The Space Law Review: New Zealand

Introduction to the national legal, regulatory and policy framework

i Background to the space law framework

Since the introduction of its first space policy regime in 2017, New Zealand has become one of the fastest-growing space economies in the world. While New Zealand ratified some of the core United Nations (UN) space treaties in the 1960s and 1970s (see Section I.iv), it did not have a dedicated space agency until 2016 and did not have dedicated space legislation until 2017.

The Outer Space and High-altitude Activities Act 2017 (the Outer Space Act) established New Zealand's first legal mechanism for the registration, licensing and operation of launch vehicles, payloads and high-altitude vehicles (HAVs). In total, 79 payload permits have been approved under the Outer Space Act from owners in North America, Europe, Asia and Australasia in the commercial, government, academic and non-profit sectors.

The policy objectives behind the Outer Space Act were to balance New Zealand's obligations as a launching state under the international treaties (see Section I.iv) while capitalising on the economic opportunities associated with the commercial space launch industry.2

Regulatory developments in the past few years indicate the government's continued commitment to international treaty obligations. In December 2019, the New Zealand government's Cabinet (the Cabinet) approved four new principles and banned four launch activities under the Outer Space Act (see Section I.iii), as proposed by the Minister of Economic and Regional Development (the Minister). The implementation of these principles is intended to align New Zealand's regulatory framework with the core UN treaties and support the development of an internationally credible New Zealand-based space economy.3

The space sector's activity in New Zealand has resulted in a significant contribution to the economy. A report by the Ministry of Business, Innovation and Employment (MBIE), published in November 2019, indicated that over the previous financial year the industry contributed over NZ$1.69 billion to New Zealand's economy and employed over 12,000 people.4 In addition to this, New Zealand is now home to Rocket Lab, the world's leading small satellite provider. The report determines that New Zealand is extremely well placed to increase its share in the global space economy.

ii Current framework

The Outer Space Act governs the launch of space objects in New Zealand. It is supplemented by two sets of regulations: the Outer Space and High-altitude Activities (Licences and Permits) Regulations 2017 (the Licensing Regulations); and the Outer Space and High-altitude Activities (Definition of High-altitude Vehicle) Regulations 2017 (the HAV Regulations). The Outer Space Act and both sets of Regulations are administered by the New Zealand Space Agency, a department of the MBIE that has been operating since 2016.

The presence of the major commercial launch company, Rocket Lab, in New Zealand has acted as a catalyst for this framework. Prior to the Outer Space Act, Rocket Lab's operations in New Zealand were initially governed by the following agreements:

  1. the Agreement between the Government of New Zealand and the Government of the United States of America on Technology Safeguards Associated with United States Participation in Space Launches from New Zealand (commonly known as the Technology Safeguards Agreement (TSA)),5 which was signed in June 2016 as a prerequisite for the establishment of Rocket Lab's commercial space launch operations in New Zealand; and
  2. the Agreement between the New Zealand Government and Rocket Lab Ltd and Rocket Lab USA Inc dated 16 September 2016 (the Rocket Lab Agreement), which was entered into to allow Rocket Lab to commence space launches while the Outer Space Act was still in the legislative process, and which mirrors the rights, powers, authorities and obligations in the Outer Space Act (as well as incorporating relevant requirements from the TSA).

The Outer Space Act provides that the Rocket Lab Agreement was to be treated as a launch licence and a facility licence until both licences expired (1) six months after the commencement of the Outer Space Act, being 21 June 2018 (the expiry of the transition period) or (2) if Rocket Lab applied for licences under the Outer Space Act before the expiry of the transition period, on the date on which the Minister granted or declined to grant a licence. Rocket Lab has now obtained launch and facility licences under the Outer Space Act.

New Zealand is also party to several bilateral agreements. As mentioned above, on 16 June 2016, the New Zealand government entered into the TSA with the United States, enabling commercial entities in New Zealand to import US rocket launch technology while preserving their full existing powers and functions by way of a side agreement. The Arrangement with the European Space Agency (ESA) on the setting up and use of telemetry and tracking facilities for the purpose of the New Zealand Space Agency's launcher programmes and activities was signed in March 2007 and renewed in 2017.

