New law, new rules – new drone rules for New Zealand anticipated with Civil Aviation Bill 2021

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The new Civil Aviation Bill (‘Bill’) is a major overhaul to New Zealand’s existing civil aviation legislation. The Bill will repeal and replace the Civil Aviation Act 1990 and the Airport Authorities Act 1966. The Bill is significantly larger than its predecessors, with 481 clauses and 10 schedules, aiming to provide a platform for safety, security and economic regulation of civil aviation.

In particular, the Bill contains new provisions relevant to drone use. When the previous legislation was drafted, drones were non-existent. Today, they are widely available for public’s consumption. As of August 2020, there are more than 175,000 drones and nearly 300,000 drone users in New Zealand.

New Zealand Drone Research undertaken by the Civil Aviation Authority of New Zealand (CAA), the Ministry of Transport (MoT), and the Ministry of Business, Innovation and Employment (MBIE) showed that most drones are used for recreational purposes, and unfortunately 25% of users have very little or no idea of the rules about drone use, and 20% of flights may occur in restricted airspace without permission, and unshielded.

The rules that 1 in 4 drone users know

The Civil Aviation Act 1990 (‘CA Act’) alongside the Civil Aviation Rules (‘Rules’) currently regulate drone use in New Zealand. Unlike other countries, the Rules do not distinguish between commercial and recreational use, focusing on safety risks rather than purpose.

Most recreational and commercial drones fall under the ‘remotely piloted aircraft’ (‘RPA’) definition, as an unmanned aircraft piloted from a remote station and:

  • Includes a radio-controlled model aircraft; but
  • Does not include a control line model aircraft or a free flight model aircraft

Breaches of the Rules can involve fines and imprisonment. Low risk RPA operations are governed by Part 101 of the Rules, not requiring formal approval. Operators must only fly drones:

  • During the day
  • Below 120 meters
  • At least 4km from an aerodrome
  • Within the operator’s line of sight, and
  • With prior permission (if flying over a person, private property or controlled airspace)

Higher risk RPA operation is governed by Part 102 of the Rules, which has stricter requirements.

The Minister of Transport will be required to make new Rules that reflect the purpose and requirements of the new Act once the bill becomes law.

What does the Bill bring?

There are four key changes relevant to drones in the Bill:

  1. Pilot in Command
    The CA Act assumes there is a ‘pilot-in-command’ (‘PIC’) ‘on board’ an aircraft, which includes drones. The PIC has the ultimate responsibility for the safety and control of the flight, and as there is no PIC on board an RPA, there is no PIC. The Bill aims to close this legal gap by extending the definition of PIC to include remote operators who are not physically on board. This extends the duties, powers and obligations to operators of RPAs and likely means the CA’s existing and the Bill’s new offences will also now apply to these people.
  2. Accident defined
    The CA Act requires parties to notify the Civil Aviation Authority (‘CAA’) if there is an accident involving manned aircrafts only. Therefore, the CAA’s current ability to investigate and regulate RPA accidents is very limited.

    Appropriately, the Bill expands the definition of ‘accident’ to include ‘aircraft intended to be flown without any person on board’ to address these concerns. Accidents include the time between when the drone is “ready to move with the purpose of flight” to the time it rests and the propulsion system shut down.
  3. New powers (to detain, seize and destroy drones)
    Malicious RPA use has been problematic globally, with RPAs breaking civil aviation law causing significant risk and disruption to aviation operation.

    The current provisions authorise detention of aircrafts, but do not expressly authorize seizure of an aircraft breaking the law. For law enforcement to take action against unmanned aircrafts, they have to rely on their mandate of preventing crime and keeping the peace, rather than relying on any statutory authority.

    The Bill introduces new RPA intervention powers for the Police and CAA response officers, aiming to ensure safe and effective integration of these aircraft into the civil aviation system. Despite submissions by the NZ Airports Association on a 2019 Exposure Draft, the Bill does not allow for other industry users to have this power.

    If the Bill becomes law in its current state, authorised officers will have the power to seize, detain or destroy RPAs, and obtain a warrant to search the home or maraes. The officer must believe on reasonable grounds that the conditions for exercise of this power have been satisfied. The power must be exercised reasonably and using reasonable means (electronic, mechanical or physical) to bring the RPA under the control of the person seizing or detaining it. Any detention or seizure may last for only as long as necessary to prevent the danger to people or property or the commission of an offence.
  4. Penalties
    The Bill increases the penalties for dangerous activity to NZ$150,000 for individuals and up to NZ$1.5 million for businesses. For reckless activities the Bill increases this penalty further; with individuals facing up to 5 years imprisonment and fines up to NZ$300,000, and NZ$3 million for businesses.

What is next?

The Transport and Infrastructure Committee’s report on the Civil Aviation Bill was presented to the House on the 2nd June 2022, with the recommendation to the House by the majority of the Committee that the Bill be passed. All of the amendments were recommended unanimously, and the full list of recommendations relating to the aviation system as a whole can be found here.

The Bill is currently at its second reading stage, awaiting the House to debate the select committee report and vote on the Bill.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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