Sydney, 18 November 2016: Australia's
Transport Ministers are proposing a different road to the US in
allocating legal responsibility for the next generation of
automated vehicles - with the Australian position favouring
manufacturers over drivers, according to a new Clayton Utz
'Steering the course for future driverless vehicles
regulation in Australia' critiques the regulatory
reform pathway1 approved by Australia's Transport
and Infrastructure Council earlier this month. The next generation
of automated vehicles is expected to be commercially available
around 2020 and will allow the human driver to take his or her eyes
off the road for extended periods of time.
Clayton Utz partner
Owen Hayford, one of the report's key authors, said the
United States' Federal Department of Transportation had gone
down the road of making the entity responsible for the automated
driving system - most likely, the manufacturer - legally
responsible for road rule infringements caused by the vehicle once
the automated system assumes responsibility for watching the road.
The Australian Transport Ministers, however, think legal
responsibility should lie with the human driver.
"By making the driver responsible for the vehicle,
regardless of the fact the underlying driving system is automated,
the driver rather than the manufacturer is more likely to be held
liable for any property damage or personal injury the vehicle
causes. However this may not be the case where a failure of the
automated driving system, for example, is a significant
contributing factor. It is highly likely that a number of factors
will be relevant to the ultimate determination of liability, which
means questions of liability and access to compensation for victims
won't be clear cut, " said Owen.
Owen said under the current proposals, the position for
manufacturers was "mixed". "While manufacturers will
take less responsibility for the actions of the vehicle, they will
still have to submit a safety case for the vehicle to the
Australian regulator, even though the vehicle can only operate with
a human driver. However manufacturers will probably consider this a
small price to pay for the Australian position on
Owen said the initial rationale for the Transport and
Infrastructure Council's proposal of a new national safety
assurance regime for automated vehicles was the absence of a
licensed driver with demonstrated minimum driving competencies.
However, the Council is now proposing that such a regime focus on
vehicles that will still require a licensed human driver to take
back control of the vehicle when requested.
"This change in position perhaps reflects an sense of
unease with the idea that an automated vehicle driving system
should be wholly responsible for watching the road until such
systems prove themselves to be safe," said Owen, adding that
creating a new legal framework for automated vehicles was not an
"The regulatory environment for the use of motor vehicles
in Australia is complex. The National Transport
Commission2 has already undertaken some valuable work in
identifying regulatory barriers for automated vehicles and options
to address these. Our latest report and our
'Driving into the future: Regulating driverless vehicles in
Australia' (PDF 11.8MB) report seek to build on that work
and identify some of the key areas that legislators and regulators
can start looking at now to ensure a clear and consistent approach
to issues such as liability, access to data, cybersecurity and, at
a Federal level, minimum safety standards."
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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The Australian High Court was recently given an opportunity to consider the reach of the Damage by Aircraft Act 1999 (Cth) in the cases of ACQ Pty Limited v Cook and Aircare Moree Pty Limited v Cook (both of which were heard together).
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