As a basis for the National Emerging Aviation Technologies policy the national Department of Transport and Infrastructure has released a consultation paper on Emerging Aviation Technologies, centred on drones.
It states
This paper is the first step towards development of a national policy for the management of drones and other emerging aviation technologies. The paper identifies opportunities and risks associated with these technologies, outlines some of the current approaches for managing these issues and proposes an approach to policy development. It is a starting point for ongoing discussion and collaboration between government, industry and the broader community to develop a comprehensive national policy that will allow Australia to benefit from the considerable opportunities provided by emerging aviation technologies whilst effectively managing the risks and impacts associated with their use.
Introduction
Australia is no stranger to adopting new technology and innovation. Australia was one of the first countries in the world to regulate the operation of drones in 2002. Australia was also the first country in the world to welcome regular commercial urban drone delivery services in April 2019.
Over the last few years, the growth in new emerging aviation technologies such as drones and electric vertical take-off and landing (eVTOL) vehicles is creating even more opportunities for new ways of doing things. New industries are being created and we can clearly see new concepts that were once considered things of the distant future.
While the technology itself is both important and impressive, it is the applications of this technology where the real potential for significant economic and social benefits exist. It is simply more than enabling technology for technology’s sake; it is unlocking the tangible benefits and use cases this technology can facilitate. There have been a number of estimates of the market value of these new emerging technologies, many of which quote figures in the hundreds of billions of dollars. For example, PwC, a consulting and professional services firm, estimated in 2017 that the market value of drone powered businesses was around AUD $163 billion. Many estimates project growth in the sector to continue at significant rates. While it is difficult to predict the exact market value, it is clear these technologies will be transformative and will change how and where we live.
It is likely there will be an early impact on a range of industry sectors through productivity gains. We are just at the beginning of utilising and understanding this technology, and there is significant potential for further growth as technology improves, the scale of operations increase and we discover new applications for drones.
Utilising drones and eVTOL vehicles enables the opportunity to carry out many tasks in the abovementioned industries cheaper, safer and more efficiently. The flow on increase in productivity and sustainability for these industries will boost economic development and jobs. Such technology will likely create a shift in the job market, creating new sectors for operation and maintenance, but also new jobs working with this technology in existing industries.
In recognition of this potential, the Australian Government is developing a national whole-of-government framework to manage new aviation technologies, such as drones and eVTOL vehicles. A National Policy on Emerging Aviation Technologies is the first step in this process. Noting the potential economic and social benefits, the rationale for a national policy is to provide certainty for industry investment and provide a clear policy and legal framework that actively encourages and facilitates the use of this technology. However, the policy and legal framework will also include a range of measures to mitigate potential risks and impacts on the community. It is vital that these technologies operate in a manner that is safe, secure and considerate of the community and the environment.
The emergence of this sector also provides an opportunity to examine the regulatory approach. There is an opportunity for the Australian Government to utilise technology in the way we regulate. There is also scope to reduce the regulatory burden for industry through greater coordination and consistency between the numerous different government regulators.
A national whole-of-government policy approach to emerging aviation technologies will place Australia well to capitalise on our willingness to be an early adopter of new technology and to attract greater investment, jobs, and economic growth. Such technology also has the ability to enhance and revolutionise not just the broader aviation sector, but also many other industries.
Scope and context
This paper predominantly discusses issues with reference to the use and operation of drones and eVTOL operations. This paper does not apply to the military use of drones and is of limited relevance to larger drones that will have the ability to transit international airspace. It is also noted that the use of drones by law enforcement, government authorities, and search and rescue operations will continue to require special arrangements and authorisations which are not discussed in this paper.
The Australian Government invites written submissions on the proposed policy outcomes articulated in this paper to inform the direction of the National Emerging Aviation Technologies policy. Questions to guide the development of submissions include:
- Do you agree with the proposed core principles for the National Emerging Aviation Technologies policy?
- Will the proposed approach to policy development adequately allow for the future direction, operations and investments of your business/organisation? x Are there any other approaches that could benefit the sector?
- What level of service and regulation do you expect from the Government?
- What are your expectations of the Government’s role and responsibilities in the management of drones and eVTOL vehicles?
- What are the key opportunities that these new technologies could deliver for Australia?
- What are the most significant barriers to realising these opportunities?
- What issues or actions should the government prioritise to facilitate the growth of emerging aviation technologies?
- To what extent should Australia’s approach be harmonised with approaches taken in other countries?
- Are there other issues that the Australian Government should consider?
What are the next steps?
The Australian Government will commence a broad process of consultation with industry, state and territory governments and the wider community on the issues identified in this paper. As part of this process, the Department of Infrastructure, Transport, Regional Development and Communications will establish an Industry Advisory Group to coordinate industry input in the development of the national policy framework. This group will be supported by workshops and working groups of relevant stakeholders to drive progress on specific issues, such as Unmanned Traffic Management. These consultations, together with the submissions received in response to this paper, 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. Any legislative or regulatory change processes to implement policy outcomes will also include separate consultation consistent with Australian Government processes.
