15 Aug 2016

New legal road needed to steer the transition to driverless vehicles

Sydney, 15 August 2016: A new Clayton Utz report calls on Australian governments to act now to establish a proper legal and regulatory framework for a future road transport environment of driverless vehicles.

'Driving into the future: Regulating driverless vehicles in Australia' recommends changes to existing laws and nationally consistent regulations to help accelerate the transition to an environment in which driverless vehicles are the norm.

With some commentators predicting that all vehicles on Australian roads will be driverless by 2030[1], the report calls on Australian governments to act sooner rather than later to ensure there is a legal framework that supports the testing, introduction and safe operation of driverless vehicles.

Clayton Utz partner Owen Hayford, one of the report's key authors, said addressing the key legal risks and uncertainties in a phased manner would help maximise the potential future benefits of driverless vehicles, such as fewer road fatalities and reduced congestion.

"It's not an easy exercise as the regulatory environment for the use of motor vehicles in Australia is complex. The National Transport Commission[2] has already undertaken some valuable work in identifying regulatory barriers for automated vehicles and options to address these. Our report seeks to build on that and identify some of the key areas that legislators and regulators can start looking at now to ensure a clear and consistent approach to issues such as liability, and, at a Federal level, minimum safety design standards," said Owen.

"Australian companies such as Fortescue Metals Group and Caterpillar are already leading the way in the application of automated and driverless vehicle technology in their industries. We can draw on their experiences and lessons learned to inform a best practice legal framework as driverless cars become mainstream."

Commercial litigation partner Greg Williams, who also contributed to the report, said it highlighted the future need to deal with the "big and complex" issue of liability, and associated insurance arrangements.

"One of the big questions is who should be legally responsible for the automated driving system if it infringes road rules or causes an accident. One of our recommendations is that the concepts of "driver" and "proper control" as currently defined by the Australian Road Rules and related laws be clarified to smooth the path for conditionally automated vehicles, and ultimately reviewed to take into account the operation of highly and fully driverless vehicles," Greg said.

"Given the technology involved, consideration also needs to be given to how the law deals with issues around access to data generated by automated and driverless vehicles, privacy, and of course, the very real concern of cybersecurity."

Owen said creating a safe environment for the testing of vehicles on public roads would be a good first step in laying the foundation for a driverless vehicle future. "South Australia has made changes to its laws to facilitate such testing but on a case-by-case basis. Making it easier for manufacturers to carry out public road testing could see Australia become one of the first countries in which driverless vehicles are widely deployed. This would facilitate not only early access to the road safety, productivity, mobility and other benefits that driverless vehicles offer, but also facilitate the local development of associated industries and know-how that can be exported around the world."

[1]Telstra chief scientist Hugh Bradlow quoted in an article 'On road to cars without drivers', The Australian, 1 August 2016Back to article

[2]National Transport Commission discussion paper 'Regulatory Options for Automated Vehicles', May 2016 http://www.ntc.gov.au/Media/Reports/(80E9EBF1-53F0-44F7-96CF-07D60A324122).pdf Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.