Senate Inquiry into Drone Safety in Australia: The Outcome in Short…
Published: 19 September 2018
On 13 October 2016, the Senate kicked off an inquiry into the current and future regulatory requirements that impact on the safe use of drones (the Inquiry).
21 months, 94 submissions and 6 public hearings later, the Inquiry finally released its 138-page report in July 2018 which you can access here. This all boiled down to 10 recommendations, a summary of those recommendations and some commentary is outlined below.
It remains to be seen whether, and to what extent, the recommendations will be adopted. I will keep readers informed on this; in the meantime, here’s what the Inquiry had to say.
Recommendation 1: sub-2kg ‘excluded category’ to be wiped
The Inquiry recommends the removal of the current ability of drone pilots to fly drones that weigh less than 2kg’s for commercial purposes without any sort of drone licence.
This seemed to arise from debate during the Inquiry about the growing body of international empirical research and collision testing (which didn’t seem to accord with the local research relied upon by CASA). In relation to collision effects of drones on manned aircraft, comparisons with bird-strikes may not be appropriate. Anyone who has eaten a BBQ chicken knows how tasty it is, and relevantly, how brittle bird bones are. Neither are a particularly comparable to a drone.
This recommendation may also be a result of the bashing CASA received in the Inquiry’s Report for its “apparent lack of due diligence prior to introducing the amendments” and that CASA’s decision “appears to have been limited to desktop research” instead of “a comprehensive evidence-base”. Someone at CASA is surely still in pain after that whipping.
This recommendation represents a backflip on CASA’s progressive approach to cut the red tape. However, the international research gives a menu of food for thought. To be clear, the recommendation is not to completely stop drone use for commercial purposes, rather, that it cannot be conducted without some education or training.
Recommendation 2: if it weighs more than a packet of Scotch Fingers – register it!
This recommendation is for a mandatory registration regime for all drones weighing more than 250 grams. ‘Before you fly; your information you must supply’. The amount of detail, and to whom, is yet to be hashed out.
As part of the registration requirements, drone pilots are to be required to successfully complete a basic competence test regarding the safe use of drones, and to demonstrate an understanding of the penalties for non-compliance with the rules.
On the topic of penalties, did you know that fines are typically expressed in ‘penalty units’? If you break a Commonwealth law, one penalty unit is currently worth $210; and you may be fined 50 penalty units if you fly your drone over a ‘populous area’. Do the math = expensive! The confusing part is that a ‘penalty unit’ may be a different value if you breach a State law (as opposed to a Commonwealth law). For example, a ‘penalty unit’ in NSW is currently $110.
Recommendation 3: unlock the levels like a video game
This recommendation is that the Australian Government develop a tiered education program whereby drone pilots progressively unlock drone capabilities upon completion of each level of training. Sounds more GTA than RPA! Three levels are proposed.
Level One: on purchase of a drone, mandatory registration requires user to demonstrate knowledge of the basic rules for flying drones and the penalties for non-compliance (we know what a penalty unit is now!) Also, the heaviest fine you can receive for breaching Australia’s drone safety laws is $10,500.
Level Two: recreational use of drones. This second tier requires the user to demonstrate an “advanced understanding” of aviation rules and safety before unlocking additional capabilities.
Level Three: commercial use of drones. In this Level, you battle Pauline Hanson in a drone war, see her warming up for it here (ok not really). But you do have to demonstrate “comprehensive aviation knowledge” before obtaining a commercial operator licence and unlocking full drone capability.
What are these ‘capabilities’ that are being unlocked you ask? They refer to increasing altitude and the distance between the pilot and the drone at each level (albeit all within the maximum 400 feet Above Ground Level and within Visual Line of Sight restrictions, unless you have an exemption).
It appears that the plan is for these restrictions to be limited in the drone software, rather than say an honesty system such as Provisional Licence Drivers who aren’t supposed to exceed certain speed limits despite the speed limit.
Recommendation 4: no flying over “important” places
The recommendation is that CASA, the Australian Federal Police and other relevant authorities prohibit the use of drones in the airspace above significant public buildings, critical infrastructure and other vulnerable areas.
This seemed to hit home in the Senate Inquiry investigations where it was discovered that the airspace over Parliament House in Canberra is not declared as a prohibited area. Big Brother meet Bigger Brother! However, this does not mean we can be polly-peeping tomorrow because Parliament House nonetheless falls within the control zone of Canberra Airport making it out of bounds for reasons other than the significance of the site itself.
Recommendation 5: kumbaya sessions between government and manufacturers
It is recommended that the Department of Infrastructure, Regional Development and Cities (DIRDC) and CASA have a fireside chat with drone manufacturers to develop future solutions to drone safety, including the implementation of technical restrictions on altitude and distance for ‘off-the-shelf’ RPAS.
