Australia: No longer flying under the radar: the future of drone regulation

Drone technology provides a number of opportunities for many industries, however it poses risks to many others. Aviation is concerned about the risk of accidents with drones flying too close to aeroplanes. Corrections are concerned about how drones can be used to smuggle illicit substances into prisons. Landowners are concerned about the risk of trespass as operators remain fairly anonymous.

While there is presently fairly little regulation applicable to light-weight non-commercial drones, the safety issues are being considered carefully and may result in new, more prescriptive regulation.

"Say, tomorrow, out of Brisbane Airport, a passenger aircraft with 150 people on board has contact with a drone and there's a full catastrophic event with the loss of all life, and then the following day we have another one—what would your view be?

... did you agree with the government's move after Port Arthur, where there was a tragedy that was totally foreseeable and predictable with the use of firearms, to revamp very aggressively firearm ownership and rules around it in this country?"

Senator O'Sullivan, Senate Committee hearing into the regulatory requirements and the safe use of remotely piloted aircraft and unmated aerial system, 29 August 2017

A BLANKET BAN?

It is well-known that the current use of drones poses serious safety risks. Reports keep coming in that drones are being flown dangerously close to aeroplanes and helicopters.

Studies show that a collision between a commercial aeroplane and a drone could have catastrophic consequences, with drones causing more damage than a bird of the same size and weight.

Further, the use of drones in areas of public safety has been known to restrict the use of life-saving aviation, such as Special Emergency Services aircraft being unable to take steps in relation to a bushfire when the (unlawful) use of drones in the area prevents safe take-off.

There is notable concern that drone technologies provide new opportunities to commit acts of terrorism.

If a catastrophic event did eventuate, it is possible that targeted punitive action against the operator causing the damage could be difficult, as it can be difficult to identify who has operated a drone. In those circumstances, a blanket ban may be an appropriate response. However, such a drastic measure is unlikely and until then, we may have to be satisfied with incremental actions to improve drone safety.

GREATER PUBLIC EDUCATION

Australia's Civil Aviation Safety Authority continues to take steps to try and improve drone use through education. In May 2017, CASA launched the "Can I Fly There" free app (developed in partnership with Drone Complier) which illustrates where drones are allowed to be flown in Australia under standard operating conditions. These conditions include restrictions on flights around aerodromes, helicopter landing sites and prohibited and restricted areas.

In February 2018, drone manufacturer DJI developed a mandatory quiz of drone flying laws which users must pass before they are able to use their DJI drone. The pre-flight text follows similar roll-outs in the United States and the United Kingdom. CASA welcomes the quiz

The education tools and programs are a welcome step in the right direction to ensuring that users understand the laws before they use their drones. However, if the safety risks associated with drone use commence to materialise on a regular basis, then the regulator may seek to replace the relaxed laws for licence-less use, and seek to require individuals to demonstrate proficiency before using drones.

WILL GEO-FENCING BECOME MANDATORY?

While the "Can I Fly There" app goes some way to giving users the opportunity to inform themselves about the legality of flying locations, it does not ensure compliance. Some manufacturers, such as DJI, have incorporated geo-fencing in their drone software however such programming is not in effect for all other brands of drones.

"Geo-fencing" refers to electronically setting up boundaries so drones cannot access a certain area. This could either be programmed within a drone, or transmitted from an external source to drones within the area (e.g. from an airport). Presently, geo-fencing is not required by law in jurisdictions around the world, however the European Union and United Kingdom have announced that they will consider making it mandatory.

In its 2017 consultation on drone regulation, which attracted over 900 responses, CASA asked whether geo-fencing should be mandatory. 47% of respondents supported it, comprising 45% of the 739 respondent individuals and 52% of the 171 respondent organisations. Respondents generally supported geo-fencing as increasing safety (e.g. around airports), but had concerns that the technology could be expensive or circumvented.

The case for geo-fencing extends beyond just protecting no-fly zones such as around airports, but it is advocated to extend to other populous areas such as stadiums and other large event spaces.

It is likely that any further consideration of geo-fencing regulation will be highly dependent on defining and standardising the specific geo-fencing technology required, and ensuring the risks associated with it are managed.

A CASE FOR DRONE REGISTRATION

One of the greatest challenges to enforcing drone laws is that it can be difficult to identify the operator of an unlawfully-flown drone. Presently, there is no requirement for model aircraft or drones under 150kg to be registered.

In its consultation, CASA asked whether drone registration should be mandatory. Such registration would require the operator to have contact details registered with CASA, and require a unique marking on the drone (such as a number plate) to identify the operator based on visually sighting the drone.

An overwhelming majority of consultation respondents supported registration. However, responses were more disparate when considering whether drones should be registered by the owner, operator or RPA, and whether it should be registered by weight or by operation. A significant proportion of respondents considered that "small" drones (between 100g and 2kg) should not be registered due to the excessive compliance burden.

Following the consultation, CASA announced that it's developing a remotely piloted aircraft systems regulatory roadmap".1 Among other topics, it identified "registration and e-identification" as a focus for its vision of drone regulation going forward.

The difficulty is that even if registration becomes mandatory, the requirement may be circumvented for the simple reason that those not complying with it are difficult to identify.

SHOULD COUNTER-DRONE TECHNOLOGY BE PERMITTED?

Understandably, concerned land-holders are considering the use of counter-drone technology to safeguard their legitimate property rights from unlawful drone use.

CASA acknowledges that "insensitive and irresponsible" drone operators are eroding people's rights to quiet enjoyment of property and freedom from trespass, unlawful surveillance and other disruptive intrusions. However, it reminds people that tampering with, or threatening the safety of, aircraft is a serious offence under civil aviation legislation.

A significant number of consultation respondents supported the use of counter-drone technology by law enforcement personnel such as police and emergency services. Only 19 respondents suggested that similar technology should be available to public and commercial users.

While the responses are not binding on CASA, it says it will take them into account when deciding how drones should be regulated. The responses suggest that it is highly unlikely counter-drone technology will be permitted in the future for those other than law enforcement, so companies should not be looking to rely on it. However, other drone strategies are on the table, including drone 'radar' technology.

LOOKING AHEAD

Landholders and those for whom unlawful drone use poses risks should celebrate the current trajectory of drone regulation, which appears to be prioritising safety and enforcement. The question is whether appropriate regulation is happening fast enough given the obvious safety and other risks.

Footnote

1 CASA announcement 'Drone roadmap is coming' dated 26 April 2018 available at https://www.casa.gov.au/publications-and-resources/publication/april-2018.

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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