The development of a national in-service automated vehicle safety law (AVSL) continues with the release of a National Transport Commission (NTC) discussion paper titled 'A national in-service safety law for automated vehicles'.

The discussion paper comes after ministers agreed in June 2020 to a regulatory approach to the in-service safety of automated vehicles including:

• a general safety duty on an Australian Automated Driving System Entity (ADSE) that is responsible for an automated driving system (ADS) over its lifecycle;
• due diligence obligations on ADSE executive officers; and
• a new national regulator for in-service safety to regulate ADSEs, their executive officers, and remote drivers of automated vehicles.

The discussion paper details a range of proposals and outlines next steps.

Feedback to shape recommendations and next steps

The NTC seeks feedback on 30 questions based upon the proposals set out in the discussion paper. The 30 questions posed for public comment follow.

1. What prescriptive duties under the general safety duty should be included in the AVSL to manage in-service safety risks?
2. What matters relating to compliance with a general safety duty are better suited to guidance than being prescribed in the AVSL and should this guidance have legislative force?
3.  Are existing and proposed regulatory frameworks sufficient to address third-party interference with an ADS? If not, should interference with safe operation of an ADS be a specific offence, and how should this offence be enforced?
4. Should the law provide a specific defence for ADSE executive officers who rely on information provided by others, like a parent company, when discharging their due diligence duty?
5. Please provide your views on the transfer of responsibilities for an in-service ADS from an ADSE to a new entity. Should an ADSE be able to transfer responsibility for an in-service ADS to a new entity? If so, what powers should the in-service safety regulator have for approving the transfer?
6. If there is no new entity to take responsibility for an ADS when an ADSE exits the market, are recall (including disengagement) under the RSVA and recourse under Australian Consumer Law appropriate measures? Is there any role for the in-service regulator?
7. What should the role of the in-service regulator be for modifications made by an ADSE to an in-service ADS that changes its ODD or the level of automation?
8. How should in-service modifications made by parties other than an ADSE to vehicles to make them automated be managed?
9. Are there any gaps in the regulation and proposed regulation of in-service modifications that the NTC has not identified? Are there other options that should be considered?
10. Do you agree that additional functions the NTC has identified may need to be undertaken by the regulator to ensure in-service safety?
11. Accreditation provides an alternate pathway for an entity to enter the market. Are there other purposes for which accreditation should be used in the in-service framework?
12. Do you agree with the functions the regulator is likely to perform in the initial phase following commencement of the AVSL?
13. Are the proposed compliance and enforcement powers proportionate to meet the objective of safely operating automated vehicles in Australia?
14. Do you consider that the in-service regulator should have any of the following powers (outlined in the discussion paper)?
15. Do you consider that additional prescriptive requirements may be needed to support a risk-based approach to compliance and enforcement under the AVSL?
16. Please share your views on illustrative penalties set out in the discussion paper
17. Hs the NTC identified the additional powers provided in the Regulatory Powers (Standard Provisions) Act 2014 (Cwlth)?
18. Are there other roadside enforcement issues relating to automated vehicle in-service safety that the NTC should consider?
19. How should ADSEs advise on their ADS's interaction with roadside enforcement agencies? Should the AVSL require the ADSE to provide law enforcement interaction protocol to the in-service regulator and/or roadside enforcement agency?
20. Do you agree that when a breach of road traffic laws occurs and: the ADS is engaged; or a roadside enforcement agency forms a reasonable belief that the ADS was engaged at the time of the breach, that the incident should be treated as a potential breach of general safety duty and not handled through the infringement system for human drivers?
21. Do you agree that when a breach of a road traffic law occurs and a roadside enforcement agency forms a reasonable belief that the remote driver was in control of the vehicle at the time of the breach, that the incident should be referred to the in-service regulator and not handled through the infringement system for human drivers?
22. Do you agree that when a breach of road traffic laws occurs that the infringement notice be issued in the first instance to the human driver or registered owner/operator with a process to nominate the ADS or remote drivers as the driver if required?
23. Are the interactions between the in-service regulator and other regulators and agencies accurately described?
24. Are there other agencies that the in-service regulator will need to interact with?
25. Are there other information types, purposes or parties relevant to the in-service regulator's access to information?
26. Have the key information flows that the in-service regulator needs to be a party to been identified? Are there others that you suggest?
27. Do you propose information access powers meet the objectives of the in-service regulator? Are there other statutory powers for information access that the regulator will require to support its compliance and enforcement functions?
28. Do you agree that a specific power authorising collection, use, and disclosure of personal information is required in the national law and in state and territory legislation?
29. What privacy protections may be needed around the collection, use and disclosure of ADS-derived personal information?
30. Do you agree with the differences outlined between the legislative implementation approaches? Which approach will best achieve the reform outcomes?

Submissions on the questions in the discussion paper and any other relevant matters were due by 11 December 2020. Following this consultation period, the NTC will assess feedback and further refine its proposals to develop a policy paper, which will inform its recommendations to the transport ministers in 2021.