Comcover
COMCOVER CONNECT
2015 I ISSUE 04
From Robert’s desk …
The end of the year is a busy time for all of us, but it provides an opportunity to reflect on the
last 12 months.
The Commonwealth Risk Management
Policy has been in operation for nearly
18 months and, as more Commonwealth
entities come to grips with it, there is a
greater understanding of good risk practice.
Last month I presented at the Risk
Management Institution of Australasia’s (RMIA) annual
conference. The Adelaide Oval was an excellent venue and the
quality of the presentations generally very high.
A common theme at the conference was that risk culture and
risk appetite are universal concepts, regardless of whether an
entity is public or private.
My presentation dealt with the public sector’s appetite for risk
and how it is influenced by culture. Drivers for this behaviour
include a general inability on the part of the public service to
discuss or acknowledge when things go wrong or fail.
However, sometimes things don’t work and we can learn from
that.
In a speech to the National Press Club last year, the now
Prime Minister, the Hon Malcolm Turnbull MP, said one of the
public service’s biggest challenges was overcoming: ‘A culture
where the penalties for failure are vastly out of proportion to
the rewards for success.’
As public servants know, cost savings rarely, if ever, make
newspaper headlines, but cost overruns do. But not taking
risks is a risk in itself—it is a well-known legal principle that
failing to do something can be as negligent as actively doing
something.
Failure can be useful if we learn from it and share the
reasons for it. We should allow ourselves to take risks, and
even fail—but fail quickly at a low cost and learn from those
failures.
In that sense, it is about differentiating between blameworthy
failure and praiseworthy failure.
Blameworthy failures are mistakes that result from a lack
of attention to detail, administrative incompetence or poor
Comcover, the Australian Government’s selfmanaged insurance fund, provides insurance and
risk management services to the government sector.
Comcover was established in 1998 and is administered
by the Department of Finance.
process. Praiseworthy failures result from innovating and
taking deliberate risks in line with the organisation’s appetite
and tolerance for risk.
To do this, entities and the people within them need to know
how to take risks and innovate and possibly fail. That means
improving the way we identify and explain our appetite for risk.
Linked to this is the need for a positive risk culture that
promotes a proactive approach to managing risk and looks at
threats and opportunities. If the culture is right, when failures
occur the organisation examines the underlying causes and
applies controls to lessen the impact of that risk in the future.
Award winners highlighted
Two Fund Members that demonstrate positive risk cultures
were winners of Comcover’s 2014 Awards for Excellence in
Risk Management—the Australian Maritime Safety Authority
(AMSA) and the Department of Defence.
Both teams presented at the RMIA conference, talking about
their achievements and how they got there. The previous
issue of Comcover Connect highlighted Defence’s Counter
Improvised Explosive Devices Taskforce that is saving the
lives of soldiers and civilians.
This issue profiles AMSA’s work in saving lives at sea by
reducing cargo liquefaction (see pages 2-4).
Risk is in the air
I would like to share with you an example from the aviation
industry that relates to risk culture.
The November issue of Boss magazine featured an interview
with the CEO of Virgin Airlines Australia, John Borghetti, who
referred to a corporate ‘atmosphere’ or ‘feeling’ he wanted
to create. Mr Borghetti led from the front by providing his
contact details to every pilot when he first started in the job
and inviting them to contact him to discuss any issue.
He said: ‘If they’re calling to waste my time, I’ll tell them. If
they’re calling with information, I’ll be grateful.’
I echo his sentiment. Please feel free to contact me about issues
of concern to you and your organisations. I can be contacted on
(02) 6215 1628 or at robert.antich@finance.gov.au.
On behalf of everyone at Comcover, I wish you and your
families a safe and happy Christmas and New Year.
Robert Antich | Assistant Secretary
Risk, Insurance and Special Claims (Comcover)
Department of Finance
W: www.comcover.com.au E: comcover@comcover.com.au
T: 1800 651 540
COMCOVER CONNECT
Risk management saves lives at sea
The Australian Maritime Safety Authority (AMSA) has used a strategic risk management approach to improve
shipping practices, helping to ensure Australia’s mineral exports are transported safely.
