In a speech on Friday, Communications Minster Michelle Rowland acknowledged the significant innovation happening in the area of Low Earth Orbit (LEO) satellites and announced the establishment of a new LEO working group within the Department of Communications to help inform Australia’s policy…in this space.

As science fiction increasingly becomes a reality, outer space is the next frontier in legal and governance policymaking. In this article, we review recent developments in the space industry, the international regulation of space, Australia’s response and what’s on the horizon.

Recent developments in the space industry

In a sign of the times, the 21st century ‘space race’ is a battle between billionaires, with SpaceX, Blue Origin and Virgin Galactic all racing to send tourists into orbit for a zero-gravity experience; in-space manufacturing has been a thing since 2014 and is predicted to be a growth industry; the world’s first space hotel is set to open in 2027 and, in a case of life imitating Netflix, in March 2022, the then-Defence Minister Peter Dutton formally announced that Australia now has a functioning Defence Space Command.

Meanwhile, closer to Earth, recent developments in technology look set to revolutionise satellite communications. Traditionally, satellites work by using radio waves to communicate with antennas on Earth, meaning that traditional satellites experience extremely high levels of latency in satellite internet services. As the Minister’s recent speech acknowledges, LEO satellites have already turned this situation on its head. Recent research conducted by the United States (US) military has led to the US’ ability to send 200 gigabits of data 100km from one satellite to another in space, using laser technology. Ongoing improvements in LEO satellite technology will ultimately enable the creation of satellite mesh networks in space. Eventually, this could lead to 5G coverage even in the most remote locations currently not served by mobile networks. This will have widespread implications for existing telecommunications fibre and mobile networks, and for connected and autonomous vehicles that require constant, low latency connectivity to function safely. It will also challenge existing regulatory settings, such as the universal service regime, which were not designed with ubiquitous satellite coverage in mind.

International regulation of space

The United Nations Committee on the Peaceful Uses of Outer Space (the Committee) is the forum for the development of international space law. The Committee has concluded five international treaties and five sets of principles on space-related activities.

The treaties deal with a range of issues including: non-appropriation of outer space by any one country; arms control; freedom of exploration; liability for damage caused by space objects; safety and rescue of spacecraft and astronauts; the prevention of harmful interference with space activities and the environment; notification and registration of space activities; scientific investigation and the exploitation of natural resources in space; and, dispute resolution.

Australia is a signatory of the five key treaties and a member of the Committee, the International Astronautical Federation (IAF) and the Asia-Pacific Regional Space Agency Forum. In fact, Sydney was recently chosen by the IAF to host the International Astronautical Congress in 2025 – an event which typically attracts thousands of people from the global space community.

Australia’s approach to space innovation

Given our widespread rural and remote communities, Australia stands to benefit significantly from improvements in satellite technology. Our skilled workforce and available desert launch locations also mean that Australia is an ideal location in which to build and “launch” space projects.

The previous Coalition Government took several steps to promote the space industry in Australia, establishing the Australian Space Agency (ASA) in 2018 which was tasked through the ASA charter with developing and transforming the Australian space industry both commercially and recreationally. 

The ASA charter explains that the entity has responsibility for the following:

The Government subsequently released the Australian Civil Space Strategy 2019-2028 (Space Strategy), geared towards positioning the Australian space industry to triple its contribution to gross domestic product to over (an “astronomical”!) $12 billion per annum through the creation of over 20,000 “stellar”, additional jobs.

We are currently in the early stages of what the Government calls “Phase 3” of the Space Strategy, which focuses on the following objectives:

Almost all States and Territories in Australia, including New South Wales, Queensland, South Australia, Western Australia, the Northern Territory have now also released their own space strategies aimed at supporting the rapidly growing Australian space industry, while Tasmania is running a grant funding program to grow Tasmania’s space sector and is currently seeking applications for the Tasmanian Space Technology Seed Fund.

Australian national space laws

In addition to establishing the ASA and developing the Space Strategy, in 2018 the former Coalition Government overhauled Australian legislation governing space activities to ensure it appropriately reflects technological advancements and does not unnecessarily inhibit innovation in Australia’s space capabilities. The revamped Space (Launches and Returns) Act 2018 (Cth) (the Act) gives effect to Australia’s obligations under the international treaties referred to above, and sets out the statutory requirements necessary for the launch and return of any space objects within or by Australia. The Act regulates the following activities and approvals:

• Operating a launch facility in Australia requires a launch facility licence.
• Launching a space object from a launch facility in Australia, an Australian aircraft in flight or from a foreign aircraft in Australian airspace requires an Australian launch permit or an authorisation certificate.
• Launching a high-power rocket from a facility in Australia requires an Australian high power rocket permit or an authorisation certificate.
• Launching a space object from a facility outside Australia by an Australian national requires an overseas payload permit or an authorisation certificate.
• The return of a space object to a place in Australia requires an Australian launch permit, a return authorisation or an authorisation certificate.
• The return of a space object to a place outside Australia by an Australian national requires a return authorisation or an authorisation certificate.

The Act specifies various offences for failing to obtain the necessary approvals which can result in up to 10 years imprisonment and fines of up to 5,500 penalty units (currently $1.21 million) for individuals, and up 100,000 penalty units (currently $22.2 million) for corporations.

The Act is supported by the following rules governing the application requirements for space and high-power rocket activity approvals:

• Space (Launches and Returns) (General) Rules 2019 (Cth) (General Rules);
• Space (Launches and Returns) (High Power Rocket) Rules 2019 (Cth) (High Power Rocket Rules); and
• Space (Launches and Returns) (Insurance) Rules 2019 (Cth).

The Commonwealth Department of Industry, Science and Resources is currently consulting on proposed changes to the General Rules and the High Power Rocket Rules which aim to reduce barriers to participation and the regulatory burden on applicants.

The Minister for Industry, Science and Technology (the Minister) holds the right to grant, vary, revoke, suspend or transfer a permit, licence or authorisation under the Act.  These decisions are recorded on the Department’s website.

A wide range of other laws apply to space activities, such as spectrum regulation, environmental and planning laws regulating the establishment and operation of a launch facility, laws regulating dangerous goods and explosives as well as customs and export control laws that may apply to goods launched into space (including under the Customs Act 1901 (Cth), Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) and the Defence Trade Controls Act 2012 (Cth)). Operating a satellite network that transmits in Australia requires compliance with notification and licensing obligations under the Radiocommunications Act 1992 (Cth) and relevant obligations under the Telecommunications Act 1997 (Cth).

What’s on the horizon (or written in the stars) for Low Earth Orbit technologies?

Most of the international space treaties were formed at a time when exploration of space was within the purview of governments exclusively. With the commercialisation and growth in private space activities focussed on LEO technologies, the application and adequacy of these treaties may be tested. Principles of liability for damage caused to Earth by “space junk” potentially should distinguish between a commercial tourism venture, for example, and a government sponsored space exploration mission.

In Australia, with major corporates shifting their focus to the stars to capitalise on recent developments in the space industry and satellite technology, it seems likely that the focus on building Australia’s space capabilities, and with them the legal and regulatory controls, will continue. To infinity and beyond!

Authors: Luke Standen and Lesley Sutton