Arguments for Tighter Regulation of Private Drone Usage Growing

Previously we have reported on the growing use of "remote piloted aircraft systems" (RPAs/Drones) and attempts by the government and Civil Aviation authorities to regulate this use effectively, through measures such as the Civil Aviation Legislation Amendment (Part 101) Regulation 2016 (Cth), which came into effect in September 2016. The basic aim of those regulations was to provide some control over RPAs/Drones while at the same time allowing flexibility in their use and encouraging possibly viable businesses opportunities arising from the use of RPAs/Drones, especially in relation to use by farmers on remote farming properties. To this end, the regulations defined a new category of  ". . . low-risk commercial remotely piloted aircraft systems (RPAS) operations" allowing operators of craft under two kilograms in weight to fly without the need for formal approval or a licence. In recent times, this approach has been questioned and there have been calls to tighten up the regulation of  RPAs/Drones as a result of concerns relating to aviation safety and individual privacy. 

On the Question of Aviation Safety

On the question of aviation safety, the ABC has reported calls by Queensland coalition senator Barry O'Sullivan for measures to govern the use of drones that weigh less than two kilograms to be considered and reviewed immediately. The Senator was of the view that a "catastrophic" accident was possible if such tightening of the regulations was not under-taken. The Senator, a former aircraft crash investigator, is reported to be concerned that the regulations were relaxed too quickly and that an amateur drone pilot might fly an RPA/Drone into a crop duster or even into a commercial passenger plane. The call for tighter regulation is reported as being backed by  cross-bench Senator Nick Xenophon who is reported as saying:

In response to the safety concerns, the Infrastructure Minister, Darren Chester, is reported to have said that it was unlikely anything would change before the "drones safety review" currently in progress, reported as saying:

From the perspective of business, many industries have taken advantage of the chance to use RPAs/Drones without the the kind of red tape associated with other forms of flying, in farming they  are used for activities like aerial mapping and working out when crops need watering. 

Regarding Privacy

Here, questions arise as to what if anything restricts an unmonitored, unregulated RPA/Drone from overflying a private property and filming what is happening on that property. From a recent article in The Conversation, it would seem that very little legal sanction would exist on such activity. As The Conversation points out, in Australia, aircraft are generally permitted to overfly properties, such being allowed because otherwise planes could only fly over public land, a position that would be absurd. In fact, The Conversation points out that ". . . most Australian states have barred home owners from suing aircraft operators for causing 'nuisance' by overflight" and even where the claim remains, the courts would probably not uphold claims of nuisance against aircraft without proof of persistent and continuing interference to property - something that would not be demonstrated by just a few overflights.

Beyond the legislation and the regulatory controls (or lack there of), there is no common law remedy relating to this situation in Australia. A tort of privacy is not recognised in Australian courts. An omission arisng, as The Conversation points out, from possibly a now outdated notion, that it would effectively prevent people from being able to look over each other’s fences, and that for those wanting people to stop looking over their fence, they should ". . . build a higher fence". A view probably  more feasible in times before RPA/Drone technology became as common and easy to acquire as it is today.

Another way existing law could be called on to assist with the privacy aspect is in the area of criminal law, namely by way of  harassment and stalking offences, but the snag here is said to be that such laws ". . . generally require a 'pattern of behaviour'" to be established before they can apply, along with ". . . intention to cause harm" or causing a ". . . fear of harm". All matters somewhat difficult to establish in the case of a random RPA/Drone fly over where the person affected has no way of identifying the RPA/Drone or its pilot and the relevant authorities have no means of monitoring or tracking the RPA/Drone or the pilot.

Solutions and Resolutions

Indeed, the privacy issue as regards RPAs/Drones is definitely one of technology moving faster than the law and legislators, leaving issues to be addressed that were not even known of a few years ago. This can also be said for concerns around the safety of general aviation as the use of RPAs/Drone increases. Perhaps the solution, just as much as the problems, might be technical rather than legal, as The Conversation suggests:

Something like the above, along with some rewiring of the law and the regulations, would seem to be the way forward.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Backyard skinny-dippers lack effective laws to keep peeping drones at bay (The Conversation)

Drone regulations need tightening to avoid 'catastrophic' accidents, senator says (ABC News)

Regulating 'Eyes in the sky' (ABC Law Report)

Senate drone inquiry raises questions over safety at public hearing in Queensland (ABC)

Report: Eyes in the sky: Inquiry into drones and the regulation of air safety and privacy