QUEENSLAND GOVERNMENT RESPONSE TO THE NATIONAL TRANSPORT
COMMISSION CONSULTATION REGULATORY IMPACT STATEMENT ON THE IN
SERVICE SAFETY FOR AUTOMATED VEHICLES
INTRODUCTION
Queensland appreciates the opportunity to comment on the National Transport Commission 's
(NTC) consultation Regulatory Impact Statement (RIS) on
In-service safety of Automated
Vehicles (AVs). The RIS examines the need for specific regulation to assure the in-service
safety of AVs, including which parties in the AV supply chain are not adequately regulated and
what additional safety duties could address this. Legislative implementation , regulatory
governance and funding models are also proposed.
The deployment of AVs will require innovative regulatory responses to assure the safety of the
Australian road network, whilst not presenting barriers to technology deployment. The timing
of regulatory reforms to support the deployment of AVs in Australia is critical as delays may
lead to Australia being insufficiently prepared. An end to end regulatory framework must be
implemented in a timely manner to avoid the possibility of AVs being deployed without
appropriate regulatory safeguards. To this end, Australian governments must work
collaboratively to deliver a holistic and effective national regulatory framework that meets
community expectations by delivering safety, while supporting innovation and competition.
Queensland reiterates its previous support for the concept of a national Safety Assurance
System (SAS) for AVs, which was proposed to be a holistic and seamless approach to
regulating the safety of AVs in Australia. The decision to regulate first-supply using existing
mechanisms under the
Road Vehicle Standards Act 2018 (Commonwealth) (RVSA) , need not
limit the implementation of a SAS but rather should be seen as one complementary element.
The SAS was founded on several agreed safety criteria that were col ectively designed to
assure the safety of AVs. It is understood that these safety criteria wil be implemented as part
of the regulation of first-supply through a Statement of Compliance (SoC) for Automated
Driving Systems (ADSs). Queensland is of the view that these safety criteria are a critical
starting point for in-service safety and should be applied throughout the in-service use of AVs.
The consideration of AV regulation must be cognisant of Australia's limited position in the
international market. For an Australian regulatory model to be sustainable, it must be nationally
consistent and support the timely adoption of international standards. For Australia to exercise
any influence on the global AV market it must speak with one consistent voice.
KEY ISSUES
A summary of Queensland's position in relation to the key issues addressed in the RIS is
provided below.
Parties and duties
Queensland supports the application of a general safety duty on Automated Driving System
Entities (ADSEs) , with director due diligence obligations on ADSE Executive Officers. This is
a future-focused approach and places an overriding positive safety obligation on ADSEs , who
wil have the most direct influence over the safety of ADSs. A general safety duty supports an
advancing safety standard and provides flexibility for ADSEs in meeting this standard.
In the first instance, a general safety duty on ADSEs wil largely avoid the need to place safety
obligations on other parties. To satisfy their duty, ADSEs would be responsible for developing
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and maintaining systems that ensure ADSs can only be engaged when functioning safely. If
another party, such as a repairer or registered owner, does something that negatively impacts
the safety of an ADS, the ADSE must be able to detect this and disable the ADS. As the AV
market matures, there may be a need to consider expanding a general safety duty onto other
parties to create a chain of responsibility. For example, if typical ADS functionality cannot
support an ADSEs obligations, there may be a need for broader obligations on other parties to
assure safety. However, in the first case there are too many unknowns to support this as a
regulatory solution.
In addition to a general safety duty, there is a need for prescriptive obligations to be placed on
certain parties. For example, fal -back ready users should be licenced and be required to
remain vigilant and fit to drive. There wil also be a need for prescriptive obligations on ADSEs
where predictability and consistency of ADS road behaviour is required. For example, ensuring
ADSs comply with road rules.
Governance arrangements
ADSEs will likely be large corporate entities deploying vehicles to, and operating in, a national
market. As such, there wil be significant challenges in enforcing a general safety duty on
ADSEs at a State and Territory level. Safety issues within the ADSEs control are potential
systemic fleet-wide issues that should be addressed nationally in the interest of ADSEs fulfil ing
their safety duty.
Queensland supports the concept of a holistic national AV regulator as the desired end state.
AVs will disrupt the regulatory status quo to such an extent that vehicle safety, both at first-
supply and in-service, will need to be regulated national y in the futu re. This approach seems
best suited to regulate a large fleet of AVs where complex liability issues associated with
human drivers and ADSs will be limited and the reliance on on-road enforcement is reduced.
However, the case has not been made for the short-term establishment of such a regulator.
As such, interim arrangements are required to ensure the appropriate distribution of regulatory
responsibilities in a mixed fleet environment, while delivering a single point of accountability
for ADS safety and ADSE compliance. To achieve this, Queensland supports the leveraging
of the Commonwealth Government's ability to regulate corporations to oversee ADS safety
and ADSE compliance holistically through first-supply and in-service. This would include the
enforcement of a general safety duty on ADSEs. States and Territories will need
complimentary powers to undertake initial investigations of potential ADS failures and thus
support the Commonwealth in this role. Systemic ADS issues could be referred to the
Commonwealth Government for investigation, compliance management and ADSE
enforcement.
Prescriptive obligations that are to be placed on human road users (for example, fall-back
ready users) can be managed under amended state and territory laws (for example, road
rules). This wil provide consistency with current practice and ensure human road user
behaviour is regulated local y.
Appendix A provides il ustrative examples of the Proposed approach to AV in-service safety
This approach to the national framework does, however, signal an emerging risk of fragmented
national policy development for AVs. Firstly, there is an apparent disconnect between the
approach to regulating first-supply to the Australian market, as led by the Commonwealth
Department of Infrastructure, Transport, Cities and Regional Development (DITCRD), and the
development of the proposed in-service safety regulatory scheme, which is the subject of this
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RIS. There is also a risk of fragmented policy outcomes between the various reform packages
led by the NTC. For example, it is critical that in-service safety regulation closely aligns with
reforms to Motor Accident Injury Insurance (MAIi) schemes, Connected and AV data access
and privacy requirements and the development of comp liance and enforcement mechanisms.
The regulation of AVs across these areas must be intrinsically linked to ensure that there are
no gaps, duplications or inconsistencies that result in unsafe or inefficient outcomes.
As proposed
above, in the near-term, regulatory responsibilitiesfor the in-service safety of A Vs
will likely be split between the Commonwealth (ADSE and vehicle safety elements), and States
and Territories (human road user and on-road elements). To avoid a fragmented national
approach to AV safety, the formalisation of a national governance arrangement should be
considered that provides for a more agile decision-making process with clearer accountability
of all parties. An Inter-Governmental Agreement , or other similar coordination tool, may be
useful to formalise the roles and responsibilities of all Austra lian governments and serve as a
clear commitment progressing national y consistent AV reforms with priority. Such an
agreement could establish a decision-making body with representatives from all Australian
governments and a mandate to resolve implementation issues and deliver the desired national
framework. This body could initially develop policy and legislation, with key milestone decisions
advanced for decision to Australian Transport Ministers at the Transport and Infrastructure
Council. Post AV deployment , this body could foreseeably
evolve into a national point of
accoun tability for managing critical incidents and maintaining legislation and policy. An
eventual transition to a national regulatory body is also foreseeable once the market matures.
Appendix B provides an illustrative example of a governance framework for the national
regulatory framework.
Legislative implementation
Legislative implementation should logically follow desired policy outcomes and governance
arrangements. The proposed role of the Commonwealth Government in overseeing the in-
service general safety duty on ADSEs could be achieved via a range of Commonwea lth
legislative mechanisms. Where there is a need for consistency of state and territory laws, to
support in-service safety, model or applied laws could be appropriate. For instance, obligations
on fall-back ready users could be implemented in this way.
Funding model
There is a need for greater clarity of regulatory responsibilities and the scale and scope of the
regulatory task before funding models can be agreed. As a general principle, cost recovery is
preferred, and the cost of regulatory activities should be met by the parties being regulated.
To fund an ADSE regulator, options should be explored that enable cost recovery from ADSEs,
as opposed to consumer pays models, such as vehicle registration.
PREFERRED APPROACH
Queensland remains committed to achieving a functional national regulatory framework that
assures the safety of AVs. In terms of the options presented in the RIS to deliver this
framework, Queensland is of the view that a hybrid approach that builds on Option 3 would be
most effective and practical in the short-term.
In the interests of achieving national consistency and supporting the regulation of ADSEs at a
national level, a single point of accountability for ADSE regulation in the Commonwealth
Government is supported. This is necessary to ensure ADSEs are regulated consistently
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across Australia and risks under their control are mitigated uniformly across the national fleet.
The Commonwealth Government is well placed to holistical y manage ADSEs through first-
supply and in-service, including the application of a general safety duty on ADSEs with director
due diligence obligations.
The Commonwealth Government can legislate ADSEs and their directors as well as remote
drivers under existing constitutional heads of power to regulate corporations and
communications. This could be supported by prescriptive duties on human road users, for
example fall-back ready users, in state and territory legislation.
States and territories will likely retain on-road enforcement responsibilities and will need
powers to investigate potential ADS incidents to compliment the role of the Commonwealth. In
addition, states and territories will also require powers to swiftly address safety issues that
present on their road networks. For example, amended defective vehicle powers may be
appropriate.
Detailed policy analysis is required as part of the next phase of AV reforms to clearly identify
the roles and responsibilities of Commonwealth, state and territory regulators. This work
should ensure each regulator has appropriate powers and effective communication protocols
are established between regulators.
RESPONSE TO RIS CONSULTATION QUESTIONS
1. To what extent has the consultation RIS ful y and accurately described the problem
to be addressed, including the inservice safety risks? Please provide detailed
reasoning for your answer.
Queensland considers the RIS has mostly described the problem to be addressed. Some
additional factors for consideration are outlined below.
Scope
Areas considered out of scope will still need to be considered to ensure regulatory frameworks
are holistic. This includes:
• Enforcement and compliance must be considered in detail. Making a determination
about the future regulatory framework for AVs without a clear view of the
implementation model carries significant risk. Further work wil be required, and
decisions may need to be revisited, once the detailed work examining enforcement and
compliance options has been completed. New compliance and enforcement models
should be explored that shift away from on-road human-based enforcement and focus
instead on proactive audit and investigation of ADSEs and other regulated parties.
• While specific changes to the Heavy Vehicle National Law (HVNL) are out of scope of
the NTC's in-service safety for AVs reforms, broader impacts on the heavy vehicle
industry and road freight task should stil be considered. Inconsistent regulatory
approaches to in-service safety across Australia will constrain national road freight
movement in the future.
• Changesto policy and regulation at a State and Territory level will require consideration
to inform a decision on in-service regulatory options. Costs associated with government
implementation and industry compliance will need to be considered and may be
significant, depending on implementation approach.
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Need to regulate
The RIS (at section 3.3.2) could further explain why market forces are considered insufficient
to mitigate risks. For example, without specific regulation vehicle manufacturers could avoid
liability by using multiple corporate structures (including international structures) or by
attributing liability to the many other parties involved in the AV supply and use chain. Aggrieved
parties would need to pursue civil remedies themselves to seek redress at significant cost. The
complexities and delays inherent in legal systems would offer shelter to manufacturers,
particularly if confidential settlements are reached. Traditional civil remedies would not be
timely to effect ongoing supply and the risks to other AV users and the public. In addition,
reliance on market forces alone assumes longevity of the ADSE. An ADSE may discontinue
supply or cease to have a corporate presence in Australia while the AVs are still in-service.
This is discussed further in response to Question 5.
Economic impacts
The development of a regulatory framework for AVs will also need to consider broader
economic impacts. For example, the introduction of obligat ions in the interest of public safety
may drive the establishment of market monopolies, whereby large companies create market
entry barriers for start-ups, smal and medium enterprises. Queensland therefore supports the
development of techno logy neutral regulatory frameworks that enable small and medium
enterprises to participate in the market.
The introduction of AVs will inevitably lead to market disruption, however the impact on existing
industries must be considered in the design of the regulatory framework. For example, any
form of AV regulation will likely impact the aftermarket industry, repairers, mechanics and third-
party inspection schemes. For this reason, Queensland recommends caution before imposing
regulatory obligations on these parties in advance of AV market development. Furthermore,
the impact of regulating AVs needs to be understood through post implementation evaluation,
and regulatory frameworks may need to be adjusted to support local supply chains and create
local jobs.