On 22 October 2019, the MBIE signed an agreement with the Australian Space Agency to encourage a trans-Tasman space innovation ecosystem.6 The agreement will facilitate collaboration in areas that could include launch and orbital or suborbital missions, expanding ground segment networks and remote asset management.

On 31 May 2021, New Zealand joined the Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (the Artemis Accords), an international arrangement to cooperate with NASA on peaceful exploration and activity in outer space. The Artemis Accords are non-binding and set principles on the peaceful exploration of space, transparency, interoperability, release of scientific data, safe and sustainable use of resources, safe disposal of debris and prevention of harmful interference in others' activities, among other principles.7 The MBIE noted that a range of Māori interests and values are engaged by the Artemis Accords, such as tātai arorangi (knowledge of outer space) and kaitiakitanga (which requires guardianship of outer space and protection of its resources).8

iii Recent developments

On 17 August 2021, the MBIE announced the beginning of a mandatory three-year review of the operation and effectiveness of the Outer Space Act. The review will consider:

  1. the operation and effectiveness of the Act since it came into force on 21 December 2017;
  2. whether the provisions of the Act should be retained or repealed; and
  3. whether any further amendments to the Act are necessary or desirable.

Paul Stocks, the MBIE deputy chief executive of the Labour, Science and Enterprise Group, said the review will assess whether the licensing and permitting processes in the Outer Space Act and Regulations effectively and efficiently deliver on the Act's purposes and how they might be improved operationally. While there is no statutory obligation to review the Regulations at the same time as the Outer Space Act, the MBIE notes that these will be considered within the review to ensure that the regime as a whole is operating effectively. The final report is due to be released to the Minister on 15 December 2021.9

On 28 September 2021, the MBIE announced that the New Zealand Space Agency will become the 27th member of the International Space Exploration Coordination Group (ISECG). The ISECG is a technical coordination forum that allows the world's major space agencies to share their space exploration objectives and interests with the goal of strengthening their individual space programmes and the collective international space exploration effort. The MBIE noted that membership would allow the New Zealand Space Agency to build international partnerships for participation in globally coordinated space exploration efforts and better connect New Zealand researchers to leading international institutions and collaboration opportunities.10

On 17 December 2019, the Cabinet approved a proposal by the Minister to introduce four new principles and four banned launch activities under the Licensing Regulations. The intention of the proposal was to strengthen the New Zealand Space Agency's regulatory function and ensure that decisions about payload permits continue to be made in the national interest.

The Cabinet approved the following set of principles, which guide the Minister's decisions about payload permit applications:

  1. Responsibility – space activities from New Zealand should promote an orbital environment where users avoid causing harm or interference with the activities of others.
  2. Sustainability – space activities from New Zealand should preserve the benefits of space for future generations through adherence to sustainable practices.
  3. Safety – space activities from New Zealand should not jeopardise the safety of people on the ground or in space.
  4. Alignment with New Zealand's values, policies, interests and laws – space activities authorised by the government should reflect New Zealand's values and interests, and align with broader policy settings.

The Cabinet also approved the Minister's proposal to ban the following launch activities, on the basis that they are not in New Zealand's national interest or that they breach New Zealand or international laws:

  1. payloads that contribute to nuclear weapons programmes or capabilities;
  2. payloads with the intended end use of harming, interfering with or destroying other spacecraft or space systems on Earth;
  3. payloads with the intended end use of supporting or enabling specific defence, security or intelligence operations that are contrary to government policy; and
  4. payloads where the intended end use is likely to cause serious or irreversible harm to the environment.

The ban means that payload permits relating to launch activities in the list will not be authorised. The Minister confirmed that all previously approved payloads were consistent with the principles, and that the updates did not represent a significant change to the approval process.

iv International law

New Zealand is a party to the following UN space treaties:

  1. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty), which it ratified on 31 May 1968;
  2. the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968 (the Rescue and Return Agreement), which it ratified on 8 July 1969;
  3. the Convention on International Liability for Damage Caused by Space Objects 1972 (the Liability Convention), which it ratified on 30 October 1974; and
  4. the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention), which it acceded to on 23 January 2018.

Like many other countries, New Zealand is not party to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979.

