Clearer skies for drone regulation in Australia - Aviation

In response to growing interest in the commercial use of drones or remotely piloted aircrafts (RPAs) in Australia, the Civil Aviation Safety Authority (CASA) has developed new regulations that will take effect from 29 September 2016.

RPAs can offer a cheaper, easier and safer means of accessing difficult or remote locations (for example, optical surveillance of powerlines, pipelines, mine sites, construction sites or farmland), and, as such, their popularity is rapidly increasing in numerous industries.

From 29 September 2016, however, new drone regulations developed by CASA will take effect. These new regulations will amend Part 101 of the Civil Aviation Safety Regulations (CASR), which is the primary regulatory instrument affecting RPAs in Australia.

THE NEW CASA RPA REGULATIONS: 3 THINGS YOU NEED TO KNOW

RPAs will be categorised differently

Under the new regulations, RPAs will be categorised based on gross weight as follows:

Micro: 100g or less.

Very small: more than 100g but less than 2kg.

Small: 2kg or more, but less than 25kg.

Medium: 25kg or more, but less than 150kg.

Large: 150kg or more.

The majority of drones currently available on the market (including drones designed for commercial usage) fall within the 'very small' to 'small' categories.

RPAs must now be operated within visual line of sight and in accordance with Part 101 of the Manual of Standards

The new CASA regulations will introduce new general safety requirements for the operation of RPAs that may continue to constrain their widespread commercial use.

Under the revised CASR, RPA operators will now only be able to operate an RPA within visual line of sight, except where they have obtained prior approval from CASA to do otherwise. This means that during operation, an RPA must remain visible to the operator without the assistance of binoculars, a telescope or other similar device.

RPA operators will also now need to comply with any specific safety requirements that may be prescribed by CASA in Part 101 of the Manual of Standards. CASA is currently developing Part 101 of the Manual of Standards and, as such, no safety requirements have yet been issued.

In addition to these new requirements, RPA operators must continue to comply with the existing safety requirements in the CASR. For example:

RPAs must only be operated during Visual Meteorological Conditions and should not be flown:
- in bad weather where visibility of the RPA cannot be maintained;
- in or into a cloud; or
- at night.
RPAs must not be operated:
within 30 metres of another person not directly associated with the operation of the RPA (or within 15 metres if the person consents);
higher than 400 feet (around 120 metres) above ground level;
over a populous area (such as a breach, heavily populated park or sports oval while in use);
within 3 nautical miles (around 5.5 kilometres) of an aerodrome;
in or over a prohibited or restricted area designated by CASA (such as a restricted military area); or
otherwise in a way that creates a hazard to another aircraft, another person, or property.

An RPA must not drop or discharge anything in a way that creates a hazard to another aircraft, a person or property.
RPA operators must comply with any requirements prescribed by CASA in Part 101 of the Manual of Standards. Currently, no such requirements have been issued by CASA.

CASA is responsible for enforcing these general safety regulations, and persons found to be in breach may be fined between $1,800 and $9,000 per contravention. CASA has issued a number of fines to RPA operators under the existing regulatory regime.

There are exemptions to some of these general rules where a person has applied for and obtained approval from CASA or another relevant authority (such as air traffic control).

CASA will consider each application for an exemption on a case-by-case basis, taking into account any risk mitigations taken by the applicant. There are also specific exemptions from the general safety regulations for certain types of RPAs that are used for sports or recreational purposes.

There will be changes to RPA licensing and certification requirements

Under the new regulations, Part 101 of the CASR will be amended to revise the licensing and certification requirements for RPAs.

Subject to certain exceptions, a person who operates an RPA must generally hold:

a remote pilot licence issued by a designated Remote Piloted Aircraft System (RPAS) training provider that authorises the person to operate the RPA; and
an RPA operator's certificate issued by CASA that authorises the person to conduct the operations.

The fee for obtaining an operator's certificate is around $1,440 for non-complex operations. The certification process takes approximately 80 business days from receipt of payment.

The table below summarises the main licensing and certification requirements under the CASR.

RPA type	Remote pilot licence required?	Operator's certificate required?
Micro (100g or less)	No	No
Very small (more than 100g but less than 2kg)	Yes, unless used for sports and recreation or within 'standard operating conditions' (but must notify CASA if used for hire or profit).	Yes, unless used for sports and recreation or within 'standard operating conditions' (but must notify CASA if used for hire or profit).
Small (2kg or more, but less than 25kg)	Yes, unless used on private land for certain purposes and within 'standard operating conditions'.	Yes, unless used on private land for certain purposes and within 'standard operating conditions'.
Medium (25kg or more, but less than 150kg)	Yes	Yes, unless used on private land for certain purposes and within 'standard operating conditions'.
Large (150kg or more)	Yes	Yes. Also need approval from CASA and a special certificate of airworthiness or an experimental certificate.

