The Space Law Review: Australia

Introduction to the national legal, regulatory and policy framework

i Overview of the space industry

Australia has a long and distinguished history as a spacefaring nation. Its origins trace back to the middle of the twentieth century when a test launch facility was established in Woomera, South Australia in 1949.2 This facility was the base for the launch of the Weapons Research Establishment Satellite (WRESAT 1) in 1967, which was the third launch of its kind to have been successfully completed by any country, following the Soviet Union and the United States (US).3 Australia was providing launch services to various European countries during this period through its membership of the European Launcher Development Organisation4 and was also managing a number of NASA tracking stations, which provided important orbital satellite, spaceflight and deep-space tracking network services to the US's national space agency.5 This information was central to the US's space exploration initiatives, including the Apollo 11 expedition and the Moon landing. Australia's vast landmass and its relative proximity to the equator were well suited to support these early launch activities (and remain a significant advantage).

As well as providing operational and launch services, Australia was also involved in the global space political and regulatory sphere. The strength of its relationship with the US and the United Kingdom (UK) helped it play an important role in developing the international legal framework for outer space. It joined as a foundation member of the United Nations (UN) Committee on the Peaceful Uses of Outer Space6 and was a signatory to 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) when that treaty entered into force in 1967. It is now one of only 18 states that are signatories to all five of the UN space treaties (see Section I.ii).7

Despite Australia's promising entry onto the global space stage during the mid-twentieth century, the development of its domestic space industry was hampered from the 1970s onwards because of the 'cycles of engagement and retreat from space activities' that characterised the approach of successive Australian governments.8 They failed to grasp the need for, and importance of, formulating any sort of national space policy or promoting a unified national space effort.9

This, coupled with a slowdown in the global space race during the 1970s and 1980s and a decline in the British and Australian weapons programmes during this period, left Australia as one of only two member countries of the Organisation for Economic Co-operation and Development without a national space agency and any form of a targeted space activities domestic legislative framework.

However, things began to change in the 1990s. The development of the global space industry, and the opportunities for commercial launch services to be provided from Australia (which were being actively explored by several overseas companies), prompted the government to reconsider Australia's future role in space.10 By this time, the concept of space as the exclusive domain of government was being replaced by one that viewed space as an opportunity for commercial exploitation. This was, in large part, driven by the growth in the number of opportunities being presented by satellite-based communications and applications.

As a consequence of this evolving perception, and growing demand for a launch industry in Australia,11 the government introduced legislation that regulated the conduct of space activities on Australian soil. This led to the passing of the Space Activities Act 1998 (Cth) and, later, the Space Activities Regulations 2001 (Cth). In doing so, Australia became only the sixth country in the world to introduce a targeted space activities framework.12

ii Regulation

As stated in the explanatory memorandum to the Space Activities Bill 1998 (Cth), the Space Activities Act was introduced to 'reflect in an Australian law, Australia's obligations as a signatory to the key United Nations space treaties, and provide a legally certain and predictable environment for the development and operation of Australian space launch facilities'.13

The objects of the Space Activities Act14 included:

  1. establishing a system for the regulation of space activities carried on either from Australia or by Australian nationals outside Australia;
  2. providing for the payment of adequate compensation for damage caused to persons or property as a result of space activities regulated by the Space Activities Act; and
  3. implementing Australia's obligations under the UN space treaties and specified space cooperation agreements.

The third of these objects (point (c), above) related to the international obligations that arise under the five UN treaties to which Australia is a signatory. These treaties include:

  1. the Outer Space Treaty;
  2. the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968;
  3. the Convention on International Liability for Damage Caused by Space Objects 1972 (the Liability Convention);
  4. the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention); and
  5. the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979.

To ratify these treaties and give them legislative force (which can only be done through an act of the legislature or judiciary under the Constitution of Australia), each of these five treaties was annexed as a Schedule to the Space Activities Act.

The Space Activities Regulations contained details regarding the process, approval and licensing requirements for the following types of space activities contemplated by the Space Activities Act: (1) the operation of a launch facility in Australia; (2) the launch of a space object in Australia; (3) the launch of an Australian space object from a facility located outside Australia; and (4) the return of a space object to a place anywhere in Australia.

Reform of the Space Activities Act and the Space Activities Regulations

In October 2015, the government commenced a comprehensive review of Australia's space industry capability (the Space Industry Review), including the Space Activities Act, in light of the dramatic advancements in space-related technologies and applications since the introduction of the legislative framework in 1998. The review considered whether the existing legislative regime struck the appropriate balance between promoting investment and innovation in the domestic space industry and ensuring Australia met its international obligations for the use of space, including in relation to the mitigation of risk to itself and other nations.

