ADVANCED LEGAL RESEARCH DISSERTATION

A Discussion of the Legal Implications of Autonomous Vehicles

Daniel Thompson

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Abstract

An autonomous or ‘self-driving’ car is a vehicle capable of sensing its environment and navigating

without human input. A number of companies are researching this technology and it is expected to

mature in the next decade or so. Many jurisdictions around the world have started passing

legislation to address this new technology and integrate it into modern transport systems. Australia

needs to consider these different attempts and model its own legislative framework accordingly.

Issues such as liability law, drink driving legislation, driver licensing and other factors also need to

be taken into account.

In the longer term, the prospect arises that autonomous vehicles may come to not just complement,

but almost entirely succeed, manually-driven vehicles. Legal systems will have to consider the

question of whether human drivers, due to questions of safety and efficiency, should retain a ‘right

to drive’ or whether this right even exists. This paper will seek to outline these issues and chart a

possible course forward.

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I INTRODUCTION

While examining a topic such as automated vehicles may sound more like a scientific dissertation, it

must be remembered that technology and the law are intimately linked. For some historical

examples, after the first manned hot air balloon flight took place in Paris in 1783, it was barely six

months before a local ordinance was passed banning their use without a permit.1It was also only

nineteen years after the invention of the first automobile that the United Kingdom passed its Motor

Car Act 1903 requiring every car to be registered and every driver licensed2. It is clear that every

new invention, from cars and planes to firearms and computers, is eventually ensnared in a fresh

web of legislation.

Jurisdictions worldwide are now grappling with the emerging technology of automated vehicles.

This is a field which promises to dramatically transform our society in the coming decades, with

major impacts not just on our transportation systems, but on our economy and legal systems as well.

It is also just a smaller part of the emerging field of artificial intelligence, which may come to

revolutionise nearly every aspect of our lives.

Currents predictions are that autonomous vehicles will start to become commercially viable and

widely used from 2020 onwards. In the long run, one may also make the prediction that by the year

2050 or thereabouts, autonomous vehicles will come to almost entirely supplant human drivers. A

number of jurisdictions may then start to pass restrictions on the freedom of movement of the latter

due to safety concerns and the uniquely greater efficiency of autonomous systems.

1 Peter H Sand,  ‘An Historical Survey of International Air Law Before the Second World War’ (1960-61) 7 McGill Law Journal 24, 25.

2 Motor Car Act 1903 (UK).3

II NATURE OF THE TECHNOLOGY

An autonomous or ‘self-driving’ car is a vehicle capable of sensing its environment and navigating

without human input.3 While prototypes of such cars have existed for decades, it is only in the last

five years that serious moves have been made towards regulating and commercialising this

technology. Some companies, such as Tesla and Google, have received a great deal of publicity for

their work on self-driving vehicles. However, as of April 2016, at least thirty different companies,

most of them major automobile manufacturers, are believed to be exploring the technology.4

Autonomous vehicles are typically fitted with a number of different sensor systems including

cameras, radar and lasers. This allows them to sense the world around them and, through the use of

exhaustively tested software, successfully navigate and avoid collisions with obstacles, pedestrians

and other vehicles.

Many current or planned models are an extension of existing automated systems such as cruise

control, traction control or anti-lock braking. As of March 2016, Google alone has 54 autonomous

vehicles conducting street testing in California, Texas and Washington State. Collectively, they have

completed 1.5 million autonomous miles in seven years. As of July 2015, these cars had been

involved in 14 minor accidents, all of which were found to be the fault of the other party. More than

half of these collisions were cases of the Google car being ‘rear-ended’ by another vehicle.

The usual cause for this has been the Google car’s driving style being, apparently, too perfect. The

vehicles will rigorously obey the law, including completely stopping at traffic lights and stop signs,

something human drivers often fail to do. The first possible exception to this trend only occurred in

3 Corina Larisa Bunghez, ‘The Future of Transportation: Autonomous Vehicles’ (2015) 5(5) International Journal of Economic Practices and Theories 447, 447.

4 Sam Shead, 30 Companies are now Making Self-Driving Cars that Could One Day be 'Deathproof'(22 April 2016) Business Insider Australia <http://www.businessinsider.com.au/30-companies-are-now-making-self-driving-cars-2016-4?r=UK&IR=T>.

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February 2016, when a Google car swerved to avoid sandbags on the road and struck the side of a

bus – an incident Google admitted was partly its fault. 5

As cases such as this demonstrate, numerous kinks must still be worked out regarding the

technology. While the latest models have become adept at navigating city streets, avoiding other

vehicles and obeying street signs, there are still difficulties with, for instance, identifying potholes,

predicting the movements of pedestrians and determining whether a piece of debris on the road is

substantial enough to warrant swerving around. Google cars are also yet to be tested in snow or

inclement weather due to safety concerns. Several companies have announced that the first truly

autonomous vehicles, ones where a human would be a mere passenger at all times, should be

commercially available by the year 2020, legal issues permitting.6

III Current Legal Situation

The first assumption about automated vehicles is that they are not presently legal. However, as

historical examples have shown, the law is typically neutral on new inventions until specific

5 Keith Naughton, Humans Are Slamming Into Driverless Cars and Exposing a Key Flaw (18 December 2015) Bloomberg Technology, <http://www.bloomberg.com/news/articles/2015-12-18/humans-are-slamming-into-driverless-cars-and-exposing-a-key-flaw>; Google Self-Driving Car Project: Monthly Report (March 2016) <https://static.googleusercontent.com/media/www.google.com/lt//selfdrivingcar/files/reports/report-0316.pdf>; Mark Prigg, Can Self-Driving Cars Cope with Illogical Humans? Google Car Crashed because Bus Driver Didn’t do What it Expected (15 March 2016) Daily Mail Australia <http://www.dailymail.co.uk/sciencetech/article-3491916/Google-admits-self-driving-car-got-wrong-Bus-crash-caused-software-trying-predict-driver-do.html>.6 Nickolaus Hines, Ford Says It Will Have Self-Driving Car (Technology) Ready by 2020(24 March 2016)

<https://www.inverse.com/article/13267-ford-says-it-will-have-self-driving-car-technology-ready-by-2020>.

