Jurisdiction - Australia
Australia – Remotely Piloted Aircraft: Can The Law Makers Keep Pace?

23 July, 2014


Legal News & Analysis – Asia Pacific – Australia – Shipping, Maritime & Aviation


Previously, we reported on some of the challenges facing the expansion of Remotely Piloted Aircraft operations in civil aviation, with a particular emphasis on the recent road maps initiated by authorities in the US and Europe. In Australia, too, authorities are wrestling with the issue of how best to regulate the civilian use of these aircraft in Australian airspace bearing in mind issues of safety, privacy and security, among others. The question is, with commercial operations of such aircraft continuing to increase at a rapid rate and with technological advancements in this area only expected to grow in the coming years, can the law makers keep pace?


The recent proliferation of Remotely Piloted Aircraft (RPA) is a well known story in aviation circles worldwide. From a predominantly military focus in its infancy, the industry has undergone a rapid expansion through the development of new technology and cost savings, such that RPA are becoming an increasingly common sight in our skies.


In Australia, much like elsewhere, most RPA are flown by hobbyists. Aside from meeting certain operational conditions, those recreational flyers are not obliged to comply with any formal registration, certification or training requirements. It is the increase of demands for the commercial use of RPA, however, that has been particularly noteworthy in recent years. Already, in Australia, we are seeing RPA regularly deployed on scientific research, surveying and aerial photography, and in support of law enforcement. Use in mining, agriculture and fire-fighting are some of the many other real/potential applications that exist. This has led Australian authorities to undertake a full review of the existing regulations to ensure they are best placed to meet the needs of both the industry and the broader public moving forward.


Position Under Australian Law


Australia has been recognised internationally as a leader in the regulation of RPA operations, having first published a legal framework governing commercial operations of such aircraft in 2002 – namely, Part 101 of the Civil Aviation Safety Regulations (CASR Part 101). CASR Part 101 remains in force today and provides the legal framework governing all classes of RPA operating in Australian airspace, overseen by Australia’s aviation safety regulatory body, the Civil Aviation Safety Authority (CASA). Of course, at the time of the first publication of CASR Part 101, the RPA industry was still in its infancy and there was limited experience and data from other jurisdictions which CASA and the legislators could draw upon.


Under the current CASR Part 101, broadly speaking, both small and large RPA are subject to the same rules and regulations as regards commercial operations in Australia. The operating entity is required to hold an operator’s certificate and each individual who is flying an RPA for commercial work is required to hold a controller’s certificate. For RPA over 150kg in weight, a certificate of registration and a certificate of airworthiness is also required.


The current certification process has variously been described as onerous, costly and time consuming. CASA itself has recognised that the existing rules are inadequate, particularly in light of the increasing numbers of small RPA and their diverse capabilities (it is believed that 90 per cent of the RPA operating in Australia today are less than 7kg and are relatively inexpensive and therefore readily accessible in the market). Accordingly, in 2011, CASA established a project to review the existing rules and provide an up to date regulation and more comprehensive guidance to industry on the regulatory requirements and approval processes for commercial operation of RPAS [remotely piloted aircraft systems] in Australia“.


From the outset, CASA made it clear that this review process would not be an easy or swift exercise. After almost three years of analysis and consultation, in mid-May 2014 CASA released a “Notice of Proposed Rule Making” setting out its proposed amendments to CASR Part 101 insofar as they relate to RPA used for commercial operations. Of most significance is that, under CASA’s proposal, all RPA of 2kg or less would not require CASA approval in the form of an operator’s certificate or a remote pilot certificate for commercial use, provided they are operated under standard RPA operating conditions – namely, less than 400 feet above ground level, in non-populous areas (including more than 30 metres from any person not directly involved in its operation), outside of controlled airspace, greater than 3 nautical miles from an aerodrome boundary, in daytime and with a visual line of sight maintained by the remote crew. In this way, CASA is essentially seeking to establish a risk based framework for regulating RPA commercial operations. Provided they are operated under standard operating conditions, RPA of 2kg or less are considered to pose little risk of harm to other airspace users and persons/property on the ground, and therefore CASA believes they can be exempt from requiring approval for use. By contrast, the consequences of incidents involving RPA of more than 2kg are potentially far greater and therefore a formal approval process is needed.


