Australia's National Emerging Aviation Technologies Framework takes off...

Published: 6 January 2021

Executive Summary

In September 2020, the Australian Government Department of Infrastructure, Transport, Regional Development and Communications (DITRDC) released its “Emerging Aviation Technologies – National Aviation Policy Issues Paper” referred to in this article as “the Paper”.

In short, the Australian Government – through the DITRDC – is developing a national whole-of-government framework to manage new aviation technologies, such as drones and electric vertical take-off and landing (eVTOL) vehicles. The 68-page Paper is available in its entirety here.

The Paper is the first step towards development of a national policy for the management of drones and other emerging aviation technologies.

The Paper identified 10 key topics in the proposed approach to policy development, which are:

  1. Airspace integration
  2. Safety
  3. Security
  4. Noise
  5. Environment
  6. Privacy
  7. Electric Vertical Take-Off and Landing Vehicles
  8. Infrastructure
  9. Technology trials
  10. Central coordination

The key points of each topic will now be unpacked. If you’re skimming through, I have bolded certain key phrases throughout the summary to help you identify the central points.

1. Airspace integration

While entry by drones into controlled airspace is possible, if undertaken using the existing manual processes, it could quickly become unmanageable for the Civil Aviation Safety Authority (CASA) and Airservices Australia (Airservices) as the sector grows.

The integration of emerging aviation technologies into Australia’s airspace will require rethinking how airspace and aviation is managed. These emerging technologies, along with the policies, regulations and procedures that manage them, are collectively referred to by the Australian Government as the Integrated Airspace System (IAS).

A key element of the IAS will be the development of a new system of traffic management for unmanned and autonomous aircraft (UTM). It is anticipated that implementation of UTM will initially be modest, and focused on drone operations outside controlled airspace. Over time, UTM could expand to cater for other manned, unmanned and autonomous platforms, and may help facilitate the integration of these aircraft into controlled airspace and existing air traffic management (ATM) systems.

While still at the early stages of development, it is planned that Australia’s UTM system will include a single centralised Government platform – a flight information management system (FIMS) – to facilitate access to authoritative national government data, provide centralised government services, and facilitate industry-provided services.

The FIMS will also serve as the vital interface with the existing ATM system to enable safe, secure and efficient management of aircraft across all airspace

2. Safety

It remains to be seen whether third party insurance would be an appropriate mechanism for drones, especially considering the disparate risk profiles of operations across the drone sector.

Broadly speaking, there are three safety mechanisms/layers currently provided for in Australian legislation. These are:

A. the use of operating conditions, such as the Standard Operating Conditions (SOC) and legislative instruments;

B. license requirements for certain drone operators; and

C. approved access to certain types of operations such as within controlled airspace or BVLoS.

The Australian Government is currently exploring new classes of airspace and operating areas to accommodate a variety of drone operations.

Special airspace arrangements for drone operations could assist in the response to emergencies and natural disasters such as the major bushfire crisis of early 2020.

3. Security

Existing regulation in Australia controls where drones can fly, who can use them and what level of training or licensing is required. However, these frameworks were not intended to manage the security risks posed by the malicious use of drones. It is necessary to ensure the regulatory framework supports actions required to address malicious drone use.

Drone registration will facilitate the management of potential security risks as the identification of the drone owner is likely to become easier and not dependent on physical interdiction of the aircraft or pilot.

The accreditation scheme will promote a greater understanding of drone operating rules, which may reduce the potential for drone intrusions into sensitive areas

The Office of Airspace Regulation (OAR) is undertaking research to consider special airspace types that could be used to mitigate security issues. At this point in time there is no ability under the Airspace Regulations 2007 to prohibit drones or any other aircraft type from specific airspace unless for a military necessity.

There are a number of risks associated with the widespread deployment of counter-drone technology, particularly regarding interception or interference with radio communications, cyber-security, the safety of aircraft and potential for collateral damage. As a result, the deployment and use of these capabilities is generally prevented by legislation designed to manage these risks (without case-by-case delegations and exemptions). There is a need for a robust, long-term approach to managing the risks associated with drones and counterdrone devices.

