CASA EX92/25 — Amendment of CASA EX45/24 (Operation of Certain Remotely Piloted Aircraft Over Populous Area) Instrument 2025 - Legislation

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX92/25 — Amendment of CASA EX45/24 (Operation of Certain Remotely Piloted Aircraft Over Populous Area) Instrument 2025

Purpose

The purpose of CASA EX92/25 — Amendment of CASA EX45/24 (Operation of Certain Remotely Piloted Aircraft Over Populous Area) Instrument 2025 (the amending instrument) is to deal with a problem arising from the interaction between two recent instruments that regulate the operation of remotely piloted aircraft (RPA), commonly known as “drones”, in the interests of safety, particularly in relation to the operation of such aircraft over emergency operations, or near people not associated with the operation of the aircraft.

In one of those instruments, the Civil Aviation Safety Authority (CASA) granted general exemptions from an obligation known as the populous area rule, which prohibits a person from operating an RPA over a populous area at a height less than the height from which it would be able to clear the area if any of its components failed. Those exemptions were granted subject to limitations designed to ensure that aviation safety is not compromised. (See CASA EX45/24 — Operation of Remotely Piloted Aircraft Over Populous Area Exemption 2024 (the general exemptions instrument).)

In the other instrument, CASA renewed directions about the operation of RPA over emergency operations, or near people not associated with their operation, including a direction prohibiting the operation of certain RPA within 30 metres of another person who does not have duties directly associated with the operation of the RPA. That instrument included a new power for CASA to grant an approval for an applicant to operate an RPA near people despite that direction. (See CASA 20/25 – Operation of Certain Unmanned Aircraft and Rockets – Directions Instrument 2025 (the renewed directions instrument).)

The problem is that most operational profiles that require CASA’s approval to operate an RPA near people also require an exemption from the populous area rule, but, because of an oversight when the renewed directions instrument was made, the general exemptions instrument does not apply to those who hold an approval under the renewed directions instrument. As a result, a person applying to operate an RPA near people under the renewed directions instrument would still be subject to the populous area rule unless they applied for and were granted an individual exemption from that rule. This has given rise to delay and additional costs for certain operators of RPA, both of which are unnecessary as CASA applies the same criteria to applications for exemptions from the populous area rule as it does in its consideration of applications for approvals to operate near people and the safety case remains the same regardless of whether an exemption or approval is sought.

The amending instrument amends the general exemptions instrument to extend the operation of the general exemption from the populous area rule to those who have been granted approval under the renewed directions instrument to conduct RPA operations over or near people not associated with the operation. This will remove the need for operators who hold an approval to apply for, and pay a fee for, an individual exemption and also remove the obligation on CASA to assess applications from a large number of operators in the RPA industry on a case-by-case basis.

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).

Meaning of “unmanned aircraft” and “RPA”

The renewed directions instrument applies to the operation of unmanned aircraft or rockets that present potential risks to the safety zone of members of the general public and the airspace over emergency services personnel.

In the renewed directions instrument, unmanned aircraft is defined to mean each of the following:

(a) a tethered, or any other kind of, balloon, or a kite

(b) an unmanned free balloon

(d) a model aircraft.

Under regulation 101.021 of CASR, an RPA is a remotely piloted aircraft, other than a balloon, kite or model aircraft.

Regulation 101.235 of CASR states that Subpart 101.F of CASR applies to the operation of very small RPA, small RPA, medium RPA and large RPA. The general exemptions instrument, like Subpart 101.F, applies to the operation of very small RPA, small RPA, medium RPA and large RPA. These terms are defined in regulation 101.022 of CASR and such RPA are referred to as relevant RPA in this explanatory statement.

Part 101 provisions about operating RPA over a populous area

Under subregulation 101.245(1) of CASR, subject to other provisions in the regulation, a person must not operate a relevant RPA within 30 metres of a person who is not directly associated with the operation of the RPA. An offence against subregulation 101.245(1) is an offence of strict liability, with a maximum penalty of 10 penalty units. This is because of the seriousness of the matter, and the potential risks to aviation safety, and the safety of persons on the ground that arise from any failure to comply with the requirement. Under subregulation 101.245(5), subregulation 101.245(1) does not apply if the first-mentioned person holds an approval under regulation 101.029 of CASR for the purposes of subregulation 101.245(5).

