The future of Australia’s commercial space sector under the US-Australia space technology treaty

On 28 February 2024, the Australian Government tabled the US-Australia Technology Safeguards Agreement (TSA), kicking off the initial stages of the domestic ratification process that would bring the TSA into force if passed by the Australian Parliament.

The TSA was inked between Canberra and Washington on 26 October 2023, but the text of the treaty was only made publicly available for the first time when it was tabled before the Australian Parliament and referred to the Joint Standing Committee of Treaties.

The TSA treaty-level agreement establishes a legal framework that safeguards US space technology deployed within Australian territory. More particularly, it ensures that US technology remains under US control while in Australia, except in ‘exigent circumstances’. Observers expect the TSA to pave the way for more American companies, government organisations and universities to participate in space launches and related activities in Australia involving sensitive US space technology.

The TSA applies to a ‘launch activity’ that involves US technology (being US spacecraft, US launch vehicles, US related equipment and US technical data). The term ‘launch activity’ broadly encompasses ‘all actions associated with the launching from within the territorial jurisdiction of Australia’ and ‘landing within the territorial jurisdiction of Australia’ from the initial technical discussions to the launch and return of US related equipment and US technical data. This essentially captures all activities relating to maintenance, repair, overhaul, reassembly, inspection, testing etc. of launch vehicles and spacecrafts.

Below, we discuss the potential implications of the TSA for the existing commercial space regulatory framework in Australia.

Background

The Space (Launches and Returns) Act 2018 (Cth) (SLR Act) is the primary legislation governing space launches and related activities in Australia. The Act is administered by the Australian Space Agency under the Department of Industry, Science and Resources.

The SLR Act sets up a regulatory framework under which the Australian Space Agency regulates space activities in Australia through the grant of approvals, which can come in the form of a licence, permit, or authorisation, depending on the type of the space activity applied. For example, a launch facility licence is required to operate a launch facility in Australia, a launch permit is required to launch a space object or a high power rocket, and a return authorisation is required to return a space object to earth.

The criteria for the grant of these approvals are prescribed in the Space (Launches and Returns) (General) Rules 2019 (Cth) and the Space (Launches and Returns) (High Power Rocket) Rules 2019 (Cth) (together, the Rules), which, among other things, require applicants to include a ‘technology security plan’ in their application for any proposed space activity to be conducted in Australia.

Technology security plans

Whilst the Rules do not prescribe a set of technical requirements or specifications that the technology security plan must contain, they require an applicant to include a technology security plan that broadly addresses operations security, physical security and cyber security.

More specifically, a technology security plan must include:

• arrangements and procedures for safeguarding technology to be used in operating or conducting the relevant space activity applied for (e.g. operating the launch facility or conducting launches);
  
  
• the procedures to prevent unauthorised persons from having access to the technology;
  
  
• a cyber security strategy; and
  
  
• where there is in force an agreement between Australia and another country in relation to the safeguarding of any technology, information on how the plan ensures Australia gives effect to its obligations under that agreement – a provision under which agreements such as the TSA can be implemented.

Although the obligations in the TSA are imposed on Australia as a nation rather than Australian entities directly, certain obligations are expected to have a flow-on effect on Australian entities participating in launch activities that involve US technology.

What does this mean for the Australian commercial space sector?

The obligation to develop a technology security plan is not new. However, it is expected that future space activities in Australia that involve US technology will require a more detailed consideration around the planning of technology safeguards and a robust technology security plan.

It is anticipated that the implementation of the TSA will not require amendments to existing laws – rather the TSA will be implemented under the existing approval process.

Other features of the TSA that may affect Australian entities that are worth noting include the requirement:

• that US participants retain control of US launch vehicles, US spacecraft, US related equipment and US technical data for any launch activities;
  
  
• that only persons authorised by the American government be given 24-hour control access to US launch vehicles, US spacecraft, US related equipment and US technical data; and
  
  
• to establish ‘segregated areas’ (areas which access will be limited to persons approved by the US Government only) and ‘controlled areas’ (areas which access will be limited to persons approved by the Australian Government, US Government, and governments of other countries directly involved with the launch activity) in Australia.