New Zealand takes a dualist approach to international treaties, which means that treaties do not have the force of domestic law until incorporated into domestic legislation. When New Zealand signed the core UN treaties, it did not have a space launch industry nor an operations industry, and there was accordingly no need to consider how its treaty obligations would be accounted for in the domestic framework (apart from the Registration Convention).

However, the rapid enactment of the Outer Space Act, supplemented by the Rocket Lab Agreement, suggests that the government did view these obligations as binding and sought to enforce the provisions of the Outer Space Treaty and the Liability Convention through the Outer Space Act and, to the extent the legislative process was unable to keep up with Rocket Lab's plans, the Rocket Lab Agreement.

The Outer Space Act makes reference to the Outer Space Treaty, the Liability Convention and the Registration Convention. It acknowledges the government's potential liability under the Outer Space Treaty and the Liability Convention, and describes its purpose as including the implementation of the obligations in the Outer Space Treaty not to:11

  1. place in orbit around the Earth any objects carrying nuclear weapons or weapons of mass destruction, install these weapons on celestial bodies or station them in outer space in any other manner; or
  2. establish military bases, installations or fortifications on celestial bodies, or test any types of weapons or conduct manoeuvres on celestial bodies.

New Zealand has been a member of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) since December 2016 and is also a member of the International Telecommunication Union (ITU).

As part of its commitment to COPUOS and space debris mitigation, the New Zealand government has been providing support to the UN's Office for Outer Space Affairs (UNOOSA) project, Space Solutions for the Pacific.12 UNOOSA has identified the Asia-Pacific region as particularly vulnerable to climate-related hazards of increasing intensity. This project aims to promote resilience in this area.

As mentioned in Section I.ii, New Zealand recently joined the Artemis Accords. While the Artemis Accords are non-binding at international law, a Cabinet Paper published on 30 June 2021 observed that New Zealand has a critical interest in space resource utilisation (SRU). By joining the Artemis Accords, New Zealand intends to assist with encouraging additional multilateral rules, norms or standards to ensure the long-term sustainability of SRU and to give effect to the existing international rules in the SRU context.13

Regulation in practice

i Outer Space Act

The Outer Space Act regulates the launch of launch vehicles, payloads and HAVs from New Zealand. The Outer Space Act is modelled on New Zealand's obligations under the Outer Space Treaty, the Liability Convention and the Registration Convention, and establishes a regime for regulating space activities in accordance with these international obligations.

The Outer Space Act provides for four types of licences or permits: launch licences; payload permits; facility licences; and high-altitude licences. The Licensing Regulations contain more detailed requirements for the content of each licence and permit application.

Licences and permits must be obtained for launches conducted from New Zealand, or from outside New Zealand by New Zealand nationals. The government considers that its international liability for national activities in outer space (under the Outer Space Treaty) extends to activities carried out from its territories or by its nationals. Accordingly, all space activities by New Zealand nationals must be licensed, and the government will actively monitor overseas launches, including through its relationships with international regulators.

The Outer Space Act allows the Minister to take into account a licence, permit or other authorisation obtained overseas when determining whether to grant a licence or permit in New Zealand. The Minister may treat an overseas authorisation as satisfying some or all of the criteria for granting a launch licence, payload permit or facility licence.14

Applications for licences and permits must be made with the New Zealand Space Agency. There is no specified process for appealing a licensing decision made by the Agency. As such, an applicant may need to rely on the usual rights of judicial review to formally challenge a decision.

Launch licences

Launch licences are required for the launch of launch vehicles from New Zealand by any person or from outside New Zealand by New Zealand nationals.

A launch vehicle is defined as:15

(a) a vehicle, the whole or any part of which—
(i) reaches, or is intended to reach, outer space; or
(ii) carries or supports the launch of, or is intended to carry or support the launch of, a payload; or
(b) any component part of a vehicle described in paragraph (a).

A launch is defined as 'causing to take off or depart' or 'releasing' and includes an attempted launch.

