Industry focus: Drones, local government and the law – what are the risks and opportunities?

21 May 2020

Unmanned aerial vehicles, remotely piloted aircraft, drones – regardless of terminology, this technology is increasingly accessible to the public and becoming a common sight in public spaces. Councils across Australia are recognising both the risks posed by drones to public safety and utility, and the opportunities for their own operations.

With up to one million drones estimated to be in operation in Australia as of 2019, and drones becoming ever more affordable and readily available, the potential for someone to suffer injury or inconvenience as a result of a drone flown from council land is likely to increase.1 On the other hand, drone vendors and operators are marketing to all levels of government for applications as diverse as creating maps for town planning, search and rescue missions, environmental monitoring and aerial PA systems for public events.

What legal considerations should councils be aware of when attempting to manage drone use or use drones themselves?

Local government regulation of drones

Operation of drones by members of the public causes concern for many councils, but the extent of local government authority to regulate their use is the subject of some uncertainty.

In Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2, the High Court held that requirements not to put health and safety at risk under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) apply alongside the civil aviation regulatory scheme. The reasoning of the majority was that, while the Civil Aviation Act 1988 (Cth) and associated regulations and other instruments form part of a comprehensive regulatory scheme relating to aviation safety, aspects of the scheme indicate that it is intended to operate concurrently with at least some State and Territory laws.

Despite the residual uncertainty over the extent to which council by-laws are enforceable alongside civil aviation regulations, many councils impose rules on the launch of drones from land under council control. Councils should bear in mind the risk that such rules may be held to be unenforceable.

In conjunction with imposing rules or by-laws on drone launches, some councils also require drone operators to obtain permits before launching drones from council land, to ensure that operators:

  • Are compliant with civil aviation requirements;
  • Hold any insurances the council considers appropriate; and
  • Can be traced and contacted in the event of any incident.

If your council seeks to regulate drone use on council land, it would first be worth checking existing by-laws around model aircraft. If these requirements are comprehensive, and the definition of model aircraft is sufficiently broad, changes may not be required. Alternatively, minor amendments to clarify the application of the relevant regulations to drones may be sufficient.

If drone use by members of the public is a significant issue in your local government area, it may be worthwhile developing a special purpose drones policy and/or by-law. You should seek specific legal advice to confirm the enforceability of the proposed scheme and ensure consistency with civil aviation regulations and licensing.

Mitigating the risks of using drones for council activities

Councils looking to take advantage of the opportunities presented by drones must ensure they comply with civil aviation regulation as well as various other requirements applicable to using drones.

This is a complex area the subject of detailed legislation and regulation. Before launching any program leveraging drones, councils should consider the following checklist of key legal issues:

1. Ensure your council’s drone-related activities comply with civil aviation and aviation safety regulation

Various laws regulate aviation in Australia, but the key regulation relevant to drones is Part 101 of the Civil Aviation Safety Regulations 1998 (Cth).

Generally speaking, council staff may operate council drones without a remote pilot licence as long as the drone weighs less than 2kg or falls within another ‘excluded category’.

All such flights must be notified to the Civil Aviation Safety Authority (CASA) and follow standard operating conditions, including that the drone is only flown in visual line-of sight within permitted areas and is not flown within 30m of or over people or higher than 120m. The council must keep accurate operational records of all such flights.

Upcoming new rules, expected to be implemented in coming months, will require:

  • Anyone operating an ‘excluded category’ drone to obtain CASA accreditation; and
  • Any drone flown for commercial or work-related purposes to be registered with CASA.

Alternatively, engage a certified commercial drone operator with employees holding remote pilot licences, which can operate in a much wider range of conditions.

In an effort to keep up with this rapidly evolving tech space, civil aviation requirements for drones change frequently. We recommend checking with CASA to ensure that your council complies with all relevant civil aviation regulations before commencing any drone-related activities.

If you are contemplating using an underwater drone, ensure your activities comply with maritime laws and/or any rules set by the relevant water authority.

2. Comply with privacy laws and policies

Councils in all States except South Australia and Western Australia are subject to State-based privacy principles which are broadly consistent with the Australian Privacy Principles under the Commonwealth Privacy Act 1988, with which Territory councils are required to comply.

