Australia: Drones: An Unsolvable Regulatory Problem?

Last Updated: 13 December 2017
Article by Maurice Thompson, James M Cooper and Jess Harman

Australia's aviation safety regulator, the Civil Aviation Safety Authority (CASA), is currently reviewing the regulations concerning the safe operation of drones. However, with the rapid development of drone technology and the increasing accessibility of drones to the general public, is it realistic to expect that regulations will be able to keep up with drones?

As of July 2017, it is estimated that there are at least 50,000 Remotely Piloted Aircraft (RPA, commonly referred to as 'drones') being operated in Australia, mainly for recreational and sport purposes. The regulation of ever-increasing RPA-related activities is proving to be a challenge for national aviation safety authorities around the world. Dr Jonathan Aleck, the Head of Legal Affairs at CASA, recently stated that the speed of technological developments in the RPA industry posed a potentially unsolvable regulatory problem. Speaking at the IBA Annual Conference held in Sydney in early October this year, Mr Aleck stated, "the moment you put your finger on the technology, it has changed and advanced ... Every jurisdiction has a roadmap and a plan. Everyone is looking at this and struggling."1

State of play in Australia

Last year we wrote about the updated RPA regulations introduced by CASA in September 2016 (CASR Part 101), which, among other things, relaxed licensing and training requirements for recreational users of RPA and some commercial operators.

Within two weeks of the commencement of the new CASR Part 101, the Australian Government, seemingly prompted by industry pressure, announced a substantive review of the aviation safety regulation of RPA to be overseen by CASA. Separately, a Senate Inquiry was also launched to review the use and safety implications of RPA in Australia.[2]

CASA Discussion Paper

As part of CASA's ongoing review, it has released a 'Discussion Paper' to invite public response regarding the issues and concerns that have been raised following the 2016 amendments to CASR Part 101. The discussion paper focuses on several approaches that CASA could adopt to manage RPA-related activities:

1. Registration of RPA

All aircraft in Australia are required to be formally registered with CASA and display their registration number on the aircraft itself. However, under the current CASR Part 101, there are no registration requirements for drones that fall within the category of 'excluded RPA', which includes drones:

  • used for recreational purposes weighing less than 150kg (which accounts for the vast majority of drones in Australian skies);
  • used for commercial purposes weighing less than 2kg; and
  • operated by private landowners on their own property weighing less than 150kg.

A mandatory drone registration scheme could act as an effective means to deter unsafe or unlawful operation of RPA and to identify those who offend the Regulations. Contact details provided by registered operators could also be used by CASA to convey important safety information and advisory material regarding the safe use of RPA. On the other hand, there is no significant evidence in support of registration requirements acting as an effective deterrent against unsafe operations, and such requirements may simply add a layer of 'red tape' that only serves to stunt growth in the industry. Any attempt to police registration could itself prove difficult given the use of many RPA in remote areas in connection with agricultural and maritime usage.

2. Geo-fencing

Geo-fencing is technology that creates a virtual boundary to keep RPA from entering restricted airspace. Geo-fencing could be used to contain RPA within a particular area, or to exclude RPA from sensitive areas, such as in the airspace of airports, to prevent RPA interference with other aircraft activity.

Geo-fencing also raises numerous interesting problems of its own, for example:

  • what happens to a RPA once it approaches or reaches a geo-fencing area? Does it fall to the ground? Return to its owner? Is it diverted in some other direction or to another location?
  • will geo-fencing systems also impact other low flying aircraft (i.e. piloted aircraft, not RPA) in the surrounding area?
  • geo-fencing software can be installed in the RPA itself, however, the cost implications of including the software in all RPA could be prohibitive to some manufacturers or users.

Although advances in technology show promise that geo-fencing will be an integral tool to the management of RPA in the future, CASA has stated that at this time, the geo-fencing technology available does not meet the requisite levels of technical reliability.

3. Mandatory training for RPA operators

Under CASR Part 101, there are no training or education requirements for 'excluded RPA' (subject to some additional pilot licensing requirements for certain drones operated by private landowners on their own property). This contrasts with the position for commercial drone operations currently adopted in other major jurisdictions such as the US. The UK government also recently announced that it is considering the introduction of basic training for anyone operating a drone that weighs more than 250g.

All RPA operators are required to comply with the safety requirements set out in CASR Part 101, notably the 'standard RPA operating conditions'. However, there are concerns that some amateur users are either unaware or unwilling to comply with these requirements. In the absence of mandatory training, RPA users are not required to learn or demonstrate any level of practical proficiency in the safe operation of RPA before they may lawfully operate their RPA.

International approach

As part of its review, CASA is considering the approach of other national authorities and international organisations. Recently, the International Civil Aviation Organisation (ICAO) proposed to introduce a single, global database requiring the registration of all RPA. ICAO has also discussed a common global framework for traffic management systems for RPA, including communications systems for control and tracking of RPA and geo-fencing to prevent operation of RPA in sensitive security, restricted or dangerous areas. Regulations on a global scale are likely to influence the Australian approach to RPA regulation going forward.

Separate reports regarding both the findings of CASA's Discussion Paper and Senate Committee are expected to be released soon. We will keep you updated with the results of the reviews at the time of their release and their likely impact on the local market.

Footnotes

1 As reported by T Madge-Wyld in the article 'Australian safety regulator safes drones "cannot be managed"', Getting the Deal Through, 12 October 2017 < https://gettingthedealthrough.com/article/5798/australian-safety-regulator-says-drones-cannot-managed?utm_source=Law%20Business%20Research&utm_medium=email&utm_campaign=8772624_GTDT%20Aviation%20Law%20News%2012%2F10%2F2017&utm_content=headline_2&dm_i=1KSF,58100,OWF3UX,K3NV3,1

2 An inquiry is being conducted by the Senate Standing Committee on Rural and Regional Affairs and Transport (RRAT) into Regulatory Requirements that Impact on the Safe Use of Remotely Piloted Aircraft Systems, Unmanned Aerial Systems and Associated Systems: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Rural_and_Regional_Affairs_and_Transport

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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Authors
Maurice Thompson
James M Cooper
 
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