Australia: US Federal policy on driverless vehicles - A blueprint for Australia?

Last Updated: 3 November 2016
Article by Owen Hayford and William Stefanidis

Most Read Contributor in Australia, November 2017

The US Federal Automated Vehicles Policy is a critical step forward for that nation, and gives Australia a potential blueprint for the evolution of our regulatory framework.

In our recent report on regulating driverless vehicles in Australia, we noted the need for Australian Governments to amend our road laws to permit the use of more highly automated vehicles that don't require a human driver to constantly watch the road and remain ready to resume control of the vehicle if necessary.

Across the Pacific Ocean, the Federal Automated Vehicles Policy was unveiled on 20 September 2016 by the US Department of Transportation and its National Highway Traffic Safety Administration (NHTSA). The long-awaited report represents the first US federal policy instrument addressing the multitude of risks and liability issues posed by highly automated vehicles (HAVs).

The US policy helpfully signals where the lines of responsibility might be drawn for regulators and auto manufacturers. It is a critical step forward for a nation that houses the headquarters of some of the world's pre-eminent leaders in the space of autonomous vehicles, and provides a potential blueprint for the evolution of our regulatory framework for motor vehicles in Australia.

Themes from US policy

What is the key task here for law-makers? It is to develop laws that strike an acceptable balance between two competing interests: the need to guard the personal safety of road-users, on the one hand; and promoting an innovative technology that has the potential to yield immense social and economic benefits in the long-term, on the other. This is a challenging endeavour. Against this backdrop, several themes emerge from the US policy.

  1. Guidelines, not rules

The US policy takes the form of guidelines, rather than mandatory rules. This is sensible given present uncertainties as to how the technology will develop, and the impacts it will have. The NHTSA has indicated that it will continue to consult on the guidelines, and that aspects of the guidelines may develop into mandatory rules in due course. A similar approach would make sense for Australia.

  1. Allocating responsibilities between Federal and State regulators, and achieving uniformity

Like Australia, it is the State Governments in the US that are responsible for regulating most aspects of road safety and the use of motor vehicles. Divergent regulatory approaches among the 50 States could create a patchwork of inconsistent laws that would impede innovation and the expeditious deployment of safety enhancing self-driving technologies.

The US policy contemplates that the Federal Government will continue to be responsible for setting Federal Motor Vehicle Safety Standards for new motor vehicles and motor vehicle equipment, and the States will continue to be responsible for regulating the human driver and most other aspects of motor vehicle operation. But as motor vehicle equipment increasingly performs "driving" tasks, the Federal Department of Transport role will increasingly encompass tasks similar the "licensing" of the non-human "driver" (ie. the automated driving systems).

The policy strongly encourages the States to allow the Federal Department of Transport alone to regulate the performance of HAV technology. It has suggested that if a State wishes to pursue such regulation, the State should consult with the NHTSA and base its efforts on the vehicle performance guidance provided within the US policy. The States will continue to regulate human drivers, vehicle registration, traffic laws, liability and insurance.

The US policy suggests that the States should review their current laws to address any unnecessary obstacles to the safe testing, deployment and operation of HAVs, and update references to a human driver as appropriate. As noted in our recent report, the same exercise needs to occur in Australia. The US policy suggests that the States may wish to deem an HAV system that conducts the driving task and monitors the driving environment to be the "driver" of the vehicle. For vehicles in which the human is primarily responsible for monitoring the driving environment, the US policy recommends that the States consider the human to be the driver for the purposes of traffic laws and enforcement.

The US policy contemplates that while the Federal Government will set and enforce the safety and performance standards for HAVs, the States would regulate the procedures for granting permission to vehicle manufacturers and owners to test and operate HAVs within a state. Manufacturers and others seeking permission to test a vehicle should certify that the vehicle follows the Performance Guidance published by the NHTSA and meets the applicable Federal Motor Vehicle Safety Standards, and should provide evidence of their ability to satisfy a judgement for damages for personal injury, or property damage, for no less than US$5 million.

