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22 July 2020
The popularity of drones has sky rocketed in the past few years as technology improves and prices become more affordable. For recreational purposes, drones allow the average consumer to capture cinematic video footage and photographs from aerial heights that would otherwise be completely inaccessible. It has quickly become apparent that the use of drones can provide considerable cost-saving and safety advantages in a wide range of industries such as agriculture, construction, photography, oil and gas, survey engineering and telecoms.
New innovative ways to use drones seem to appear every day.(1) Nonetheless, the security risk posed by such devices cannot be understated.(2) Beyond their potential for causing significant damage and disruption, surveillance from unsanctioned drones in certain areas can also pose a considerable risk to personal privacy and even national security.
All things considered, it is important that drone regulations strike the right balance between allowing the public to make the most of the benefits that such devices have to offer and safeguarding privacy, security and other aviation operations.
A drone, or an unmanned aircraft system as it is legally known in Malaysia, is defined as "an aircraft and its associated elements which are operated with no pilot on board". Drones are currently regulated under Part XVI of the Civil Aviation Regulations 2016 (CAR 2016), which categorise drones into three main classes:
These rules are governed by the Civil Aviation of Authority of Malaysia (CAAM), which serves as the nation's technical regulator to oversee all matters relating to civil aviation safety, maintenance and security.
Regulation 140 of CAR 2016 prohibits any drone, regardless of its classification, from flying within an airport traffic zone or at any height over 400 feet (approximately 122 metres) above the ground, unless authorisation is obtained from CAAM. This prohibition also applies to airspace designated as Class A, B, C or G, which will be notified by CAAM. Further, there is an express provision which prohibits items from being dropped by any drone, whether or not such item is attached to a parachute, to which no exceptions or authorisations can be granted.
Drones for aerial work
Regulation 141 of CAR 2016 specifies that authorisation must be sought from CAAM to fly a drone for aerial work. 'Aerial work' is defined widely in CAR 2016 as "an aircraft operation in which an aircraft is used to provide specialized services in agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement and other similar activities".
To obtain an authorisation certification, an application must be submitted to CAAM along with a prescribed fee specified in the Civil Aviation (Fees and Charges) Regulations 2016 (CA(FC)R 2016). The prescribed fee for an application for a drone aerial work certificate is RM800 and any renewal thereafter costs RM500 per year. Further, the prescribed fee for an application to make a variation to an obtained aerial work certificate is RM250.
A 'small drone' is defined as weighing no more than 20kg without fuel but including any installed or attached equipment. Regulation 142 of CAR 2016 specifies that the person in charge of the small drone must be satisfied that the flight can be safely made and maintain direct and unaided visual contact with the small drone sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions.
In general, no authorisation from CAAM is needed to fly a small drone. However, Regulation 143 of CAR 2016 specifies that if a small drone is equipped to undertake any form of surveillance or data acquisition, there are a plethora of circumstances where authorisation will be necessary. Such circumstances include if the small surveillance drone is being flown over or within:
Pursuant to CA(FC)R 2016, the prescribed fee for an application to fly a small surveillance drone is RM250.
Drones weighing over 20kg
Regulation 144 of CAR 2016 specifies that flying a drone that weighs over 20kg (without fuel) for any purpose requires authorisation from CAAM. Pursuant to CA(FC)R 2016, the prescribed fee for an application to fly a drone weighing over 20kg is RM1,000.
As provided under Regulation 206(3) of CAR 2016, any contravention of the abovementioned drone rules amounts to an offence which, in the case of an individual, is punishable by a fine of up to RM50,000 and/or up to three years' imprisonment. For corporate bodies, the applicable punishment is a fine of up to RM100,000.
The current regulatory framework for drones in Malaysia gets many of the fundamentals right. It is indisputable that the prohibition against flying a drone within an aerodrome traffic zone or at any height of over 400 feet is necessary to prevent drones from posing a risk to larger aircraft during their take-off and landing, and to smaller aircraft at their likely cruising altitude. Further, CAAM's ability to designate certain airspace as out of bounds can help to ensure the security and privacy of sensitive areas such as military bases, heritage sites and government buildings.
However, perhaps the weakest link in the current drone laws is the lack of specific rules for commercial drone operations. Save for Regulation 141 of CAR 2016, which states that CAAM's authorisation is required for drones used for aerial work, there are no regulations stipulating any safety or operational requirements for the use of commercial drones. The effect of this lacuna is that companies looking to develop and operate commercial drones are left in the dark about their obligations and duties when using such devices, which stifles the innovative use of drone technology in Malaysia. It also means that the operation of drones in particularly high-risk areas such as oil rigs can go completely unregulated. While CAAM is empowered under Regulation 189(3) of CAR 2016 to impose conditions on any specific authorisation issued, it would be preferable in the interest of transparency and uniformity that regulations or guidelines be issued.
