Published: 22 June 2019

INTRODUCTION

While the Civil Aviation Safety Regulations and Part 101 Manual of Standards cover the lion’s share of drone specific regulations, as we know, we operate drones in the greater legal landscape.

This article outlines 6 legal issues outside the aviation regulatory framework which are worth thinking about. A few simple steps now can reduce the fallout if shit hits the propeller later. Let’s fly…

[1] Strict Liability

The vast majority of drone offences are ‘strict liability’. A ‘strict liability‘ offence is one where it does not matter whether or not you intended to commit the offence, if you performed the physical act, then you are presumed guilty.

For example, you are generally not allowed to operate your drone greater than 400 feet Above Ground Level (AGL). This is an offence of strict liability.

That is, if you are flying greater than 400 feet AGL but are unaware that you are flying above 400 feet AGL; or not intending to fly above 400 feet AGL; or did not know it was an offence to fly above 400 feet AGL, none of these reasons generally amount to a defence.

That being said, there is a potential defence of ‘honest mistake of fact’. This is a technical argument and requires more than simply not knowing that you were breaking the law. I’ve run one of these cases in court before, trickier than a triple somersault with a pike.

Take-away: the act of breaching the drone regs is an automatic presumption of guilt, even if you did not intend to breach.

[2] Vicarious Liability in employment

Vicariously liability refers to when an employer is liable for acts committed by its employees in the course of their employment.

To be ‘in the course of employment’, an employee’s act must either have been authorised by the employer or be so closely linked to an authorised act that it is considered to be part of that act.

For example, an employee drone pilot is doing their job in the usual and responsible manner and an accident occurs during flight and causes damage. In very general terms (and putting aside extenuating circumstances) while it may have been the pilot’s fault, the pilot’s employer will generally be liable, that is vicariously liable for the employee pilot’s actions.

Similarly, if you fly for your own company and an accident occurs, then the idea is that the company would be vicariously liable for your actions thereby protecting you from personal liability.

On the other side of the coin, an employer is not liable for acts of an employee who was ‘on a frolic of their own’. For example, someone who is part of a drone operation but is not the pilot, who then pilots the drone and causes damage may not be covered by their employer’s vicarious liability obligations and therefore be personally liable.

Take-away: documented policies and procedures with job descriptions may help to establish when someone is acting ‘in the course of their employment’ OR are ‘on a frolic of their own’.

[3] Privacy

The Privacy Act regulates the handling of personal information about individuals. ‘Personal information’ is information or an opinion about an individual who is identified or is reasonably identifiable.

The Privacy Act includes thirteen Australian Privacy Principles (APPs) which specify how ‘APP Entities’ must handle, use and manage personal information.

The APPs generally apply only to Australian Government agencies and businesses with an annual turnover of more than $3 million. However, some small businesses that do not meet the $3m annual turnover threshold may still be subject to the APPs, including businesses that sell or purchase personal information, and businesses contracted for a Commonwealth contract.