4. Noise

An interim, risk-based approach to the regulation of drone noise will be developed to manage the noise impacts from commercial drone operations. This approach will focus on operations that are likely to have significant noise impacts, and will aim to provide flexibility to operators to develop different concepts of operation, whilst carefully monitoring community feedback to ensure that operations do not exceed community tolerance for noise impacts. This interim approach will also take into account noise abatement processes by operators.

In order to establish a feasible long-term approach to managing drone noise, the Commonwealth in consultation with State/Territory authorities, the industry and the community, will develop a consistent Drone and eVTOL Operations Noise Policy Framework for integrated airspace that encompasses all existing and future commercial drone operations. The national framework could assist in State/Territory planning approval processes related to drone and eVTOL sites.

Noise regulations for drones and eVTOL that meet aircraft noise certification standards (once developed) will be acknowledged under the noise regulations.

Maintaining Commonwealth responsibility for the regulation of drone noise will ensure that a consistent approach is applied across the country, fostering interoperability, enforcement and compliance by industry. State and territory governments and local communities will need to be engaged in local noise considerations and feed into the process of setting appropriate groundbased limits for drone noise, particularly with reference to planning  around drone landing sites and facilities.

5. Environmental

The ecological impacts of drone operations into both urban and non-urban environments are still being explored to determine the extent that their use benefits, and the extent of any impact on, wildlife behaviour and ecological outcomes.

While the majority of research has focused on the impacts found during targeted research, the impact on wildlife occurring from the more diverse recreational user is not as well understood.

State level regulation can have multiple layers within it. State legislation also empowers public authorities, such as local councils, to develop further environmental planning instruments known as local environmental plans.

Location or event-based regulations can be created by both the Australian Government and State and Territory governments. However, the triggers for assessments under environmental laws is unclear regarding the applicability for drone and eVTOL operations.

Location strategies include the use of Commonwealth and State National Parks across Australia. The presence of a National Park allows for restrictions on the use of drones to be implemented. This is frequently expressed through the need for a permit to operate in certain places.

Restrictions applied for environmental purposes can be complex and differ between jurisdictions.

Consideration will be given towards working with industry to develop a voluntary code of practice where it is appropriate. Once established, the contents of a code of practice could be managed as part of a UTM and communicated through other drone flight information tools.

6. Privacy

Privacy is a complex policy area as there is no agreed definition of what is meant by privacy.

Privacy legislation at the Commonwealth level, and in most States and Territories, supports a right to protection from unlawful or arbitrary interference with privacy in relation to protecting personal information about individuals.

There is no statutory right to sue for serious invasion of privacy in Australia , though existing actions such as breach of confidence, trespass, nuisance and/or surveillance issues could apply to privacy breaches.

In terms of specific privacy legislation, the Commonwealth has responsibility for the Privacy Act. This legislation covers the protection of personal information in the Commonwealth public sector and in the private sector for organisations with an annual turnover of $3 million or more, subject to some exceptions. It does not address the collection and use of information by individuals acting in a personal capacity nor does it cover more generally the concept of intrusion upon a person’s seclusion.

The Privacy Act deals with the protection of personal data and the security of personal information rather than with privacy more generally.

The application of trespass, nuisance and surveillance legislation to drone activities can be complex. A lack of Australian case law means that there is uncertainty over how trespass legislation is interpreted on some occasions.

Where privacy has been invaded through the use of surveillance devices there may be some remedy under a state or territory’s surveillance laws.

The Commonwealth will work with States and Territories to consider increased interoperability and application of privacy laws in regards to drones and eVTOL vehicles to provide more clarity and greater consistency in the approach to how the privacy implications of drones are handled.

Non-regulatory approaches will also be considered to educate drone operators and the community to create a respectful operational environment. This could include non-binding codes of practice or privacy guidelines applicable to drone operators, and to encourage commercial and community uptake of these when operating a drone.

