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Precedent (Australian Lawyers Alliance) |
The aviation industry is undergoing a period of significant innovation, the likes of which has not been seen since the beginning of the jet age. Remotely piloted aircraft systems (RPAS) or unmanned aircraft systems (UAS), also known as drones, and urban air mobility (UAM) vehicles (for example, air taxi concepts) are rapidly emerging, although some may say that the latter are a distant reality.
This technology can be used for a wide variety of purposes: from last-mile transportation of passengers and freight, delivery of telecommunication services to regional areas and helping to fight bushfires, to beach/surf or even COVID-19 physical distancing surveillance.
The potential social, economic and environmental benefits are vast, particularly for a geographically large nation with a relatively small population like Australia. These benefits are all in the commercial operations sector, however growing numbers of individuals are purchasing drones for recreational use, often motivated by the opportunity to produce impressive images for their social media accounts. In the aviation industry, these users are sometimes referred to as ‘drone slingers’.
This article aims to provide insights and increased awareness to drone slingers on the laws that apply to using drones in Australia and abroad, and how to keep other airspace users safe, especially when travelling.
A brief discussion on the legislative framework which underpins aviation safety within Australia will be of value for readers who are not particularly familiar with this complex area of practice. Aviation is regulated by the Civil Aviation Safety Authority (CASA) which, as a Commonwealth agency, is required to implement certain international standards and recommended practices as required by the Convention on International Civil Aviation[1] (Chicago Convention). This ensures a degree of legislative consistency[2] across the globe for an industry with widespread wings.
The Australian aviation legislative framework is federal in scope and structure. Section 51 of the Constitution, which provides the various parliamentary ‘heads of power’, is actually silent on aviation – at the time of drafting, Orville and Wright had yet to take to the skies at Kitty Hawk (which they did in 1903). Therefore, a patchwork of external affairs, corporations and intrastate trade powers are used to provide the constitutional basis for Australian aviation legislation.
The history of Commonwealth regulation of civil aviation and its connection with associated international obligations, the main object of the Civil Aviation Act 1988 (Civil Aviation Act) with its emphasis on safety and prevention of air accidents,[3] and the detailed provisions in the Civil Aviation Act and Civil Aviation Safety Regulations (CASR), all suggest that the Act and Regulations are intended to comprehensively regulate the safety of civil aviation in Australia. They are not intended to operate in conjunction with any state or territory legislative schemes that are directed to the same end.
However, in the recent High Court case of Worksafe NT v Outback Ballooning,[4] state- and territory-based work health and safety legislation was found to be complementary to the traditional framework of federal aviation safety legislation, where the traditional test was whether the aviation legislation was ‘intended to cover the field’.[5] The majority found that the Work Health and Safety Act 2011 (NT) was not inconsistent with the civil aviation regime. This means that aircraft operators are subject to federal laws in relation to safety in civil aviation but also subject to concurrent state and territory work health and safety laws.
The various states and territories theoretically control the significant areas that involve drone operation such as privacy, security, nuisance, and environmental considerations in low altitudes.[6]
The Department of Infrastructure, Transport, Regional Development and Communications recognised the difficulties that can arise in these areas in its September 2020 paper on emerging aviation technologies,[7] particularly when considering noise impact:
‘State and territory governments have general responsibility for ground-based noise impact (under environmental protection or nuisance laws) in their jurisdictions. State and territory noise or nuisance regulations and guidelines do not generally impose a decibel limit on objects. Instead they consider, on a case by case basis a number of factors to determine if the noise is inappropriate for that location at a particular point in time.’[8]
There are state- and territory-based prohibitions for drone use (despite CASA regulations allowing certain airborne operations) such as the bans within the Kosciuszko National Park in NSW[9] and the Noosa National Park in Queensland. The potential for inconsistent state and territory laws in these areas of legislative development is real.
Australia was the first nation to implement certification standards for the commercial use of drones. In 2002, the CASA enacted CASR Part 101 which has steadily undergone improvements and further development as technology capability has increased.
CASR Part 101 provides the legislative framework for users of all drones operating within the national aviation system. It states that users must operate their drones safely and in accordance with the relevant regulations that govern operations.
