Onwards and Upwards: Breaking Down CASA’s Drone Safety Review

By Michael Nas

12 April 2019

The release of CASA’s Drone Safety Review in May 2018 marks an inflection point in the development and regulation of commercial drones.[1] It follows a period of enormous growth in the sector and is CASA’s first opportunity to take stock since CASA implemented its overhaul of Part 101 of the Civil Aviation Safety Regulations 1998 (Cth) (CASRs) in late 2016. This short article outlines the key outcomes of CASA’s Review, and considers the possible implications for the commercial drone sector.

The 2016 changes introduced new legal concepts and terminology, including the ‘sub-2kg’ rule, the ‘landholder’ rule and the ‘excluded’ category.[2] They added to the already-rich lexicon surrounding drones, also known as remotely piloted aircraft systems (RPAS) and unmanned aircraft systems (UAS).

The commercial drone sector has changed in many ways in the two years since the ‘excluded’ categories of operations were implemented.  Today, drones are being used for genuine commercial purposes, from asset inspection (power-lines, infrastructure, and agriculture) to coastal surveillance, and all manner of things in between. It is not possible to prescribe the number of possible applications – they are essentially limitless.[3]

Predictions for the commercial drones of tomorrow are even more impressive. With an emerging global market estimated to be worth $127b according to a recent study by PWC,[4] drones now represent real business. This has caught the attention of established management consultants such as McKinsey[5] and Boston Consulting Group,[6] confirming this is an area of significant commercial interest.  Australia is well-placed to take advantage of this technology.[7]

The opportunities inherent in drone technologies are also accompanied by certain challenges, the most ‘pressing, pervasive and persistent’ of which (according to CASA) relates to safety and the management of risks to people and property on the ground and in the air. Many of these challenges stem from the unique nature and capabilities of drone technologies. These capabilities were recently highlighted by Time magazine in its special report entitled ‘The Drone Age’, where nearly 1000 drones were used to simulate an image of the magazine’s front cover.[8]

CASA’s Review is therefore both reflective and prospective, outlining the current state of play for drone regulation and operations, and foreshadowing areas of future regulatory work.

CASA’S Review in Context

In CASA’s own words, ‘few developments in the history of civil aviation have given rise to the number and complexity of challenges that have been generated by the emergence and proliferation of remotely piloted aircraft…’.[9] These challenges are numerous and varied: maintenance of the safety of the aviation system of course takes primacy, but there are numerous other challenges, including social, economic, political and legal, involved in the integration of drones into the aviation system.[10]

Whilst technology has steamed ahead in recent years, the law has often struggled to keep pace.  This has not always been the case for drones: in 2002, Australia became the first country in the world to promulgate substantive drone regulations, in the form of Part 101 of the CASRs.  Around that time, the drone industry was in its infancy, there being then only a handful of manufacturers and operators, and with the industry largely being focused on medium-sized fixed-wing drones such as the Australian-designed Aerosonde.  This trend continued through the early 2000s as drone expertise within the military supplied a stream of new developments and applications for drones to the civil/commercial sector.

With continued miniaturisation and the increasing sophistication of components and sensors, the advent of the quad-rotor commercial-use drone signified a sea-change in the industry.  With such capabilities now available to a broader range of participants, utilising “aircraft” traditionally foreign to the aviation industry, the need for regulatory change became an item of more pressing, global significance.

By 2015 there were approximately 2,000 remote pilot licenses (RePLs) on issue in Australia.[11]  By 2016 the figure had reached in excess of 4,000.[12]  In July 2017 there were reportedly nearly 6,000 licences on issue, and as at June 2018 the number exceeds 7,300.[13]

There are also now in excess of 1,200 operator certificates (ReOCs) issued to entities operating drones. Significantly, that number now exceeds the number of holders of Air Operator’s Certificates issued to operators of conventional manned aircraft.[14]  In addition, there have been over 10,000 online notifications from commercial RPAS operators intending to undertake commercial operations in accordance with the standard operating conditions forming part of the amendments released in September 2016.[15] Practical, commercial applications have also emerged in Australia, such as Google’s Project Wing, which commenced trials of supply deliveries by drones to residents of Royalla, on the border of the ACT and NSW, in 2017.

