Drones and the Law

Updated: Jun 28, 2018

They are increasingly popular, but just what does the law say about drones?


There is no doubt drone usage amongst Australians has risen rapidly in recent years as the cost of the technology has come down. Current estimates put the number of recreational drone users in Australia at more than 50,000, with a further 1000 commercial operators flying in the country. Globally, the figure is over one million drones buzzing around in the air, and with this comes the potential to create an assortment of legal issues.

In Australia, drone use is primarily regulated by the Civil Aviation Safety Authority (CASA) and specifically the Civil Aviation Safety Regulations Part 101 (Part 101). Under these regulations, drones are referred to as RPA(s) (Remotely Piloted Aircraft), which recently replaced the term UAV (Unmanned Aerial Vehicle). CASA, however, is focused on air safety, and as a result, Part 101 does not regulate all aspects of drone usage, such as for instance, issues that may arise around privacy.

In this blog post, we will focus on recreational drone usage. Commercial users of drones have traditionally needed to be licensed with CASA, but the rules have recently changed with respect to sub-2kg drones, which no longer need to be licensed, though notification of flight requirements do apply.  Recreational users flying drones (such as current models of the popular DJI Phantom pictured above and below) are not required to register their machines.  This is in contrast to some other countries like the United States for instance, where drones over 250 grams need to be registered.

Under Part 101, there are some basic, common sense rules that recreational drone users need to abide by, such as:

  • not flying your drone within 30 metres of people; 

  • not flying your drone over populated areas (e.g. beaches, parks etc.) where it might fall and hit someone or damage property;

  • not exceeding 400 feet (121m) above ground level in controlled airspace;

  • maintaining visual eye contact with the drone;

  • not flying your drone in bad weather, in fog, in clouds or at night;

  • not flying your drone over or near restricted or prohibited areas (airports, military bases, heliports etc.) without the requisite permission;

  • not flying near where emergency operations are underway; and

  • not flying more than one drone at a time.

CASA has created a useful app that can show would-be drone users which areas are safe to fly and which they should stay firmly on the ground in:https://casa.dronecomplier.com/external

When it comes to other laws that control drone usage, the situation becomes more complicated.

Most drones nowadays come with onboard cameras and can capture HD or UHD video.  Numerous incidents have occurred where people, often in various stages of undress, have found themselves in the line of sight of a drone’s camera when they may have felt they were protected on private property from prying eyes. They are often surprised to find that, in relation to privacy, unlike most other common law countries, Australia does not have a tort of privacy. Nor for that matter, can an individual sue another individual under the Privacy Act for operating a recreational drone because the Privacy Act does not apply to such users.

States and territories have surveillance laws which may in some instances impact drones if those drones are used to monitor and record an individual’s activities. These laws, however, vary across the country. Similarly, law intended to address taking photographs and videos for indecent purposes such as filming minors can also be of relevance. Likewise, prohibitions against stalking and harassment may apply in some circumstances, however, they tend to require patterns of behaviour.

Drones users also have the potential to run afoul of common law torts, though there is little legal authority on this point currently.  A drone that enters the low-level airspace of a landowner so as to interfere with that landowner’s private enjoyment of their land may constitute trespassing. Similarly, a drone user could conceivably breach the torts of nuisance or breach of confidence.  There are also differences in state laws pertaining to national parks that may further confuse drone users. Some states require ranger permission and permits to fly in parks, others do not, and some in contrast ban drones altogether.

So, what of the penalties for not following the regulations you might wonder? 

Infringing Part 101 will expose a drone owner to fines that are calculated based on Commonwealth penalty units (a single Commonwealth penalty unit is $180), the maximum fine at present is 50 penalty units ($9000). To date, the number of infringement notices issued by CASA has been limited (10-20 per year). A notable recent example, where a Melbourne man used a drone to pick up a sausage from a BBQ at a Bunnings Warehouse, saw the Sunbury man fined ($900). It is not, however, a straightforward matter to police infringements by drones currently as they do not carry transponders and therefore identifying drone owners and evidencing their infringement can be difficult. For an authority like CASA, the primary concern clearly remains drone usage in controlled airspaces such as around airports and heliports as well as over populous areas.

The penalties for other types of misuse of a drone are more varied and beyond covering in this blog post. Notably, however, efforts have been made to increase penalties around privacy. Recently, a proposed bill in South Australia sought to restrict flying drones closer than 30 metres to private property, with the maximum punishment for breach being $2500 or six months in prison. 

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Beyond statutory penalties, however, drone users also need to consider the potential common law liability that could result from an accident with a drone. Drone crashes could be caused any number of factors such as hardware and/or software failure, user error, poor maintenance or unexpected weather phenomena. A drone falling from the sky could create significant damage to property or even injure or kill persons on the ground. Few recreational users, however, seem cognizant of the risks. Drone users could, therefore, in the event of an accident, find themselves being sued in court and potentially be found negligent and individually liable.  As many recreational drone users may struggle to pay a compensation order handed down by a court, it has been proposed that recreational users consider taking out public liability insurance as a way of protecting themselves. Some insurers have begun to include public liability drone insurance as part of their home and contents cover.

As drone usage continues to grow, it is clear that the law is still playing catch-up with the technology and its potential uses and misuses.  CASA is contemplating updated drone regulations as efforts are made globally to create international standards for drone usage, however, these would likely only be in place by the end of the decade and as mentioned above, will not tackle all issues such as privacy. Regardless of the state of development of the law though, remotely piloting an aircraft is a serious responsibility and the onus very much remains on drone users to exercise caution in the air and take steps to limit their liability in the event of an accident.

This information is intended for guidance purposes only and does not constitute legal advice. If you do need legal advice, however, get in touch with us!


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