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New laws to help drone use take flight

October 1, 2019

Chris Dann Partner

New Zealand is said to be a ‘world leader’ in the unmanned aircraft (drones) sector due to our good reputation as a safety regulator, our ‘open for business’ mentality and our risk-based regulatory regime.

However, with the unique risks posed by drones, the frequent recent instances of recreational drones operating in contravention of civil aviation law, and the need for drones to be able to operate beyond the visual line of sight to deliver their full potential, our current laws may not be fit for purpose.

The NZ government has taken up the challenge of safely integrating drones into the aviation and broader transport system with the release in May of an exposure draft for a new Civil Aviation Bill and in July of a ‘Drone Integration’ policy paper. The bill focuses on safety: drones, drug and alcohol impairment and incident reporting. The policy paper opens the door to more fundamental change to enable a leap forward in drone usage and functionality. A 2017 estimate put the number of drones in New Zealand at 77,600. By comparison, there are estimated to be 5000 piloted aircraft operating in New Zealand. Numerous reports agree that drones will grow into a multibillion- dollar market globally in the next five to ten years.

Drones could provide up to $7.9 billion in benefits for the New Zealand economy by undertaking tasks that are time intensive (e.g. monitoring stock and crops), expensive (e.g. power line inspection), and risky (e.g. emergency services). Drones also have the potential to change the way we move goods and people, as capabilities and operations expand to include freight delivery (such as high-value, time-sensitive goods, particularly in rural areas) and passenger transport.

Current drone laws

Currently, New Zealand is said to have one of the most accommodating regulatory frameworks in the world. Anyone is able to operate any kind of drone under 25 kg for recreational or commercial use, as long as the operator:

  • Flies only during the day, below 120 m and more than 4 km from an aerodrome
  • Flies only within line of sight
  • Gets prior permission before flying over a person, private property or in controlled airspace.

If you can’t fit within those rules, then you need specific authorisation from the Civil Aviation Authority (CAA) under Part 102 of the Civil Aviation Rules. Part 102 allows companies to conduct tests and trials to further the development of drone technology – initially subject to restrictive limitations, but as the operator demonstrates the safety of their aircraft and operation, those limitations are incrementally reduced. In April of this year there were 104 recorded drone operators certified to conduct operations outside of standard parameters. However, Part 102 is not currently well suited to certify a large, passenger-carrying operation. The pilotless, electric ‘flying taxi’ known as ‘Cora’ being tested in Canterbury right now shows that there is a real and present need to update our laws to cope with such technology.

Drone proposals in the new bill

The new Civil Aviation Bill proposes three key changes specific to drones.

1. Operator = pilot

At present, the Civil Aviation Act 1990 assumes that there is a ‘pilot in command’ who has ultimate responsibility for the safety and control of the flight. The draft bill proposes including a provision to the effect that in the absence of a pilot, the duties, powers and obligations of the ‘pilot-in-command’ would fall to the operator of the aircraft.

2. Accidents involving drones

The bill proposes to extend the definition of ‘accident’ to cover unmanned aircraft, bringing our laws in line with the Convention on International Civil Aviation. There would also be a duty to notify the authority of any accidents involving a drone.

3. Seize and destroy powers

The bill empowers specified individuals (potentially including CAA employees, the NZ Police, or other agencies) to be able to seize (including by radio frequency jamming) and destroy non passenger-carrying drones when they are being operated in contravention of civil aviation law or in a manner that may endanger people or property.

The seize and destroy power responds to concerns over the practical enforceability of our current laws following frequent recent instances of recreational drones operating in contravention of civil aviation law, causing significant risk and disruption to other aircraft, aviation operations and people on the ground.

The scale of this problem is significant – recreational drone sightings near Gatwick Airport in late 2018 caused around 800 flights to be cancelled and an estimated £50 million loss to the UK economy. In New Zealand, there were at least ten incidents in 2018 where recreational drones either closed airports or required aircraft to adopt precautionary procedures.

