Unmanned and uncontrolled: The commingling theory and the legality of unmanned aircraft system operations

Abstract

In 2002 Australia became the first nation to promulgate certification standards for the commercial use of drones or unmanned aircraft systems (UAS). Since that time the Australian Civil Aviation Safety Authority (CASA) has played a key role both domestically and internationally through the International Civil Aviation Organization (ICAO) in assisting to develop technical guidance materials that will enable contracting states to develop UAS regulations. An arduous component of this task is the fact that all existing aircraft are capable of being unmanned. Moreover, given the unbounded nature of aircraft operations, UAS regulations necessarily require international harmonisation. But the objective of developing universal UAS standards is still far from being finalised while the accelerating pace of UAS technological development continues to challenge traditional regulatory regimes and legal systems throughout the world. This paper considers the broader legal issues associated with civilian UAS operations and their integration into unsegregated civilian airspace. The Australian UAS regulatory experience is examined with some unique constitutional limitations identified in relation to the application of the so-called ‘commingling theory’. It is contended that such limitations may render void existing UAS regulation in certain situations – many of which are related to the operation of small UAS and may have significant privacy implications. In particular this paper finds that the regulations purporting to control the operation of systems that are not capable of commingling with aircraft operating within navigable airspace are ultra vires and hence of no legal effect. In concluding this paper strongly asserts that if the commercial benefits attendant to UAS operations is to be fully realised then their risks to society must be controlled through domestic legislation that is harmonised and consistent with internationally agreed guidelines