, if not, reassigned to someone else.
We think this is sensible - if a human engages the ADS to perform the dynamic driving task it is designed to undertake, the human would not expect to be held responsible for contraventions of road traffic laws while the ADS is engaged.
Readiness-to-drive obligation for fallback-ready users
We expect the primary safety duty will be modelled on those contained in national work, health and safety legislation and the Rail Safety National Law, and will require the ADS entity to:
ensure, so far as is reasonably practicable, that the ADS is safe if it is used for a purpose for which it was supplied,
ensure, so far as is reasonably practicable, that such testing and examination of the ADS as may be necessary for compliance with the above duty is carried out, and
take such action as is necessary to ensure, so far as is reasonably practicable, that there will be available in connection with the use of the ADS adequate information about
the use for which the ADS is supplied, and
the results of any testing or examination referred to in paragraph 2, and
any conditions necessary to ensure, so far as is reasonably practicable, that the ADS is safe if it is used for a purpose for which it was supplied.
The duty will be a continuing duty, which extends beyond the point of first sale. This will require the ADS entity to ensure that software updates are provided if deficiencies in the ADS become apparent. It will also provide a ‘catch all’ in the event safety risks not captured by the self-certification criteria are discovered at a later date, perhaps as a result of rapid advancements in ADS technology. A continuing primary safety duty will further encourage the ADS entity to avoid liability by taking proactive measures to detect and address safety concerns before they result in harm to vehicle users.
Whether a legislated primary safety duty is needed to capture these benefits is debatable. We say this because the primary safety duty will largely replicate the duty that would be owed in tort by the ADS entity to those who could foreseeably be harmed if the ADS is not safe. Its inclusion in the safety assurance reforms will, however, enable the government regulator to take action against the ADS entity in the event the duty is breached – which is consistent with community expectations.
The NTC proposes that the primary safety duty should only cover the party seeking to bring the technology to market in Australia. We believe the NTC should give further consideration to whether a primary safety duty should also be imposed on persons that carry out maintenance, repairs or modifications to an ADS. The duty would be to ensure that such maintenance, repairs or modifications are done in a way that ensures the use of the ADS for the purpose for which it was supplied will be safe.
We agree that it is not appropriate to impose a primary safety duty on the registered operator/owner of a vehicle, as many operators/owners won’t have the technical competence to discharge such a duty. There may be a case, however, for imposing some more specific obligations on registered operators/owners, such as:
an obligation to cease using the ADS if a safety-critical software update needs to be installed, and
an obligation to ensure that maintenance, repairs and modifications are carried out by an appropriately qualified persons.
A sound approach
The NTC’s proposed approach is fundamentally sound. The approach:
provides a single national approach to regulating the safety of an ADS
will provide a structured and systematic approach to ensuring an ADS is safe
is technology neutral and will facilitate private sector innovation
aligns with what a prudent and competent manufacturer will want to do in any event, to discharge its duty of care in negligence
avoids the need for government to work out the tests that should be conducted, or to wait for other governments to do so - rather, it allows those closest to the development of the technology to work out what testing should be done
will enable risk management processes and test to quickly evolve as industry standards and best practice emerge
will enable manufacturers to complete many tests at their preferred location, minimising the testing required in Australia to that which is necessary to identify the safety risks arising from differences in road rules and Australian road infrastructure, and
places primary responsibility for managing safety risks on the ADS entity (who will be, or have a relationship with, the manufacturer) rather than the regulator, while also allowing the regulator to take appropriate action if it has legitimate concerns.
Finally, the significant road safety and mobility benefits that self-driving vehicles promise are predicated based on the vehicles being bought and used by consumers and commercial operators. A lack of confidence in their safety will reduce or delay their uptake. Uncertain or inconsistent regulation of the safety of self-driving vehicles could also delay their supply to the Australian market. The proposed regulatory response addresses these risks.
Next steps
The NTC has recently received a number of submissions on its proposed approach. It will now consider these submissions, before making final recommendations to Australia’s transport ministers in November 2018.
Thanks to Con Tieu-Vinh for his assistance with this article
