Posted on October 28, 2018 by 1

Is it a bird or is it a plane? – the use of drones for enforcement activities

In September 2018 the Department of Planning and Environment (‘DPE’) released guidelines for the DPE compliance unit for the operation of remotely piloted aircraft , also known as drones or unmanned aircraft (‘Drones’) in compliance and enforcement functions.

Also in September 2018, the Australian Government issued the Australian Airspace Policy Statement 2018 and the Civil Aviation Safety Authority (‘CASA’) released a draft Manual of Standards instrument under the Civil Aviation Safety Regulations 1998 (Cth) governing the use of unmanned aircraft, including Drones  for consultation. Further changes by CASA to the regulation of Drones are anticipated in 2019.

Use of Drones for enforcement activities

The DPE has identified Drones as a new and dynamic area of technology that could be used when exercising investigative powers for aerial photos, volumetric surveys, measurements, mapping, heat sensing to detect invisible emissions, or air and water sampling.

The use of Drones while significantly assisting enforcement work also carries with it risks and challenges that may affect whether the use is lawful and whether any evidence that is gathered by the use of a Drone can be used in proceedings.

The use of Drones is only relatively recent and very few acts specifically allow the use.  One example of an act that does specifically allow the use is  Protection of the Environment Operations Act 1997 (NSW) where the powers of authorised officers includes the power to enter premises by a Drone.

Local government authorities have already used evidence obtained by Drones in enforcement proceedings in the courts. For example, in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79 photographic evidence taken by Drone was tendered to show that extensive filling of land had occurred.

In a recent case that we were involved in a Drone was used to identify the dimensions of a mountain of unlawfully deposited fill. The imagery obtained by the use of the Drone was then used to determine the potential impacts to flood waters created by the placement of the fill within a floodway.

In a number of other matters that we have been involved in, Councils have used Drones to take high quality images of unlawful activities and the harm caused by them, enabling us to appreciate the risks and legal issues that may arise from the use of Drones.

State Government agencies and Councils undertaking compliance work with Drones will need to carefully identify and address the risks inherent in the use of Drones to ensure that any evidence gathered by Drones is lawfully obtained and admissible under the Evidence Act 1995 (NSW).

Policies and procedures for using Drones 

State and local government authorities using or intending to use a Drone in exercising their enforcement functions should complete a detailed risk assessment addressing, amongst other things, workplace health and safety, and prepare a policy and procedures for the use (if they have not already done so).

Existing policies and procedures relating to enforcement work should be reviewed to take into account the use of a Drone in the context of the enforcement work.

As the Drone has the potential to obtain ‘personal’ information about individuals, the  measures to protect privacy should be carefully developed and implemented.

Policies and procedures for using Drones for enforcement functions should cover a range of matters including:

1. the operation of Drones by appropriately trained, certified and licensed operators and pilots;
2. how and when Drones will be used;
3. compliance with State and Federal laws including the laws dealing with:
   1. the use of surveillance devices including for example Surveillance Devices Act 2007 (NSW); 
   2. powers of investigation officers and whether the officers has the power to use a Drone by themselves or with others:  see for example Environmental Planning and Assessment Act 1979 (NSW), the Local Government Act 1993 (NSW) and the Protection of the Environment Operations Act 1997 (NSW);
   3. laws relating to how information can be gathered, retained or disseminated and privacy such as the Privacy and Personal Information Protection Act 1998 (NSW) and the Government Information (Public Access) Act 2009 (NSW)
   4. laws relating to workplace health and safety such as the Work Health and Safety Act and Regulations,
   5. airspace and aviation safety laws including the Civil Aviation Act 1988 (Cth), the Civil Aviation Safety Regulations 1998 (Cth) and Directions. 

The requirements and risks for the safe and lawful operation of a Drone will vary according to the circumstances. For example, consideration should be given to whether the Drone will be entering privately owned airspace, protected airspace, controlled airspace or operating in uncontrolled airspace near an aerodrome, weather conditions and the time of day or night when it can be used.

The guidelines for the DPE compliance unit can be found in the Remotely Piloted Aircraft Operating Guidelines.

Future regulation of Drones

The most recent Australian Airspace Policy Statement 2018 requires CASA to consider Drones in developing airspace arrangements.  The proposed detailed technical requirements, specifications and standards for the operation of Drones issued by CASA for consultation can be found in the draft Part 101 Manual of Standards Instrument 2018.  CASA anticipates that there will be regulatory changes to the Civil Aviation Safety Regulations 1998 (Cth) as they relate to Drones in 2019.

Conclusion

The increasing use of Drones by state and local government to obtain evidence for  enforcement activities is inevitable. The laws governing the use of Drones are rapidly evolving. State and local governments should have comprehensive policies and procedures for the safe, lawful and effective use of Drones for enforcement activities as part of their governance and risk management framework. Those policies and procedures should form part of the compliance register maintained by the agency and regularly reviewed.

Agencies should also ensure that the Officers operating Drones for enforcement functions should be trained in obtaining and interpreting evidence in a lawful, effective, ethical and accountable manner.

If you wish to discuss this post please contact Carlo Zoppo on 02 8235 9705.