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legislation is passed to ban or regulate them. The wording of existing legislation may or may not

prohibit their use – for instance, if it requires a driver to be in control of a vehicle at all times.

Perhaps the real question to be answered is – by operating an autonomous vehicle, will a police

officer be able to stop you and charge you with an offence of some kind? Jurisdictions can currently

be divided into four categories:

1. No legislation has been passed, but operating an autonomous vehicle is probably illegal;

2. No legislation has been passed, but operating an autonomous vehicle is probably legal;

3. Legislation has been passed allowing testing under specific circumstances; and

4. Legislation has been passed allowing their general operation.

It should be noted that as of 2016, no autonomous cars are available for commercial sale. This

means the fourth category above is currently just restricted to prototypes, but is presumably ready

for the introduction of autonomous vehicles.

A America

As of 2016, legislation concerning autonomous vehicles has been passed in four US states. These

include Nevada (2011), California (2012), Florida (2012) and Michigan (2013) as well as the

District of Columbia (2013). Similar legislation is under consideration in a number of states.7

Nevada is a legislative pioneer in the field, having leapfrogged into the fourth category back in

2011. The Nevada law allows the operation of autonomous vehicles, though they must possess a

specific type of license and registration, including their own unique red number plates, and must

carry proof of insurance. 8

7 Gabriel Weiner and Bryant Walker Smith, Automated Driving: Legislative and Regulatory Action (20 May 2016) Center for Internet and Society <cyberlaw.stanford.edu/wiki/index.php/Automated_Driving:_Legislative_and_Regulatory_Action>.

8 Nev Rev Stat § 483.6

The California legislation permits autonomous vehicles to be operated or tested on the public roads

pending the adoption of safety standards and performance requirements.9 As of 2016, these are still

in development, meaning the state is still in category two, but aiming towards four.10

Florida first passed a law in 2012 allowing autonomous vehicles to be driven under strict

conditions, including a person needing to be expressly authorised by the state and requiring an

instrument of insurance.11 A new bill in 2016 loosened these requirements, with any individual with

a driver’s license now able to operate an autonomous vehicle.12 This moves the state from category

3 to 4. Michigan’s law expressly permits testing of automated vehicles by certain parties under

certain conditions, keeping them in category 3.13

In the rest of the United States, the legal situation is less clear. Similar pieces of legislation are

being considered in a number of other states. Of those who have not yet considered the issue, the

reactions of the police or other agencies to autonomous vehicles may differ. A local police force

may conceivably crack down on autonomous vehicles by citing reckless driving statutes for

instance, or by refusing to register such cars in the first place. New York State has a law requiring a

driver to keep one hand on the wheel at all times14 (likely putting it in category 1), which could

clearly be relevant to users of autonomous vehicles. However, there do not appear to have been any

recent cases of drivers being arrested for piloting an autonomous vehicle, placing the rest of the

United States into category 2.

Shortly before the passage of California’s law, there was controversy over a Google test where a

9 Cal Vehicle Code § 16.6.

10 California Department of Motor Vehicles, Autonomous Vehicles in California <https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto>.

11 National Conference of State Legislatures, Autonomous: Self-Driving Vehicles Legislation <http://www.ncsl.org/research/transportation/autonomous-vehicles-legislation.aspx>.

12 Fla Stat § 316.

13 Mich Comp Laws § 257.

14 NY Veh & Traf L § 33-1226 (2014).7

legally blind driver made use of an autonomous vehicle. This case was supervised by the local

police. However, the California Highway Patrol cautioned that ‘in order to legally drive a vehicle in

California, it must be done so by an appropriately licensed driver’. This is true ‘whether the input

from a driver into the driving of a vehicle is done manually or electronically through entered

commands’.15 While no case went before the courts, police opinion was that an unlicensed driver in

an autonomous car could still be cited. Nevada’s law also prohibits a driver under the influence of

alcohol to control an autonomous vehicle.16

Given the legal uncertainty and differing laws, this patchwork approach may delay the long term

adoption of autonomous vehicles. Partially, it appears to be a quirk of the American legislative

hierarchy. Until this point in time the federal government has determined the technology, which

goes into cars – such as airbags and seat belts, while the individual states decide their own traffic

regulations. An autonomous vehicle blurs these distinctions with both hardware and software that

controls how the car drives. When it is not even clear who should be writing the rules, the quality

and uniformity of the relevant legislation is bound to be poor.

B Europe

Article 8 of the 1968 Vienna Convention on Road Traffic states that ‘every driver shall at all times

be able to control his vehicle or to guide his animals’, presumably putting signatory states in the

first category.17 In 2014, however, an amendment was passed to the convention by the U.N.