AMSA’s work was recognised at the 2014 Comcover Risk
Management Awards for Excellence where the entity won the
risk initiative category.
Australia is the largest exporter of iron ore, exporting about
613 million tonnes a year—half the world’s production.
Australia relies almost exclusively on shipping to export
mineral resources.
The liquefaction of bulk-ore cargoes is an extreme risk that
can occur during transportation when iron-ore fines come
into contact with moist air or water. Combined with vibration,
that results in a loss of cohesion between the ore particles.
The ore changes its characteristics and acts like a liquid,
potentially destabilising a vessel and causing it to capsize,
often suddenly.
From 2009 to 2013, 70 lives were lost and nine ships sank due
to cargo liquefaction by a range of minerals, including iron ore.
AMSA’s key priorities are maritime safety, protecting the
marine environment and ensuring the safety of ships and
crew—summarised in its vision statement: Safe and clean
seas, saving lives.
Recognising the challenges and risks of liquefaction of ironore fines, AMSA adopted a risk management approach to
improve shipping practices to help ensure safe transportation
of Australia’s major mineral exports.
AMSA has taken a lead role to highlight the risk to the
international maritime community; develop better testing,
shipping and handling processes; and ensure the processes
were implemented.
AMSA identified critical concerns in addressing the problem:
• Regulatory bodies disagreed on cargo properties.
• There were no tests that could accurately determine
if a particular iron-ore fine would liquefy and material
properties were not understood.
• Insurers applied their own requirements unilaterally to
address perceived risk.
• There was inconsistent application of ineffective controls by
different countries.
• Seafarers’ lives were being put at risk and fatalities were
occurring.
AMSA needed to convince the international maritime
community of the need to recognise that iron-ore fines posed
specific hazards when shipped; existing testing requirements
were inadequate and burdensome; and there was an urgent
2 | COMCOVER CONNECT
need to implement a new approach to protect lives.
AMSA was aware that advancing changes to international
maritime handling and shipping practices for mineral ores
could take years.
AMSA established a technical working group led by Australia
and worked with the International Maritime Organization
(IMO) Secretariat, insurers, industry bodies, international iron
ore producers and critical member countries (Brazil being the
most important) to develop a research and consultation path
to build knowledge and identify effective controls.
The research led to better understanding of the mechanics of
liquefaction of mineral ores and development of a ‘real-world
test’ that is accurate, reliable, and can be easily conducted on
bulk-ore cargoes.
AMSA mobilised an international team of stakeholders
to build support for proposed changes with other
administrations and persuade IMO to allow early
implementation.
The IMO Secretary General described the effort and activity to
establish requirements for safe carriage of iron-ore fines as
unprecedented.
A key benefit of improved handling and transit processes has
been the immediate enhancement of safety for seafarers and
vessels. Only one ship carrying iron-ore fines has foundered
since improved shipping and handling practices were adopted.
The benefit to Australia’s resources sector is significant. The
work has ensured 613 million tonnes of cargo has regulatory
certainty at national and international levels. It has reduced
uncertainty and costs associated with transport, including
insurance premiums, ensuring a level commercial playing
field for a vital Australian commodity and financial contributor
to Australia’s economy.
AMSA’s work has fostered a greater sense of cooperation
between nations and increased cooperation between industry
and the Australian Government. Industry stakeholders now
have a greater understanding of IMO processes, how they
can influence outcomes, and how they can support AMSA
representations through technical, scientific, commercial and
market research.
Another major benefit is that research conducted during the
project is relevant to all ore bodies shipped in bulk, such as
coal and bauxite, ensuring greater risk mitigation and better
safety and economic outcomes for countries that rely on the
mineral resources sector.
AMSA embarks on myth busting
Myth busting was the key challenge for the Australian Maritime Safety Authority’s (AMSA) Ship Safety team
when it embarked on a program to save lives by stopping ships sinking because of liquefaction of mineral
cargoes.
Alex Schultz-Altmann, AMSA’s Manager, Ship Inspection and
Registration (Ship Safety), said in an interview with Comcover
Connect, there was a common assumption iron ore was a
‘group C’ cargo—supported by its category in the mandatory
International Maritime Solid Bulk Cargoes Code—which
meant it was not subject to liquefaction. The assumption was
wrong, but it was a complex process to dispel the myth.