Emergency services
It is acknowledged that interaction with enforcement and emergency services is included in the
safety criteria that will be applied at first-supply. However, ongoing in-service obligations will
be required to ensure AVs appropriately interact with emergency services. ADSEs will need to
ensure that their ADSs can respond to specific directions (for example, to pull over) as well as
respond appropriately to the approach of an emergency services vehicle while safely
negotiating traffic and congestion.
MAIi schemes
It is noted that
MAIi is considered separately to the RIS. However, the externalities described
in the problem statement under Section 3.3.2, do not adequately describe the cost of an
accident for an injured person. Specifically, ongoing care and rehabilitation costs for a seriously
injured person are not addressed despite this representing a significant cost to MAIi and
national injury insurance schemes.
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2. Have we correctly identified the parties with an influence on the inservice safety of
automated vehicles and accurately described their role? If you identify additional
parties, please explain what their role is.
Queensland supports the list of identified parties . For completeness, one additional party is
suggested below. Analysis of the role and influence of specific parties is included in response
to Question 3.
Insurers
Comprehensive motor insurers , commercial insurers ,
MAIi insurers, public liability insurers and
workers compensation insurers are not identified at any level of influence. However, insurers
may have substantial influence over many of the parties identified. For example, through
insurance types such as liability insurance for repairers , Compulsory Third Party (CTP)
insurance for owners, and product liability insurance for manufacturers. Insurers can influence
the parties responsible for in-service safety through the pricing of risk as part of insurance
premiums. Those parties seen as the lower-risks would be more likely to see a reduction in
premium while there would be a relative increase in premiums for higher-risk parties.
3. Have we accurately assessed each party's influence on the inservice safety of
automated vehicles? If not, please provide details.
The approach to regulating fir st-supplyhas the potential to significantly impact the level of
influence that various parties have on in-service safety and associated need for additional in-
service regulation . Without a clear view of how the agreed safety criteria wil be implemented
at first-supply and if, or how far, they wil reach into the in-service regulation of AVs, it is
challenging to accurately assess the role and influence of many parties. For example:
•
Education and training - If an ADSE is responsiblefor providing adequate education
and training to users of AVs, the influence of many of the identified parties may be
diminished. This includes dealers, second-hand dealers, fleet managers, commercial
operators and registered operators.
•
Installation of system upgrades - If an ADSE is responsible for the ongoing installation
of safety critical software updates, there may not be a need to consider associated
regulatory obligations on other parties. Reliance on registered owners should be
avoided as they may not interact with the vehicle on a regular basis and evidence
shows that some registered owners are apathetic in ensuring safety critical repairs are
conducted in a timely fashion. Experience with safety recal s shows that a substantial
portion of registered operators ignore requests to repair vehicles, even when these
repairs are mandatory and are offered free of charge (for example, the ongoing Takata
airbags mandatory safety recal ). Queensland considers that, at a minimum, the ADS
should be disabled by the ADSE if safety critical updates are not installed. This
requirement should be considered in the context of foreseeable connectivity issues and
how this should be discharged where AVs are 'out of range'.
•
Operational Design Domain (ODD) - The assessment and type-approval of an ODD at
first-supply needs to be managed on an ongoing basis to cater for system upgrades.
This must avoid the need for road managers to make secondary road access decisions.
Queensland considers that' it is a poor outcome if State and Territory road managers
make such secondary access decisions that result in fragmented access for AVs
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nationally. Note, that heavy vehicle access decisions need to remain under the control
of road managers under the HVNL.
•
Minimal risk condition - The influence of several identified parties varies significantly
based on the application of the minimal risk condition safety criterion. The simplest
regulatory solution would be to place an ongoing positive obligation on an ADSE to
have appropriate processes and systems in place to detect faults in the ADS. Where a
fault is detected, the ADS should be disabled, or altered in a way the supports safe
operation, until repaired. An overriding obligation on the ADSE could reduce the need:
o for specific regulatory obligations to be placed on repairers or modifiers,
substantially reducing the scale of the regulatory task;
o to conduct periodic ADS safety inspections similar to how existing roadworthy
inspections are currently performed on the mechanical aspects of vehicles; and
o to place specific requirements on human users, such as registered owners, to
install safety critical software updates.
Broader safety and network efficiency outcomes may need to be considered when
assessing an ADSEs processes for meeting the minimum risk condition. For example,
it is a poor outcome if the veh icle stops in a lane of traffic on a high-speed road. Doing
so will cause traffic congestion and poor safety outcomes. Satisfying the minimum risk
condition should require an ADSE to demonstrate how an ADS will stop safely in a way
which does not negatively impact the safety or convenience of others.
•
Interaction with enforcement and other emergency services - It is important for national
safety standards to ensure AVs can:
o interact with and move out of the path of emergency services vehicles;
o adhere to the directions of emergency service workers which may include the
ability to differentiate between an imperative to stop and pull over and the
imperative to move out of the path of emergency vehicles; and
o be secured and disabled by emergency service workers in the event of a crash
to minimise risk to emergency workers, public safety and nearby infrastructure.
Consideration must also be given for how interaction with other authorised persons will
be facilitated. For example, an ADS will be required to respond appropriately to
requests or directions from school crossing supervisors and traffic controllers.
Depending on the maturity of AV technologies , obligations on human users, such as
the fall-back ready user, may need to be considered to support safe interactions with
enforcement officers, emergency services and other authorised persons.
If the scope of regulation at first-supply does not extend to cover the parties and scenarios
described above, the application of in-service safety duties should be considered instead.
Queensland also provides the following commentary to support the analysis of the influ en ce
of variou s parties on the in-service safety of AVs.
ADSEs
Further consideration of ADSE business models may be required, both at first-supply and in-
service, to ensure regulatory frameworks are flexible and can accommodate all likely
deployment scenarios. It is possible that corporate partnerships wil emerge, where several
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entities will collectively perform the role of the ADSE. For example, vehicle manufacturers and
the ADS software providers may enter into a joint venture to design, manufacture and deploy
AVs. In these instances, it may not be possible or preferable to pinpoint a single legal entity to
take on the role of ADSE. Consideration should be given to how this role could be shared, it
desired by industry, and what additional issues or risks this would present.
Fall-back ready users
Queensland supports the assessment made in the RIS of tall-back ready users of level 3
(conditional automation) vehicles. As per previous Ministerial decision, obligations will be
required to ensure these users are appropriately licenced, tit to drive, comply with relevant
alcohol and drug prohibitions, are sufficiently vigilant to respond to take-back requests and
take-back control within a reasonable amount of time to ensure the continued sate operation
of the vehicle. Amended obligations will also be required to ensure that other driver obligations
are extended to tall-back ready users, including seatbelt requirements (both to be restrained
themselves and ensure child occupants are restrained), responding to emergency vehicles
and requests from authorised officers as well as stopping and remaining at the scene of an
accident and providing appropriate assistance.
There wil also be operational considerations associated with tal -back ready users. For
example, how alcohol ignition interlock requirements wil apply.
Consideration is required tor potential obligationson human 'drivers in waiting' tor higher-levels
of automation. As a general principle, it a person intends on performing the driving task at any
point in a journey they must be tit to drive, appropriat ely licenced and comply with relevant
drug and alcohol prohibitions. Regulatory obligations should support this.
Remote drivers
The concept of a remote driver must be carefully considered given this is a new party with
different safety risks. Requirements such as licensing, training and fitness to drive wil not be
able to be enforced at the roadside and wil require a different enforcement model.
Remote drivers should, at a minimum, meet the requirements of a driver tor the class of vehicle
that they are monitoring. However, further work is required to understand the risks associated
with remote drivers and how best to control these risks. A remote driver may need to be subject
to more stringent safety requirements, such as total alcohol prohibitions, specific training
requirements and limitations on the number of vehicles they can concurrently monitor.
Regulatory controls placed on air traffic-controllers may be a useful basis tor comparison tor
more specific requirements. For example, air traffic-control ers are subject to specific licensing
regimes, training requirements and drug and alcohol testing. The duty of care between the
remote driver and the passengers of the AV and other road users should also be considered,
given the existence of such a duty under common law is not currently established.
Consideration is also required as to whether a remote driver would be limited to a person who
is under an ADSE's control, or whether they could be any person, including the owner of an
AV or a third-party entity. It should be noted that the remote driving service may be ottered by
a separate legal and commercial entity to the ADSE. Queensland is aware of the existence of
such emerging busine ss models locally.
Where remote operation of an ADS is part of an ADSEs deployment model, the ADSE will
need to demonstrate how this wil be managed safely. This may be achieved via an extension
of the Human Machine Interface (HMI) safety criterion at first-supply. An ADSE would need to
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demonstrate: how remote drivers wil be engaged, trained, be fit to operate and maintain
sufficient vigilance and situational awareness; how the vehicle will pass control over to a
remote driver; how the remote driver will effectively control the vehicle; and how connectivity
issues will be managed between the vehicle and remote driver's location. To mitigate risks
associated with remote drivers, ADSEs may elect to only allow a person under their direct
control to undertake the task.
There is a need to consider a national approach to regulating remote drivers as it is likely that
some deployments will involve a remote driver monitoring from a different jurisdiction to where
the AV is operating. To the extent to which first-supply arrangements cannot extend to in-
service regulation of remote drivers, national law should be considered. As part of this, a
prohibition on overseas operation should be considered in the first instance. There is also an
opportunity to monitor international deployment models with respect to remote drivers.
Modifiers
The RIS assumes that modifier s will alwaysbe a repairer, registeredowner or ADSE. However,
Queensland considers that modifiers need to be considered independently of other parties.
Based on existing experience, modifiers are not always one of these parties and there is
insuf icient evidence to assume that a future market for AV modifications will be dif erent.
Consideration is also required about types of modifiers and whetherall modifiers have a similar
level of influence and risk profile. The RIS focusses on physical modifications, however
software modifications wil impact the safety of ADSs in the future. Software modifications will
include those conducted by the ADSE but may also be conducted by third-parties (for example,
the instal ationof 'apps' or plug-ins).
Currently in Queensland, certain vehicle modifications (not related to an ADS) must be
inspectedand cleared by an accredited person before the vehicle can be used on a road. This
is supported by existing state-based legislative frameworks.1 Some vehicle modifications
require approval, others must be done in accordance with a code of practice that does not
cover AVs. Development of codes of pract ice for AV modification is not thought to be practical
due to the highly complex nature of ADSs and limited access to manufacturer's proprietary
technology .
Consideration is required as to the safety assurance approach for modifications that impact
the safety of an ADS. As discussed above, if the ADSE will have an ongoing positive obligation
to ensure the safety of an ADS and prevent the ADS from being used when unsafe to so,
specific regulatory requirementsfor modifications may not be required. Under this approach
the ADSE could be responsible to authorising and approving modifications (both physical and
software). Modifications are discussed in more detail in response to Question 5.
Repairers
The nature of the market for AV repairs is unknown. Currently, independent repairers are often
technically unab le or unwil ing to make repairs to Advanced Driver Assist Systems. These
repairs are typical y undertaken by the vehicle's manufacturer.A similar model may emerge
once AVs are deployed, whereby the market will evolve and ADSEs will limit the ability for the
ADS, including software and hardware to be repaired by unapproved third-parties. Given the
level of uncertainty, it is almost impossible to assess the level of influence a repairer, who is
1
Transport Operations (Road Use Management-Accreditation and Other Provisions) Regulation
2015 (Old)
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not operating under the control of an ADSE, will have on ADS safety in the future. The need
for additional regulation of repairers is discussed in response to Question 6.
Vehicle inspectors
It should be noted that vehicle inspectors are independent third parties who are distinct from
transport compliance officers (often referred to as inspectors). Like modifiers and repairers,
the role and influence of vehicle inspectors is unknown. Depending on the approach taken at
first-supply and in-service duties placed on an ADSE, periodic vehicle inspections of ADSs
may or may not be required to assure safety. In the longer-term, a positive and ongoing
obligation on an ADSE to assure safety of the ADS will likely render traditional vehicle
inspection processes unnecessary. In the near-term, if the ADS is to be included as part of
periodic inspections, such as roadworthy inspections , regulatory frameworks that govern the
role of the vehicle inspector will need to be reviewed and amended. Requirements for
programmed inspections on ADSs must be based on evidence to support safety and consider
the cost to government and industry.