The activity in the drone sector prompted the Minister of Infrastructure and Transport to request CASA undertake a review of the regulatory environment following the amendments to Part 101 in 2016 to ensure the effectiveness of the present regulatory approach towards drones.[16]

Outline of Review

In conducting its review, CASA first published a discussion paper in August 2017 setting out the issues for consideration and inviting public comment by way of a survey.[17] The discussion paper and survey were concerned with understanding the present state of play for drones in Australia, and obtaining information to help plot the next steps towards a more comprehensive regulatory framework for drones for the purposes of the Review.

CASA’s Review deals primarily with the following issues:

1. the possibility of a mandatory registration system for drones (that is, both recreational and commercial drones);
2. proposed education and training initiatives for drone operators;
3. the possibility of deployment of mandatory ‘geo-fencing’ solutions; and
4. the status of CASA’s responses to growth, safety and enforcement-related issues concerning drone usage in Australia.

CASA’s Review concludes with an outline of the forthcoming regulatory roadmap, which will outline the path towards the mainstream integration of drones into the existing aviation system and is slated for release later this year. The key findings of the Review follow the same format below.

Key findings

Mandatory Drone Registration

The results of CASA’s survey showed significant support for the implementation of a mandatory registration system for drones—both commercial and recreational.[18] The survey results indicated general support for mandatory registration by 86% of the surveyed participants. This is consistent with trends towards formal registration requirements in other jurisdictions, including the US, UK and Europe more generally.

The precise formulation of a proposed registration system is not addressed in the Review, though CASA considers the benefits for implementing such a scheme would include:

• additional data gathering as to the types, numbers, locations and categories of drone activities;
• increased transparency and avenues for communication by CASA to drone operators, which would facilitate educational and informational activities; and
• a probable ‘disincentive effect’ such that the need to register would signify to operators that their details were ‘on file’ (as it were), operators therefore being on notice that infractions are capable of enforcement action by CASA.

In the future, registration may be coupled with ‘e-identification’ technologies whereby drones can be identified by radio signal or other means, allowing for further enhanced enforcement options.

These measures will of course carry some cost, expected to be borne by industry, with CASA endorsing an approach that would see commercial drone registration cost proportionally more than for recreational operations.

In light of the survey results indicating a preference by commercial operators for a weight- or mass-based registration scheme, CASA highlights the possibility of implementing a drone mass limit of 250g as the lower limit for a registration requirement. This may in turn mean raising the upper limit of the ‘micro’ class of drones – which are exempted from certain requirements – from 100g to 250g, so as to align with the practice in other jurisdictions such as the US and Canada.[19]

Education & Training

CASA’s present approach to drone regulation utilises education and training as a critical means of ensuring the safe operation of drones. This approach has been utilised given the specific difficulties posed by drone usage, particularly the large number of new participants to the established aviation system, many of which participants have no prior exposure to this complex system.

For operations involving the issuance of RePLs and ReOCs, CASA found that it was satisfied that these processes were operating adequately to ensure the competencies of those involved in such operations. However, operations involving drones falling within the ‘excluded’ category are not currently obligated to meet these competency requirements, for instance, operations of sub-2kg drones.

CASA’s Review therefore weighs up the costs and benefits of implementing a mandatory regime covering the ‘excluded’ operations so that competencies in terms of concepts relevant to aviation safety and drone operations can be verified. In that regard, CASA considered mandatory registration worthy of investigation given that:

1. there are an increasing number of drone operations conducted within ‘excluded’ categories; and
2. it believes there are an increasing number of operations – commercial and recreational – which have either an insufficient understanding of the rules or interpret those rules incorrectly[20] (CASA notes it has investigated but does not set out the specific data on which it relies for the proposition).

CASA determined from analysis of existing approaches in other jurisdictions that there was no consensus approach to training and education.  For instance in the US, commercial operators of drones less than 25kg for certain purposes must pass an aeronautical knowledge test, whilst in Canada certain commercial operations with drones up to 1kg for certain purposes are excluded from the need to establish proficiency.  In the UK a recent announcement was made that the Civil Aviation Authority was considering introducing a basic knowledge and safety test for any drone with a mass greater than 250g.

