THE LAW OF DRONES

NATIONALLY RENOWNED BARRISTER HUGH RENNIE QC SUCCESSFULLY REPRESENTED NZALPA THROUGH THE WELLINGTON INTERNATIONAL AIRPORT RESA ACTION THAT ENDED IN NZALPA’S FAVOUR IN THE SUPREME COURT. A WELLINGTON-BASED AVIATION ENTHUSIAST, HUGH TAKES A CRITICAL AND TIMELY EYE OVER CURRENT RPAS/DRONE LEGISLATION.

Does the increasing number of drone incidents show that our law on drones is not working? I think so.

In New Zealand law drones are considered to be an ‘aircraft’, and they fit easily into that definition in the Civil Aviation Act.

But regulating drones as an aircraft ignores the major differences between the two.

Consider a pilot in a microlight who is wrongly in air space about to be traversed by an incoming passenger aircraft. That pilot is trained and licensed. The aircraft is registered. It is trackable on radar. It is subject to air traffic control which can communicate with it, and it can reply. Its pilot is greatly at risk of injury or death, and will act and fly accordingly.

A drone has none of this.

If that pilot flew that microlight into that flight path in controlled air space, and actually lived, the consequences are clear. Loss of licence and a term of imprisonment for certain. Possibly never again permitted to hold a licence.

These together comprise a carefully designed legal structure to help achieve aviation safety.

“A controller of a drone, located anonymously on the ground, can create an equally dangerous situation. But drone operators are not experiencing the same legal consequences and penalties. Worse still, what the airport can do about a drone is restricted by the legal rights of a drone as an ‘aircraft’.”

You can shoot birds to remove a danger to aircraft. Want to shoot down a drone? The Civil Aviation Authority (CAA) will tell you that you are at risk of prosecution for endangering (or actually damaging) an ‘aircraft’.

You can erect a high fence to protect the airfield. Try to erect an electronic fence to keep drones out (such as the UK ‘Sky Fence’ used to keep them out of secure areas, especially prisons) and CAA will say your signals are interfering with the drone because it is an ‘aircraft’.

Aircraft have no full legal right to fly over private land, but only a provision in the Act that it is not possible to take trespass action if specified conditions are met. To set that out in full, section 97(2) says:

“No action shall lie in respect of trespass, or in respect of nuisance, by reason only of the flight of aircraft over any property at a height above the ground which having regard to wind, weather, and all the circumstances of the case is reasonable, so long as the provisions of this Act and of any rules made under this Act are duly complied with.”

What is a reasonable height for a drone? CAA says you must have consent from every person and every property owner that you want to fly above. In reality, the dangerous drone operators don’t have it, wouldn’t know how to get it, and wouldn’t bother. They are anonymous and not accountable.

Several dozen major firms are now offering methods of drone control, but there are legal obstacles in New Zealand. So we have efforts to invoke privacy laws and planning laws to get around that.

It is many years now since a Judge (a self-declared model aircraft flyer) refused planning consent for model aircraft operations near a residential house. ‘Flying chainsaws’ was what the resident’s counsel called them, and one at least had crashed and dug a hole in the lawn. We can’t however have thousands of planning (resource consent) hearings to determine what land you can fly a drone over.

What is new is not drones themselves. The new idea is that we can have ‘aircraft’ which are not registered, flown by unidentified people who are not licensed, without radar responders and not under air traffic control – and yet give them the legal rights of aircraft.

We should not wait for the first major accident. Either Parliament makes drones fully subject to all these legal controls (and I suggest place lifetime bans on anyone convicted of a breach of the law); or we stop calling them ‘aircraft’ and create special laws just for them.