Core principles
The following core principles will underpin a National Emerging Aviation Technologies Policy:
- The necessity for safe and secure operations
- Encourage best practice operations
- Considerate of the community and environment
- Support industry growth and investment
- A fair, competitive and efficient approach to airspace access
- A nationally consistent approach
We will achieve this through a market management approach that is:
- Interoperable with international approaches
- Outcomes-based
- Technology-driven
- Flexible and agile
- Coordinated and free from unnecessary red-tape
- Proportionate to risk
Summary of proposed approach to policy development
1. Airspace integration The Australian Government, in partnership with industry, will develop a UTM system that would support a combination of centralised government services and industry-provided services that will facilitate fair and competitive access to airspace and mitigate a wide range of risks and impacts.
2. Safety The Civil Aviation Safety Authority will maintain its commitment to the primacy of safety, while taking a responsive, modern and evidence-based approach to safety regulation and the certification of new aviation technology that provides scope for innovation and flexibility, having regard to the inherent risks of the operating environment, other airspace users and the travelling public.
3. Security The Australian Government will lead the development of a proportionate and evidence-based approach to managing security risks associated with drones and eVTOL vehicles that is adaptable to changing circumstances and technologies while ensuring a secure operating environment.
4. Noise The Department of Infrastructure, Transport, Regional Development and Communications will develop and manage a national regulatory approach to noise management that encourages quieter operations consistent with local community considerations.
5. Environment The Australian Government will lead the development of a consistent, balanced and proportionate approach to manage the impactson wildlife and the environment, including the enjoyment of nature areas and cultural sites.
6. Privacy The Australian Government will lead the development of a nationally consistent approach for managing privacy concerns that balances the impacts on privacy with the needs of drone and eVTOL operations.
7. Electric Vertical Take-Off and Landing Vehicles The Australian Government will work with all relevant stakeholders to develop measures for safe, efficient, considerate and reliable eVTOL operations in a competitive market that supports safe, efficient and equitable access for all airspace users.
8. Infrastructure The Australian Government will lead the development of a coordinated and informed approach to infrastructure planning, investment, requirements and approvals.
9. Technology trials The Australian Government will develop an approach that fosters partnerships between government and industry to promote shared outcomes and learning with the goal to support the commencement of future commercial operations.
10. Central coordination The Department of Infrastructure, Transport, Regional Development and Communications will coordinate an ongoing whole-of-government policy approach to manage future challenges associated with emerging aviation technologies to ensure a consistent and coordinated approach to regulation across issues and jurisdictions.
In dealing with privacy the paper states
The protection of privacy is considered one of the most contentious issues that communities around the world will need to manage as drone use increases. Managing public perceptions of privacy and trust in technology is critical to the ability to embed and harness the benefits of technology and innovation.
Privacy is a complex policy area as there is no agreed definition of what is meant by privacy.
The Oxford English Dictionary defines ‘privacy’ as: “The state or condition of being alone, undisturbed or free from public attention as a matter of choice or right; seclusion; freedom from interference or intrusion”
Australia is a signatory to the International Covenant on Civil and Political Rights. This recognises a right to protection from unlawful or arbitrary interference with privacy. Privacy legislation at the Commonwealth level, and in most States and Territories, supports this right 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 or negligence could apply to privacy breaches.
Other regulations that may be seen to support the right to privacy in Australia includes Commonwealth, State and Territory legislation that concerns trespass, nuisance and/or surveillance issues.
Current issues
As small drones are being sighted more frequently in communities, people are becoming sensitive about the potential impact on their privacy. Drones differ from other forms of new technology that have been introduced to society in recent years, such as engineering robotics or nanotechnology. They are being encountered by people firsthand in a social setting that is atypical for many new technologies. Drones are visible and appear to the public to have unrestricted mobility. They are not bound by the limits that aircraft traditionally have, allowing them to be an anonymous, low-level and continuous presence within any outdoor space.
The mobility of a drone, which is in many ways their defining feature, can present privacy concerns in certain situations. A drone can be seen to easily intrude into what is viewed as private space, such as a person’s backyard, as well as intrude into personal space, such as when a person is sitting in a public park.
A person’s privacy can still be recognised within a public space. The rights to privacy within public spaces are more nuanced, and influenced by the location and activity that a person is engaging in. For example, attending a sporting match that is being filmed and broadcast versus entering a toilet within a public shopping center; both are public spaces, but the expectation of privacy in all forms is different in the setting and context.
Lacking a clear definition, it can be useful to consider two primary forms of privacy invasion.
First is the intrusion upon seclusion, such as by physically intruding into a person’s private space or by watching, listening to or recording a person’s private activities or private affairs. Second is the misuse of private information, such as by collecting or disclosing private information about a person. These two forms can have considerable overlap.