Road managers
Governments wil not be able to tailor infrastructure to AV technologies unless there is clear
standardisation of infrastructure requirements. For example, line markings, digital maps and
signage requirements. In addition, even if there is standardisation of technologies , it wil take
a long time for the total road network to be updated. Given this, regulatory frameworks must
be technology and infrastructure agnostic. ADSEs wil need to ensure that ADSs wil operate
safely on existing infrastructure and should not depend on governments to make specific
infrastructure improvements for bespoke AV technologies. Existing road manager duties are
thought to be sufficient to ensure the safety of transportinfrastructure for AVs.2
4. Have we accurately broadly described the regulation that already applies to relevant
parties that would help ensure the inservice safety of automated vehicles?
Broadly, the RIS describes many of the regulatory frameworks that currently govern the use of
vehicles on roads and how they would apply to the various parties in the AV supply and use
chain. The fol owing commentsare provided to support further analysis.
Approach to regulating first-supply
There is a need for greater exploration of the assumptions made around the first-supply
approach. For example, wil first-supply regulation under the RVSA apply a point in time safety
standard or an advancing safety standard? The traditional model is to take a point in time
approach to the standards that govern the physical components of a vehicle due to the cost
and impracticalities of replacing physical components. However , a dif erent approach is
required for the software elements of an ADS that wil likely be updated at minimal cost and
inconvenience to vehicle owners.
Community expectations for the safety of AVs wil almost certainly change over time and the
regulatory approach must be sufficiently flexible to meet these expectations. This aligns with
the current approach to regulating the safety of human drivers. Expectations of safety change
over time and drivers must adapt their driving behaviours to account for various changes to
rules and requirements (for example, road rule changes, reductions in alcohollimits and fitness
2 Section 37 of the
Civil Liabilities Act 2003 (Old) limits a road authority's liability in circumstances
where the condition of a road caused damages, unless the road authority is specifically aware of the
risk and fails to take appropriate actions.
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to drive requirements). This advancing safety standard for human drivers applies to all drivers
and not just those licenced after a point in time. So far as possible, the safety standards that
apply to ADSs should be applied in the same manner.
Vehicle recal s
One way of achieving an advancing safety standard for ADSs is to reconsider the concept of
vehicle recalls. Traditionally, vehicle recalls have required the vehicle to be physically
presented to a repairer for the safety issue being rectified. However, an ADS safety issue could
be identified and addressed much more efficiently. For example, the ADS could be immediately
disengaged until the safety issue is resolved and a recall may be able to be actioned by a
software update without the need for the vehicle to be physically brought in for repairs . Thi s
approach would also lend more weight to a mandatory safety recall of an ADS, where the
safety issue could be resolved without the need for the vehicle's owner acting or consenting to
the repairs. The use of vehicle recalls in this way would allow for ADS safety issues to be
addressed on a scale and pace not possible for traditional vehicles. The role of vehicle recalls
under the RVSA should be considered as part of the des ign of any new or amended legislative
frameworks to assure the in-service safety of AVs.
This would support a transition to a more vehicle-centric approach to compliance, instead of
trad itiona l roadside enforcement. Non-compliances could be managed at a fleet level and an
ADSE regulator could proactively work with ADSEs to ensure safety issues are addressed.
Existing state and territory legislation
Queensland's analysis shows that regulatory frameworks governing drivers (such as licensing
and fitness to drive) and vehicles (such as registrat ion, inspections, modifications and
standards) wil almost certainly require amendment in the future to clarify application to AVs
and ensure the policy intent is preserved. As stated throughout this submission, the nature of
these amendments will depend on other regulatory approaches, including at first-supply and
in-service duties. Amendments may be needed to incorporate AVs or alternatively exclude
AVs. In either case, a level of nation al consiste ncy is likely desirable.
Public passenger regulation
The RIS assumes that AVs providing public passenger services will likely be covered under
point-to-point legislation (known as personalised transport in Queensland). However, without
amendment this is unlikely to be true. For example, the existing legislation governing booked -
hire services in Queensland assumes a human driver is always provided with the vehicle.3
It is likely that AVs will cause a blurring between what is considered a public passenger
transport service and what is considered a private transport service. For example, a student 's
journey to school in an AV owned or leased by the student's parents may be considered a
public passenger service under existing legislation. This is not the desired intent. Consideration
wil need to be given to how AV passenger transport services will be regulated. Existing
passenger transport regulation (encompassing both personalised forms of transport and mass
transit) wil need to be reviewed to consider the distinction between public and private
transport. The need for such a review to be conducted in a nationally consistent manner has
not yet been established.
3 See section 71 of the
Transport Operations (Passenger Transport) Act 1994 (O ld)
11
Registration and CTP insurance
The RIS identifies the existing regulatory requirements that apply to compliant vehicles. It
should be noted that jurisdictions have varying approaches to the registration of non-compliant
vehicles. In Queensland, this is known as the conditional registration scheme and enables
limited access to the road network for non-compliant vehicles. This type of registration allows
additional conditions to be placed on the use of these vehicles. For example, time of operation
or a need to obtain local road access permits. It is anticipated that there will be a demand for
automated non-complying vehicles to enable ef iciencies in a range of industries (such as
farming equipment that may stil have a legitimate need to access the road network).
Consideration should be given as to how the broader AV regulatory framework might be
applied to these non-compliant vehicles that do not receive import approval under the RVSA
and so will not be subject to first-supply arrangements.
In addition to vehicle registration, all jurisdictions within Australia require registered vehicles to
have CTP insurance to drive on a road. It is an offence to drive an unregistered and uninsured
vehicle on a road. The pricing of insurance for in-service safety may place incentives on vehicle
owners, manufactures, repairers and ADSEs to improve or maintain the in-service safety of
AVs. Further, there is the potential for a court to award exemplary, punitive or aggravated
damages against the insured party may act as an additional incentive to ensure parties with
direct influence over the in-service safety of AVs improve or maintain in-service safety.
Exemplary, punitive and aggravated damages are typical y not covered by MAIi schemes. For
example, if a vehicle owner (the insured) knowingly does something that negatively impacts
the safety of an AV, and then drives the car and causes an accident, the vehicle owner may
be personal y liable to pay damages. The interaction between in-service safety regulation,
insurance schemes and common law rights required careful consideration.
Dangerous goods
To the extent that AVs will be used to transport dangerous goods, there may be relevant
obligations under current legislati •
on 4 Hazards associated with the transport of dangerous
goods wil require a national approach as is currently overseen by the Commonwealth
Government in the development and distribution of model regulations and codes of practice
(for example, the Australian Code for the Transport of Dangerous Goods by Road and Rail).
5. Do you think there are any new risks posed by secondhand ADS components, after
market modifications or the transfer of ownership of automated vehicles, which may
not be adequately addressed by existing regulation designed for conventional
vehicles?
Queensland is of the view that there are several new safety risks posed by using second-hand
ADS components, after-market modifications and the transfer of ownership of AVs. These
safety risks are not adequately managed by existing regulatory frameworks and will require
consideration. These risks are discussed in detail below.
AV users are not appropriately educated or trained
There are several possible approaches to ensuring users of AVs are appropriately educated
and trained. The applicationof fir st-supply regulation and the role of various parties in the AV
4 See for example the
Explosives Act 1999 (Old)
12
supply and use chain (for example, ADSEs, manufacturers, dealers, second-hand dealers,
registered owners, driver trainers and registration and licensing authorities) wil be important.
Changes to driver licensing frameworks and vehicle registration transfer processes could be
consideredto support ongoing education and training of AV users. However, Queensland does
not consider this the most effective mechanism. Without significant standardisat ion of
technology, it will be challenging to design appropriate educational materials. It is also unlikely
that al AV users will interact directly with registration and licensing frameworks.
Regulatory models would be significantly simplified if overarching obligations to ensure
education and training are provided were placed on the ADSE and the relationship with these
other parties left to the ADSE to manage (for example, via contract) without the need for
specific regulation.
ADS parts from a written-off AV are used to repair other AVs
Queensland currently operates a two-tiered written-off vehicle scheme. Vehicles are classified
as a statutory write-off, that is irreparable, or a repairable write-off, where damage to vehicles
can be repaired and inspected before re-use. Written-off vehicle processes may need to be
reconsidered for AVs. For example, to what extent could ADS parts from a written-off vehicle
be used in the repairs or modifications of other AVs? In addition, are new or amended
inspections required for an AV that has been classified as a repairable write-off and repaired?
As an interim measure, written-off vehicle inspection requirements could be amended to
require a statement from the ADSE to reaffirm the safety of the ADS following repairs. This
aligns 'quality of repair' processes that are either in-place or being considered in most
jurisdictions. Longer-term, ADSEs may be best placed to manage this without direct oversight
from vehicle inspections.
After-market modifications negatively impact the safety of an ADS
The concept of what constitutes a modification must be considered. Broadly, Queensland
considers that there are four categories of modifications for AVs which may impact the safety
of an ADS.
1. The fitment of an ADS to make a vehicle automated, where previously it was not. This
may involve the fitment of both new hardware and software components ('self-driving
kits'), or only require new software components ('software upgrades').
2. A modification to an existing ADS. For example, either to increase the level of
automation, or to improve the safety, reliability, or efficiency of the ADS.
3. A traditional modification to the physical aspects of an ADS-equipped vehicle. For
example, modifying the engine capacity or the vehicle's mass or dimensions.
4. A temporary modification to a vehicle that could impact an ADS. For example, attaching
one or more trailers, or the carriage of a protruding load.
The safety of the ADS will need to be assured in each modification category. Options to
achieve this are discussed in the table below.
Category
Proposed regulatory tools
1. ADS fitment
• First-supply arrangements should be leveraged to ensure that ADSs
made available for after-market fitment are safe. This should apply
to both 'self-driving kits' and 'software upgrades'.
13
• Failure to capture both types of automated upgrades in first-supply
arrangements would create a loophole, whereby vehicles upgraded
to level 3 while in-service are not subject to the same safety
assurance process as vehicles supplied to the market as level 3
vehicles. For example, the identification of a responsible ADSE and
self-certification against the SoC.
• If this loophole is not closed, the market could adapt to avoid real or
perceived regulatory burden. Vehicles may be supplied to the
market at level 2 and subsequently be upgraded to level 3 or 4 via
software upgrade only.
• Consideration is also required as to transitional arrangements for
vehicles that are in-service at the time of implementation of first-
supply arrangements. Vehic les subsequent ly upgraded to level 3 or
higher should also be captured in the first-supply arrangements.
2. ADS
• Any modifications that impact the ADS should be subject to
modification
approval by the ADSE as they are best placed to understand if the
modification can be done safely. For example, this could include a
third-party software plug-in.
• Where a modification impacts the original type-approval of the
vehicle DITCRD may need to be notified.
3. Traditional
• Application of minimal risk condition safety criterion, either at first-
modification
supply or in-service, should require an ADS to be safely disabled if
a defect is detected that impacts the safe operation of the ADS. This
would include a defect caused by an improper modification.
• As an interim measure, existing modification inspection
requirements may need to be amended to require a statement from
the ADSE that the vehicle modifications have not adversely
impacted the safety of the ADS.
4. T e mporary
• Application of minimal risk condition safety criterion, either at first-
modification
supply or in-service, should require an ADS to be safely disabled if
a defect is detected that impacts the safe operation of the ADS. This
could include a defect caused by a temporary modification in some
circumstances.
•
A prescriptive obligation may be required on 'persons' to not alter
the configuration or load of an ADS equipped vehicle in a way that
wil negatively impact the safety of the ADS. This could apply to a
driver, fall back-ready user, registered owner, vehicle loader, or
commercial operator.
An AOSE stops supporting an ADS
It is likely that once vehicles reach a certain age, ADSEs may stop supporting the ADS. It is
acknowledged that first-supply arrangements will require an ADSE to nominate support
periods. In-service regulation will need to consider how safety wil be assured beyond this.
ADSEs may need to demonstrate how they wil manage an ADSs end of life once no longer
supported, either requiring an ADS to be disabled or vehicle recycled, destroyed or exported.
