Australia: Drone laws in Australia evolve slower than drone technology

Last Updated: 23 August 2017
Article by John Glynn

With the boom in sales of small unmanned aerial vehicles, or drones, aviation authorities are facing the ever-growing task of administering the laws applying to their use, in particular to breaches of privacy, flying in populated areas and the risk to other aviation activities.

Fines issued by CASA to operators who break drone laws

The Civil Aviation Safety Authority (CASA) recently imposed a fine of $900 on a wedding guest who used a drone to film the celebrations. Another person was fined $900 for flying a drone over a children's Easter egg hunt.

A person who flew a drone in restricted airspace over Sydney Harbour and within 30 metres of people was fined $1,440. An operator whose drone crashed into the Sydney harbour bridge and fell in front of a train was fined.

Infringement notices only issued by CASA in more serious cases

In early July 2017, CASA investigated Senator Pauline Hanson, who had posted a video on social media of herself flying a drone from a balcony over a street. While this matter is now closed, a CASA spokesperson confirmed that the agency receives hundreds of complaints every year about drones being flown illegally.

In the majority of cases, CASA writes letters providing advice and counselling to drone operators who have broken the law. In more serious cases the agency issues infringement notices. A total of 15 infringement notices were issued to drone operators in 2016. Another 12 have been issued between January and August 2017.

The maximum fine for breaking laws governing the flying of drones is $9,000, so it is important to know the rights and wrongs of operating drones.

Laws applying to unlicensed recreational drone operators

CASA's website sets out the current rules for flying drones.

Broadly speaking, in Australia recreational operators who do not have a licence must keep their drone below 120 metres and more than 30 metres away from people. They must also keep visual contact with the drone and not fly over populated areas such as parks, beaches or sports events.

No recreational drones are allowed within 5.5 kilometres of an airport or at a public safety operation, such as a traffic accident, police operation, fire, or search and rescue operation.

To fly a drone outside these restrictions, you need to be licensed and certified by CASA. Using a drone weighing over two kilos to take photos or footage for commercial gain – for example, being paid to photograph real estate or wedding parties – is classified as commercial use. This means the drone operator must apply to CASA for a licence.

Benefits of drone use in farming and beach patrols

The laws regarding drones were relaxed in September 2016 to allow farmers easier access to drones, which have proved to be a convenient and cost-effective way of monitoring crops, livestock, fences and pests. There are now an estimated 50,000 recreational drone operators in Australia and another 1,000 commercial operators.

While drones are proving to be highly useful in farming and for purposes such as spotting sharks off beaches, the proposed expansion of their use to tasks like delivering parcels to your door will stretch the limits of current drone laws and safety regulations.

What happens if a drone injures someone or damages property?

The consequences of reckless flying or breaching the rules could be much higher than just a fine. Because of the definition of aircraft in the Civil Aviation Act, a drone can be considered an aircraft. At present the law is in a state of flux, trying to keep up with the huge advances in drone technology.

If your drone injures someone or damages property or breaches security regulations, such as those in place at airports, defence or security establishments, you could face criminal charges, be sued for damages and be strictly liable for damages that ensue under damage by aircraft legislation.

Privacy implications of drone use still a legal grey area

There have been reports of people spotting drones hovering over their back garden or just outside their apartment balcony, that appear to be filming them. The question of drones breaching privacy is not a clear one under the law, especially if the drone operator is standing on public land.

There is no law specifically banning flying drones over private properties and filming or taking photos. If the drone operator enters private land, he or she could be charged with trespass, but their drone isn't subject to that same law.

Successive federal governments have failed to adopt earlier recommendations by the Australian Law Reform Commission and a parliamentary committee for new privacy laws to protect privacy and guard against intrusion by drones. (See Report: Eyes in the sky – Inquiry into drones and the regulation of air safety and privacy.)

Changes to drone laws in other countries

Other nations are cracking down on the boom in drones. The UK government has recently announced that it proposes to regulate drones weighing over 250 grams, by requiring registration and completion of a safety awareness course by operators. Germany has passed laws banning drones carrying cameras flying over residential areas.

In Australia privacy protection under the Commonwealth Privacy Act 1988 applies only to government agencies and private sector organisations with an annual turnover of more than $3 million.

The NSW Surveillance Devices Act 2007 regulating the use of surveillance devices does not include aerial cameras attached to drones – as long as they don't touch the ground. However, recording conversations without permission is illegal.

Whether the law will be changed to crack down on drones invading privacy remains to be seen. A senate standing committee is currently reviewing safety laws which apply to drones and is due to report by December 2017.

John Glynn
Aviation law
Stacks Law Firm

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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