Mr Schultz-Altmann likens ore liquefaction to beach sand,
which changes its properties the closer you are to the water
line. ‘Iron ore is fine and granular when it’s dry. At the wet dry
stage, it supports a lot of weight. Then, as the water pressure
wells up, you sink and it moves easily.’
Simplistically, that is what can happen to iron ore when you
add water. Its density changes, it liquefies and that can cause
a bulk carrier to list or overturn.
Iron ore’s propensity to liquefy was a surprise but, once the
AMSA team understood that, it needed the science to prove it.
Initially there was some industry pushback because of a fear
of unnecessary over-regulation.
Mr Schultz-Altmann and his team worked with industry to
develop a ‘real-world test’ that could be calibrated against
large-scale, detailed laboratory testing to determine the
threshold moisture level (TML) and safe benchmarks to carry
specific mineral cargoes.
‘We can discount cargoes that won’t liquefy and therefore do
not need testing. For other ores, we err on the side of caution.
The test is quite conservative,’ he said. ‘The TML tests are
repeatable, we know it works, and we can prove it. It is almost
fail-safe.’
The mineralogy of iron ore is assessed and, where necessary,
it is now routinely tested to determine its TML before it goes
into stockpiles awaiting shipment.
While the process was developed, AMSA worked concurrently
with members of the International Maritime Organization
(IMO), with the assistance of Australian industry, to have
the test and associated science accepted globally. At first,
Brazil, another major iron ore exporter, was resistant. After
discussions with AMSA officers Brazil agreed to a joint
research programme and, once the science was verified
by the Imperial College in London, the mood shifted from
loggerheads to agreement, with active support internationally
for the test and revised carriage requirements.
‘AMSA worked with the IMO on building a co-operative
approach with stakeholders,’ Mr Schultz-Altmann said.
It required more than just understanding the science; it had to
be implemented in a practical way. ‘The international industry
and governmental co-operative effort was quite spectacular,’
he said.
After iron ore, the global co-operative approach moved to
manganese ore, which was dealt with relatively simply and
quickly.
Coal was next with research indicating that of 105 Australian
and international grades tested, only 14 posed no liquefaction
risk. A greater number of coal exporters and varied coal
blends mean the process is more complex than for iron and
manganese ores.
But Mr Schultz-Altmann is confident there will be a
recommendation by September 2016 to change the IMSBC
Code requirements for shipping coal. The recommendation
would then go to IMO’s safety committee for finalisation.
Ship owners’ mutual insurers, known as protection &
indemnity clubs, are supporting the process and providing
technical advice to regulatory authorities that are ‘struggling’.
The environment is now a lot more collaborative than when
the process started in 2012.
The AMSA Ship Safety team’s next target is bauxite. On 1
January 2015, the Bulk Jupiter sank off the Vietnamese coast
while transporting 46,400 tons of bauxite from Malaysia to
China. Only one of the 19 crew was rescued.
Mr Schultz-Altmann says not all bauxite is prone to
liquefaction, ‘it depends on the material’s mineralogical
properties, essentially what it’s mixed with’. Australia is one
of the world’s largest shippers of bauxite but research has
shown materials currently shipped from Australia do not
have a risk of liquefaction. However, work is ongoing as other
miners consider exporting.
The AMSA team is gaining a greater understanding of bauxite
and was successful, with the cooperation of international
partners and industry, in having a correspondence group
established at IMO to examine solutions to be presented at the
IMO Carriage of Containers and Cargoes subcommittee’s next
meeting.
Mr Schultz-Altmann says industry has been very active and
supportive in the process. Initial fears AMSA and its
international partners were creating barriers to trade have
been allayed by a realisation that understanding the risk
(including being able to determine the TML of material) and
putting controls in place makes ships safer, which saves lives
and reduces the risk of higher insurance premiums.
Despite having the backing of proven science, AMSA and
other stakeholders had to engage in high-level diplomacy,
which occurred at three levels: competent authorities, that
is, the countries’ regulatory organisations that classify bulk
cargoes and approve shipping methodologies; governmentlevel foreign affairs and trade portfolios; and industry
engagement.