Recommendation 6: you must be worthy of air!
The Inquiry recommends that the DIRDC and CASA develop appropriate airworthiness standards for drones of all sizes and operations. At a minimum, fail-safe functions such as ‘return to home’ and safe landing functionality, and forced flight termination.
One study referred to in the Inquiry pointed out that broken communication links between a drone and its pilot, and other technical problems, account for more than half the number of reported drone accidents.
It appears that this recommendation is not so much related to the maintenance of the drone, rather its redundancy functions.
Recommendation 7: Border patrol!
The Inquiry recommends that the Australian Government develop import controls to enforce airworthiness standards for foreign manufactured drones.
There is particular difficulty because drones are imported under a number of tariff classifications. This has meant that the Australian Department of Immigration & Border Protection has no idea how many drones have been imported to Australia in the last 5 years. One way to make this feasible may be to have ‘drone’ or ‘drone parts’ somewhere in the importation paperwork.
Recommendation 8: whole of government approach
The Inquiry recommends that the DIRDC collaborate with CASA, to develop a “whole of government policy” for drone safety and establish appropriate coordination and implementation mechanisms with relevant departments and agencies to implement the policy.
It is also recommended that the Australian Government explore cost-effective models to develop and administer new regulatory initiatives for drones, including the abovementioned mandatory registration (Recommendation 2) and tiered education program (Recommendation 3).
“The harmonisation of state and territory privacy laws should also be considered”. This one-liner on privacy may have been included so that the Inquiry could tick the “we mentioned privacy” box. Privacy is outside the scope of CASA and is a swamp of regulations by itself. To be tackled another time it seems.
While it seems that this type of integration and cooperation is as attainable as ending famine and achieving world peace, there is already a solid level of this type of integration in place. For example, the Australian Government, through the Minister for Infrastructure and Transport, sets the direction for overall aviation policy. As part of Australia’s Aviation State Safety Programme, the Aviation Policy Group meets quarterly and is chaired by the Secretary of DIRDC. It comprises the key agencies involved in aviation policy, regulation and service provision – DIRDC, CASA, Airservices Australia and the Department of Defence represented by the Royal Australian Air Force. World peace may be closer than we first thought!
Recommendation 9: centralise research and data
As part of the ‘whole of government’ approach to drone safety, the Inquiry recommends that CASA work with Airservices Australia and other relevant agencies to implement a comprehensive research and data gathering regime.
The Inquiry envisages that information should be collated and centralised in a way that allows for the examination of drone registrations, operations, trends and incidents, to provide an evidence base on which to assess the efficacy of current regulations, and to inform the development of future policy and regulations.
It came to the attention of the Inquiry that CASA has very little information about the number of drones in the sky, the characteristics of drone operators, where drones are flown, and the type of operations that are taking place. I prefer the way that the Australian Airline Pilots’ Association put it, “We also do not know if the operator population has the same distribution of cowboys and criminals as the general population.”
The Inquiry also recommends that regular input be sought from a range of industry stakeholders, such as airlines, manufacturers, insurers, emergency service bodies, agriculture representatives, air traffic control, recreational clubs, mobile networks, as well as recreational and commercial drone operators, your barista, and the bloke at the pub (ok not the last 2). In our view, consulting widely is consulting wisely.
Recommendation 10: “Pass out more batons!” Delegation of enforcement powers
In its final recommendation, the Inquiry suggests that CASA work with State and Territory enforcement bodies to implement a nationally consistent enforcement regime for drones. Enforcement bodies would be delegated powers to provide on-the-spot fines and report infringements of the regulations directly to CASA.
At present, only CASA can enforce breaches of its regulations, and it’s about as responsive as a tranquilised sloth (ok not that bad, but by the time Old Man CASA puts on his slippers and arrives at the scene, there is no scene.) Admittedly, this is nothing to do with CASA’s competence, but rather its lack of resourcing to be able to play full-time Sky Police.
CASA relies very heavily on the complainant giving enough information to pursue. At present, you practically need to give CASA the evidence on a silver platter. And many drone offences are “fly by night” – literally, so enforcement is very difficult.
All-in-all, the Inquiry with its recommendations, has reached for the sky; but that seems quite fitting in the circumstances.
These are only recommendations at present, and we don’t know which, if any, will be incorporated into law. So at this stage, there is not too much that can be done now other than to be aware of what may be around the corner.
Finally, I will be watching the regulations like a drone over a nudist beach, so stay tuned and I’ll keep you updated, if and when, any of the changes come to life.
The Drone Lawyer.
19 September 2018.