Australia: Australia Aviation Newsletter - April 2016

Last Updated: 20 April 2016
Article by Clyde & Co LLP

Welcome to the inaugural Clyde & Co Australia Aviation Newsletter.

Since joining Clyde & Co in late 2013, we have been steadily building the firm's aviation capabilities in Australia with the support of our market leading global aviation team.

In response to the volume of issues that arise in the aviation sector, we have decided to offer our clients and their insurers a local newsletter to highlight issues specific to the Australian market. This newsletter will add to our aviation insights series that includes Clyde & Co's premier global aviation and aerospace biannual newsletter to ensure our clients are kept abreast of industry developments.

In this edition, we review some of the key aviation issues, which have attracted attention over the past year in Australia. We present our Australian team, including our recent joiners Michael Tooma (Partner) and Scott Castledine (Senior Associate). We highlight some upcoming aviation events that we will be speaking at.

We hope you find this newsletter of interest and insightful.

Remotely piloted aircraft in Australia – New rules to take effect in September 2016

Written by Maurice Thompson (Partner) and James Cooper (Special Counsel)

After some delay, Australia's aviation safety regulator, the Civil Aviation Safety Authority (CASA), has announced the approval of new rules governing the operation of remotely piloted aircraft (RPA) in Australia. The new rules will take effect from 29 September 2016.

Understanding the foundations

The recent proliferation of RPA in the market, particularly at a commercial and recreational level, is now a familiar tale worldwide. This has led to debates in all key jurisdictions about the adequacy of current laws to address the needs of this developing industry.

Australia, via CASA, has been at the forefront of the regulation of RPA. From 2002, Australia has had a legal framework in place governing the use of RPA via Part 101 of the Civil Aviation Safety Regulations (CASR Part 101).

Pursuant to the existing CASR Part 101 regime, unless otherwise approved by CASA, all RPA (regardless of size and the purpose of use), are to be operated within the same mandatory operating conditions. In addition, commercial users of RPA (as distinct from recreational users) are also required to hold an operator's certificate (for the operating entity) and a controller's certificate or remote pilot certificate (for the individual remote pilot). These certificates are obtained via an application process managed by CASA. Additional approvals/certificates are required for the operation of "large RPA" i.e. those more than 150 kilograms in weight.

For prospective commercial operators in Australia, a common complaint has been that the existing certification process is onerous, costly and time consuming. At a more general level, concerns have been raised about safety and privacy. These concerns have been heightened by the regular reporting of incidents involving errant RPA, often with serious or potentially serious consequences.

The new RPA regulation

We reported back in July 2014 that CASA had undertaken a review of the existing CASR Part 101 to produce an "up-to-date" regulation better suited to meeting industry demands. Essentially, CASA proposed a new risk-based framework for regulating RPA commercial operations, to be set out in a new standalone regulation (CASR Part 102). CASA had initially set mid-2014 as a preliminary date for the implementation of its proposed new rules.

On 31 March 2016, CASA announced that its proposed new rules governing RPA had been approved at a meeting of the CASA Executive.

The cornerstone of the new regime is the simplification of regulatory requirements for RPA that are considered to be lower risk based on size and operational use (defined in the new regulation as 'excluded RPA'). Thus, all persons operating very small RPA (i.e. RPA weighing 2kg or less) for hire or reward will be exempt from requiring CASA certification or licencing approval. Instead, those operators will merely be required to notify CASA of their identity and the nature of the proposed flight at least 5 business days before the operation, and ensure the flight is then conducted in accordance with a set of prescribed operating conditions. Those operating conditions include:

  • during the day
  • with a visual line of sight maintained by the remote crew
  • less than 400 feet above ground level
  • in non-populous areas, including more than 30 metres from any person not directly involved in its operation
  • not within 5.5 kilometres of a controlled aerodrome.

CASA is creating an online notification system for use by commercial operators for that purpose. It will be an offence to operate such a flight without the appropriate notification to CASA in advance.

CASA's justification for this significant change is that very small RPA of 2kg or less are considered to pose very little risk to aviation and have a low potential for harm to people and property on the ground and other airspace users, provided they are operated under the mandatory operating conditions. The expectation is that this will, in turn, ease the difficulties that have been faced regarding the timely processing and approval of RPA certifications.

Other noteworthy elements of the new regime are:

  • RPA with a gross weight of more than 2 kilograms in all operating conditions, and all RPA operating outside the prescribed operating conditions, will, subject to some exclusions, still require CASA approval / licencing when operated for commercial purposes
  • private landholders will be permitted to carry out some RPA commercial operations on their own land without the need for licencing or other approvals from CASA
  • allowing for more detailed operational matters to be dealt with in a 'Manual of Standards'
  • the creation of 11 strict liability offences, including operating an RPA beyond visual sight, conducting non-excluded RPA operations without holding the appropriate certification, and not complying with the operator's documented practices and procedures.

The authority of the Minister for Infrastructure and Transport has released an explanatory statement setting out the full suite of changes.

Possible implications on the industry

In July 2014, we posed the question "...with commercial operations of such aircraft continuing to increase at a rapid rate and with technological advancements in this area only expected to grow in the coming years, can the law makers keep pace?" It is a challenge being faced across the global industry and one that, in many ways, is out of the regulators' hands.

Safety and privacy are issues that arise repeatedly in this context. Will the new rules provide adequate safeguards to protect against unauthorised or uncontrolled use of RPA? Will existing privacy laws be sufficient to protect third parties against invasive conduct? CASA has already made it clear that issues of privacy are beyond its remit, so where does that leave the industry? Concerns over the new regime have already been expressed, specifically in relation to RPA under 2 kilograms being classified as "low risk" and not requiring operational approval for commercial use, and that this in turn will encourage a drastic increase of RPA flights by unlicensed and uninsured operators with little knowledge of airspace rules and safety.

Despite these concerns, CASA's efforts to modernise the existing regulations should be welcomed and they ensure that Australia remains at the forefront of this developing area.

Once the new regime takes effect in September 2016, it will lead to a very interesting and potentially challenging period assessing the effectiveness of the new rules against the expected continued proliferation of RPA and RPA users in the market. We will continue to monitor developments with interest.

To continue reading this article, please click here.

Australia Aviation Newsletter - April 2016

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