‘We needed to structure the message so it was the same at
all three streams,’ Mr Schultz-Altmann said.
He says a key factor in AMSA winning the risk management
award was the speed with which it was able to achieve such a
complex, global agreement.
COMCOVER CONNECT | 3
Focus risk management
on things that matter
most
Assessing risks from the ‘bottom up’ can
sometimes be overwhelming, with more
risks identified than can be effectively
focused on.
In this case study (see pp 2-3), AMSA has
demonstrated the value of focusing on risks that
most directly affect the potential achievement of
the authority’s strategic objectives—the things that
must go right.
Maritime safety is a key AMSA priority, and
exporting iron ore from Australia a key national
economic focus. Identifying the potential for
uncontrolled iron ore liquefaction as a standout
risk to both those strategic priorities enabled
AMSA to focus the appropriate effort and
resources on the challenge. In doing so, AMSA
tackled an issue of direct and immediate relevance
to its vision: Safe ships, clean seas, saving lives.
Stakeholder engagement
Stakeholder identification is an important element
of the ‘Setting the context’ step of the ISO31000
risk management standard. The increasingly
interconnected and interdependent nature of
government, society and the economy means few
‘big risks’ can be managed solely by an individual
entity.
International maritime trade is controlled by a
complex network of international organisations,
treaties and codes. AMSA demonstrated the
value of early and structured identification of, and
engagement with, stakeholders when dealing with
complex and shared risks.
Brokering and progressing within those
arrangements was not straightforward, with many
different working groups and national perspectives
involved. AMSA worked to identifying the stance
of various stakeholders, targeted individual
stakeholders to maximise support, and mobilised
support from industry in Australia and overseas.
Measuring performance
Risk management’s purpose is to achieve better
outcomes and should be measured and tested to
enable continuous improvement. AMSA was clearly
able to demonstrate hard and soft outcomes from
its risk management efforts.
Most immediately, reduced shipping losses is a
positive economic and human result. However,
AMSA also improved the efficiency of related
processes (avoiding the need for tripartite approval
of arrangements for carriage of each cargo load),
improved risk awareness and understanding in
that area, and strengthened cooperation with
industry and across government.
4 | COMCOVER CONNECT
Managing employment
practices liability claims
Comcover hosted a discussion forum on employment
practices liability (EPL) on 18 November 2015 at the
National Portrait Gallery, Canberra.
The event was well-attended, with most Fund Members
represented.
Robert Antich, Assistant Secretary, Risk, Insurance and
Special Claims Branch, opened the event and emphasised the
need for Commonwealth entities to involve Comcover early
when managing EPL claims. He discussed the advantages
of developing a relationship with Comcover and encouraged
Commonwealth entities to manage employment liability risks
proactively and systematically.
Russell Williams, manager of the Gallagher Bassett claims team,
discussed liability trends and themes, and outlined strategies
senior managers and practitioners could use to reduce costs and
better manage risks.
Mae Gan, Senior Legal Counsel for the Commonwealth Scientific
and Industrial Research Organisation (CSIRO), spoke about the
significant benefits of working in partnership with Comcover
to develop a joint strategy to manage EPL claims. She shared
CSIRO’s experiences in implementing practical strategies,
including procedures and training for educating CSIRO staff in
dealing with employment practice issues.
Tim McDonald, National Workplace Practice Leader at Moray
& Agnew, provided the perspective of a legal service provider
managing employment-related disputes on the Commonwealth’s
behalf. He emphasised the need for entities to follow agreed
processes in managing performance issues and the importance
of accurate and clear record keeping.
The final speaker was Barbara Deegan, former Commissioner
of the Australian Industrial Relations Commission, Fair Work
Australia and the Fair Work Commission from 1996 to 2014 and
now a consultant with law firm Ashurst. As a long-serving and
distinguished decision-maker, she provided a view ‘from the
bench’, arguing that the Commonwealth could and should be
held to high standards in conducting litigation and acknowledging
the difficulty in managing unrepresented litigants.
Comcover encourages all Commonwealth entities to involve
Comcover as soon as possible in management of EPL claims.
Early intervention can assist in developing a proactive joint
claims management strategy, reducing the financial and
resource impact on the entity.