This means that, in general terms, councils should only use drones to collect personal information about individuals necessary for their functions or activities and by lawful and fair means. A drone may collect personal information if an individual is identifiable from a recording made by a drone, or if data collected by a drone is matched in the council’s systems with other identifying information about the individual.

By its nature, a drone may incidentally and unintentionally collect more personal information than the council genuinely needs for its activities. Councils should consider undertaking a privacy impact assessment to carefully plan each project involving drones with a view to minimising potential impact on individual privacy.

Requirements to take reasonable steps to provide a collection statement to individuals pose a particular practical challenge. Councils should consider a range of options for providing collection statements to individuals with whom they may have no direct interaction. For example, where a council is using a drone to record an event, the collection statement may be included in details published in the lead-up to the event, in the terms and conditions applying to any tickets or registration, or on signs at the event. If this is impracticable, statements may be published in the media, on the council’s website or in communications with residents.

Other issues to consider include:

  • Technical, operational or other measures should be considered to ensure the security of recordings made by drones where there is any chance that those recordings include personal information;
  • Staff tasked with handling privacy inquiries from the public should be made aware of any potential for drone-related projects to collect personal information; and
  • Contracts with third party drone operators must require the operator to comply with applicable privacy principles, and councils should actively monitor and audit operators’ compliance.

Finally, regardless of whether your council is subject to privacy legislation, check your council’s privacy policy to ensure that it is broad enough to cover any personal information which may be collected in the course of your council’s drone-related activities. If not, update the policy prior to launching any drone-related program or ensure that the program complies with the existing policy.

3. Check surveillance laws if your drone might capture footage or audio of private activities or conversations

Laws regulating (and in some cases criminalising) visual and audio surveillance activities are on the books in South Australia, New South Wales, Victoria, Queensland, Western Australia and the Territories.

Generally speaking, a council’s use of drones to record visual footage over public land would be unlikely to contravene surveillance laws, as long as drones avoid recording private activity or activity in a private vehicle or premises.

The definition of private activity varies across jurisdictions. Generally, any activity involving undress or intimacy will be captured, and in some jurisdictions the concept extends to any activity where the circumstances indicate an expectation of privacy by the individuals.

A drone capable of capturing audio will qualify as a ‘listening device’ under surveillance and listening devices legislation across all jurisdictions. The consent of each individual involved will almost always be required to use a drone to overhear or record any private conversation. This includes any private conversation that a drone records or transmits incidentally.

If there is any chance of a council drone operating in such circumstances, you should check the specific terms of the surveillance legislation and criminal codes in your State or Territory.

4. Steer clear of trespass and nuisance

Trespass and nuisance are common law torts related to a person’s right to enjoy their property. The protection extends to ‘the height of an ordinary user’, although there is little guidance on what exactly this means.

A council will be unlikely to commit a tort of trespass or nuisance in the course of using a drone as long as the drone is only used above public land.

In New South Wales, South Australia, Tasmania, Victoria and Western Australia, legislation protects an aircraft operator from liability for trespass or nuisance as long as the aircraft is flying over property at a ‘reasonable height’ in compliance with civil aviation regulation. However it is uncertain whether this extends to drones, so you should check carefully before planning any drone flight over private property.

5. Consider record-keeping requirements

In most cases, data and images collected through drone activities will be subject to the public record-keeping legislation applicable in your jurisdiction. For new forms or categories of data, the council’s policies and/or systems may need to be updated to ensure council staff comply with records and privacy laws in handling those records.

Freedom of information will apply equally to records collected by drone as any other means, and such records should be factored into processes for responding to FOI requests.

6. Other issues

  • Consider the work health and safety implications of individual staff members operating drones, and whether any policies need updating to take into account specific issues.
  • Ensure that your council’s insurance policies (or applicable insurance scheme) cover drone activities – you may need to notify the insurer or take out additional cover.
  • This checklist is intended as a guide only; depending on the specific circumstances, other legislation or regulatory regimes may apply, and we recommend seeking advice accordingly.

HWL Ebsworth has extensive experience assisting businesses and other organisations comply with their privacy obligations. Please contact a member of our team for further information on how we can assist you.

This article was written by Luke Dale, Partner and Nikki Macor Heath, Senior Associate.

1 Explanatory Statement, Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Modal Aircraft – Registration and Accreditation) Act 2019 (Cth), 31 July 2019, p6.

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