31 July 2015 | By Claire Harris (Graduate Lawyer)
Earlier this month, Australian start-up Flirtey was involved in the first successful drone delivery to be legally conducted in the United States. This is the first step in what could be a revolution in the way medical and other supplies are provided in remote areas.
One of the key impediments to the use of drones in the United States has been its restrictive aviation laws (the recent successful trial in the United Stated required Federal Aviation Authority approval).
By comparison to the United States, Australia has less restrictive laws in relation to the flying of drones. The Civil Aviation Safety Authority (CASA) is in the process of reviewing and modernising the regulation of drones and expects to complete this by 2016. While the United States is looking to decrease the regulation of drones in order to stimulate technology development, there is speculation that Australia will introduce more stringent regulations in relation to drones (click here for article).
Any new regulations will need to strike a balance between protecting the safety and privacy of individuals, without overly restricting the ability of Australian organisations to exploit this evolving technology and the commercial opportunities that go alongside it.
Current regulations
Civil Aviation Safety Regulations 1998
CASA is the body responsible for regulating Unmanned Aerial Vehicles (UAVs) in Australia. UAVs are colloquially referred to as “drones”. Most UAVs are piloted by remote control and often mounted with cameras.
Under the Civil Aviation Safety Regulations 1998, UAVs (weighing more than 100g and less than 100kg) cannot generally be flown:
•higher than 400 feet;
•within 10m horizontally and 30 feet vertically of a person (although there are exceptions to this prohibition for those involved in operating the UAV and others standing behind the UAV on take off);
•over a large group of people at a height from which, if any of its components fail, it would not be able to clear the area;
•over or near prohibited or restricted areas (such as an aerodromes or restricted military areas);
•in conditions other than Visual Meteorological Conditions (i.e. bad weather);
•in or into a cloud; or
•at night.
It may be possible to use a UAV outside some of the above restrictions:
•with the approval of CASA or another relevant authority (such as air traffic control); or
•if the UAV is being operated within the sight of the UAV pilot.
There is also a general prohibition on flying a UAV in a manner which is hazardous to property, a person or another aircraft. The maximum penalty for contravening this provision is 50 penalty units (which currently amounts to $8,500).
Dropping off parcels or other items via a UAV is not prohibited, provided that nothing is dropped or discharged from a UAV in a way that creates a hazard to another aircraft, person or property.
In addition, companies that use UAVs must obtain an operator’s certificate from CASA and any individual that flies a UAV for commercial gain must have a controller’s certificate. There are currently 257 certified UAV operators in Australia, and with UAVs available for sale in Australian retail stores, this number is expected to increase exponentially over the coming years.
Can I fly over private land?
As UAVs are new technology, there is some uncertainty as to when the flying of a UAV over private property without permission will amount to a trespass to land.
A trespass to land is an interference with land owners’ rights. Land owners’ rights extend to the airspace over their land to a reasonable height.
There is no clear guidance on the height a UAV needs to be flown to avoid trespassing on private land. Based on past cases that have dealt with aerial photography from planes, scenic helicopter rides, and the height that bullets can be shot across land – as long as the UAVs are flown over land quickly and at a height that does not detract from the land owner’s use and enjoyment of their property, there is no trespass to land.
Will the Privacy Act apply to video footage taken by a drone?
The Privacy Act 1988 (Cth) only applies to Commonwealth agencies and organisations with an annual turnover of more than $3 million (with certain exceptions). Private UAV pilots and small companies (such as technology start-ups) would generally not be subject to the Privacy Act.
If an organisation is caught by the Privacy Act and it uses UAVs:
•The video footage taken by the UAVs they use or control could potentially be considered “personal information” if someone can be identified, or reasonably identified, in the video footage.
•Whether someone can be reasonably identified will depend on the circumstances. For example, footage taken by a UAV of a well known celebrity, or an individual that is well known to the organisation, would likely amount to the collection of personal information. The organisation would need to comply with the Australian Privacy