If you have any general questions about EPL claims, please
contact Fleur Lamb, Director – Comcover Claims, on
1800 654 540.
ATO to harness benefits of integrated information
The Australian Taxation Office is reinventing itself to be a contemporary service organisation with ‘clients at
the centre of everything’.
Jodie Thomas, Executive Director, ATO Corporate, said
implementing streamlined, modern governance processes was
part of that journey and technology was critical to moving from
being ‘clunky’ and ‘process rich’ to contemporary and agile.
Ms Thomas is overseeing implementation of software system
Protecht.ERM and brims with enthusiasm for the changes it is
heralding at ATO.
She told Comcover Connect she sees greater opportunities
for process automation that extend beyond the initial goal of
improved governance and risk management.
‘Our goal is to be more modern, holistic and transparent and to
move up the value chain by focusing more on the value-add
and less on routine activities that can be automated,’ she said.
Before Protecht.ERM, governance and risk information
was stored in silos—sometimes paper-based, sometimes
in databases or Microsoft SharePoint. The goal was for
information to be centralised and easily accessible.
ATO conducted extensive market research, talking to product
vendors, other government entities and large corporations
to gather information. A common factor among the most
efficient organisations was their use of information and
governance software systems.
Since making the decision to engage Protecht last July,
ATO now has the first four business processes— financial
assurance, internal compliance, quality, and risk
management—in final testing or going live.
Ms Thomas said implementation was iterative with more
business processes planned.
While ATO had modernised policies and processes over the
past two years, ‘even the best processes are still
disconnected if they’re on paper or in silos’. Technology was
enabling ATO to be more effective, Ms Thomas said. Her aim
was to see every paper-based governance function brought
into a one-stop shop, she told Comcover Connect.
The core driver for implementing Protecht.ERM was achieving
‘a lighter touch’ while maintaining key controls; improving
governance; and providing better support for senior
management.
‘You can’t underestimate the value-add of having information
in one spot—it allows for a more informed discussion on risk,
compliance and governance generally,’ Ms Thomas said.
One streamlined function has seen ATO cut 80 per cent
of a previously predominantly manual workload. ATO’s
list of whole-of-government requirements currently
contains 564 line items and must be continuously
updated. Previously information was garnered from a
share drive, paper documents and contact with central
agencies. It is now locked into Protecht.ERM with
variance lists quickly and easily accessible.
Automation was making ATO ‘challenge how we do things’.
‘You have to communicate a function to build it electronically,’
she said.
Protecht.ERM offers real-time reporting and customised
dashboards. Ms Thomas says the system is easily revised if a
configured module is not achieving its goal.
Ms Thomas has a few suggestions for Fund Members
contemplating installing governance, compliance and risk
management software:
• Overestimate the amount of communication and support
needed during the roll out. Provide proper change
management and support across the agency for all end
users.
• Don’t skimp on system testing. Over-budget the time
needed and use the broadest range of people to test, from
power users to those who are reticent with IT.
• Have a productive partnership with the software provider,
those who own the processes, and the end users. Invest
time to get the tripartite relationship right.
And Ms Thomas’s final word of advice is ‘use the integrated
information you can now access—don’t just look at it’.
Reducing red tape
Implementing efficient risk information
management systems can reduce red tape.
The results from Comcover’s 2015 risk management
benchmarking programme reported 63 per cent of Fund
Members still used Microsoft Excel to capture, monitor
and report risk information.
Efficient management of risk data and information via
software system Protecht.ERM enables Fund Members
to focus more time and resources on decision making
because routine work involved in managing risk,
regulatory compliance, and detailed stakeholder incident
and event reporting is automated and streamlined.
Managing risks is more than just collecting risk data.
Protecht.ERM’s risk analytics and reporting module
is a key component of the system and can assist Fund
Members to:
• Produce highly sophisticated tabular reports and
graphical dashboards that can be tailored by users
with no need to revert to specialist IT teams or
Protecht, enabling Fund Members to be self-sufficient.
Once trained, users can configure the software to
precise agency-specific needs and protocols.
• Quickly and easily download reports and dashboards
into PowerPoint, Excel or PDF formats at the push of a
button.
