Referral of the inquiry
1.1
On 3 September 2020, the Senate referred the provisions of the Civil Aviation (Unmanned Aircraft Levy) Bill 2020 and the Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020 (the bills) to the Rural and Regional Affairs and Transport Legislation Committee (the committee) for inquiry and report by 4 November 2020.
1.2
The proposal to refer the bills to the committee suggested a number of issues for consideration as part of the inquiry, including:
the lack of clarity on the level of fees to be set under the new arrangements;
the high registration fees proposed for commercial operators, relative to equivalent fees in Canada, the United Kingdom and the United States of America;
the possibility that high fees may act as a barrier for small operators to register their remotely piloted aircraft (RPA); and
that research and development currently conducted in Australia may be sent offshore.
Conduct of the inquiry
1.3
The committee advertised the inquiry on its webpage, calling for submissions by 30 September 2020. The committee also wrote to a range of key stakeholder groups and organisations, drawing their attention to the inquiry and inviting them to make written submission.
1.4
The committee received 32 submissions, which are listed at Appendix 1. Submissions were published on the committee’s inquiry webpage.
1.5
The committee completed its inquiry on the basis of these submissions, and on other publicly available information regarding the bills and their provisions, including the bills’ Explanatory Memorandum (EM).
Acknowledgement
1.6
The committee thanks those individuals and organisations who provided written submissions to the inquiry. This work informed the committee’s deliberations.
Structure of the report
1.7
The report consists of two chapters. Chapter 1 provides information about the inquiry and the purpose of the bills. Chapter 2 presents the key issues raised by submitters, and the committee’s views and recommendation.
1.8
The term remotely piloted aircraft (RPA) in this report is used to denote drones, unmanned aerial vehicles (UAVs), unmanned aircraft systems (UAS) and similar technologies.
Purpose of the bills
Civil Aviation (Unmanned Aircraft Levy) Bill 2020
1.9
The Civil Aviation (Unmanned Aircraft Levy) Bill 2020 (the levy bill) seeks to establish the legal mechanism that will be used to impose a levy for future cost recovery arrangements for regulatory services for remotely piloted aircraft (RPA) operators.
1.10
The levy bill would permit the amount of the levy to be prescribed by regulations. There is a cap of $300 on the amount of levy and the amount can be set at nil.
1.11
The definition of unmanned aircraft levy includes both the levy payable on applying for registration of an RPA or model aircraft and the levy payable when applying for permission to operate an RPA or model aircraft registered in a foreign country.
Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020
1.12
The Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020 (the collection bill) seeks to amend the Civil Aviation Act 1988 to establish arrangements for the Civil Aviation Safety Authority (CASA) to collect an unmanned aircraft levy.
1.13
The collection bill would provide for the payment of the amounts of collected levy to CASA and appropriate the Consolidated Revenue Fund accordingly. Refunded levy amounts must be paid by CASA to the Commonwealth, but the minister may set off refunds against levy funds paid to CASA.
1.14
The circumstances in which the proposed unmanned aircraft levy is payable, and the collection of levy payments, are to be prescribed by regulations.
1.15
The collection bill would also allow the relevant minister to delegate powers to certain department officials, who must comply with written directions of the minister.
Background
Previous inquiries into unmanned aircraft
1.16
The Senate Rural and Regional Affairs and Transport References Committee (the references committee) reported in July 2018 on Current and future regulatory requirements that impact on the safe commercial and recreational use of Remotely Piloted Aircraft Systems (RPAS), Unmanned Aerial Systems (UAS) and associated systems.
1.17
The references committee included the recommendation that ‘the Australian Government introduce a mandatory registration regime for all remotely piloted aircraft systems (RPAS) weighing more than 250 grams’. The Government agreed to this recommendation in its response tabled in the Senate on 27 November 2018.