Following extensive public consultation with government, non-government and international stakeholders, legislative proposals were released that proposed significant reforms. Following the consideration of feedback from industry on these reforms, the Space Activities Amendment (Launches and Returns) Bill 2018 (Cth) (the Launches and Returns Bill) was introduced into Parliament in June 2018. It sought to amend the Space Activities Act by:

  1. broadening the regulatory framework to include arrangements for launches from aircraft in flight and launches of high-power rockets;
  2. reducing the barriers to participation in the space industry by streamlining approval processes and insurance requirements for launches and returns;
  3. introducing safeguards for high-power rocket activities; and
  4. increasing non-compliance penalties for damage to people and property.

In August 2018, the Launches and Returns Bill passed both houses of Parliament without amendment and received Royal Assent on 31 August 2018. It commenced as the Space (Launches and Returns) Act 2018 (Cth) (the Launches and Returns Act) on 31 August 2019.

Subordinate legislation (the Rules) outlining the information that an applicant needs to provide for different licences and permits, as well as the relevant insurance requirements and conditions, also came into effect on the same date as the Launches and Returns Act.15 The Space Activities Regulations were repealed upon the commencement of these Rules.

A summary of the operation of this amended regulatory framework, including the Launches and Returns Act and the Rules, is included in Section II.

iii Establishment of the Australian Space Agency

As one of the main pillars of the government's response to the Space Industry Review, it was decided that a national space agency should be established to guide and oversee the growth of Australia's space industry to A$10–12 billion by 2030.

As a result, the Australian Space Agency (ASA) was formally established on 1 July 2018. It is a non-statutory and whole-of-government entity located within the Department of Industry, Innovation and Science. The ASA's official headquarters in the heritage-listed McEwin Building at Lot Fourteen in Adelaide were established in February 2020. This is also the location of the Australian Space Discovery Centre and the Mission Control Centre, which were established in March 2021 (see Section IV.iv).

The ASA, now led by Mr Enrico Palermo16 (previously by Dr Megan Clark), is vested with the responsibility to transform and grow a globally respected space industry in Australia by: (1) coordinating and promoting Australia's domestic space sector activities; (2) supporting the growth of Australia's space industry through the promotion of increased industry opportunities; and (3) leading Australia's engagement with other international space agencies and industry players.

The ASA Charter contains a detailed summary of the ASA's purpose, responsibilities and governance structure. A summary of some of the ASA's recent and ongoing initiatives is provided in Section IV.

Regulation in practice

i Licence requirements and application process

Engaging in space activities requires licences, permits and authorisations under the Launches and Returns Act.

Launch facility licence

A launch facility licence is required if a person intends to operate a launch facility17 in Australia. Importantly, this licence is only required if the objects to be launched are space objects (i.e., those that are being launched to a height that is greater than 100km above mean sea level).18

To obtain a launch facility licence, an applicant must satisfy the relevant Minister (the Minister) that it:19

  1. is competent to operate a launch facility;
  2. has obtained all the necessary environmental approvals;
  3. has in place an adequate environmental plan for the construction and operation of the launch facility;
  4. has sufficient funding to construct and operate the launch facility;
  5. has, to the maximum extent reasonably practicable, minimised the risk of the construction and operation of the launch facility causing substantial harm to public health and safety or damage to property;
  6. does not pose a risk to Australia's security, defence or international relations; and
  7. has designed the launch facility to be as effective and safe as reasonably practicable having regard to its purpose.20

The Rules set out the specific information that an applicant needs to provide to satisfy the Minister in relation to these criteria. This includes basic information about the applicant and the launch facility, facility management plans, organisational structure and personnel details, and technology security plans.21 These information requirements must be submitted at the prescribed stage of the application process, of which there are three stages.

There are also conditions attached to the granting of a launch facility licence. These require licensees to comply with record-keeping requirements, notify the Minister of certain changes to their organisational structure and personnel, and operate the facility in accordance with the Launches and Returns Act.22

Penalties apply where a launch facility is operated without a licence or where a licensee breaches the conditions of its licence.

The government maintains a register of permits, licences and authorisations that have been granted, varied, revoked, suspended or transferred in accordance with the Launches and Returns Act. That register is publicly available on the government's ASA website (which is operated by the Department of Industry, Science, Energy and Resources).

Launch permit

A launch permit is required if a person intends to launch one or more space objects from a launch facility in Australia, from an Australian aircraft or from a foreign aircraft that is in Australian airspace.23 A permit can authorise a single launch or a particular series of launches depending on the nature of the payloads being carried.24 The authorisation of multiple launches is a feature of the Launches and Returns Act that reflects the goal of promoting investment and innovation by making launches easier.

To obtain a launch permit, a person must satisfy the Minister on the same grounds of competency, risk mitigation, financial standing and national security that apply to launch facility licence applications.25 In addition, the applicant must demonstrate that:26

  1. it has satisfied the required insurance and financial requirements (see below);
  2. the space objects concerned are not, and do not, contain a nuclear weapon or a weapon of mass destruction;
  3. the launch vehicle to be used is as effective and safe as is reasonably practicable having regard to the purpose of the launch;
  4. the flight path for each launch is as effective and safe as is reasonably practicable;
  5. the risk-hazard analysis for each launch and connected return is compliant with the relevant flight safety code; and
  6. adequate planning has been carried out to address the environmental impact of the launch or launches and any connected return.

