The Space (Launches and Returns) Act 2018 (Cth) lays the foundations for Australia’s steadily growing local space industry by reducing barriers for local participants to launch their operations in Australia.
It’s been almost 54 years since the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (the Outer Space Treaty) was made and provided the framework for the law of outer space in many countries, including Australia.
Australia’s space industry is now rapidly expanding – in part due to the increased attention, support and available government funding following the recent establishment of Australia’s Space Agency (the Agency), as well as advances in space technologies and the maturing base of industry participants involved in the space industry (including private sector entities, universities and start-ups).
The Australian Government has declared its commitment to Australia’s space industry, with its ambitious Australian Civil Space Strategy 2019-2028 aiming to triple the size of the industry to $12 billion by 2030. The Government’s 2020-21 budget also sets out a commitment of $1.3 billion to the Modern Manufacturing Initiative, and is expected make funding available to projects that help space industry manufacturers scale-up and continue to invest in new technologies.
Below, we explore the regulatory framework underpinning Australia’s space industry, and provide an overview of the key requirements when applying for an Australian launch permit.
Australia’s regulatory framework for space launches: an overview
The Space (Launches and Returns) Act 2018 (Cth) (Launches and Returns Act) amended the Space Activities Act 1998 and establishes the regulatory framework for launch activities in Australia – that is, activities involving the launch and return of objects which are to go into or come back from an area beyond 100 km above mean sea level and also now the launch of high power rockets below 100 km.
The Launches and Returns Act is supported by the Space (Launches and Returns) (General) Rules 2019 (General Rules), the Space (Launches and Returns) (High Power Rocket) Rules 2019 and the Space (Launches and Returns) (Insurance) Rules 2019 (collectively, the Rules) which provide further detail on application requirements for space activity approvals.
Together, the Launches and Returns Act and the Rules set out requirements for the licence, permit and authorisation processes for launch activities within Australia. In particular, they establish a regulatory framework for:
- launching a space object from a place in Australia;
- returning a space object to a place in Australia; and
- constructing and operating a (fixed or mobile) launch facility in Australia.
The regulatory framework has extraterritorial application to launches and returns outside of Australia where an Australian national holds a particular role of responsibility.
The new regulatory framework recognises the changes taking place in the industry, and aims to help participants realise the potential future growth by bringing the regulations in line with the advances in space technologies, lowering the barriers to entry and seeking to ensure innovation is not inhibited by regulation (while at the same time seeking to ensure the ongoing safety of space activities). To accord with international standards, the risk allocation under the Launches and Returns Act has also been significantly shifted to allocate more risk to the Commonwealth and reduce insurance requirements for applicants from not less than $750 million to not more than $100 million.
Australian launch permit requirements
Entities conducting launches of space objects must obtain a launch permit from the Agency. The Launches and Returns Act and General Rules establish eligibility criteria that applicants must satisfy. In particular, the Minister must be satisfied that:
- the person carrying out launch or return activities is competent to do so;
- the launch vehicle and flight path is effective and safe;
- the probability of the launch or return activities causing substantial harm to public safety or damage to property is low;
- there are no relevant security, defence or international relations reasons for which the permit should not be granted; and
- there is adequate planning to address any environmental impacts of the launch or return.
Various other detailed procedural and information requirements must be provided by the applicant in the permit application. For example:
- notice within the prescribed times to the Minister regarding confirmation of the launch dates, launch windows and planned launch trajectory or flight path;
- details about the applicant and their organisation, including descriptions of the organisational structure and the duties and responsibilities of individuals within the chain of command (e.g., those who would have authority or oversight over the launch vehicles communications, manufacturing or electronic systems);
- information about the launch, including a description of the purpose of the launch, and launch method (e.g., whether the launch is proposed to be from an aircraft or from a launch facility), and payload information;
- information about the flight path (e.g. description of the flight path, and the name and location of any critical assets directly under the flight path, and return information, such as staging events for return and predicted errors for re-entry and landing), including publicly available information on the flight history of the launch vehicle;
- information about the launch vehicle (e.g. name and address of the manufacturer, testing standards, quality assurance certifications, and technical and design specifications);
- prescribed plans and strategies, which include:
- risk hazard analysis and debris mitigation strategies;
- flight safety plans, environmental impact plans, design and engineering plans, launch management plans, and emergency plans; and
- technology security plans (e.g. arrangements and procedures for safeguarding the technology to be used in operating the launch facility and preventing unauthorised access to the technology, and the applicant’s cybersecurity strategy);
- copies of a wide range of contracts entered into by the applicant for the purpose of the launch and return (including contracts for use of facilities, contracts for carrying payloads and contracts for others involved in the launch and return), or information about contracts that haven’t yet been entered into; and
- information to demonstrate compliance with insurance and financial standing requirements.
Similarly detailed applications are required in respect of licences for launch facilities and authorisations for the return of space objects.
Managing the process
Permit applications require extensive and detailed documentation, and requirements are imposed on holders of permits in relation to making and keeping records and data related to operations. Carrying out activities without the required permit or breaching a condition of an issued permit is a criminal offence and may result in a penalty of 100,000 penalty units for corporations (over $22 million, as at the date of this article).
Unsurprisingly, technology security and protection (including cybersecurity) is a key consideration in relation to launch and return activities. For example, the permit application requires the inclusion of an assessment of the adequacy of the cybersecurity strategy which must be prepared by a suitably qualified independent expert. On a similar theme, the proposed changes to the Security of Critical Infrastructure Act 2018 (Cth) is likely to result in new obligations being imposed on at least certain parts of the space sector in relation to cybersecurity.
Organisations applying for a permit or otherwise involved in permitted activities (including infrastructure, equipment and other technology providers) should maintain comprehensive and well-organised documentation and implement rigorous procedures to ensure that it can address all of the permit and ongoing compliance requirements in an efficient manner. Establishing strong internal governance procedures (including in relation to dealings with third parties) will be crucial.
The next frontier
A number of areas of legal uncertainty remain in relation to existing and emerging space activities. For example, while the Outer Space Treaty provides for the peaceful and fair exploration of space and that “outer space…is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”, the regulation of the appropriation of extracted resources (including by private companies) from space remains unclear. Further regulation may also be developed in relation to two other significant areas of concern in relation to space activity – the militarisation of space and the management of space debris.
The signing of the Artemis Accords in October 2020 by Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, and the United Kingdom attempts to provide some clarity to activities on or relating to the Moon, Mars, comets and asteroids, at least as between the civil space agencies of those countries who are signatories to the Accords. Of interest, the Artemis Accords states that ‘[t]he Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty’.
As the Australian Civil Space Strategy unfolds over the next decade, it’s likely we’ll see further significant change to the Australian legislative framework in relation to the legal regulation of space activities.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.