Tony Conaghan and Robynne Kilborne Blake

What next for Drone technology?

Tony Conaghan and Robynne Kilborne Blake

27 July 2017

Confidentiality and Privacy IT Telecommunications

Drones1 are rapidly becoming a part of everyday life. Revolutionising new methods of data acquisition, their use in agriculture, mining, energy, telecommunications, research, environmental management, news gathering, criminal investigation and cinematography is now widespread.

The latest advance in drone technology, that is so appealing, is their use in food aid. In remote and difficult areas for relief workers and supplies to access, because of geography, war, etc., drones are able to provide more accurate delivery to those in need. Other means, such as parachute drops, are less likely to get as close, and sustain the risk of the supplies not being delivered, or confiscated by others, such as insurgents.

Drones, such as the Pouncer, with an air frame skin made from bio-degradable starch based thermoplastic, filled with spars of compressed and vacuum sealed foodstuffs can be more accurately directed, and relief provided.

Recently, drones have assisted in the delivery of medical supplies and disaster relief management in remote areas, such as recently experienced with Cyclone Debbie in Queensland where drones are able to get first access and relay pictures to allow emergency services to assess damage and develop an action plan.

With the Queensland Government due to host the first Asia-Pacific Drones Congress in August 2017, the Premier has signalled that Queensland is positioning itself as a regional leader in the development of drone technology as part of its Advance Queensland Platform Technology Program.

Legal background

The regulatory environment at the national level is already relatively well developed in Australia2, with regulators addressing the pace of change in both drone technology and its use. Australia enacted the world’s first drone legislation in July 2002 and the Federal Government’s first Inquiry into drone regulation, “Eyes in the Sky“, reported in 2014. Following that Report, in September 2016, the Civil Aviation Safety Authority (CASA), the body responsible for administering federal drone regulation in Australia, announced amendments to Part 101 Civil Aviation Safety Regulations 1998, which provide a set of basic rules for all drones, as well as specific rules for recreational and commercial use.

Current Regulation

2016 changes to the CASA regulations specify:

  • drones weighing 2kg or less must not fly:
    • higher than 120m in a controlled airspace;
    • closer than 30m to anyone not involved in flying the drone during take-off, flight or landing;
    • over groups of people, including over beaches, parks and sports events;
    • over or within 5.5 km of prohibited or restricted areas (such as aerodromes and restricted military areas);
    • in fog, clouds, at night or out of the visual line of sight of the operator.
  • drones over 2kg and those used for commercial purposes must be registered with CASA, the owner must have an operating certificate and follow safety procedures similar to those for manned aircraft;
  • recreational drones must not be used for commercial gain without a CASA operator’s certificate, but may operate without CASA approval if they are used under “standard operating conditions“;
  • some low risk commercial drone operations and private landowners conducting activities on their own land, may be subject to reduced regulatory requirements that do not need CASA approval.

For more information see CASA’s website – Drones or download CASA’s “Can I Fly There” app.

Current review

The Commonwealth Parliamentary Standing Committee on Rural and Regional Affairs and Transport References is due to report on 06 December 2017 on its review of regulatory requirements for commercial and recreational use of drones. An ABC interview with the Committee Chairman, Senator Glenn Sterle in May 2017 indicates that the Committee is set to recommend that current regulations be significantly tightened up.

Issues under review

Air safety

Damage caused by drones, accidents and airprox incidents (where two or more aircraft are in too close a proximity for safety) have been comparatively few in Australia, growth in drone activity has risen significantly and CASA reports a growing number of incidents where drones are being operated outside of the standard operating conditions. Elsewhere in the world illegal or nuisance drone activity is causing concern2. The Dutch police, for example, have begun training eagles to snatch unwanted drones out of the sky and Dubai’s Civil Aviation Authority has begun testing a drone hunter – a remote-controlled aircraft that uses thermal and infrared imaging to detect drones that are in danger of straying into the airport’s space.

Public safety

General liability laws may provide remedies for harm that arises from drone activity, – such as damage caused by falling parts or entire drones – and may act as a deterrent against irresponsible behaviour4. However a thorough consideration of potential problems, given the advances in technology and growth of drone activity, will be welcome.

Illegal activity

Creative uses for drones have not stopped at the merely recreational or commercial. In NSW, Victoria and the ACT calls have been made for no-fly zones to include prisons, following a number of incidents where drones have been spotted in and around correctional facilities.

Privacy

Expanding use of drones has also ignited a policy debate around possible erosion of the “right to privacy”5. Protection against drones equipped with cameras – whether intent on formal surveillance or just being nosy – is limited under the law as it now stands. The Privacy Act 1988, will only apply where the operator is an organisation with an annual turnover of AUD$3 million or more. Not only are most recreational drone operators unlikely to fall into this category, there is also the practical issue of identifying the owner/operator. In the USA, for example this problem has been addressed by requiring drone owners to be registered with the Federal Aviation Administration (FAA) and their drones to be marked with a registration number capable of being traced to the owner2. Other legal remedies, such as trespass, also suffer from limitations, although may provide some relief from a breach of privacy in individual circumstances.

State laws

While the CASA regulations apply Australia-wide, inconsistency in state drone laws, applying to state-owned land, such as national parks, is currently causing some confusion among recreational drone users. For example, some states require permits but others do not, creating potential problems particularly where national parks cross state borders. These variations in the law have prompted calls for Australian states and territories to adopt the same blanket ban on recreational drones in national parks as the United States.3

What now?

Activity around drones is keeping pace with the exponential growth in drone technology. The Queensland Government is clearly marking its territory as a leader in the development and exploitation of drone technology, and the expanding commercial opportunities that go with that. On the other hand, the recommendations of the Parliamentary Inquiry seem set to balance these opportunities with the interests of the community in public safety, responsible behaviour and privacy concerns. Stakeholders will await their report in December with interest.

 

 

 

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References

1 also called Remotely Piloted Aircraft Systems (RPAS), Unmanned Aerial Systems (UAS) and Unmanned Aerial Vehicles (UAVs)

2 Arthur P. Cracknell, (2017). “UAVs: regulations and law enforcement”, International Journal of Remote Sensing, 38:8-10, 3054-3067. http://dx.doi.org/10.1080/01431161.2017.1302115

3 Different drone laws trigger confusion and calls for uniformity (Courier Mail, 13 March 2017). http://www.couriermail.com.au/technology/techknow/different-drone-laws-trigger-confusion-and-calls-for-uniformity/news-story/eb8f19f2daf359bdca1cca440d545a47

4 R. Clarke & L. B. Moses, (2014). “The regulation of civilian drones’ impacts on public safety”. Computer Law & Security Review, Volume 30, Issue 3, June 2014, Pages 263–285. http://www.sciencedirect.com/science/article/pii/S0267364914000594

5 C. Schlag, (2013). “The new privacy battle: How the expanding use of drones continues to erode our concept of privacy and privacy rights,” Journal of Technology Law and Policy, XIII. http://tlp.law.pitt.edu