RPA Regulations
1.18
The Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft–Registration and Accreditation) Regulations 2019 (the RPA regulations) were made on 25 July 2019. The RPA regulations amended Parts 11, 47 and 101 of the Civil Aviation Safety Regulations 1998 to provide for the registration of certain RPA and model aircraft and the accreditation of operators.
1.19
Under the RPA regulations, CASA ‘does not have the ability to impose a levy to recover the costs of the registration system and related safety oversight activities’. The registration scheme for RPA commenced on 30 September 2020. The registration scheme for model aircraft will commence on 1 March 2022.
Provisions of the Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020
1.20
The collection bill contains one schedule of amendments to be made to the Civil Aviation Act 1988.
1.21
Item 1 inserts the definition of ‘unmanned aircraft levy’ from the proposed Civil Aviation (Unmanned Aircraft Levy) Act into section 3 (Interpretation) of the Civil Aviation Act.
Legislative scrutiny
1.22
The bills were considered by the Senate Standing Committee on the Scrutiny of Bills in September 2020 (scrutiny committee).
1.23
In its consideration of the Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020, the scrutiny committee expressed concern that proposed paragraph 98(3)(w) of the Civil Aviation Act contained only ‘broad principles’ and relied ‘heavily on delegated legislation to determine the scope and operation of the scheme’, thus limiting parliamentary oversight. The scrutiny committee noted that ‘the explanatory memorandum fails to justify why it is necessary and appropriate to leave virtually all of the details of the operation of the proposed unmanned aircraft levy scheme to delegated legislation’. The scrutiny committee requested the minister’s advice on:
…why it is necessary and appropriate to leave the circumstances in which the proposed unmanned aircraft levy is payable, and the collection of the levy payments, to delegated legislation; and
whether the bill can be amended to prescribe at least broad guidance in relation to these matters on the face of the primary legislation.
1.24
The minister responded that RPA management systems needed to be adaptable to a 'relatively new and rapidly developing sector of aviation' and that RPAs were 'highly varied and changing rapidly, with different weight and size classes' The minister further advised that the RPA registration scheme, which had commenced on 30 September 2020, would 'inform the development of the cost recovery scheme' and that the amount of the levy 'is likely to be quickly superseded by expansion in the numbers of commercial unmanned aircraft, and changes in the regulations and services the levy is being collected to fund'. The use of regulations would then allow 'administrative and technical details of the schemes to be adjusted relatively quickly' while able to be disallowed by the Parliament.
1.25
The scrutiny committee responded that 'it does not consider administrative flexibility or convenience to be sufficient justification for leaving significant elements of a regulatory scheme … to delegated legislation' and drew the matter to the attention of the Senate and the Senate Standing Committee for the Scrutiny of Delegated Legislation.
1.26
The scrutiny committee also considered clauses 5 and 6 of the Civil Aviation (Unmanned Aircraft Levy) Bill 2020 which impose an unmanned aircraft levy but leave the amount of the levy to be prescribed by regulation. The Scrutiny of Bills Committee observed that ‘it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax’ and that ‘it is more appropriate for the rate of levies and charges to be prescribed in primary legislation’.
1.27
In terms of the human rights implications of these bills, the EM states that the levy bill:
limits Article 6 of the International Covenant on Economic, Social and Cultural Rights (right to work and rights to work) by providing an impost on commercial and professional use of RPA;
promotes Article 7 of the International Covenant on Economic, Social and Cultural Rights (right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions) by contributing to the safe use of RPA; and
promotes Article 6 of the International Covenant on Civil and Personal Rights (right to life) by contributing to the safe use of RPA.
1.28
The EM concludes that the bills are ‘compatible with human rights and, to the extent that the Levy Bill may also limit human rights, any potential limitations are reasonable, necessary and proportionate to ensure the safety of aviation operations and to promote the integrity of the aviation safety system’.
1.29
The Parliamentary Joint Committee on Human Rights made no comment on the bills prior to this report’s finalisation.