Working Party on Road Traffic Safety.18 The new wording allows a car to drive itself, as long as the

15 Mark Hachman, Police: Blind Driver's Trip in Google's Self-Driving Car Was Legal (29 March 2012) PCMag <http://www.pcmag.com/article2/0,2817,2402380,00.asp>.16 Nev Rev Stat § 483.

17 Convention on Road Traffic, opened for signature on 8 November 1968, 1042 UNTS 1671 (entered into force 21 May 1977) arts 8-5.

18 Mark Prigg, Is Europe Set to Win the Race for Driverless Cars? New Treaty Means Automated Vehicles could be on EU Roads Far before the US Gives Go-Ahead (20 May 2014) Daily Mail Australia <http://www.dailymail.co.uk/sciencetech/article-2633237/Europe-set-win-race-driverless-cars-New-global-treaty-means-automated-vehicles-EU-roads-far-US-gives-ahead.html>

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system 'can be overridden or switched off by the driver'. A driver must also be present and able to

take the wheel at any time.19

While a huge step forward, this legislation was still limiting of truly autonomous vehicles. Google’s

latest self-driving cars do not even possess a steering wheel, meaning they could run afoul of local

road rules in the 74 countries that have signed the convention, including most of Europe and such

major countries as Russia and Brazil.

This situation began to be remedied in early 2016, when the transport ministers of all 28 European

Union member states met to sign the Declaration of Amsterdam in which the signatories pledged to

draw up rules and regulations to allow autonomous vehicles to be used on the roads.20 This takes the

legislative process forward. Rather than just repealing prior wording that appeared to ban

autonomous vehicles this takes the next step of beginning to form a legislative framework for their

use, aiming towards categories three or four.

One objective of the declaration is for the member states to work towards a ‘coherent European

framework for the deployment of interoperable connected and automated driving’.21 The goal is that

this framework is in place by 2019. Crucially, by adopting a ‘top-down’ approach, the member

states of the EU seek to avoid the situation that is starting to emerge in America, with a patchwork

of different and sometimes contradictory local laws.

As a sign of times to come, a recent experiment in April 2016 saw several convoys of autonomous

trucks, departing from locations as far away as Sweden and southern Germany and making their

way to the Dutch port of Rotterdam. This was the first cross-border experiment of its kind in

19 Economic and Social Council, Report of the Sixty-Eighth Session of the Working Party on Road Traffic Safety, ECE/TRANS/WP.1/145 (17 April 2014).

20 Declaration of Amsterdam on Cooperation in the Field of Connected and Automated Driving (14 April 2016) < http://english.eu2016.nl/binaries/eu2016-en/documents/publications/2016/04/14/declaration-of-amsterdam/2016-04-08-declaration-of-amsterdam-final-format-3.pdf>.21 Ibid.

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Europe.22

C Asia

As of 2015, twenty-four million cars were made in China, or nearly 30% of the world’s total,

making it by far the world’s largest manufacturer.23 Although car ownership remains low (with only

one car per eight people) it already has more cars on the road than any country except the United

States. Since 1984, more than 123,000km of expressways have been built across the country, now

totalling twice the length of America’s interstate highway system.24 This puts China roughly on par

with Europe or America as a centre of the world’s automobile market.

Like Europe, China has made recent moves to regulate autonomous vehicles using a top-down

approach. In 2016, the country’s Ministry of Industry and Information Technology announced plans

for draft legislation to accommodate self-driving cars as early as this year.25 This calls for

autonomous vehicles on highways within 3-5 years and, in an urban environment, by 2025. Until

then, China appears to be in the second category.

A number of companies have already tested or announced upcoming tests of autonomous vehicles

in China.26 Baidu (the ‘Chinese Google’) recently signed an agreement with the city of Wuhu in

22 Agence France-Presse, Convoy of Self-Driving Trucks Completes First European Cross-Border Trip (7 April 2016) The Guardian <https://www.theguardian.com/technology/2016/apr/07/convoy-self-driving-trucks-completes-first-european-cross-border-trip>.23 Organisation Internationale des Constructeurs d'Automobiles, World Motor Vehicle Production by Country and Type 2014-2015 <http://www.oica.net/category/production-statistics/>.

24 Ministry of Transport of the People’s Republic of China, 2014 Transportation Industry Statistical Bulletin (23 July 2015) <http://www.moc.gov.cn/zhuzhan/jiaotonggaikuang/201507/t20150723_1853384.html>.

25 Jake Spring, Look Mao, No Hands! China’s Roadmap to Self-Driving Cars (22 April 2016) Reuters <http://www.reuters.com/article/us-autoshow-beijing-china-selfdriving-idUSKCN0XK021>.

26 Alex Davies, Baidu’s Self-Driving Car Has Hit The Road (12 September 2015) <https://www.wired.com/2015/12/baidus-self-driving-car-has-hit-the-road/>.

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eastern China, granting them permission to test autonomous vehicles on public roads over the next

five years (reminiscent of California’s 2012 legislation). Meanwhile, Volvo (bought by Chinese

manufacturer Geely Auto in 2010) recently announced plans to test 100 autonomous cars in China

(though details are yet to be decided). Just recently in April 2016, mirroring events in Europe, two

autonomous cars from Chang’an Automobiles completed a 2,000km trip from Chongqing to

Beijing. The company has the stated goal of selling such cars commercially as soon as 2020, in line

with American and European manufacturers.27

D Australia

As of 2016, South Australia is the first Australian state to pass legislation with regards to

autonomous vehicles with the passage of its Motor Vehicles (Trials of Automotive Technologies)

Amendment Bill 2015.28 The bill allows the state’s Transport Minister to authorise specific trials of

automotive technology with the wording:

134D—Minister may authorise trials of automotive technologies

(1) The Minister may, by notice in the Gazette (an authorisation notice), authorise a specified person

to undertake a trial of automotive technology in accordance with this Part.