14
It is possible that support arrangements may be extended via a purchase arrangement
between the ADSE and consumer, regulatory frameworks wil need to support this.
An ADSE withdraws from the market leaving a fleet of ADSs without a responsible entitv
There will be an ongoing risk that an ADSE could withdraw from the Australian market. For
example, due to lack of commercial viability or insolvency. Careful consideration is required as
to how the safety of ADSs under an ADSE's control would be managed if they withdrew from
the Australian market. This risk is lessened in a fleet deployment model as without individual
ownership consumers are less likely to be negatively impacted. There may also be a more
compel ing financial incentive for alternative ADSEs to take over responsibility of a fleet of
vehicles if there are ongoing service fees.
It will be necessary to explore how the transition from one ADSE to another during the in-
service life of an AV will be managed. The process for managing the transition of Intelligent
Access Program Service Providers, as managed by Transport Certification Australia may be a
useful example. Agreements between Intel igent Access Program Service Providers and
Transport Certification Australia stipulate the requirements to manage this process.
In addition, the regulatory response if a new ADSE could not be identified needs to be
understood. The outcome that large fleets of AVs could be rendered unsafe and unusable, or
unusable in automated mode, is not desirable.
It is important that financial requirements imposed at first-supply are suitable to mitigate the
risk of ADSE withdrawal. There may be consideration given to the payment of a bond , surety
deposit or industry self-insurance fund to protect consumers in the event of ADSE withdrawal.
This approach has been used in some industries where the cost of market failure to
government or consumers is very high, for example, construction5 and mining6.
Where an ADSE is not the vehicle manufacture, the vehicle manufacturer will likely have a role
to play in managing the withdrawal of an ADSE from the market. This is similar to existing
vehicle recall processes where the manufacture manages the process, even if the fault is with
a specific component.
6. Do you think the parties with an influence on inservice safety are sufficiently
covered by Australia's current legal frameworks?
Most of the relevant existing regulatory frameworks governing the use of vehicles on roads are
primarily designed to enable rights of recovery or punitive action in the event of a breach .
Assuring the safety of AVs will require a more proactive and flexible regulatory approach. The
adequacy of existing regulation on the various parties is discussed further below.
ADSEs and ADSE Executive Officers
Queensland considers that existing regulatory frameworks do not adequately address the risks
that should be managed by ADSEs throughout the in-service life of ADSs. Existing regulatory
frameworks do not provide sufficient oversight of the role and responsibilities. Queensland is
of the view that additional regulatory obligations are required to assure the safety of ADSs
under the direct control of ADSEs. Associated due diligence obligations on ADSE directors (or
Executive Officers) appear relevant to ensure ADSEs comply with any duties imposed.
5 Home Warranty Scheme regulated by the Queensland Building and Construction Commission.
6 Mining Rehabilitation Fund regulated by the Western Australian Department of Mines, Industry
Regulation and Safety.
15
Repairers
Queensland is of the view that regulatory frameworks, both existing and in-development,
sufficiently cover the risks posed by vehicle repairers , in the first instance. This view is based
on:
• The application of the minimal risk condition safety criterion, either at first-supply or in-
service, should require an ADS to be safely disabled if a defect is detected that impact s
the safe operation of the ADS. This would include a defect caused by improper repairs.
• The Commonwealth Government's proposed mandatory scheme for the sharing of
motor vehicle service and repair information7 wil also provide some safety assurances
for ADS repairs. Under this scheme, it is proposed that access to Safety, Security and
Environmental (SSE) information will be able to be restricted by manufacturers. SSE
information will only need to be released where a third-party repairer can demonstrate
that they are sufficiently qualified, trained, skil ed or experienced to use the SSE
information to appropriately undertake the required repairs. It is assumed that
information relating to the ADS wil be considered SSE information and therefore ADS
repairs wil either be undertaken by the manufacturer or by an approved third-party.
More generally, the Australian Consumer Law contains generic provisions that may apply in
particular circumstances. This includes consumer guarantees which require services, including
the repair of vehicles, to be rendered with due care and skill8 and be fit for any specified
purpose9•
Other parties
The extent to which existing regulatory frameworks are suitable to regulate other parties in the
AV supply and use chain is unclear. The RIS makes significant assumptions about the role,
reach and suitability of existing jurisdictional regulatory frameworks without sufficient analysis.
The need to conduct such analysis will depend on the duties that are placed on ADSEs and
any residual gap in the management of AV in-service safety risks. As outlined in this response,
Queensland's preferred approach is to have an overarching safety obligation placed on
ADSE 's in the first instance, which should reduce the need for regulation of other parties in the
first-instance.
If there is an expectation that existing regulatory frameworks will be required to support
obligations on other parties to assure in-service safety, Queensland's view is that amendments
will be required. This includes the regulation of registered owners, drivers, remote drivers, fall-
back ready users, modifiers, vehicle inspectors, commercial operators, passengers, other road
users, dealers and second-hand dealers.
If these other parties are to be regulated using existing jurisdictional regulatory frameworks,
the risk of inconsistent approaches being developed is high. For example, regulating
roadworthiness of an ADS equipped vehicle at a jurisdictional level without a layer of national
consistency will contradict the overall aim of the AV reforms. Inconsistent approaches to
vehicle standards and inspections may create chal enges for ADSEs, even with a consistent
and harmonised approach at first-supply and consistent high-level safety duties.
7 https://treasury.gov.au/sites/default/files/2019-03/c2019-t358022-consultation-paper-2.pdf
8 See section 60 of the Australian Consumer Law (Commonwealth)
9 See section 61 of the Australian Consumer Law (Commonwealth)
16
Data access and privacy requirements
It is acknowledged that Connected and AV data access and privacy requirements are the
subject of a separate work program led by the NTC. However, a short discussion about data
is relevant to the question regarding the suitability of existing legislative frameworks. AVs wil
generate a high-volume and vast array of data. This will include data relating to the ADS
performance and safety and personal information. For example, sensitive information about a
person's location and biometric information collected by audio-visual devices.
To assure the in-service safe ty of AVs, regulatory and enforcement entities will require access
to relevant AV data, particularly data relating to safety and performance. First-supply
arrangements relating to data recording and sharing will not necessarily provide a lawful
authority for the ongoing collection and disclosure of data. A clear legislative framework is
required to provide for the ongoing collection and disclosure of data and to ensure adequate
privacy protections are in place. The framework should provide for the lawful, and limited,
collection, use and disclosure of AV data. This should place clear obligations on ADSEs to
provide information to regulatory and enforcement entities for specified purposes, and
appropriately restrict collection, use and disclosure of persona l and non-personal information
by all entities.
Any legislative frameworkfor the collection,use and disclosure of AV data should also include
a statutory right for a person to apply to the ADSE or other relevant entity for access to their
data, including to dispute criminal or civil liability.
7. Do you think that a general safety duty to ensure the safe operation of the ADS 'so
far as reasonably practicable' is appropriate to address the safety risks?
Queensland considers that a general safety duty to ensure the safe operation of the ADS is an
appropriate starting point to address in-service safety risks. It would be very difficult to maintain
a comprehensive set of prescriptive obligations sufficient to assure all aspects of safety across
the in-service life of an ADS. A general safety duty provides a flexible regulatory approach and
minimises the need for rea ctive regulation as new safety risks are identified.
The threshold 'so far as reasonably practicable ' allows for an advancing safety standard as
technology improves and community expectations change. There is value in defin in g the key
elements of reasonably practicable in a similar way to the HVNL. This will support judicial
interpretation and ensure there are appropriate limits placed on a general safety duty , including
an ability to weigh the costs of action with the risks of damage.
It is worth noting that all major Australian transport reforms have implemented general safety
duties and, as such, this approach has significant precedent. This includes general safety
duties governing the operation of heavy vehicles, personalised transport vehicles (booked hire
and taxis), rail safety and domestic commercial marine vessels.
Considerable work is required to develop the detail that wil support associated communication,
compliance and enforcement of a general safety duty. General safety duties are best used
when a regulator can provide clear guidance on the scope of the duty and how to comply. The
agreed safety criteria should form the basis of how a general safety duty could be discharged.
These safety criteria will require considerable refinement to assure public safety outcomes .
For example, this detail could include standards that support a safe HMI or clear guidance on
expectations for an ADSE to be able to identify ADS faults and disengage. Some of this detail
will be supported by the development of emerging international standards. The development
17
of this detail may allay some of the concerns that industry have previously raised with a general
safety duty approach.
While a general safety duty approach is supported, this does not preclude the need to also
apply some prescriptive obligations on parties where predictability and consistency are
desired.
8. If a general safety duty were introduced, which parties should it apply to?
Queensland considers that a general safety duty should be applied to ADSEs with associated
due diligence obligations on their directors. ADSEs will have the most direct control of the ADS
and are best placed to efficiently ensure its safety. This approach ensures that an ongoing
positive obligation is placed on these parties to assure the safety of ADSs during in-service.
There wil be a need to review this position in the future as the AV market matures and the
safety risks associated with other parties in the supply and use chain are better understood. A
chain of responsibility may eventual y be more appropriate, with a general safety duty imposed
on a broader range of parties so far as they can manage safety risks.
ADSE
The ADSE should be responsible for any failing of the ADS and related computer hardware,
software, sensors, cameras or other supporting devices. In circumstances where the ADSE is
not the manufa cturer of the vehicle, ADS, or components, the ADSE may need to progress
civil action against other parties in the supply chain to establish contributory negligence and
regain the cost of any damages associated with compensation claims, including reputational
damages. However, this single point of respons ibility is thought appropriate in the first instance
where so much is unknown about the technology and market.
The scope of the ADSE's responsibility must be clearly defined. For example, would an ADSE
be responsible for mechanical aspects of the vehicle not specific to the ADS (such as defective
brake pads or tyres) or not required for automated driving (such as mirrors or windscreen
wipers)? This needs consideration for two reasons:
• The cost of regulatory compliance wil vary significantly if an ADSE (not the vehicle's
manufacturer or registered owner) is held responsible for the entire vehicle, including
aspects unrelated to the ADS.
• Enforcement of safety breaches wil need to be undertaken by the responsible
regulatory body. The interaction between existing in-service regulators (State and
Territory governments and the National Heavy Vehicle Regulator) for non-ADS
components and an ADSE regulator will need to be clearly understood and defined.
Careful consideration is required as to how ADSE obligations and liabilities will be effectively
enforced. It is common corporate practice to minimise the liability and asset exposure of a
single legal entity by establishing separate unrelated legal entities with discrete responsibilities
(for example, franchising operations). As discussed in response to Question 5, appropriate
financial requirements will be critical. In addition, as discussed in response to Question 3, it
may be necessary to consider business models where multiple entities fulfil the role of ADSE.
ADSE Executive Officers
Queensland agrees that the imposition of duties on ADSE directors is required as they have
direct control over an ADSE's approach to safety and will make decisions that impact the safety
18
of ADSs. The imposition of personal criminal liability of directors must be consistent with the
nationally-consistent principles and guidelines for corporate offences.
Repairers
The extension of a general safety duty to repairers is not justified at this time, and as such the
associated increase in the regulatory task cannot be supported.
9. If a general safety duty were introduced, should it apply on public and private land
{such as residential driveways)?
Queensland is of the view that the application of a general safety duty should apply to
compliant vehicles (that is, those imported under the RVSA) at all times, on both public and
private land. This is necessary to support safe and practical outcomes given ADSEs are
unlikely to design and implement systems that have a different safety threshold depending on
area of operation.
Caution should be exercised in extending an in-service AV general safety duty to non-
compliant vehicles (that is, those that are not imported under the RVSA) that are designed and
used specifically for off-road or private land use. For example, the existing operation of AVs at
off-road mine sites is currently not regulated by transport legislation. In these cases,
Queensland considers that safety is sufficiently assured by alternative regulatory frameworks,
such as existing workplace health and safety regulation. As noted in response to Question 4,
consideration is required as to how AV safety requirements could be applied and enforced for
non-compliant vehicles that have a legitimate need to access the road network (for example,
farming machinery). These vehicles are not subject to RVSA import requirements and are
typically registered under State and Territory-based conditional registration schemes. It is
preferable that the principles being applied to assure the in-service safety of compliant AVs
are also applied to these non-compliant vehicle types.