In the US, States are responsible for determining liability rules for HAVs. The US policy recommends that the States consider how to allocate liability among HAV owners, operators, passengers, manufacturers and others, and who must carry motor vehicle insurance. The policy notes that laws deeming the HAV system to be the driver in a given circumstance will not necessarily determine liability for crashes involving a human driver. For example, States may determine that in some circumstances liability for a crash involving a human driver of an HAV should be assigned to the manufacturer.

Australia has a similar division of responsibilities between Federal- and State-based road and motor vehicle regulators. As in the US, our Federal Government regulates safety standards for new motor vehicles, and our States regulate the human driver and most other aspects of motor vehicle operation. Accordingly, a similar approach to the regulation of HAVs could be adopted in Australia, to ensure uniformity of regulation so that HAVs can operate seamlessly across Australian State borders. As noted in our report, there are complex issues that need to be considered before imposing deemed liability for crashes on manufacturers, maintainers or suppliers of HAVs.

A co-operative effort is currently underway between State Government agencies and the NTC. The NSW Parliamentary Committee on Road Safety recently commented that the NTC "is engaging in a practical and consultative way with NSW and other jurisdictions to achieve a national framework for regulating the deployment of automated vehicle technology".

  1. Options for vehicle certification and standards

The advent of new transportation technologies revives the age-old debate between self-certification by manufacturers coupled with post-market audits, on the one hand, and the more stringent process of pre-market approval and certification by government, on the other. The former applies to vehicle manufacturers in the US, while the latter approach applies in Australia. The US policy discusses their relative merits.

The most significant implications of this choice relate to accountability for driverless vehicles and the associated risks. Self-certification places the onus of accountability squarely on manufacturers of these risky technologies, who are arguably best placed to manage the risks. Some manufacturers have indicated they are not averse to this responsibility. Volvo set the bar last year when it publicly stated that it would accept "full liability" for any of its vehicles operating in autonomous mode.

Australia's certification scheme under the Motor Vehicles Standards Act 1989 (Cth) requires manufacturers to obtain an approval or exemption from the Federal Administrator of Vehicle Standards before a new vehicle can be sold in Australia. Given the risk and uncertainty that still surrounds driverless vehicles, our Federal Government might be hesitant to move to a self-certification model and entrust this responsibility to manufacturers.

Interestingly, the US policy discusses the possibility of moving to a pre-market approval approach, which would prohibit the sale of a HAV without prior NTHSA approval. It also discusses a hybrid approach under which auto manufacturers would retain responsibility to self-certify compliance with vehicle standards, and NHTSA would conduct pre-market approval for novel features not yet addressed in the standards. As the technology continues to develop, the onus for certification in relation to these novel points would be incrementally transferred to manufacturers as and when they are incorporated into the standards. Were the US to adopt either approach, it would signal a move closer to our Government's system of certification, and a desire by US authorities to keep closer controls over the deployment of driverless vehicles.

The US policy also discusses the need to regulate software updates that can alter the functions and technical capabilities of vehicles. Australian regulators will also need to consider this issue.

  1. Sharing information

Finally, the US policy encourages manufacturers to share the data that they collect on accidents and cybersecurity attacks with their competitors. The sharing of this data will accelerate knowledge and understanding and, in turn, the safety benefits that self-driving vehicles offer. Industry members should not have to experience the cyber vulnerabilities and safety incidents in order to learn from them. These are laudable objectives, but are they commercially realistic? Driverless technology is being fuelled by aggressive investment by leading auto-makers around the world. The race to develop a marketable and suitably safe vehicle is extremely competitive. At the heart of this race is continuous testing and the collation of data. In this context, it will be interesting to see how the international auto manufacturing industry responds to the US Department of Transportation's suggestion.

Where is Australian regulation heading?

The NTC is due to meet with Australian transport ministers in November 2016 to make final recommendations regarding the future direction for the regulation of autonomous vehicles in Australia. No doubt the NTC is busily considering the extent to which our regulatory framework should be influenced by the recent developments in the US. Don't be surprised if a number of common features emerge!

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions