Safety first: analysing the problematisation of drones

ABSTRACT

The rise of commercial drone operations in Australia has led to increasing regulatory attention on this emerging aviation sector. For two decades, the Australian Civil Aviation Safety Authority has been an early mover in regulating the safety of drone operations while enabling the growth of the industry. Yet, the more recent influx of commercial drones across different sectors is putting the current legal framework and its ability to mediate conflicting interests to the test. Utilising Carol Bacchi’s ‘What’s the problem represented to be?’ framework for policy analysis, this article examines the origins, limitations, and effects of Australia’s drone laws. The article identifies that drones are framed chiefly as a safety risk, albeit an inherently manageable one, and details the regulatory consequences of this narrow conception. Crucially, it demonstrates how the centrality of the notion of safety closes off a more holistic assessment of risks and harms, sidelining equally critical concerns about the impact of rising numbers of drones on the sky as a public commons and natural habitat. Overall, the article reinforces the significance of how regulations delineate the scope of the problems they address, with profound implications for the analysis of regulation and policy beyond the remit of drones.

KEYWORDS:

• Drones
• regulation
• problematisation
• aviation safety
• WPR

Acknowledgements

The author gratefully acknowledges Elise Bant, Julia Powles, David Hodgkinson, Christine Parker, Jacqueline Alderson, and Hannah Smith for their guidance, insightful comments, and suggestions. Any errors remain those of the author.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The exact number of drones operating in Australia is unknown due to a lack of mandatory registration scheme to date. Estimates of the total number of drones used for recreational and commercial purposes vary wildly – from 50,000 to over one million – depending on the source and methodology used. As of 2019, CASA’s best estimate is that the number is growing by approximately 15,000 annually. See Australian Transport Safety Bureau (2020), p. 11; and Explanatory Statement, Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Modal Aircraft – Registration and Accreditation) Act 2019 (Cth), pp. 6 and 8.

2 See, eg, the Australian Association for Uncrewed Systems’ (AAUS) letter to The Hon Catherine King, federal Minister for Infrastructure, Transport, Regional Development and Local Government, expressing gratitude for the federal Government’s ‘continued support and commitment to the advancement to the drone nascent Advanced Air Mobility (AAM) aviation sectors in Australia’: Australian Association for Uncrewed Systems, ‘AAUS Letter to Minister King on Emerging Aviation Technologies 20221123’, <https://www.aaus.org.au/public/161/files/AAUS%20Board/Advocacy/20221123%20-%20AAUS%20Letter%20to%20Minister%20King%20on%20Emerging%20Aviation%20Technologies.pdf>.

3 On federal level see, eg, The Hon Catherine King MP, Minister for Infrastructure, Transport, Regional Development and Local Government, ‘New research shows benefits will soar as Australia’s drone use takes off’, <https://minister.infrastructure.gov.au/c-king/media-release/new-research-shows-benefits-will-soar-australias-drone-use-takes>; On state level see, eg, Victoria State Government (2022); Queensland Government (2018); see also the ACT Government’s Digital Strategy and its related ambition for Canberra to become ‘a hub for trialling new ideas’ such as drone delivery: ACT Government, Digital Strategy, <https://www.cmtedd.act.gov.au/digital-strategy/current-initiatives/industry/canberra-a-hub-for-trialling-new-ideas>.

4 See, eg, The Senate Rural and Regional Affairs and Transport References Committee (2018).

5 See, eg, Civil Aviation Safety Authority (2016), p. 15.

6 See, eg, Minderoo Tech & Policy Lab, UWA Law School (2020); UWA Minderoo Tech & Policy Lab (2022); Powles and Smith (2022); Bonython Against Drones Action Group (2022).

7 See, eg, The Senate Rural and Regional Affairs and Transport References Committee (2018), p. 14; Bojan Kitanovic, ‘Drone industry in Australia: A complete analysis’, <https://thedronesworld.net/drone-industry-in-australia-a-complete-analysis/>, 10 March 2021.

8 See Du and Heldeweg (2019), pp. 287–289.

9 The number of commercial drones can be estimated based on the number of Remote Operator Certificate holders registered with the Civil Aviation Safety Authority. Between 2019 and 2023, the number of commercial operators, measured by the number of ReOC holders, grew from 1,700 to over 2,500. See Australian Transport Safety Bureau (2020), p. 11; and Civil Aviation Safety Authority, ‘Remotely Piloted Aircraft Operator’s Certificate (ReOC) holders’, <https://www.casa.gov.au/search-centre/remotely-piloted-aircraft-operators-certificate-reoc-holders>.

10 See, eg, Butler (2019), p. 1045.

11 See, eg, Tarr et al (2021), pp. 133–139.

12 See, eg, Mo and Bonatakis (2022); European Environment Agency, ‘Delivery drones and the environment’, <https://www.eea.europa.eu/publications/delivery-drones-and-the-environment>; Park et al (2018).

13 See, eg, UWA Minderoo Tech & Policy Lab (2022).

14 The federal Government has acknowledged the need for a ‘shift in airspace regulation’ to mitigate additional risks and impacts beyond safety. See, Commonwealth Department of Infrastructure, Transport, Regional Development and Communications (2021), p. 20.

15 See, eg, Tarr et al (2021), pp. 375–377.

16 See, eg, recommendations 2–6 in House of Representatives Standing Committee on Social Policy and Legal Affairs (2014), pp. xiii–xv.

17 See, eg, Vines et al (2022), pp. 299–372.

18 See below under ‘Regulation’ for details on Australia’s drone regulatory framework.

19 It is worth noting that drones are not the only technology that has attracted a safety-first approach to regulation. The introduction of the automobile into society can be drawn on as a suitable analogy here. Like drones, cars combine a multitude of technological capabilities, they have had a significant impact on communities and the environment, yet safety was the defining regulatory (and engineering) challenge from the outset. This focus has been diffused over the last century and there are now laws and regulations in place that address other types of impacts, from emissions and design standards to zoning laws that restrict car access. Yet, initial silences in those areas have meant that the presence of cars on our roads, and indeed the expectation of cities, communities, and society at large adapting to make space for them, have become normalised. Against this backdrop it is striking that the drone is often referred to as the ‘horseless carriage of the twenty-first century’. See Clothier et al (2008).

20 Bacchi (2009).

21 See Bacchi (2012), pp. 21–24.

22 See Bacchi and Goodwin (2016), p. 22.

23 Adam Rothstein (2015), p. x.

24 Weller (2020), p. 1.

25 See Miah (2020), p. 15; Bartsch et al (2016), pp. 14–15.

26 See, illustratively for the US context, Hall and Coyne (2014), pp. 447 ff.

27 See Hodgkinson and Johnston (2018), p. 5; Miah (2020), p. 4.

28 See Hodgkinson and Johnston (2018), p. 10.

29 See Miah (2020), pp. 15–16. The global consumer drone market is currently estimated at USD 4 billion, the global commercial drone market USD 30 billion. See Grand View Research, ‘Consumer Drone Market Size, Share & Trends Analysis Report 2022 – 2030’, <https://www.grandviewresearch.com/industry-analysis/consumer-drone-market> and Grand View Research, ‘Commercial Drone Market Size, Share & Trends Analysis Report 2023 – 2030’, <https://www.grandviewresearch.com/industry-analysis/global-commercial-drones-market>.

30 See Bartsch et al (2016), p. 69.

31 See Tarr et al (2021), p. 17.

32 Bartsch et al (2016), p. 14.

33 See Wing, <https://wing.com/en_au/australia/canberra/>.

34 See Miah (2020), p. 3.

35 See Miah (2020), p. 3.

36 Rothstein (2015), p. xii.

37 Rothstein (2015), p. xii.

38 Miah (2020), p. 3.

39 See Hodgkinson and Johnston (2018), pp. 2–3; Tarr et al (2021), pp. 3 and 275; International Civil Aviation Organisation, ‘Unmanned Aviation Frequently Used Terms’, <https://www.icao.int/safety/UA/UASToolkit/Pages/Frequently-Used-Terms.aspx>.

40 The author has sought to avoid the use of ‘manned’ and ‘unmanned’ aviation in favour of more gender-inclusive terms. Exceptions are made for institutionally used terms and direct quotes from other sources.

41 Civil Aviation Safety Regulations 1998 (Cth) Parts 101.021 and 101.023 respectively.

42 See PytlikZillig et al (2018), pp. 80–91.

43 See Miah (2020), p. 4.

44 See Bacchi (2015), pp. 1–2.

45 See Bacchi (2015), pp. 2–3.

46 See Foucault (1983).

47 See Bacchi (2009), p. xii.

48 See Adams (2017).

49 See Bacchi (2009), p. 25.

50 Bacchi (2009), p. 35.

51 See Bacchi and Goodwin (2016), p. 43.

52 See Bacchi (2009), p. 21.

53 See Bacchi and Goodwin (2016), p. 18.

54 Bacchi (2009), p. 33.

55 See Bartsch et al (2016), p. 39.

56 See Hodgkinson and Johnston (2018), p. 17.

57 SARPs are technical specifications adopted by the Council of ICAO in accordance with Article 37 of the Chicago Convention to achieve ‘the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation’. See International Civil Aviation Organisation (2011), p. 2.