The Rules set out the specific information that an applicant needs to provide to satisfy the Minister in relation to the above criteria. These are broadly consistent with the information requirements that apply to launch facility licence applications but also include information about the launch, launch vehicle, flight path, flight history or testing, payload information, launch management plan, risk-hazard analysis, flight safety plan, debris mitigation strategy (discussed in Section II.iv) and contractual information.27

Permit holders must provide the Minister with information relating to the launches at least two days prior to the launch (but not more than 10 days), including the date and time of the launch, the trajectory of the space object and any change to the payloads to be launched.28

Significant penalties (including criminal sanctions) apply in circumstances where the holder of a launch permit breaches a condition of the permit. These can include a fine of up to A$21 million for a business, and a fine of A$1.155 million or up to 10 years' imprisonment for an individual. A breach of the conditions relating to information requirements can attract a penalty of A$210,000.

High-power rocket permit

A high-power rocket permit is required if a person intends to launch a high-power rocket from a facility or place (whether fixed or mobile) in Australia. The definition of a high-power rocket, as currently drafted, imports both an impulse and a complexity characteristic: it is one that is propelled by motors with a combined impulse greater than 889,600 Newton seconds or fitted with an active control system.29 This term is not defined in the Launches and Returns Act and the Rules do not provide any guidance on its proposed operation.

To obtain a high-power rocket permit, a person must satisfy the Minister on the same grounds of competency, risk mitigation, insurance requirements, financial standing and national security that apply to launch permit applications. In addition, it must be demonstrated that the high-power rocket and the flight path for the launch are as effective and safe as is reasonably practicable.30

The Rules set out the specific information that an applicant needs to provide to satisfy the Minister in relation to the above criteria. These are broadly consistent with the information requirements that apply to launch permit applications. In addition, applicants are required to provide information about the high-power rocket (including manufacturer details, technical specifications and quality assurance certification), as well as the history of the rocket.31

There are also conditions attached to the granting of a high-power rocket permit. These are similar to the conditions attached to launch permits, including the time, date and planned trajectory of any launches, any changes to the assumptions and data used in the risk-hazard analysis, the contents of the launch management plan or flight safety plan, and certain changes to the organisational structure or personnel.32

Significant penalties apply in circumstances where a high-power rocket permit holder fails to comply with the public health and safety and insurance conditions of the permit. These can include a fine of up to A$21 million for a business, and a fine of A$1.155 million or up to 10 years' imprisonment for an individual. Breaches of the other permit conditions can attract a penalty of up to A$210,000.

Overseas payload permit

An overseas payload permit is required if a person intends to launch one or more space objects from a facility (whether fixed or mobile) or a place outside Australia using a specified launch vehicle. However, permits are only required if an Australian national is a responsible party33 for the launch.

To obtain an overseas payload permit, a person must satisfy the Minister on similar grounds to those of the other licences and permits under the Launches and Returns Act. These include insurance and financial requirements (unless these are not required in the circumstances), risk mitigation and national security grounds, and proof provided by the applicant that the space objects concerned do not contain nuclear weapons or a nuclear power source (unless approval has been obtained). The Rules set out the specific information that an applicant needs to provide.

In some circumstances, applicants will be required to obtain an overseas payload permit in addition to another permit or licence – for example, when a person wishes to launch a payload from an Australian aircraft that is in transit overseas. In this situation, the applicant would be required to obtain both an overseas payload permit, to authorise the launch of the payload from a place outside Australia, and an Australian launch permit, to authorise the launch of the payload from the Australian aircraft. Whether the legislature intended this is unclear.

Return authorisations

The requirement for a return authorisation is a feature in the Launches and Returns Act that reflects the much greater number of launches expected in the future.

A return authorisation is required if a person intends to return a space object to a specified place or area in or outside Australia.34 A return authorisation can also authorise a particular series of returns if the Minister considers it appropriate.

Similar considerations that regulate the exercise of the Minister's discretion in relation to the other licences and permits under the Launches and Returns Act also apply to the grant of return authorisations. The Rules also set out the specific information that an applicant needs to provide to satisfy the Minister in relation to these criteria and are broadly consistent with the information requirements that apply to the other licences and permits.

Authorisation certificate

The Minister may also issue an authorisation certificate to any person that intends to conduct launch-related activities that would otherwise be prohibited.

The factors to be considered when assessing applications include: (1) the competency of the person to carry out the proposed conduct; (2) the probability of the Australian government being exposed to liability for damage caused by the conduct; and (3) the probability of the conduct causing substantial harm to public health or safety, or damage to property.

