Lessons from Australia: Regulating space activities through informed policy

NewSpace, the term referring to the increasing shift away from public financing of space activities towards privately-funded operations, is enabled by technological developments offering enormous potential for increased public welfare. Yet the potential of NewSpace activities to bring benefit to society is less certain when examined in the context of government policy and regulation. Law and policy can certainly facilitate the development of space activities, but they by no means guarantee it and, in worse-case situations, they can unnecessarily hinder these developments.

Australia’s history in governing NewSpace activities is a useful case study to consider how states can respond to such developments and prepare for the further opportunities in years to come. The lessons are relevant for states seeking to responsibly implement policy positions and legal oversight so they may nevertheless maintain their national interests and comply with international obligations, without overburdening the operators, researchers and investors who aim to engage in NewSpace activities as a means to relieve particular challenges in society.

Following a comprehensive review of Australia’s initial regulatory framework of 1998, and its perceived deficiencies, the Australian government established a revised framework for governing space objects. This revised regulation came into effect in 2019 and established offences for, among other activities, launching space objects and launching certain suborbital rockets without government approval. To gain this government approval, the legislation establishes a comprehensive application process. Although a review of the 1998 law was certainly welcomed by stakeholders in the space domain, and some important improvements were ultimately made, the resulting legislation implemented in 2019 leaves many unanswered questions. Issues include the rationale for the prescriptive boundary of where airspace ends and outer space begins, the administrative complexities in producing flight safety analyses and the inconsistent standards which are acceptable for technical materials relating to procedures or equipment.

Such issues are likely brought about by a lack of the government understanding the nature of NewSpace, including the incentives, the opportunities and the technologies associated with NewSpace. This is despite the government having made strong efforts to better understand these matters since the new framework came into force in 2019. Evidence supporting the lack of understanding being the reason for a complicated framework comes by way of looking into the Australian government’s policy positions on NewSpace, and private space affairs more generally, prior to and at the time when the current regulatory framework came into force. Although Australia was an internationally renowned destination for launch activities in the 20th century, in the 1960’s and 70’s its focus was primarily on launches for military purposes. The 1998 regulatory framework was inspired due to foreign interest from private actors seeking to launch space objects from Australia. When the 1998 framework came into effect to govern these anticipated private launch activities, the government had neither an official policy position on launch, nor on private space affairs generally, despite the objectives of the legislation being to “attract investment by commercial interests” into Australia.

Accordingly, at the time the 1998 regulatory framework came into force, there was no declared national ambition for Australia’s intentions in the global space market. What’s more is that when a policy position was announced in 2011 (and again in 2013), it was directly contrary to the notion of Australia becoming a destination for private launch activities. The Principles for a National Space Industry Policy of 2011 stated that launch was not an “essential element” for Australia, at least not in the context of securing space services, and that foreign operators intending to launch from Australia would not be given support from the government. As this policy position was not superseded during the time of the government’s review into the 1998 framework, it suggests that the current regulatory framework was not guided by any great ambition, nor by any appreciation of the significance of, and opportunities afforded, by Australian launch activities.

The longstanding and lacklustre policy of 2011 suggests the revised regulation of the 2018 framework was passed by the Australian parliament without the parliament having a clear understanding of the significance or nuances of launching space objects. Generally, it ought not be surprising when a regulatory framework is drafted and implemented without insight into the activity it is regulating, that the framework is overly complex, ambiguous or maladapted . The good news is that the Australian government, not long after implementing the revised legislation, released a space policy in 2019 which explicitly noted that access to space is a priority for developing space-related industry capabilities in Australia. The Australian Space Agency’s Office of the Space Regulator has since been making strong efforts to realise the ambitions of this official positive-launch policy, including revisiting aspects of the current regulatory framework to the benefit of space actors. Some of these efforts were informed by a comprehensive parliamentary inquiry into Australia’s space capabilities commissioned in 2020. That inquiry identified and gave context to the many challenges and opportunities of Australia’s space potential. 

However, the current government’s retroactive construction of the current legislation need not have occurred. If the parliamentary inquiry had taken place before, or at least parallel to the review into the 1998 regulatory framework, which occurred in 2016, the current framework would likely have been drafted with a body of relevant information directly speaking to the activity which that regulation is controlling, that being the launches and returns of space objects. The lesson that can be taken from Australia’s circumstances, then, suggests that governments seeking to effectively govern NewSpace activities, including launch, should ensure they first have a firm policy position that is informed by a comprehensive insight into the domestic capabilities and their context in the global arena. Australia took exactly the reverse of this approach beginning in the 1990s. It first drafted and implemented law, and then defined a policy position (which was contrary to the objective of that law), both of which were before it conducted a comprehensive inquiry into the activity that the law was regulating.

For the safe and internationally compliant launch activities, the regulatory frameworks governing these activities must not overburden those who seek to carry them out with needlessly complex, maladapted or ambiguous requirements. Of course, compliance with Australia’s international obligations, and measures for increasing safety, are necessary considerations in a regulatory framework. However, the regulatory solutions to these requirements must consider the realities of the launch domain, including economic and technological realities. Failing to adapt the regulatory framework around these realities risks increasing the costs of launch activities or, in some circumstances, decreasing the safety of those activities. Either of these possibilities can deter both domestic and foreign actors from engaging in these important activities altogether. Such deterrence not only prevents investment and job opportunities in activity in Australia’s space-related industries, it ultimately prevents the benefits from NewSpace activities reaching all the potential end users of those space-derived capabilities, from farmers and miners right through to emergency services and environmentalists.

Significant regulatory development should always be driven by, that is preceded by, and adapted to policies that are relevant to contemporary circumstances.  The administrators of Australia’s space regulation have faced a hard task because of its history where this was not the case. Now, and with support from stakeholders, the government has made significant progress to reduce the unnecessary red tape so that NewSpace activities can bring more benefit to society.

IALPG is an Australian-based law firm providing specialist aviation and space solutions worldwide. For more information, please see www.ialpg.com or contact Joseph Wheeler at [email protected]

Further reading:

  • Explanatory Memorandum to the Space Activities Bill 1998 (Cth).
  • Pat Conaghan et al, House of Representatives Standing Committee on Industry, Innovation, Science and Resources, The Now Frontier (Commonwealth of Australia, 2021).

Scott Schneider, “NewSpace Persistence under Australia’s Launch Regulation” (2022) Proceedings of the International Institute of Spaw Law 2021, 425.