However the CASA has determined that, based upon the level of risk to other airspace users, some operations of drones can be operated without requiring specific CASA authorisations and licences. These 'excluded RPA' operations are outlined in CASR 101.237, which provides that a:
‘small RPA is an excluded RPA if it is being operated:
(a) by or on behalf of the owner of the RPA; and
(b) over land owned or occupied by the owner of the RPA; and
(c) in standard RPA operating conditions; and
(d) for the purposes of one or more of the following:
(i) aerial spotting;
(ii) aerial photography;
(iii) agricultural operations;
(iv) aerial communications retransmission;
(v) the carriage of cargo;
(vi) any other activity that is similar to an activity mentioned in the subparagraphs above; and
for which no remuneration is received by the operator or the owner of the RPA, the owner or occupier of the land or any person on whose behalf the activity is being conducted.’
There are also considerable limits on where such operations may be undertaken, such as limits to proximity to built-up areas, airports, sensitive government buildings or property. These standard operating conditions are confined to where:
‘(aa) the RPA is operated in Australian territory; and
(a) the RPA is operated within the visual line of sight of the person operating the RPA; and
(b) the RPA is operated at or below 400ft AGL by day; and
(c) the RPA is not operated within 30m of a person who is not directly associated with the operation of the RPA; and
(d) the RPA is not operated:
(i) in a prohibited area; or
(ii) in a restricted area that is classified as RA3; or
(iii) in a restricted area that is classified as RA2 or RA1 otherwise than in accordance with regulation 101.065; or
(iv) over a populous area; or
(v) within 3 nautical miles of the movement area of a controlled aerodrome; and
(e) the RPA is not operated over an area where a fire, police or other public safety or emergency operation is being conducted without the approval of a person in charge of the operation; and
(f) the person operating the RPA operates only that RPA.’[10] [emphasis added]
It is easy for a drone slinger to find themselves on the wrong side of the law, especially when it comes to operating a drone within a foreign jurisdiction. Each foreign state has its own set of legislative provisions with some states, such as Iran, significantly restricting drone use.[11]
Before heading off on a trip to an exotic location, armed with your precious drone and with aspirations of getting that next great footage for your travel blog, it is important to be familiar with the local legislative rules and requirements regarding drone use for both your destination and any stopover ports. Otherwise you might find yourself heading home without the drone!
As highlighted in this article, it is not just aviation regulations that can become problematic; local rules can come into play too. For example, in China, any drone that weighs over 250g must be registered with the Civil Aviation Administration of China[12] – not an onerous process in itself, but one which requires Chinese language skills and a Chinese telephone number.
There are a number of online resources[13] which can assist when researching your destination. Remember to also research any stopover ports on the way.
There are obviously strict limits on where drones can be flown. Restricted areas may include:
• government buildings;
• air or sea ports;
• police or military personnel and/or property;
• religious or cultural sites; and/or
• environmentally sensitive locations.
In 2018, there was a successful prosecution in the UK for unsafe drone operation.[14] A drone slinger who operated a drone in close proximity to a police helicopter operation was found guilty at Peterborough Magistrates’ Court. The prosecution sent a clear message that unsafe flying is unacceptable and that if you break the laws covering drone flying, you could potentially go to prison for up to five years.
The drone slinger was found guilty on two charges: failure to maintain direct, unaided visual contact with the drone, contrary to the Air Navigation Order 2016; and flying the drone when not reasonably satisfied that the flight could safely be made, contrary to articles 94(2) and 265(6) of the Air Navigation Order 2016. He was fined a lenient £184 with £280 in court costs and was forced to forfeit his drone.[15]
Travel and carriage of lithium batteries
To use a drone overseas, it must be transported, and there are regulations that limit or prohibit the carriage of dangerous goods by air. The penalties for not declaring or mis-declaring dangerous goods can be severe. For example, under s23(2) of the Civil Aviation Act the penalty for contravention is seven years’ imprisonment.
Drones are powered by batteries (usually lithium ion) so anyone heading off on an overseas trip with a drone in their luggage will also be carrying batteries. There are strict requirements relating to the quantity and carriage of lithium batteries on aircrafts because the dangers of potential overheating and subsequent fire on board are real and not fanciful.[16]
In an attempt to achieve a degree of global consistency, the International Civil Aviation Organisation has published provisions regulating transport by air in its Technical Instructions for the Safe Transport of Dangerous Goods by Air. The industry-accepted International Air Transport Association Dangerous Goods Regulations (IATA DGR) is also available. Lithium batteries contained within personal electronic devices are generally allowed under the provisions for dangerous goods carried by passengers or crew – more commonly referred to within the industry as the IATA DGR table 2.3.A.
Batteries which power drones can potentially fall outside the scope of table 2.3.A. In general, the carriage requirements are:
• Batteries must be in carry-on baggage – for easy access in the event of overheating as cabin crew have procedures for dealing with such circumstances.
