The long-awaited Australian Senate Inquiry report into the current and future regulatory framework for remotely piloted aircraft (drones) in Australia was released on 31 July 2018.
The report was highly anticipated. During the 18-month period of consultation with operators, regulators and businesses, the Senate Inquiry committee heard that Australia is at the forefront of drones. Australia’s aviation regulator, the Civil Aviation Safety Authority (CASA), estimates there are now more than 50,000 users of recreational drones and well over 1,000 commercial operators in Australia.
It was recognised that the main challenge in establishing an effective regulatory regime for drones is to foster innovation while still balancing community concerns in relation to safety, privacy, security, and social and economic benefits.
The Senate Inquiry report recommendations are likely to lead to a suite of significant amendments to Australia’s current drone regulations during the next 12 months.
Among the ten recommendations made by the Senate Inquiry committee are:
Recommendation 1: Immediate reform of the current regulations (Part 101 of the Civil Aviation Safety Regulations 1998).
The current regulations, which commenced in September 2016, had the effect of (controversially) relaxing the rules for drones weighing less than 2kg.The Senate Inquiry committee criticised those changes on the basis that even small drones are capable of causing considerable damage to rotorcraft and aircraft.
Recommendation 2: Mandatory registration regime for all drones weighing more than 250g, together with a tiered education and training programme.
A compulsory registration regime in Australia would align Australia’s regulations with those currently in force in jurisdictions across the world, including the US and UK where drones heavier than 250g are required to be registered prior to flight. Currently, there is no way to identify the operator and owner of any drone involved in a near-miss incident or collision. Registration requirements of all drones would allow enforcement agencies to monitor and penalise unlawful activity.
The committee also recognised that more should be done to ensure that all drone users, whether recreational or commercial, undertake some form of mandatory education and training before flying their drones. The committee was alarmed by numerous reports of reckless drone operations that had hindered emergency operations, flown close to commercial aircrafts, or intruded upon restricted airspace. Accordingly, the committee recommended that drone users be required to undertake mandatory education and training so all operators understand the rules, which will ultimately reduce the risks to public safety.
Recommendation 5: Development of drone-specific airworthiness standards, including mandated ‘fail-safe’ functions.
The committee recognised that to allow drones to fully integrate into shared airspace, they must be subject to standards of airworthiness. The committee recommended that airworthiness standards should extend to drones that arrive in the country through foreign imports, similar to model rockets and laser pointers.
The committee also recommended that drones should include a number of fail-safe redundancies, such as return-to-home functionality and forced flight termination.
Recommendation 10: Creation of a nation-wide enforcement regime, including powers to issue on-the-spot fines and report infringements, as part of a coordinated “whole government policy”.
For Australia to balance the important challenges of ensuring public and aviation safety, and encouraging innovation, the committee recommended that existing regulations be expanded to include a registration requirement, education and awareness training, additional enforcement and compliance measures, and technology-based solutions, as part of a whole-of-government approach. The intention appears to be to move towards a drone-specific legal framework covering the breadth of issues commonly arising from drone use – safety, privacy, damage to people or property, and cybersecurity, among others.
Backdrop to the Senate Inquiry recommendations – where to from here?
When Australia’s new drones regulations commenced in September 2016, we posed the question – how long would they last? Through those new regulations, CASA had introduced a risk-based framework for commercial drone operations, the aim being to reduce the red tape for operators of drones weighing less than 2kg, which are considered to be lower risk, and thereby promote the local industry.
The Senate Inquiry committee was critical of CASA’s approach. It found that even small drones are capable of causing significant damage to aircraft, people or property, and present a safety risk that needs to be protected against. The position recommended by the Senate committee represents a clear shift and would bring Australia’s regulations closer into line with those in the UK and the US, but potentially with even more stringent requirements for operators.
So, less than two years after Australia’s current drone regulations commenced, we will now enter a period of uncertainty while a proposal for a reformed set of regulations is prepared. CASA has indicated that a review of drones (including new registration and remote-pilot accreditation requirements) is to be implemented in mid-2019. One suspects this will be just another step in a continual period of review and change in the coming years as this era-defining technology continues to evolve.
Contributed by Maurice Thompson, partner, and James Cooper, special counsel, Clyde & Co, Australia