Under paragraph 101.250(1)(b) of CASR, a person may operate a very small RPA, small RPA or medium RPA outside an approved area only if the RPA stays clear of populous areas. Under regulation 101.236 of CASR, approved area is defined to mean an area approved under regulation 101.030 as an area for the operation of RPA. Under regulation 101.025 of CASR, for Part 101, an area is a populous area, in relation to the operation of an unmanned aircraft, if the area has a sufficient density of population for some aspect of the operation, or some event that might happen during the operation (in particular, a fault in, or failure of, the aircraft) to pose an unreasonable risk to the life, safety or property of somebody who is in the area but is not connected with the operation. Again, because of the seriousness of the matter, and the potential risks to aviation safety, and the safety of persons on the ground that arise from any failure to comply with the requirement, an offence against subregulation 101.250(1) is an offence of strict liability, with a maximum penalty of 10 penalty units.

Under subregulation 101.280(1) of CASR, a certificated RPA is defined to mean a relevant RPA for which a certificate of airworthiness has been issued. The term certificate of airworthiness is defined in Part 1 of the CASR Dictionary. Under subregulation 101.280(2), a person must not operate a relevant RPA that is not a certificated RPA over a populous area at a height less than the height from which, if any of its components fails, it would be able to clear the area. Because of the seriousness of the matter, and the potential risks to the safety of persons on the ground that arise from any failure to comply with the requirement, an offence against subregulation 101.280(2) is an offence of strict liability, with a maximum penalty of 50 penalty units.

Exemptions

Division 11.F.1 of CASR provides for the granting of exemptions from particular provisions of CASR. Subregulation 11.160(1) of CASR provides that, for subsection 98(5A) of the Act, CASA may grant an exemption under the Division from compliance with a provision of CASR in relation to a matter mentioned in that subsection.

Under subregulation 11.160(2), an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

Under subregulation 11.160(3), an exemption may be granted on application by a person or on CASA’s own initiative.

Regulation 11.225 of CASR requires an exemption to be published on the internet. Under subregulation 11.230(1) of CASR, the maximum duration of an exemption is 3 years.

Directions

Under paragraph 11.245(1)(a) of CASR, for subsection 98(5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245(2), CASA may issue such a direction only if CASA is satisfied that it is necessary in the interests of safety, only if the direction is not inconsistent with the Act, and only for the purposes of CASA’s functions.

Under regulation 11.250, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255(1), it is a strict liability offence to contravene a direction under regulation 11.245 that is applicable to the person. This is because of the seriousness of the matter, and the potential risks to aviation safety, and the safety of persons in the air or on the ground that arise from any failure to comply with the requirements of a direction. The maximum penalty is 50 penalty units.

Amendment of another legislative instrument

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. Under subsection 13(1) of the Legislation Act 2003 (the LA), subsection 33(3) applies to legislative instruments as if each provision of the instrument were a section of an Act.

Background

Background to and making of the general exemptions instrument

Unless any of the exceptions stated in subregulations 101.245(2) to (4) of CASR apply, if a person wishes to operate a relevant RPA within 30 metres of a person who is not directly associated with the operation of the RPA, the person must apply for and be granted an approval under regulation 101.029 of CASR for the purposes of subregulation 101.245(5). If the operation is over a populous area, the person also needs to be granted an exemption against compliance with paragraph 101.250(1)(b), and subregulation 101.280(2), for the purpose.

Before the commencement of the general exemptions instrument, CASA had been:

(a) granting an RPA operator (being a person who is certified as an RPA operator under regulation 101.335 of CASR), and its remote pilots, individual approvals under regulation 101.029, for the purposes of subregulation 101.245(5), to operate a relevant RPA that is not a certificated RPA within 30 metres of a person who is not directly associated with the operation; and

(b) granting the operator and the remote pilots individual exemptions against compliance with paragraph 101.250(1)(b), and subregulation 101.280(2), of CASR in relation to the operation of the RPA over a populous area.