CASA concluded that its training and education regime as currently applied is sound and should be broadened to include those operations presently within the ‘excluded’ categories. CASA considers this would involve a simple online test with a minimum pass mark, with recreational operators subject to a similar, but less rigorous, process.

Geo-fencing

The term ‘geo-fencing’ refers to the isolation or ‘fencing’ of certain airspace to prevent drone access.  This may be achieved through various means, most commonly involving drone software coded to prevent navigation into these areas delimited by GPS coordinates.

Geo-fencing therefore involves a technological solution to the complex issue of unauthorised airspace access by drones. Quarantined areas can be time-limited and subject to change, such as in the case of temporary restrictions for a public event, or fixed, for instance, around airports. Some level of variation in the geo-fencing parameters may also be required to deal with the fact certain drones may be permitted within certain areas, with differences for commercial and recreational drones.

CASA notes the complexity involved in dealing with all of these matters, including the need to ensure the integrity of the data relied upon to ensure the accuracy of any geo-fencing system, and the need for continual update to the relevant geographical data. CASA also queries how CASA – together with AirServices Australia – might monitor and administer the use of such a system.

In that regard, while CASA notes the potential benefits, at this stage CASA does not have sufficient information – including as to the costs of designing and implementing such a system – in order to give full consideration to mandatory geo-fencing systems in Australia.  This is an area of continuing research and development, but which has the potential to address significant safety concerns.

Growth, Safety & Enforcement Issues in Australia

The incredible growth of the drone sector is noted by CASA: current estimates place the probable number of drones in Australia (including recreational drones) as being in excess of 150,000. It is apparent from the data reported by CASA that there has been an increase in the number of incidents involving drones, including 151 reported ‘near encounters’ between drones and manned aircraft in 2017, exceeding the total number from the five-year period between 2012 and 2016 (127 reported near encounters).

CASA reports that the Australian Transport Safety Bureau (ATSB) has in turn conducted 10 investigations into drone occurrences, but has also indicated that (based on its data) drones are in fact “safer than other aircraft conducting survey and photography aerial work” as noted by CASA.

It is unclear from the data presented by CASA as to the extent to which incidents relate to commercial and properly licensed/certificated drone operators as opposed to recreational drone or other users operating recklessly or deliberately. CASA does note that many recreational and excluded category operations are undertaken lawfully. However, whilst there is certain data available via the ATSB[21] there appears to be a need for more granular information. This ties in with the proposed information collection by CASA, perhaps reinforcing the stated benefits of a mandatory registration scheme set out above.

Indeed, CASA notes the difficulties inherent in its enforcement activities, stating that 465 safety complaints were received between September 2017 and mid-February 2018.  Approximately 18% of those complaints were concluded on the basis there was insufficient information or evidence to proceed with an investigation and a further 30% of complaints were closed without there being any breach of regulation detected.  In the remaining cases where there was sufficient information to establish an alleged breach, 29 complaints were escalated to enforcement level as serious matters with the remainder resulting in educational sessions being mandated by CASA as a penalty. CASA has publicly commented on the difficulties it faces in terms of enforcement when it comes to drones.[22]

Clearly, CASA is dealing with the rapid transformation of the aviation safety system needed to incorporate these diverse technologies, reflecting the opening of its RPAS Branch in 2017 and its expansion. Going forward CASA has signalled its focus on a commitment to a significant educational and marketing campaign incorporating all forms of media (for instance, CASA’s ‘Can I Fly There?’ app) and continued industry involvement. This includes CASA’s involvement in international working groups (such as the Joint Authorities for Rulemaking on Unmanned Systems – JARUS – and the ICAO RPAS Panel). The effect of these programmes will be measured in due course by reference to additional safety and incident data accumulating over the forthcoming years.

Roadmap

CASA’s roadmap is due for publication this year.  Based on present indications, the roadmap will be a comprehensive document that will deal with numerous regulatory and safety matters.

The objective of the roadmap is to outline the steps that CASA foresees will be required in order to roll-out new and substantive regulation for drones to facilitate routine, efficient and effective commercial airspace access.