7. Electric vertical take-off and landing (eVTOL) vehicles

The introduction of eVTOL operations at scale will create a new range of challenges, including maintaining the safety of the aviation system, allowing supporting infrastructure, security issues, community engagement and education.

There will also need to be consideration of the implications regarding autonomous operations in advance of the introduction of this technology in the future, such as how responsibility and control is ensured with increasing automation as well as the legal responsibility for autonomous operations.

A further challenge for government is to safeguard fairness and equity across the industry by ensuring early adopters of this technology do not unduly restrict the entry of other market operators and existing airspace users.

eVTOL operations will also require significant infrastructure, which will require consideration regarding access, competition, oversight, approvals, community impacts and flight corridors.

A core component will be ensuring multiple operators can conduct concurrent operations safely in the same airspace and considering the needs of all airspace users when undertaking infrastructure and town planning.

As with broader drone operations, a well-planned UTM will be particularly vital for ensuring the long-term success of eVTOL operations.

8. Infrastructure

The type of infrastructure may differ depending on the future evolution but is likely to include some form of warehouse or site management where drones can return for charging, loading and maintenance.

Most current thinking prefers a hub and spoke style model of drone and eVTOL deployment, but that is not yet certain. There will also need to be a range of new infrastructure developments to accommodate eVTOL operations, including integration with existing transport and community hubs.

The infrastructure needs will be further influenced by the capability and size of the drone, network planning, integration with ground-based transport modes or depots, air routes and air traffic management. The options are many and will need to be closely monitored to ensure that once a technology path is more certain, investment and planning can occur in a timely manner.

The wireless communications links used by drones rely on access to radiofrequency spectrum. Spectrum management will be an enabler of safe, secure and efficient integration of drones into controlled airspace.

These applications and their users will require greater assurances in the quality and reliability of spectrum access arrangements than is currently provided, necessitating a mix of new and existing approaches to radiocommunications licensing and spectrum management.

9. Technology trials

One way in which a wide range of drone related innovations can be advanced without compromising public safety is the use of controlled ‘sandbox’ spaces for conducting trials. These spaces are designed to allow activity that may be difficult to integrate into existing regulatory processes. They allow for controlled operations that might not otherwise be possible or permissible without compromising safety.

Some state governments are looking to support drone operations including the development of spaces where airspace integration trials, including UTM systems and other drone technology, can be conducted. Trials are showing that there is potential for positive collaboration and engagement with all levels of government and industry.

Utilising the opportunities of vast uninhabited area in regional Australia to conduct trials could result in potential benefits for drone operators and stimulate new investments in regional Australia.

10. Governance and central coordination of future work

The authority for many aspects of policy, regulation and responsibility is shared across a range of different Commonwealth and State/Territory agencies.

As new challenges arise and responses are required, it will be essential that responses are coordinated and consistent across Commonwealth and State/Territory governments, which includes the ability to respond to community concerns and complaints.

The DITRDC will coordinate and manage ongoing policy work regarding the management of emerging aviation, including drones and eVTOL operations. This will involve coordinating engagement and cooperation with Commonwealth agencies through regular inter-departmental forums, with each agency being responsible for developing their own coordinated whole-of-agency positions and contributions.

A Commonwealth and State/Territory forum will also allow governments to facilitate the ongoing management of drones and will assist in managing a nationally consistent and coordinated approach moving forward, facilitating industry compliance and interoperability.

What’s next?

The Australian Government has commenced a broad process of consultation with industry, State and Territory governments and the wider community on the issues identified in the paper.

As part of this process, the DITRDC has established an Industry Advisory Group to coordinate industry input in the development of the national policy framework.

These consultations will be used to inform the development of a National Emerging Aviation Technologies Policy statement.

This policy statement will then form the basis of any legislative, regulatory or functional change as necessary, settle roles and responsibilities within government, and guide action plans for the development of processes and procedures.

Fly free!

The Drone Lawyer

6 January 2021