Another step towards Australia’s autonomous vehicle future

Like all self-respecting waves of disruption, autonomous vehicles (AVs) are challenging the status quo. Their adoption calls for a need to balance touted benefits against possible risks, and shines a light on obstacles under existing laws that govern the interactions between humans and vehicles.

Among other benefits, AVs could significantly improve road safety by avoiding crashes and in turn reducing injuries and fatalities. Increasing levels of automated driving controls are being incorporated into new vehicles on the market. However, our current regulatory framework doesn’t allow the full potential of many of these features on our roads. The extent to which we will realise the safety benefits in Australia depends on the regulatory framework that will govern commercial deployment of AVs on our roads.

A pathway forward

Since a comprehensive legal audit of Australian legislation identified over 700 barriers to deployment of AVs in 2016, the National Transport Commission (NTC) has been mapping out a pathway to deliver a nationally consistent regulatory framework that will support the safe commercial deployment of AVs in Australia.

This month, we passed another milestone on our journey to unlocking the benefits of AVs when the NTC released its final proposal on how AVs should be regulated on Australian roads. On 5 June, Transport Ministers agreed to work towards establishing a single, national approach to regulating AVs with a national regulator and a national law, supported by a general safety duty.

The NTC, in conjunction with Australian governments, will continue to refine the details of the approach over the next 12 months and submit their recommendations for detailed implementation in the first half of 2021. A primary objective of the reform is to ensure Australia offers a single market for AVs. One of the main questions to be decided is whether the single national regulator should enforce the general safety duty through Commonwealth or state and territory applied law. A second important question is whether and how due diligence obligations should be imposed on executive officers of the automated driving system entity (ADSE) to ensure the ADSE complies with the safety duty.

Any regulation of AVs will need to address new risks introduced by the technology that can’t be regulated by market forces alone. If Australia is going to offer an attractive market, we need to avoid barriers to entry that a patchwork of state and territory in-service safety regulators would create.

Further details to be considered include:

  • the implementation of the approach in legislation;
  • the form and powers of a national AV regulator;
  • how a national AV regulator would interact with other agencies; and
  • how to deal with vehicle modifications.

Looking back

This recent decision builds on previous steps taken by the Transport and Infrastructure Council towards nationally-consistent reforms that support innovation and safety:

  1. Trials – Public trust, confidence and understanding of the technologies are critical. On-road trials are essential for ensuring safe operations of AVs on Australian roads under Australian conditions. In May 2017, we saw guidelines to facilitate AV trials through permits or exemptions from legislative obligations in the Australian Road Rules and other road transport legislation. The NTC’s Guidelines for trials of automated vehicles in Australia supported nationally consistent conditions for AV trials.
  2. Who or what is in control – a key challenge under existing Australian law was to ensure a legal entity could always be responsible for the driving task. In May 2018 the Transport and Infrastructure Council agreed to introduce a uniform law for AVs which decides who or what is in control of the vehicle. When the automated driving system (ADS) is engaged the ADSE, rather than the human, will be responsible for the dynamic driving task obligations (i.e. steering, braking, accelerating).
  3. Manufacturer standards – in November 2018 transport ministers agreed to mandatory self-certification for an ADS at their first supply to the Australian market. An ADSE must self-certify against safety criteria, demonstrating how it will manage safety risks. The safety criteria will be incorporated into existing regulatory frameworks for the first supply of vehicles to the Australian market through the Road Vehicle Standards Act 2018 (Cth). This approach replaces historical ‘design-then-certify’ processes under the Australian Design Rules, which are inadequate for AVs due to the rapid pace of technological change and the number of component parts that go into making up an ADS.

A driverless future

Predicting when AVs will be on our roads in significant numbers remains a difficult task. We’re seeing increasing momentum in the development in technology and falling prices of key components (such as LIDAR). COVID-19 has led to widespread suspension of AV trials in some parts of the world, whilst AVs are being deployed as part of the health crisis response in other parts of the world, especially China. Despite the inevitable road bumps ahead, it is encouraging to see that Australia’s regulatory reform program continues to move forward.

For further information see the National Transport Commission updates on the automated vehicle reform program here.

Susannah Wilkinson
Susannah Wilkinson
Digital Law Lead, Australia
+61 7 3258 6786

Who is liable when a connected and autonomous vehicle crashes?

In March 2018, a pedestrian in Arizona was struck by a self-driving Uber vehicle during a vehicle test. An Arizona prosecutor recently found Uber not criminally liable for the incident, though little detail was given for the decision (see our blog post, here).

Once CAVs are on the roads and self-driving, liability is expected to shift away from the driver towards the CAV itself. Liability for accidents should, therefore, lie with manufacturers. This article explores such manufacturers’ liability for on-road CAV accidents under the current Australian regime .

