Driver distraction is a major problem. Every driver will have experienced conventional (and legal) types of distraction, such as eating, drinking and interacting with passengers while at the wheel. However, the advent of newer technological forms of distraction (smart phones, smart watches and navigation systems), has put a renewed focus on the potential for a driver to be distracted and have an impaired ability to maintain proper control of the vehicle. The Australian Road Rules relating to driver distraction have been outpaced by these technological developments.
Against this background, and as part of its broader regulatory reform agenda, the National Transport Commission (NTC) is undertaking a project aimed at identifying, regulating and mitigating the safety risks arising from driver distraction.
The problem
The scope of driver distraction as a safety issue is not as readily defined or as widely studied compared to other road safety risk factors (such as, drink-driving or speeding).
While research is more limited, it is known that visual, manual, auditory and cognitive factors act in concert to distract drivers. The NTC reports that a recent Australian study found that while at the wheel drivers are engaged in a non-driving task approximately every 96 seconds.
Adding to the problem is that the Australian Road Rules do not define driver distraction or the types of behaviours that may constitute driver distraction. Further, the rules focus on the type of technology being used by drivers (for instance to limit or prevent their use) rather than their function and do not address non-technological activities proven to cause driver distraction.
How do our Road Rules need to be updated?
The NTC identifies that a focus on restricting the types of technology used by drivers, rather than the cognitive workload they impose on drivers, has led to the Australian Road Rules becoming outdated and confusing. The current rules also date back to 1999 when mobile phone features were mostly limited to texting and calling. Therefore, they do not contemplate a host of common features in modern mobile devices or distinguish between new functions on devices which assist in performing the driving task (such as the use of GPS or advanced driver assistance systems) and / or cause distraction.
The NTC considers that the current Australian Road Rules which primarily regulate driver distraction are:
- rule 297 which requires a driver to have proper control of the vehicle;
- rule 299 which restricts the use of television receivers and visual displays if visible to the driver or likely to distract another driver; and
- rule 300 which prohibits the use of a mobile phone while the vehicle is moving or stationary but not parked, with limited exemptions.
While each State and Territory has largely enacted these rules consistently some variations do exist. For instance, in addition to rule 297, Victoria has introduced a separate offence of travelling on an electric personal transporter without having proper control of it.
The NTC proposes that improved or specific legislation which addresses advancements in innovation and provides clearer guidance on compliance with the driver distraction rules is required. Any legislative changes need to be nationally harmonious (and, ideally, also consistent with international approaches).
Of course, to the extent that driver distraction forms part of the activities of a workplace, the general safety regime will also respond. Once again however, this regime is not well equipped to address advancements in innovation.
Is driver liability the best solution?
The current regulatory approach focuses on the culpability of individual drivers, relying on drivers following the law and self-regulating and there being effective external enforcement.
The NTC proposes that a better approach would be one formulated with regard to the Safe System approach, which is a holistic view of the road transport system that allows for mistakes and contemplates limits of human concentration and tolerance of force in crashes. Responsibility for road safety would not rest with one individual, but be broadened to also include those in the transport system chain (including technology providers, governments and industry entities that design, build and maintain roads and vehicles). This would operate in a similar way to the chain of responsibility provisions introduced under the Heavy Vehicle National Law in the context of the heavy vehicle transport supply chain.
Is technology a help or a hindrance?
Mobile technology is increasingly integrated with in-vehicle technology, and can provide useful assistance to drivers – think Apple CarPlay, Android Auto, and large in-vehicle touchscreens built into Tesla cars and other modern vehicles. Yet no Australian guidelines exist for design principles for in-vehicle systems. Any guidelines need to strike a balance between facilitating the use of assistive technologies and managing potential distraction.
Are driverless cars the answer?
Effective long-term regulation will need to contemplate emerging technologies and the shift to automation. As levels of automation increase the driver workload will necessarily decrease which may give rise to issues of boredom and fatigue. It will also bring with it a shift away from personal driver liability to an entity (or series of entities) responsible for the 'automated driving system', such that the issue of driver distraction may ultimately become redundant.
A significant part of any new regulation will need to address the issues of driver inactivity and inattention related to vehicle automation (for instance, due to overreliance on vehicle automation), particularly as we transition over a number of years from 'fully driven' to 'fully automated' vehicles.
Should laws be more flexible?
The NTC identifies that performance-based regulation provides flexibility for compliance and better allows for future innovation, but can generate uncertainty about how to comply with the relevant requirements.
Conversely, prescriptive legislation provides certainty, and can be more easily enforced, but is inflexible and at risk of being outdated.
The NTC suggests that both forms of regulation will need to be implemented to develop an appropriate regulatory system. Non-regulatory measures, such as guidelines and public education campaigns, will also be required to support drivers' self-regulatory behaviour and decision making.
Responses to the NTC's issues paper
Submissions in response to the NTC's issues paper on 'Developing technology-neutral road rules for driver distraction' were submitted prior to 14 February 2019. The NTC will release its findings and recommendations later in the year.