10. Should people injured by breaches of the duty have a cause of action or should the
ability to enforce a general safety duty be limited to a regulator?
Queensland seeks to ensure that the proposed regime is workable at a practical level and
adequately protects those who suffer damage or loss arising from the use of an AV. For this
reason, Queensland supports, in-principle, a cause of action for people injured by breaches of
a general safety duty. A cause of action wil formalise the access to compensation for injured
persons that litigation in negligence would otherwise provide.
However, the operation of a cause of action must be carefully considered. A regulator should
have sufficient powers and resources to be the primary mechanism to assure ADSE
compliance. This is necessary for two key reasons:
• many individuals are unlikely to have sufficient financial ability to successful y pursue
litigation against large multinational corporations ; and
• a regulator is best placed to deal with systemic general safety duty breaches that have
fleet of network implications.
As the RIS identifies, a cause of action would allow a secondary avenue for the enforcement
of general safety duty breaches. This is thought to be a good outcome as it would allow for
judicial decision making to provide guidance on safety standards required under a general
safety duty, and this would further support an advancing safety standard over time.
Consideration wil need to be given to the jurisdiction or forum in which that cause of action
19
can be pursued. In addition, given power imbalances between parties and the specialty subject
matter, consideration might be given to the need for a specialist conciliatory body empowered
to resolve disputes between injured parties and regulated entities10• A conciliatory body can
be independent of the regulator.
The interaction between MAIi schemes and a cause of action must be clearly understood.
While insurance schemes are not intended to remove an injured person's common law rights,
it is important that policy makers look holistical y across regulatory frameworks to ensure they
do not create an environment that is unnecessarily burdensome on ADSEs.
Queensland supports placing responsibilities and obligations on ADSEs, but these must be
measured to ensure barriers do not emerge to commercial deployment of AVs. This risk can
be mitigated in several ways, including:
• As introduced above, a conciliatory body may be empowered to conciliate disputes.
This can often be less costly due to the processes and expertise of the body. To reduce
the risk of increased regulatory compliance, it is possible to provide that the conciliatory
body cannot accept a complaint if the complainant has initiated other legal proceedings.
• The new cause of action could not be an originating cause of action and must instead
'piggy-back' on another cause (for example, negligence, or breach of contract) 11 .
11. Do you think there should be specific driving rules for ADSs like the Australian Road
Rules, or would it be sufficient to simply require them to 'drive safely'?
To ensure community acceptance of AVs and assure the safety of al road users in a mixed
fleet environment, ADSs should drive in a consistent and predictable manner. While an ADS
may be capable of driving safely without prescriptive rules, other road users, including human
drivers, motorcyclists, cyclists and pedestrians, wil need to be able to understand and predict
the behaviour of AVs. Predictability and consistency is fundamental to safety and efficiency of
the road network.
Given predictability and consistency are sought, Queensland is of the view that prescriptive
rules are required to assure the safety of ADSs performing the dynamic driving task. It should
be noted that in the context of road rules, prescriptive rules still of involve a degree of discretion
(for example, numerous road rules involve concepts such as 'sufficient' or 'safe'). This supports
safe road use, subject to a range of factors, including environmental, road design, vehicle
characteristics. While Queensland supports prescriptive road rules for ADSs, a level of
flexibility will still be required to achieve safe outcomes.
It is likely that predictability and consistency wil be required for the foreseeable future even as
the number of AVs in the vehicle fleet grows. This is because other vulnerable road users like
pedestrians and cyclists wil stil need to be able to understand and predict the behaviour of
AVs. An exception this this may be if use cases emerge where AVs are operated on dedicated
infrastructure, without interaction with other roads users. However, the national framework
needs to support various deployment models.
12. What approach to regulating the dynamic driving task for ADSs do you prefer?
Please provide reasons.
°1 For example, the Queensland Human Rights Commission and the Australian Financial Complaints
Authority.
11 Such an approach is used for the cause of action provided in the
Human Rights Act 2019 (Qld)
20
Queensland considers that codifying road rules to be machine readable (Approach 1) may be
a desired goal, but this could be chal enging to implement in the first instance for the reasons
discussed below. Further consideration is required as to how substantive compliance with
existing State and Territory road rules (Approach 2) could be achieved via a national legislative
instrument, for example, using a purpose-built national law or existing RVSA tools (Approach
4). Queensland does not consider it appropriate to amend the Australian Road Rules (ARRs)
model law, designed to regulate humans, to incorporate ADSs. The merits of each approach
are discussed further below.
Approach 1 -
National AV driving code
Codifying rules to be machine readable aligns with modern public policy development that aims
to support the increasing automation of decision making and compliance.12 However, this
approach works best when working with prescriptive, deterministic rules that do not involve
judgement or discretion. As noted in response to Question 11, while road rules are referred to
as prescriptive , they often involve a level of discretion to support safe outcomes.13
The difficulty of codifying road rules that involve discretion should not be underestimated. As
an example, the existing road rule for overtaking provides that
a driver must not overtake a
vehicle unless they have a clear view of any approaching traffic and they can safely overtake
the vehicle.14 By comparison, a codified version of this rule for an ADS would be significantly
more detailed and prescriptive. The rule would need to consider many variables such as speed
(of the AV, vehicle to be overtaken and any oncoming vehicles), vehicle dimensions (of AV
and vehicle to be overtaken) sufficient overtaking distances, sensor sight distances, road
factors and weather conditions. Based on these variables, safe conditions for overtaking would
vary significantly.
Creating a duplicate set of road rules for AVs may also result in differences or inconsistencies
with human driver road rules over time. The process of amending a road rule would also be
more complex given the need to progress changes to jurisdictional legislation for human drivers
and a national AV driving code.
Approach 2- Substantive compliance with State and Territory road rules
This approach seems to have the most merit to initially manage an ADS to achieve consistency
with human drivers. An analysis of which road rules impact the dynamic driving task would be
required to identify which road rules an ADS needs to substantively comply with. The ADS
would need to be exempted from non-dynamic driving task obligations and these may be
subsequently assigned to another party such as a fall-back ready user.
This approach does not necessarily need to be considered as distinct from Approach 4 and
could be achieved without amendments to the ARRs. For example, a national legislative
instrument could require ADSEs to ensure their ADSs comply with relevant jurisdictional road
rules and point to State and Territory legislation. The compliance mechanisms for ADS
breaches of road rules would be contained in the national law, allowing for compliance and
enforcement activities that are appropriate for ADSEs. For example, this could involve a shift
away from individual penalties for specific road rule breaches to instead requiring a safety
12 For example, Digital.NSWRules as Code project
13 For example, section 126 of the
Transport Operations (Road Use Management -
Road Rules)
Regulation 2009 (Old), which requires drivers to keep a safe following distance.
14 Section 140 of the
Transport Operations (Road Use Managemen-t Road Rules) Regulation 2009
(Old)
21
management approach recognising that road rule breaches are likely symptomatic of fleet-
wide safety issues.
This approach would also ensure consistency in the rules that are applied to ADSs and human
drivers and is not dependent on pure harmonisation of road rules, which has proven historically
challenging to achieve.
It is acknowledged that this approach may be burdensome for ADSEs to comply with given
they would need to monitor changes to jurisdictional legislation and adapt their ADSs
accordingly. However, processes could be put in place to support this. For example, to assist
ADSEs, jurisdictions could be required to publish, and keep up to date, derogations from the
ARRs model law in a central and publicly available repository. This requirement may also act
as a disincentive for jurisdictions to progress inconsistent amendments.
Approach 3 -
Regulate via the ARRs
Queensland does not support the amendment of the ARRs to incorporate dynamic driving
obligations on ADS drivers. The ARRs, as implemented in each jurisdiction, are intended to
regulate the behaviour of human road users. Enforcement options reflect this and are intended
to incentivise compliance and safe behaviour through fines and driver licensing sanctions. A
different but complimentary approach is required for ADS drivers, who's actions will be
controlled by ADSEs.
There may be some cases where amendments to the ARRs are appropriate. For example,
prescriptive obligations on fall -back ready users could be included in the ARRs. This could
include, responding to requests to take back control or being sufficiently prepared to take back
control. This would ensure the rules governing human road users are contained in the same
instrument.
Approach 4 -
Rules made under the RVSA
This regulation of the dynamic driving task for ADSs at a national level is appropriate to align
with the broader regulation of ADSEs. Given compliance with road traffic laws is a safety
criterion included in the SoC and regulated under the RVSA, this approach is, at least in part,
being progressed already. Queensland supports the principle that ADSE compliance and
therefore ADS road rule compliance should be regulated nationally. Options should be
explored to understand how this could best be achieved, including using RVSA tools or a
purpose-built national law.
As noted above, this approach could work in conjunction with Approach 2, requiring
substantive compliance with jurisdictional-based road rules. If an ADS demonstrates non-
compliance with road rules, grounds could exist to take enforcement action. Such an approach
could support compliance at a fleet level to ensure safety issues are identified and addressed.
This would also avoid the need to adapt human-based driver frameworks for ADSs. Driver
licensing, the accrual of demerit points, suspensions and disqualifications serve to ensure the
safe driving behaviours of human drivers. These functions need not be adapted for ADSs, as
they are poorly suited for driving in-service safety outcomes for AVs. Instead, vehicle standards
compliance mechanisms could be used to manage the safety of ADSs under the control of
ADSEs and penalise breaches in a manner proportionate to the risk. This could involve vehicle
recalls, warnings, improvement notices, enforceable undertakings, prohibition orders, fines
and imprisonment, or the variation , suspension or revocation of the type-approval of the ADS.
22
In the future, this approach could also be used to give effect to a national AV driving code,
clearly linking dynamic driving task obligations with appropriate compliance and enforcement
options for ADSEs.
13. What functions and powers does the regulator need to effectively manage inservice
safety? Would these differ depending on whether the regulator is enforcing a
general safety duty, or only prescriptive duties?
Queensland general y agrees with the functions required to regulate the in-service safety of
AVs identified in the RIS. Functions could potentially include:
• to minimise the in-service safety risks of AVs;
• to provide advice, education, training and guidance to ADSEs and related entities in
relation to their rights, responsibilities and obligations;
• to promote public awareness of AV issues;
• to proactively and regularly monitor compliance;
• to make applications in court for injunctions, declarations or other orders for ensuring
compliance;
• to institute proceedings for offences;
• to reduce the incidence of AV related accidents;
• to undertake research into the incidence and prevention of AV related accidents; and
• maintain public confidence in the use of AVs.
Existing regulators are likely to be able to perform the bulk of the regulatory task in the first
instance.
The regulatory functions required are unlikely to change depending on whether a general
safety duty or prescriptive duties are applied. However, the specific resources required may
differ. For example, it enforcing a general safety duty, a greater resource requirement may be
needed tor proactive audit and investigation functions as well as education and information
sharing to support industry.
There has been significant scrutiny of the functions and powers of regulators in recent Roya l
Commissions15 and Inquiries1 6 . The findings of those inquiries should be borne in mind when
deciding on the powers of an in-service regulator. Experience has shown that it is pointless to
create a regulator that lacks the power or culture to enforce compliance or that is insufficiently
funded to do so. As such a regulator's powers wil necessarily need to be broad. To sufficiently
support the functions of monitoring and enforcement, the regulator should be empowered to
do anything to perform its functions. This should include specific investigatory, audit and
coercive powers.
15 The Royal Commission into
Misconduct in the Banking, Superannuation and Financial Services
Industry heavily criticised ineffective regulators. It was concluded that regulators that had been
reluctant to take enforcement action needed to change their culture.
16 The New South Wales Independent Commission Against Corruption into
Election Funding,
Expenditure and Disclosure conducted an analysis of international best practice regulatory principles.
This work highlighted the need for escalating interventions, an enforcement culture and powers to
investigate, audit and enforce.
23
As the RIS identifies, the potential for crossover or duplication of powers between existing and
new regulators is high. Future work focussing on compliance and enforcement powers must
be careful to form a holistic view of the existing regulatory landscape to ensure new regulatory
powers are appropriate and supplementary. Clarification of roles of enforcement and
compliance bodies wil be key in understanding regulatory responsibilities moving forward.
