I’ve received a request for information from a member of a Queensland rural fire brigade. The details came in a letter that is somewhat too long, and too technical, to put here in full, so I’ll summarise the issue as I understand it. I’m sure my correspondent will get back to me if I’ve misunderstood anything.
The gist of the issue is that this brigade want to use a ‘Remote Piloted Aerial System’ (colloquially, a drone) to get fire ground information. The drone weighs less than 2kg and meets the Civil Aviation Safety Authority’s definition of a ‘small’ drone. The QFES Commissioner has issued a standing order (‘Engagement and Operation of RPA or UAVs in Support of Emergency Operations’, Document number SO-Q-OM-4.28, 1 August 2014) that is directed to QFES, the SES and Rural Fire Service Queensland, to the effect that drones can’t be used anywhere on the fire ground without extensive approval from the IC up to the State Air Desk and operators have to comply with requirements to have a ‘UAV Controller’s certificate’ which I’m told costs $160 to obtain. I’m told they would also need an Operators Certificate and a Pilot’s certificate and that would add a further $9800 to the costs.
On the other hand, the operator of a small drone that is used for sport or recreation is effectively unregulated. The QFES standing order says that in their view the use of a drone on a fire ground does not meet that requirement and so the various licences and certificates are required.
My correspondent asks ‘can QFES usurp CASA’s federal role of controlling all airspace in Queensland’ and as members of a rural fire brigade they are not part of QFES (see Status of Queensland Rural Fire Brigades, September 10, 2014) so are they bound by the standing order?
First let me say that the CASA regulations are complex and area of expert knowledge which I don’t have so I can’t go and verify all the various requirements. I will assume that it is correct that an operator would require ‘an Operators Certificate ($4600) a Controllers Certificate ($160?) and a Pilots Certificate ($5200)’ (but see RPAS Training and Solutions ‘CASR 101 – Are you flying your UAV legally?’ accessed 12 September 2014).
Second the regulation of airspace is a matter of federal law, so the Civil Aviation Act 1988 and its regulations are Commonwealth, not state law. Where a state law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109). In short the Civil Aviation Safety Regulation ‘trumps’ the Queensland Fire and Emergency Services Act. QFES can impose obligations upon its members and those operating near a fire ground above the CASA requirements, but it cannot relax or waive the CASA requirements.
Rule 101.235 of the Civil Aviation Safety Regulations 1998 (Cth) applies to ‘the operation of a large UAV; and the operation of a small UAV for purposes other than sport or recreation.’ As my correspondent says
Unfortunately again, there was no distinction made for the middle ground between operating for ‘sport or recreation’ and ‘commercial’. That middle ground is occupied by the service sector where probably the best public use can be made with RPAS in emergency services such as SES, Rural Fire etc.
It’s true; the rules provide for only two cases, a UAV used ‘for sport or recreation’ and all other uses. Either the UAV is being use for ‘sport or recreation’ or it is not. I think there can be no doubt that the use of a UAV by a fire brigade in order to obtain fire ground intelligence is not use for ‘sport or recreation’ and so all the CASA rules must apply.
Can QFES limit the use of UAV’s on the fire ground? The answer has to be ‘yes’. Section 83 of the Fire and Emergency Services Act 1990 (Qld) relates to the powers of the first officer and other rural fire officers at the scene of a fire. It says, at subsection 4, ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’. I have no doubt that a standing order directed to QFES, Queensland SES and ‘Rural Fire Service Queensland’ is such a direction. Further, the Commissioner and an authorised fire officer ‘may take any reasonable measure— to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency’ (s 53). That has to include a power to protect other air operators who are working above a fire (see also Work Health and Safety Act 2011 (Qld)).
In my view the order that limits the use of the drone, determines how it is to be approved etc is not inconsistent with the CASA rules, that is one can comply with both at the same time and whilst CASA may intend to regulate the use of airspace, QFES has the role of regulating safety on the fire ground so although they overlap, QFES is not impermissibly moving into areas that are intended to be the sole preserve of Commonwealth regulation (see Ex parte McLean (1930) 43 CLR 472 at 483 (Dixon J); Momcilovic v The Queen  HCA 34, - (Gummow J), - (Hayne J)).
I was asked to give my:
… opinion of this attempt by a State authority to impose blunt control over legitimate aspirations for volunteers prepared to risk their lives firefighting, but expecting the best possible leadership in the process.
I will not buy into the debate of whether this is an ‘attempt by a State authority to impose blunt control’ or whether the desire to use the drone is ‘legitimate aspirations’. That would get into a debate about the merits of the policy which I’m not prepared to do. What I can do is say:
- The deregulation of the use of small drones only applies to those that are used ‘for sport or recreation’. The Commissioner is correct, in my view, to conclude that the use of a drone on a fire ground is not a use ‘for sport or recreation’. If that is correct (and I’m sure it is) then all the CASA rules apply. That has nothing to do with the Commissioner and is not the product of the Commissioner’s standing order but the CASA regulations.
- The Commissioner can issue a standing order directed to QFES, the SES and rural fire brigades and that standing order must be complied with (Fire and Emergency Service Act 1990 (Qld) s 83).
- The Commissioner can also give those directions as part of his or her general responsibilities to ensure safety during fire fighting and other operations. (Fire and Emergency Services Act 1990 (Qld) s 53; Work Health and Safety Act 2011 (Qld)).