The rise (and potential fall) of drones: potential liability issues for QLD Government agencies

In recent years the use of aircraft drones (or Remotely Piloted Aircraft) has significantly increased. Not only are drones used personally by hobbyists and photography enthusiasts, they are now being widely used commercially. This includes government agencies.

Commercial, industry and government use of drones includes:

• Real estate photography and video footage
• Film and television
• Agricultural – crop spraying
• Surveying
• Surf life saving – rescue and shark surveillance; and
• Police and Fire and Rescue services.

In August 2017 the Premier released the Queensland Drones Strategy consultation paper and Brisbane was last year the host of the inaugural World Drones Congress. Australia’s regulator of civil aviation, the Civil Aviation Safety Authority (CASA), has confirmed that about 25 percent of Australia’s drone operators are based in Queensland.

In addition to drones becoming an emerging area of industry and technology, so too is it an emerging area of law.

CASA requirements

CASA regulates the use of drones in Australia. There is a distinction between the sport and recreational operation of drones and drones for hire or reward by people who have obtained a CASA approved certification.

CASA requires drone operators to have an RPA operator’s certificate (ReOC) if flying a drone that weighs more than 2 kilograms.

It is likely that any State employee will be properly trained and perhaps have a CASA approved certification. This is likely to reduce any potential risk of liability.

Potential liability

The use of drones, including the use by government agencies, comes with the potential associated risk of civil liability. Potential liability risks could include:

1. breach of privacy;
2. trespass to persons and property;
3. nuisance
4. property damage; and
5. personal injuries.

Absent any statutory immunity that may apply to government agencies involving the use of drones, the State could be liable for any loss or damage caused as a result of its use and operation of drones.

Any privacy implications arising from the use of drones by Queensland government agencies will be governed by the Information Privacy Act 2009 (Qld). If the drone records sound it will be necessary to take into account the Invasion of Privacy Act 1971 (Qld), which restricts audio recording but not the capture of images without sound. Also, provisions in the Criminal Code make it an offence to take video footage or photographs of a person in certain limited circumstances.

Legal assistance and advice

The technology associated with drones is developing at a fast rate. So too is the government’s use of drones to support the enhanced range of services provided by State agencies. It is likely that in the near future further legislation will be needed in order to keep pace with this ever developing and exciting technology.

Crown Law can assist and provide advice and representation to government agencies in any legal matters involving the use of drones or the associated legal risks and requirements.

Please contact Paul Lack, Senior Principal Lawyer, on 3239 3584 for assistance. An informative presentation on ‘Use of drones – challenges and opportunities for law enforcement and regulatory agencies’ will feature in the Crown Law Legal Conference to be held on Wednesday 30 May 2018.  Further information about the conference, including the full program, is posted on Crown Law’s website.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}