58 International Civil Aviation Organisation (2011), p. ix.

59 See Fiallos (2016), p. 32.

60 Eleventh Air Navigation Conference, ANConf/11, Montreal (22 September – 3 October 2003). This text was included as part of the ICAO Global Air Traffic Management (ATM) Operational Concept, Doc 9854 AN/458 (2005), 82, and reiterated in Annex 7 on Aircraft Nationality and Registration Marks to the Chicago Convention (at Definitions).

61 See, Bartsch (2018), p. 893.

62 See Civil Aviation Safety Regulations 1998 (Cth) Pt 101.

63 See Bartsch (2018), p. 901.

64 See The Senate Rural and Regional Affairs and Transport References Committee (2018), p. 14.

65 See The Senate Rural and Regional Affairs and Transport References Committee (2018), p. 15.

66 See Civil Aviation Legislation Amendment (Part 101) Regulation 2016 (Cth).

67 See Civil Aviation Safety Authority (2023).

68 See The Senate Rural and Regional Affairs and Transport References Committee (2018).

69 See The Senate Rural and Regional Affairs and Transport References Committee (2018).

70 Explanatory Statement, Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Modal Aircraft – Registration and Accreditation) Regulations 2019 (Cth), p. 1.

71 See, eg, Civil Aviation Safety Authority (2016), p. 4.

72 International Civil Aviation Organisation (2011), p. 4.

73 Civil Aviation Safety Authority, ‘Who we are’, <https://www.casa.gov.au/about-us/who-we-are/about-casa#>.

74 See Civil Aviation Safety Authority (2022a), p. 5.

75 International Civil Aviation Organisation (2018).

76 See Civil Aviation Safety Authority (2022b), p. 32.

77 See Civil Aviation Safety Authority (2022b), p. 30.

78 See Civil Aviation Safety Authority (2022b), p. 32.

79 See Civil Aviation Safety Authority (2022b), p. 34.

80 International Civil Aviation Organisation (2011), p. 4.

81 See Tarr et al (2021), p. 167.

82 See Tarr et al (2021), p. 379.

83 See Bacchi (2009), p. 7.

84 See Bacchi and Goodwin (2016), p. 21.

85 Bartsch et al (2016), p. 11.

86 See Thomas Frey, ‘192 Future Uses for Flying Drones’, <https://futuristspeaker.com/business-trends/192-future-uses-for-flying-drones/>.

87 See Brown et al (2019).

88 See Harrison Wolf, ‘We must regulate drones, to democratise the sky for humanity’, <https://www.weforum.org/agenda/2018/06/drone-regulation-is-necessary-to-democratize-the-sky-for-humanity/>.

89 See Civil Aviation Safety Regulations 1998 (Cth) Part 47.

90 See The Senate Rural and Regional Affairs and Transport References Committee (2018), p. 74.

91 Bartsch (2018), p. 893.

92 See Civil Aviation Safety Authority, ‘Drone safety rules’, <https://www.casa.gov.au/drones/drone-rules/drone-safety-rules>.

93 See Tarr et al (2021), p. 277.

94 Clarke and Bennett Moses (2014), p. 272.

95 Different commentators have observed that there are good reasons why drones should be regulated separately to classic aviation. See, eg, Morrison et al (2021), p. 278; see also Du and Heldeweg (2019), p. 286.

96 See Bartsch (2018), 701; Clothier et al (2015), p. 1168.

97 In relation to noise impacts, it should be noted that in December 2021, following a review of the Air Navigation (Aircraft Noise) Regulations 2018 (Cth), a new framework for the management of drone noise was introduced. The review was triggered by a 2019 ACT Legislative Assembly Inquiry into drone delivery systems in the ACT, during which evidence of the lack of regulatory oversight in relation to drone noise impacts and enforcement of existing noise regulations emerged.

