Aviation Law

Aviation law is comprised of the laws and rules relating to air travel, air safety and the general use of airspace. In Australia, air navigation and air safety is overseen and regulated by two agencies, Airservices Australia and the Civil Aviation Safety Authority (CASA).

CASA is the primary authority for licensing pilots, registering aircraft and regulating the use of airspace, including those uses forming part of some further space-based activity. Space activities that will be most heavily regulated by CASA include:

• Commercial space travel;
• the use of hybrid aerospace vehicles that may be characterised as unmanned aircraft, as well as remotely piloted aircraft; and
• the operation of a high power rocket.

CASA’s primary mission is to ensure the safe use and management of Australian airspace. Whilst a space-based operator may only be operating in Australian airspace for a short period, CASA must ensure its use is harmonious and safe with respect to other users at that time, for example, the activities of commercial air carriers.

CASA is also responsible for ensuring that Australia complies with its international obligations of air safety and licensing. Many of the regulations imposed on domestic air users in Australia are reflections of international air safety rules.

The International Civil Aviation Organisation (ICAO) is a United Nations specialised agency and the foremost international authority on civil aviation. The ICAO was formed to administer the 1944 Convention on International Civil Aviation (‘Chicago Convention‘), a treaty with 193 member states including Australia.

Article 37 of the Chicago Convention allows the ICAO Council to create Standards and Recommended Practices (SARPs) in relation to civil aviation rules, drafted in the form of ‘annexes’ to the Chicago Convention.

SARPs are not binding on member states such as Australia. However, under Article 38 of the Chicago Convention, any member state with alternative rules or regulations to the SARPs must file a ‘difference’ with the ICAO and they are binding in respect of aviation activities in international airspace. Furthermore, compliance with SARPs by an air carrier of one nation facilitates the operation of that air carrier in another nation. Generally, there is a strong impetus to comply with SARPs as far as possible.

The intersection of national and international airspace necessitates the existence of uniform and harmonious civil aviation rules such as the SARPs. Member states rely on these SARPs to ensure uniform implementation of services including Air Traffic Management.

The Australian Space Agency is responsible for promoting Australian space industry and administering Australian space regulations.

CASA does not regulate space activities specifically, rather it regulates the airspace through which those activities are conducted. If a space activity is to be conducted in Australian airspace, CASA will need to be satisfied that it will not jeopardise the safety of other users of that airspace.

CASA designates any rocket that is not a ‘model rocket’ as a ‘high power rocket’. This means that a rocket will be considered a high power rocket if it contains the following characteristics:

• It has a weight greater than 1.5kg; and
• It has a total impulse greater than 320N; or
• It is a ‘commercial rocket’ including:
  • • Sounding rockets;
    • Space launchers;
    • Sub-orbital rockets; and
    • Rockets capable of exceeding an altitude of 60,000ft.

This definition means that the vast majority of commercial rocket activity will involve ‘high power rockets’ and will be subject to the stricter conditions imposed by CASA under Part 101.H of the CASR.

In addition to the conditions set out under Part 101.H of the CASR, you will need to receive any relevant permits and approvals from the Australian Space Agency prior to launching your high power rocket.

A CASR high power rocket may only be operated in an area designated and approved by CASA. Under the Advisory Circular on Unmanned Aircraft and Rockets, CASA recommends contacting your local rocketry club for sites which have previously received high power rocket authorisation.

CASA has strict guidelines regarding appropriate sites for the launch of CASR rockets, including recommendations on suitable types of area.

In general, and unless in a previously approved area, approval will have to be sought from CASA or Airservices Australia when operating a high power rocket in the following circumstances:

• Launches beyond a distance of 400 feet above ground level and/or within 3 nautical miles of an aerodrome;
• Launching at night, into a cloud or in conditions other than visual meteorological conditions; and
• Launching into controlled airspace (including an aerodrome).

CASA restricts certain conduct during the operation. These restrictions may require more active engagement in the launch of the high power rocket by an operator, they include:

• Launching into restricted or prohibited airspace, except with approval from the authority controlling the area;
• dropping or discharging anything from the high power rocket that may be a hazard to an aircraft; and
• operating the high power rocket in any way that may be hazardous to aircraft, another person or property.

CASA does not require you to formally register you high power rocket beyond the information required prior to a launch.

Whilst CASA does not require insurance for your high power rocket, you may be required to get insurance if your high power rocket is subject to the Space (Launches and Returns) Act 2018 (AUS).

Separately, you may be insured by your local rocketry club’s cover If you choose to launch with them and become subject to their policy.

Users seeking to conduct space activities in Australia may want to use remotely piloted aircraft (RPA) or autonomous vehicles as a part of their launching system. These are classifications of ‘unmanned aircraft’, and CASA is the primary authority in charge of regulating both types of vehicles.

Autonomous vehicles are vehicles which have no human intervention at any stage during their flight. CASA has identified RPAs as their primary regulatory focus with respect to unmanned aircraft, as such comprehensive regulations on autonomous vehicles are not currently within their scope of reform.

If you are operating a multi-stage launch system that includes a remotely piloted aircraft component, you will likely be subject to CASA’s regulations on RPAs. RPAs or ‘drones’ are subject to operating conditions both recreationally and commercially.

If you are operating an RPA commercially, for a purpose other than fun and recreation, you may need a Remote Operator’s Certificate (ReOC) or a Remote Pilot’s License (RePL). The types of conditions that apply are as follows:

• RPAs over 2kg – both a ReOC and a RePL is required and subject to General Operating Conditions (GOCs).
• RPAs under 2kg – part of the ‘excluded’ category and subject to Standard Operating Conditions (SOCs).

CASA is developing a registration and accreditation scheme for those wishing to operate RPAs recreationally and domestically, however, this is not yet in effect.

The scheme will likely restrict the age of those who may operate an RPA, as well as including an accreditation fee and a compulsory education course. For more information on the scheme, click here.

Whilst CASA does not require insurance for RPAs, it is highly recommended that you get cover for any damage or loss to third parties.