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    02:14 AM Kenneth Lim Chi Shen (Practice Trainee, WongPartnership LLP)

    A Morning with “Drones” – Report on the SMU CLE Seminar on “Using “Drones” in Singapore: An Analysis of the Unmanned Aircraft (Public Safety and Security) Act 2015”

        

    The idea of whirring robots in the sky, taking meal orders, delivering food, or taking photographs conveys different images for different people. Recent reports of our national postage company SingPost successfully delivering mail to Pulau Ubin by “drone”, however, has sparked renewed interest in drone use as well as the tremendous potential held in this piece of technology.

    I had the opportunity two weeks ago, on 2 October 2015, to attend a CLE Seminar conducted by SMU Assistant Professor of Law Chen Siyuan on the boundaries of acceptable drone use in Singapore following recently enacted legislation. This report sets out key takeaways from the seminar, which was in part based on Assistant Professor Chen’s upcoming Singapore Law Review article titled “The Regulation of the Recreational Use of “Drones” for Aerial Photography and Videography: Comparing Singapore’s Unmanned Aircraft Act with Other Legislation”.

    Current legislative framework

    The legislative framework concerning drone use in Singapore comprises two pieces of legislation: the Air Navigation Order (Cap 6, 2014 Rev Ed) (“the ANO”) and the Unmanned Aircraft (Public Safety and Security) Act 2015 (No 16 of 2015) (“the UAA”).

    The ANO sets out important restrictions that would apply to drone use in Singapore:

    -       Altitude limit when outdoors (save for when there is a permit): Paragraph 72D provides that “small unmanned aircraft” may be flown outdoors for the purposes of recreation or research without a UA operator permit or an activity permit, so long as the aircraft is flown at an altitude not exceeding 200 feet above mean sea level and outside any restricted area, danger area, or any area within 5 kilometres of any aerodrome.

    “Small unmanned aircraft” is further defined in paragraph 72L in contradistinction to “large unmanned aircraft”, which is defined in paragraph 72L to mean “an unmanned aircraft with a total mass exceeding 7 kilogrammes”. The nature of the drone as an unmanned object capable of flight makes it likely that paragraph 72D (and similar paragraphs) will be applied to govern its use.

    -       Absolute “no-fly zones”: Paragraph 72E(1)(a) provides that unmanned aircraft cannot be operated “outdoors within the boundaries of any prohibited area”. “Prohibited area” is further defined in paragraph 2 to mean “an airspace of defined dimensions which is declared by the Chief Executive as an area above any land or territorial waters of Singapore within which the flight of aircraft is prohibited and is notified as such in the Aeronautical Information Publication or Notice to Airmen”.

    Interestingly, no reference is made in paragraph 72E(1)(a) or the definition of “prohibited area” in paragraph 2 to the “area within 5 kilometres of any aerodrome”. Strictly speaking, therefore, it may be said that paragraph 72E(1)(a) leaves open the possibility of drone use in such areas, so long as the drone operator obtains the appropriate UA operator permit or activity permit before the drone is flown.

    -       Duty to fly safely: Paragraph 72E(1)(b) provides that unmanned aircraft must not be operated indoors or outdoors in a manner “likely to endanger the safety of any person, aircraft or property”.

    The UAA introduces several amendments to the Air Navigation Act that results in the criminalisation of certain forms of conduct that could potentially involve drone use.

    -       Taking photographs of “protected areas”: Section 8(a) makes it a criminal offence to take photographs of any part of protected areas using equipment on board an unmanned aircraft. Should such photographs be taken, persons operating the aircraft (as well as the person taking the photograph if not the operator) face fines of up to $20,000, jail terms of up to 12 months, or both, regardless of their knowledge of the protected area or the fact that the unmanned aircraft had equipment on it capable of taking photographs while flying.

    -       Flight over protected area: Section 9 makes it a criminal offence to fly an unmanned aircraft over any protected area without authorisation and a permit from a competent security officer. Every operator found in breach will face fines up to $20,000, jail terms of up to 12 months, or both, regardless of the operator’s knowledge of the protected area.

    -       Carrying dangerous materials while flying: Section 9 also makes it a criminal offence if an unmanned aircraft carries “prohibited items” such as explosives, weapons or radioactive material in the course of flight. Operators of such unmanned aircraft face fines of up to $100,000, jail terms of up to 5 years, or both, regardless of the operator’s knowledge that the aircraft had been carrying such an item.

    -       Discharging anything while flying: Section 9 also makes it a criminal offence if an unmanned aircraft discharges anything (whether gaseous, liquid or solid) mid-flight due to want of reasonable care on the operator’s part. Operators found in breach face fines of up to $20,000 if convicted.

    -       Risky flying or flying in breach of written law: Sections 13 and 17 give authorities the power to order stoppage of an unmanned aircraft’s flight, assume control of the aircraft or confiscate the aircraft should the aircraft be operated in a risky manner or in breach of any written law. Should the operator not comply with orders issued by such authorities, they will face fines of up to $20,000, jail terms of up to 12 months, or both.

