50 years ago, when Neil Armstrong and Buzz Aldrin first set foot on the moon, few would have known that there was already a system of international laws in place to regulate activities in outer space. The first international treaty governing the use of outer space came into force in 1967. It intended to ensure that space was to be free for all to explore and use.
The commercial space industry is undergoing significant growth globally. Since the American space shuttle program was retired in 2011, companies like SpaceX, Blue Origin, United Launch Alliance and ArianeSpace have dominated international headlines by providing launch vehicles to governments and commercial enterprises at reduced cost and launching small satellites cheaply. This increasing capacity is leading to space becoming rapidly commercialised. With that comes increased risk of accidents and failures, which can result in massive damage and cost. Space law is developing to both mitigate and apportion responsibility for these risks and costs.
While treaties exist at the international level, numerous nations, including Australia, have implemented national legislation directed at controlling who has access to outer space. With access to outer space becoming cheaper, technology evolving at a rapid rate and reliance on orbital assets increasing exponentially, regulation of space activities is becoming increasingly important.
What is regulated?
In Australia, the launching of rockets and activities associated with getting satellites into space have been regulated at the Federal Government level since 1998. The Space Activities Act was introduced following proposals by a number of companies to open commercial space ports across the country in the mid-1990s.
While these proposals never eventuated, the laws that enable these activities have been in place ever since. An Australian individual or company requires a licence to:
launch a rocket from Australia or overseas;
have a satellite launched overseas;
return to Australia a rocket or satellite that has been in space; and
operate a launch facility within Australian territories.
Commercialisation of space has dramatically developed since the introduction of the Space Activities Act in 1998. Satellite technology has been miniaturised - many satellites are now no bigger than a microwave oven. In 2018 the Federal Government, recognising the change in the types of activities conducted by start-ups and space-related companies, amended the Space Activities Act (also giving it a new name: Space (Launches and Returns) Act 2018) with a view to encouraging the Australian space industry to grow. While the amended Act still requires those seeking to operate in outer space to obtain licences along the same lines as the 1998 Act, it has been modified to be more relevant to modern and emerging space activities.
Why regulate space activities?
Governments around the world regulate space activities for a number of reasons. The most significant is the unique liability regime that governs the financial responsibility for accidents in outer space.
When there is an accident in space, it is the country of origin of the satellite or space craft operator that is primarily liable for the damage – not the operator or owner of the satellite that caused the damage. This liability structure arises from Australia’s obligations under the United Nations treaties that regulate space activities. As a nation, Australia is also obliged to supervise and authorise the activities of private entities conducting activities in orbit.
The risk of responsibility of governments for large compensation payments (space accidents don’t come cheap) is the primary reason for the Australian and other governments regulating space activities. National legal frameworks generally shift liability back to the owners and operators of satellites and other orbital infrastructure, while implementing licences to promote all activities being conducted in a safe and conscientious matter.
Why is this important?
The global space economy is worth in excess of USD300 billion and we are becoming ever more reliant on the services that are provided from orbit – be it telecommunications satellites, orbital weather sensors, satellite imagery, or internet services provided from space. Innovation and new technological endeavours are allowing for the cheaper and more efficient exploitation of the benefits space provides. The legal regime that governs space activities is an essential element of this, creating a barrier to access and an additional compliance obligation.
Being involved in the space industry and not being aware of the legal framework can be costly. For example, an Australian person or entity that has even a small satellite launched overseas on an overseas made rocket without an Australian permit commits a criminal offence punishable by imprisonment or, for companies, fines up to AUD21million.
Our next insights will look at just how broadly the law reaches into commercial 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.