Australia: Using Commercial Drones: What Are The Legal Risks?

Last Updated: 22 November 2018
Article by Ben Allen and Sally Tuckfield

With Amazon's entry into the Australian market - the global internet retailer which has already paved the way for drone deliveries in the USA to deliver its retail goods – industry stakeholders have begun considering the regulatory and legal framework in which commercial drone technology operates in Australia. In combination with other functionalities such as GPS and live streaming technology, the potential applications for drones now range from surveillance (in the areas of security, insurance, agriculture and mining) to photography and the delivery of consumer goods. There is growing interest in Australia around the use and implications of aerial drone technology, which has, over recent years become more affordable and accessible to the public and private sectors.

In response, the Commonwealth Parliamentary Standing Committee on Rural and Regional Affairs and Transport References reviewed the regulatory requirements for commercial and recreational use of drones and released its report on 31 July 2018. Significantly, the Committee recommended that there be a whole of government response to drone use which administers a mandatory registration regime and tiered education program as well as oversees the harmonisation of state and territory privacy laws. Broadly, the recommendations were supported by the Australian Association for Unmanned Systems however the Government is yet to respond, particularly in relation to privacy law issues that arise.

Existing legal regulations

The Civil Aviation Act 1988 (Cth) and its subordinate regulation, the Civil Aviation Safety Regulations 1998 (Cth) governs civil aviation safety in Australia. Section 9 of the Act establishes the Civil Aviation Safety Authority (CASA), the Commonwealth statutory body responsible for the oversight and administration of the Act and its regulations.

Amendments passed by Parliament to Part 101 of the Civil Aviation Safety Regulations 1998 (Cth), which relates to unmanned aircrafts, took effect from 29 September 2016. Specifically, drones weighing 2kg or less must not fly:

  • higher than 120m in a controlled airspace;
  • over groups of people, including over beaches, parks and sports events;
  • over or within 5.5 km of prohibited or restricted airspace; and
  • in fog, clouds, at night or out of the visual line of sight of the operator.

The operators of drones over 2kg and any drone used for commercial purposes:

  • must register the drone with CASA;
  • must have an operating certificate; and
  • follow safety procedures similar to those for manned aircraft.

Some general exemptions to the above rules apply to private landowners where drone use is confined to their own properties.

Possible intrusions to privacy

Many observers have cast a critical eye over Australia's current regime with respect to privacy laws as it applies to the use of surveillance equipment on drones. Currently, only private organisations with a turnover of more than A$3 million annually and certain government agencies must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles which imposes certain rules in relation to the collection, use and dissemination of personal information by the organisation. It is relevant to surveillance equipment on drones insofar that a person's identity is clear or can be reasonably be worked out from the recorded information.

Under the Surveillance Devices Act 2007 (Cth), the use of a "listening device" or "optical surveillance devices" to record a private conversation without the consent of the person the subject of the recording is a Commonwealth criminal offence. Most Australian states, including NSW and Victoria, have equivalent state legislation prohibiting the use of listening and optical surveillance devices.

Aside from the above statutory remedies, drone operators should be aware of the risk of breaching confidence if images are surreptitiously obtained. This cause of action is considered the closest form of protection that we have to a common law right protecting our privacy. The traditional formulation of the cause of action for breach of confidence has three elements:

  1. the information must have the necessary quality of confidence;
  2. the information must be communicated in circumstances importing an obligation of confidence; and
  3. there must be an unauthorised use of that information to the detriment of the communicator. 

The first limb has been broadened in recent times to include the protection of personal identities and domestic activities (see, for example, Australian Football League v The Age Co Ltd (2006) 15 VR 419).

Other possible torts

Drone operators should also be aware that it may risk trespassing on private property if the if the height of the drone intrudes the airspace necessary for the occupier's ordinary use and enjoyment of the land (JP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490, 495-6).

Furthermore, where the drone substantially and unreasonably interferes with rights in relation to or in connection with the use of the land of a particular individual, a complainant may be able to make out a breach of the tort of nuisance (AG v PYA Quarries Ltd [1957] 2 QB 169 at 190-1). Generally, a complainant must make out multiple infractions for a breach to occur (see JP Investments Pty Ltd v Howard Chia Investments Pty Ltd at 496).

Key takeaway points

  1. The legal framework in relation to commercial drone activity is mosaic and will likely be subject to further reform by the Commonwealth Government, particularly in relation to the privacy laws.
  2. Commercial drone activity is subject to CASA's regulation in respect of unmanned aircraft.
  3. A drone operator must take due care with the use of surveillance equipment and the manner in which it holds and disseminates information gathered from such equipment.
  4. Drone operators may be liable for breaches of trespass and nuisance if the drone interferes with an occupier's reasonable enjoyment and use of the land. 

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Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

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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