    -       Disruption, interference, delay or obstruction with a “special event”: Section 16 makes it a criminal offence if an unmanned aircraft disrupts, interferes with, delays or obstructs the conduct of any event gazetted as a “special event”. Operators face fines of up $20,000, jail terms of up to 12 months, or both unless the operator can show that such flight did not result from any want of reasonable care on the operator’s part.

    The duties imposed by the UAA are not exceptional and it is unlikely that recreational (or even commercial) drone operators will take issue with them. More peculiar, however, are the restrictions and standards imposed by the ANO on recreational users of drones. Assistant Professor Chen took great pains to explain why these standards warrant reconsideration.

    Comparison with other countries

    On the face of it, the standards imposed by the ANO and UAA seem fair. Closer consideration of the weight, height and distance limits imposed by the ANO, however, would reveal that barely any room has been left for the meaningful use of drones in recreational photography.

    The following table, reproduced from the preview of Assistant Professor Chen’s upcoming article, compares the positions taken in various jurisdictions as regards drone use.

    Jurisdiction

    Weight limit

    Speed limit

    Height limit

    Distance limit

    FPV only

    General caution

    Training required

    Permit required

    Singapore’s Air Navigation Order (1992)

    7 kg

    NA

    200 feet above mean sea level

    >5km from aerodrome

    NA

    Ensure not a hazard

    NA

    If exceed height, distance or weight limits or for commercial activity

    United States’ PP107 (proposed 2015)

    25 kg

    100mph

    500 feet above ground level

    At least 3 miles visibility

    Not allowed

    Ensure not a hazard

    Knowledge test

     

    Recurring test

     

    Vetting

     

    Certification

     

    Inspection

     

    Reporting

    NA

    United Kingdom’s ANTOR (revised 2015)

    20 kg

    NA

    400 feet vertically and 500 feet horizontally

     

    Outside aerodrome traffic zone

     

    >150 m from congested areas

     

    >30-50m of any vehicle, structure or person

    Not allowed

    Ensure not a hazard

    NA

    If for paid commercial activity

    Australia’s CASA regulations

    NA

    NA

    400 feet

    > 5km from aerodrome

    >30 m from people

    Not allowed

    Ensure not a hazard

    NA

    If for paid commercial activity

    Hong Kong’s CAD regulations

    7 kg

    NA

    300 feet above ground level

    NA

    Not allowed

    Ensure not a hazard

    NA

    If for paid commercial activity

    India (some states), Morocco, Thailand, United Arab Emirates

    Outright ban

    Outright ban

    Outright ban

    Outright ban

    Outright ban

    Outright ban

    Outright ban

    Outright ban

     

    It becomes clear from a quick reading of the table that the weight, height and distance limits imposed in Singapore are stricter than those in other jurisdictions, or at least those jurisdictions that have not gone the extreme of banning drone use entirely.

    Assistant Professor Chen observed three possible reasons for this, before explaining why they are based on fears that are either misinformed or overplayed.

    Possible motivations for Singapore’s current framework (and response)

    -       Safety: Height and weight limits have often been justified on the basis of “safety” concerns. In Assistant Professor Chen’s words, “the image of an object of not insignificant weight dropping from the sky… will always have a visceral effect, especially if the drone is flown over a densely populated and/or culturally valuable place.” Distance limits have been justified on the basis of fears that a drone may fly into the path of a civilian aircraft, for example, and cause such aircraft to crash. Restrictive standards as regards drone use, in general, have also been justified on the basis of fears that terrorists could use such technology to drop bombs and other hazardous substances.

    Assistant Professor Chen was quick to point out several reasons why these concerns do not go far in justifying current standards. For one, incidents of drone crashes are infrequent and are often due to human errors that were in fact quite avoidable. Failure to execute mandatory pre-flight procedures, flying in bad weather or the operator pushing the speed/altitude/battery-life limits of the device are just some of the more common reasons. A better legislative approach would be to target and punish bad practices instead of circumscribing the freedoms of drone users across the board. Secondly, fears of drones being used for terror purposes must be realistically examined and put in their proper context. Mainstream recreational drones have neither the capacity; speed; precision nor battery-life to execute maneuvers such as those that are feared. If the concern is terrorists who use self-manufactured drones to carry out nefarious schemes, such terrorists will carry out their plans regardless of any legislation in place.

    -       Privacy: Concerns of “privacy” also feature prominently in matters of drone legislation. Fears that drones would be used voyeuristically by deviants and perverts to spy on residents in high rise buildings, for example, may explain the height limits in Singapore that are comparatively lower than those in other jurisdictions. “Privacy” in the sense of “a right to peace and tranquility” could also explain why the Singapore National Parks Board chose to ban the use of drones in all of its parks. Singapore’s reservoirs have gradually followed suit.