• Batteries must be protected from short circuit (for example, the terminals must be taped).
• Passengers cannot travel with damaged or old batteries.[17]
Whether your battery/s will be allowed on board depends on the battery watt-hour rating: if between 100 to 160 watt-hour, you may carry a maximum of two batteries. If above 160 watt-hour, they are forbidden.[18]
In December 2021, there will be new aviation flight operations regulations coming into force in Australia. One amendment will be to the CASR Part 92, which provides the legislative framework on the carriage of dangerous goods by Australian operators. Part of this amendment is a new provision for CASA inspectors to issue an aviation infringement notice for non-declared or mis-declared dangerous goods. Currently, the only enforcement provision is pursuant to s23 of the Civil Aviation Act, which the CASA has historically been reluctant to use for prosecution.
The potential to use drones for the public good is starting to be realised as more agencies, such as the National Parks and Wildlife Service and Rural Fire Service, are expanding their infrastructure and equipment by using drones for airborne surveillance activities (including searching for lost bushwalkers, fire spotting and shark patrol). Recently, local governments have used drones to monitor crowd numbers for COVID-19 physical distancing at our beaches.
The clash between the potential uses of unmanned aerial activity and the issues surrounding privacy, nuisance and security policy considerations is a considerable challenge which may inhibit the realisation of the technologies.
But where does the balance lie? That will be the question for the next decade, and in my view, having observed Australia’s inability to keep a consistent approach to the closing and opening of state and territory borders during the current pandemic, it is one which the Commonwealth is probably not equipped to answer. May the travel experiences we all enjoyed, and probably took for granted, be returned to us in 2022 with a renewed appreciation of the wonderful experiences that travel provides.
David Chitty was called to the NSW Bar in 2014 where his principal areas of practice include all aviation matters, workplace health and safety within high-risk industries such as aviation, mining and oil exploration, and international law and operational regulatory advice. David is also a lecturer at UNSW for the subject Advanced Aviation Law and Regulation. EMAIL david.chitty@optusnet.com.au.
[1] Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (Chicago Convention).
[2] Note that art 8 of the Chicago Convention contemplated pilotless aircraft when it was drafted in 1944.
[3] This includes the regulation of UAS under Civil Aviation Safety Regulation (CASR), pt 101.
[5] See Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62.
[6] Low altitude is considered to be below 400ft, which is the maximum permitted altitude for UAS in Australia without certain other approvals and exemptions. In comparison, the minimum altitude for a powered piloted flight is generally considered to be above 500ft, unless taking off or landing. This is also referred to as ‘navigable airspace’.
[7] Department of Infrastructure, Transport, Regional Development and Communications, Emerging Aviation Technologies: National Aviation Policy Issues Paper (Paper, September 2020).
[8] Ibid, 36.
[9] NSW National Parks and Wildlife Service, Kosciuszko National Park, <https://www.nationalparks.nsw.gov.au/visit-a-park/parks/kosciuszko-national-park/visitor-info#Prohibited>.
[10] Civil Aviation Safety Regulations 1998, reg 101.238.
[11] UAV Systems International, Iran drone laws (2019) <https://uavsystemsinternational.com/pages/iran-drone-laws/>.
[12] Civil Aviation Administration of China, Provisions for the operation of light and small unmanned aircraft (for trial implementation), 29 December 2015, <http://www.caac.gov.cn/XXGK/XXGK/GFXWJ/201601/P020160126526845399237.pdf> .
[13] J Feist, ‘International drone laws – regulations for flying drones’, Drone Rush (21 November 2019) <https://dronerush.com/international-drone-laws-16520/>.
[14] Ashfords, ‘Drone prosecutions – a recent example from the courts’ (19 November 2018) <https://www.ashfords.co.uk/news-and-media/general/drone-prosecutions-a-recent-example-from-the-courts>.
[15] International Airport Review, ‘Successful drone prosecution after helicopter incident’ (19 November 2018) <https://www.internationalairportreview.com/news/77963/drone-prosecution-helicopter/>.
[16] See also Civil Aviation Safety Authority, ‘Cabin safety bulletin no. 10 – management of lithium battery fires’ (13 August 2018) <https://www.casa.gov.au/standard-page/cabin-safety-bulletin-no10-management-lithium-battery-fires>.
[17] IATA, Dangerous Goods Regulations, 62nd edition, 2021, table 2.3A.
[18] Ibid.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/20.html