Drones: An Unsolvable Regulatory Problem?
by James Cooper and Jess Harman from Clyde & Co
Australia's aviation safety regulator, the Civil Aviation Safety Authority (CASA), is currently reviewing the regulations concerning the safe operation of drones. However, with the rapid development of drone technology and the increasing accessibility of drones to the general public, is it realistic to expect that regulations will be able to keep up with drones?
As of July 2017, it is estimated that there are at least 50,000 Remotely Piloted Aircraft (RPA, commonly referred to as ‘drones') being operated in Australia, mainly for recreational and sport purposes. The regulation of ever-increasing RPA-related activities is proving to be a challenge for national aviation safety authorities around the world and there are concerns that the speed of technological developments in the RPA industry poses a potentially unsolvable regulatory problem.
State of play in Australia
Last year we wrote about the updated RPA regulations introduced by CASA in September 2016 (CASR Part 101), which, among other things, relaxed licensing and training requirements for recreational users of RPA and some commercial operators.
Within two weeks of the commencement of the new CASR Part 101, the Australian Government, seemingly prompted by industry pressure, announced a substantive review of the aviation safety regulation of RPA to be overseen by CASA. Separately, a Senate Inquiry was also launched to review the use and safety implications of RPA in Australia.
CASA Discussion Paper
As part of CASA's ongoing review, it has released a 'Discussion Paper' to invite public response regarding the issues and concerns that have been raised following the 2016 amendments to CASR Part 101. The discussion paper focuses on several approaches that CASA could adopt to manage RPA-related activities:
- used for recreational purposes weighing less than 150kg (which accounts for the vast majority of drones in Australian skies)
- used for commercial purposes weighing less than 2kg
- operated by private landowners on their own property weighing less than 150kg
Geo-fencing also raises numerous interesting problems of its own, for example:
- what happens to an RPA once it approaches or reaches a geo-fencing area? Does it fall to the ground? Return to its owner? Is it diverted in some other direction or to another location?
- will geo-fencing systems also impact other low flying aircraft (ie piloted aircraft, not RPA) in the surrounding area?
- geo-fencing software can be installed in the RPA itself, however, the cost implications of including the software in all RPA could be prohibitive to some manufacturers or users
All RPA operators are required to comply with the safety requirements set out in CASR Part 101, notably the 'standard RPA operating conditions'. However, there are concerns that some amateur users are either unaware or unwilling to comply with these requirements. In the absence of mandatory training, RPA users are not required to learn or demonstrate any level of practical proficiency in the safe operation of RPA before they may lawfully operate their RPA.
Insurance coverage
One of the major issues for both commercial and recreational operators of drones is obtaining appropriate insurance coverage. This issue has become particularly acute in the Australian context following the paring back of CASR Part 101.
The real danger to drone operators is that posed by potentially large exposures to liability for damage caused by a drone to third parties. Such damage may be in the form of damage to a person (for example, a drone may collide with a person causing them personal injuries) or to property.
It is therefore important that both recreational and commercial operators of drones take steps to obtain appropriate insurance coverage against third parties losses.
Drone operators are not required by the regulationsto take out insurance. This is likely to mean that some operators will forget or choose not to obtain insurance and it may also make it more difficult for operators to purchase such insurance where they choose to do so.
Indeed, we expect that the relaxation of requirements as to licensing for drone pilots may dampen the appetite of insurers taking on third party liability risks of drone operators. In turn, this regulatory environment is likely to lead to increased insurance premiums for both recreational and small scale commercial operators of drones.
For more informarion please email James Cooper or Jess Harman.
Other pages of interest:
Flying drones/remotely piloted aircraft in Australia by Civil Aviation Safety Authority
Commercial drone use set to reach new heights by Don Gribble on November 6, 2017
Far Out Friday: Attack of the drones by Insurance Business on May 19, 2017