(2) Before authorising a trial under this Part, the Minister must—

(a) be satisfied that the person has in place, or will have in place before the trial commences,

arrangements for public liability insurance that comply with any requirements under section 134H29.

The insurance requirements are:

27 Bloomberg News, Self-Driving Car Completes 1,200 Mile Road Trip Across China (18 April 2016) <http://www.bloomberg.com/news/articles/2016-04-18/china-s-changan-auto-completes-1-200-mile-autonomous-drive-test>.

28 Motor Vehicles (Trials of Automotive Technologies) Amendment Bill 2015 (SA).

29 Ibid 134D.11

134H—Requirement for insurance

A person authorised to undertake an authorised trial must ensure that there is in force at all times

during the authorised trial period—

(a) a policy of public liability insurance indemnifying the owner and any authorised driver or

operator of the vehicle in an amount not less than the amount specified by the Minister in relation to

the trial in relation to death or bodily injury caused by, or arising out of, the use of the vehicle on a

road; and

(b) a policy of public liability insurance indemnifying the owner and any authorised driver or

operator of the vehicle in an amount not less than the amount specified by the Minister in relation to

the trial in relation to damage to property caused by, or arising out of, the use of the vehicle on a

road; and

(c) any other policy of insurance that the Minister may reasonably require in relation to the trial.30

To deal with the issue of autonomous vehicles contravening other pieces of legislation, the Act

allows the transport minister to grant exemptions for specific trials:

134E—Exemptions from this and other Acts

(1) Subject to this section, the Minister may, for a purpose related to an authorised trial, exempt a

person or class of persons, or a vehicle or class of vehicles, from the operation of a provision or

provisions of this or any other Act, law or standard.31

These exemptions can be revoked. The act creates a penalty for a person who fails to abide by the

conditions of such an exemption, with the maximum penalty being a fine of $2500. Any person who

interferes with an authorised trial may also be subject to a penalty of $10 000.

30 Ibid 134H.

31 Ibid 134E.12

This legislation only allows for specific trials, rather than the general operation of autonomous

vehicles, putting South Australia in category three. A person who drives an autonomous vehicle

without specific permission by the transport minister in South Australia may incur a fine of $2500.

This is approximately twice the fine for speeding by more than 45km/h (the maximum category)32

and seems a reasonable deterrent to unauthorised tests. It is most comparable to Michigan’s current

legislation or Florida’s 2012 law. Both this and the insurance requirements seem very prudent steps.

IV ROADMAP FOR AUSTRALIA

South Australia’s legislation is a good first step, permitting testing with express permission and

fining those who neglect to do so. An obvious problem is that, by adopting laws at the state level,

Australia threatens to go down the path of the United States with a patchwork of local laws. While

Australia has only six states, as opposed to fifty in the US or the twenty-eight members of the

European Union, a top-down approach is still preferable.

Like the United States, Australia faces the problem that there is no constitutional federal power over

road rules, allowing the states to adopt their own. Historically, road rules did differ in Australia,

until they were largely standardised in 1999 by agreement between the federal and state

governments with the adoption of the Australian Road Rules. As part of this agreement, the

National Transport Commission was created to regulate and ferment cooperation between the

different states and territories. Reviews of the Commission’s role are conducted every six years. The

2015 review makes only one mention of autonomous vehicles, describing them as a ‘priority for

future work’.33 Given the speed at which the technology is moving, it may be prudent for the

32 Department of Planning, Transport and Infrastructure (SA), Road Rules: Offenses and Penalties <http://www.mylicence.sa.gov.au/road-rules/offences-and-penalties#summaryofoffences>.

33 National Transport Commission Review Expert Panel, 2015 Review of the National Transport 13

commission to consider the issue immediately, and have the states and territories adopt matching

legislation before 2020, when autonomous vehicles are expected to enter the market.

The best model for this legislation could be Nevada’s 2011 law. An autonomous vehicle should first

be defined, with language to the effect of –

An autonomous vehicle is a motor vehicle capable of sensing its environment and navigating

without human input.

The legislation could then instruct the state transport departments (referred to as ‘the department’)

to adopt guidelines for the introduction of autonomous vehicles, with wording similar to the Nevada

legislation:

The Department shall adopt regulations authorizing the operation of autonomous vehicles on roads

and road-related areas. The regulations required to be adopted must:

(a) Set forth requirements that an autonomous vehicle must meet before it may be operated on a

road or road-related area within this State;

(b) Set forth requirements for the insurance that is required to test or operate an autonomous

vehicle on road or road-related area within this State;

(c) Establish minimum safety standards for autonomous vehicles and their operation;

(d) Provide for the testing of autonomous vehicles;

(e) Set forth such other requirements as the Department determines to be necessary.

Like the Australian Road Rules this legislation should be as close to uniform as possible between

the states, but ultimately the state transport departments must approve of their own regulations.

Commission: Report to the Transport and Infrastructure Council (2015) <https://infrastructure.gov.au/transport/australia/ntc/reviews.aspx>.

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Autonomous vehicles should be immediately identifiable both to other road users and law

enforcement officers. For this purpose, they should be issued with a special numberplate of a

different colour to regular cars. Autonomous vehicles should require insurance on the understanding

that the designer of the technology is liable for any accidents where the vehicle is found to be at

fault. Unlike the Nevada law, special licenses to pilot an autonomous vehicle may not be necessary

as an ordinary driver’s license should suffice.

