Drones are the latest “it” gadget for many – you have probably already seen (or heard!) them buzzing past your home or in the park, or you may even own one yourself.
Drones are increasingly being used by businesses and individuals across Australia, whether it be to deliver goods, check stock, photograph property or just for fun on the weekend.
But do drone operators really understand the law relating to drones? For example, are you allowed to spy on your neighbours? How high are you allowed to fly? And what are your rights if that drone is a little too close for comfort?
The law relating to drone usage is still evolving, but you may be surprised to learn that you do not have as much legal protection over your privacy as you might like.
Regulation of drones
In Australia, the flying of a recreational drone over private property is not illegal under the Civil Aviation Safety Authority (CASA) rules, so long as that drone is less than 2kg and is not being used for commercial gain. Even if that drone is recording footage whilst flying over your private property – still lawful. Surprising, especially since CASA has reportedly been receiving one complaint every week from Canberra residents about drone use (as of April 2017). There are regulations about how high the drone can fly (121m maximum), flight conditions, take-off and landing clearance area, but for the most part, it seems that the current regulatory framework does not operate to keep peeping toms at bay.
There are some regulations in place if you are a commercial drone operator, such as being registered with CASA and requiring an operator’s certificate, however these still only apply if the drone is over 2kg.
What about a right to privacy?
In Australia there is no absolute right to privacy, or freedom from overlooking or observation, at common law.
While there is some legislation, such as the Privacy Act 1988 (Cth), this only applies to organisations with an annual turnover of $3 million or more. Your average Canberran neighbour wouldn’t meet this threshold. The ACT Human Rights Act does protect your right to not have your privacy interfered with “unlawfully or arbitrarily”. However, since the regulations authorise the use of recreational drones under 2kg over private property, this does not unequivocally protect your rights.
What about trespass or nuisance law? Still no. Most Australian states have barred home owners from suing aircraft operators for causing “nuisance” by overflight. The courts are still resistant to claims of nuisance against aircraft without proof of persistent and continuing interference with the property. One or two overflights (even on the same day) are unlikely to be enough to establish this.
The law is struggling to keep up with the increased use of recreational drones across Australia. As the law currently stands, it seems there is little legal recourse if someone uses a drone to film you in a secluded area, or in your backyard, or even through your window at home.
If you do have any concerns about the use of recreational or commercial drones please contact Chamberlains for straightforward, no-nonsense advice.