Drones in Australian Agriculture and the Law

Vol 39: Issue 3 | September 2016

In Christopher Nolan’s 2014 fictitious post-apocalyptic film Interstellar, Matthew McConaughey  portrays Cooper, a protagonist who labours on a dying farm surrounded by dilapidated combine harvesters, crop dusters and tractors. As a former NASA astronaut, it seems unlikely the character would have the conventional know-how to run a multi-hectare corn crop and, sure  enough, not far into the film it is revealed Cooper’s farm is entirely self-sufficient. Each piece  of plant and machinery has been installed with automated drone intelligence allowing the entire farm to be surveyed, managed and tilled by drones, with UAVs doing the crop dusting.

The gap between science fiction and reality is closing quickly. As the world continues to develop the technological capabilities of farming equipment, the use of unmanned drone machinery is becoming more and more achievable for standard commercial farming operations. At the same time,  law and insurance must understand and adapt to these advancements.

This article discusses five key issues that impact the use and risks of using drones in agriculture  in Australia.

ISSUE 1: CERTIFICATION

The use of UAVs is regulated by the Civil Aviation Safety Authority (CASA) under Part 101 of the  Civil Aviation Safety Regulations 1988 (Cth) (CASR 101). CASA requires commercial operators to hold a UAV operator’s certificate. Conditions of the licence  include the development of an operations manual and an operations library. 

These are to be  developed and put in place for the relevant commercial operation and CASA provides guidance on how  these reference resources should be prepared. CASA succinctly notes that the operations manual must set out how the commercial operator (in this  case, the farmer) plans to safely manage the risks inherent in operating a remotely piloted  aircraft. It includes training, compliance, maintenance, route designation and other key  obligations.2 The overarching requirement is to ensure safety and security of the drone operator(s) and third parties.

Certification obligations apply both to the company and to drone pilots. Drone use cannot be  delegated down the chain to a non-certified employee.

ISSUE 2: SAFETY

On 14 July 2014, the House of Representatives Standing Committee on Social Policy and Legal Affairs  (Committee) published Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy (Drones Report), a report on the  impact of drones on privacy in Australia. The Drones Report discusses the issues that arise from the increased prevalence of drone technology within Australia’s current air safety and privacy  frameworks.

It canvasses two specific safety concerns:

• The quality and durability of the materials from which UAVs are constructed
• The technology that controls drone behaviours.

While the technology in Interstellar was purportedly developed from military prototypes during a  long war, the technology produced for current-day drones seems decidedly less devastating. It is  developed with the notion of creating a safe but functional product for commercial use. In the  authors’ view, a key issue becomes not so much the technology in use, but the human error involved in creating and operating  it.

The legislation imposes strict liability on the owners of aircraft for raw material loss or, more  importantly, for damage to persons or property caused by the aircraft. This is the case whether in flight, taking off or  landing, without proof of negligence, intention or other cause of action.3

In 2009, the High Court of Australia broadened the duty in a civil damages claim. An injured person can claim (and recover) the full extent of his or her damages against the operator and owner of an  aircraft for damage caused even if the damage was incidental.

For example, in 2000 a UAV struck a power line and the power company’s employee entered a cotton  field where the line lay and fell near the conductor, suffering an arc event.4 Given this was strict liability not a negligence action, the aircraft owner and operator was not entitled to seek  contribution against other liable parties or claim a reduction in damages for the injured person’s  contributory negligence.

ISSUE 3: PRIVACY

Under CASR 101, the primary concern is regulation of safety and property damage. As such, there is  no specific regulation contained in CASR 101 regarding privacy.

The Privacy Act 1988 (Cth) is not likely to apply to a majority of Australian agricultural  operators beyond the larger outfits. This is because the Act only applies to Commonwealth agencies and organisations with an annual turnover of more than AU$3  million. There is, however, a risk of disputes regarding private rights to quiet enjoyment and  trespass (covered in more detail below). This is generally dictated by common law in Australia and  not by statute.

While there is no particular action in tort for invasion of privacy, the High Court of Australia  has not ruled it out entirely. Since the decision of ABC v Lenah Game Meats 5 there has been little development of  the issue. However, where the use of a drone could be said to cause repetitive offence to the privacy rights of an individual, farmers may find  themselves open to the possibility of claims if their use of a UAV becomes oppressive to  neighbours. This is, however, more an issue of nuisance.