Authorisation certificates will only be granted where the conduct could not be more appropriately covered by another type of licence or permit under the Launches and Returns Act. Such circumstances are likely to be very limited or unusual.

Other licence requirements

The following types of licences may also be required, depending on the nature of the activities being conducted and services being supplied by the licensee or permit holder in Australia.

Telecommunications licensing requirements

Under the Telecommunications Act 1997 (Cth), a carrier licence is required where a person owns items of physical network infrastructure known as network units (i.e., physical cable, radio or satellite links) that are used to supply a carriage service35 to the public. If a person intends to use space or satellite infrastructure to provide telecommunications services to customers in Australia, a carrier licence may be required.

Radiocommunications licensing requirements

An apparatus licence is required to authorise the use of frequencies for individual space objects or Earth stations, unless the component is covered by an existing class licence. The approach that the Australian Communications and Media Authority (ACMA) takes is to separately license the satellite uplink and downlink components (which require a carrier licence) and the transmitters and receivers on satellites (which require apparatus licences).

A spectrum licence is required to authorise the use of particular frequencies by those with carrier licences. Although spectrum licences are, in theory, available as an alternative to apparatus licences, they are generally reserved by the ACMA for use by terrestrial mobile service providers. The use of spectrum licences to authorise the use of radio frequency spectrum by terrestrial mobile service providers in Australia is likely to continue with the increase in demand for spectrum by these providers to support the deployment of their 5G services.

Australia's radiocommunications legislative and policy framework, including the existing licensing regime and approach to the management of spectrum, has been the subject of review by the government since 2014. Legislation was finally enacted by the government in December 2020 to modernise and enhance the operation of the regime. These changes, which are contained in the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (Cth) (the Modernisation Act), aim to, among other things, streamline allocation and reallocation processes by:

  1. extending the maximum spectrum licence terms from 15 years to 20 years, and the maximum apparatus licence terms from five years to 20 years;
  2. providing the ACMA with more flexibility in terms of allocating spectrum and apparatus licences;
  3. broadening the range of regulatory options available to the ACMA in carrying out its compliance and enforcement functions; and
  4. providing the ACMA with additional information gathering powers.

While the reforms fall short of the overhaul of the regime advocated by some in the industry, the Launches and Returns Act and the targeted amendments contained in it were broadly supported by industry and the government. The Modernisation Act, which commenced operation on 17 June 2021 (six months following the date of Royal Assent in December 2020), will provide greater flexibility for the ACMA in terms of spectrum allocation arrangements and a reduction in the regulatory barriers applicable to the licensing arrangements described above. Such changes might include, for example, the ACMA issuing one licence (rather than both a spectrum and an apparatus licence) in circumstances where it considers that licensing arrangement to be the most appropriate for the relevant licensee.

ii National registration requirements

There is no obligation for licensees or permit holders to register with the ASA in relation to the conduct of their space activities.

However, as required by the Registration Convention, a register of space objects is kept and maintained by the Minister, which contains details of the space objects launched into Earth's orbit or beyond under an Australian launch permit, overseas payload permit or authorisation certificate. These details, which the applicant provides during the application process (and post launch), include the launch facility, the date of the launch, the space object's basic orbital parameters and general functions, and the names of launching states other than Australia. The register is publicly available on the government's ASA website.

iii Insurance requirements

One of the key features of the Launches and Returns Act is a reduction in the specified minimum liability caps for third-party insurance requirements for each authorised launch or return – from A$750 million to a maximum of A$100 million. This amendment is designed to comply with the government's liability obligations under the Liability Convention and to promote consistency with the approach to insurance and liability adopted in other jurisdictions.

The Rules,36 which contain the specific details of these insurance requirements, provide that the amount of insurance required is the lower of the specified amount of A$100 million (except for an overseas payload permit or return authorisation, which specifies an amount of A$0) or the amount that is calculated according to the maximum probable loss (MPL) methodology. The MPL methodology is published in a document that is available on the Department of Industry, Innovation and Science's website.37

In circumstances where the holder of an Australian launch permit, overseas payload permit or high-power rocket permit is subject to a claim for compensation that would require it to pay to Australian nationals an amount of compensation that exceeds its insured amount for damage that it has not intentionally caused or that was not the result of gross negligence, the Commonwealth of Australia bears liability to the Australian nationals for that excess amount up to A$3 billion.

The other means through which an applicant can satisfy the insurance and financial requirements under the Launches and Returns Act is by showing that it has direct financial responsibility for an amount that is not less than the specified insurance amounts referred to above. This requires it to demonstrate that it has sufficient available assets or is otherwise able to meet any liability that it may incur when conducting space activities.

iv Space Debris Mitigation Guidelines

The Launches and Returns Act requires that each application for a launch permit or an overseas payload permit must contain a debris mitigation strategy, which reflects Australia's commitment to international efforts to limit space debris.

