Insights / September 5th, 2019

Space: A Global Affair

It is estimated that in 2016 USD345 billion was spent on space-related activities and ventures. Of this, approximately USD262 billion was directly connected with private industry and the remaining USD83 billion was spent by governments.[1]The majority of this expenditure related to services including satellite communications, television broadcasting, signal transmission, GPS technology and satellite imaging. But space-related spending is not exclusively related to the technology located in or sent into space. Ground centres around the world play an important role in receiving and transmitting signals into outer space. Data analytics and technology companies also take advantage of the information collected from space-based assets to provide a broad range of information and analytical products across the globe.

Our last insights considered the regulation of space activities [“Space Law…..its a real thing”] in Australia. But the space industry is a global endeavour. Nations across the globe recognise the enormous commercial opportunities and economic benefits generated by commercial space activities so they are racing to develop space industry capabilities. The United States, Canada, Russia and some European countries have highly developed space launch, manufacturing, services and support industries. Other countries such as China and India are also becoming major commercial participants.

Outer space is a truly international affair. Globalisation of the space industry is an inevitable consequence of operational requirements in space. The location of launch facilities, satellite receiving stations and manufacturing facilities are all impacted by the physics of satellite orbits. Although this makes some nations more desirable than others, the legal and commercial realities of large scale commercial operations also play a central role. It is easier to operate a commercially focused space-related business where there is a pre-existing and prosperous economy with well-developed and reliable systems and laws.

Taking advantage of its strong economy over the past 25 plus years and its advanced, reliable legal system, the Australian Space Agency, based in Adelaide, is moving quickly to build significant commercial relationships in the space industry.

If looking to launch a small satellite today, the United States has a large share of the private sector launch market. A small number of highly developed launch operators have made successful businesses out of putting all manner of objects into outer space. European and Indian based operators also have significant experience in launching small satellites into a variety of orbits for a broad array of purposes. Smaller companies are now emerging across the globe. Entities like Rocket Lab, based in New Zealand and the United States, are exploiting the ‘low-cost, small payload’ launch market.

Whatever country is selected for launching a satellite, there will most likely be regulatory compliance obligations governing space activities in both the owner’s home country and the launch country.

Australian Laws

Australian individuals and companies are obliged to comply with all regulations applicable to their uses of outer space. This will mean any Australian seeking to launch a satellite into outer space in another country would need to acquire an Australian overseas payload permit under the Space (Launches & Returns) Act 2018. This obligation may have broad compliance consequence for not only operators of satellites, but their employees, suppliers and financiers. See our last insights [“Space Law…..its a real thing”] for comments on Australian liability issues.

Besides the need for an overseas payload permit, an Australian entity will need to ascertain the applicability of a broader number of laws that may apply. This will include requirements under export control, radio and telecommunications and intellectual property laws, as well as numerous commercial compliance requirements that must take place within a company. Unsurprisingly, as satellite technology is easily deployed for military purposes, Australian export laws may present some very substantial barriers to Australian companies accessing launch capacity in other nations, with many components and aspects of satellites appearing on the Australian Defence and Strategic Goods List. Goods listed on this list are subject to enhanced export restrictions requiring permits granted by Defence Export Control.

International Laws

If an Australian is intending to have a satellite or other object launched into outer space from another country, compliance with Australian laws is not the only requirement. There will be a range of laws in the launch country that must be complied with.

Most countries that permit commercial launch activities, including the United States, India, Russia and China, have regulatory regimes somewhat similar to Australia’s laws, though the differences and the regulatory processes demand very careful attention. For example, if seeking to launch a satellite from New Zealand, you will need to acquire a payload permit under the NZ Outer Space and High-altitude Activities Act 2017. Other countries, currently courting commercial launch activities, such as the United Kingdom, also have laws in place.

As with Australia, some of the greatest barriers may arise in respect of the import and export of commercial space-related items. For example, the United States International Traffic in Arms Regulations (ITAR) apply to and place restrictions on large swathes of commercial space components and goods.

Cowell Clarke and our 150 ALFA International colleague firms have legal capability around the globe, including in the major and emerging space industry countries. We can provide advice and assistance to our space industry clients wherever they need it.

Our next insights will look at the unique liability regimes that apply to outer space activities.

Joel Lisk is a lawyer in the corporate and commercial team at Cowell Clarke and is completing his PhD in commercial space law. Brett Cowell is chairman of Cowell Clarke and a lead director in the corporate and intellectual property groups in the company - Contact Us.

[1]Office of Commercial Space Transport, Federal Aviation Administration ‘Annual Compendium of Commercial Space Transportation’ January 2018

This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.