CASR amendments to simplify drone regulation

This article originally appeared here.

This article was written by James Patto, Alex Maschmedt and Alexy Monin.

Recent amendments to the Civil Aviation Safety Regulations (CASR) come into effect today (29 September 2016). The amendments are intended to simplify the regulatory requirements around the growing use of aerial drones in Australia, also known as unmanned aerial vehicles and, in Australian legislation, as remotely piloted aircraft - but they also introduce some new air safety requirements that will also impact drones.

Drone use taking off

Drones continue to grow in availability, popularity and in terms of current and potential uses.

Military and surveillance applications of drones are well known and frequently discussed in the media. However, the potential scope for the use of drones and associated technologies is much wider, including:

• monitoring (of eg agricultural assets, mine sites, energy or telecommunications networks)
• emergency services delivery
• provision of remote telecommunications connectivity
• construction and repair activities
• IoT and “big data” collection and analysis
• remote surveying and mapping
• soil sampling and fertiliser or pesticide delivery
• package delivery and cargo transport and
• filming for entertainment / journalism purposes.

The proliferation of drone technology into a growing number of areas has given rise to the need for regulation to adjust and adapt. The CASR is the primary legislation that regulates the use of drones in Australia and the recent amendments are a response to the need for regulatory change.

Overview of the changes

In recognition of the need to help facilitate existing and new applications for drones, from 29 September 2016 Part 101 of the CASR will be amended. The amendments are intended to reduce regulatory and compliance costs (including around certification and licensing), however further safety requirements that have the potential to limit the use of drones (including commercially) will also be introduced. The legislation also provides a new concept of ‘standard operating conditions’ to ensure a base-line of operating procedures for less regulated operations.

The key changes are:

• drones will be re-categorised into five categories (from three) based on gross weight, allowing a greater number of drones to fall within less regulated categories
• drones will have to be operated within unassisted visual line of sight unless the Civil Aviation Safety Authority (CASA) has provided specific prior approval and
• there will be changes to the licensing and certification requirements for drone use. This will include reduced licensing and certification requirements for:
  • the use of very small drones for purposes other than for sport and recreation and
  • the carrying on of ‘commercial-like’ activities by private landholders with small and medium size drones.

Line of sight requirement

Drones will now only be able to be operated within unassisted (without binoculars, telescopes or other similar visual aids) visual line of sight unless the operator has obtained specific prior approval from CASA. Depending on the approval process carried out by CASA, this has the potential to create additional costs to organisations who will now need to seek approval from CASA to conduct operations that involve drones not controlled within unassisted visual line of sight.

Licensing and categorisation changes

Subject to certain exceptions, a person who operates a drone must generally hold:

• a remote pilot licence issued by a designated Remote Piloted Aircraft System training provider that authorises the person to operate the drone and
• an operator’s certificate issued by CASA that authorises the person to conduct the operations.

Each of these requires an application to be made to the CASA under the CASR. 

Use of small drones other than for sport or recreation

Previously, the above accreditations were required in all circumstances for commercial drone use. The amendments now allow commercial use of very small drones without requiring the operator to obtain a remote pilot licence or an operator’s certificate, reducing the time and money spent on regulatory matters. This exemption is, however, subject to the requirement that CASA be notified prior to the operation.

Commercial-like activities by private landholders

Licensing and certification requirements have also been relaxed for private landholders who conduct certain commercial-like activities on their own land (ie owned or occupied by the owner of the drone) provided that none of the parties receive ‘remuneration’. These activities are:

• aerial spotting
• aerial photography
• agricultural operations
• aerial communications retransmission
• the carriage of cargo and
• any activity similar to the above.

This means that, provided the employee complies with the ‘standard operating conditions’ set out below, an employee of a corporate landholder will now be able to conduct the above activities (as part of their general duties):

• using a small drone without having to obtain a remote pilot licence or an operator’s certificate and
• using a medium drone without having to obtain an operator’s certificate,

and without having to notify CASA. However, the employee would not be able to be ‘directly remunerated’ for the flying of drones (ie the only remuneration they could receive is their salary and not an additional amount directly related to flying drones).

This deregulation greatly reduces the compliance burden of obtaining certifications and licenses for businesses who use drones as part of their everyday business on their own land – it also has the potential to assist businesses in a wide range of industries including agriculture, mining and oil and gas.

Licensing and certification requirements

The following table summarises the licensing requirements for each category of drone:

What are standard operating conditions?

To comply with the standard operating conditions, the drone must:

• be operated within the person’s unassisted visual line of sight
• be operated at or below 400 feet above ground level by day
• not be operated within 30 metres of a person who is not directly associated with the operation of the drone
• not be operated in a prohibited or restricted area (eg military areas)
• not be operated over a populous area (ie an area which has a density of population where, for example, a fault in operation of the drone would be likely to pose an unreasonable risk to the life, safety or property of another person)
• is not operated within 3 nautical miles of an aerodrome and
• is not operated over an area where a fire, police or other public safety or emergency operation is being conducted without approval of the person in charge of the operation.

These requirements apply only to the extent set out in the table above or where CASA requires compliance as part of the conditions of an operator’s certificate.

Notification of use

CASA only requires notification of the commercial operation of a drone where it is in the “very small” category and the operator does not have an operating certificate. In this case, notification must be given 5 business days before the commencement of the operation. There is no need to notify CASA each time a drone is operated as part of the same commercial operation, except where required by Part 101 as part of a Manual of Standards. The Manual of Standards is yet to be released but will provide a guide to compliance with Part 101 and may impose further requirements.

Further guidance

CASA has indicated that it will publish forms and guidance notes and introduce a new notification system once the revised regulations take effect. CASA will work with industry bodies to develop a new Manual of Standards to address operational matters for drones.

What should you do to prepare?

If you currently use, or are planning to use, a drone in your business, you should consider whether these regulatory changes affect you. If you need further advice on the impact of these changes, please contact us.

Where to next?

Licensing of drone use is of course just the tip of the iceberg when it comes to the regulatory challenges posed by the proliferation of remote aircraft technology. We can expect to see a great deal more regulatory activity in this area, including in regulation relating to:

• privacy, as people increasingly interact and share information with drones (consciously or unknowingly)
• security of data collected by drones
• safe operation of, and liability for, drones, particularly in populated areas and areas with high volumes of drone use
• the utilisation of radio spectrum by drones, both to communicate and deliver spectrum-based services (eg Internet connectivity) and
• the use of, and liability for, autonomous or semi-autonomous drones.