ISSUE 4: TRESPASS 

In statute, section 72(1) of the Civil Liability Act 2002 (NSW) (CLA) provides that no action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft  over any property at a height above the ground that is reasonable (having regard to wind, weather  and all the circumstances of the case). However, intrusions into airspace may amount to trespass to  land if the intrusion is at a height potentially necessary for the ordinary use and enjoyment of  the occupier.6 Mere compliance with air regulations would not necessarily excuse the use of an aircraft to interfere  with the occupiers’ use or enjoyment of the land.

The current CASR 101 provisions do not provide clear guidance on the height a UAV needs to be flown  to avoid trespassing on private land. However, as the technology continues to develop and as licensed operators grow in number, there is  the very real possibility of parliamentary intervention to restrict operators in respect of  permitted activities.

ISSUE 5: NUISANCE 

A person may be liable for nuisance for unreasonable interference with an occupier’s use and  enjoyment of their land. Section 72(1) of the CLA applies in the same way to nuisance as to trespass. Passing a  property alone is not nuisance. However, where the journey of a UAV involves the repeated  interference or bothering of neighbours, those neighbours would be within their rights to cause a fuss (or bring  an action in tort). It is a little unlikely that larger commercial operations will cause grief to their neighbours – particularly as those neighbours are usually in the same business or have no  objection to the commercial use of a UAV or drone technology. However, if commercial UAVs are used  for unsavoury purposes such as monitoring the trade secrets of neighbouring commercial operations, then the affronted neighbours will have a stronger case against the drone operator. There is then also the possibility of injunctions against the use of the drone or restrictions on access.

APPLYING COMMON SENSE

While Australia is among the first countries to embrace UAV technology for commercial applications,  there remains speculation and concern that the technology has drawbacks. These have possibly been  sensationalised by the number of UAV accidents. In the United States – which has an admittedly  larger known military UAV presence than many other countries – there have reportedly been over 400  large military drone crashes in the past 15 years, with at least 24 crashes in 2015.7 The US also  maintains a database of hundreds of known domestic UAV accidents.8

The same cannot be said for Australia, though that might be partly the product of CASA’s ongoing  careful regulation of the aviation industry. For commercial farming operations already using drones and those looking to enter the market to  take advantage of sophisticated reporting systems, the same care should be taken to ensure  compliance with licensing, safety and general common sense.

Some common sense factors might involve:

• ensuring employees are licensed to use the technology
• checking owners and employees actually understand the technology, its cost and the overarching legal framework
• considering and preparing operational manuals and libraries pursuant to CASA’s certification  protocols
• avoiding UAV routes over or around neighbouring properties
• taking care of UAVs in the fleet, keeping them maintained and serviced
• considering the costs and benefits of using UAV fleets.

It is crucial for UAV operators and insurers developing insurance cover for drone use to  familiarise themselves with CASA’s regulatory regimen and certification procedures to better  protect operators, their property and those around them. It may help prevent renegade farming equipment from crashing through  pastures and trampling crops – because not everyone has Matthew McConaughey’s NASA robotic  programming know-how.

References

1. McConchie, Zonca and Felton-Taylor, ‘Drones as common as tractors? Farm technology in 2025’ in 
ABC Rural (27 October 2015): http://www.abc.net.au/ 
news/2015-10-27/drones-driverless-tractor-farming- in-2025/6888352 (the same article raises the 
topic of driverless tractors, closing the gap between reality and science fiction).
2. See CASA’s draft operations manual: https://www. 
casa.gov.au/file/105116/download?token=aTAqdRQj.
3. Damage by Aircraft Act 1999 (Cth).
4. ACQ Pty Limited v Cook and Aircare Moree Pty Limited v Cook [2009] HCA 28.
5. (2001) 208 CLR 199.
6.   https://www.alrc.gov.au/publications/3-overview-  
current-law/existing-common-law-causes-action.
7. Chow, Caudra and Whitlock, ‘Fallen from the skies’ in the Washington Post (19 January 2016): 
https:// www.washingtonpost.com/graphics/national/ drone-crashes/database/.
8. See the Democrat & Chronicle’s database: http://  rochester.nydatabases.com/map/domestic-drone-
idents.