The debris mitigation strategies are to be based on internationally recognised guidelines or standards (e.g., the UN Space Debris Mitigation Guidelines) and must describe, for example, the planned measures to minimise the potential for break-ups during operational phases and the post-mission phase, and the strategies to limit the risk of accidental collisions in orbit.

v National security requirements

Australia's national security is one of the themes underpinning the operation of the Launches and Returns Act. It is one of the factors that must be considered each time the Minister considers a licence, permit or authorisation application (i.e., reasons relevant to Australia's security, defence or international relations).

National security is also one of the grounds upon which the Minister can decide to suspend a licence, permit or authorisation – the other two being a breach of a licence or permit condition or the occurrence of an incident involving the relevant space object. This could have significant ramifications for licence or permit holders in circumstances where an incident occurred in the applicant's home country, or tensions grew between the government of the applicant's home country and the Australian government. In these circumstances, the Minister could suspend the licence, permit or authorisation on national security grounds, and no compensation (including the cost of the investment) would be payable.38 It would also be difficult for applicants to challenge these decisions as the Launches and Returns Act explicitly provides that this discretion rests with the Minister.

vi Safety requirements

A critical safety mechanism under the Launches and Returns Act is the Launch Safety Officer (LSO). The LSO is responsible for ensuring that processes and procedures are correctly followed in relation to the conduct of space activities to mitigate the risks of injury to persons and damage to property.

The Launches and Returns Act extends the functions and powers of the LSO to cover not only launch activities but also return activities. It requires the LSO to issue notices in respect of launch and return activities and empowers the LSO to issue written directions to licence and permit holders where appropriate to do so. Penalties apply for a failure to comply with a direction issued by the LSO.

vii Monitoring and enforcement requirements

One of the functions of the LSO is to monitor the compliance of the holder of the licence, permit or authorisation with the terms of the Launches and Returns Act and the conditions of the permit or authorisation. The ASA also has a dedicated team responsible for administering the Launches and Returns Act, including the undertaking of compliance and enforcement activities. This division of the ASA – the Regulatory and International Obligations Team – subsumes the role of the former Space Licensing and Safety Office.

Penalties for non-compliance have increased significantly under the Launches and Returns Act (see Section II.i, 'Launch permit' and 'High-power rocket permit').

viii Dispute resolution mechanisms

Review of decisions

If a person wishes to have a decision of the Minister reviewed, an application can be made to the Administrative Appeals Tribunal (AAT). The AAT reviews administrative decisions made under Commonwealth laws on the merits.

The AAT has the power to affirm, vary or set aside and substitute the previous decision in favour of a new decision. It can also remit a decision to the relevant decision maker for reconsideration.

Action for compensation

Any actions for compensation for damage caused by the launch and return of a space object and the launch of high-power rockets are heard by the Federal Court and Federal Circuit Court. Any appeal to a decision of these courts would need to be brought before a court of appellate jurisdiction.

Distinctive characteristics of the national framework

Following the commencement of Australia's new legislative framework, the country now has some of the most business-friendly space laws in the world, including among the key spacefaring nations (e.g., France, the UK and the US). It also has one of the most recently established national space agencies – the ASA – responsible for administering the new legislation and delivering on Australia's space-related international obligations under it.

Some of the features that underpin the more commercial and forward-looking approach of the new regime under the Launches and Returns Act include:

  1. the arrangements for the launches from aircraft in flight, as well as the launching of high-power rockets;
  2. the streamlined approvals process for obtaining the various licences, permits and authorisations required under the Launches and Returns Act;
  3. the significant reductions in the insurance requirements for each authorised launch or return (from A$750 million to a maximum of A$100 million); and
  4. the requirements for a space debris mitigation strategy.

As well as having a new legislative framework, Australia also has a robust policy framework. This comprises the Australian Civil Space Strategy 2019–2028, a 10-year plan designed to guide the growth and development of Australia's domestic space industry, and the annual State of Space Report (SOSR). The SOSR documents the government's activities in civil space for the prior calendar year and groups these activities under four main themes: policy and regulation; space capability; national interest; and international engagement. It is an important policy document that is designed to provide both industry and government stakeholders with an overview of past and current space-related initiatives, as well as to identify emerging commercial opportunities. The most recent report – the State of Space Report 2019 – was published in May 2020 and covers the government's civil space responsibilities and activities from 1 January 2018 to 30 June 2019.

While the ASA is responsible for overseeing this policy and the strategic direction of Australia's civil space sector, it adopts a consultative approach in carrying out this objective; it is informed by the government's Space Coordination Committee and consults with industry through the Space Industry Leaders Forum, which includes industry representatives, academia, industry associations and other non-government space organisations. This level of engagement with both industry and government stakeholders – another feature of the national framework – is designed to inform the regulator on issues and promote interest from both local and overseas industry participants in conducting commercial launch activities from Australia.