Launch from New Zealand

A launch licence is required for the launch of a launch vehicle from a launch facility in New Zealand or from a vehicle in the air where that vehicle was launched from New Zealand.16

In applying for a launch licence, an applicant must provide:17

  1. details of each proposed launch, including each launch vehicle, the launch facility and the purpose of the proposed launches;
  2. the protective security arrangements in place in relation to the launch vehicle telemetry and control and other launch systems and sensitive space technology;
  3. evidence of the applicant's technical capability to conduct a safe launch;
  4. a safety case for the proposed activities under the licence;
  5. an orbital debris mitigation plan;
  6. evidence of the applicant's fitness to hold a launch licence; and
  7. other information, such as details of any current or pending spectrum authorisations.

A launch licence may only be granted if the Minister is satisfied that the applicant meets certain requirements relating to:18

  1. technical capability to carry out a safe launch;
  2. reasonable management of public safety risks;
  3. adequacy of an orbital debris mitigation plan; and
  4. consistency with New Zealand's international obligations.

The Minister retains residual discretion to refuse to grant a launch licence if he or she is not satisfied that a proposed launch is in the national interest or if he or she has concerns about the applicant's fitness to hold a launch licence.19

Once issued with a licence, a licensee must comply with ongoing conditions and requirements, including, but not limited to:20

  1. providing information on each proposed launch, such as the date, location, intended trajectory and basic orbital parameters;
  2. notifying the Minister of any change in the status of an overseas licence, where the New Zealand launch licence is based on this overseas licence;
  3. notifying the Minister if any part of a launch vehicle that reaches outer space is no longer in Earth orbit;
  4. having, or being satisfied that a person has, all necessary payload permits, facility licences or other authorisations for the proposed launch;
  5. conducting the launch and operations in a manner that minimises the risk of contamination of outer space or adverse changes to the Earth's environment, takes into account the activities of others in the use of outer space, is consistent with New Zealand's international obligations and complies with New Zealand law; and
  6. complying with any other relevant conditions imposed by the Minister, including conditions imposed to avoid harmful interference with the space activities of others.

A launch licence must also contain conditions specifying the type and amount of insurance that the licensee must hold.21

The Minister may require a licensee, as a condition of the licence, to indemnify the Crown against any claim brought against the Crown under the Liability Convention or the Outer Space Treaty, or any other claim brought against the Crown under international law in relation to an act or omission of the licensee.22

A launch licence may be issued for up to five years and may be renewed for further periods of up to five years.23

The Minister may vary, revoke or suspend a licence at any time if he or she believes that:24

  1. the licensee has breached the Outer Space Act, any regulations or a condition of the licence;
  2. the revocation, variation or suspension of the licence is required for national security, public safety or international law compliance reasons; or
  3. any change in the status of an overseas licence, where the New Zealand launch licence is based on this overseas licence, affects New Zealand's national security, public safety or international compliance interests.

The obligations of a licensee under a launch licence survive the expiry or revocation of the launch licence and continue until all matters connected to the launch or launches under the launch licence have been completed.25

Launch from outside New Zealand by a New Zealand national

A New Zealand national (being a New Zealand citizen, permanent resident or body corporate) wishing to launch a launch vehicle from a launch facility outside New Zealand, or from a vehicle in the air that was launched from outside New Zealand, must obtain an overseas launch licence. The same process, requirements and conditions for a standard launch licence apply to an overseas launch licence.26

Payload permits

Launch from New Zealand

In addition to a launch licence, a person wishing to launch a payload from a launch facility in New Zealand, or from a vehicle in the air that was launched from New Zealand, must obtain a payload permit.27

'Payload' is defined as an object that is carried or placed, or is intended to be carried or placed, in outer space, including components of a launch vehicle that are specifically designed or adapted for the object, and including a load to be carried for testing purposes or otherwise on a non-profit basis.28

Importantly, the Outer Space Act does not prohibit a person from entering into a contract for the launch of a payload or taking any other preparatory step without first obtaining a payload permit, provided that he or she holds a permit at the time of the launch.29

As with a launch licence, an applicant must provide information about the proposed payload, associated ground stations and launch facilities, safety and security arrangements and an orbital debris mitigation plan to prove that he or she can manage public safety risks, has an adequate orbital debris mitigation plan and will not operate in a manner inconsistent with New Zealand's international obligations.30

The Minister may refuse to issue a payload permit on the basis that the proposed operation of the payload is not in the national interest.31

A permit holder must comply with specified conditions, including the condition to conduct the operations of each payload in a manner that:

  1. minimises the risk of contamination of outer space or adverse changes in the Earth's environment;
  2. takes into account the activities of others in the use of outer space;
  3. is consistent with New Zealand's international obligations; and
  4. avoids harmful interference with outer space and terrestrial radiocommunications.