CAVs and the product liability regime

CAV-related liability will arise against a potentially complex factual background involving a multi-part supply chain, the highly technical interplay of parts and processes, varying states of control between driver and vehicle and the likelihood of continuous software updates to CAVs post-purchase. However, Australia’s existing product liability regime has proven to be adaptable across many industries (including medical devices, car parts, consumer goods and pharmaceuticals).

A potential product liability claim may have several bases under current law. The cause of action pursued will be influenced by the injured party’s identity –  whether a driver / passenger or third party. A party injured in a CAV crash may argue:

  • negligence: that a defect in or failure of the CAV breached a duty of care owed to the claimant by the manufacturer and / or supplier;
  • breach of contract: that a CAV failed to operate in accordance with the terms of a contract between a consumer and manufacturer;
  • safety defect (Australian Consumer Law (ACL)): that injuries were suffered due to the CAV having a ‘safety defect’. A defective goods action does not require a contractual relationship between the injured party and the manufacturer;
  • breach of statutory guarantees (ACL): that a CAV was defective and therefore its supply breached statutory guarantees (eg vehicles are of ‘acceptable quality’ and are ‘reasonably fit’ for their disclosed purpose); and / or
  • misleading or deceptive conduct (ACL): that a manufacturer and / or supplier’s representations to consumers (eg the CAV was safe for use) were misleading or deceptive.

The ACL-based claims demonstrate both the regime’s flexibility and certain challenges in bringing a CAV-related product liability claim.

(a) The ‘manufacturer’ and the ‘good’ 

‘Manufacturer’ has a broad meaning under the ACL, capturing the actual manufacturer, someone who holds themselves out as the manufacturer and the good’s importer. The term ‘good’ is similarly broad, and includes ‘vehicles’, ‘computer software’ and ‘any component part of, or accessory to, goods’. This arguably covers all aspects of the CAV, such as sensors, cameras, navigation software and data transmission systems.

Future car ownership and use norms will also play a role. In the increasingly popular pay-per-use model, a consumer may not be acquiring a good but instead receiving a service. The ACL captures service provision, with mirror statutory guarantees and misleading or deceptive conduct provisions.

(b) Who should have been driving?

Different levels of automation will require different levels of driver input. Establishing who should have been driving when a crash occurred will have significant implications for legal causation.

While the current legal regime could likely address such questions in a piecemeal way, through existing obligations regarding instructions for use and the usual principles of evidence, future regulation on fundamental issues such as ‘control’ will likely assist in consistent and predictable legal outcomes.

For example, future regulations may require that drivers be in control in high pedestrian areas, notwithstanding that a CAV is designed to function in those environments. The National Transport Commission (NTC) is considering this (see the NTC’s relevant policy paper, here). The question of control would fall away for ‘fully autonomous’ CAVs – although we query if a manufacturer would ever make such an unqualified statement.

(c) What is the defect?

Numerous factors specific to CAVs could conceivably cause accidents, including network outages, computer viruses, unpredictable behaviour by other road users and road maintenance conditions.

An accident may occur with no clear ‘defect’ and the CAV functioning exactly as intended. The Uber crash in Arizona appears to have been caused by the purposeful disabling of the ‘emergency braking manoeuvre’ system, disabled to reduce the potential for erratic vehicle behaviour during computer-controlled driving.

Separately, the ACL provides a defence to manufacturers where there was no defect at the time of supply. Consider the application of such a defence where, for example:

  • a crash is caused by a temporary network failure; or
  • a defect arises post-supply which can be rectified with a software or hardware upgrade.

A plaintiff may need to commence proceedings against a broad range of defendants to ensure recovery can be made against the defendant actually responsible. Large-scale changes to the legal liability and insurance regimes for CAVs may be necessary to make such proceedings more cost-effective.

(d) What instructions were given?

Instructions given to consumers by CAV manufacturers will be of paramount importance – especially those relating to maintenance, driver / CAV control sharing and driver behaviour during CAV-controlled driving. Consider, for example, a scenario where the manufacturer’s instructions require consumers to regularly install software updates to the CAV. If a crash was caused by a glitch which the software update would have corrected, questions arise around compliance with instructions and the steps taken by the manufacturer to ensure updates are made (eg should a manufacturer disable the CAV until updates have been installed?)


The Australian product liability regime seems largely able to handle the novel manufacturer liability claims which may arise from the widespread introduction of CAVs. Fundamental issues impacting liability, such as ‘control’, will no doubt be addressed as part of the safety risks associated with CAVs (see the NTC’s relevant discussion paper, here). As Courts identify issues over time, further legislative reform around the liability and insurance regimes will likely be desirable, taking into account any industry guidance and best practice developed.

For now, we continue to monitor, with great interest, how technological, regulatory and commercial progress will shape consumer consumption of the CAV.

Guy Narburgh
Guy Narburgh
Special Counsel, Australia
+61 2 9322 4473
Camilla Pondel
Camilla Pondel
Solicitor, Australia
+61 2 9225 5835