Current developments

The past couple of years have seen Australia reassert itself on the global space stage and transition from being an introspective39 member of the space community to a forward-thinking, globally engaged and action-oriented member. In the past 12 months alone, the government established the Australian Space Discovery Centre in South Australia, the first two launch facility licences have been granted under the Launches and Returns Act, and Australia has become a founding partner of the NASA-led Artemis Program and a signatory to the Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes 2020 (the Artemis Accords; see Section IV.ii). These important developments build on the significant growth of the Australian space sector that has taken place over the past few years following, in particular, the introduction of the new body of targeted laws and regulations under the Launches and Returns Act; the establishment of Australia's dedicated national space agency, the ASA; and the formalisation of a number of cooperative arrangements with various international industry and government partners. These milestones are manifestations of a maturing and focused national space policy, which is encouraging the growth and development of the Australian space industry.

i Moon to Mars initiative

In September 2019, the Australian government announced that it would be investing A$150 million over five years to support NASA with its efforts to return to the Moon and travel to Mars as part of NASA's Artemis Program.

In response, the ASA undertook a period of public consultations with interested industry participants to seek feedback and input on the design of the initiative and the grant opportunities available. In total, over 70 written submissions were received from the government, businesses, academics, non-government organisations and individuals, and over 550 participants attended the ASA's consultation meetings held across the country.

This resulted in the design of a programme by the ASA with three integrated elements:

  1. the Supply Chain Program, which targets projects and activities designed to deliver products and services into domestic and international space supply chains;
  2. the Demonstrator Program, which provides a pathway to develop and launch products that will create new capabilities or generate new business ventures or revenue streams; and
  3. the Trailblazer Program, which is designed to contribute flagship Australian space capabilities within an international space exploration programme and to showcase Australian capabilities to the global space industry.

At the time of writing, the ASA is delivering on the first of these elements, the Supply Chain Program. The ASA has formally commenced applications from industry participants that are able to deliver products and services into domestic and international space supply chains, seeking grants of between A$250,000 and A$1 million. This might include, for example, Australian businesses with unique experience or capabilities in space mining, optical communications or other space-based services.

On 13 October 2021, the government announced that up to A$50 million will be made available through the third element of the programme – the Trailblazer Program – to support the development of an Australian-made 'foundation services' rover, which is to be included in a future mission following an agreement reached between the Australian government and NASA (and which is to demonstrate the Australian industry's skills and experience in remote operations and autonomous systems).

ii Signing of Artemis Accords

On 15 October 2020, and as part of its commitment to support NASA with its Artemis Program, Australia became one of the first countries to sign the Artemis Accords (along with the US, Canada, Italy, Japan, Luxembourg, the United Arab Emirates (UAE) and the UK).

The Artemis Accords are a set of guidelines designed to guide and promote space exploration cooperation among participating nations based on the principles set out in the Outer Space Treaty and other international agreements relating to space use and exploration.

Broadly speaking, the Artemis Accords aim to increase the safety of operations and promote the sustainable and beneficial use of space by requiring participants to, for example:

  1. conduct space activities for peaceful purposes;
  2. promote transparency by clearly describing their plans and policies;
  3. take all reasonable steps to assist astronauts in distress;
  4. register all space objects;
  5. release scientific data publicly (excluding private sector operations); and
  6. strive to support the interoperability of their space capabilities.

iii Australia–US Technology Safeguards Agreement

In July 2021, the Australian government announced that it would be commencing negotiations with the US in relation to forming a bilateral Technology Safeguards Agreement (TSA) between the two countries. The TSA, which will be based on similar models already in place with other countries, including New Zealand and the UK, will be designed to remove certain obstacles, including legal obstacles, that currently impede the sharing of resources and knowledge between the two countries, including in relation to the integration of Australian and US space technologies.

The move to establish a TSA comes against the backdrop of strengthening ties between Australia and the US on space matters (including under the Artemis Program) and is strongly supported by both the government and industry. There is already a strong level of collaboration between the two countries in relation to their spacefaring activities, and the TSA is likely to provide an opportunity for greater collaboration, including in relation to local Australian launch projects, without undermining the protection of sensitive US technology and data.

iv Establishment of Australian Space Discovery Centre and Mission Control Centre

On 31 March 2021, the Australian Space Discovery Centre and the Mission Control Centre were launched by the Prime Minister, Scott Morrison, in the innovation precinct at Lot Fourteen in Adelaide (the home of the ASA).

The Australian Space Discovery Centre has been established to display interactive space exhibits and highlight the diversity of opportunities available in the broader space sector, including careers in manufacturing, engineering, space medicine and computing, to the next generation of Australia's space workforce. It also provides information on STEM education options for young people interested in exploring pathways for a future in space.