A licensee must also comply with any other relevant conditions imposed by the Minister, including conditions imposed to avoid harmful interference with the space activities of others.

The Minister may require an indemnity from the applicant as a condition of the permit and may also require a specified type and amount of insurance (although a condition about insurance is not mandatory).32

There is no statutory expiration date for a payload permit, and a permit may specify expiry on any date, or on the occurrence of a particular event.33 A payload permit may be varied, revoked or suspended in the same manner and for the same reasons as a launch licence.34

As with a launch licence, the obligations of a permit holder under a payload permit survive the expiry or revocation of the permit.35

Launch from outside New Zealand by a New Zealand national

A New Zealand national wishing to launch a payload from a launch facility outside New Zealand, or from a vehicle in the air that was launched from outside New Zealand, must obtain an overseas payload permit. The same process, requirements and conditions for a standard payload permit apply to an overseas payload permit.36

Facility licences

A person must not operate a fixed or mobile launch facility in New Zealand unless he or she holds a facility licence.37

An applicant must provide information about the launch facility, evidence of technical capability to operate the facility, a safety case and evidence of fitness to hold a licence.38 The application must then meet the usual requirements as to technical capability, safety and international law compliance. A facility licence may be refused on the grounds of national interest or the applicant's unfitness to hold a licence.39

As with launch licences and payload permits, a licensee must comply with any conditions prescribed or imposed by the Minister, although these conditions are not detailed in the Outer Space Act. The Minister may also require the licensee to indemnify the Crown as a condition of the licence.40 There are no requirements in the Outer Space Act regarding insurance for launch facilities.

A facility licence may be issued for up to five years and may be renewed, varied, revoked or suspended by the Minister.41

High-altitude licences

A unique feature of New Zealand's space legislation is the high-altitude licence regime. A high-altitude licence is required to launch a HAV from New Zealand or from a vehicle in the air that was launched from New Zealand.42

A HAV is defined as an aircraft or any other vehicle that travels, is intended to travel or is capable of travelling to high altitude, which means an altitude above the higher of flight level 600 and the highest upper limit of controlled airspace under the Civil Aviation Act 1990.43

A high-altitude licence is not required for an activity already covered by a launch licence.44 Certain HAVs are also exempt from the licensing requirements under the HAV Regulations.45

An applicant must provide information about each proposed launch, any payloads proposed to be carried by the HAV and evidence of the applicant's fitness to hold a licence. In relation to an application for a HAV that is not an aircraft, the applicant must also provide evidence of its technical capability to conduct a safe launch and a safety case.46

The Minister may grant a high-altitude licence if he or she is satisfied that the applicant is technically capable of conducting a safe launch of each HAV, can manage public safety risks and will operate in a manner consistent with New Zealand's international obligations.47

In relation to each HAV that is an aircraft, the Minister must consult with the Director of Civil Aviation and receive confirmation that the HAV has the appropriate permits, certificates or documents.48

A high-altitude licence may be refused on the basis of national interest or the applicant's unfitness to hold a licence.49

A licensee must comply with the conditions and requirements set out in Section 48 of the Outer Space Act. The Minister may require a specified type and amount of insurance as a condition of the licence. However, there is no indemnification requirement for high-altitude licences.

The Outer Space Act does not provide for the expiry of high-altitude licences and merely empowers the Minister to revoke, vary or suspend a licence.50

Permits from other jurisdictions

Taking a pragmatic approach, the New Zealand Space Agency recognises that licences and permits granted by other jurisdictions may already satisfy some of the requirements under the Outer Space Act. Currently, the licences granted by the organisations listed below are treated as meeting some of the Agency's requirements, particularly when they address aspects of technical capability, public safety or orbital debris mitigation:

  1. the US Federal Aviation Administration;
  2. the US Federal Communications Commission (FCC);
  3. the National Oceanic and Atmospheric Administration – where an applicant also holds an FCC licence;
  4. NASA;
  5. the US Department of Defense; and
  6. ESA.

