Victoria University of Wellington’s Andrew Shelley looks at the risks of the increasing number of drones in NZ, and the difficulty of regulating and punishing offenders
Research suggests there may be over 280,000 New Zealand resident drone users, with another 200,000 overseas visitor users each year. Behind these statistics, drones have a seemingly ever-growing number of uses, but they also give rise to significant risks insufficiently managed by existing regulations.
A malicious actor could easily fly a drone into the path of an aircraft, deliver contraband to prisons or drop an improvised explosive device over a sports stadium without ever being at risk of detection by authorities. And someone who is negligent or reckless, rather than malicious, could also cause harm by flying their drone into the path of an aircraft or crashing it at a public event.
New Zealand has seen five recent incidents where the presence of drones closed airports and required aircraft to divert or enter a holding pattern.
On March 6, a drone was observed in airspace near the approach path for aircraft landing at Auckland International Airport. Approximately 20 aircraft entered a holding pattern while air traffic control halted operations for 30 minutes, and a Boeing 777 aircraft arriving from Japan diverted 500km to Ohakea airbase to refuel.
Less than three weeks later, a drone approached to within approximately five metres of another Boeing 777 landing at Auckland International Airport. On April 6, a drone was seen at 1,200ft above ground three nautical miles from Auckland International Airport, resulting in seven flights being delayed. Three days later, operations at Whenuapai air force base north-west of Auckland were suspended when a drone came within 60m of a helicopter flying at 3,000ft above ground. And later that month a passenger flight was delayed at Tauranga because of a drone seen 1.6km from the end of the runway.
While all these situations – and others besides, including the risk to power lines and resulting major outages – are subject to existing legal sanctions, identifying and apprehending perpetrators is difficult and traditional regulatory approaches, such as licensing drone operators, are ineffective deterrents.
Drones are regulated as aircraft under the Civil Aviation Act 1990 and subject to the provisions of the Civil Aviation Rules (2015), part 101. Part 101 specifies restrictions such as not flying higher than 400ft above ground level, not flying over people without their consent, not flying over property without the consent of the occupier or owner, not flying within 4km of an aerodrome without the agreement of the aerodrome operator, and not flying in controlled airspace without the approval of air traffic control.
But Colmar Brunton research for the Civil Aviation Authority found that only 56 percent of New Zealand-resident drone users and 55 percent of overseas-resident drone users in New Zealand self-identified as being aware of the rules and having at least a basic knowledge of them. For New Zealand-resident drone users, awareness of specific rules ranged between 56 percent and 78 percent of users, with only 35–59 percent always complying with them.
Licensing is common to a number of activities considered to pose a hazard. For example, licences are required to drive cars, fly airplanes and possess firearms. Licensing is typically coupled with a knowledge test and so could eliminate the knowledge deficit described above.
A malicious actor could easily fly a drone into the path of an aircraft, deliver contraband to prisons or drop an improvised explosive device over a sports stadium without ever being at risk of detection by authorities.
But licensing, even when complemented by surveillance and enforcement, does not prevent unlicensed people from engaging in the activity or licensed people from undertaking the activity in an unsafe manner. For example, notwithstanding the prohibition on using a hand-held cell phone while driving, in the 2017 calendar year New Zealand Police recorded 23,412 such offences.
According to Colmar Brunton’s research, 35 percent of New Zealand drone users do not consider drones pose a risk to aviation safety, which suggests they would also view enforcement of the relevant Civil Aviation Rules as lacking legitimacy.
Against this backdrop, it would seem common sense that action should be taken to restrict the ability of drones to operate in certain circumstances. As with most issues of human safety, preventing harm is generally preferable to allowing the harm to occur and then compensating the victims’ families or punishing the perpetrator.
This is why New Zealand needs to adopt ‘counter-UAS’ (C-UAS) – systems intended to counter or defend against unmanned aerial systems.
C-UAS can take many forms, including detection and surveillance systems; radio or GPS jamming; ‘protocol manipulation’ that takes over control of a drone; nets that entangle the drone; and firearms, lasers or even a special C-UAS ‘grenade’ to knock a drone out of the sky.
Other countries have already taken steps to allow or enable the use of C-UAS. Australia deployed it for the Commonwealth Games in April. The United States is undertaking trials at selected airports and the United Kingdom reportedly used it to protect against drones at the royal wedding in May.
The US has recently enacted legislation that explicitly allows a range of actions to be taken against drones that potentially threaten the safety or security of a broad range of assets or facilities related to national security. Another act, just passed, provides broad powers for the Department of Homeland Security, the Department of Justice and the Coast Guard to also take action against drones.
The biggest difficulty with implementing C-UAS in New Zealand is not the technology but the legal environment.
The right to peaceful use of a drone does not override the right of others to go about their daily lives free from harm, and there are circumstances in which it is clearly efficient to allow self-defence against drones.
A drone is considered an aircraft and hence subject to the same regulatory provisions as all other aircraft. The Montreal Convention (United Nations, 1975) prohibits any person from destroying an “aircraft in service” or causing “damage to an aircraft in service which renders the aircraft incapable of flight”. While the Montreal Convention includes the qualification that these acts are performed “unlawfully and intentionally”, New Zealand’s codifying legislation – the Aviation Crimes Act 1972 – omits this qualification and specifies a maximum term of imprisonment of 14 years.
These prohibitions are clearly reasonable in respect of occupied aircraft, but less obviously so in respect of unoccupied aircraft (i.e. drones) operating in an area where they have potential to cause significant harm.
Important questions remain as to what C-UAS measures can legitimately be adopted. Under the Radiocommunications Regulations (Prohibited Equipment – Radio Jammer Equipment) Notice 2011, the jamming of radio communications is prohibited unless the person holds a licence allowing the use of radio jammer equipment. The only entity licensed to operate jamming devices is the Department of Corrections, which means equipment that can jam drone control signals could potentially be used at prisons but nowhere else.
These legal issues – and others under the Crimes Act 1961 – suggest specific legislative authority may be required for C-UAS, as has occurred in the US.
The issues would not be particularly difficult to address. The right to peaceful use of a drone does not override the right of others to go about their daily lives free from harm, and there are circumstances in which it is clearly efficient to allow self-defence against drones.
We put fences around high lookouts and along cliff edges to prevent people falling; we regulate to require isolation of dangerous machinery; we can and should implement policy now that allows relevant parties to implement systems to reduce the potential for drone-related harm by preventing drones from accessing the areas where they will cause most harm.
There should never be the opportunity for drones to fly in the approach and departure paths of our major airports, major infrastructure should be protected from errant drones, and people should be able to attend events and gatherings free from the prospect of drones being an agent of harm.
This is an adapted version of an article in the latest issue of Policy Quarterly, published by Victoria University of Wellington’s Institute for Governance and Policy Studies.