The EU’s new rules on drone operations (which apply from 24 May 2019) go further by requiring operator registration and technology to enable remote identification. There have been a number of calls from airlines, pilots and others for similar measures in New Zealand after the 2018 incidents mentioned above.

Those calls may well be heeded as the draft bill is certainly not the last word on the matter. A new ‘UA Integration Leadership Group’ (made up of senior officials from the Ministry of Transport, CAA, Airways and MBIE) has been formed to provide strategic guidance and oversight of a broader government work programme to achieve the safe integration of drones into New Zealand’s aviation and transport systems, including a review of Civil Aviation Rules Part 101 and 102.

Drone proposals in the policy paper

The Drone Integration Paper acknowledges that ‘effective drone regulation is vital for fostering and supporting effective integration and creating social licence. On the other side, poorly designed or unresponsive regulation could create potential barriers to the integration of beneficial activities.’ The government acknowledges that it will have to be cognisant of privacy issues, potential noise and visual impacts for the public, the need to develop a new method of collision avoidance (the current ‘see and avoid’ rule does not work for beyond visual line of sight [BVLOS] drone operations) and appropriate and scalable levels of air traffic control.

Enabling BVLOS operations (e.g. deliveries) is key to the development of commercial drone applications. The paper muses that there may be constraints on where drones can operate – for example, having segregated flight paths or designated no-fly zones – and that a range of new or modified infrastructure is likely to be required to enable the use of drones in urban settings, including physical drone landing zones.

Drug and alcohol management

In addition to drone-related changes, the proposed Civil Aviation Bill seeks to introduce changes to address pilot drug and alcohol impairment by requiring all commercial operators to implement drug and alcohol management plans (DAMPs), including random testing of those working in safety-sensitive activities.

Those changes are a long time in the making. Cabinet endorsed a ‘clear heads’ policy for both the aviation and maritime sectors in 2016 in response to the Carterton hot air balloon crash in 2012.

The Maritime Transport Act was amended in 2017, but the select committee removed the DAMP and random testing requirements, leaving only provisions empowering the director of Maritime New Zealand to undertake drug and alcohol testing.

The commentary to the bill argues that the need for DAMPs (and random testing) is greater in the aviation sector than in the maritime sector: ‘The potential consequences from drug and alcohol impairment in the aviation sector can be greater, and events posing flight safety risk can unfold very quickly with catastrophic consequences – both for those in an aircraft and for people on the ground. Public tolerance for aviation safety risks is understandably much lower than in maritime transport, given that civil aviation is heavily oriented to passenger transport.’

The NZ Airline Pilots Association, in its submission on the bill, contends that the legislation must also address the effects of fatigue on the performance of participants in a similar way to drugs and alcohol.

‘Just culture’ principles’

‘Just culture’ principles seek to improve the quality, quantity and frequency of safety information provided to regulators, by ensuring people who self-report incidents are provided certain protections from enforcement action. ‘Just culture’ is a concept widely promoted by international regulators and organisations such as the International Civil Aviation Organisation.

The bill aims to incorporate ‘just culture’ principles into our laws. It proposes that enforcement or administrative action should not be taken in respect of infringements of civil aviation law which come to the CAA’s attention through an incident report filed under the CAA’s incident reporting system. The protections will not apply when there is a public interest in taking enforcement action, or an aviation safety interest in taking administrative action. However, these interests must outweigh the aviation safety benefits of full, accurate and timely incident reporting.

The NZ Airline Pilots Association suggests that the bill does not go far enough to properly implement a ‘just culture’ approach, submitting that significantly greater transparency or certainty is needed around a decision to prosecute or otherwise.

Summing up

Change abounds. The focus on full and safe drone integration is exciting. The potential for drones – from monitoring and inspection to deliveries to passenger transport – is huge. The new bill and policy paper are a good first step, but we look forward to more.

 

This article first appeared in FTD magazine and is reproduced here with their kind permission

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