While it may not have yet occurred with autonomous vehicles, some jurisdictions impose differing

speed limits on different categories of drivers. For instance, New South Wales’ law requires learner

drivers not to exceed an 80km/h speed limit.34 This is inadvisable. Not only would it lead to traffic

bottlenecks, all indications so far are that autonomous vehicles have most difficulty navigating

through dense urban environments at low speeds. Highways are one of the areas where they have

been most successful.35

Given that our road system already has to share its road passages, at times, with pedestrians,

cyclists, horse-drawn carts, heavy vehicles and other forms of transport, adding autonomous

vehicles into this mix, while presenting its own difficulties, should not prove logistically

impossible. Other obstacles come in the form of legal rights and public opinion.

V OTHER LEGAL ISSUES

A Use of electronic devices

With regards to law enforcement, questions arise as to how to quickly visually identify autonomous

against regular vehicles, for instance, with regards to the use of mobile phones and other electronic

34 Road Rules 2014 (NSW) reg 24-1.

35 Jason Dorrier, Google Self-Driving Cars Are Learning to Navigate the Urban Jungle (13 May 2014) Singulatiry Hub <http://singularityhub.com/2014/05/13/google-self-driving-cars-are-learning-to-navigate-the-urban-jungle/>.

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devices while sitting in such a vehicle. Nevada in 2011 adopted legislation to add another category

to the list of exceptions for using a handheld device (such as a mobile phone) while in a vehicle:

For the purposes of this section, a person shall be deemed not to be operating a motor vehicle if the

motor vehicle is driven autonomously through the use of artificial-intelligence software and the

autonomous operation of the motor vehicle is authorised by law.36

Florida passed a similar law in 201337. Australia could adopt the same.

B Liability Law

Currently, great uncertainty surrounds autonomous vehicles and liability law. If such a vehicle

causes an accident, who is at fault, the driver, car manufacturer or designer of the autonomous

systems?

In 2015, Volvo announced they would accept liability for any crashes caused by their vehicles, but,

in many jurisdictions, the law remains unclear.38 Legislation passed in Nevada, Michigan, Florida

and Washington DC limits the liability of a car manufacturer whose vehicles have been modified to

drive autonomously.39 The basic rule appears to be that if a vehicle is at fault in an accident because

of a flaw in the autonomous technology, the designer of that technology will be liable, rather than

the driver or the maker of the unmodified car. Precedents also exist for other autonomous systems.

A 2009 train crash caused by a malfunction of the train’s automatic train-control system led to 21

lawsuits and 84 out-of-court claims. 40

36 Nev Rev Stat § 484B.

37 Fla Stat § 316.305.

38 Chris Ziegler, Volvo says it will take the Blame if one of its Self-Driving Cars Crashes (7 October 2015) The Verge <http://www.theverge.com/2015/10/7/9470551/volvo-self-driving-car-liability>.

39 Weiner and Smith, above n 9.

40 Nathan A Greenblatt, 'Self-Driving Cars and the Law' (2016) 53(2) IEEE Spectrum 46.16

Australia should follow this obvious precedent. Manufacturers are unlikely to design, build and

market a new type of car if there is a chance they will all need be recalled after the first accident.

Autonomous vehicles also bring complex moral equations into play. In one scenario, if an automatic

vehicle faces a choice between hitting a little girl who has just run out onto the road, or veering off

the side, possibly killing the passengers, how should it decide? What if it later emerges that the

software was incorrect and the little girl was in fact a large dog? Strict ethical programming may

have to be implemented by law before autonomous vehicles become widespread.41

C Drink-Driving Laws

A possible use of autonomous cars is to reduce cases of driving under the influence of alcohol by

transporting people home as passengers instead. As of 2012, 24% of drivers killed on Victoria’s

roads had a blood alcohol concentration over 0.05 (by comparison, on average 0.3% of driver’s

tested are above the limit).42 At present, Nevada’s 2011 law prohibits an inebriated driver from

taking the wheel of an autonomous vehicle, and it appears no jurisdiction worldwide currently

allows a drunk ‘driver’ to make use of one.43 This presents a curious contradiction, in that

jurisdictions are permitting texting and even legally blind drivers to pilot automatic cars, but not

inebriated ones.

However, for the time being, it may be best to keep this precedent. No current car can be considered

100% autonomous. Even Google has not yet tested its cars in inclement weather or snow due to

safety concerns. If the autonomous vehicle encounters an obstacle it cannot navigate, the driver is

41 Shane Genziuk, ‘Don’t Blame Me – Blame the Car’ (2015) 38(2) Journal of the Australian and New Zealand Institute of Insurance and Finance 1.

42 Transport Accident Commission (Vic), Drink Driving Statistics <http://www.tac.vic.gov.au/road-safety/statistics/summaries/drink-driving-statistics>.

43 Nev Rev Stat § 483.17

still expected to take control. It should therefore not be legal for a driver to be intoxicated if in

control of a vehicle, even if it is at that moment driving autonomously.

This area, however, should be subject to regular review. If, in the next ten years or so, completely

autonomous vehicles emerge, delegating the ‘driver’ purely to the role of ‘passenger’ then the law

might be changed. A distinction could be made between vehicles with or without a steering wheel

for instance. In the United States, the National Highway Traffic Safety Administration (NHTSA)

has proposed a formal five-stage classification system regarding autonomous vehicles of which only

the final category is completely autonomous.44 Laws could certainly differ based on whether a

vehicle is partially or completely automated.

