Bathurst without Brock? Driverless cars here and around the world

Not since Herbie the Love Bug and Knight Rider's KITT has the public's attention been so caught by the alluring idea of connected and autonomous vehicles.

The idea is now our reality and the great races of the world will soon be won and roads will be driven by driverless vehicles - imagine Bathurst without any human successor to Brock, or Le Mans sans l'homme.

However, we can't take a back seat just yet. The future may already be here but challenges remain which will require human initiative to manage and resolve. The National Transport Commission's (NTC) recommendations, due in November, will be a significant milestone for Australia and its approach to driverless vehicles.

'No Driver November' - What to watch out for in Australia

The future of driverless vehicles arrives as soon as November 2016 when the NTC submits recommendations to the Transport and Infrastructure Council on regulatory options for automated vehicles. But some jurisdictions are ahead of the game, having already taken steps to enjoy the benefits of automated technology.

NSW is at the forefront of preparing for, and accelerating the deployment of, emerging transport technologies including by the establishment earlier this year of a Smart Innovation Centre as well as NSW Parliament's Inquiry into driverless vehicles and road safety.

The recommendations of that Inquiry were:

  • Road safety outcomes can be best achieved through a national regulatory framework which will maximise the benefits and minimise the risks of automated vehicle technology.
  • Clear guidance should be developed outlining the terms and conditions for conducting trials of automated vehicles, or adoption of a code of conduct, to govern the deployment of the technology in NSW.
  • Measures should be taken to identify the economic and social impacts of the deployment of automated vehicles.

Elsewhere around Australia:

  • South Australia has passed laws allowing on-road trials of connected and autonomous vehicles.
  • In Western Australia a driverless shuttle bus has been trialled along the foreshore in South Perth.
  • Victoria has adopted, with some modification, a code of conduct for testing automated vehicle technology based on the UK Department of Transport's own code.

Fragmentation - a major risk

As States and Territories race to introduce their own solutions for driverless vehicles, the Inquiry identified a major risk posed by a regulatory framework based around each separate jurisdiction - fragmentation. Think of the ongoing difficulties created by State-based railway gauges in the 1800s, which still have ramifications today for a national rail system. The NTC has identified at least 716 separate legislative provisions across States and Territories which present barriers to the deployment of automated vehicles, making this fragmentation risk a reality.

The NTC will deliver its policy recommendations, after reviewing responses to its issues paper, to the Transport and Infrastructure Council in November 2016.

This means there is the potential for a clearer direction for driverless cars with feedback and agreed policy positions from relevant Ministers known from as early as next month.

Challenges beyond the road rules

A number of challenges will not be cured by legislative re-drafting. Some challenges will require policy shifts, community education, investments and new infrastructure, including:

  • Can roads and society tolerate a mixed fleet of current driver-based vehicles as well as highly automated vehicles?
  • What risks will always remain for pedestrians or wildlife?
  • What are the consequences of faults with servicing or infrastructure?
  • Who to blame without a driver? Is a crash in an automated vehicle the responsibility of the driver/operator, the vehicle itself or the manufacturer? Responsibility will likely differ depending on the level of automation. If the driver/operator has the ability to take control, then it will raise the question of why they did not intervene. If the vehicle did not perceive the crash, then it will raise the question of whether there was a manufacturing glitch and whether that affects a broader fleet of vehicles possibly raising a question of potential class-action claims. Legislation which extends liability to multiple parties might be used as a regulatory tool.
  • The risk of a cyber-attack or other malicious intervention. Automated vehicles will use technologies that may have large data storage capabilities (eg through black box or event recorders). This raises the potential for there to be a cyber-security breach or use of data for an unauthorised purpose.
  • There are clear ramifications for the insurance industry. Insurance which relies on proof of liability will have to shift focus from the 'driver' to the owner or manufacturer. However, a more innovative solution is reflected in the NTC's call for a national 'no-fault' first party scheme which focuses on insuring the injured party. While acknowledging the current debate over the extent of coverage, the principles underlying the NSW Government's plan for the CTP insurance Scheme in NSW is an example of how this could work.
  • Data generation, usage and protection issues: automated vehicles have the potential to collect and harvest a significant amount of data. This data is expected to be a rich source of information for the public and private sectors. There is the potential that some of this data (eg travel and location information) may constitute "personal information" as defined under Australian privacy law, including under the Privacy Act 1988 (Cth) and the Privacy and Personal Information Protection Act 1998 (NSW). From both a legal and policy perspective, disclosure and use of personal information obtained through automated vehicles leads to a number of privacy challenges and associated consumer concerns.
  • How to licence a driver when there is no driver? Current State and Territory licence requirements may need to be redefined to remove the obligation that an individual is 'in control' of the vehicle. Consideration will need to be given to the role of a human occupant in an automated vehicle and whether there will be a pre-requisite of completing specific training/hours of testing before being permitted to operate an automated vehicle.

Potential advantages

The NSW Parliament's focus in its Inquiry was on road safety issues and challenges. If those challenges are met, some potential advantages, will need to be assessed, include:

  • Productivity and improvements in traffic.
  • Energy and environmental benefits.
  • Better use of infrastructure and public transport.
  • Better transport usage data which may allow for better planning.
  • Freedom of mobility particularly for those who cannot afford to own a car or are presently physically unable to drive a car.