Persons wishing to rely on a permit granted from another jurisdiction should contact the New Zealand Space Agency.51

Offences

In addition to the licensing regime, the Outer Space Act creates offences for operating without the relevant licence or permit.52

For each offence, the maximum penalty is as follows: for an individual, one year's imprisonment or a fine not exceeding NZ$50,000, or both; and for a company, a fine not exceeding NZ$250,000.

The Outer Space Act also creates various offences for providing false or misleading information to an enforcement officer, entering or failing to leave a segregated debris protection area or failing to display an identity card.53

The offence that carries the most severe penalty is intentional interference with a launch vehicle or payload.54 If a person intentionally, or without lawful excuse, takes, removes, uses or interferes with a launch vehicle, payload, related equipment (including debris from any of these) or technical data, with the intention of using or disposing of it for an industrial or commercial purpose, then the following penalties may apply: for an individual, up to five years' imprisonment or a fine not exceeding NZ$100,000, or both; and for a company, a fine not exceeding NZ$500,000.

Interference with a launch vehicle or payload without the requisite intention carries the comparatively smaller penalties of a NZ$1,000 fine for an individual and a NZ$10,000 fine for a company.

ii Radiocommunications

Depending on the nature of the proposed space activities, a person may also need to obtain a satellite filing and a radio or spectrum licence in addition to the licences under the Outer Space Act.

While the need for these is explained in more detail below, the satellite filing is intended to ensure coordination and avoid issues with other administrations, while the radio and spectrum licences are intended to ensure no interference within New Zealand.

ITU filing

The MBIE is the national administration responsible for submitting satellite filings to the ITU. An individual or company wishing to operate a satellite network using New Zealand orbital slots or spectrum must apply to the MBIE for the submission of a filing on its behalf.55 The MBIE can accept filing applications at its discretion.56

An applicant is responsible for providing the required information and for ensuring that the content of the proposed filing complies with the ITU Radio Regulations and New Zealand's allocations for space services. If additional licences or permits are required to launch and operate space objects, the applicant is responsible for obtaining these.

Upon acceptance of an application for an ITU filing, the MBIE will enter into a deed of agreement with the applicant, under which the applicant will be held to 'performance milestones' to retain the satellite network filings.57

Radio and spectrum licences

The use of radio frequencies in New Zealand requires either a spectrum or a radio licence in accordance with the Radiocommunications Act 1989 and the Radiocommunications Regulations 2001. The radio spectrum licensing regime is managed by the MBIE agency Radio Spectrum Management, which operates separately to the New Zealand Space Agency.

Licences are not required for satellite downlink as this is not regulated in New Zealand and is not eligible for protection from interference caused by other radiocommunications activities.58

Whether a spectrum or radio licence is required will depend on the applicable regime and the rights holder. Radio spectrum rights are allocated under:

  1. the administrative regime, under which the MBIE grants radio licences for the use of the radio spectrum; and
  2. the management rights regime, under which private individuals or corporations are assigned management of certain bands of the spectrum (typically through a spectrum auction process) and issue spectrum licences to users of those bands.
Administrative regime – radio licences

As a matter of policy, the MBIE will only grant radio licences in accordance with New Zealand's frequency allocations.59

A radio licence may be issued either to an applicant personally or by the MBIE as a general user radio licence (GURL). If a GURL has been granted in respect of a particular band of spectrum, any person may use the spectrum without needing to obtain a licence in his or her own name or pay licence fees, subject to the conditions of the GURL.

If there is no applicable GURL, a person must apply for a radio licence from the MBIE. A radio licence application must comply with technical compatibility requirements, equipment standards, non-interference requirements and New Zealand's international obligations.60

The duration of a radio licence will be at the discretion of the MBIE, and the licence holder must pay an annual fee to renew the licence.

Management rights regime – spectrum licences

For radio spectrum subject to the management rights regime (i.e., frequencies held by private management rights holders), an entity must obtain a spectrum licence from the relevant rights holder.

Like the MBIE, a management rights holder may also issue a general user spectrum licence over any frequencies within their rights.

To obtain a spectrum licence from a management rights holder, an applicant must request a licence directly from the rights holder. A rights holder has the sole discretion to grant spectrum licences and is under no obligation to do so.