98 See Bonython Against Drones Action Group (2022).

99 See ACT Government (2019), pp. 6ff.

100 Civil Aviation Safety Authority (2019), p. 1.

101 See, eg, Clarke (2014), pp. 286–305.

102 See, eg, Altawy and Youssef (2017).

103 See, eg, Stewart (2016).

104 See, eg, Booker (2019), p. 93.

105 See Tarr et al (2021), p. 279.

106 See House of Representatives Standing Committee on Social Policy and Legal Affairs (2014), p. 34.

107 See Bartsch (2018), p. 910.

108 See Butler (2019); Tarr et al (2021), p. 173.

109 House of Representatives Standing Committee on Social Policy and Legal Affairs (2014), p. xiv.

110 See Work Health Authority v Outback Ballooning Pty Ltd (2019) HCA 2; Tarr et al (2021), p. 280.

111 Minderoo Tech & Policy Lab, UWA Law School (2020).

112 See Department of Infrastructure, Transport, Regional Development, Communications and the Arts, ‘Privacy Policy’, <https://www.drones.gov.au/policies-and-programs/policies/privacy-policy>.

113 See Civil Aviation Safety Authority, ‘Drone safety rules’, <https://www.casa.gov.au/drones/drone-rules/drone-safety-rules>.

114 See Civil Aviation Safety Authority, ‘Drone safety rules’, <https://www.casa.gov.au/drones/drone-rules/drone-safety-rules>.

115 See Civil Aviation Safety Authority (2022c).

116 See Civil Aviation Safety Authority, ‘Types of drones’, <https://www.casa.gov.au/drones/drone-rules/drone-safety-rules/types-drones>.

117 See Civil Aviation Legislation Amendment (Part 101) Regulation 2016 (Cth).

118 Note that s9A(3a) Civil Aviation Act 1988 (Cth) provides that CASA must, in developing aviation safety standards, consider the economic and cost impact on individuals, businesses and the community of the standards.

119 See Aydin (2019).

120 See, eg, Kellermann and Fischer (2020); Klauser and Pedrozo (2017); Boucher (2016).

121 On the need to differentiate between drone use-cases of necessity from those of convenience, see UWA Minderoo Tech & Policy Lab (2022), p. 2.

122 See Civil Aviation Safety Authority (2022c).

123 See Civil Aviation Safety Authority, Remotely Piloted Aircraft Operation over Approved Area of Canberra (Wing Aviation) Instrument 2023 (CASA EX78/23, 31 July 2023); Western Australia Police Force (2018), p. 3; Chloe Chomicki, ‘Queensland Police Service unveils drones, but military-grade tech comes with limits’, ABC North Qld, <https://www.abc.net.au/news/2022-02-21/drones-announced-for-north-queensland-police/100848208>, 21 February 2022.

124 Bacchi (2009), p. 35.

125 Bacchi (2009), p. 35.

126 Bacchi (2009), p. 275.

127 Strega (2015), p. 136.

128 See ‘Legislation as the object of WPR analysis’.

129 See Bartsch (2018), p. 695.

130 See Tarr et al (2021), p. 168; Clothier et al (2015), p. 1168.

131 Aviation has been described as the most extensive and strictly regulated human activity. See, Bartsch (2018), p. 86.

132 The rate of aviation related accidents has seen a 520-fold reduction over the existence of civil aviation law. See, Bartsch (2018), p. 696.

133 Civil Aviation Safety Authority (2022a), p. 2.

134 Cohen (2018).

135 Bacchi and Goodwin (2016), p. 24.

136 See the membership of the National Emerging Aviation Technologies Consultative Committee, which is the prime body the Department consults with in the development of drone policy: Department of Infrastructure, Transport, Communications, Regional Development, Communications and the Arts, ‘Consultation’, <https://www.drones.gov.au/policies-and-programs/consultation>.

137 Commonwealth Department of Infrastructure, Transport, Regional Development and Communications (2021), p. 9.

138 See Commonwealth Department of Infrastructure, Transport, Regional Development and Communications (2021), p. 18.

139 Commonwealth Department of Infrastructure, Transport, Regional Development and Communications (2021).

140 See, eg, the Australian Association for Uncrewed Systems crediting ‘CASA’s forward leaning regulatory settings’ as key driver of the growth of commercial drone operations in Australia. The Australian Association for Uncrewed Systems (2023), p. 4.

141 See Civil Aviation Safety Authority (2022a).

Additional information

Funding

This research was supported by the Australian Government through an Australian Government Research Training Program Fees Offset, and the University of Western Australia through a University Postgraduate Award.

Notes on contributors

Anna Zenz

Anna Zenz is a PhD candidate within the UWA Tech & Policy Lab at the Law School, University of Western Australia. Her research explores the emerging development and regulation of commercial delivery drones in Australia and other jurisdictions. Anna holds a law degree from the University of Vienna and an LL.M in Public International Law (specialising in Peace, Justice and Development) from Leiden University.