Section 4 of the general exemptions instrument states that the instrument applies if:

(a) a person (the relevant person) holds an approval under regulation 101.029 of CASR, for the purposes of subregulation 101.245(5), to operate a relevant RPA that is not a certificated RPA within 30 metres of a person who is not directly associated with the operation; and

(b) the approval is not suspended; and

If the relevant RPA is a very small RPA, small RPA or medium RPA, subsection 5(2) of the general exemptions instrument grants the relevant person an exemption from compliance with paragraph 101.250(1)(b) of CASR in relation to the operation of the RPA outside an approved area over a populous area.

Subsection 5(3) of the general exemptions instrument grants the relevant person an exemption from compliance with subregulation 101.280(2) of CASR in relation to the operation of the RPA over a populous area.

Background to the renewed directions instrument

The directions that were renewed in the renewed directions instrument were required because Part 101 of CASR is not sufficiently prescriptive or clear in relation to some types of unmanned aircraft or rocket operations which have potentially serious aviation safety implications. In particular, Part 101 of CASR does not regulate the operation of unmanned aircraft or rockets over an area under the control of an emergency authority, for example, a bushfire zone, and does not specify how many excluded RPA or model aircraft a person may operate at a single time.

The relevant directions were first issued by CASA in 2017 (see CASA 96/17) and were then renewed in 2020 (see CASA 55/20 – Operation of Certain Unmanned Aircraft Directions 2020) and in 2022 (see CASA 22/22 – Operation of Certain Unmanned Aircraft – Renewal of Directions Instrument 2022 (CASA 22/22)). As those directions were required to continue in force to deal with the gap in Part 101 of CASR, when CASA 22/22 expired, the renewed directions instrument reissued the directions that it contained in a revised form. In particular, the directions carried over in the renewed directions instrument now provide CASA with a power to approve flights over a relevant area, and the renewed directions instrument also clarified the “30 m from a person rule” with a more effective description, using the concept of a safety zone for members of the public.

Section 7 of the renewed directions instrument deals with the operation of RPA or model aircraft near people. The section provided CASA with an expanded power to grant approvals for the operation of RPA and model aircraft, whereas it was previously limited to the operation of micro RPA. Subsection 7(1) directs a person controlling an RPA or a model aircraft to ensure that the aircraft is not operated in, or over, another person’s safety zone, unless the other person has duties essential to the control or navigation of the aircraft. Paragraph 7(3)(a) provides that the direction under subsection 7(1) does not apply to the operation of an RPA or a model aircraft if the person holds an approval given by CASA for the purposes of the paragraph.

Unintended interaction between the general exemption instrument and the renewed directions instrument

After the renewed directions instrument was made, CASA identified an unintended interaction between that instrument and the general exemptions instrument, which had not been identified when the renewed directions instrument was made. The creation of a new power to approve any RPA or model aircraft to operate within 30 metres and the clarification of how 30 metres from a person was measured has created a difference between the two rules governing operations near people, as a result of which a person applying to operate RPA or model aircraft near people under the renewed directions instrument may now be excluded from the operation of the general exemptions instrument and the associated regulatory relief. Such a person would still be subject to the populous area rule in Part 101 of CASR unless they applied for an individual exemption.

The need for the operator to apply to CASA for the grant, and renewal, of an individual exemption has been an administrative, and cost, burden for the operator. Also, CASA was required to spend a considerable time administering the grant, and renewal, of the individual exemptions.

Contents of instrument

Section 1 states the name of the amending instrument.

Section 2 states that the amending instrument commences on the day after it is registered.

Section 3 gives effect to the Schedule of amendments to the general exemptions instrument.

Schedule 1 amends the general exemptions instrument so that the exemptions in the instrument extend to a person who holds an approval given for the purposes of paragraph 7(3)(a) of the renewed directions instrument to operate a relevant RPA within another person’s safety zone, but only if that approval has not been suspended and the person complies with the conditions of that approval.

