Automated vehicles, the ‘driver dilemma’, stopping powers, and paradigms of regulating road traffic

This article examines the driver dilemma as it applies to the increasing automation of road traffic with a focus on roadside enforcement stopping powers. The driver dilemma exists where road traffic laws are expressed as directed toward human drivers. As automation increases, it becomes more problematic who is the driver, in fact and in law, for the purposes of international and national road traffic laws. An obvious solution to the driver dilemma is to enact reforms that deem automated driving systems ‘drivers’ under road traffic laws. This can be seen in recent amendments to the Vienna Convention on Road Traffic. However, the deeming solution has limitations. Through a case study on specific Australian provisions that authorise roadside enforcement officers to stop vehicles, two paradigms informing regulation of road traffic are revealed. The legacy paradigm, founded on the unity of driver and vehicle, conceives road transport involving individuals with an expectation of freedom of movement. The deeming solution attempts to preserve this paradigm. The case study also revealed an alternative paradigm of road traffic as a system that should be regulated to ensure overarching public policy goals. This alternative paradigm is evident in the specific passenger transport laws, where stopping powers are expressed as vehicle-centric. There is no driver proxy and no need for a further wrong for the powers to be enlivened. The article concludes that automated transport futures need this alternative paradigm of road traffic regulation and vehicle-centric rules should be a template for more adaptable road traffic laws.