To support the administration of a general safety duty on ADSEs, mandatory no-fault reporting
requirements should be considered. This would require ADSEs to report safety issues to the
regulator in a timely manner. However, ADSEs could have confidence that they would not be
subject to punitive regulatory action in the first instance. A regulator could work with an ADSE
to ensure the safety issue is remedied and improved safety management practices are put in
place to prevent the same or similar issues occurring in the future. If the ADSE failed to take
appropriate action to remedy the safety issue or put in place improved controls, the regulator
would have cause to take more significant action, including imposing penalties. This approach
works well in several industries, for example commercial aviation and rail safety.
14. Have we accurately described the scope of the regulatory task? Please provide data
and evidence where possible to support your answer.
It is not possible to accurately describe the scope of the regulatory task at this time. This is due
to several factors, briefly summarised below.
• The scope of regulation at first-supply remains unknown, in particular the reach to cover
some in-service safety risks.
• Insufficient analysis has been conducted on the approach to regulating in-service
safety. For example, the impact of a general safety duties approach on the need to
subsequently reform existing regulatory frameworks.
• Compliance and enforcement options have not been considered.
• There is no clear and definitive view as to the likely deployment timeframes or the
nature of the AV industry in Australia.
Queensland has conducted a scoping activity to capture the scope of current in-service safety
regulation and the possible impacts of AVs. A summary of outcomes of this scoping activity is
included at
Appendix C. The scope of current in-service safety regulatory functions is very
broad, covering the regulation of drivers , vehicles, compliance activities, accreditation
schemes, passenger transport, heavy vehicles, safety, road management and administration.
This analysis has revealed that there are many issues to be resolved before the scope and
scale of the regulatory task for AV in-service safety can be accurately estimated. In many
cases, it is likely that alternative regulatory tools for AVs can be used to achieve the same
safety outcomes as non-automated vehicles. For example, driver licensing may be ineffective
in ensuring appropriate education and training is provided to AV users and existing vehicle
inspection regimes may not be required to assure the safety of the ADS. Queensland aims to
continue this analysis and invite other States and Territories to contribute. The completion of
this analysis will help to build a common understanding of which regulatory functions should
be performed by the Commonwealth and which wil be retained by States and Territories.
It is possible that one or more of the uptake scenarios provided in the RIS will eventuate. As
AVs are progressively deployed their perceived value will likely increase while their costs wil
likely decrease. This is expected to result in the progression of uptake from scenarios 3 or 4
(limited or minimal adoption) to scenarios 1 or 2 (high private and/or commercial update). There
24
may be a case for government intervention to influence uptake scenarios. For example,
modelling work conducted in Queensland suggests that the benefits of AVs are predominately
realised in a commercial fleet sharing model. Such government market intervention is not
considered directly within the scope of the NTC's current mandate. However, it is noted that
safety assurance regulation may influence market deployment models. For instance, an
ongoing positive obligation on an ADSE to assure the safety of their ADSs may lead to a more
fleet sharing deployment model for AVs, where ADSEs can manage risks more directly, as
opposed to private ownership and use.
15. Have we accurately captured the benefits of the regulator:
a. being a government body or an independent body?
b. being a national body or State and Territorylevel bodies?
c. being an existing body or a new body?
Broadly, the RIS has captured the benefits of each variable that supports an analysis of
appropriate regulatory governance arrangements. Queensland of ers the following comments
in relation to each set of variables.
National vs State and Territory
Queensland is of the view that the governance arrangements should support national
consistency and the least amount of fragmentation of regulatory responsibilities.
There will likely be significant chal enges in enforcing a general safety duty on ADSEs at a
state and territory level when ADSEs wil likely be large corporate entities deploying vehicles
to, and operating in, a national market. Safety issues within the ADSEs control will most likely
be systemic fleet-wide issues that should be addressed nationally. Governance arrangements
are needed that deliver a single point of accountability for ADS safety and ADSE compliance.
As such, Queensland supports the leveraging of the Commonwealth Government's ability to
regulate corporations to oversee ADS safety and ADSE compliance holistically through first-
supply and in-service.
It is acknowledged that in the absence of a single national regulator overseeing all in-service
safety regulation, there wil be a need for states and territories to complement the regulatory
functions of the Commonwealth. As such, there is a need for formal national governance
arrangements to establish clear roles and responsibilities for all parties.
Queensland is of the view that a new governance body to coordinate the development and
implementation of the national AV regulatory framework is needed to ensure Australian
governments work col aboratively and deliver workable regulatory solutions in advance in initial
AV deployments. This approach could provide for a more agile decision-making process and
place accountability more clearly on all Australian governments to deliver outcomes. As noted
in the introduction, an Inter-Governmental Agreement , or similar coordination tool, could
support this. An il ustrative example of a governance arrangement for the national framework
is provided at
Appendix B. This body would also be able to perform an oversight function for
the framework during near-term deployment of AV technology. This could include establishing
25
close working relationships with industry17 to ensure regulatory frameworks are achieving the
desired outcomes. The establishment of an industry reference group may be appropriate.
As the AV market matures, and there is a greater understanding of the AV in-service safety
regulatory task, there may be a case for a national regulator to be established, to oversee all
the associated regulatory functions.
Existing vs new bodv
Queensland is of the view that the regulatory oversight arrangements should consider how
best to utilise existing resources to minimise upfront costs. For this, and other reasons
articulated in this response, Queensland is of the view that the Commonwealth Government,
as an existing, national, government entity is well placed to implement a general safety duty
obligation on ADSEs, complemented by the states and territories managing other elements of
in-service safety.
Government vs independent
Queensland does not have a fixed view in relation to if the end-state regulator should be a
government or an independent body. Options will likely exist for existing regulators to be
considered that are either government or independent. A further analysis is required as to
appropriate regulatory entities, if the outcomes of the consultation RIS support Queensland's
view in relation to the need for national regulation utilising existing regulatory resources. Critical
to this analysis will be the ability for the regulatory body to exercise required functions and
powers and ensuring appropriate communication and referral protocols can be established for
states and territories.
16. What are your initial views on how the regulator should be funded?
Considering current and foreseeable funding constraints on all Australian governments, the
desired goal should be that the costs of funding the regulatory task, including the administration
of one or more regulators, should be fully recovered. Without a clear view on the scale or cost
of regulatory activities, it is premature to decide on a specific funding model. In addition to
clarifying the scale and cost of the regulatory task, further work should clearly identify where
there are expected to be cost savings, to industry and governments, that could offset funding
contributions. Given the size of the AV industry and fleet wil be small for some time, it is
possible that funding wil initially need to be supplemented by government contributions.
However, once the industry has matured, the goal should be to move to a ful cost recovery
model.
At a transactional level, the funding approach should not rely on jurisdictional-based
registration systems to col ect revenue by default. This is thought to be an inefficient model as
it relies on contributions from consumers only and, in the case of a national regulator, requires
jurisdictions to act as an intermediary agency. Alternative collection methods may be available
such as ADSEs paying an annual operation or accreditation fee and a fee for all ADSs operated
under their supervision. This could be a similar approach to the way Transport Certification
Australia is funded where funding is partly provided by fees paid by technology providers, such
as Intelligent Access Program Service Providers. Implications for road use charging must be
carefully considered when designing future funding models. The funding of an AV in-servi ce
17 In addition to established manufacturers and ADSEs, industry groups could include academia as
well as emerging technology research entities (for example, the Defence Cooperative Research
Centre for Trusted Autonomous Systems).
26
regulator or regulators should not adversely impact broader heavy vehicle road use charging
or market reform programs.
However funded, it wil be important that regulatory bodies have sufficient funding to enable
effective monitoring and enforcement powers.
17. Have we adequately and accurately captured the key legislative implementation
models for inservice safety of automated vehicles?
The available legislative implementationmodels are currently presented in a way which
confuses approach and responsibility. It is recommended that the legislative implementation
models be presented in a manner that more easily identifies the responsible level of
government. For example, the various options could be discussed as follows.
State and Territorv-based legislation
• Ad hoc - State and Territories make necessary amendments to their own legislation,
perhaps supported by agreed principles or approaches. Derogations and
inconsistencies are almost certain.
• Model law - Subsequently requiring legislative implementation in each State and
Territory. Derogations at time of implementation or subsequent amendments are likely.
• Applied law - Once implemented, derogations are less likely, although possible. Most
significant issue is that not all State and Territories may implement the applied law (as
is the case for the HNVL).
Commonwealth legislation
• Commonwealth law - With separate State and Territory legislation to cover issues
outside of Commonwealth jurisdiction. State and Territory legislation could be ad hoc,
model law or applied law.
• Commonwealth applied law - As part of application of the applied law, State and
Territories would extend the coverage of the national law to cover any gaps in
Commonwealth jurisdiction.
• Complete Commonwealth law - Requiring a referral of State and Territories powers to
cover issues outside of Commonwealth jurisdiction.
Specific commentary about the merits of these various approaches is provided in response to
Questions 18 to 21.
18. Do you think there are any transitional or constitutional issues that could arise when
Australia establishes a national law for automated vehicles? If so, please explain
what the issues are and if they differ depending on the legislative implementation
model used.
Constitutional issues
The RIS adequately considers the potential constitutional issues at a high level. Based on
available informat ion, Queensland considers that the Commonwealth Government can
legislate ADSEs and their directors as well as remote drivers under existing constitutional
heads of power to regulate corporations and communications without encroaching on existing
state and territory functions.
27

Specific constitutional issues will need to be considered further detail when there is more
certainty as to the potential scope and application of the national law.
National legislative schemes introduced in Queensland raise the fundamental legislative
principle that schemes should have suf icient respect to the institution of parliament. All
national law options raise this issue and to address this clear justification for the benefits of
national uniformity will be required.
Transitional issues
Queensland considers that each model wil give rise to its own transitional issues, both
legislatively and practically, that will largely depend on the content and application of a national
law. Queensland's initial view is that the proposed governance and legislative model proposed
throughout this response is likely to have the least transitional issues in the first instance. This
is because it takes advantage of existing regulatory resources at Commonwealth, state and
territory level.
The final legislative implementationmodel will require a detailed review of existing state and
territory legislative frameworks to manage the interaction with a national law. The transition of
parties who were previously unregulated or were regulated under different circumstances will
also need to be considered. This is thought to be less of an issue in relation to AVs, given the
lack of an existing industry.
A key dif erence between legislative implementation models is the amount of time it takes to
adopt and maintaineach model. For example, a Commonwealth law would only need to pass
through one Parliament, while state or Commonwealth applied law or model law needs to be
pass through all Australian Parliaments, at least initially. Any amendmentsto model legislation
are usually adopted by jurisdictions over a period of 12 months or more (depending on if
subordinate or primary legislation changes are required), whereas amendments to an applied
law can apply automatical y if states have applied the law as in force from time to time.
Other transitional considerations include:
• Providing a regulator suf icient time to upskill and develop operational policies and
procedures.
• Establishing communication protocol between regulators.
• Having appropriate data sharing capabilities.
• Engaging with law enforcement regarding new of ences and resources.
• Workforce impacts both within and outside of government.
• Determining penalties for offences to apply consistently, and how the offences wil be
treated in courts (each jurisdiction has different rules about what automatically
constitutes a summary offence).
• Understanding how much control each jurisdiction holds if po wer is transferred to a
regulator.
• Post-implementation review and evaluation.
28
19. Have we accurately described how each option could work as well as the advantages
and disadvantages of each option?
Queensland considers that the options provided are described sufficiently. Discussion about
the merits of the options is provided in response to Question 20.
20. Which option most effectively addresses the problem statement? Please consider
your answer in conjunction with the PwC costbenefit analysis.
Of the options provided, Queensland is of the view that a hybrid model that builds on Option 3
will most effectively addresses the problem statement. Queensland supports a single national
regulator enforcing a general safety duty on ADSEs , with due diligence obligations on their
directors, established under Commonwealth legislation. Further analysis is required to
understand the exact legislative approach, including how best to manage elements outside of
the Commonwealth's jurisdiction and how to preserve State and Territory powers to support
effective regulation and enforcement of a mixed fleet. The merits of each option are discussed
further below.
