In the past week, there have been two major developments in the Australian space sector. First, the Technology Safeguards Agreement between the Australian and US Governments officially came into force. Second, the Australian Space Agency (ASA) issued a consultation paper on proposed improvements to the application and approval processes for the conduct of space and high power rocket activities in Australia. 

Both developments help to create an environment that promotes space-related activity in Australia. 

Technology Safeguards Agreement now in force

The Agreement between the Government of Australia and the Government of the United States of America on Technology Safeguards Associated with United States Participation in Space Launches from Australia (the TSA) establishes a legal and technical framework that enables the launch and return of US launch vehicles, spacecraft, related equipment and technical data (US Space Technology) from Australia and protects US Space Technology in Australia. 

The TSA was originally signed by Australia and the United States on 26 October 2023. It was subsequently recommended for ratification by the Joint Standing Committee on Treaties (JSCOT) on 1 July 2024. On 23 July 2024, the TSA finally entered into force in Australian domestic law, following the exchange of diplomatic notes between the Australian and US Governments. 

The TSA coming into force is potentially a landmark moment for the Australian space community. In a speech to the Australian Space Forum on 24 July 2024, Minister for Science and Industry, the Hon Ed Husic MP said “It’s a great deal for Australia and our space industry. It strikes a balance between protecting sensitive US technology while unlocking new commercial opportunities for Australian companies”. The Minister also spoke of the enormous economic potential of the TSA, pointing out that “[w]ith the TSA in place, it’s estimated Australian spaceport operators could supply between 45 and 95 space launches over the next decade with a value of between $460 million to 1.2 billion. This would be a massive uptick for Australia’s launch sector which was worth $27 million in the 21/22 financial year”.

See our previous article here, which discussed the TSA and potential implications for sovereign space capabilities.

Stage 2 Amendments to Space (Launches and Returns) General and High Power Rocket Rules open for consultation

The ASA is seeking feedback on its second stage of proposed changes to the Space (Launches and Returns) (General) Rules 2019 (the General Rules) and Space (Launches and Returns) (High Power Rocket) Rules 2019 (the High Power Rocket Rules).

The proposed changes are in response to feedback received from stakeholders. This included evidence heard during the House Standing Committee on Industry, Science and Resources’ inquiry into developing Australia’s space industry and from ongoing engagement with the space sector. The proposed changes are timely given the concurrent commencement of the TSA and will be crucial if the promise of the TSA is to be realised by the Australian space sector, given the uptick in Australian launch activity the TSA is predicted to stimulate.

The proposed changes include:

1. Removing the three-stage application process for a launch facility licence

The General Rules require information to be provided in three stages when applying for a launch facility licence. The ASA is proposing to make this process more efficient, by removing the need for the Minister to invite applicants to subsequent stages of the application process. Instead, the information previously required to be disclosed over a three-stage process will be required as part of the ‘initial’ application.

The ASA also proposes to amend section 24 of the General Rules, which relates to approvals that may be required under any other commonwealth or state and territory laws, to include a note with examples of activities that may need approval. This is intended to provide further guidance to applicants to help improve the quality of applications and reduce the need for re-work and does not introduce new obligations. The examples provided include approvals under planning or development laws and laws to protect cultural heritage, which may require consultation with groups affected by the construction of a launch facility.

2. Adding further exceptions to the meaning of ‘accident’

Section 121 of the General Rules provides exceptions to the meaning of ‘accident’, as defined under section 85 of the Space (Launches and Returns) Act 2018 (Cth) (SLRA). The proposed amendments seek to add further exceptions to the meaning of ‘accident’ by including circumstances where a space object or high-power rocket is destroyed or seriously damaged, but there is no damage to third-party property. This acknowledges that failures will occur especially as part of the innovation process. Although these circumstances would no longer be an ‘accident’, they would still be an ‘incident’ as defined in section 86 of the SLRA, meaning the Minister would retain discretion as to whether to appoint an investigator, noting it is mandatory to appoint an investigator if an ‘accident’ occurs.

3. Clarifying the Minister’s power to approve a suitably qualified expert

The ASA seeks to introduce further flexibility in the appointment of suitably qualified experts by adding new General Rules section 124A and High Power Rocket Rules section 43B to clarify that the Minister may approve a suitably qualified expert for one or more statements, confirmations or analyses required as part of the application process for Australian launch permits, return authorisations, and high power rocket permits.

The proposal also includes an amendment to the High Power Rocket Rules to add a new section 43A, which would clarify that the Minister may delegate any of the Minister’s powers or functions under the High Power Rocket Rules to either the Secretary of the Department, the Head of the Agency or an SES employee in the department. 

Note: Stage 1 changes to the General Rules and High Power Rocket Rules, which came into effect on 17 August 2023 through the Space (Launches and Returns) Legislation Amendment (Suitably Qualified Experts) Rules 2023, removed requirements that: 

• A suitably qualified expert or person with suitable qualifications and experience must not be a related party of a licence applicant.
• A person with suitable qualifications and experience must be independent of a licence applicant.

4. General amendments 

The proposed changes would also:

• Reduce the notice period that a Launch Safety Officer must give to relevant persons before a launch or return of a space object from 30 days to 20 days. This change will reduce the time between the grant of an Australian launch permit or return authorisation and the date from which the space object may be launched or returned. 
• Substitute a reference to ‘auditor’ with a reference to ‘qualified accountant’ (within the meaning of the Corporations Act 2001) in section 16(3) of the General Rules. The change from an ‘auditor’ to ‘accountant’ was due to the finding that the skills of an accountant are better suited to the requirement of the provision under s 16(3) of the General Rules. 
•  Make other minor administrative updates including fixing typographical errors.

Next steps for the proposed amendments

The proposed changes aim to better achieve the object of the SLRA by removing inefficiency and improving flexibility of regulatory processes, while not impacting on the safety standards of space activities. Consultation on the Stage 2 amendments opened on 23 July 2024 and closes on 14 August 2024. Submissions may be made, and information on the consultation process and relevant documents can be found here.