VI REDUCTION IN THE ROAD TOLL

Reduction of the road toll is surely the greatest single argument in favour of autonomous vehicles,

and explains the billions of dollars invested in research in recent decades. Globally, 1.3 million

people currently die in automobile accidents every year, with another 50 million injured. Current

trends are that middle and low-income countries will see an increase in traffic deaths of 83 percent

by 2020 against 2000 figures, while for Europe and other high-income countries, that figure will

decrease by 27 percent over the same period.45

It would be an exaggeration to say that autonomous vehicles will reduce the road toll by 100%. A

certain number of collisions would seem to be inevitable. For instance, a tree falling in front of a

speeding car which has no chance to brake. However, at least 90% of accidents are attributable to

44 National Highway Traffic Safety Administration, ‘US Department of Transportation Releases Policy on Automated Vehicle Development’ (Press Release, NHTSA 14-13, 30 May 2013) <http://www.nhtsa.gov/About+NHTSA/Press+Releases/U.S.+Department+of+Transportation+Releases+Policy+on+Automated+Vehicle+Development>.45 Bunghez, above n 3.

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human error,46 something that autonomous vehicles may entirely eliminate.

VII FUTURE TRANSPORTATION SYSTEMS

Autonomous vehicles are expected to change our transportation system in a number of ways. The

impact will be more than simply ‘cars driving themselves’ and avoiding routine accidents. Various

techniques become possible in a system made up partly or completely of autonomous vehicles.

A Vehicle Platooning

Due to quicker reaction times, autonomous vehicles could be positioned much closer together on

the road. Human drivers must typically stay two or three seconds travel time behind the car in front

in order to maintain a safe braking distance. On highways, this can mean a gap of 50-100 meters.

Recent trials have demonstrated that autonomous road trains could travel with gaps no bigger than 6

meters between the vehicles. By travelling more closely together, wind resistance and with it fuel

costs would be significantly decreased, as well as overall congestion.47

B Higher Speed Limits

Speed limits have slowly increased over the course of the 20th century. The United States had a

federal mandated speed limit of 55mph (90km/h) until 1987 and 65mph (105km/h) until 1995

before abolishing it entirely. Most individual American states now have limits between 70 and

46 Ibid.

47 E Larsson, G Sennton and J Larson, ‘The Vehicle Platooning Problem: Computational Complexity and Heuristics’ (2015) 60 Transportation Research 258. 

19

80mph (110-130km/h).48 Aside from a few exceptions (such as the German autobahns), most

countries are also in this range. This results in something of a contradiction, as most modern cars

are capable of speeds well in excess of 200km/h.

The two main restraints on speed limits are fuel efficiency and driver reaction times. However, it so

happens that the advent of autonomous vehicles is coinciding with the introduction of electric cars.

These cars promise considerably reduced energy costs, potentially removing both obstacles at once.

A road system dominated by autonomous electric cars could see speed limits increased considerably

to as much as 200km/h. The concept of speed limits could even be eliminated entirely in favour or

simply requiring autonomous vehicles to decide on their own safe speed, as drivers are required on

German autobahns.

C Obsolescence of Traffic Lights and Other Traffic Regulators

A major change in the road system could come about due to the obsolescence of traffic lights in a

road system run solely on automated vehicles. Traffic lights (or else alternatives like ‘stop’ signs or

round-a-bouts) are currently necessary at intersections to regulate traffic and prevent collisions. In a

system comprising solely of self-driving cars, this may not be necessary due to a combination of

inhumanly quick reaction times and instantaneous communications between them.

If two self-driving cars are both approaching an intersection at high speeds, on course for a

collision, it is not necessarily the case that one of the cars must stop entirely to allow the other to

pass, as it would with two human drivers. Based on a simple communication between the vehicles,

one could ‘agree’ to either speed up or (more likely) slow down as they approached the intersection.

At a speed of 100km/h, a difference of less than a fifth of a second means the second car would

48 Brilliant Maps, Who Are the World’s Speed Demons?: The Highest Speed Limits Around The World (16 March 2015) <http://brilliantmaps.com/speed-limits/>.

20

miss the first by just over five meters – enough that the two would not collide. Such a ‘slot-based

system’ is obviously impractical for human drivers. It could only be used in an intersection where

only autonomous vehicles were permitted. This would decrease both travel times and road

congestion.49 An issue does arise however, with integrating such a system with pedestrians, cyclists

and other road users. Regulation 81 of the Australian Road Rules states:

81—Giving way at a pedestrian crossing         (1)         A driver approaching a pedestrian crossing must drive at a speed at which the driver can, if necessary, stop safely before the crossing.50 

This would appear to contradict the practice a slot-based intersection. However, it may still be

compatible with Pedestrian Light Controlled (or ‘Pelican’) Crossings – equipped in Australia with

the ‘little green man’ and ‘little red man’. Traffic would move seamlessly until a pedestrian pressed

a button, at which point all the autonomous vehicles nearby would be ordered to stop.