• Email reports and dashboards at scheduled times or
on demand.
Protecht.ERM has been IRAP assessed, and can store
data to ‘protected’ security level.
Protecht CEO Alf Esteban said Comcover had
demonstrated foresight in realising that, with the
changed environment generated by the Public
Governance, Performance and Accountability Act, Fund
Members needed a software solution that could help
them achieve their risk management objectives and be
implemented quickly.
COMCOVER CONNECT | 5
Risk culture comes from the top
By Grant MacKinnon and Matthew Fraser, Deloitte
Elevating the conversation about managing risk is key to developing a positive risk culture in entities across
the Commonwealth.
A positive risk culture is evidenced when people instinctively
do the right thing, particularly in new or challenging
situations where policy direction and operating procedures
may be unclear as to the right course of action to be taken.
The Commonwealth Risk Management Policy defines risk
culture as ‘the set of shared attitudes, values and behaviours
that characterise how an entity considers risk in its day-today activities’.
An entity’s risk culture is a subset of its organisational
culture—specifically it influences the way people understand,
consider, discuss and take appropriate action in relation to
managing risk. A positive risk culture promotes an open and
active approach to managing risk that considers both threats
and opportunities.
Challenges that face entities in developing positive risk
cultures were discussed at the last of Comcover’s SES
breakfast series and risk management forums for 2015.
As part of the SES education programme, participants from
workshops conducted this year came together to consider the
challenges they faced in building positive risk cultures. The
breakfast was followed by a Comcover forum with more than
80 risk practitioners attending.
To assist in developing an unbiased view of the culture of
entities across the Commonwealth, participants were invited
to respond anonymously to a series of questions about their
perceptions of their organisations’ risk cultures via hand-held
wireless touchpads.
The responses were not unexpected for entities where the
risk conversation is beginning in earnest.
about identifying impediments to a positive risk culture starts,
it is then possible to systematically redesign and simplify an
entity’s operational and risk management approach.
Redesigning risk approaches requires innovation but,
concurrently, an entity must have confidence the efficacy of
risk management approaches is not undermined by change.
When respondents were asked whether they agreed or
disagreed with the statement ‘in my organisation there is a
willingness to think differently and try new things’, only 41 per
cent agreed.
That demonstrates a need to understand the drivers of
the perceived reluctance to innovate and develop targeted
actions to overcome the challenges of innovation. Past events,
including adverse media or ministerial attention, may often be
a factor.
It is concerning that 53 per cent of respondents disagreed
with the statement ‘people challenge others constructively if
they think they’re not doing the right thing’.
That can undermine a positive risk culture because potentially
damaging behaviour is not being called out in a way that is
conducive to a climate of transparency.
Only 51 per cent of respondents agreed with the statement
‘risk management concerns are discussed openly and
honestly’, demonstrating further work needs to be done in
assisting entities to develop positive risk cultures.
Comcover acknowledges that, while the forum’s sample
size was small, insights garnered highlight issues that face
entities in understanding the importance of developing
positive risk cultures.
Asked whether risk culture was different to organisational
culture, only 51 per cent of forum participants disagreed or
strongly disagreed, meaning 49 per cent were unaware they
were the same thing.
That demonstrates the need for further conversations on
the importance of considering an entity’s risk culture in the
context of its organisational culture.
Leadership is essential to drive a different approach. In any
entity, the positive tone from the top must be consistently
heard at all organisational levels.
Events calendar 2016
In the forum, 53 percent of respondents agreed with the
statement ‘leaders/supervisors tend to be cynical about risk
and compliance policies, processes and procedures’.
Comcover Risk Management Benchmarking
Survey 2016 – 18 January to 4 March
Even with strong risk awareness, cumbersome processes
detract from a positive tone. Where there is a desire to
streamline operations, it is critical that risk management
processes keep pace with operational changes.
SES Discussion Forum: Exploring risk
appetite and tolerance – 10 March
In response to the statement ‘the time required to complete
risk management activities exceeds the value they add’, only
46 per cent of participants disagreed.
