Regulating the swarm of drones which have hit the market

By Sarah O’Brien-Smith – Associate at Hunt & Humphry.

The potential applications and implications for remotely piloted aircraft (or RPA, the currently preferred term for drones) are vast and are still being explored. The energy and resources sector has reported using RPAs for surveying and mapping, land development and monitoring, exploration, infrastructure inspection and maintenance, gathering aerial imagery, thermal imaging, resource calculation, stockpile management and rehabilitation. The Department of Mines and Petroleum is currently using RPAs to assess compliance with conditions on tenements under the Mining Act 1978 (WA).

As operations often span hundreds of kilometres across remote landscapes, the key driver for the use of RPAs is gaining information efficiently and safely.

The increasingly widespread use of RPAs prompts a range of legal questions about the rights and obligations of RPA operators (commercial and recreational) and landowners or occupiers (who have to deal with RPAs in their vicinity), including issues of privacy, trespass, intellectual property and safety.

The Law

The Civil Aviation Safety Authority (CASA) is the air safety regulator in Australia. CASA issues licences, operator’s certificates, issues infringement notices and provides education, training and advice.

Australia is recognised internationally as a leader in RPA regulation, as it was the first country to formally regulate the operation of RPAs, in 2002. The key legislation relating to RPAs is the Civil Aviation Safety Regulations 1998 (Cth) (Regulations). Amendments to the Regulations in September 2016 signaled a relaxation of RPA laws in Australia, particularly when flying very small RPAs (under 2kg) commercially and private landowners carrying out some commercial based operations on their own land.

RPAs are categorised by their weight – micro (100g or less), very small (more than 100g but less than 2kg), small (2kg or more, but less than 25kg), medium (25kg or more, but less than 150kg) and large (150kg or more). Most RPAs on the market (including for commercial use) fall within the “small” to “very small” categories.

Flying recreationally

Very small, small and medium RPAs can be operated for sport or recreation purposes without CASA approval or a licence if they are operated within the standard RPA operating conditions set out in the Regulations. The standard operating conditions are:

  • the RPA must be within the visual line of sight (close enough to see with the operator’s own eyes) and during the day;
  • the RPA must be flown at or below 120 metres (400 feet);
  • the RPA must be kept at least 30 metres away from other people;
  • the RPA must not be flown in a prohibited area, a restricted area or within 3 nautical miles (5.5 km) from controlled aerodromes;
  • the RPA must not be flown over populous areas, meaning an area where, in the event of loss of control or failure, will create an unreasonable hazard to the safety of people or property on the ground (which will include beaches, parks and sporting ovals);
  • must not be operated over an area where a fire, police or other public safety or emergency operation is being conducted without approval; and
  • the operator of the RPA can only operate one RPA at a time.

While transporting and delivering items by RPA is not strictly prohibited, this type of activity may lead to potential breaches of the Regulations. In November 2016, CASA investigated an individual in Victoria who picked up a hot dog from a sausage sizzle at Bunnings with an RPA after a Youtube video went viral.[1] The penalty issued by CASA (if any) has not been published.

An infringement of the Regulations relating to RPAs may result in CASA issuing a penalty of up to $9,000.

Local governments are also exercising their powers to make by-laws under the Local Government Act 1995 (WA) to restrict the use of RPAs, particularly in public areas.[2] It is recommended that RPA operators check with the relevant local council before flying RPAs in public areas.

Flying RPAs Commercially

The two licences for RPAs are a remote pilot licence, for individuals who operate RPAs and an operator’s certificate, for organisations who operate RPAs.

Commercial RPA operations under 2kg do not require an operator’s certificate or a remote pilot licence. The RPA operator must notify CASA at least five business days before the first commercial flight and follow the standard operating conditions and CASA guidance.

Commercial RPA operations over 2kg or which are not in an excluded category or in accordance with the standard RPA operating conditions require a remote pilot licence.[3] Operator companies carrying on business using RPAs will need to hold an RPA operator’s certificate.

