Drone Advice chats with Tom Pils, an Australian lawyer specialising in drone law, about the regulations surrounding the growing area of drone technology. The regulations on drones can be confusing and overwhelming. Tom and his team at The Drone Lawyer can help you get in the sky legally and safely.
DroneAdvice: When did you first start to get interested in the drone industry, and in particular the regulatory framework and legal issues surrounding it?
Tom: In mid-2016, I came across a ‘Gartner Hype Cycle for Emerging Technologies’ similar to the one below, and for some reason, drones struck me like a lightning bolt. I then stayed up that entire night researching everything I could on drone regulations. I discovered that the regulations directly concerning drones had just changed significantly with the introduction of Part 101 of the Civil Aviation Safety Regulations (CASR). It was an exciting time to be around a great technology.
DroneAdvice: We’re in the holiday season now in Australia and many people will have received drones as Christmas presents. Do you have any tips for those who might not have much knowledge about the lay-of-the-air when it comes to the do’s and don’ts of flying drones?
Tom: It is helpful to be familiar with the ‘standard operating conditions’ contained in Regulation 101.238 of the CASR. In very short form they prescribe that:
- your drone is to be flown within visual line of sight of the pilot;
- your drone is to be operated at or below 400 feet Above Ground Level (AGL) in daytime only;
- your drone is not to be operated within 30 metres of a person not directly associated with the operation;
- your drone is not to be operated in a prohibited or restricted areas;
- your drone is not to be operated over a populous area;
- your drone is not to be operated within 3 nautical miles of the movement area of a controlled aerodrome;
- your drone is not operated over an area where a fire, police or other public safety or emergency operation is being conducted without the approval of a person in charge of the operation; and
- a drone pilot is to operate only one drone at a time.
It’s also worth being aware that most drone regulations are ‘strict liability’ offences. This means that you can be fined for breaching the regulations even if you did not intend to break the law, similar to speeding in a car. Unfortunately, “I didn’t know that was illegal” is generally not an excuse, even if what you are expected to know is buried under a pile of confusing laws and regulations.
Q: Drones – for better or worse – are disrupting numerous industries. In many companies there are now drone business units (sometimes informal) sitting within the broader company. What are a couple of examples of legal compliance issues that may arise when previously externally-provided drone services are brought in-house?
If you internalise a task you internalise a risk. When deciding to outsource or in-house a task or function, it is worth considering whether this risk is worth the cost (or cost-saving) if it sits within the company.
Retaining drone services in-house allows flexibility and control, but also exposes the company to all the risks associated with drone use. Outsourcing drone use will typically – with a properly drafted service contract – place the risk with the drone operator. This being said, the decision whether to outsource or in-house drone operations depends on how large it is as a component of the entire business.
In respect of insurance, many insurers will require a drone services provider to have a Remote Pilot Licence (RePL) and/or Remote Operator’s Certificate (ReOC) before providing drone-specific insurance. If operating in the ‘excluded’ category of commercial drone operation (sub-2kg category) and operating without a RePL or ReOC, a drone operator may not be able to obtain insurance. I have come across organisations relying on their public liability insurance for their drone use. I would recommend speaking with a broker to be very clear as to what is included and what is excluded in this type of policy.
Privacy issues and the Surveillance Devices Act are another aspect to consider. If your organisation has an annual turnover of more than $3 million then it must comply with the Privacy Act 1988 and the Australian Privacy Principles. No matter your turnover, the Surveillance Devices Act contains provisions that relate the use of listening devices, optical surveillance devices, and data surveillance devices; arguably a drone may fall into one or all of those categories. Generally speaking, this Act prohibits certain conduct when monitoring a person’s activity without their consent.
DroneAdvice: It is often the case that regulation lags the development of technology. The drone industry demonstrates this concept in some ways. As an expert in drone law, what important Australian regulatory developments do you see on the horizon that will help to improve the regulatory framework?
Tom: Yes, the law does often lag developments in technology in many sectors, drones included. However, there is a lot happening right now from a regulatory perspective in this area of law. A couple of the major activities that may impact the regulatory framework for drones in the near future are as follows.
The Senate kicked off an inquiry into the current and future regulatory requirements that impact on the safe use of drones on 13 October 2016 (the Inquiry). 21 months, 94 submissions and 6 public hearings later, the Inquiry finally released its 138-page report in July 2018, which in essence boiled down to 10 recommendations, (I’ve written about this here). On 28 November 2018, the Australian Government released its response to the Inquiry’s 10 recommendations, (I’ve written about this here). At present, no new laws have been passed as a result of all this, however, some change is certainly on the horizon.
Draft Part 101 Manual of Standards (MOS)
The Civil Aviation Safety Authority (CASA) has released a draft ‘Part 101 Manual of Standards’ (MOS) specifically concerning drones. The MOS are legal rules that are authorised by regulation. This MOS is not in force yet but when active will provide further guidance on the use of drones. A few of the topics covered in the draft MOS are Remote Pilot Licence Training Course requirements (I’ve written about this here), Flying Beyond Visual Line of Sight (I’ve written about this here) and night operations.
There is a lot happening under the surface and I’m waiting with anticipation as to how this will unfold.
Thanks for reading!
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Photo: Tom Pils. You can get in touch with Tom and his team via The Drone Lawyer website. Please note that the above is general information not legal advice, however, if you do want legal advice then please be in touch.