Eclipsing the legal black hole: Government proposes changes to space law

This article was written by Annabel Griffin, Prudence Buckland, Henry Sit and Andreas Sherborne.

Earlier this month, the hotly anticipated Space Activities Amendment (Launches and Returns) Bill 2018 (Bill) was introduced to Parliament – three years after the Government first announced a comprehensive review into domestic space legislation.

The Bill proposes to amend the Space Activities Act 1998 (Act) (slated to be renamed as the "Space (Launches and Returns) Act 2018") to better "ensure safe industry participation, and to encourage investment and innovation through legislative simplification". The amendments proposed by the Bill are intended to create a flexible regulatory regime that can be applied to new space technologies to "reduce red tape for businesses" operating in the sector. The proposed reforms will affect Australian and foreign businesses, research institutions and government agencies engaged in launch and other space activities regulated by the Act.

The Bill's release follows the recent Report on the Review of Australia's Space Industry Capability (Review) and the Australian Government's Response to that Report, which commits the Government to adopting (in-principle) nine recommendations that seek to grow the size of Australia's space industry to $10-12bn by 2030 – including a commitment to establish the first Australian Space Agency from 1 July 2018.

One of the key features of the proposed amendments (as stated by Government) is to "[streamline] approval processes and insurance requirements for launches and returns". To that end, the amendments modify the types of licences and permits required for space-based activities. The substantive impacts of these proposed changes are yet to play out in practice; however, it appears that sector participants may still need to obtain one or more approvals for particular space activities. Notably, the amendments do not propose a role for the new space agency in facilitating regulatory approval processes under the legislation – despite the Review's recommendation that the agency assume this function.

So what are the details of the proposed amendments? This article identifies the key changes to the regulatory regime as set out in the Bill.

What's new?	What does this mean?
Launch activities and licensing requirements	The Act will regulate the launch of space objects from both moving aircraft and launch facilities, and high power rockets from launch facilities. Launch facility licences will be granted after consideration by the Minister of, amongst other things, whether a person is competent to operate a launch facility. In deciding whether or not to grant a launch facility licence, the Minister will no longer be required to consider a person's competency to operate a launch vehicle (or any regulations relating to launch vehicle / flight paths). To launch a space object from an aircraft in Australian airspace, an Australian launch permit will be required (formerly a 'launch permit') – this type of licence will be required to launch any object that goes (or partly goes) to, or returns, from an area beyond the distance of 100km above sea level. To launch a high power rocket from Australia up to 100km above sea level, a high power rocket permit will be required – this type of permit was not previously required under the Act. The Bill does not identify what will constitute a 'high power rocket'. When deciding whether to grant a licence, permit or authorisation, the Minister can take into account the security, defence or international relations of Australia.
Other permits and approvals	To launch one or more space objects from a specified facility (whether fixed or mobile), or a specified place, outside Australia, an overseas payload permit is required (formally an overseas launch certificate). To return a space object to a place outside Australia, a return authorisation is now required – this was not previously contemplated by the Act. Exemption certificates are still required – but have been renamed to authorisation certificates. Multiple licences may still be required in certain circumstances – for example, a business proposing to launch a payload overseas from an Australian aircraft will require both an overseas payload permit (for launching overseas) and an Australian launch permit (for launching from an Australian aircraft).
Breach and penalties	Operating a launch facility without a licence (or in breach of applicable licence conditions) will attract a maximum civil penalty of 1,000 penalty units (or AUD$210,000). Conducting a launch without the required approval(s) may attract a fine for individuals of between 600–5,500 penalty units (or up to AUD$1,155,000) and imprisonment of up to 10 years. The maximum penalty applicable to a business has remained the same (100,000 penalty units or AUD$21,000,000).
Management of space debris	Each licence and permit holder will be required to develop a debris mitigation strategy. The strategy must address matters to be prescribed by the Rules – these matters have not yet been identified.
Insurance coverage	Minimum insurance coverage requirements have decreased from $750m to a maximum of $100m. The Rules will provide greater detail on insurance requirements - e.g., maximum probable loss.
Fees	The fees applicable under the new regime are yet to be finalised and will, once settled, be updated as required based on periodic review.
Australian Space Agency	The Act does not contemplate the role of the new Australian Space Agency.

Next steps

The Bill was introduced to the House of Representatives on 30 May 2018; however, debate on the Bill was subsequently adjourned. It is possible that debate will resume during the next sitting of Parliament (18-28 June 2018) before it is comes before the Senate.

It is not anticipated that there will be any further formal consultation on the Bill – it is also unclear whether there will be public consultation on the proposed Rules.

If you would like to discuss the amendments proposed in the Bill, or would like further information about the process from here, please get in touch.