A spectrum licence must be accepted by the Registrar of Radio Frequencies to be effective, which means it must be within specified emission limits. A licence application must also meet any conditions imposed on the management right, and any further conditions imposed by the rights holder.

A rights holder may set any price for a spectrum licence, and the licence holder is also responsible for paying annual licence fees to the MBIE.

A fixed term can be set for a spectrum licence, and the expiry date must not be later than the expiry date of the record of management rights to which the licence relates.

Distinctive characteristics of the national framework

i Approach to regulation

The government has taken an openly pro-industry approach in the establishment of its space law framework.

A concern raised in the drafting process for the Outer Space Act was that 'overly onerous licensing requirements would impose high compliance costs and would deter foreign payload providers from launching in New Zealand'.61 The Outer Space Act is accordingly drafted to 'avoid unnecessary prescription' and allow decision makers to 'tailor the conditions of licences and permits . . . rather than a “one-size fits all” approach'.62

There is, of course, a risk that this lack of prescriptiveness could lead to the MBIE, operating through the New Zealand Space Agency, taking a more conservative approach in the future, should the Agency consider it necessary to minimise the risk to the government of proposed activities. Whether this is the case will become more apparent as the MBIE completes the three-year review of the Outer Space Act, outlined in Section I.iii.

Overall, the government has made it clear that there is a need to balance commercial opportunities with national security interests and international law compliance. The Outer Space Act accordingly strikes a balance between all three, although it upholds the principle that 'it is essential the legal framework does not inhibit the development of a space launch industry'.63

ii HAVs

New Zealand is the first and only country in the world to have a dedicated regulatory regime for HAVs.

In its regulatory impact statement for the Outer Space Bill, the MBIE noted that newly developed technologies were operating in near space and performing similar functions and services to satellites. It proposed that these technologies be 'brought within the scope of the space regime' to ensure consistency of treatment, and to ensure that New Zealand remained compliant with its international obligations.

The MBIE considered that the existing Civil Aviation Act did not sufficiently meet New Zealand's international obligations as it only dealt with specified aviation safety and had no powers to control activities or operations that may pose a threat to national security or are not in the national interest.64

It was therefore suggested that the Outer Space Act contain powers to regulate and permit aircraft activities (in particular those of balloons and drones) in near space on the same basis as similar activities carried out by satellites in outer space.

Current developments

New Zealand's entire space law regime is a new development. Beyond Rocket Lab, a number of space start-ups have established themselves at various locations around the country (including some that have come out of the University of Auckland).65 In April 2021, the MBIE announced that a critical milestone had been reached in New Zealand's first government-funded space mission. The New Zealand Space Agency and the Environmental Defense Fund (a non-governmental organisation) will be working on a pioneering satellite mission designed to locate, quantify and reduce human-made methane emissions worldwide.

However, unlike traditional government-led space nations, the New Zealand space economy is driven by New Space, characterised by private sector investment and innovation. Of the 79 payload permits approved to date, 43 have commercial owners, 18 are owned by foreign governments, and the remainder are owned by academic and non-profit organisations.66

Outlook and conclusions

As discussed in Section I, the government is eager to engage with the space launch industry and passed the Outer Space Act with a view to future, as well as current, opportunities. It has been receptive to approaches from operators both in and outside New Zealand.

New Zealand's space legislation is still largely untested and, aside from the Rocket Lab arrangement, there is little precedent for the application, interpretation and enforcement of the Outer Space Act, the Licensing Regulations and the HAV Regulations. The pending statutory review of the Outer Space Act will provide greater insight into how the regime has operated for key stakeholders thus far.

Footnotes

1 Simon Martin is a partner and Roscoe Moore is a solicitor at Hudson Gavin Martin.

2 Cabinet Economic Growth and Infrastructure Committee Minute of Decision, 'The Scope of Space Policy and a Lead Space Agency' (April 2016).

3 Office of the Minister of Economic Development, Payload Principles Cabinet Paper 'Approach to payload assessments under the Outer Space and High-altitude Activities Act' (December 2019).

4 Ministry of Business, Innovation and Employment Report by Deloitte, 'New Zealand Space Economy: Its value, scope and structure' (November 2019).