That result is potentially concerning, however it provides an
opportunity to find where problematic processes might exist
and systematically address them. Once the conversation
6 | COMCOVER CONNECT
January
to March
Seminar: Exploring risk appetite and
tolerance – 10 March
SES Workshop: A strategic perspective to
managing risk – 30 March
Battle of the drones – legal issues for high flyers
By Sophie Dawson and Daniela Lai, Ashurst
Drones have quickly progressed from being a science fiction-like futuristic concept to everyday devices
available in electronic stores.
They are increasingly used in domestic and commercial
applications, and by government entities.
There are still legal uncertainties with using drones
and Commonwealth entities must be aware of potential
implications of integrating the technology into their
operations.
Some key legal issues to consider include Civil Aviation Safety
Authority (CASA) regulations for remotely piloted aircraft,
surveillance and trespass laws, and privacy.
CASA regulations
CASA regulations restrict the operation of unmanned aerial
vehicles (UAVs), such as drones. The restrictions apply to
UAVs for purposes other than sport or recreation.
The regulations include that:
• UAVs must not be flown over restricted or prohibited areas
without written approval from the relevant authority
• UAVs must not be operated within 30 metres of a person not
directly associated with operating the UAV
• a person must apply for an area approval from CASA to
be permitted to operate a UAV above 400 feet or less than
three nautical miles from an airfield
• UAVs must operate under 400 feet without area approval,
given they meet all other CASA requirements
• UAVs must not drop or discharge objects that pose a risk to
aircraft, people or property
• a person or company may only operate a UAV for hire or
reward if they hold a UAV operators certificate
• UAVs must only be operated at night once prior approval
and training is sought.
Breaches of the regulations can attract fines of up to $9000.
Surveillance laws
An ‘optical surveillance device’ is defined broadly in
surveillance legislation in Victoria, the Northern Territory,
Western Australia and New South Wales. In the NSW
Surveillance Devices Act it is defined as ‘any device capable of
being used to record visually or observe an activity’.
So, if an entity uses a camera attached to a drone it is likely
to be considered using an optical surveillance device and care
is required to ensure compliance with applicable state and
territory surveillance laws.
Privacy Act 1988 (Cwlth)
Drones used to take photographs in places where people
are present may collect ‘personal information’, for example,
images of people’s faces, for the purposes of the Privacy Act
1988 (Cwlth).
The Act does not generally affect people using drones for
personal or domestic reasons. The Act contains a ‘carve out’
for non-business activities of collecting personal information
for personal, family or household affairs. Likewise, media
organisations that have committed to privacy standards are
exempted for ‘acts in the course of journalism’.
However, organisations considered APP entities under the
Privacy Act need to comply with the Australian Privacy
Principles to the extent they apply.
Trespass law
There are issues about how the laws of trespass apply to
drones. A cause of action for trespass to land can arise
where there is intrusion into property. In LJP Investments
v Howard Chia Investments (1989) 24 NSWLR 490, the NSW
Supreme Court found trespass to airspace occurred where
the interference was ‘of a nature and at a height which may
interfere with any ordinary uses of the land the occupier may
see fit to undertake’.
However, it is doubtful the test for trespass into airspace
would apply to drones. Justice Bryson, in Bendal Pty Ltd v
Mirvac Project Pty Ltd (1991) 23 NSWLR 464, said activities
above the surface of land that ceased to have a sufficiently
close relationship with it would not be protected by the law of
trespass.
He cited an English case, Bernstein of Leigh (Baron) v
Skyviews & General Ltd [1978] QB 479. It was an action of
trespass for flying over a plaintiff’s land to take an aerial
photo of a country house the plaintiff had offered to sell to the
defendant.
The court found the defendant’s flight over the property was
not trespass because flying hundreds of feet above the ground
did not interfere with the plaintiff’s use of the land.
The issue of trespass into airspace by overflying aircraft has
not been dealt with in Australia and it remains to be seen
whether the courts would follow the Bernstein decision.
Drones used to record activities on private property may
require the occupier’s permission to lawfully film. Courts have
recognised an implied licence to enter a property to approach
the occupier to request permission to film but, without
permission, filming on private land may be a trespass.
Conclusion
As use of drones increases in domestic, commercial and
government operations it is inevitable someone will use a
drone in a way that offends someone or causes a substantial
loss. When that occurs, the courts will look to clarify the
many uncertainties that exist for drone use.
