Driverless cars to alter legal profession

By Emma Ryan|19 October 2016
Driverless car

While the idea of driverless cars looks set to become a reality, a Baker & McKenzie partner says Australian law is a long way from being ready for this sort of disruption.

According to Patrick Fair, partner at Baker & McKenzie, driverless cars will force regulators and lawyers to adapt.

“The issues that driverless cars raise for the regulators are far more complex than the kinds of issues that are currently dealt with in regulation,” Mr Fair said.

“You’ve got coordination between state and federal law, you’ve got basic challenges regarding the kind of standards that will apply to this new technology and how those standards will be regulated, and then at the core of it, the one thing that keeps coming up no matter who you ask is: what about the laws that say the driver is a person?


“When the driver is a robot, how do you regulate that? What rules should apply when you’re at some stage of creating driverless cars and you’ve got some autonomy but [also] some driver control? These things are very complex and the rules about how they’re going to work have not been formulated properly.”

Mr Fair said self-driving cars are expected to be on Australian roads by 2019, with driverless vehicles accounting for approximately 25 per cent of passenger vehicles by 2030. He also noted that Uber CEO Travis Kalanick expects the company’s fleet to be driverless by 2030.

Mr Fair said there are significant legal challenges associated with the crossover period, when drivers and driverless cars will be sharing the roads.

“Everybody is talking about a five-step standard that exists for one of the international standards bodies, and at step one there’s driver control and at step five there’s robotic control, and in between there are the various stages of responsibility passing between the driver and the robot,” he said.

“So the question becomes, when do you make one responsible? And when is it reasonable to say that the driver is still in control of the car when in fact it’s the robot that’s got most of the responsibility for steering and management?


“Also, it depends a lot on what the robots are capable of doing and whether or not the driver has been trained properly to understand when he should turn it off and when he should take control and when the circumstances are not appropriate for the robot.”

Furthermore, Mr Fair commented on the National Transport Commission’s recent call for national leadership on the future of driverless cars.

“If you go across Australia and you look at the different guidelines that are in place, the South Australians have made provisions for trialling on the highway and they want to be accommodating to driverless cars. The Victorians have adopted the UK guidelines on testing driverless cars,” he said.

“I think the standard should really look like the standard that the US government has just proposed. In particular, it needs to address some of the complexities as to how data is going to be shared on trials, how data about the cars’ passengers is going to be protected and what options passengers will have.”

Mr Fair noted the standard also needs to answer ethical questions in the event of a crash.

“Does [the car] protect the driver or does it protect the people in other cars or on the sidewalk? How does it make that evaluation? ... How does the vehicle talk to people that are outside the car? If you’ve got humans that are driving other vehicles, what are the signals that the automated vehicle would make so that people on the footpath and other people know what the car is doing?” he asked.

“There’s another piece about how these vehicles are treated after an accident and if they’re allowed to go back on the road. Have they certified all the sophisticated sensors and automation elements before they let it back into the public?

“So there’s a whole lot to put out there but it would be great if all of the state governments and the federal government were approaching these questions in the same way and were coming up with a common standard for development of this in Australia.”


Driverless cars to alter legal profession
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