At Last
For at least half a decade (some would say longer), new entrants to the space industry have been campaigning for simplified space laws in Australia. Anyone who has lost their way in the labyrinthine halls of the Space Activities Act 1998 will tell you that navigating these laws is not for the faint-hearted. The first reaction of many: What do you mean I have to buy a $750m insurance policy? (You don’t and you didn’t, but that’s now ancient history.)
The good news is that on 31 August 2019, the Newspace campaigners had a concrete win, when the updated Space (Launches and Returns) Act 2018 and related Rules finally came into force. But before you consider making the new Act tonight’s bedtime story, be warned that it’s still not exactly a rollicking read. The laws are still labyrinthine — but there are some key changes that will definitely make it easier for the launch and satellite industries in Australia to flourish.
What were the bugbears?
One of the bothersome aspects of the old laws was the need for anyone launching a payload overseas to purchase third party liability insurance (or show financial responsibility) for up to A$750m or the maximum probable loss. For those in the know, there were workarounds using contractual provisions with launch services providers (LSPs). The LSPs are already required to purchase launch insurance and can easily name the satellite owner and its national Government on the policy. However, users of rideshare launch services often struggled to get traction with the LSPs and found themselves engaging in lengthy applications for waivers from the Space Licensing and Safety Office (SLASO, as it then was). The regulatory folks at SLASO and later the Space Agency were reportedly very sympathetic and did their best to assist, but some aspects of the laws were making life difficult for both regulators and applicants.
In 2015, the Australian Government appointed Professor Steven Freeland[1] to assist with a review of the laws regulating space activities. Professor Freeland’s report provided several recommendations and options for improvement, a number of which have now been implemented in the new Space (Launches and Returns) Act 2018 and related Rules. For the sake of expedience, the Government elected not to completely rewrite the laws. Although this would have been better in the long run, I tend to agree that a totally new law would have taken even longer to get through Parliament.
What has changed?
Insurance
A significant psychological barrier to entry has been removed with the reduction of the maximum amount of third party liability insurance or financial responsibility required for space activities from A$750m to A$100m (or maximum probable loss).
Overseas Payload Permits
In even better news for Australians launching payloads overseas, the maximum insurance amount for Overseas Payload Permits has been reduced to zero, on the assumption that the overseas launch services provider will provide this insurance. But there’s a catch… see the Contracts section below.
Launch into Space from Australia
Launch providers no longer need to also hold a licence to operate a launch facility, as was previously the case. In a nod to new developments in launch technologies, launch of space objects from aircraft are now covered in the legislation although balloon launches still float in a grey zone.
High Power Rockets
The revised laws expand the regulatory purview of the new Space Agency to include the launch of High Power Rockets from Australia to an altitude of less than 100km, although their oversight will not start until mid-2020. Until then, CASA will continue to be the approving authority. The new definition covers rockets propelled by motors with a combined impulse greater than 889,600 Newton seconds or which are fitted with an active control system.
Returns of Space Objects
Returns of space objects to a place within Australian required an authorisation under the old laws. This requirement now also applies to Australians who return a space object to a place outside Australia.
Debris
In line with a new emphasis at the United Nations Committee for the Peaceful Uses of Outer Space, the new laws require applicants for launch and payload permits to have a strategy for debris mitigation based on an international standard.
Contracts
In assessing applications, the Australian Space Agency will be reviewing the full text of contracts around each space activity, but has not specified its requirements for contractual provisions. We understand they are working on guidelines to be issued in the future. Meanwhile, anyone who is thinking about signing a launch contract needs to be aware that the Agency may accept, reject or delay their application for an Overseas Payload Permit based on the content of that contract. This may be tough for those who sign binding launch agreements without knowledge of the Agency’s requirements.
Will this help Australian Space Startups?
The changes to the laws have come into play at a good time for the industry, as a number of Australian companies approach readiness for conducting launch activities from Australian soil. These include Southern Launch in South Australia, Equatorial Launch in the Northern Territory and Gilmour Space in Queensland. Other new Australian companies, like Myriota and Fleet, are ramping up their constellations of small satellites and will benefit from the reduction of insurance/financial responsibility levels to zero for third party liability, in the case of Overseas Payload Permits. Satellite owners who eventually launch from Australia will have it even easier, as Australian launch providers will cover the licensing requirements for payloads, under the newly fashioned Australian Launch Permits, however, some information about the payload will still need to be required.
Another concern of the industry has been the fees that will be charged by the Australian Space Agency for assessing applications. The Australian Government generally operates on a ‘user pays’ principle, under which applicants for most kinds of approvals are charged fees that are designed to recover the costs of assessing the application. Many participants have argued that applying cost recovery principles to space startups will impact on competitiveness, which would work against one of the key goals of the Agency. The Agency is considering those concerns and has elected not to apply fees to applications until the fee framework is decided.
What issues aren’t covered at all?
Human space flight and exploitation and utilisation of space resources are some of the issues which will become more pressing in the next few years. So far they aren’t dealt with by Australia’s laws, but we should start to consider how we want to respond to these developments, as a country.
[1] The author is married to Professor Freeland.