The perceived intrusion onto a person’s sense of seclusion can be difficult to quantify and there are questions on how this can be legally enforced. Similarly, with recording information, the ability for a drone to take a photo that includes a person or their home can be viewed as intruding, but may be lawful.
The second issue, relating to the misuse of information, including the collection of information as well as the disclosure of it, is equally complicated. The widespread use of applications such as Google StreetView has sparked conversations regarding an individual right to personal privacy. The collection and publication of material in public spaces is largely indifferent to an individual’s personal sensitivity or threshold of privacy.
Drones that are capable of collecting information such as photos, videos or sound recordings that legally operate in public spaces are less of a concern. However, by having the capacity for an aerial view, the potential for people to feel information collection has intruded their privacy grows. For example, the Google StreetView is collected from vehicle height on public roads. A drone operating on the same geographic path will be able to see further into a person’s yard circumventing infrastructure, such as fences, that may have been installed to deliver privacy.
Current regulation and strategies
Aside from the Commonwealth Privacy Act 1988, the majority of regulation that is applicable in the privacy area is administered by the state and territory governments. State and territory privacy laws about trespass, nuisance and surveillance are the most likely legislation to apply to drone activities.
The Senate Standing Committee on Rural and Regional Affairs and Transport (2018) report: Regulatory requirements that impact on the safe use of Remotely Piloted Aircraft Systems, Unmanned Aerial Systems and associated systems and the Australian Government response ... noted that state and territory privacy laws are a matter for state and territory governments, however the Australian Government will engage with state and territory governments to consider national harmonisation of state and territory privacy laws.
Regulation is not the only option available to manage public concerns over privacy and drone use. A further option would be to consider the potential for 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.
Commonwealth legislation
CASA’s safety rules limiting the ability for a drone to fly over a person or activity reduces the potential for perceived intrusion. However, a drone operating 30m away from a person may still be seen as intrusive, even if not directly above them.
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 Privacy Act contains 13 Australian Privacy Principles that set out standards for the collection, storage, security, use, disclosure and quality of personal information.
The Privacy Act does not generally apply to state and territory government agencies or contractors to those agencies. They are subject to state and territory privacy legislation in all jurisdictions, except for South Australia and Western Australia, who do not currently have privacy legislation.
Public awareness and expectations of what organisations and actions are covered by the Privacy Act is poor with a majority of Australians believing that the reach was greater and extended to more organisations that it does.
State legislation
State and territory governments all have different legislation and approaches to privacy. This reflects the history of each state, the related pieces of state legislation and the community expectations in each jurisdiction. Not all States have privacy legislation. All have some forms of trespass, nuisance and surveillance legislation that may apply to drone activities.
Proposed policy approach
The Australian Government will lead the development of a nationally consistent approach for managing privacy concerns that balances the impacts on privacy with the needs of drone and eVTOL operations.
The application of trespass, nuisance and surveillance legislation to drone activities can be complex. The use of nuisance for example may not extend to a drone unless it is interfering with the ordinary usage of a place. Similarly, trespass requires a person to hold a particular title over the land in question and does not apply in public areas. The operation of drones in airspace creates further issues as generally it is viewed that a property owners rights are restricted to the heights that are necessary for the ordinary use and enjoyment of their land. 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 . These laws can include regulations on how a device is used as well as regulating how the information collected from a device is communicated or published. This varies across states and territories. Use of listening devices are generally prohibited without consent. However, optical devices are not as consistently addressed, with a number of states silent on their use. States may have alternative legislation that creates an offense relating to the possession of unlawfully recorded private activities.
The need for nationally consistent privacy regulation was discussed in a 2008 Australian Law Reform Commission report . While some degree of national consistency has been achieved since then, as the Commonwealth and certain states and territories have amended privacy laws in their own jurisdictions, States and Territories still maintain discretion to ensure that any privacy related legislation responds to local conditions and appropriately interacts with any other state based legislation such as freedom of information or human rights. 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. The development and introduction of a UTM system will also provide the ability to enable a technology solution to identify and report drones that are potentially infringing privacy.
Privacy impact
Drones will potentially have access to airspace in part determined by the extent of their ability to not unduly intrude upon privacy. Drones without recording devices may have greater freedom to operate over residential areas at lower altitudes than those with high resolution cameras and microphones. This would incentivise, for example, delivery drone manufacturers to develop less intrusive drones for residential deliveries or develop other methods to mitigate privacy concerns where such recording equipment is being used. Drones with high-resolution recording equipment may be limited to higher altitudes or less privacy sensitive areas, such as flying over major road corridors or industrial areas. Similarly, drones flown by trusted operators could have greater access to privacy sensitive areas than those operated by users who have not demonstrated appropriate processes for ensuring privacy in their operations. The Commonwealth will work with States and Territories to develop, as required, a clearer process to handle privacy complaints regarding an inappropriate use of a drone that unduly impacts privacy, causes nuisance or trespasses.
