19th October 2017 - ADMIN

Fun Fact: Did you know that Australia was the first country in the world to implement regulations for drone operation?

The term “drone” was coined in reference to unmanned aerial vehicles (UAV) which were used as training tools for anti-aircraft crews in 1930s. When we hear the word ‘drone’ in 2017, no longer do we think of a low monotone hum, or someone who drones on in conversation. What comes to mind are ultra-cool and futuristic flying machines.

Drones have become extremely popular all over the world for commercial and recreational use, from taking aerial shots for fun to being used for data capture and data analysis. Drone footage is used in many fascinating ways including for outdoor adventure, agriculture, nature, and extreme sport.

The official term for a drone in Australia is RPA which stands for Remotely Piloted Aircraft as referred to in the Civil Aviation Safety Regulations Part 101 (CASR 101). CASR 101 followed the International Civil Aviation Organization’s (ICAO) definition of ‘RPA’ as a form of UAV, an aircraft being piloted from a remote pilot station.

Last year, the Australia’s Civil Aviation Safety Authority (CASA) investigated a recreational drone user after he flew a drone over a Bunnings carpark to pick up a sausage at a sausage sizzle. According to CASA, this drone user breached multiple rules regarding safety and operational standards. The story has since highlighted the importance of commercial and recreational RPA operators having a basic understanding of the Regulations.

This article outlines the basic rules drone operators need to know before piloting a drone in Australia.

Basic rules for drone operators

Which laws apply to drones?

CASR 101 is the legal framework for RPA operations in Australia. Its Explanatory Statement provides that “key outcomes introduced by the Regulation include simplified regulatory requirements for lower risk RPA operations”.

Since its introduction in 2001, CASR 101 was used as a ‘starter pack’ for international aviation authorities, such as the ICAO and Federal Aviation Administration, as it first addressed the importance of “maintaining, enhancing and promoting the safety of civil aviation” and “preventing aviation accidents” in relation to RPA operations.

The Regulations were substantially revised and put into force in September 2016, including new rules for recreational RPA operations.

Subpart 101.A of CASR 101 states that the Regulations do not apply to the following:

• a control‑line model aircraft;
• a model aircraft indoors;
• an unmanned airship indoors;
• a small balloon within 100 metres of a structure and not above the top of the structure;
• an unmanned tethered balloon that remains below 400 feet above ground level; or
• a firework rocket not capable of rising more than 400 feet above ground level.

Do users need a licence to fly drones?

No, unless the drone weighs more than 2kg.

The amendments to CASR 101 (Subpart 101.F1) of the Regulations create new weight classifications for RPA as follows:

• very small (100g<2kg)
• small (2-25kg) (where required with 7kg restriction)
• medium (25-150kg)
• large (>150kg).

As of 29 September 2016, commercial and recreational operators flying very small RPAs, 100g < 2kg, will not require an RPA operator’s certificate or a remote pilot licence (Rule 101.252).

Flying commercially and flying recreationally

Australia’s safety laws and licence requirements for drones generally depend on whether the operator is flying commercially or recreationally according to CASA, which states “if you want to earn money from flying your drone, there are different rules depending on the size of your drone”.

Subpart 101.F1 of CASR 101 introduces the concept of excluded RPA, meaning RPA operations considered to be lower risk. These RPA operations do not require a CASA certificate.

As per rule 101.237, a very small RPA is an excluded RPA if it is being operated:

• for the purpose of sport or recreation; or
• in standard RPA operating conditions.

According to that definition, for commercial gain (e.g. data analysis purposes, uploading drone-captured videos and images to YouTube for economic gains), operators need CASA certification to fly the drone unless it weighs less than 2kg. They are required to notify CASA and follow the standard operating conditions (SOCs). Commercial operators and their business must have a Remotely Piloted Aircraft Controller’s Certificate.

For recreational users, the Regulations are less stringent. Users do not need CASA’s approval but must follow the SOCs. According to Rule 101.238 of Subpart 101.C, drone operators must adhere to the following conditions:

• fly by visual line of sight, close enough to see, maintain orientation and achieve accurate flight and tracking;
• fly no higher than 400 feet above ground level during the day;
• not fly any closer than 30 metres from another person (who is not directly associated with the operation of the drone) during flight;
• not fly in a prohibited area or in a restricted area without the permission of the responsible authority;
• not fly over populous areas, such as beaches, parks and sporting ovals;
• not fly in the area of a public safety operation, such as police operation, traffic accident, fire, search and rescue operation, without the approval of a person in charge of the emergency response;
• not fly within 5.5 kilometres (3 nautical miles) of a controlled aerodrome-one with an operating control tower; and
• only fly one drone at a time.

Rule 101.025 defines populous area as an area with sufficient density of population that an unreasonable to the life, safety or property of somebody would be presented by any aspect of RPA operations.

To fly a recreational drone any higher than 120 metres above the ground, drone users must seek approval from CASA. As soon as a drone leaves the eyesight of the operator, the flight is deemed unsafe and thus prohibited, according to Subpart 101.B of CASR 101.

For both recreational and commercial drone use, there is a general prohibition to operate a drone in a way that creates a hazard to another aircraft, another person or property. If a drone operator violates these rules, CASA can issue an infringement notice of up to 50 penalty units (a fine of approximately $6,300.00). If the drone damages property or injures a person, its operator may face criminal charges and/or damages claims for a criminal offence, as per rule 101.072 of the Regulations.

Drones and Privacy Implications

CASA also sets strict rules about not flying drones near police operations, accident scenes, building fires and rescue operations. At the present, there is much debate about how existing privacy laws should apply to recreational and commercial drones and their potential breaches of privacy. No provision in the Regulations or any other legislation bans drones flying over private properties and the answer to whether one can ‘legally’ spy on other people with a drone is unclear.

Interestingly, there has been no court case in Australia where a private individual has successfully taken legal actions against a drone operator for breaching their privacy, whether under the Privacy Act or under any other law. Under Schedule 3 of the Privacy Act 1988, a private individual cannot take action against a drone pilot unless it is associated with an organisation with at least $3 million in annual turnover.

The Future

Drone companies and operators argue that parts of CASR 101 are becoming irrelevant and outdated. CASA recently announced that it is in the process of reviewing the Regulations and preparing to introduce new provisions by 2020, based on the framework of current drone laws in Europe and the United States, and as advised by the ICAO.

A report by the Rural and Regional Affairs and Transport References Committee addressing current and future regulatory requirements for public safety, security and privacy regarding drone use will be issued in December 2017.

Key Takeaway Points

• In Australia, recreational and commercial drone users do not need CASA certification unless the drone weighs more than 2kg.
• Drones used for commercial gain require CASA certification of both the pilot and the business conducting the operation.
• For commercial and recreational drone operators it is prudent to abide by CASA’s current safety procedures and rules at all times while flying drones.
• Drone laws in Australia are presently in a state of flux and uncertainty as legislators are trying to keep up with the exponential advances in drone technologies. Regulations and laws around drone operation will evolve.
• The question as to whether drone laws will be developed to extend to privacy protection remains open.

W3IP Law specialise in drone laws and drone technology licensing. If you have any questions about technology law and intellectual property, please call us on 1300 776 614 for a chat about your legal requirements.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.