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Driverless cars put legislators under pressure

No hands: Bird&Bird lawyer Hamish Fraser (below) says there needs to major changes to state road laws as driverless technology becomes more mainstream.

Proposed SA laws only scratch surface in preparing for autonomous vehicles

19 Oct 2015

THE legislation the South Australian government has introduced to permit trials of autonomous vehicles later this year is only the start of what will be a major rewrite of road rules to allow the wider use of driverless cars, according to a prominent technology lawyer.

Swedish car-maker Volvo is providing the vehicles – a fleet of autonomous XC90 SUVs – for the trial that kicks off in November in the state's capital Adelaide, with the support of the South Australian government and the Australian Road Research Board.

According to Hamish Fraser, a partner with law firm Bird&Bird, the major challenge facing governments is legislating for there to be no human control in the vehicle.

“South Australia hasn’t really grappled with the big issue yet, which is the mental concept of letting go of the steering wheel,” he told GoAuto.

“We all have a psychological issue in coping with that,” said Mr Fraser, who heads Bird&Bird’s information, communications and technology practice.

He said the SA government has only legislated to permit Volvo to test its driverless car on a closed road.

“What they have really done in South Australia is basically say the road rules don’t apply if it’s a trial and I, the minister, approve the trial.

“It’s an easy way to move to a trial, but to leap across to having the concept of no driver – at the moment you have to have a human behind the wheel – that’s the fundamental step. The whole Australian model is you have got to have a human in control.

“For Australia to truly enter the age of autonomous vehicles there will need to be a raft of legislative changes in all states and territories and some fundamental rethinking of the laws relating to autonomous vehicles.”

80 center imageLeft: Hamish Fraser, partner at law firm Bird&Bird

Mr Fraser said the German government has recognised that it will have to adjust the term of “driver” to include a system that has full control of the vehicle.

“We will have to de-couple that concept of there needing to a human in control of a moving vehicle.”

Equally crucial is the issue of responsibility when something goes wrong, Mr Fraser said.

“You have liability provisions, one of which is the concept of the driver being responsible if the car fails.

“Embedded in our notion of laws is that, if an accident happens, then we look for some sort of negligence by the driver.

“If we move to autonomous vehicles, that concept has to be abandoned and we have to find new responsibility parties. Or do we just sell everything with insurance.”

There are also issues around product safety and testing, and IT security, he said.

Mr Fraser said that, while the South Australian plan is a great step forward, it is really just a carve-out rather than a rewrite.

He said preparations for the use of autonomous vehicles will require a complete, fully committed re-write of the road rules and the surrounding legislative areas.

“The interesting point is I don’t think you can do it incrementally. You can’t do it little bit by little bit.

“We already have all these lane controls, blind spot indicators, automatic emergency braking preventing accidents, all of these sorts of things, but the driver is still in control.

“If you say to a person this car can drive itself completely, and the government says you still have to have a person sitting behind the wheel, that becomes more dangerous because the person doesn’t really need to be driving it.

“Do I need to be paying attention? What if I fall asleep? The car will keep driving if I fall asleep.”

Mr Fraser said governments cannot expect drivers to be able to take back control instantaneously and, therefore, still carry full responsibility.

“At some point you have to completely let go of that notion.”“State governments have to legislate to say it is permissible for a car to be moving without a human able to take control. I think for it to go fully autonomous we have really got to get that to happen.”

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