It is further suggested that specific drone regulations be introduced on an industry-to-industry basis. For example, there could be separate regulations for drones in the delivery, agriculture and oil and gas sectors, each of which would have its own rules tailored to reflect the varying safety and operational requirements necessary for its designated area. Regulations of this nature would provide businesses with a clear and accessible framework of how they can safely and legally operate drones in a variety of industries.
Another improvement that could be made in the regulation of commercial drones would be removing the requirement of having to apply for an aerial work renewal certificate every year, which is currently specified in CA(FC)R 2016. Given that the approval process for this scheme is reportedly time consuming and cumbersome, it would be far more efficient to move towards a licensing system used in countries such as the United Kingdom and Australia, where drone operators can instead apply for a one-off licence, similar to a driving licence. These licences could thereafter be rescinded if the drone operator contravened any laws.
With regard to recreational drones, Regulation 142 of CAR 2016 allows 'small drones' weighing less than 20kg to be operated in certain areas without any authorisation from CAAM. While this relatively lenient rule will be welcomed by drone hobbyists, given the damage that such devices can cause, guidance should be taken from the approach adopted in countries like the United States, the United Kingdom and Singapore where registration is mandatory for all drones weighing as little as 0.25kg.
Indeed, as long as the registration process is made convenient and affordable, mandatory registration would not serve as a significant impediment to the use of recreational drones and could even help to ingrain a sense of responsibility and accountability for drone operators. Further, many countries now specify minimum age requirements for the operation of drones, which is certainly something that Malaysia should also implement as a quick and easy way to help ensure that drones are flown responsibly.
Finally, rules will always be disregarded if there are no visible consequences, so firm steps must be taken the ensure the enforcement of any existing drone regulations. In addition to using the penalty provision in CAR 2016 more often to deter the wrongful use of drones, resources should also be allocated towards developing technology capable of disabling any drone posing a risk to privacy, safety or security.
In November 2019 a private company held a viewing for Malaysia's first 'flying car' at a closed-door event attended by the minister of entrepreneurial development. The precise nature of this aeronautical vehicle seems to be the issue of some debate, with some people, including the minister of transport, describing the vehicle as some form of drone, with monikers such as "passenger drone" or "super drone" being used in the media.
Indeed, from photographs in the media, the vehicle certainly does look like a large drone, particularly due to its extended arms, each of which mounts electric propellers. Nonetheless, a drone by its definition must be an unmanned aircraft which is operated without a pilot on board. Given that the flying car in question can seat up to two people and appears to be capable of operation by the passengers, such a vehicle cannot be regulated under the drone provisions contained in Part XVI of CAR 2016.
In fact, there are currently no laws in Malaysia capable of comprehensively regulating an air-and-road vehicle. At present, the regulation of such a vehicle would need to work in a somewhat awkward mix-and-match fashion, with the vehicle's road capabilities being regulated under the Road Transport Act 1987 and its air capabilities being regulated under provisions in the CAR 2016 generally meant for manned aircraft such as airplanes and helicopters.
Drone technology is developing fast and drone popularity is growing even faster. It is crucial that drone regulations keep up to speed by undergoing periodic updates and amendments. The time is right for a comprehensive update to the rather limited drone rules in Part XVI of CAR 2016. It is also hoped that both CAAM and the Ministry of Transport will keep a close eye on the development of other aeronautical projects such as the flying car.
Given that Budget 2020 has allocated a considerable amount in grant funds for pilot projects on digital applications such a drone delivery, it is expected that the development of drones in Malaysia will take big strides this year. Indeed, it appears to be just a matter of time before the use of commercial drones becomes commonplace in everyday life. Exciting days lay ahead for our aviation industry.
(1) For example, Rwanda has recently begun operating a highly successful drone delivery system to distribute blood and emergency medical supplies to local hospitals and remote health facilities. This programme has proven so effective that more developed countries like the United Kingdom and Australia have begun trials to emulate it. Other recent innovations include Italy's use of drones to detect and identify industrial air pollution and the use of drones fitted with loudspeakers in China and Spain to remind people to stay indoors as part of the efforts in those countries to contain COVID-19.
(2) Research conducted by the UK Department for Transport has found that a drone weighing just 0.4kg is capable of smashing a helicopter windscreen, while a slightly larger drone weighing over 2kg could seriously damage airplanes at higher speeds. There are already ample recorded instances from around the world of drones causing significant disruption to civil aviation operations. In August 2019 an Airbus A320 with 186 passengers was forced to take emergency evasive action to avoid colliding with a drone that was flying more than four times above its maximum permitted height near Gatwick Airport. Closer to Malaysia, in June 2019 the sighting of unregistered drones hovering over Changi Airport in Singapore resulted in the delay of 37 flights.
This article was first published in Issue 1/20 of Legal Insights – a SKRINE Newsletter.
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