DRONES – DO YOU KNOW THE RULES?
(Image: Paul Brennan)
By Henry Materne-Smith
Drones are taking to the skies in record numbers. The Economist has reported that civilian unmanned aircraft could be a US$5 billion market by 2021.[1] Considering the potential benefits for both individuals and businesses, it’s easy to see why: drones are already being used to monitor crops, conduct atmospheric research, survey land, check infrastructure and photograph homes for sale. They’re also just fun to fly! But here are some essentials that you need to know before take-off.
The Civil Aviation Safety Authority Regulations 1998 (Cth)
Firstly, all drone pilots should know about Part 101 of the Civil Aviation Safety Authority Regulations 1998 (Cth). These laws apply Australia-wide and are intended to ensure that drones are used in a safe and regulated way. Not complying could result in a fine from $1,800 to $9,000, so it’s worth following the rules! They include:
- Licences: You won’t need a licence to fly drones weighing up to 100g or to fly most other drones for sport/recreation. But for drones weighing more than 100g up to 150kg that are not being used for sport/recreation, you will need a Remote Pilot Licence and a Remotely Piloted Aircraft Operator Certificate. There are even more requirements for drones weighing more than 150kg.
- Flying locations: Drone flight is prohibited in more areas than many people realise. For example, you generally cannot fly a drone within 3 nautical miles of an aerodrome/airport, over an area where an emergency operation is being conducted (so no aerial shots of floods, bushfires or accidents) or over areas where flying the drone, or a fault with the drone, would pose an ‘unreasonable risk’ to the life, safety or property of somebody in the area.
- Flying conditions: You cannot fly a drone in or into cloud, at night or in conditions where you cannot see it with your own eyes.
- Flying height: Generally you cannot fly a drone above 400ft (120m) and you must keep it within your visual line of sight at all times (binoculars don’t count!).
- General rules: You can never operate your drone in a way that creates a hazard to another aircraft, another person or property. Generally you must not fly within 30m of another person either. You also must not cause anything to be dropped from your drone that creates a hazard.
- Commercial operations: For drones weighing 100g-2kg, you must give the Civil Aviation Safety Authority notice of your intention to fly a drone for hire or reward at least five days before doing so. If you intend to conduct commercial operations with drones, you will also need another certificate authorising this.
It’s also worth noting that the current regulations were introduced only recently and future changes have already been flagged. Keeping up to date with the latest developments is vital.
Flying in national parks
Australia has some of the most beautiful national parks in the world. But as tempting as it is to grab a photograph using your drone, you shouldn’t do so without seeking permission from the relevant authority first (the specific rules differ from State to State).[2]
Don’t forget the Council!
Seeing as everyone else was regulating drones, some Councils decided to join the fun too. In South Australia these include the City of Onkaparinga, the City of Port Adelaide Enfield and the City of Holdfast Bay. More are likely to join them. The rules apply to Council land (e.g. public parks) and range from prohibiting the use of drones in any way that detracts from another’s lawful use of and enjoyment of their land, to outright bans. Make sure to check your Council’s latest by-laws before flying a drone at your local park.
Someone’s drone has damaged my X
If a drone pilot has managed to crash their drone into your property (or even you), there are numerous legal avenues that you may be able to explore, including tort, negligence and criminal law. As always, it would be best to seek legal advice about your options. For drone pilots, this is yet another reason to be extra careful.
Don’t annoy the neighbours
Another issue is whether individuals annoyed by drone use can take legal action against the pilot. To do so, you would likely be looking to the law of nuisance. The irritated neighbour would have to show that using the drone was an unreasonable interference with the use and enjoyment of their property rights.
What kinds of interferences are a ‘nuisance’? Significant noise can certainly suffice.[3] But this is usually hard to prove when the interference is temporary, so you will have a much stronger case if the drone is used consistently.[4] However, the case against the pilot is more clear-cut if their drone causes material damage to your property.[5]
Unfortunately, the law of nuisance does not prevent inspection by neighbours and there is no general right of privacy.[6] In addition, section 62(2) of the Civil Liability Act 1936 (SA) would likely prevent an action for nuisance if the drone is flown at a reasonable height in accordance with the CASA Regulations. Overall the law of nuisance be of little help.
Another potential argument is common law trespass. This is where there is a direct act that causes interference with your possession of land without lawful authority and where the drone pilot either intended it, or was negligent. The test will be whether the incursion into the airspace above your property is of a nature and at a height that may interfere with your ordinary use of the land.[7] Unfortunately, the law is unclear as to the point at which that occurs. Some jurisdictions have excluded the application of trespass with legislation too.[8] Once again, this area of law is unwieldy for modern issues.
And definitely don’t spy on your neighbours!
Privacy is one of the biggest legal issues surrounding drones. Unfortunately, it’s not as clear-cut as you might expect. It’s certainly against the law in every State and Territory to use a listening device to listen to or record a private conversation without consent. But the more serious issue with drones is video recording. Generally speaking, visual surveillance is against the law only in Victoria, the North Territory, Western Australia and New South Wales. In other jurisdictions, protections are not yet available. For example, in South Australia, current legislation does not prohibit visual surveillance. This will change when the Surveillance Devices Act 2016 (SA) comes into force, which will prohibit both using an optical surveillance device (such as a camera) to observe or record a private activity, as well as recording or listening to another person’s private conversations.[9] It’s not yet clear when the new law will come into effect.
As for the Privacy Act 1988 (Cth), the privacy protections available are more limited. The biggest hurdle is that it only applies to ‘APP Entities’. These include government bodies, and individuals and other business structures (e.g. corporations) that have an annual turnover of more than $3 million. This could protect your privacy from real estate companies photographing your neighbourhood or insurance companies verifying your claim. But if the drone pilot is just a regular individual, the Privacy Act 1988 (Cth) won’t apply.
New products, new laws
It’s clear that the law is struggling to regulate drones effectively. For such a novel product area this is not surprising, but it means that the law is changing rapidly. Drone pilots and operators should therefore keep up-to-date with legal developments.
For straightforward legal advice about using drones for personal or commercial purposes, contact Paul Gordon at paul@ndalaw.com.au or on (08) 7111 2999.
[1] The Economist, Commercial drones: Up (11 April 2015) <http://www.economist.com/news/business/21647981-chinese-firm-has-taken-lead-promising-market-up>.
[2] For example, see National Parks and Wildlife (National Parks) Regulations 2016 (SA) r 12(3).
[3] For example, see De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498.
[4] Harrison v Southwark & Vauxhall Water Co [1891] 2 Ch 409; Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107 (NSWSC).
[5] Harris v Carnegie’s Pty Ltd [1917] VLR 95.
[6] Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.
[7] LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490, 495.
[8] Damage by Aircraft Act 1952 (NSW) s 2(1); Damage by Aircraft Act 1963 (Tas) s 3; Wrongs Act 1958 (Vic) s 30; Damage by Aircraft Act 1964 (WA) s 4.
[9] Surveillance Devices Act 2016 (SA) ss 3-5.