09 October 2017

Driverless cars changing the rules of the road in Australia

This article was written by Alex Maschmedt, Carmelene Greco and Cal Samson.

The National Transport Commission (NTC) has released another discussion paper this month asking for input on how current Australian driving laws should be amended to cater for driverless cars.

The potential benefits of driverless cars are now widely understood and predominately relate to the creation of a safer driving environment, with approximately 90% of crashes in Australia being the result of human error.

The NTC’s new discussion paper is designed to identify changes required to ensure driverless cars can operate lawfully and effectively on Australian roads, to allow anticipated safety and other benefits to be realised. The paper asks for stakeholder feedback by 24 November 2017 on 14 questions. It broadly seeks to identify what changes to Australian road laws are required to:

  • allow an “automated driving system” (ADS) (as opposed to a human driver) to be in control of a vehicle;
  • allow identification of an “automated driving system entity” (ADSE) as the party potentially responsible for the actions of an ADS when it is engaged in automated driving functions; and
  • clarify the driving responsibilities (and associated offences) that should:
    1. apply to an ADSE ;
    2. remain the responsibility of other parties (eg occupants of the vehicle, registered owners of the vehicles, manufacturers who are not the ADSE etc); and
    3. may not be relevant where an ADS is engaged.

This paper sits alongside six other initiatives the NTC has underway, all part of the NTC’s project to prepare Australia for the safe and routine commercial use of automated vehicles. This follows a number of other consultation papers from the NTC on driverless cars, including in relation to automated vehicle trial guidelines and the regulatory options to govern safety of driverless cars – the latter of which is closely linked to the safety concerns addressed in this most recent paper.

Potential reforms

The NTC canvasses a range of options to establish legislative structures to allow an ADS to legally drive a vehicle and to then reallocate responsibility for driving related actions accordingly – including on occupants or registered operators as well as ADS manufacturers.

The NTC suggests (with various legislative consequences for failure to maintain ‘proper control’ flowing from them):

Driverless cars - three options for assigning ‘control’ of the vehicle

On the basis of those level options, the NTC proposes the following initial recommendations, for which it seeks feedback:

Topic

NTC recommendations and key issues

Control

An ADS should be deemed to be in control of a vehicle at high levels of automation. Offences relating to proper control by a driver of a vehicle should not apply to a vehicle with ADS engaged.

Responsibility

An ADSE should be identified for each ADS, and that ADSE:

  • should be responsible for the driving actions of the vehicle when the ADS is engaged; and
  • should not be responsible for existing duties and obligations that are not part of the driving task.

The NTC identifies 5 potential ADSE’s:

  1. The ‘fallback-ready user’ of the vehicle: A human person in the vehicle.
  2. The ‘operator’ of the vehicle: A person who sets the vehicle, or fleet, in motion.
  3. The ‘registered operator’ of the vehicle: A person who has existing responsibility for vehicle roadworthiness.
  4. The manufacturer of the vehicle: Likely to be a corporation.
  5. Whichever entity is designated under an accreditation or certification safety assurance scheme.

The NTC’s recommendation is that the 5th option above is the best option, as it is the most fair, apportioning responsibility for safe operation of an ADS to the entity that has warranted the safety of the ADS. This recommendation is interconnected with the NTC’s paper on safety certification for driverless vehicles, which advocates for a mandatory self-certification safety regime for driverless cars.

If an ADSE is responsible for a vehicle operated by an ADS, road traffic offences and penalties may also need to be examined, as offences and penalties targeted at individual drivers may not be appropriate enforcement mechanisms for an ADSE (which is likely to be a company).

Legislative recognition

Legislation recognising the existence of an ADS and ADSE in Australian law should be timely, efficient, and consider impacts on other legislative regimes (eg in relation to compulsory third party insurance).

Options might include expanding the definition of a ‘driver’ in existing law to accommodate an ADS, excluding an ADS from existing law, or creating entirely new and separate legislation covering ADS and ADSE.

Identifying gaps

Driver obligations that cannot be fulfilled by an ADS will need to be identified and responsibility for ongoing compliance with those obligations assigned to appropriate entities. 

Examples could include the responsibility to adequately secure loads, to ensure children are properly restrained, and to follow directions from a police officer.

Responsibility to take over

For vehicles with conditional automation (ie that may ask a person to take over the task of driving in certain circumstances), an obligation should sit with a “fallback-ready user” to maintain sufficient vigilance, be properly licensed and not be under the influence of drugs or alcohol – so they may be ready to take over if requested by the or if the ADS fails to operate properly.

Readiness to drive obligations

For vehicles that are highly automated but have manual controls, individuals who take over those controls should be required to satisfy all the current “readiness to drive” requirements for a human driver of a vehicle. However, if a highly automated vehicle has no manual controls, or if an individual does not take those manual controls, exemptions to readiness to drive obligations should be granted (including exemptions for drug and alcohol related driving offences).

Without these exemptions, some of the benefits of driverless cars (ie transport “as a service”) may be more difficult to realise – but (particularly with cars that have manual controls and therefore the possibility of an occupant taking control) there may be safety considerations in allowing a vehicle to be occupied solely by an intoxicated passenger.


What’s next?

There is no doubt that legislative reform is required to facilitate the introduction of driverless cars on Australian roads and to realise the associated safety benefits without confusing the allocation of responsibility where things go wrong. The issues of responsibility and control which this discussion paper deals with are likely to be both contentious and have a significant impact on public and industry confidence and uptake of automated vehicles in Australia.

Importantly, the NTC acknowledges that there is currently no harmonised international approach on these issues. In particular, the paper notes that Germany and certain states in the USA are the most advanced in amending road rules to allow for vehicles with high levels of automation to operate on public roads, but that these jurisdictions have taken a divergent approach.

Germany is retaining rules that place ultimate responsibility on the individual who engages an ADS for compliance with all road rules, whereas some US states (like California and Tennessee) place responsibility on the manufacturer of an ADS for the ADS’ compliance with road rules. Given there is not yet any defined international best practice in this area, there is potential for Australia to become an international leader in adjusting road rules to accommodate driverless cars.

Submissions in response to the NTC’s paper are due on 24 November 2017. If you would like assistance in digesting the paper and making a submission, please do not hesitate to contact us.

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