Around the world

November is also a significant month for driverless cars in other parts of the world. Recent and planned activity includes:

  • In the UK, the Department for Transport has allocated up to £35 million to fund innovation projects where all driving tasks are undertaken by an automated system even if a human does not respond to a request to intervene.
  • The US Department of Transport has just issued a guidance to the automotive industry for improving motor vehicle cybersecurity. Last month it also issued a Federal Automated Vehicles Policy intended to accelerate the revolution of highly automated vehicles.
  • In Sweden, 100 self-driving cars will drive around Gothenburg.
  • Truck Platooning trials have occurred throughout Europe in which a number of trucks equipped with driver support systems followed each other along designated corridors from various European cities to Amsterdam - including as far as from Stockholm through Denmark and Germany to the Netherlands.
  • In Virginia, USA, a Virginia Automated Corridors project has commenced involving an Automate d Vehicle testing site and the government has offered to arrange licensing and insurance.

While countries, cities and towns have all scrambled for first-mover advantage, the truth is all places will need to carefully but swiftly ensure they are ready for, and support, the roll out and development of automated technology, including dealing with the issues which follow when vehicles are already on the road.

We might soon be able to enjoy driverless cars, but there is a lot of work still to be done for everyone in the driver's seat of regulatory, policy, social and infrastructure responses.

Peter Mulligan

I am passionate about the success of the firm's clients and doing everything to ensure we exceed expectations.

Peter Mulligan Partner

Peter is a specialist in all areas of commercial and technology law, with a particular focus on projects involving complex contractual structures and arrangements. He is recognised by his clients and peers as an expert in tendering and procurement.

Peter's clients call upon him to advise on projects involving the acquisition, licensing or supply of large-scale hardware, information technology, telecommunications systems and other goods and services. His expertise includes outsourcing, managed services and bespoke contractual arrangements.

In the government sector, Peter is an expert in State and Federal procurement, advising government departments and agencies on procurement reform, tendering, legislative compliance, delegations of authority and agency restructures.

One of Peter's career highlights has been acting for Global Television (now NEP Australia), on its agreement to design, install and operate the international broadcast centre for the 2014 Commonwealth Games in Glasgow, Scotland. This included advising on the tender by the Organising Committee, structuring of arrangements for the supply of host broadcast services for the Games, and negotiations in London of a complex suite of contracts to document the deal including with UK joint venture partner Sunset + Vine.

Peter regularly presents to clients and industry on complex contractual issues, including indemnities, the Civil Liability Act 2002 (NSW), limitations and exclusions of liability, the law of penalties, product liability and the Australian Consumer Law.

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Michael Sullivan

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Michael acts for both public and private sector clients in relation to commercial disputes. He has experience in litigation, inquires and alternative forms of dispute resolution. Michael's particular focus is on providing litigation and advisory support to our government clients.

Michael has been focusing on the government sector for over 10 years, which gives him a critical understanding of the environment in which our government clients operate. He has assisted his clients with prosecutions, investigations, statutory inquiries and enforcement.

Michael has also had significant experience in acting for private sector clients in relation to commercial disputes. His particular focus has been fraud related matters and complex contractual  disputes. He brings a wealth of litigation experience to all his clients, including general conduct of litigation: preparing proceedings, obtaining witness statements, liaising with counsel and the management of discovery and production obligations in answer to subpoenas.

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Monique Azzopardi

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Monique Azzopardi Senior Associate

Monique is a specialist in commercial and government law, with a particular focus on procurement, technology projects and transactions, intellectual property and privacy.

Monique has broad commercial experience acting for government and private sector clients, particularly those in the technology, health, education and transport industries.

Monique provides specialist advice relating to technology projects and transactions, the procurement of goods, services and major works, intellectual property, data protection and the Australian Consumer Law. She is regularly called upon to negotiate and draft complex commercial agreements.

With strong public sector knowledge and experience, Monique advises government clients on statutory interpretation and compliance, administrative law, probity issues, government decision making and all aspects of tendering and procurement.

Monique has gained significant in-house experience by undertaking secondments for different entities, including as Relieving Principal Legal Officer at the Department of Education and more recently as Acting Legal Counsel Commercial, Projects and Safety at Transport for NSW.

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Mirella Fisicaro Senior Associate

Mirella is a litigator who specialises in insurance claims, primarily for government sector clients. She is a specialist in coronial law, inquests and inquiries and manages a large coronial practice comprising of complex and public matters.

Mirella helps our government sector clients with insurance claims. Clients such as NSW Health and Roads and Maritime Service call on her for her medical negligence and public liability expertise.

Mirella is a specialist in coronial law and inquires, and manages a large coronial practice comprising of complex and public matters. She regularly appears before the State Coroner and Deputy State Coroners at inquests, call-overs and liaises with Advocates Assisting and the Crown Solicitors Office.

Mirella is also involved on general insurance matters for commercial clients, including public and professional liability claims, property damage and recoveries.

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