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Who Gets the Fine with a Driverless Car?

The growing development of technology is shaping how we live but also creates challenges, particularly for law-makers trying to catch up with this innovation. This is particularly problematic for...

Janelle Tarabay

The growing development of technology is shaping how we live but also creates challenges, particularly for law-makers trying to catch up with this innovation. This is particularly problematic for the ‘driverless’ car which is expected to take the road in 2020.

The current Road Rules in NSW require drastic reform before these cars can take the road. Here are a few problems with the current laws.

A “driver” under the Australian Road Rules?

In NSW a driver is someone “driving” a vehicle. To “drive” includes to “be in control of”. This definition has obvious problems for the driverless car. Would a person merely sitting in a driverless car exercise any control of the car whilst it is driving?

Although it is still unclear, the type of automation in these cars will range from requiring human control when directed by the system, through to full automation whereby the car operates without any human input.

Our current law may need to be amended so that “control” extends to an absence of physical control by a person at the wheel.

What about vehicle malfunction?

What if the car malfunctions and goes over the speed limit, or worse, causes an accident through no fault of the driver?

The current law does account for vehicle malfunction. A person can argue an honest and reasonable mistake of fact to defend a strict liability offence, such as speeding.

So if a driverless car malfunctions and exceeds the speed limit, but the driver reasonably relied on the car’s systems and believed that the car was still travelling under the limit, the offence would not be made out.

Actions must be Voluntary

Under the Australian Road Rules and the Criminal Code, the conduct of a person committing an offence needs to be voluntary so that any unlawful conduct is a “product of the will of the person whose conduct it is.”

Therefore, even if a driver of an automated car fits under the legal definition of “driver”, under the current laws arguably they could not be found guilty of any breach of the road rules created by a system malfunction.

Other questions arise about the requirements of “drivers” to remain under the limit for alcohol, to exercise adequate care and supervision, to avoid using a phone, or simply just to stay away.

Much will depend on how quickly these cars are integrated into general use, but it will be interesting to see how the laws keep pace of this exciting new area.

Photo by George Sultan