Droning on – the case for regulatory change

WHO SHOULD READ THIS

• Anyone whose business is considering deploying drone technology

THINGS YOU NEED TO KNOW

• The use of drone technology in a commercial setting falls within the same regime as commercial aircraft – it is a square peg in a round hole.

WHAT YOU NEED TO DO

• Ensure you have appropriate licences before using drones in a commercial setting – and watch this space for further regulatory change.

Amazon’s planned trial of drone delivery services in the UK gives us a glimpse into an exciting future, but regulatory issues in the UK are similar to those in Australia, so there are clearly still some challenges to overcome before widespread commercial deployment becomes a reality.

The potential of drone technology

Together with blockchain and machine-to-machine communications (powering the internet of things), remotely-piloted craft (or ‘drones’) are amongst the most high-profile disruptive technologies. Quite apart from the growing enthusiast and hobby use (much of which is done in ignorance of the regulations that apply to personal use), many industries are exploring possible commercial applications. Whether it be monitoring gas pipelines in remote areas, surveying bushfires from a safe distance or conducting high-res mapping, the potential for transformative use is clear.

One of the most advanced consumer deployments of this technology has recently emerged in the UK, with online retailer Amazon last month announcing plans to test a drone delivery system for customers in remote areas. The ‘Amazon Prime Air’ service aims to use drones to autonomously fly individual packages to customers’ doorsteps within 30 minutes.

On a broader scale, if successful, this model is predicted to create a high-altitude drone highway in the UK from which a whole range of services could be provided, from retailers and eateries to social services such as ambulances and police surveillance. However, the risks are clear and – like in Australia – the regulations were not made with small, pilotless aircraft in mind.

Regulatory issues with the Amazon solution

There are various technical limitations – and regulatory concerns – which will inhibit drone deployment until they are resolved.

For instance, current UK rules prevent the ‘pilot’ of a drone from flying the drone outside their line of sight. This is an obvious drawback to the deployment of a long-distance delivery solution. Amazon is reported to be developing collision avoidance technology to install in drones, but clearly a technological solution that allows drones to be flown further than a pilot can actually see them is a necessary precondition to creating a viable drone delivery service.

Additionally, current drone technology requires the operator to plan its individual route which, if applied to a large-scale operation, may result in significant delays and prohibitive cost overheads. Work is being carried out to develop fully automated drones that require very little, or no, human control that are capable of autonomously deciding when and where they fly. This would allow for the efficient use of drones, with clear benefits for applications in other areas.

At present, drone technology only allows for one drone to be (safely) flown by each operator. Amazon is testing a system which would allow a single operator to fly multiple (or a whole fleet) or drones at any one time to different locations. This would be commercially beneficial for consumers and allow for mass monitoring of events or disasters as well as police or rescue operations.

While Amazon is reportedly working to address these technological issues, it is likely to be some time before drones offer effective commercial or social solutions.

Aviation regulation in Australia

While many would be surprised at the level of regulation that applies to drones in Australia, we are about to see some changes to the regulatory landscape that will give rise to greater scope for regulatory flexibility and innovation.

While anyone may fly a drone recreationally, there are some general restrictions on how all drones can be used. These include:

• only fly during the day and keep your drone within visual line-of sight (i.e. being able to see the aircraft with your own eyes, rather than through first-person-view)
• do not operate your drone in a way that creates a hazard to another aircraft, person or property
• do not fly higher than 120 metres (400ft) above ground level
• keep your drone at least 30 metres away from other people
• keep your drone at least 5.5km away from controlled aerodromes
• do not fly over any populous areas, including beaches, parks and sporting ovals
• do not fly over or near an area affecting public safety or where emergency operations are underway, including car crashes, police operations, fires and search and rescue
• only fly one drone at a time.

It is illegal to fly a drone for commercial purposes without certification from the Civil Aviation Safety Authority (CASA). CASA Certification applies to both the individual drone operator and the business which is conducting the operation.

From 29 September 2016, there will be some loosening of the rules for using very small drones – under 2kg – for commercial purposes. While they will still be caught by the general operating rules for drones described above, certified commercial drone operators will be able to:

• operate closer than 30 metres, but no less than 15 metres, from a person
• fly at night (with night rating)
• apply for exemptions to the regulations e.g. beyond-visual-line-of-sight, and
• operate in controlled areas subject to new guidance.

These changes will provide some flexibility to allow more innovative commercial solutions. Further, there will be scope for CASA to approve autonomous flight and other exemptions to the regulations on a case-by-case basis, which gives some further regulatory flexibility and scope to accommodate ongoing innovation through this exciting technology.

Of course, there are myriad privacy and surveillance issues which arise through the recording and collection of data by drone technology. Some local councils have even begun taking steps to prevent the take-off and landing of drones from public areas (although Councils have jurisdiction over the land and not the airspace, which is CASA’s remit).

The complex web of regulatory and policy issues mean that the evolution of drone technology will not be straightforward.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.