In that regard, CASA identifies 16 topics to be canvassed in the roadmap, including those set out above and several further topics of which the following are notable:

1. the role and nature of a future unmanned traffic management system (UTM), proposed to coordinate wide-scale drone integration and de-conflict flight paths between drones and other aircraft;
2. airworthiness and certification for the design and production of drones, and which may be seen (as it has been traditionally in conventional aviation) as a foundation for freedoms to access to airspace particularly over populous areas;
3. the requirements of increasingly autonomous systems, including automation in the drone, drone control system, and the UTM system itself; and
4. development of detection and collision avoidance systems that will be necessary in order to maintain separation between the various elements of the aviation system.

In light of the above issues, the roadmap will need to be adaptable to continual change in the technology and business cases for which drone technologies are applied.

Comment

CASA’s Review highlights a number of possible forthcoming changes to the regulatory domain for commercial drone operations and outlines key issues that will be of increasing interest to all aviation stakeholders.

Chief amongst the possible near-term changes is the likely introduction of a mandatory registration system for drone users.  The informational benefits CASA would derive from such a system and the reported general support amongst survey respondents for this proposal will likely see it come to fruition, particularly where such measures are being actively considered in other jurisdictions. These measures go hand-in-hand with the noted need for enhancement to CASA’s oversight and enforcement abilities in order to tackle the difficulties caused by the lack traceability to the operator of any particular drone, complicating the task of identifying culpable individuals in the case of an accident.

Also of note is the possible amendment to the upper mass boundary for ‘micro’ drones from 100g to 250g, which arises in the Review in the context of both registration and training. Whilst seemingly a minor change, it will be interesting to see what effect this change (if made) would have on the drone market. It appears that CASA has not conducted a risk assessment in relation to this proposal as yet.

With its focus on education and training as an integral aspect of the safety system, the introduction of a mandatory education regime for all drone users, including those presently excluded under the rules, seems likely.  It is further likely this will not involve an overly rigorous testing system, but rather one in keeping with the proportionality of the risks involved. Indeed, as noted above, CASA considers that the training requirements forming part of the RePL and ReOC mechanisms are satisfactory, and those utilising these procedures to be operating in compliance with the rules.

In that respect geo-fencing offers a promising option for regulators such as CASA to effectively quarantine certain parts of the sky, particularly around vulnerable or congested areas. However, there are noted difficulties with design and implementation – and oversight thereafter – of such a system and, as with any other technological system, likely workarounds available to those wishing to circumvent the protection offered by the system.  This is clearly an area for further research in CASA’s view.

In the interim, CASA’s internal mechanisms have responded to the growth of the drone sector with the opening of the RPAS Branch in 2017, increasing CASA’s oversight of this sector.  However, the sector’s continual change and increasing complexity remains a challenge for CASA’s existing resources.[23]  In that respect, CASA recently announced it would become a ‘fast follower’ of regulatory developments in other jurisdictions rather than press to maintain a ‘market leader’ status.[24]  While this may be unfortunate given Australia’s significant expertise in this area, this position is taken by CASA with the firm view of facilitating growth and innovation[25] by leveraging (and participating in) international work being conducted with greater resources.[26] In that respect, it may now be important to monitor the numerous and various developments overseas to ascertain the potential for adoption in Australia. For instance, an initial query would be whether CASA proposes to investigate the FAA’s Low Altitude Authorization Notification Capability, which shows the potential for enabling drone access to certain controlled airspace at low altitudes and with near real-time approvals, and which is currently being implemented.[27] From there, the shape of a future UTM for drones will be an important issue for drone operators and the aviation system as a whole.

This is an exciting and continually changing area of technology and law, with the former (as usual) leading the latter.  There are certainly many opportunities for lawyers to be involved in this sector. In fact, whether or not lawyers actively seek out such work they are more likely to encounter these issues in any case as drones become a greater and more visible component of everyday life. Accordingly CASA’s Review indicates that CASA is alive to the present and future significance of drones, and that it will seek to facilitate innovation and integration safely and incrementally as demand for drone services continues to grow and the technology continues to mature.

[1] See CASA, ‘Review of aviation safety regulation of remotely piloted systems’ (2018) (https://www.casa.gov.au/aircraft/standard-page/drone-safety-review).

[2] See CASA, Advisory Circular ‘AC 101-10 Remotely piloted aircraft systems – operation of excluded RPA (other than model aircraft)’ .