Option 1 -
Current approach
Queensland considers that this option does not achieve the fundamental goal national
consistency. Without coordination, jurisdictions wil develop policy and regulation to support
the deployment of AVs in an incremental and disparate way. Regulat ory frameworks may be
inconsistent, overlapping or leave gaps. Industry compliance wil be chal enging and barriers
to AV deployment will arise.
Option 2- State and Territory regulators, model law, prescriptive or general safety duties
Although existing State and Territory in-service safety regulators are well established and have
significant resources at their disposal, this option wil result in the regulation of the ADSE, a
body operating in a national market, at a jurisdictional level. This is not supported as it will be
inefficient in assuring the safety of the national AV fleet. Multiple ADSE regulators will also
result in inconsistent approaches, even if supported by model law. This is because operational
decisions and jurisdictional risk appetites wil lead to differences in compliance and
enforcement approaches.
Model law is also considered an ineffective and inefficient way of achieving national
consistency of overall safety obligations on ADSEs. Model law will likely result in jurisdictional
variances at legislative implementation. In addition, both initial implementation and subsequent
amendment can take substantial periods of time to implement as changes are required to
progress through all jurisdictional Parliaments and wil be scheduled alongside other priorities.
Implementation delays wil exacerbate national inconsistencies.
Option 3 -
Single national regulator, Commonwealth applied law, general safety duties
This option is likely to achieve the most national consistency. Queensland supports the
regulation of ADSEs at a national level. This is necessary to ensure ADSEs are regulated
consistently across Australia and risks under their control are mitigated uniformly across the
national fleet. As such, the Commonwealth's existing ability to regulate corporations should be
investigated to regulate ADSEs holistical y through first-supply and in-service, including the
application of a general safety duty on ADSEs.
Further analysis is required to determine the best legislative implementation approach. Using
existing constitutional heads of power to regulate corporations and communications would
29
eliminate the risk of national inconsistenciesemerging in relation to the regulation of the ADSE
and would enable to efficient implementation and maintenance through a single parliament.
This could be supported by prescriptive duties on human users, for example fall-back ready
users, in jurisdictional legislation. It may be easiest to amend the ARRs to achieve this.
States and territories wil need to retain some powers to investigate potential ADS issues
before referring issues to a national regulator. In addition, States and territories may also
require some direct powers to address critical safety issuesthat are presented on their road
networks. This should be limited to dealing with specific safety risks relating to one or more
vehicles. Issues impacting the broader fleet should be addressed national y.
Option 4 -
Single national regulator, State and Territory applied law, general safety duties
As with Option 3, the national regulation of ADSEs is supported. However, some practical
issues make Option 4 less suitable than Option 3.
• State and Territory applied law introduces the potential for inconsistencies and
derogations to emerge on implementation. Critically this option allows for some
jurisdictions to refuse to implement the national law (for example, the HNVL). Even
where al jurisdictions implementapplied laws, experience from other transport reforms
(for example, Rail Safety) has shown that implementation can take many years as
States and Territories progressively sign up. In the context of regulating ADSs supplied
to a national market, this implementation delay would almost certainly introduce
barriers to deployment.
• It is not clear if State and Territory applied law will be appropriate to regulate ADSEs
operating in a national market. State and Territory applied law, even when administered
by a single national regulator, still requires enforcement and prosecution at a
jurisdictional-level. This is not thought appropriate for ADSEs.
21. Is there another option or combination of options which could more effectively
address the problem statement? In particular, please consider whether there is a
preferable combination of the elements of each option (governance arrangements,
duties, legislative implementation).
Refer to the 'Key issues ' section at the introduction of this response for Queensland's view as
to the best combination of each aspect of the overall regulatory model.
30
RESPONSE TO COST BENEFIT ANALYSIS (CBA)
Queensland acknowledges the inherent difficulty of conducting a CBA on the merits of
regulating the in-service safety of AVs, including consideration of specific options, when limited
data is available. Without specific data, the analysis must necessarily be assumption driven.
While Queensland agrees that the assumptions made throughout the CBA are reasonable, the
results of the CBA must be considered indicative only.
The outcomes of the CBA support Queensland's view that specific regulation of in-service
safety for AVs is required and that a general safety duty on ADSEs with due diligence
obligations on directors is appropriate. To further distinguish between the impacts of Options
3 and 4, Queensland's commentary in-response to Question 20 above should be considered.
Specifically, possible implementation delays associated with State and Territory-based applied
law will likely lead to delayed benefits.
Commentary made throughout the CBA indicates that further detail about the regulatory
proposal is required to support a quantitative analysis of costs and impacts. Queensland
supports this and urges the NTC and all Australian Governments to work together to start to
flesh out regulatory proposals with sufficient detail to inform meaningful impact analysis.
When further policy detail is agreed, the revised CBA should consider the broader impacts to
industry and the community. This should include:
• Impacts on local industries - wil safety obligations imposed on ADSEs create market
monopolies that prevent start-ups, small and medium sized local enterprises entering
and competing in the market? For example, the impact on aftermarket industries such
as repairers, modifiers and vehicle inspectors should be considered.
• Regional impacts - will the costs and benefits will be equitably distributed across both
urban and regional areas, including rural and remote areas?
• Impact on service delivery - for example, will there be any additional costs associated
with policing and emergency response?
Additional data sources
Queensland has commissioned several projects with publicly available reports that may
support PwC's further analysis. These include:
• The Department of Transport and Main Roads commissioned KPMG to complete a
strategic options assessment to estimate the expected economic and financial impact
of emerging mobility technologies in South East Queensland, including AVs18 . The
study focusses on how delivery models for AVs will impact net benefits and provides
valuable information about overall benefits.
• CSIRO's Data 61, in partnership with the Department of Innovation, Tourism, Industry
Development and the Commonwealth Games, has examined the risks and
opportunities for Queensland associated with a future digital y enabled economy19.
This work considered the impact to jobs of digital transformation and automation,
including regional impacts.
18 http
s://www.tmr.qld.qov.au/Community-and-environment/Planning-for-the-future/Emerging-
technologies-and-trends
19 https
://www.data61 .csiro .au /en /Our -Work/Future-Cities/Planning-sustainable-infrastructure/Q-
Foresight
31
APPENDIX A ILLUSTRATION OF PROPOSED APPROACH TO AV INSERVICE SAFETY
The following examples are provided to il ustrate how an interim AV in-service regulatory model
could work in practice. It should be noted that detailed compliance and enforcement
mechanisms wil require substantially more analysis and policy development.
Across the examples, fictional entities are referred to as follows:
•
Universal Motors - Manufacturer that is responsible for the design and construction of
motor vehicles. This includes sourcing and installing relevant vehicle components, such
as an ADS. Universal Motors self-selects as the ADSE as part of importation
requirements. The ADSE is the entity that is responsible for assuring the safety of the
ADS.
•
Commonwealth Regulator - Entity regulating the ADSE under Commonwealth law.
•
State Regulator - Existing state-based transport and/or road agencies.
•
Police Officer - Existing state-based enforcement officer.
Assumptions
• Universal Motors is the ADSE and must self-certify against 11 agreed safety criteria and 3
general obligations as part of type-approval of the vehicle at first-supply. DITCRD has
oversight of first-supply under the RVSA.
• Under Commonwea lth law, Universal Motors is required to comply with a general safety
duty to ensure the ongoing safety of the ADS whilst in-service. Universal Motors directors
also have due diligenc e obligations to ensure that the company effectively exercises its
safety duty.
• Compliance with a general safety duty requires Universal Motors to have appropriate safety
management practices in place to detect and minimise the on-road ADS risks. The
Commonwealth Regulator has powers to audit and investigate Universal Motors to ensure
their safety management practices are holistic, best-practice, up-to-date and being
exercised.
• Commonwealth law mandates a minimum data set that Universal Motors must make
available for enforcement and insurance purposes to determine liability in the event of an
incident (for example, a crash or breach of road rules). Legislative requirements include
when, to who and in what form data must be made available. First-supply criteria include
requirements on ADSEs to demonstrate how they wil make relevant data available to
police officers at roadside.
• The Commonwealth Regulator has obligations to keep records of reported safety incidents
to manage the national AV fleet. The Commonwealth Regulator investigates major or
recurring issues and works proactively with ADSEs (such as Universal Motors) to resolve
issues and update safety management practices to prevent further issues. This includes,
issuing improvement notices and enforceable undertakings. Where ADSEs are unwil ing
to adapt practices, or there is evidence of gross negligence, the Commonwealth Regulator
can take punitive action against ADSEs and their directors. This can range from fines to
the deregistration of an ADSE or criminal proceedings against directors.
• The State Regulator has powers to investigate incidents that occur on roads within their
jurisdiction. This includes incidents involving AVs. To support this, the State Regulator has
appropriate access to relevant data to determine fault and liability.
32
• An Inter-Governmental Agreement, or similar coordination tool, supports col aborative
governance between the Commonwealth Regulator and State Regulators. This agreement
formalises roles and responsibilities. For example, the agreement could empower the
Commonwealth Regulator to investigate issues at the request of State regulators.
• State-based CTP schemes cover injuries caused by crashes involving AVs. Injured parties
can access appropriate rehabilitation and compensation in a timely manner. Insurers have
recovery rights to recover costs from at-fault parties, this includes ADSEs (Universal
Motors).
Scenario 1: ADS breaches road rules
A police officer observes a level 3 Universal Motors AV travelling at a speed faster than the
signed speed limit and intercepts the vehicle using lights and sirens. Under state-based road
rules the fall-back ready user has obligations to respond to police direction and overrides the
ADS and stops the vehicle safely.
Information available to the police officer indicates that the ADS was in-control of the vehicle
at the time of the breach of road rules. Under amended state-based law, the police officer has
the power to issue a defect notice for a vehicle if an ADS is suspected of being faulty. The
defect notice prohibits the vehicle's ADS being engaged until the issue is investigated and
resolved. A copy of the defect notice is sent to the registered operator, Universal Motors and
Commonwealth Regulator.
Universal Motors investigates the issue and identifies that the ADS has a fault that means it is
unable to accurately detect speed signs in certain environmental conditions (for example, due
to glare). Universal Motors reports the issue to the Commonwealth Regulator under no-fault
reporting obligations. Universal Motors voluntarily disables impacted ADSs fleet-wide and
advises the Commonwealth Regulator. Universal Motors develops and issues a software
update to the fleet that eliminates the risk of recurrence. Once the software update is installed,
ADSs can be reenabled. To satisfy Universal Motors' safety duty, the software update could,
for example, either improve the vehicle's ability to 'see' signs in glary conditions or alternatively
update the vehicles ODD to prevent the ADS being engaged in glary conditions.
Scenario 2: Fal -back readv user at-fault in crash involving an ADS
A level 3 Universal Motors AV is involved in a crash that is investigated by the State Regulator.
This includes data supplied by Universal Motors. The investigation reveals that the fall-back
ready user was asked to take-back control of the vehicle in a manner consistent with the
vehicle's type-approval at first-supply. Vehicle data shows the fall-back ready user did not
respond to the ADSs requests to take back control, causing the crash. The State Regulator
takes action against the fall-back ready user who has breached state-based road rules that
requires fall-back ready users to take back control of AVs in a timely manner when requested.
Penalties could include a fine and potentially driver licence demerit points.
The State Regulator reports the issue to the Commonwealth Regulator for central recording to
enable broader trends to be monitored. If trends indicate that Universal Motors is involved in a
significant number of incidents, the Commonwealth Regulator may investigate further to
examine the appropriateness of safety management controls, including the safety standard
being applied to take-over requests. Safety standards can be updated by the Commonwealth
Regulator as required. For example, following a series of crashes where fall-back ready users
were unable to respond to take-back requests appropriately, the adequacy of a vehicle's
Human Machine Interface can be considered, and updates may be required.
33
Scenario 3: ADS at fault in crash
A level 3 Universal Motors AV is involved in a crash that is investigated by the State Regulator.
This includes data supplied by Universal Motors. The investigation reveals that the ADS was
engaged at the time of the crash and had not indicated any issues or faults to the fall-back
ready user in advance. The State Regul ator refers the issue to the Commonwealth Regulator
who investigates the crash further.
The Commonwealth Regulator works with Universal Motors to diagnose and resolve the safety
issue . If the safety issue is suspected to impact the broader fleet, Universal Motors may
volunta rily decide to disable impacted ADSs across its fleet. Or alternatively, the
Commonwealth Regula tor may mandate this. Similar to Scenario 1, Universal Motors
investigates and resolves the issue and advises the Commonwealth Regulator.