The new regulations will also have the effect of relaxing the licensing and certification requirements for the operation of smaller RPAs in Part 101 of the CASR to:

allow private landowners to carry out certain operations on their land using RPAs up to 25 kilograms without an operator's certificate or remote pilot licence; and
allow RPAs less than two kilograms to be used for commercial purposes without an operator's certificate or remote pilot licence provided that the operator first notifies CASA.

RPAS: SOME FREQUENTLY ASKED QUESTIONS

Q: Do I need a licence and operator's certificate to operate an RPA for commercial purposes?

A: Generally, a remote pilot licence and operator's certificate is required to conduct commercial operations using an RPA. However, a remote pilot licence or operator's certificate is not required if the commercial operations are carried out using:

a micro RPA (i.e 100g or less); or
a very small RPA (i.e. more than 100g, but less than 2kg) operated within 'standard operating conditions' and where CASA has been notified of the proposed operation at least five business days before the operations commence.

'Standard operating conditions' is defined to mean:

the RPA is operated within the person's visual line of sight;
the RPA is operated at or below 400 feet above ground level by day;
the RPA is not operated within 30 metres of a person who is not directly associated with the operation of the RPA;
the RPA is not operated in a prohibited or restricted area;
the RPA is not operated over a populous area;
the RPA is not operated within 3 nautical miles of an aerodrome; and
the RPA is not operated over an area where a fire, police or other public safety or emergency operation is being conducted.

CASA only requires notification of a commercial operation using a very small RPA before the commencement of the operation. There is no need to notify CASA each time an RPA is operated as part of the same commercial operation, except where required by Part 101 of the Manual of Standards.

Q: Do I need a licence and operator's certificate to operate an RPA on my own property?

A: Under the new regulations, a person who operates a small RPA (i.e. 2kg or more, but less than 25kg) does not need to obtain a remote pilot licence or an operator's certificate if the RPA is operated:

by or on behalf of the owner of the RPA;
over land owned or occupied by the owner of the RPA;
in 'standard RPA operating conditions' (see above);
for the purposes of one or more of the following:
- aerial spotting;
- aerial photography;
- agricultural operations;
- aerial communications retransmission;
- the carriage of cargo;
- any other activity that is similar to an activity mentioned in the subparagraphs above; and
for which no remuneration is received by the operator or the owner of the RPA, the owner or occupier of the land or any person on whose behalf the activity is being conducted.

A person may also operate a medium RPA (i.e. 25kg or more, but less than 150kg) in the above circumstances without an operator's certificate provided that the operator holds a remote pilot licence.

Q: Can I fly an RPA over another person's private property?

A: Flying an RPA over another person's private property without permission may, in some circumstances, constitute a trespass to land. A trespass to land is an interference with a 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 an RPA needs to be flown to avoid trespassing on another person's private land. Generally, however, there will be no trespass to land if the RPA is flown over land quickly and at a height that does not detract from the land owner's use and enjoyment of their property. In all other circumstances, the land owner's permission is likely to be required to operate an RPA over their property.

Q: Can I use an RPA to record video footage or to take photographs?

A: Some RPAs include cameras that allow the RPA to be used to record aerial video footage or to take aerial photographs. If an RPA is used for this purpose, it will be regulated as a surveillance device and subject to state and territory surveillance device laws.

There are significant differences between the state and territory surveillance devices laws.

For example, in Victoria, a person must not use an optical surveillance device to record or observe a 'private activity' without consent. A 'private activity' means an activity carried on in circumstances that may reasonably be taken to indicate that the parties desire it to be observed only by themselves, but does not include an activity carried on outside a building or where the parties ought reasonably to expect that the activity might be observed by someone else.

It is therefore generally permissible under Victorian surveillance device laws to use an RPA to record activities that are occurring outdoors, although this might contravene other laws such as state and territory stalking laws.

Organisations subject to the Privacy Act 1988 (Cth) should also consider whether any recordings or photographs taken using an RPA will contain sufficient identifying information to trigger the operation of that Act and the Australian Privacy Principles.

Q: Can I use an RPA to deliver goods?

A: The CASR does not specifically prohibit the use of RPAs to deliver goods, provided that the general safety regulations are complied with (for example, nothing can be dropped or discharged from the RPA in a way that creates a hazard to another aircraft, a person or property).

However, unless exemptions have been obtained from CASA, the general safety regulations will place real limits on this sort of use of RPAs (for example, the delivery could only occur during daylight hours and the RPA would have to remain within the operator's line of sight).

WATCH OUT FOR MORE DRONE REGULATION ON THE HORIZON...

CASA has indicated that it will publish a full range of forms and guidance notes and introduce a new notification system once the revised regulations take effect. It is also expected to work with other industry bodies to develop a new Manual of Standards for Part 101 of the CASR, which will address more complex operational matters regarding RPAs.

Once released, this additional guidance should provide greater certainty for RPA operators regarding the operation of the new regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.