Regulating Johnny Cab: Moving Towards a National Automated Vehicle Safety Law

Californian regulators recently gave the green light to commercial driverless taxi services, providing a glimpse into the future of automated transport. In a happy coincidence for California, it was Arnold Schwarzenegger (former Californian Governor) who rode in one of the first autonomous vehicles on our screens in the 1990 sci-fi classic, Total Recall. The vehicle was called Johnny Cab, an amusingly unreliable and irritating voice-activated self-driving taxi with a robot named Johnny in the driver’s seat.

Australia is trailing comparatively behind in the race to regulate autonomous vehicles. The problem, as described by the National Transport Commission (“NTC”), is that Australia does not have a regulatory framework that supports the deployment of automated vehicles.[1] The NTC has been leading the development of a national regulatory framework for driverless cars since 2016. The NTC reissued the third edition of its Guidelines for Trials of Automated Vehicles in Australia this year[2] following the release of its policy paper for presenting an end-to-end regulatory framework in February 2022.[3]

At around the same time as the release of the policy paper, the Infrastructure and Transport Ministers from the Commonwealth, State and Territories agreed that a future Automated Vehicle Safety Law would be implemented through Commonwealth law (expected to commence by 2026), and that an Intergovernmental Agreement to support the relevant governance arrangements would be developed by late 2023.[4] As we approach the tail end of 2023, we await the Intergovernmental Agreement with bated breath.

The introduction of driverless vehicles on Australian roads presents a wide range of regulatory challenges, from their importation and first-supply to registration, licensing, driving in-service, safety in-service and end-of-life.[5] Importantly, there will need to be detailed consideration of insurance arrangements for damage and loss caused by driverless vehicles and how issues such as liability will be determined.

The resolution of these issues will likely depend on the level of automation of the vehicle. SAE International has developed a five-level taxonomy for the automation of vehicles. Levels 1 and 2 involve advanced driver-assistance systems but still require human operation. Level 3 vehicles can operate autonomously in certain parameters without needing a human operator to monitor the environment but still require the operator to be receptive to any requests from the system to intervene. Level 4 vehicles go one step further as they can operate autonomously in certain parameters without human involvement or intervention because the vehicle can stop unassisted. Level 5 vehicles are the ‘grail’ vehicles as they can operate in all conditions, at all times, with no human required.[6]

The introduction of level 3, 4 and 5 autonomous vehicles are likely to raise interesting issues in relation to determining fault and apportioning liability. Currently, liability for motor vehicle accidents is insured by compulsory third party insurance in respect of personal injury or death, and third-party property insurance in respect of property damage. As the level of automation increases, the question of liability may shift from the operator of the vehicle to the manufacturer, and the relevant form of insurance which becomes more relevant may be public and product liability insurance taken out by the manufacturer. An additional risk for manufacturers is the possible application of the Australian Consumer Law and product safety regulation to claims involving safety hazards, including recalls of defective vehicles.

To ensure that Australia does not get left behind, it is critical that law reform continues to keep pace with Johnny Cab.