The Mission Control Centre, which is being run by Saber Astronautics (a space operations company based in Sydney), has been established to support Australia's burgeoning space start-up industry and to provide specialist facilities for these companies and researchers to control small satellite missions, enable real-time control and testing, and accelerate the improvement and development of Australian satellite technology.

Both of these facilities are open to the public.

v ASA

As mentioned in Section I.iii, the ASA was formally established on 1 July 2018 and tasked with the ambitious goal of tripling the value of Australia's space industry to A$10–12 billion by 2030.

Since then, the ASA has become an industry-focused regulator, leading Australia's engagement with international space agencies and industry participants, formulating new space strategy and policy to better coordinate Australia's domestic space sector activities and developing new programmes – the International Space Investment Initiative and the Space Infrastructure Fund (see below) – to help grow Australia's space industry.

Engagement with industry and international partners

The ASA has now entered into formal partnerships with the following counterpart agencies: the New Zealand Ministry of Business, Innovation and Employment; the German Aerospace Centre; the Italian Space Agency; the Japan Aerospace Exploration Agency; the Canadian Space Agency; the National Centre for Space Studies in France; the UK Space Agency; the Indian Space Research Organisation; and the UAE Space Agency. The memoranda of understanding between the ASA and these international partners are designed to promote increased collaboration and cooperation between the agencies and help them develop their respective space programmes and capabilities.

In February 2021, the ASA supported the Australian government's entry into the Space Bridge Framework Agreement with the UK government. This agreement aims to enhance and improve government-to-government collaboration on space programmes and technology, trade and investment (including commercial contracts and collaboration), and research and education between the two countries.

The ASA has also been leading Australia's engagement with other industry players, including Thales Australia, EOS Space Systems, FrontierSI, Speedcast, Airbus Defence and Space SAS, Boeing, Goonhilly, SITAEL Australia, Lockheed Martin, Nova Systems, Gilmour Space Technologies and, most recently, Viasat Australia. Under the statements of strategic intent with these companies, the parties agree to provide support and collaboration on opportunities for investment and areas of strategic interest and growth. Interestingly, the companies range from start-ups to some of the biggest global space companies.

Grant of first launch facility licences

In March 2021, the ASA granted the first launch facility licence under the revised Launches and Returns Act to Southern Launch to enable it to launch suborbital satellites from its test range site based in Koonibba, South Australia. This licence represents an important milestone for the Australian civil space industry, marking the recommencement of launches from locations in Australia.

Following this, in July 2021, the ASA granted a second launch facility licence to Southern Launch to enable it to launch suborbital satellites from its facility in Whalers Way, 680km west of Adelaide. The launch of Taiwanese company TiSPACE's 10.2-metre, two-stage orbital rocket Hapith I was expected to take place from the facility in September 2021, but the launch ultimately did not proceed. Southern Launch has indicated that it is preparing for other launches to take place from the facility in late 2021.

In September 2021, it was announced that NASA would be undertaking launch activities from Australia through its collaboration with Equatorial Launch Australia in relation to the planned launch of three suborbital sounding rockets from the Arnhem Space Centre in the Northern Territory. These launches are expected to take place in mid-2022.

The ASA has indicated that it expects to continue to provide launch facility licences for other companies engaging in launch activities from Australia (which has been driven largely by the growth in private-sector investment and the emergence of new low-cost space technologies) to support the nation's maturing launch capabilities. The government's deferral of the introduction of partial cost recovery applications submitted under the Launches and Returns Act until July 2022 (to allow businesses to apply for licences, permits and authorisations without incurring an application fee) is expected to further support this.

Outlook and conclusions

In 2021, just over 50 years on from the launch of WRESAT 1, Australia is reclaiming its place on the world stage as a leading spacefaring nation. With the establishment of the ASA, the introduction of a new targeted space activities framework, the strengthening of the ties between Australia and other spacefaring countries (including, in particular, the US) and the improvements to the funding available to space sector participants and companies, the regulatory and policy settings in Australia appear to be suitably responsive, flexible and innovative to continue to support the growth and development of Australia's space sector.

These changes, and the growth in the Australian space sector more broadly, are likely to be of particular importance to the emerging small satellite (CubeSat) and launch industry players looking to take advantage of the reductions in cost and administrative barriers to participation in space. They will also be of interest to existing players in the space industry, particularly those based overseas, that are looking to explore new commercial opportunities presented by the rapid growth of space-based services. This includes those commercial players that are required to support the emerging internet of things and 5G ecosystems, such as Earth observation, space situational awareness, mobile backhaul and global connectivity solutions. It also includes future space opportunities that are likely to emerge with the continued growth in the exploration and use of outer space, such as space mining and human space flight.