    Assistant Professor Chen was quick to point out, however, that while superficially attractive, fears that drones could be used to conduct close-surveillance or voyeuristic pursuits may be the furthest removed from reality. The sound produced by drone rotors and propellers is comparable to that of a grass-cutter. Coupled together with the eminent visibility of blinking lights currently mounted on drones available on the market, it is extremely unlikely that any drone currently available on the market will be effective in recording photographs or video without alerting the subject in question. As regards fears that drones may be used to capture photographs or video footage in restricted areas, existing trespass laws should be tweaked instead of passing new legislation to restrict all forms of drone use.

    As for the argument that drones should be restricted because the noise emitted from them is disruptive to peace and tranquility, Assistant Professor Chen points out that the noise emitted by a drone in the sky is but comparable to the volume of “groups of people talking”. In any event, the same argument should lead to most forms of land vehicles being outlawed, because such vehicles not only pollute the environment; they contribute significant amounts of noise pollution as well.

    -       Preserving commercial monopolisation: Assistant Professor Chen also highlighted, finally, that Singapore’s drone regulation could have been generally influenced by concerns that a culture of liberal drone use may lead to disruption of deeply vested commercial interests. Organisers of high-profile sports and entertainment events charge high premiums for official photographers and videographers to have exclusive media coverage licenses. Restrictions on drone use, therefore, may be seen as protecting the commercial value of such licenses.

    Such reasoning, however, may be criticised for its mistaken premise that event organisers and event broadcasters are in the first place entitled to the exclusive rights they assert. Persons living in high-rise buildings next to an open-air event, Assistant Professor Chen points out, have never been precluded from observing the event from their respective vantage points. Parity of reasoning should mean that drone users are entitled to capture footage of the event using a drone, so long as the drone does not intrude into the physical space of the premises, and more importantly does not pose a safety hazard to persons in crowded areas.

    Suggestions for legislative reform

    In light (or in spite) of the issues discussed above, Assistant Professor Chen had the following recommendations for lawmakers who might be contemplating further legislative reform:

    -       Weight limit: Singapore’s net weight limit of 7 kilogrammes ties Singapore with Hong Kong as the jurisdictions with the lowest weight limit among those that have not banned drones entirely. That said, Assistant Professor Chen did not take serious issue with this, pausing only to observe (especially after a member of the audience commented) that heavier drones have in fact a lower chance of mishap, since heavier drones are less vulnerable to wind changes and are more likely to have “propeller redundancy”, which means that sufficient propellers are mounted on the drone such that it will remain aflight even if one or more propeller fails.

    -       Height and distance limits: Assistant Professor Chen took great pains to explain that a vertical limit of 400-500 feet above ground level (similar to the limits in Australia, the United Kingdom and the United States) should be high enough to facilitate capture of meaningful landscapes and vistas, while being low enough to ensure safe flight and landing using existing technologies (first person views, wireless transmissions and emergency homing, for example).

    In Assistant Professor Chen’s view, the current prohibition of flights within 5 kilometres of any aerodrome is problematic because the definition of “aerodrome” is very broad, extending to include not just airports, airbases and airstrips but even helicopter landing pads as well. Considering that Singapore runs only 40-odd km from east to west and 20-odd km from north to sound, he commented colloquially that not many avenues for drone flight are in reality open to recreational drone photographers beyond the oft-photographed Marina Barrage. In this light, Assistant Professor Chen recommended narrowing the definition of “aerodrome” to cover only airports and airbases, so as to more fairly balance the competing concerns and interests applicable to this subject.

    -       Speed limit: Singapore’s laws do not presently impose speed limits on drone flight, but Assistant Professor Chen did not think it likely that people would object to regulators imposing speed limits for drones as low as 20-30 kilometres per hour, since safety concerns of drones colliding with other objects at high speeds, or drones malfunctioning due to their not being equipped to handle high speeds or sudden descents have to be given weight. Furthermore, there does not seem to be reason to fly drones at speeds greater than that.

    -       Training and certification requirements: Singapore’s drone laws do not currently impose training and certification requirements on drone users. In Assistant Professor Chen’s view, this legislative position should not change in the near future since commercially available, “ready-to-fly” drones are remarkably easy to handle even without didactic instruction.

    Conclusion

    The fact remains that drone technology at present is still relatively unknown. To quote Assistant Professor Chen, the “unknown” can easily be mistaken as the “unknowable” and subsequently be used to justify disproportionate and over-reaching regulation. One can hope, however, that the recent reports of drones being used for good, if not the many panoramic landscapes that would not have been possible without the use of drones, will inspire lawmakers to consider amendments that will open up new horizons and new opportunities for drone use in Singapore.

    * This blog entry may be cited as Kenneth Lim Chi Shen, “A Morning with “Drones” – Report on the SMU CLE Seminar on ‘Using “Drones’ in Singapore: An Analysis of the Unmanned Aircraft (Public Safety and Security) Act 2015”, Singapore Law Blog (28 October 2015) (http://www.singaporelawblog.sg/blog/article/143)

    ** A PDF version of this entry may be downloaded here

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