5 See also the corresponding Arrangement between the Government of New Zealand and the Government of the United States of America relating to the Agreement between the Government of New Zealand and the Government of the United States of America on Technology Safeguards Associated with United States Participation in Space Launches from New Zealand.

6 Statement by the Australian Government Department of Industry, Science, Energy and Resources (October 2019).

7 Statement by the Minister of Foreign Affairs and the Minister of Economic and Regional Development (June 2021).

8 Ministry of Business, Innovation and Employment, Cabinet Paper 'Space Resource Utilisation and the Artemis Accords' (June 2021).

9 Ministry of Business, Innovation and Employment 'Review of the Outer Space and High-altitude Activities Act 2017 – Terms of Reference' (August 2021).

10 Ministry of Business, Innovation and Employment, Press Release 'New Zealand Space Agency joins international space coordination group' (September 2021).

11 Outer Space Act, s 3.

12 UN Office for Outer Space Affairs Report Annual Report (2019).

13 Ministry of Business, Innovation and Employment, Cabinet Paper 'Space Resource Utilisation and the Artemis Accords' (June 2021).

14 Outer Space Act, s 51.

15 Outer Space Act, s 4.

16 Outer Space Act, s 7.

17 Licensing Regulations, sch 3.

18 Outer Space Act, s 9.

19 Outer Space Act, s 9.

20 Outer Space Act, s 10(1).

21 Outer Space Act, s 10(2).

22 Outer Space Act, s 10(3).

23 Outer Space Act, ss 11 and 12.

24 Outer Space Act, s 14.

25 Outer Space Act, s 13.

26 Outer Space Act, ss 23 to 30; Licensing Regulations, sch 3.

27 Outer Space Act, s 15.

28 Outer Space Act, s 4.

29 Outer Space Act, s 15(4).

30 Outer Space Act, s 17; Licensing Regulations, sch 4.

31 Outer Space Act, s 17(2).

32 Outer Space Act, s 18.

33 Outer Space Act, s 19.

34 Outer Space Act, s 21.

35 Outer Space Act, s 20.

36 Outer Space Act, ss 31 to 37; Licensing Regulations, sch 4.

37 Outer Space Act, s 38.

38 Licensing Regulations, sch 5.

39 Outer Space Act, s 40.

40 Outer Space Act, s 41(2).

41 Outer Space Act, ss 42 to 44.

42 Outer Space Act, s 45.

43 Outer Space Act, s 4.

44 Outer Space Act, s 45(2).

45 These Regulations exempt balloons and model rockets, provided that they meet certain specifications from the HAV definition in the Outer Space Act.

46 Licensing Regulations, sch 6.

47 Outer Space Act, s 47(1)(a).

48 Outer Space Act, s 47(1)(b).

49 Outer Space Act, s 47(2).

50 Outer Space Act, s 49.

51 Ministry of Business, Innovation and Employment 'Permits and licenses for space activities' (December 2019).

52 Outer Space Act, ss 65 to 70.

53 Outer Space Act, ss 71, 73 to 75 and 77 to 78.

54 Outer Space Act, s 72.

55 Ministry of Business, Innovation and Employment Operational Satellite Policy (PIB 60).

56 Note that, anecdotally, the possibility of changes in government may be treated by the MBIE as a relevant factor when considering the acceptable duration and terms of a potential filing.

57 Ministry of Business, Innovation and Employment Operational Satellite Policy (PIB 60).

58 ibid., at [3.1], [4.1.1].

59 Ministry of Business, Innovation and Employment Table of Radio Spectrum Usage in New Zealand (PIB 21).

60 Ministry of Business, Innovation and Employment Radio Licence Certification Rules (PIB 38).

61 Ministry of Business, Innovation and Employment Regulatory Impact Statement: The Outer Space and High-altitude Activities Act 2017 (14 August 2017).

62 ibid.

63 Ministry of Business, Innovation and Employment Regulatory Impact Statement: Outer Space and High Altitude Activities Bill (June 2016).

64 ibid.

65 Office of the Prime Minister's Chief Science Advisor, 'Space is for Everybody' (January 2020).

66 Ministry of Business, Innovation and Employment Report by Deloitte, 'New Zealand Space Economy: Its value, scope and structure' (November 2019).

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