In 2019, it was estimated that the Australian space sector was producing revenues of approximately A$5.2 billion and had an estimated workforce of approximately 13,200 people.40 These figures represent a very small fraction of the total value of the space industry, which is estimated to be worth around US$350 billion, a figure that is expected to grow to over US$1.1 trillion by 2040.41 If Australia is to reach its goal of growing its space industry to A$10–12 billion and creating up to 20,000 jobs by 2030, the government will need to work closely with industry to ensure that it is maintaining the ideal regulatory and commercial conditions for Australian and foreign businesses to participate and compete in the emerging space industry.

Footnotes

1 Thomas Jones is a partner and Tom Macken is an associate at Bird & Bird.

2 Kerrie A Dougherty, Australia in Space: A History of a Nation's Involvement (ATF Press, 2017), 12.

3 Cheryl Jones, 'Watch This Empty Space', The Australian (31 March 2010), cited in Steven Freeland, 'Australia and International Space Law' in Donald R Rothwell and Emily Crawford (eds), International Law in Australia (Thomson Reuters, 2017), 507.

4 Steven Freeland, 'Australia and International Space Law' in Donald R Rothwell and Emily Crawford (eds), International Law in Australia (Thomson Reuters, 2017), 508.

5 Dougherty, above n 2, 51.

6 Freeland, above n 4, 508.

7 UN Committee on the Peaceful Uses of Outer Space Legal Subcommittee, Status of international agreements relating to activities in outer space as at 1 January 2021, 68th session, UN Doc A/AC.105/C.2/2021/CRP.10 (31 May 2021).

8 Dougherty, above n 2, 139.

9 ibid, 164.

10 Freeland, above n 4, 513.

11 ibid, 514.

12 ibid.

13 Explanatory memorandum, Space Activities Bill 1998 (Cth), 4.

14 Space Activities Act 1998 (Cth), s 3.

15 The Rules are made up of three sets of rules, including the: (1) Space (Launches and Returns) (General) Rules 2019; (2) Space (Launches and Returns) (High Power Rocket) Rules 2019; and (3) Space (Launches and Returns) (Insurance) Rules 2019.

16 Mr Enrico Palermo is a mechanical engineer with a double degree in applied mathematics (physics) and mechanical engineering from the University of Western Australia. He was previously the chief operating officer of Virgin Galactic Holdings, having held various roles with Virgin Galactic since joining the company in 2006. He is the second person to be appointed head of the ASA, having taken over from Dr Megan Clark in January 2021.

17 A 'launch facility' means a facility (whether fixed or mobile) or place specifically designed or constructed as a facility or place from which space objects can be launched, and includes all other facilities at the facility or place that are necessary to conduct a launch (Space (Launches and Returns) Act 2018 (Cth), s 8).

18 A 'space object' means (1) an object the whole or a part of which is to go into or come back from an area beyond a distance of 100km above mean sea level; or (2) any part of such an object, even if the part is to go only some of the way towards or back from an area beyond a distance of 100km above mean sea level (Space (Launches and Returns) Act 2018 (Cth), s 8).

19 Space (Launches and Returns) Act 2018 (Cth), s 18.

20 Space (Launches and Returns) (General) Rules 2019, r 5.

21 ibid., rr 11–25.

22 ibid., rr 7–9.

23 Space (Launches and Returns) Act 2018 (Cth), s 28.

24 ibid., s 28(1).

25 ibid., s 28(3).

26 Space (Launches and Returns) (General) Rules 2019, r 35.

27 ibid., rr 43–57.

28 ibid., r 37.

29 Space (Launches and Returns) (High Power Rocket) Rules 2019, r 5.

30 ibid., r 6.

31 ibid., rr 14–35.

32 ibid., r 7.

33 A 'responsible party' for the launch or return of a space object means, broadly, the holder of the permit, licence or authorisation. In any other case, it refers to: (1) the persons who carried out the launch or return of the space object; (2) any person who, at any time during the liability period for the launch or return, owned all or some of any payload forming part of the space object concerned; or (3) any other person specified in the rules. In these circumstances, if the space object was launched from a facility (whether fixed or mobile) or place outside Australia, or if the space object was returned to a place or area outside Australia, a person is only a responsible party if the person is also an Australian national (Space (Launches and Returns) Act 2018 (Cth), s 8).

34 Space (Launches and Returns) Act 2018 (Cth), s 46L.

35 A 'carriage service' means a service for carrying communications by means of guided and/or unguided electromagnetic energy (Telecommunications Act 1997 (Cth), s 7).

36 Space (Launches and Returns) (Insurance) Rules 2019.

38 Space (Launches and Returns) Act 2018 (Cth), ss 27; 37; 46A; 46K; 46T; 46Y.

39 Freeland, above n 4, 525.

40 Australian Government Space Coordination Committee, State of Space Report (30 September 2019), https://www.industry.gov.au/sites/default/files/2020-05/state-of-space-report-2018-19.pdf.

41 Morgan Stanley, Space: Investing in the Final Frontier (2 July 2019), https://www.morganstanley.com/ideas/investing-in-space.

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