Scenario 4: ADS equipped vehicle requires a vehicle inspection at registration transfer
A registered owner of a level 3 Universal Motors AV has decided to sell their vehicle to another
person and transfer the vehicle registration. Under state-based law, a safety certificate
inspection is required to be completed by the State Regulator or an accredited third-party
inspection station.
As an interim measure, inspection requirements are updated to require a statement from
Universal Motors as to the continued safety of the ADS. This is in addition to the existing
inspection of the mechanical components of the vehicle.
In the future , there may be no need for AVs to be physically inspected at time of registration
trans fer. Instead, the general safety duty requires Universal Motors to maintain systems that
ensure the vehicle, including the ADS, is always safe. This could be achieved by on-board
vehicle diagnostics allowing issues to be proactively addressed before a fault leads to a safety
critical event. The Commonwealth Regulator could be informed of major issues under no-fault
reporting requirements.
Scenario S:·
Safety critical ADS software updates are not installed
A fau lt detected in one of the scenarios requires a safety critical ADS software update to be
instal ed. Under a mixture of first-supp ly arrangements and a general safety duty, the ADSE
must ensure that the ADS cannot be engaged until the software update has been installed.
If the vehicl e is subsequently detected in use on a road, Universal Motors has breached its
general safety duty. If detected by a State Regulator the issue is referred to the Commonwealth
Regulator who can work proactively with Universal Motors to remedy the breach and/or take
punitive action against Universal Motors.
Scenario 6: Community complaints about ADS safety
Vehicle owners or other road users who witness or are concerned by potential safety issues
associated with Universal Motors' AVs can report issues directly to Universal Motors and the
Commonwealth Regulator. The Commonwealth Regulator has powers to investigate issues at
its discretion. Issues that are reported to a State Regulator and clearly relate to the safety of
an ADS can be referred to the Commonwealth Regulator.
34
Document Outline
- Submission-TMR-in-service-safety-for-AVs-part-converted.pdf
- QUEENSLAND GOVERNMENT RESPONSE TO THE NATIONAL TRANSPORT COMMISSION CONSULTATION REGULATORY IMPACT STATEMENT ON THE IN SERVICE SAFETY FOR AUTOMATED VEHICLES
- QUEENSLAND GOVERNMENT RESPONSE TO THE NATIONAL TRANSPORT COMMISSION CONSULTATION REGULATORY IMPACT STATEMENT ON THE IN SERVICE SAFETY FOR AUTOMATED VEHICLES
- Queensland appreciates the opportunity to comment on the National Transport Commission 's (NTC) consultation Regulatory Impact Statement (RIS) on In-service safety of Automated Vehicles (AVs). The RIS examines the need for specific regulation to assur...
- Queensland appreciates the opportunity to comment on the National Transport Commission 's (NTC) consultation Regulatory Impact Statement (RIS) on In-service safety of Automated Vehicles (AVs). The RIS examines the need for specific regulation to assur...
- Queensland supports the application of a general safety duty on Automated Driving System Entities (ADSEs) , with director due diligence obligations on ADSE Executive Officers. This is a future-focused approach and places an overriding positive safety ...
- Queensland supports the application of a general safety duty on Automated Driving System Entities (ADSEs) , with director due diligence obligations on ADSE Executive Officers. This is a future-focused approach and places an overriding positive safety ...
- ADSEs will likely be large corporate entities deploying vehicles to, and operating in, a national market. As such, there will be significant challenges in enforcing a general safety duty on ADSEs at a State and Territory level. Safety issues within th...
- ADSEs will likely be large corporate entities deploying vehicles to, and operating in, a national market. As such, there will be significant challenges in enforcing a general safety duty on ADSEs at a State and Territory level. Safety issues within th...
- across Australia and risks under their control are mitigated uniformly across the national fleet. The Commonwealth Government is well placed to holistically manage ADSEs through first supply and in-service, including the application of a general safe...
- across Australia and risks under their control are mitigated uniformly across the national fleet. The Commonwealth Government is well placed to holistically manage ADSEs through first supply and in-service, including the application of a general safe...
- Areas considered out of scope will still need to be considered to ensure regulatory frameworks are holistic. This includes:
- Areas considered out of scope will still need to be considered to ensure regulatory frameworks are holistic. This includes:
- 2. Have we correctly identified the parties with an influence on the in-service safety of automated vehicles and accurately described their role? If you identify additional parties, please explain what their role is.
- 2. Have we correctly identified the parties with an influence on the in-service safety of automated vehicles and accurately described their role? If you identify additional parties, please explain what their role is.
- Queensland supports the list of identified parties . For completeness, one additional party is suggested below. Analysis of the role and influence of specific parties is included in response to Question 3.
- Queensland supports the list of identified parties . For completeness, one additional party is suggested below. Analysis of the role and influence of specific parties is included in response to Question 3.
- Comprehensive motor insurers , commercial insurers , MAIi insurers, public liability insurers and workers compensation insurers are not identified at any level of influence. However, insurers may have substantial influence over many of the parties ide...
- Comprehensive motor insurers , commercial insurers , MAIi insurers, public liability insurers and workers compensation insurers are not identified at any level of influence. However, insurers may have substantial influence over many of the parties ide...
- demonstrate: how remote drivers will be engaged, trained, be fit to operate and maintain sufficient vigilance and situational awareness; how the vehicle will pass control over to a remote driver; how the remote driver will effectively control the v...
- demonstrate: how remote drivers will be engaged, trained, be fit to operate and maintain sufficient vigilance and situational awareness; how the vehicle will pass control over to a remote driver; how the remote driver will effectively control the v...
- The RIS assumes that modifier s will alwaysbe a repairer, registeredowner or ADSE. However, Queensland considers that modifiers need to be considered independently of other parties. Based on existing experience, modifiers are not always one of these p...
- The RIS assumes that modifier s will alwaysbe a repairer, registeredowner or ADSE. However, Queensland considers that modifiers need to be considered independently of other parties. Based on existing experience, modifiers are not always one of these p...
- The nature of the market for AV repairs is unknown. Currently, independent repairers are often technically unab le or unwilling to make repairs to Advanced Driver Assist Systems. These repairs are typically undertaken by the vehicle's manufacturer.A s...
- The nature of the market for AV repairs is unknown. Currently, independent repairers are often technically unab le or unwilling to make repairs to Advanced Driver Assist Systems. These repairs are typically undertaken by the vehicle's manufacturer.A s...
- not operating under the control of an ADSE, will have on ADS safety in the future. The need for additional regulation of repairers is discussed in response to Question 6.
- not operating under the control of an ADSE, will have on ADS safety in the future. The need for additional regulation of repairers is discussed in response to Question 6.
- It should be noted that vehicle inspectors are independent third parties who are distinct from transport compliance officers (often referred to as inspectors). Like modifiers and repairers, the role and influence of vehicle inspectors is unknown. De...
- It should be noted that vehicle inspectors are independent third parties who are distinct from transport compliance officers (often referred to as inspectors). Like modifiers and repairers, the role and influence of vehicle inspectors is unknown. De...
- Governments will not be able to tailor infrastructure to AV technologies unless there is clear standardisation of infrastructure requirements. For example, line markings, digital maps and signage requirements. In addition, even if there is standardisa...
- Governments will not be able to tailor infrastructure to AV technologies unless there is clear standardisation of infrastructure requirements. For example, line markings, digital maps and signage requirements. In addition, even if there is standardisa...
- There is a need for greater exploration of the assumptions made around the first-supply approach. For example, will first-supply regulation under the RVSA apply a point in time safety standard or an advancing safety standard? The traditional model is ...
- There is a need for greater exploration of the assumptions made around the first-supply approach. For example, will first-supply regulation under the RVSA apply a point in time safety standard or an advancing safety standard? The traditional model is ...
- The RIS identifies the existing regulatory requirements that apply to compliant vehicles. It should be noted that jurisdictions have varying approaches to the registration of non-compliant vehicles. In Queensland, this is known as the conditional regi...
- The RIS identifies the existing regulatory requirements that apply to compliant vehicles. It should be noted that jurisdictions have varying approaches to the registration of non-compliant vehicles. In Queensland, this is known as the conditional regi...
- To the extent that AVs will be used to transport dangerous goods, there may be relevant
- To the extent that AVs will be used to transport dangerous goods, there may be relevant
- There are several possible approaches to ensuring users of AVs are appropriately educated and trained. The applicationof fir st-supply regulation and the role of various parties in the AV
- There are several possible approaches to ensuring users of AVs are appropriately educated and trained. The applicationof fir st-supply regulation and the role of various parties in the AV
- 6. Do you think the parties with an influence on in-service safety are sufficiently covered by Australia's current legal frameworks?
- 6. Do you think the parties with an influence on in-service safety are sufficiently covered by Australia's current legal frameworks?
- 8. If a general safety duty were introduced, which parties should it apply to?
- 8. If a general safety duty were introduced, which parties should it apply to?
- of ADSs. The imposition of personal criminal liability of directors must be consistent with the nationally-consistent principles and guidelines for corporate offences.
- of ADSs. The imposition of personal criminal liability of directors must be consistent with the nationally-consistent principles and guidelines for corporate offences.
- The extension of a general safety duty to repairers is not justified at this time, and as such the associated increase in the regulatory task cannot be supported.
- The extension of a general safety duty to repairers is not justified at this time, and as such the associated increase in the regulatory task cannot be supported.
- may be a case for government intervention to influence uptake scenarios. For example, modelling work conducted in Queensland suggests that the benefits of AVs are predominately realised in a commercial fleet sharing model. Such government market inter...
- may be a case for government intervention to influence uptake scenarios. For example, modelling work conducted in Queensland suggests that the benefits of AVs are predominately realised in a commercial fleet sharing model. Such government market inter...
- Queensland is of the view that the governance arrangements should support national consistency and the least amount of fragmentation of regulatory responsibilities.
- Queensland is of the view that the governance arrangements should support national consistency and the least amount of fragmentation of regulatory responsibilities.
- regulator or regulators should not adversely impact broader heavy vehicle road use charging or market reform programs.
- regulator or regulators should not adversely impact broader heavy vehicle road use charging or market reform programs.
- • Ad hoc - State and Territories make necessary amendments to their own legislation, perhaps supported by agreed principles or approaches. Derogations and inconsistencies are almost certain.
- • Ad hoc - State and Territories make necessary amendments to their own legislation, perhaps supported by agreed principles or approaches. Derogations and inconsistencies are almost certain.
- • Commonwealth law - With separate State and Territory legislation to cover issues outside of Commonwealth jurisdiction. State and Territory legislation could be ad hoc, model law or applied law.
- • Commonwealth law - With separate State and Territory legislation to cover issues outside of Commonwealth jurisdiction. State and Territory legislation could be ad hoc, model law or applied law.
- The RIS adequately considers the potential constitutional issues at a high level. Based on available informat ion, Queensland considers that the Commonwealth Government can legislate ADSEs and their directors as well as remote drivers under existing c...
- The RIS adequately considers the potential constitutional issues at a high level. Based on available informat ion, Queensland considers that the Commonwealth Government can legislate ADSEs and their directors as well as remote drivers under existing c...
- Queensland considers that each model will give rise to its own transitional issues, both legislatively and practically, that will largely depend on the content and application of a national law. Queensland's initial view is that the proposed governanc...
- Queensland considers that each model will give rise to its own transitional issues, both legislatively and practically, that will largely depend on the content and application of a national law. Queensland's initial view is that the proposed governanc...
- eliminate the risk of national inconsistenciesemerging in relation to the regulation of the ADSE and would enable to efficient implementation and maintenance through a single parliament. This could be supported by prescriptive duties on human users, f...
- eliminate the risk of national inconsistenciesemerging in relation to the regulation of the ADSE and would enable to efficient implementation and maintenance through a single parliament. This could be supported by prescriptive duties on human users, f...
- As with Option 3, the national regulation of ADSEs is supported. However, some practical issues make Option 4 less suitable than Option 3.
- As with Option 3, the national regulation of ADSEs is supported. However, some practical issues make Option 4 less suitable than Option 3.