Abstract
In 2002 Australia became the first nation to promulgate certification standards for the commercial use of drones or Unmanned Aircraft Systems (UAS). Since that time the Australian Civil Aviation Safety Authority (CASA) has played a key role both domestically and internationally through the International Civil Aviation Organization (ICAO) in assisting to develop technical guidance materials that will enable contracting states to develop UAS regulations. An arduous component of this task is the fact that all existing aircraft are capable of being unmanned. Moreover, given the unbounded nature of aircraft operations, UAS regulations necessarily require international harmonisation. But the objective of developing universal UAS standards is still far from being finalised while the accelerating pace of UAS technological development continues to challenge traditional regulatory regimes and legal systems throughout the world. This paper considers the broader legal issues associated with civilian UAS operations and their integration into unsegregated civilian airspace. In particular the Australian UAS regulatory experience is examined with some unique constitutional limitations identified in relation to the application of the so-called ‘commingling theory’. It is contended that such limitations may render void existing UAS regulation in certain situations – many of which are likely to have adverse privacy implications. This paper strongly asserts that if the commercial benefits attendant to UAS operations is to be fully realised then their risks to society must be controlled through domestic legislation that is harmonised with internationally agreed standards.
Highlights
1.1 BackgroundIt is no revelation that aviation and regulation are intrinsically linked
The Australian Law Reform Commission’s Professor Barbara McDonald agrees with the inquiry’s findings in that the exemptions100 contained within the Act and the ‘patchwork’ of State and federal privacy laws are totally inadequate to deal with unmanned aircraft systems (UAS) operations: At the moment the lack of uniformity means that there is insufficient protection of people’s privacy, because people do not know what is against the law and what is not
In a position paper issued by the UAS Study Group (UASSG) in mid-2014 it was noted that during the six years of its operation, few UAS-related Standards and Recommended Practices (SARPs) have yet been adopted, the work of the group has already led to initial harmonisation among many International Civil Aviation Organization (ICAO) contracting states which have so far promulgated regulations for remotely piloted aircraft systems (RPAS).156
Summary
It is no revelation that aviation and regulation are intrinsically linked. it is generally recognised that aviation is the most strictly and extensively regulated industry. Managing change in the context of a highly technological and rapidly changing industry has, since the advent of aircraft, been the most challenging role of governments and aviation regulators alike. In previous instances of rapidly developing aircraft technology, notably during the two World Wars, governments were united and unanimous in their response to introduce legislation to ‘harness’ aviation activities. For governments and regulators it is suggested that a paradigm shift may be required to effectively achieve this goal – especially considering the ambitious implementation timetable that many governments have self-imposed.6 It is the rate of development of UAS technology that requires a recalibration of approach as to how to control this area of aviation but rather the unique characteristics, capabilities and diversity of their application. Unlike previous developments in aircraft technologies UAS are more accessible, affordable, adaptable and more capable of anonymity.8 These ‘four A’ attributes of UAS are confronting governments and regulatory authorities throughout the world. They are capable of a “swarming, persistent presence, low-level but ubiquitous and above all anonymous”.11
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