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Right now, some of the basic principles surrounding rules of the road in Australia are straightforward.

It is clear, for instance, that the driver needs to maintain control over his or her vehicle. Australian Road Rule 297 (1) states that ‘a driver must not drive a vehicle unless the driver has proper control of a vehicle’ – a position reinforced by state and territory law.

It is also clear that the driver of the vehicle which causes an accident is responsible and must compensate other injured parties (through third party insurance).

Yet when it comes to self-driving cars or autonomous vehicles (AVs), things become complicated. Take, for instance, the issue of control of the vehicle. A discussion paper published by the National Transport Corporation in April noted that it is unclear under current law who would be deemed to be in control of an autonomous vehicle when in operation – the driver or the system (and thus the manufacturer).

It is also unclear whether or not this varies according to whether we are talking about conditional automated vehicles with a fall-back ability for the driver to assume control or fully autonomous vehicles. The NTC is seeking feedback about who should be considered to be in control of an autonomous vehicle, what it will mean to have proper control of an AV, how proper control should apply to the automated driving system and how enforcement agencies should interact with autonomous vehicles.

Beyond this, there are other legal questions. One area of concern, Maurice Blackburn Associate and personal injury lawyer Katie Minogue said, revolves around who is responsible when an autonomous vehicle causes an accident and the ability of injured parties to claim compensation.

Under the current system, it is clear that the driver of the vehicle which causes an accident is responsible and that those who are injured are able to obtain compensation via third party insurance. By contrast, where an autonomous vehicle causes an accident, Minogue says it is unclear whether or not responsibility rests with the driver, the vehicle manufacturer, the software provider or – in the case of autonomous vehicles which are connected to a road network – the road network provider.

Apart from creating a legal issue in and of itself, Minogue says there is concern that any change in the question of who is responsible could impact upon the ability of those who are injured to claim compensation. She says a critical point revolves around the need to adopt a holistic approach which takes into account any flow on consequences associated with changes in the law in one area. As an example, how would the question of control of a vehicle impact upon other areas of law such as the personal injury realm. Maurice Blackburn has raised such concerns through submissions to a House of Representatives inquiry into the social issues associated with autonomous vehicles.

It is imperative, Minogue said, to ensure that any change in who is considered to be in control of a vehicle does not impact upon the ability of injured parties to claim compensation merely by virtue of them being hit by a robot car instead of one being controlled by a person.

Whilst stressing that her own focus revolves primarily around personal injuries, Minogue said other issues surround privacy, security and data access.

In terms of privacy, Minogue says anyone with access to information about the travel patterns of the autonomous vehicle could gain insights about where its occupants live, work, shop, eat, or relax or what music they listen to. This could include manufacturers or – in the case of vehicles connected to a network – road network operators. Because of this, she says strict controls surrounding how this data is used and secured will be needed.

A related concern surrounds access to data contained within the ‘black box’ of the AV which could be influential in determining liability in the event of an accident. A critical phenomenon to avoid, Minogue said, is a David versus Goliath situation whereby the manufacturer and/or software provider might have unfettered access to this data but the access of the driver or other parties may be limited, potentially giving the manufacturer an unfair advantage in the event of litigation.

In terms of security, Minogue says it will be imperative to have rules about the type of controls needed to prevent the hacking into systems of an autonomous vehicle – concerns she says will become increasingly prevalent as AVs become interconnected with each other and with the system.

A final but critical issue, Minogue said, revolves around how AVs are programmed to respond in the event of an unavoidable accident. At the moment, she says, AVs are being programmed to protect their own occupants as top priority – an obvious commercial imperative as consumers would not buy vehicles which would not protect them.

This could lead to situations where an autonomous vehicle could choose to risk striking an unprotected user such as a child on a bicycle as opposed to colliding with an object or another vehicle (and therefore causing injury to its own occupants). This is the case even though the child on the bike does not enjoy protective features such as seat belts, crumple zones or airbags and is thus more likely compared with any vehicle occupants to suffer serious or fatal injury in the event of collision.

Because of this, Minogue says lawmakers may have a role to play in terms of ensuring that the interests of vulnerable road users are protected in how AVs are programmed in this regard.

A different angle is offered by Dr John Stone, a lecturer in transport planning at Melbourne University. In addition to the above matters, Stone says an interesting area of challenge revolves around competition and network access on equitable terms.

As both ride sharing and autonomous vehicles develop, Stone says there are concerns whereby any vertical integration strategies adopted by the likes of Google or Uber could see these companies use their own vehicle reservation platforms, for example, to favour their own vehicles over and above those provided by competitors. Lawmakers, he said, will have to think about any type of regulation which might be required to maintain a competitive marketplace and deliver upon the public interest. This extends, he says, to ensuring that AV design is such that they accommodate and can be operated by those of limited mobility – a segment of the market in respect of which catering might pose additional costs upon automotive vehicle manufacturers.

A further issue revolves around the use of public space and how vehicles and pedestrians interact. In busy inner urban streets where large numbers of pedestrians seemingly cross the street at random, Stone says autonomous vehicles may indeed be forced to travel unreasonably slowly as a result of being programmed to act cautiously when sensing pedestrians or ahead, and might thus cause bank-ups.

Where this happens, Stone says, AV manufacturers may push back and call for tighter restrictions upon pedestrians and foot traffic. This, he says, would pose difficult questions about the prospect of pedestrian freedoms needing to be curtailed at the same time as we are trying to encourage more active forms of transport in order to improve public health.

Going forward, Minogue says many of the issues are complex and have no easy answers, but adds that it is imperative to guarantee issues such as fair access to data and adequate access to compensation. Moreover, she says it is important for Australia to move together as one through a national approach, and avoid complications associated with differing rules across different jurisdictions.

Given the potential of self-driving cars to take human error out of driving and thus reduce road accidents, Minogue says Australia should adopt a proactive approach to ensure that legislation to enable self-driving vehicles keeps pace with technological advances in this area.

“At a fundamental level, we need to ensure that regulation is keeping pace with technology,” she said. “When we’ve got this driverless technology which very much has the potential to create safer roads and less accidents on the road … we need to make sure that that technology is not being held back by our failure to be on the front foot with regulation and legislation.”

From a planning perspective, Stone would like to see governments adopt a proactive approach in defining a framework for what society would like to see from autonomous vehicles along with how they work from a viewpoint of competition and pedestrian interaction. He says governments need to be proactive and avoid having these types of decisions dictated by manufacturers.

Self-driving cars represent a significant opportunity to reduce road trauma.

From a legal perspective, however, they also present some tricky and challenging questions.

 
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