Drone usage soars as councils consider their privacy obligations – Constitutional & Administrative Law

Drone usage soars as councils consider their privacy
obligations

With the drone industry rapidly growing in Australia, and the
use of drones diversifying, many Councils are using drones for
investigative and compliance purposes whilst exercising their
statutory power of entry. Although drones are more efficient than
traditional methods of information collection, Councils should
familiarise themselves with the possible legal challenges of drone
usage for compliance purposes.

Safety regulations

Councils are required to comply with civil aviation and safety
regulations. Drones must be kept within a visual line of sight and
not fly higher than 120 metres or 400 feet above ground level.
Council staff may also operate drones without a licence as long as
the drone weighs less than 2kg. Commercial drone companies with
remote pilot licences are a good alternative option for Councils as
they can operate drones in wider circumstances. Councils should
also ensure that they are aware of the potential legal consequences
for drone malfunctions, including strict liability for injury
caused by aircraft.

Privacy and surveillance laws

Councils seeking to use drones must be aware of privacy and
surveillance laws. Under the Privacy Act 1988 (Cth), Councils are
permitted to collect and use personal information without consent
if it is impracticable to obtain consent or the Council needs
information to address any suspected unlawful activity occurring on
the site.

Under Victorian privacy laws, Councils are permitted to collect
personal information if it is necessary for its functions or
activities. However, a Council must only collect personal
information by lawful and fair means and not in an unreasonably
intrusive way. Councils must also take steps to protect the
information from misuse, loss and unauthorised access in order to
ensure that it is not liable for breach of confidence. Any
individual whose personal information has been collected must be
given reasonable access to the information.

Lastly, Councils should consider whether their own privacy
policies cover personal information that may be inadvertently
collected by drone usage.

Trespass and nuisance

It is unsettled as to whether a Council will be liable for
trespass and nuisance when using drones to survey potentially
non-compliant properties, despite Councils having a statutory power
of entry. This question was considered in the recent New South
Wales decision of Water NSW v Kiangatha Holdings Pty Limited;
Water NSW v Laurence Natale [2022] NSWLEC 6.

Water NSW v Kiangatha Holdings Pty Limited; Water
NSW v Laurence Natale [2022] NSWLEC 6

Kiangatha Holdings Pty Ltd and its director, Mr Natale, were
prosecuted by Water NSW for polluting waters on their private
property. Water NSW took aerial drone photographs of the
defendants’ private property for investigative purposes during
a stay in the proceedings. The defendants argued that this act
amounted to an act of trespass and contempt of court.

However, Water NSW had a broad statutory power to enter their
private property at any time without notice and without consent, as
long as pollution was suspected. The judgment found that the proper
construction of the power of entry was so broad as to override
common law property rights.

The judgment also considered whether gathering information by
drone gave the prosecutors an advantage that is beyond the ordinary
rules of legal procedure. The Court constructed a three-part
test:

• were the statutory powers otherwise available during the
  proceedings? This is relevant because if a Court’s own powers
  can be used to obtain the same outcome as the statutory powers,
  then using the statutory powers would not amount to a contempt of
  Court.




• does the construction of the statutory powers support their use
  during criminal proceedings?




• does the use of statutory powers provide an advantage beyond
  what is permitted by the Court and constitutes a contempt of
  Court?

The Court found that whilst Water NSW did gain an advantage, it
did not amount to contempt of Court because:

• the advantage could have been procured by another method




• it was at an early stage of the proceedings before evidence was
  submitted




• the collection of information was for merely investigative
  purposes




• the prosecutors had statutory power of entry.

As such, Councils should be aware of the timing of drone
activities when engaged in legal proceedings as well as the limits
of their statutory powers of entry.

This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader’s
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
individuals listed.