Navigating to autonomy: legal questions in the use of autonomous aerial vehicles by the Australian military
Published online: 1 July 2021
The article has been peer reviewed.
The technological developments that have been the focus of military research and spending over the last 15 years have been continuously moving towards more autonomy in military devices. 1 Investment has been increasing in remotely piloted, pre-programmed and autonomous systems to assist militaries with a wide range of activities, including tasks such as surveillance and logistics as well as the application of use of force. 2 The Strategic Outlook detailed in the 2016 Australian Defence White Paper notes that 'the [Indo-Pacific] region will see more autonomous systems, such as unmanned combat vehicles, in operation in the sub-surface, surface and air-environments' over the period to 2035. 3 In response, Australia has identified the development of 'trusted autonomous systems' as a priority area of work for Defence's strategic research. 4 The Australian Defence Force (ADF) is exploring a range of innovative autonomous technologies through programs such as the Trusted Autonomous Systems Defence Cooperative Research Centre. Currently funded projects include those exploring 'trusted scalable search with expendable drones', 'autonomous live reconnaissance effects assessment using AI [artificial intelligence] and machine vision' and 'cognitive [AI] algorithms to enable sensing under anti-access conditions and to navigate and conduct enhanced tactics in denied environments'. 5 Perhaps the highest profile project is the stealth uncrewed Boeing Loyal Wingman aircraft. This craft is designed to support existing crewed aircraft capabilities, as well as operate in autonomous teams, by providing surveillance and reconnaissance support, and potentially also firepower support. 6
These developments raise important legal questions that must be considered in order to ensure the safety of the civilian population, especially where the devices in question can be used to apply force. 7 In anticipation of their further development and technological reality, this paper seeks to provide an answer to the question: what legal considerations might arise in Australia from the use of autonomous aircraft by the military?
ADF personnel, by virtue of the unique role that they play, are often specifically exempt from the application of particular laws that otherwise bind the Commonwealth of Australia and therefore the Department of Defence and its employees. This is designed to ensure that the defence of Australia is not compromised by a legal framework not designed with ADF operations in mind. 8
However, ADF personnel are clearly not immune from all Australian laws and, indeed, a number of laws are specific to them and their work. Of particular relevance for autonomous military aerial vehicles are the Defence Aviation Safety Regulations (DASR) and Division 268 of the Criminal Code Act 1995 (Cth) (Code) concerning international crimes occurring in times of armed conflict.
This paper looks in more detail at the DASR and the Code, before turning to flag a range of civilian-focused legal frameworks (including workplace health and safety and privacy laws) which, insofar as they do apply to Defence, require consideration to ensure that the use of autonomous military aerial vehicles would not result in a violation of Australia law. The paper ultimately argues that, in the design and deployment of any new means or methods of warfare or, indeed, in any aerial craft that the ADF seeks to deploy into the future, it is imperative that these legal considerations be taken into account to ensure that the interplay between law and technology can best enhance ADF capabilities going forward.
In this paper, the Australian domestic legal framework applicable to Australian Service personnel will be discussed. This includes Australian laws applicable in Australia and, where relevant, with extraterritorial (outside of Australia) effect - including those provisions of Australian law which apply to Service personal deployed on military operations. It also includes where Australian domestic laws have incorporated international law (specifically where the Code imports international laws concerning international crimes). These are laws that have been passed by the Australian Government and are enforceable by Australian authorities. This is distinct from international law. International law - namely the product of agreement between nations as to conduct of relations between nations and the rights and duties of actors that are the concern of the international community9 - has particular relevance when Australian Service personnel cross international borders and/or engage in situations of armed conflict. While there is no specific rule regulating autonomy in airborne military operations in international law, a number of international law frameworks are particularly relevant, including The Hague Rules of Aerial Warfare and international civil aviation law.10 The international law implications of the use of autonomous systems is beyond the scope of this paper.11
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AGSM Documentary-note: E Massingham, 'Navigating to autonomy: legal questions in the use of autonomous aerial vehicles by the Australian military', Australian Journal of Defence and Strategic Studies, 1 July 2021, 3(1):3-25. https://doi.org/10.51174/AJDSS.0301/OGMX3242.