Legislation Act 2003

Paragraph 10(1)(d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. The amending instrument amends the general exemptions instrument, which is a legislative instrument. The amending instrument is, therefore, also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Sunsetting

As the amending instrument relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the amending instrument (in accordance with item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).

The amending instrument will be repealed automatically under section 48A of the LA and the general exemptions instrument will be repealed at the end of 31 July 2027. This will occur before the sunsetting provisions would have repealed the amending instrument and the general exemptions instrument if they had applied. Any renewal of, or further amendment to, the general exemptions instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of the amending instrument or the general exemptions instrument.

Consultation

Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.

There has been no formal public consultation in relation to the amending instrument itself. The problem that it solves was identified in the course of the implementation of the general exemptions instrument.

Exemptions from regulatory requirements are beneficial to the persons to whom they apply and who choose to take advantage of them. Therefore, CASA considers it unnecessary to engage in extensive public consultation in relation to a proposed exemption.

In these circumstances, CASA is satisfied no further consultation is appropriate, or necessary, for the amending instrument for section 17 of the LA.

Office of Impact Analysis (the OIA)

An Impact Analysis (IA) is not required in this case, as the exemptions are covered by a standing agreement between CASA and OIA, under which an IA is not required for exemptions (OIA id: OIA23-06252).

Sector risk, economic and cost impact

Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c) of the Act, CASA must:

(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b) take into account the differing risks associated with different industry sectors.

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

The economic and cost impact of the exemptions has been determined by:

(a) the identification of individuals and the businesses affected by the exemptions; and

(b) consideration of how the requirements to be imposed on individuals and businesses under the amending instrument will be different compared to existing requirements.

Without this amendment, negative financial and administrative impacts on the RPA industry may occur, specifically, holders of an RPA operator’s certificate applying for an approval to operate over people, who cannot rely on the general exemption in the general exemptions instrument. For affected applicants applying to operate a drone over people, individual exemptions from the populous area rule may incur an additional fee payable to CASA and potentially delay the applicant’s approval application by a further 6 weeks.

The amendments made by the amending instrument would restore the intended regulatory relief for a significant number of RPA approval applicants, removing the additional fees and processing timeframes associated with the process of applying for an individual exemption.

Impact on categories of operations

The amending instrument will have a positive impact on aircraft operations conducted using remotely piloted aircraft, as it will facilitate operations over populous areas, subject to the operations meeting an acceptable level of aviation safety.

Impact on regional and remote communities

The amending instrument does not have an impact that is specific to regional and remote communities.

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The amending instrument is compatible with the listed human rights.

Making and commencement

A delegate of CASA has made the amending instrument, relying on the power of delegation under subregulation 11.260(1) of CASR.

The amending instrument will commence on the day after it is registered.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA EX92/25 — Amendment of CASA EX45/24 (Operation of Certain Remotely Piloted Aircraft Over Populous Area) Instrument 2025

The legislative instrument is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The purpose of the legislative instrument is to deal with a problem arising from the interaction between two recent instruments that regulate the operation of remotely piloted aircraft (RPA), commonly known as “drones”, in the interests of safety, particularly in relation to the operation of such aircraft over emergency operations, or near people not associated with the operation of the aircraft.

The problem is that most operational profiles that require CASA’s approval to operate an RPA near people also require an exemption from the populous area rule, but, because of an oversight when the renewed directions instrument was made, the general exemptions instrument does not apply to those who hold an approval under the renewed directions instrument. As a result, a person applying to operate an RPA near people under the renewed directions instrument would still be subject to the populous area rule unless they applied for and were granted an individual exemption from that rule. This has given rise to unnecessary delay and costs for certain operators of RPA since CASA applies the same criteria to applications for exemptions from the populous area rule as it does in its consideration of applications for approvals to operate near people and the safety case remains the same regardless of whether an exemption or approval is sought.