In addition to the above, a system composed solely of autonomous vehicles could see narrower

lanes and reduced space required for parking.51 It could reduce significantly the 42 hours an average

commuter in America spends stuck in traffic jams each year.52 Car-sharing could become more

common, especially given that under the current system, the average car sits idle for 23 hours and 8

minutes a day.53

49 Remi Tachet, et al, ‘Revisiting Street Intersections Using Slot-Based Systems’ (2016) 11(3) Plos One 1.

50 National Road Transport Commission, Australian Road Rules (as February 2012) reg 81(1).

51 Bunghez, above n 3.

52 Jim Forsyth, US Commuters Spend about 42 Hours a Year Stuck in Traffic Jams (26 August 2015) Reuters <http://www.reuters.com/article/us-usa-traffic-study-idUSKCN0QV0A820150826>.

53 Mark Rogowsky, With the Auto Industry Facing a Dead End, Google Turns the Corner (Driver Not Required) (8 October 2014) Forbes <http://www.forbes.com/sites/markrogowsky/2014/10/08/as-google-drives-toward-the-future-it-would-rather-you-dont-watch/#7287b7261ff6>.

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22

VIII THE FATE OF HUMAN DRIVERS

The combination of all the above factors makes it likely – if not inevitable, that humans will

eventually be considered an unacceptable liability on our roads.54 The American Institute of

Electrical and Electronics Engineers (IEEE) recently released predictions that autonomous cars will

account for up to 75% of vehicles on the road by the year 2040.55

By perhaps 2050, there should be little obstacle, other than human error, to a road system with

routine platooning of vehicles, ride-sharing, highway speed limits raised closer to 200km/h and

many intersections integrated into a slot-based system without any traffic lights or other traffic

regulators. Given these vast improvements in speed and efficiency, it will become harder and harder

to justify the presence of human drivers.

Perhaps starting with highways, and then spreading to the rest of the road system, human drivers are

likely to face restrictions on their movement from about the middle of this century. Such regulation

of our road system is hardly unprecedented. Already, upon entering a freeway in Australia, it is

common to see signs with wording to the effect of ‘Start Freeway: No Pedestrians: Animals:

Agricultural Machinery: Beyond This Point’ or ‘No Cyclists Permitted on this Freeway’. It is

conceivable that similar signs could be installed within the next fifty years, with wording to the

effect of ‘Autonomous Vehicles Only Beyond This Point.’ The detection of an independently driven

vehicle would alert nearby vehicles to its presence, and perhaps cause a reduction in their speed.

The police could then be dispatched to apprehend the offending driver. Sanctions such as a fine or

loss of license could follow, much the same as under today’s road rules.

A Legal Obstacles in Australia

54 Stuart Dredge, Elon Musk: Self-Driving Cars Could Lead to Ban on Human Drivers (18 March 2015) The Guardian,<https://www.theguardian.com/technology/2015/mar/18/elon-musk-self-driving-cars-ban-human-drivers>.

55 Bunghez, above n 3.23

While it may make sense on purely safety grounds, the banning of human drivers may run up

against an individual’s legal right to freedom of movement. This is a basic freedom originating in

common law and also enshrined in s 92 of the Australian Constitution,56 stating:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States,

whether by means of internal carriage or ocean navigation, shall be absolutely free.

A number of cases have dealt with the precise meaning of this section. A distinction has been found

between ‘trade and commerce’ and ‘intercourse’. Case law indicates that ‘trade and commerce’

includes such acts as ‘the mutual communings, the negotiations, verbal and by correspondence, the

bargain, the transport and the delivery’.57

Intercourse, meanwhile, has a broader definition. In Gratwick v Johnson58, Starke J said that the

people of Australia ‘are thus free to pass to and from among the states without burden, hindrance or

restriction’. However, in Cole v Whitfield59 , the High Court indicated this does not mean that

‘every form of intercourse must be left without any restriction or regulation in order to satisfy the

guarantee of freedom’. Mason CJ in Cunliffe v Commonwealth60 also said that the freedom of

intercourse which s 92 guarantees is not absolute. Any law which ‘imposes a burden or restriction’

on movement across a border would be invalid unless it was ‘reasonably necessary’ and the burden

or restriction was not disproportionate to that end. It would be a matter of weighing the competing

public interests. Given that 1,500 deaths a year are caused by vehicle accidents, it is readily

foreseeable the High Court would consider this a ‘competing public interest’.

56 Australian Law Reform Commission, Traditional rights and Freedoms: Encroachment by Commonwealth Laws, Issues Paper 46 (2014) ch 5. <https://www.alrc.gov.au/sites/default/files/pdfs/publications/ip46_ch_5._freedom_of_movement.pdf>.

57 W & A McArthur Ltd v Queensland (1920) 28 CLR 530.

58 (1945) 70 CLR 1.

59 (988) 165 CLR 360.

60 (1994) 182 CLR 272.24

If instead the High Court followed the earlier precedent in Gratwick,61 and decided that s 92 created

a general freedom of movement, this may prevent autonomous vehicles completely replacing

human drivers without a constitutional referendum on the issue. Indeed, it may be advisable for

such a monumental change to be accompanied by a referendum regardless. Given current

technological trends, such an event may occur in a timeframe of around 2050-2060. Regardless, it is

easy to conceive of drivers making legal challenges to a law banning human drivers from certain

stretches of road.

B Other Jurisdictions

Whether humans are effectively banned from driving, at least on certain stretches of road, may

depend on the relevant constitutional rights and weight of public opinion in the jurisdiction in

question. As we have seen, the Australian Constitution has uncertain wording on the issue. A

jurisdiction like the United Kingdom has no constitution, however, it could call upon the common

law or legislation, such as the Magna Carta62 or the English Bill of Rights.63 Indeed, art 13 of the

Universal Declaration of Human Rights reads:

(1) Everyone has the right to freedom of movement and residence within the borders of each

State.64

In any country, which has signed the declaration, it could perhaps be used to mount legal challenges

to any laws restricting the movement of human drivers.