[3] Australian Aerospace Industry Forum, ‘Recommendations of the Australian Aerospace Industry Forum Sub-Committee on Unmanned Aircraft Systems Certification and Regulation for Routine Access of Small UAS to Class G Airspace’ (Recommendation Paper, Australian Aerospace Industry Forum, November 2010), 2.

[4] Mazur, Michal, ‘The drone revolution is disrupting industries ranging from agriculture to filmmaking’ (https://www.pwc.pl/en/publikacje/2016/clarity-from-above.html)

[5] Cohn, Pamela, Green, Alastair, Langstaff, Meridith and Melanie Roller, ‘Commercial Drones are here: The future of unmanned aerial systems’, December 2017 (https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/commercial-drones-are-here-the-future-of-unmanned-aerial-systems/)

[6] Amoukteh, Alexandre, Janda, Joel and Justin Vincent ‘Drones Go to Work’, 10 April 2017 (https://www.bcg.com/publications/2017/engineered-products-infrastructure-machinery-components-drones-go-work.aspx).

[7] See Australian Centre for Robotic Vision, ‘A Robotics Roadmap for Australia 2018’ ( https://www.roboticvision.org/wp-content/uploads/Robotics-Roadmap_FULL-DOCUMENT.pdf )

[8] http://time.com/longform/time-the-drone-age/

[9] CASA Review, 6

[10] Clothier and Walker identify technical, operational, economic, political and social differences in Reece A Clothier and Rodney A Walker, ‘The Safety Risk Management of Unmanned Aircraft Systems’ in Kimon P Valavanis and George J Vachtsevanos (eds), Handbook of Unmanned Aerial Vehicles (Springer Science & Business Media BV, 2014) 2229, 33

[11] CASA Review, 19.

[12] CASA Review, 19.

[13] CASA Discussion Paper, 3; CASA Review, 19.

[14] CASA, ‘Drone Safety Review’, 5 June 2018 (https://www.casa.gov.au/aircraft/standard-page/drone-safety-review).

[15] CASA, ‘Drone Safety Review’, 5 June 2018 (https://www.casa.gov.au/aircraft/standard-page/drone-safety-review).

[16] CASA, ‘Drone Safety Review’, 5 June 2018 (https://www.casa.gov.au/aircraft/standard-page/drone-safety-review).

[17] CASA, ‘Discussion Paper: Review of RPAS Operations’, August 2017 (https://consultation.casa.gov.au/regulatory-program/dp1708os/)

[18] CASA notes that support in this instance was demonstrated by selection of any of the available registration options in the survey.

[19] The UK is also considering a similar proposal: CASA Review, 14.

[20] CASA Review, 15.

[21] Australian Transport Safety Bureau, ‘A safety analysis of remotely piloted aircraft systems’, 9 August 2017 (https://www.atsb.gov.au/media/5773362/ar-2017-016a_final.pdf).

[22] Emery, Kate, ‘Drone control ‘too hard’ for aviation watchdog’, 26 June 2018 (https://www.perthnow.com.au/news/aviation/drone-control-too-hard-for-aviation-watchdog-ng-b88877603z).

[23] CASA, ‘RPAS in Australian Skies’, 13 March 2018 (https://www.casa.gov.au/about-us/standard-page/rpas-australian-skies-conference).

[24] CASA, ‘RPAS in Australian Skies’, 13 March 2018 (https://www.casa.gov.au/about-us/standard-page/rpas-australian-skies-conference).

[25] See the terms of reference for the CASA Review: CASA Review, 7. See also CASA Review, 23.

[26] CASA, ‘RPAS in Australian Skies’, 13 March 2018 (https://www.casa.gov.au/about-us/standard-page/rpas-australian-skies-conference).

[27] Federal Aviation Administration, ‘FAA UAS Data Exchange’ (https://www.faa.gov/uas/programs_partnerships/uas_data_exchange/).

This article has been produced for informational and educational purposes only. The information contained in this article is intended to be a summary only, and in general terms only, and does not provide legal or other advice (specific or otherwise). Please seek legal or other advice as is appropriate to you. Bennett + Co accepts no liability whatsoever nor for any loss or damage howsoever arising from any reliance upon this article or the information contained therein.

This article was first published by the Aviation Law Association of Australian & New Zealand in Aviation Briefs, Vol 73 June 2018.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.