Our insights - Henry Davis York

Bathurst without Brock? Driverless cars here and around the world

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1 November 2016

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

Partner

61 404 861 244

61 2 9947 6240

peter.mulligan@hdy.com.au

Monique Azzopardi

Senior Associate

61 423 658 956

61 2 9947 6369

monique.azzopardi@hdy.com.au

Mirella Fisicaro

Senior Associate

61 2 9947 6709

mirella.fisicaro@hdy.com.au