The legislative instrument amends the general exemptions instrument to extend the operation of the general exemption from the populous area rule to those who have been granted approval under the renewed directions instrument to conduct RPA operations near people not associated with the operation. This will remove the need for operators who hold an approval to apply for, and pay a fee for, an individual exemption and will remove the obligation on CASA to assess applications from a large number of operators in the RPA industry on a case‑by‑case basis.

Human rights implications

The legislative instrument and the two instruments to which it relates engage the following human rights without imposing unacceptable limitations, as follows:

the right to life under Article 6 of the International Covenant on Civil and Personal Rights (ICCPR)
the right to work and rights at work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions under Article 7 of the ICESCR.

Article 6 of the ICCPR

Article 6 of the ICCPR protects the right to life.

The legislative instrument is congruent with this right because it supports the operation of the renewed directions instrument, which was designed to protect the safety zone of a member of the general public, and an area where a fire, police, or other public safety or emergency operation is being conducted.

The engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework is to uphold aviation safety by prescribing the conduct of individuals and organisations involved in civil aviation operations, including flight operations. It is, therefore, a threshold requirement for all CASA instruments that, through their safety conditions, they contribute to an acceptably safe aviation environment and deliver safe and healthy working conditions for crew and ground staff, as applicable.

In this instance, the legislative instrument is protective in its scope and application.

The right to work under Article 6 of the ICESCR

Article 6 of the ICESCR protects the right to work and rights at work.

The instrument being amended (that is, the general exemptions instrument) engaged the right to work in Article 6(1) of the ICESCR. The right to work includes the right of everyone to the opportunity to gain their living by work, which they freely choose or accept. By extending the operation of the general exemptions instrument, the legislative instrument indirectly facilitates the operation of RPA over populous areas, which would otherwise be prohibited under the Civil Aviation Safety Regulations 1998 (CASR). Accordingly, the legislative instrument will enable persons who are certified as RPA operators under regulation 101.335 of CASR to expand the scope of their operations of RPA, which gives greater work opportunities for their remote pilots.

Accordingly, the right to work is promoted by the legislative instrument.

Article 7 of the ICESCR

Article 7 of the ICESCR protects the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions.

The renewed directions instrument will, to some degree, protect the right to work and rights at work because it is designed to protect the safety zone of members of the general public, and any area where a fire, police, or other public safety or emergency operation is being conducted.

Such limitations as are thereby imposed on the continuation of third-party RPA or other unmanned aircraft operations are considered to be a reasonable, necessary and proportionate requirement in the context of aviation safety.

Accordingly, the right to work is promoted by the legislative instrument.

Human rights implications

The legislative instrument is compatible with human rights, and to the extent that it may engage certain rights it does so in a way that promotes the right to life, the right to work, and safe and healthy working conditions on board relevant aircraft and on the ground. Any limitations on rights arising from the legislative instrument are considered to be reasonable, necessary and proportionate in the interests of aviation safety.

Aviation safety is not compromised by the extension of the exemptions granted in the general exemptions instrument to those who hold an approval under the renewed directions instrument.

Under subregulation 11.170(3) of CASR, in deciding whether to grant an exemption on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. Applying the same criterion when amending an instrument that grants a general exemption, CASA is satisfied that an amendment to paragraph 4(a) of the general exemptions instrument, to include approvals held under paragraph 7(3)(a) of the renewed directions instrument will not introduce any adverse safety outcomes. Including those persons within the general exemption does not compromise aviation safety, including the safety of persons at work and persons on the ground, because following the making of the renewed directions instrument there is now a clear, alternative head of power that must be used, instead of regulation 101.245 of CASR, for operations near people that meet the criteria in section 7 of the renewed directions instrument. However, the CASA policy that governs applications for operations near people and the safety case remain the same regardless of which head of power is used to approve an RPA operation near people.

Conclusion

The legislative instrument is compatible with human rights.

Civil Aviation Safety Authority

CASA EX92/25 — Amendment of CASA EX45/24 (Operation of Certain Remotely Piloted Aircraft Over Populous Area) Instrument 2025

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

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