Do ‘over the air’ updates constitute design changes to vehicles already on the Register of Approved Vehicles?
Key takeaways
- The current regulatory framework for vehicles is insufficient for modern vehicles, as it has not kept up with the technology now widely used in the automotive market, where remote ‘over-the-air’ software updates can modify existing functions or introduce new ones.
- These remote updates to vehicles are more like an ongoing design iteration than maintenance in the traditional sense. The law assumes that meaningful changes to safety systems require physical modification and therefore regulatory visibility, but ‘over-the-air’ updates bypass this assumption.
- Greater regulatory attention must be paid to post-market software changes, as awareness alone of outdated regulations does not address the regulatory gap created by these updates, which are already operating widely across Australia.
The current situation
The Commonwealth Government regulates the importation of road vehicles under the Road Vehicle Standards Act 2018 (Cth) (RVSA). The RSVA establishes the Australian Design Rules (ADRs) and requires that a vehicle must not be supplied to the Australian market unless it has been entered on the Register of Approved Vehicles (RAV) following an assessment of compliance with the ADRs. This assessment focuses on the vehicle’s design and componentry immediately before RAV entry. Once the vehicle is entered on the RAV, it may be supplied to consumers and registered by the States and Territories.
While the Commonwealth retains recall powers where a vehicle does not comply with the ADRs or poses a safety risk, and approvals can be suspended if ADRs themselves change, compliance is effectively locked in at the point of RAV entry.
This regulation reflects an outdated assumption that vehicles are static physical products whose safety characteristics do not materially change after importation. Current vehicle manufacturing no longer adheres to this framework with ‘over-the air’ updates continually changing safety characteristics after importation.
What are ‘over‑the‑air’ updates?
‘Over‑the‑air’ (OTA) updates are remote software updates delivered directly to a vehicle without physical access. First widely deployed by Tesla and now increasingly adopted across the industry, OTA updates can modify existing functions or introduce entirely new ones. These directly impact vehicle operation, including acceleration, steering assistance, collision avoidance and automated driving systems.
OTA updates can be applied months or years, after a vehicle has entered Australia and been approved for supply. As a result, the vehicle operating on Australian roads may differ materially from the vehicle that was assessed and approved for entry on the RAV.
OTA updates are therefore not maintenance in the traditional sense but operate more like ongoing design iteration deployed effectively immediately into the live vehicle fleet. In extreme cases, OTA updates may enable a vehicle to become a driverless vehicle years after that vehicle first entered the country.
Regulations are based on an outdated premise and require updating
The current law assumes that meaningful changes to safety systems require physical modification and therefore regulatory visibility. OTA updates bypass this once safely held assumption.
If an OTA update creates a safety defect or ADR non‑compliance, the recall regime applies, but this framework is inherently reactive than proactive. It assesses if something is not working as it is supposed to. It does not question whether the vehicle on the road is still the same vehicle that was approved, creating a growing regulatory blind spot.
Put simply, the current legal framework regulates vehicles as though they are a known quantity following importation. In reality, manufacturers such as Tesla now operate vehicles as platforms being updated and modified in much the same way as we update the software on our mobile phones. As the number of vehicles capable of receiving OTA updates increases, this gap will evolve from theoretical to systemic.
The safety implications are significant. Vehicle behaviour can change without regulatory scrutiny, without consumer understanding, and without any clear mechanism to reassess ongoing ADR compliance prior to these changes being deployed into traffic. Until the law recognises that vehicles can materially change following approval, compliance will remain anchored to a premise that will increasingly not reflect how modern vehicles function.
There are emerging reform signals, but deficiencies remain
The Commonwealth’s 2024-27 National Connected and Automated Vehicle Action Plan expressly recognises vehicles as connected, software‑driven systems whose functionality can change over time. While the Action Plan does not yet propose amendments to the RVSA or the Australian Design Rules to deal expressly with post‑approval software updates, it foreshadows a shift towards lifecycle regulation, particularly for automated and connected vehicles.
These developments suggest growing institutional awareness that the current framework may be insufficient for modern vehicles. Whether that recognition translates into binding obligations for OTA updates remains to be seen, but the direction points towards greater regulatory attention on post‑market software changes to vehicles.
Ultimately, awareness alone does not address the immediate regulatory gap created by OTA updates already operating widely across Australia. The regulatory regime has not kept pace with the current vehicle technology, leaving the safety of a rapidly growing number of vehicles on Australian roads to depend less on proactive regulation and more on after-the-fact intervention.
This article was prepared with the assistance of Marcus Jones, Law Graduate.
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