Comcover can provide risk management and insurance
advice to Fund Members considering using drones or
that have already integrated drones in their operations.
COMCOVER CONNECT | 7
Using drones – a case study in
good practice
The ABC has introduced use of drones, or remotely piloted
aircraft (RPAs), to capture news and programme footage.
Using RPAs to gather news material is becoming increasingly common.
The ABC says RPA technology offers a convenient, relatively low-cost
aerial filming capacity, and there are situations where their use may be
appropriate, for example:
• pre-planned current affairs stories or documentaries
• large public events
• disaster zones, such as floods, cyclones and fires
• civil unrest
• stories where ground-based access is too hazardous
• traffic stories
• non-arena sporting events
• stories that involve elements of investigative journalism
• stories or filming landscapes in regional areas
• searches for people lost on the coast or in the bush.
Recognising the risks involved in using RPAs, the ABC has introduced
a mandatory referral process with all RPA use to be approved in
advance by designated staff in each ABC division. The ABC has taken
a proactive approach to educate staff through training, developing
guidance material and checklists, and providing practical advice on the
regulations, surveillance laws and privacy and trespass considerations
highlighted by Ashurst (see page 7). ABC staff do not operate RPAs
in Australia. Instead the ABC engages external contractors that meet
Civil Aviation Safety Authority requirements and the ABC’s additional
operational and editorial demands. Trained and approved ABC news
staff have operated small RPAs on some overseas assignments,
such as covering the aftermath of Tropical Cyclone Pam in Vanuatu
last March and the anniversary last April of the landing at Gallipoli in
Turkey.
A key element of the ABC’s operating procedure requires staff
considering using RPAs to ask a series of questions to determine if a
RPA is the most appropriate way to collect the material.
• Will the material you expect to collect using a RPA add benefit to the
story that you could not otherwise get?
• Is there a safer, simpler way to collect the material?
• Is the story significant enough to warrant aerial intrusion with a RPA?
• Are the people using the RPA appropriately trained?
• Do you have approval from the appropriate designated ABC person?
• Are you legally able to use the RPA in the area; are you satisfied you
will not break state-based privacy, trespass, and surveillance device
laws? Are you aware these laws vary from state to state?
• Is operating a RPA likely to cause alarm or distress to third parties in
the area being filmed (that is, people who are not the subject of the
story) or unduly invade their privacy?
Implementing the guidelines and mandatory referral processes work to
assist the ABC to effectively manage the risks involved in using RPAs.
Keep staff safe overseas
– free access to Travel
Tracker
International SOS Travel Tracker, part of
Comcover’s overseas medical and travel
assistance services, can give Fund Members
valuable information about staff overseas.
Travel Tracker has the ability to track and
communicate with travellers using data exchange
between International SOS and Fund Members’ travel
management companies. Knowing the whereabouts
of staff members, expatriates and travellers is
particularly critical in times of crisis or after major
events.
Travel Tracker functions include:
• Expatriate locator module: Ability to add
expatriates or assignees’ locations.
• Mobile check-in: Travellers and expatriates can
send their locations via the membership app to
Travel Tracker.
• Building locator module: Ability to monitor the
location of geo-coded buildings within the Travel
Tracker website.
• Two-way SMS: Ability to send and receive SMS
to improve communications with travellers and
expatriates. Users can review SMS responses to
determine travellers who need emergency help
and tailor the support they require.
Access to Travel Tracker is included in Comcover
annual premiums and is no longer a user-pays
service.
More information on Travel Tracker is available on
the International SOS member portal.
(www.internationalsos.com)
To learn more about how to access Comcover’s services, email comcover@comcover.com.au or call 1800 651 540.
Disclaimer: Comcover Connect provides general information for the benefit of Fund Members. Comcover does not guarantee, nor accept legal liability arising from or
connected to, the accuracy, reliability, currency or completeness of any material contained in Comcover Connect. Fund Members are asked to evaluate the accuracy,
currency, completeness and relevance of the material this newsletter contains for their purposes. Comcover Connect is not a substitute for independent professional
advice and Fund Members should obtain appropriate professional advice relevant to their particular circumstances.
8 | COMCOVER CONNECT