Drone safety is paramount and requires forward thinking Australian law
2nd Sep 2016
Liability for drone injuries applies to operators or controllers pursuant to the Damage by Aircraft Act 1999 (Cth) which sets up a domestic strict liability regime for compensation for those injured on the ground by aircraft, mirroring international provisions which accomplish the same purpose.
However, the technical and regulatory landscape in Australia is such that the owner of a drone or its operator are notoriously difficult to identify, and thus pursue, after an incident. There is no federal requirement on the owner or operator to be insured for liability for damages. No legislation presently requires registration of non-commercial operators and their equipment. This is problematic because the drones themselves are fairly unreliable. There are no international or local airworthiness standards in place for hobbyist operators, nor any import controls on the more powerful machines which are brought into the country daily in droves. Research released by RMIT in Victoria on 24 August 2016 confirms that technical problems are the primary cause for accidents with drones – usually a breakdown in communication between the drone and its controller. They accounted for 64 per cent of worldwide incidents between 2006 and 2016. The researcher rightly noted that commercial aviation communication systems have regulated redundancy to prevent against such errors – drone laws have not caught up, but must. Dr Graham Wild, one of the researchers, said ‘[i]t’s essential that our safety regulations keep up with this rapidly-growing industry.’
The Civil Aviation Legislation Amendment (Part 101) Regulation 2016 (CALA) which commences on 29 September 2016 in Australia makes the situation worse, and is based on two-year-old consultation and research on the likelihood of injury occurrence from drones striking humans from above. While the rest of the world has pursued further research on this area and come up with rules which suggest that only very small (micro-or under-250g drones) pose little risk and can be operated under more relaxed rules, Australia has not only chosen to deregulate this weight class but will permit drones up to 2kg to be used commercially by anyone without training, insurance or certification, from next month.
One way to attack the inevitable increase in liability claims this will lead to is to stop this law in its tracks. The CALA was tabled in Parliament on 18 April 2016 before Parliament was dissolved and, , there will still be 12 sitting days remaining (from 30 August 2016) for a Member or Senator to put a notice of motion to disallow this legislative amendment pursuant to the Legislation Act 2003 (Cth).
Australian Certified UAV Operators Inc (ACUO), the peak Australian body for commercial drone operators, has spearheaded a campaign to prevent CALAfrom commencing, and published information which effectively demonstrates why 2kg drones (which are available off-the-shelf at department stores and toy stores) need to be more closely controlled. Drones of this weight are exceptionally powerful and, in the wrong hands, can maim and kill. Their YouTube video can be seen here.
The impending Australian deregulation would not only allow a new breed of untrained commercial operators loose in an airspace which is quite complex in its organisation and requires training to understand, but allows people of any age, and of dubious backgrounds and intentions, into that airspace as well. It is clear that not only commercial operators but hobbyists and recreational users need better education and tighter regulation. Notwithstanding that we live in an era of red tape reduction – drone technology is developing so swiftly that we must err on the side of caution when it comes to regulating it.
The aviation industry in Australia is the envy of the world in terms of safety – this will be threatened by the steps being taken to move away from the style of regulation that has ensured a high level of safety for Australian airspace users, passengers and organisations.
It is worthwhile noting that the rest of the modern world is taking active steps to regulate drones in their airspace in the same way ACUO and other industry proponents and supporters have argued is appropriate for Australia. In Europe, the European Aviation Safety Agency (EASA) prototype rules published on 22 August 2016 ensure good protections are put in place like mandatory flight logging, use of geofencing technology, and display of registration marks. These elements can help regulators and claimants find errant users when liability for injury is in dispute. There is also a move to shift the responsibility onto remote pilots to understand their aircraft fully before operation, and to ensure that it is serviceable for flight.
Similarly, the US Federal Aviation Administration (FAA) Part 107 rules on small drones which commenced on 29 August 2016 requires operators to have a minimum level of aeronautical knowledge before they take to the sky, and background checks to help ensure that those with malicious intentions can be distinguished from genuine operators.
By comparison, the Australian CALA is a regressive step introducing none of these protections, and actually removes existing certification rules for drones weighing under 2kg. In addition, it allows property owners to use drones of significantly higher weights (up to 25kg) on their own property for certain tasks, without training or certification. While arguably, the operation of such large vehicles on one’s property carries with it a variety of common law duties and statutory obligations to protect people on the ground and in the airspace, these will not be enough to educate operators, who are not aviators, to appreciate the complexity of the world they choose to enter by launching a drone.
The only conceivable way to preserve the future safety of such operations recreationally and commercially, is to stop CALA before people start taking advantage of its leniency. Then the lessons from modern practices evolving overseas and their bases for safeguarding people on the ground and airspace users can be properly examined for incorporation or adaptation into Australian domestic legislation.
Regulation is not the whole story though: education and fostering the maturity and responsibility of both hobbyists and commercial operators is crucial as is educating the community about the sensible use of, and risks associated with drones.
Furthermore, there must be a development of professional standards of operation for commercial operators by the industry itself, supported by government, and government must work harder to find ways to enforce existing laws against those who misuse drones and put people and property at risk.
All ALA members are called to support the disallowance of this unsafe development in Australian aviation legislation, before it leads to the inevitable rise in preventable accidents and injuries nationwide. Contact your Senator or the writer to join in support of this initiative.
Joseph Wheeler is the Chair of the ALA Aviation Special Interest Group, and Special Counsel with Maurice Blackburn Lawyers, leading the firm’s national aviation practice. Joseph discloses that he acts for ACUO Inc in its pursuit of disallowance of the CALA.
Disclaimer: The ALA would like to acknowledge that the image for this article is creative commons and was originally produced by Bit Boy accessed here.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).