Transforming Mobility - removing the regulatory barriers

5 Dec

First published 26 November 2017

I was delighted to participate in Friday's launch of Transforming Mobility – a joint white paper by the NRMA, Keolis Downer and PwC.

It’s becoming apparent that connected and automated vehicle technology will have a profound impact on mobility. The benefits that fully automated vehicles promise will transform society for the better – significantly improved safety, accessibility and productivity; more efficient use of our transport system; lower costs and emissions; and access to jobs, social events and amenities.

There are, however, various obstacles that must first be navigated to realise this new mobility future. It’s important that we navigate these obstacles sooner rather than later and welcome this imminent change.

The joint white paper presents a roadmap to prepare Australia for the transition. It takes a complex regulatory system and puts in place sensible and achievable processes and protections to enable future transport technology.

In addition, it highlights the path for establishing robust and fair insurance and data sharing frameworks, placing the interests of consumers first.

This leadership document and its important recommendations pave the way for moving our systems towards a future where mobility will be very different to that of today, and our keynote speaker will no doubt give you an insight into what that future looks like.

Below is what I had to say at the launch event about the main regulatory barriers and how they can be removed.

Regulatory barriers

The NSW Roads Minister has just mentioned that there are over 150 pieces of legislation that require amendment. Australia's National Transport Commission (NTC) has identified over 700 specific legislative provisions that need to be amended. The task sounds daunting, and it would be easy to get lost in the weeds.

But it’s not as bad as it sounds, as most of the provisions requiring amendment are found in a single piece of legislation, namely the model road rules that form the basis of the road rules in each state and territory.

More importantly, there are just three key recurring issues in our road rules that need to be addressed. That’s right – just 3 key issues that give rise to the need to amend over 700 provisions.

Issue 1 - Our road rules fail to recognise that the driving task can be performed by a computer

First, Australia's road rules assume that motor vehicles will always be driven by a human driver that is sitting in the driver’s seat. They don’t allow for the possibility that the dynamic driving task – ie steering the vehicle, controlling its acceleration and braking, and watching the road and responding to events – can be performed by a computer, or an "automated driving system" to use the industry terminology.

The solution to this problem is obvious – remove the assumption and provide for the possibility that an automated driving system can perform the dynamic driving task.

Issue 2 - Legal obligations can't be imposed on a computer system

Second, our road rules impose obligations on ‘drivers’. For example, the road rules state that:

“A driver must not drive at a speed over the speed limit….” ; and
“A driver approaching or at traffic lights showing a red traffic light must stop….”

The problem we have is that if we simply define a driver to include an automated driving system when the automated driving system is performing the dynamic driving task, then we end up imposing legal obligations on a computer system, which doesn’t work legally. We need to make further changes to the road rules and other laws to address this issue.

The NTC is suggesting that this problem can be addressed by making a legal entity - ie an individual person or a corporation - responsible for ensuring that the automated driving system complies with the road rules. The NTC has suggested that the responsible legal entity should be the entity that applies for approval to sell the vehicle in Australia, which will ordinarily be the manufacturer of the vehicle, or perhaps the local supplier.

Under this arrangement, if a vehicle speeds, or runs a red light, or otherwise breaks the road rules when the automated driving system is driving, the police would issue the infringement notice direct to the manufacturer/local supplier.

Sounds like a good result for the owners and users of the vehicles doesn’t it?

But what if the owner of the vehicle has had the vehicle maintained or modified by someone other than the manufacturer, and the defect in the automated driving system is due to the work carried out by these third parties?

If liability for traffic offences is going to be imposed on vehicle manufacturers, the manufacturers are likely to insist that those who wish to buy their vehicles must agree to only use the manufacturer or its approved maintainers and modifiers to maintain or modify the vehicle. Purchasers will effectively have to give up their right to use independent maintainers/modifiers, competition will be diminished, and consumers will end up the losers.

A better approach is to adopt the same approach that presently applies to infringements detected by fixed speeding cameras and red light cameras, where the fine is issued to the registered owner/operator of the vehicle, who remains liable unless they can demonstrate that someone else is responsible for the infringement.

If the traffic infringement occurs as a result of a failure of the vehicle’s automated driving system through no fault of the registered owner/operator, the registered owner/operator should be able to bring a claim against the party that is responsible for the fault in the automated driving system, including the supplier/manufacturer of the vehicle, the maintainer of the vehicle or any party that the registered operator has engaged to modify the vehicle.

Indeed, some manufacturers have already publicly acknowledged that they will be liable for traffic infringements attributable to a failure of the automated driving system.

A key to making this all work will be ensuring the registered owner/operator of the vehicle has access to the data generated by the vehicle that can demonstrate who or what is at fault.

So under the arrangement suggested in the white paper, ultimate liability for traffic offences will still flow through to the vehicle’s manufacturer, maintainer or modifier if they are at fault. This will motivate such parties to design, program, manufacture, maintain and/or modify the automated driving system so that it is and remains capable of complying with the road rules.

Issue 3 - Some ancillary obligations need to be reallocated or redesigned

The third and final recurring issue is that the road rules, and various other laws, impose ancillary obligations on the driver, on the assumption that there will be a human driver that is available to perform these ancillary obligations. Examples of such obligations include:

Rule 266, which requires the driver to ensure that passengers under 16 years old wear seatbelts; and
Rule 287, which requires a driver that is involved in a crash to stop and provide details to any other driver involved in the crash and to a police officer in some.

The solution to this problem is to simply look at each such obligation - there are only a dozen or so - and decide:

who should become responsible for the performance of the obligation when a vehicle is being driven by an automated driving system, or
whether the outcome that the obligation was trying the achieve can be achieved in another way.

The white paper includes a copy of the road rules that has been marked up to show how it can be amended to accommodate automated vehicles

In summary, the changes that are required to our laws to accommodate the next generation of automated vehicles are pretty straight forward. I see no reason why they couldn’t be implemented next year.