Particular considerations regarding in-house or external RPA operators

Whether a company (or individual) engages an operator to carry out commercial RPA operations or has in-house operators, it is crucial to ensure that the operator holds the necessary licence. Insurers are highly unlikely to insure RPA operators who do not hold the necessary licences.

Companies engaging external RPA operators should ensure that their service agreements cover legal issues such as insurance, ownership of copyright of images or videos produced, allocation of risk (including liability for consequential loss), indemnities for RPA-specific claims and compliance with all legislation.

Companies which have in-house RPA operators should ensure compliance with general duties to provide safe workplaces which do not expose employees to hazards and otherwise comply with the Mines Safety and Inspection Act 1994 (WA) and all other legislation.  Practical steps include obtaining any authorisation required to operate an RPA on the site, based on the risk associated with the flight, and integration of RPAs into all operations, not just as an airborne component.[4] This could include site-specific RPA notification procedures or RPA use permits.

RPAs flying over your property

The current legal position is that right to airspace above land is limited to “such a height as is necessary for the ordinary use and enjoyment of land and the structures upon it”. There is some uncertainty about what height that will be, but the answer will depend on the ordinary use of the land and structures on it.

If an RPA is hovering in the landowner’s airspace, there may be actionable trespass. Guidance from past cases indicates that aerial photography from planes and scenic helicopter rides may not constitute trespass if they are flown over land quickly and at a height that does not detract from the owner’s use and enjoyment of property.

If an RPA is causing a substantial, unreasonable and repeated or ongoing interference with the use or enjoyment of land, such as loud buzzing, hovering or surveillance then there may be actionable nuisance.

If there is trespass or nuisance, the owner or occupier of land may sue the RPA operator, including by seeking an injunction to restrain the operator from repeating the trespass or nuisance. However, these causes of action are untested with RPAs and the time and expense involved with legal proceedings can be impractical and prohibitive.

There are currently no requirements for recreational RPA operators to register their RPA, so the operator of the RPA will often be difficult to find and identify if the they are out of sight. There is also no requirement for recreational RPA operators to maintain insurance for damage caused by the RPA.

RPA use may pose a threat to private activities, either inadvertently (in the course of other activities, such as aerial photography) or intentionally (e.g. through surveillance). There is no unequivocal right to privacy under Australian legislation which protects individuals and businesses from taking aerial photography, video footage or surveillance, which neatly applies to the use of RPAs.[5] The Australian Law Reform Commission recently recommended that Australia embrace a Commonwealth legislative right of privacy but at the date of publication, this has not been acted upon.

There may be recourse for an owner or occupier of land under the Surveillance Devices Act 1998 (WA) in respect of the microphones or cameras attached to an RPA. It is an offence to use a listening or optical surveillance device to record visually a private activity, whether or not the person is a party to the private activity.

It is generally agreed that there are gaps in the law regarding these legal issues as they relate to RPAs and there is likely to be legislative reform in the future.

In most cases, the most effective way to deal with problematic RPAs is to video the RPA operating in a manner which is in breach of the Regulations, identify the RPA operator (if possible) and report the RPA operator to CASA so that they can investigate.
[1] http://www.theage.com.au/victoria/man-faces-9000-fine-for-using-a-drone-to-pick-up-a-bunnings-sausage-20161108-gsl3q2.html.

[2] For example, the City of Stirling

[3] There are some commercial-like operations which can be carried out by or on behalf of the owner of a small RPA (2kg – 25kg) without an operator’s certificate or a remote pilot licence if it is over land owned or occupied by the owner of the RPA in standard operating conditions. The operations permitted include aerial photography, agricultural operations, aerial communications retransmission, carriage of cargo and similar activities, provided that none of the parties involved receive remuneration. The RPA operator must also notify CASA at least five business days before the first flight.

[4] See the Department of Mines and Petroleum’s Resources Safety Magazine volume 3 no. 2 September 2015 at page 30

[5] The Privacy Act 1988 (Cth) deals mainly with the collection and use of personal information by governments and large businesses and is not intended to protect against intrusions into Australians’ privacy

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