61 Gratwick v Johnson (1945) 70 CLR 1.

62 Magna Carta 1297 (Eng) 25 Edw 1, c 42.

63 Bill of Rights 1688 (Eng) 1 Wm & M sess 2, c 2.

64 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd esee, 183 plen mtg, UN DOC A/810 (10 December 1948) art 62.

25

While not dealing specifically with autonomous vehicles, a number of cases have challenged other

pieces of legislation restricting people’s freedom of movement. Of particular relevance would be a

2011 case from the American state of Kentucky. Eight men, belonging to the local Amish

community, were charged for failing to abide by a recently passed law requiring them to display

bright orange triangles on the back of their horse buggies. This was passed after a string of recent

crashes between buggies and other vehicles.65 As the display of these bright symbols went against

their religion, the Amish refused and were subsequently fined and, after refusing to pay the fines,

sentenced to short terms of imprisonment.66 In 2012, the Supreme Court of Kentucky upheld the

convictions,67 however, the state legislature also changed the law, allowing other alternatives to the

orange triangles to be used.68

It is easy to see similar cases occurring, perhaps in another thirty or forty years, regarding manually

piloted vehicles. Also noteworthy is the way the criminal convictions, along with subsequent public

support (the men concerned were represented by the American Civil Liberties Union) compelled a

change in the law. The Amish population in North America is just 250 000 – less than 0.1% of the

general population69 and it appears only a minority have objections to displaying any required

symbols.

More than any other factor, the weight of public opinion could delay laws to prevent humans from

driving. Drivers currently make up the vast majority of the population. Another group worth

considering are motorcyclists. As of 2015, of the 18 million vehicles on Australia’s roads, more than

65 Ky Rev Stat § 189.820.66 Jo Adetunji, Amish Jailed by Kentucky Judge over Warning Triangle Fine Non-Payment (17 September 2011) The Guardian <http://www.theguardian.com/world/2011/sep/17/amish-jailed-kentucky-warning-triangle-fine>.

67 Gingerich v Commonwealth of Kentucky 382 SW 3d 835 (Ky Sup Ct, 2012).68 American Civil Liberties Union, Kentucky Supreme Court Upholds Convictions in Amish Buggy Dispute

(25 October 2012) <https://www.aclu.org/news/kentucky-supreme-court-upholds-convictions-amish-buggy-dispute>.

69 Nate Berg, Why the Amish Population is Exploding (1 August 2012) City Lab<http://www.citylab.com/politics/2012/08/exploding-amish-population-bubble/2795/>.

26

800,000 are motorcycles, or 4.5% of the total70. At present, there does not appear to be any

foreseeable way by which a motorcycle can become self-driving (given that the rider must

mechanically move the handlebars and use his legs to steady the bike when stationary). If human

drivers are to be banned from a stretch of road, presumably it will become off-limits to all cyclists

and motorcyclists as well. One counter-argument is that motorcyclists pose little risk to other road

users, given that in a collision, a motorcycle is less likely to cause great damage to a car or its

occupants. For this reason, they may be allowed to continue riding, solely at their own risk.

As a sign of things to come, the proportion of the population who have a license (in America at

least) has been declining since the 1980s. Regarding young people, 69% of 19 year olds had

licenses in 2014, compared to 87.3% in 1983.71 On the issue of banning human drivers, some

polling has already been conducted. A 2015 poll indicated that 27% of Americans – a surprisingly

large minority, would support restrictions on human drivers if autonomous vehicles were found to

be safer.72

IX CONCLUSION

Given current trends, autonomous vehicles as a technology are likely to mature in the next five to

ten years. Worldwide, there is widespread enthusiasm for their legalisation and many jurisdictions

are already laying the legislative groundwork for their use. Given current trends, in developed

countries at least, a steep decline in the road toll, perhaps close to 90%, can be expected in the

coming decades.

70 Australian Bureau of Statistics, 9309.0 - Motor Vehicle Census Australia (31 January 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/9309.0>.71 Julie Beck, The Decline of the Driver’s License (22 January 2016) The

Atlantic<http://www.theatlantic.com/technology/archive/2016/01/the-decline-of-the-drivers-license/425169/>.

72 Nathan Mcalone, A Surprising Number of Americans say they'd be up for Letting Driverless Cars Replace Humans on the Road (6 June 2015) Business Insider Australia <http://www.businessinsider.com.au/27-of-americans-support-legal-restrictions-on-human-driving-2015-6?r=US&IR=T>.

27

Australia should seek to adopt, as soon as possible, updated laws permitting the testing and eventual

commercial sale of autonomous vehicles in Australia. The Nevada and California legislation should

be looked at as precedents. While the individual states have to adopt their own legislation these

should be as uniform as possible in line with the Australian Road Rules.

Longer term, it is less clear that most jurisdictions will embrace the idea of a completely automated

transport system. Due to concerns with freedom of movement and a general enthusiasm for driving,

it may be a considerable while before completely autonomous systems become a reality, allowing

changes such as higher speed limits and the slot-based traffic systems described above.

Any country considering this should look at all the possible impacts, gauging public opinion as

widely as possible, before making such a revolutionary change. If this does come to pass, no doubt

legal challenges will emerge to any laws restricting the freedom of movement of human drivers. As

with many areas of law, the issue comes down to an ongoing balancing act between people’s

security and freedom.

Word Count: 6,517

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