Other key features of CASA’s proposal include:


  • Updating the current terminology used in CASR Part 101 to conform with the terms and definitions now adopted by ICAO;
  • Seeking to simply the approval process for remote pilot and operator certifications;
  • The issuing of Advisory Circulars providing guidance to the industry on the requirements for RPA commercial operations in Australia, including basic training and certification requirements for remote pilots and operators.


CASA has called for responses to its proposed amendments by 16 June 2014. It will then make any necessary revisions to those amendments with a view to implementing the new rules by mid to late 2014.


Areas For Concern


While the work currently being done by CASA in respect of seeking to update the existing rules is welcome, the problem remains – with the use of RPA continuing to flourish, where does that place the industry and the broader public moving forward?


Clearly, safety remains the paramount concern. There have been claims by some industry groups in Australia that unauthorised RPA users significantly outnumber certified operators and are essentially going unchecked. There is also thought to have been a proliferation of use in populous areas and in controlled airspace, contrary to the current standard operating requirements. Whether the proposed amendments to CASR Part 101 will rectify these issues remains to be seen.


The quality and construction of RPA component parts and resultant critical systems failures have also been raised as a considerable safety fear. Such issues are seen to be difficult to regulate, particularly given the manner in which many smaller RPA come into operation ie often assembled locally from components purchased online from outside Australia. How CASA is able to best regulate this to avoid the risk of unauthorised use will be a key consideration.


These safety concerns were recently highlighted with the reporting of an incident at Geraldton in Western Australia in which a female triathlete was allegedly struck on the head and injured by an RPA while competing at an event. CASA has confirmed that it is undertaking an investigation into the incident. This follows other recently reported incidents in Australia including near miss incidents involving an RPA and a passenger jet at Perth airport, and an RPA and a rescue helicopter at Newcastle. Incidents of this nature reiterate the risks involved in the potentially unauthorised or uncontrolled operation of RPA and the need for appropriate regulation and enforcement.


One of the difficulties in properly regulating RPA use is the need to address a broad spectrum of issues from a legislative perspective, not just limited to safety. Privacy law is one such area that requires consideration. The Australian Law Reform Commission is currently conducting an inquiry into “serious invasions of privacy in the digital era”, with a final report expected by June 2014. One of the issues being looked at is the invasion of privacy via the use of RPAs. At the Senate Standing Committee roundtable meeting held on ‘Drones and Privacy’ in late February 2014, CASA’s director of aviation safety, John McCormick, stressed that CASA’s sole concern is safety and it has neither the remit nor the resources to consider and monitor issues of privacy flowing from the use of RPAs; rather, responsibility for policing privacy in respect of RPAs should be overseen by others. It remains unclear how the Australian parliament will ultimately choose to address this issue from a regulatory perspective, bearing in mind the patchwork privacy law framework that currently exists between the states and territories. Nevertheless, if there is to be a successful new comprehensive legal structure put in place in Australia concerning the use of RPAs in accordance with CASA’s objectives, it will likely require cooperation across many levels of government as well as industry.


Concluding Comments


There can be little doubt that authorities in Australia are proactively seeking to develop appropriate regulations to govern the commercial use of RPA in Australia. CASA’s recently issued notice of proposed changes to the existing rules under CASR Part 101 reflects that. Nevertheless, the nature of RPAs and the ongoing technological advancements being made in this area are such that the issues involved are broad and, in many cases, complex. How best to regulate their use in all classes of airspace is not an issue peculiar to Australia, but is a concern across other key aviation nations.


There is no quick and easy solution. CASA has stressed that it does not want to put in place regulations that it knows, in practice, it would have no way of properly enforcing; hence, its reluctance to proceed without comprehensive assessment and consultation, and consideration of developments elsewhere in the aviation world. The concern is that, in the meantime, the proliferation of RPAs in our skies continues – on some estimates, in the next 10 years it could be worth 10% of the aviation market – and Australia (among other nations) may be left with insufficient safeguards to protect against unauthorised or uncontrolled use. The safety and privacy related incidents that have recently been highlighted in the Australian press may therefore become more commonplace.


Clyde & Co


For further information, please contact:


Maurice Thompson, Partner, Clyde & Co
[email protected]

James M. Cooper, Clyde & Co
[email protected]

Homegrown Shipping, Maritime & Aviation Law Firms in Australia


Comments are closed.