Australia: The Drone Age: not even the sky is the limit for this changing regulatory landscape

Name an industry – any industry – and it's safe to say drones are operating in it.

Or soon will be.

The accessibility, capability and cost-effectiveness of drone technology has exploded in recent years, leading to the use of drones in ways previously unheard of. Farmers are spraying crops with drones. Governments are patrolling beaches with them. The 2018 Gold Coast Commonwealth Games are tendering for a security system that includes drones. We all remember the guy who reportedly flew his drone to Bunnings to pick up a sausage. And soon, we may be replacing the 'selfie stick' with a ' selfie drone'.

The regulatory framework for drones is complex – but it is being reviewed.

REGULATION IN AUSTRALIA

The Civil Aviation Safety Authority (CASA) is responsible for drone regulation in Australia. Australia was the first country in the world to introduce drone-specific regulation. That was back in 2002.

Following recent updates to regulations in September 2016, currently:

  • drones used exclusively for recreational purposes may operate without special approvals or exemptions if they are used under "standard operating conditions";
  • commercial drone usage outside of these conditions requires authorisation; and
  • certain commercial drone operations that are deemed to be lower risk, and private landowners conducting certain activities on their own land, are subject to reduced regulatory requirements and do not need CASA approval.1

The regulatory requirements for the operation of drones are currently the subject of a Senate Committee Inquiry (the Inquiry). The Inquiry seeks input on a broad range of issues including the operation of current regulatory requirements, the likely future social and economic impacts of drone technology, options for improving compliance and comparisons to international regulations. Overseen by CASA, the Inquiry seeks to ensure that regulation in Australia simultaneously enables growth and innovation in drone usage, while facilitating a safe flying environment for all airspace users. The Committee was due to report in April 2017, but the Senate recently granted an extension of time for reporting until December 2017.

GROWTH IN OPPORTUNITIES

Farmers, architects, geologists, real estate agents, local councils, major defence contractors, the military and businesses of all sizes are now using drones. There have been major commercial advances and efficiency gains made within retail, aviation and defence:

Retail and commercial opportunities: A notable example includes Amazon's partnership with the UK Government to explore options for commercial drone deliveries – a partnership which recently saw its first fully autonomous drone delivery. Amazon is looking to create a flying warehouse, from which a fleet of drones could be dispersed to customers. Closer to home, Domino's recently made the world's first commercial delivery of food by drone to a customer in New Zealand (in case you're wondering, the pizzas were Peri-Peri Chicken and Chicken and Cranberry!).

Aviation and community exposure: Aviation companies are always designing and creating the next generation of aircraft. Boeing's drone prototype Phantom Eye stayed aloft fuelled by liquid hydrogen for four days to carry out surveillance and communications missions. BAE Systems is conducting trials to integrate autonomous air vehicles into UK airspace. These days, drone usage is proliferating far beyond military and defence operations, into commercial and civil markets. These new-generation drones are also used for search and rescue, combatting natural disasters such as wildfires, assisting with accident clean-up and supporting criminal investigations. In China, an electric power maintenance company is using drones that " spew fire" to clean rubbish from high voltage powerlines.

Security and surveillance: The US Department of Defence (DoD) has recently announced its successful testing of a swarm of autonomous, 3D-printed micro-drones, named Perdix. The tiny drones are not individually programmed – they operate as one organism and use collective decision-making abilities to work together to achieve a specified objective. These drones may be used offensively (to perform military missions that are either too difficult, or too dangerous, for humans to complete) or defensively (equipped with electronic transmitters to jam radar or fitted with cameras to gather intelligence).

RISING CONCERNS

Safety, privacy and the use of drone technology for illicit purposes has resulted in calls for clearer, more concise regulation around how drones may be used.

Designated no-fly zones: There are calls for regulators to create designated no-fly zones and restricted areas. Prisons are a prime example. A number of Australian states (such as Victoria, the ACT and New South Wales) suggest that making prisons no fly zones would limit the smuggling of contraband into prisons, prevent other illicit activity, enhance safety and improve security. Following a recent case where an individual was sentenced to jail for smuggling contraband into prisons via a drone, the UK Government is looking at hard-wiring the location of prisons into the code of drones, to ensure prisons are no-fly zones. Beyond this, military bases, critical infrastructure and nuclear facilities have all been proposed as no-fly zones.

Safety concerns: There are strong concerns about the safety of using drones. Airports around the world are regularly reporting security and safety threats from drones. Pilots in the UK report numerous near-misses between drones and passenger aircraft. Dubai has even gone as far as deploying a " drone hunter" to prevent unauthorised drone activity near its airport. Despite restrictions in Australia on operating drones close to airports or above populous areas, illegally-flown drones (intentional or otherwise) are seen and reported every day. These concerns have increased following the September 2016 amendments to CASA's regulations to ease licensing restrictions on "low-risk" drone use.

Privacy and surveillance: CASA has no jurisdiction over privacy issues. Australian laws around privacy were predominantly developed in the years where drone technology either didn't exist or simply was not as advanced as it is today. As such, protections afforded by surveillance device laws, state privacy laws and criminal codes are often inadequate in dealing with drone issues – leaving spying, monitoring and other privacy invasions of drone usage a cause for serious concern.

WHAT NEXT?

Technology improvements and popularity surges relating to drones mean our regulatory regime is poised for continued evolution. Until a broad and overarching framework legislating for robotics-related issues is established (and the EU is currently looking at this), regulation is likely to continue to develop in a piecemeal fashion in areas where technology is developing quickly and the need for legislation is most pressing.

We need a comprehensive roadmap for the future, one which is prepared for the continued evolution of drone technology. Aviation safety cannot remain the only focus for regulation. Considered thought must be given to develop regulation for all areas that will be (and already are) impacted by drone technology. To outline just a few examples, consideration must be given to:

  • Privacy: In its December 2016 response to a 2014 safety and privacy inquiry and report, the government explicitly noted it does not support the establishment of a separate tort on privacy. This has left government under mounting pressure to enact legislation that prevents drones from filming property or persons without consent, enact a statutory cause of action for serious invasions of privacy or make our existing laws more technology-neutral and adaptive to drone-related privacy issues.
  • Anti-drone sentiment: The development of a number of anti-drone technologies has been increasing within the military and law enforcement. These 'self-defence' mechanisms include laser beams, infrared cameras, signal jammers, electromagnetic pulses and even training eagles to take down drones mid-flight. As we have seen with drones themselves, these new technologies quickly spread from the military to civil markets. Without appropriate regulation regarding the ability to defend against drones, anti-drone sentiment will continue to rise.
  • The quest for profit: While it may seem like major commercial opportunities are being pursued overseas, Australia is likely to see a rise in commercial use of drones. Domino's is already looking at opportunities for pizza drone delivery trials in Australia. Commercial advancements are likely to occur in well regulated (but not overly complex or restrictive) countries. A refresh of Australia's drone regulation will make us an attractive destination for commercial development.

Drones are providing complex challenges for law makers and regulators regarding effective oversight, community expectations management and how the regulatory landscape should develop. The Inquiry is just the beginning.

Footnote

1Standard operating conditions include operating in daylight and within visual line of sign, flying lower than 120 metres (400 feet) above ground level, keeping at least 30 metres away from people, boats, vehicles and buildings, staying away from prohibited and restricted areas, keeping at least 5.5km away from controlled aerodromes, and remaining away from areas affecting public safety or where emergency operations are underway. For more information on drone regulation, see CASA's website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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