AGSM Author-date: Massingham E (1 July 2021) 'Navigating to autonomy: legal questions in the use of autonomous aerial vehicles by the Australian military', Australian Journal of Defence and Strategic Studies, 3(1):3-25, https://doi.org/10.51174/AJDSS.0301/OGMX3242.This article has been peer reviewed.
1 The research for this paper received funding from the Australian Government through the Defence Cooperative Research Centre for Trusted Autonomous Systems. The views and opinions expressed in the paper are those of the author, and do not necessarily reflect the views of the Australian Government or any other institution. The author wishes to thank Isabelle Peart and Julius Moller for their research work that contributed to this piece and Simon McKenzie, Rain Liivoja, Kate Devitt, Gwendolyn Bakx, Nicholas Dyce-McGowan, Keirin Joyce, Robert Vine and Roger Halford for their engagement in discussions on this topic and/or helpful feedback on drafts, as well as the anonymous peer reviewers. See, for example, Paul Scharre, Army of None: Autonomous Weapons and the Future of War, W.W. Norton & Company, 2018, pp 14-25.
2 Autonomous technology that can engage in the use of lethal force remains particularly contentious. Some countries have specifically indicated this is not something they are pursuing. See e.g., United Kingdom Ministry of Defence (MOD), Joint Doctrine Publication 0-30.2 Unmanned Aircraft Systems, MOD, last modified 15 January 2018, p 42, https://www.gov.uk/government/publications/unmanned-aircraft-systemsjdp-0-302. For some commentary see Michael Savage, 'Humans Will Always Control Killer Drones, Says Ministry of Defence', The Guardian, 10 September 2017, https://www.theguardian.com/politics/2017/sep/09/drone-robot-military-human-control-uk-ministry-defence-policy; James Vincent, 'UK Government Says Humans Will Always be in Charge of Its Robot Weapons Systems: But Critics Say the Commitment is Still Limited', The Verge, 12 September 2017, https://www.theverge.com/2017/9/12/16286580/ukgovernment- killer-robots-drones-weapons.
3 Department of Defence, 2016 Defence White Paper, Australian Government, Canberra, 25 February 2016, p 50, accessed 16 July 2020, https://www.defence.gov.au/WhitePaper/Docs/2016-Defence-White-Paper. pdf. The 2020 Defence Strategic Update restates this view about the significant role of emerging and disruptive technologies such as autonomous systems: Department of Defence, 2020 Defence Strategic Update, Australian Government, Canberra, 1 July 2020, p 13, p 38, accessed 30 July 2020, https://www.defence.gov.au/StrategicUpdate-2020/docs/2020_Defence_Strategic_Update.pdf.
4Department of Defence, 2016 Defence Industry Policy Statement, Australian Government, Canberra, 25 February 2016, pp 31-32, accessed 16 July 2020, https://www.defence.gov.au/WhitePaper/Docs/2016-Defence-Industry-Policy-Statement.pdf.
6Malcolm Davis, '"Loyal Wingman" to Take Australia's Airpower into the Next Era', The Strategist, Australian Strategic Policy Institute, 7 March 2019, https://www.aspistrategist.org.au/loyal-wingman-to-take-australiasairpower-into-the-next-era/.
7See, for example, Carrie McDougall, 'Autonomous Weapon Systems and Accountability: Putting the Cart before the Horse', Melbourne Journal of International Law, 2019, 20(1):58; Tim McFarland, 'Factors Shaping the Legal Implications of Increasingly Autonomous Military Systems', International Review of the Red Cross, 2015, 97(900):1313.
8See for example, Section 12D of the Work Health and Safety Act 2011 (Cth).
9See further, Alina Kaczorowska-Ireland, Public International Law, 5th ed., Routledge, 2015, chapter 1.
10Hague Rules of Aerial Warfare, 1923; Convention on International Civil Aviation, 15 UNTS 295, 7 December 1944 (entered into force 4 April 1947).
11For a discussion of this see, Eve Massingham, 'Radio Silence: Autonomous Military Aircraft and the Importance of Communication for Their Use in Peace Time and in Times of Armed Conflict Under International Law', Asia-Pacific Journal of International Humanitarian Law, 2020, 1, pp 184-208.