Human history is an ongoing record of reaching for the sky, literally and figuratively. From the legend of Icarus, to Leonardo Da Vinci’s design of the ornithopter, to the pioneering success of the Wright brothers, there are countless aspirations and achievements which relate to the aviation experience. In the modern era, perhaps the most obvious example of continued innovation and advancement in this space is the rapid growth of the drone industry.
To a consumer, a drone is a flying robot, much more functional than a model plane, that might one day be delivering takeaway food to your door (see here for a trial on food delivery recently conducted in the ACT).
To a lawyer or a regulator, a drone is a hovering compliance nightmare, requiring consideration of a vast swathe of legal areas, including:
- Personal injury – consider the scenario where the drone runs out of power, plummets from the sky and lands on someone’s head.
- Privacy – if a drone were mounted with a camera, would permission need to be sought from persons in its optical range, and how would the information it collects need to be stored?
- Trespass/Nuisance - a drone flying low enough over private property might be considered to be committing aerial trespass or private nuisance, and if operated in a disorderly way in a public place may also become a public nuisance.
- Licensing – what sizes of drones, and what kinds of drone activities, require licensing?
- Aviation laws – how do drones interact with laws regarding commercial aircraft?
Australia’s Regulatory Framework
Australian aviation safety is regulated by the Civil Aviation Safety Authority (CASA). Under the Civil Aviation Act 1988 (the Act), CASA is responsible for licensing pilots, registering aircraft, and overseeing a safe airspace.
According to CASA, Australia became the first country to regulate remotely piloted aircraft (RPAs), when Part 101 of the Civil Aviation Safety Regulations 1988 (the Regulations) commenced in 2002. Under the Regulations, an RPA is any aircraft which is piloted remotely, aside from a balloon or a kite.
Responding to the rise in the use of drones, an amendment to Part 101 of the Regulations was introduced in 2016, commencing later that year on 29 September. Key outcomes of the amendment included:
- introducing a set of Standard Operating Conditions (SOCs) and categorisations of RPAs according to weight
- simplifying regulatory requirements for lower risk RPA operations, such as by allowing drones weighing less than 2kg to be operated recreationally or in SOCs
- allowing for operational matters to be dealt with in a Manual of Standards published by CASA.
Various safety concerns have been raised about the use of drones since the amendments were implemented, leading then Minister for Infrastructure and Transport, the Hon Darren Chester MP, to announce a review of aviation safety regulation in October 2016.
CASA’s Drone Review
The terms of reference for the review were released on 15 June 2017. CASA was tasked with reviewing its approaches to the regulation of RPA operations, to ensure their consistency with the primacy of air safety, and with particular reference to the:
- safety benefits and cost effectiveness of introducing mandatory registration, education and training, deploying geo-fencing, and other mechanisms to enhance safety and manage risks
- effectiveness of CASA’s operating model for regulation, to ensure it accounts for the technology and operational growth of the RPA community and international developments.
As part of its review, CASA published a discussion paper in August 2017, seeking community and industry perspectives. The key findings from the discussion paper were:
- there is strong support for RPA registration
- there is broad support for training and demonstrated proficiency, particularly for large RPAs, and for the use of counter-drone technology by law enforcement personnel
- support is divided on the issue of mandatory geo-fencing
- there are a variety of perspectives on CASA’s approach to regulation, with respondents raising suggestions to amend the rules to either to strengthen regulation in greater risk areas, or reduce regulation where current rules are not keeping pace with technological change.
In May 2018, CASA released its Review of Aviation Safety Regulation of Remotely Piloted Aircraft (the Report). The Report recommends various safety initiatives, with the key findings including that CASA should:
- make registration mandatory for drones which weigh more than 250g, which would likely remove the current exclusion where a small drone can be unlicensed if operated in SOCs
- develop an online course on safe operations, to be completed by recreational and excluded category operators
- support the utilisation of geo-fencing technology in areas where operation of a drone is not permitted. While CASA considered whether mandatory standards for geo-fencing should be implemented, they concluded that the technology first needed further development and wider adoption
- deliver an RPA 'roadmap' to articulate how to safely integrate drones into the Australian airspace system, including unmanned traffic management, initial airworthiness and certification standards.
The proposed changes to the registration system are particularly significant, since this would create a significantly higher regulatory requirement on drone operation, likely removing the current exclusion where a small drone can be unlicensed if operated in SOCs. CASA has suggested that the registration and renewal process should be simple to use, but would require an operator to be over the age of 18 and to provide identity verification.
The potential registration system is based on drone laws in place in other countries. For example, in the US, there are two systems for registration, depending on whether the drone will be used solely for recreation or for recreation/commercial use. Both systems require the drone to be registered where it is greater than 0.55 pounds (approximately 250g) in weight. Registration is valid for three years. Many drone suppliers indicate whether or not a drone would need to be registered under these rules if purchased; if the planned amendments occur, this may become the new norm in Australia as well.
What do Schools Need to Know About Drones and the Report?
Civil aviation and drone safety are currently being examined by the Commonwealth Senate Rural and Regional Affairs and Transport Committee. CASA will make its final decisions on regulatory change once the outcome of this inquiry is published. CASA plans to complete its 'roadmap' by the end of 2018, meaning there is likely to be regulatory change to drone operation in the not-too-distant future.
School Governance has written about drones in the past, giving a practical roundup on what schools should know about their usage and operation, including how they could be employed in classroom learning and as part of recreational activities, and the regulatory limitations. While this practical guidance continues to apply, and many recreational use drones will fall under the 250g threshold recommended by CASA, schools should ensure they are across any additional registration requirements created for RPAs. This means understanding the full spectrum of drone compliance, including under privacy, workplace safety and student duty of care laws.
In particular, schools will need to consider the impact of:
- using drones with mounted cameras, which will be heavier than regular drones and likely above the proposed registration threshold
- allowing students to operate drones; the registration regime is planned to be for persons 18 years and older, suggesting that there may be exclusions or restrictions (such as supervision) on operation by children.
The sky really is the limit on the ways drones can be used practically and recreationally, but it is important for schools to use these innovative technologies safely and in compliance with all applicable laws, lest they fly too close to the sun.