There will be a battle in the High Court of Australia later this year between two Northern Territory entities, the Government’s Work Health Authority, and a hot air ballooning company, the result of which may have inadvertent consequences for drone users.[1]
Under Commonwealth law, drone (otherwise known as “unmanned aircraft” or “remotely piloted aircraft [RPA]”) operations are regulated under the Civil Aviation Safety Regulations 1998 (CASR’s), specifically, Part 101 “Unmanned Aircraft and Rockets”. Many local governments however have also created their own by-laws to impose additional restrictions on drone activities.[2] Local governments are empowered by state legislation to create laws necessary or convenient for the good rule and local government of their local government area.[3] Yet, the question is, to what extent can they make laws regulating drones that the Commonwealth law already addresses?
Put another way, are local government drone by-laws lawful?
The City of Casey in Victoria for example, has a local law that prohibits the launching or landing of a drone on or from any private property without a permit.[4] On the other hand, the CASRs regulate the circumstances under which a person may operate a drone including when a remote pilot’s licence is required[5] and when an area approval is required[6].
Also in Victoria, the Ballarat Council has a similar by-law restricting the operation of drones “within 100 metres of an Event on Council Land or a Road within the Municipal district”.[7] However, according to that Council’s website they are currently reviewing that particular clause and until further notice no permit is required. Comparing again to the CASRs, the Commonwealth law regulates the distance that a drone can be operated from persons not directly associated with its operation,[8] how far the drone can be flown from a controlled aerodrome,[9] and several other operating criteria.
The Brisbane City Council’s (BCC) website indicates that while the Civil Aviation Safety Authority (CASA) regulates the flying of drones and other remotely piloted aircraft when they are in the air, the BCC regulates the flying of these aircraft when they are being launched from and landed on Council land.[10] In that respect, the BCC’s Public Land and Council Assets Local Law 2014 regards drone flight as a ”restricted activity” that can only be undertaken in designated areas or with Council consent.[11] (The BCC is currently conducting a trial that allows drones to be flown in designated Council parks if they meet with certain criteria.)
The potential issue that arises out of these examples of local government by-laws is a constitutional one regarding inconsistency of laws.
In the matter before the High Court, the NT Work Health Authority sought to prosecute the hot air ballooning company, Outback Ballooning, for a breach of the NT Work Health and Safety (National Uniform Legislation) Act 2011 (WHS Act). Outback Ballooning argued that the Territory law (the WHS Act) did not apply because it was “inconsistent’” with a Commonwealth law, the Civil Aviation Act 1988 (CA Act), and so it was invalid. The argument relies on section 109 of the Australian Constitution which provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
What this means is that if a Commonwealth law is intended to regulate a particular area comprehensively and is not intended to operate in conjunction with state legislative schemes directed to the same end, then the state scheme will be invalid to the extent that there is any overlap.
The CA Act and its Regulations were found by the Full Court of the Federal Court to “cover the field” insofar as regulating the safety of civil aviation in Australia.[12]
Review of this decision is one of the issues before the High Court in the current case. The Work Health Authority, in its written submissions,[13] has argued that the Full Court of the Federal Court made an error of interpretation when it found the CA Act and its Regulations were “not intended to operate in conjunction with State legislative schemes directed to the same end”[14]. So, for the first time, the High Court of Australia may interpret the CA Act and its Regulations to determine whether they cover the field for regulating the safety of civil aviation in Australia. If the Court determines that it does, then the next question will be: to what extent do activities relate to “the safety of civil aviation in Australia”?
For example, would local government drone by-laws be invalid because they might be seen as attempting to regulate the safety of civil aviation in Australia (something that only the CA Act and its Regulations are permitted to do)?
As identified above, the BCC may be attempting to avoid any crossover with the CASRs by differentiating on their website their authority to regulate drones (“BCC regulates the flying of these aircraft when they are being launched from and landed in Council land”)[15] from that of CASA’s authority to regulate drones (“CASA regulates the flying of drones and other remotely piloted aircraft when they are in the air”).[16]
If the High Court affirm the decision of the NT Court of Appeal in the Outback Ballooning case, this distinction between land and air may not hold up. This is because the extent of the jurisdiction has already been held to include the safety of air navigation “on the ground”.[17]
The first case to address the CA Act and Regulations covering the field for the safety of civil aviation in Australia was Heli-Aust Pty Limited v Cahill (referred to above). In that case, the facts involved the safety of civil aviation “in-flight”.[18] In the later Outback Ballooning case, one of the arguments put to the court was that the decision in Heli-Aust was distinguishable on the facts because the events took place on the ground, and so the decision in Heli-Aust should not apply.[19] The court did not agree and held that the CA Act and its Regulations covered the field in respect of safety of air navigation including “on the ground” as well.[20]
The distinction between regulating ground use of drones as opposed to aerial use of drones that the BCC makes on its website may not be a sufficient point of difference if the Outback Ballooning decision is upheld.
Of course, the issue of enforcement is also relevant to this discussion. If the current status quo remains, there will be two levels of government enforcing drone activities; the Commonwealth body, CASA, and local governments. CASA is responsible for enforcing the CASRs all over Australia and largely responds to complaints of persons breaching the regulations from members of the public. Where there are local government by-laws restricting drone operations, enforcement of those fall to local government enforcement officers. There is potential for conflict to arise where local law and Commonwealth law purport to regulate the same activity.
We await the decision of the High Court and the possible reverberations through civil aviation law as a result.
Senior Law Clerk, IALPG
[1] Work Health Authority v Outback Ballooning Pty Limited – High Court of Australia Appeal from the Court of Appeal of the Northern Territory; Outback Ballooning Pty Ltd v Work Health Authority and Bamber [2017] NTCA 7; Work Health Authority v Outback Ballooning Pty Ltd [2017] NTSC 32.
[2] See for example: Rule 47 of the Casey Community Local Law; Rule 71.1 of the City of Ballarat Community Local Law 2017; Rule 12 of Brisbane City Council Public Land and Council Assets Local Law 2014; Rule 71.1 of the City of Ballarat Community Local Law 2017.
[3] See for example s28 Local Government Act 2009 (QLD );
[4] Rule 47 of the Casey Community Local Law.
[5] Regulation 101.252 of the CASR.
[6] Regulation 101.030 of the CASR.
[7] Rule 71.1 of the City of Ballarat Community Local Law 2017.
[8] Regulation 101.245 of the CASR.
[9] Regulation 101.300 of the CASR.
[10] See <https://www.brisbane.qld.gov.au/facilities-recreation/parks-venues/parks/using-council-parks/flying-drones-council-parks>.
[11]Rule 12 of Brisbane City Council Public Land and Council Assets Local Law 2014.
[12] Heli-Aust Pty Limited v Cahill [2011] FCAFC 62 [92].
[13] See <http://www.hcourt.gov.au/assets/cases/04-Darwin/d4-2018/OutbackBallooning_App.pdf>.
[14] Heli-Aust Pty Limited v Cahill [2011] FCAFC 62 [67].
[15] See <https://www.brisbane.qld.gov.au/facilities-recreation/parks-venues/parks/using-council-parks/flying-drones-council-parks>.
[16] Ibid.
[17] Outback Ballooning Pty Ltd v Work Health Authority and Bamber [2017] NTCA 7 [99].
[18] Heli-Aust Pty Limited v Cahill [2011] FCAFC 62 [63]-[66].
[19] Outback Ballooning Pty Ltd v Work Health Authority and Bamber [2017] NTCA 7 [69].
[20] Ibid [99].