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This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Passage History
Purpose of Legislation
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Space Activities Bill 1998
Date Introduced: 12 November 1998
Portfolio: Industry, Science and Resources
This Bill provides a regulatory framework for space activities carried on either from Australia or by Australian nationals outside Australia. The regulatory framework accords with Australia's obligations under international law and covers:
Space programs provide an important variety of services to Australia. The diffusion of knowledge and innovation across industry and society is an important aspect of space capability and is a potential catalyst for creating new and valuable spin-off technologies. These include bio-engineering, robotics, optics, materials, software, electronics, power cells, ground control systems, data processing and advanced manufacturing technologies. Project management, space education and training follow as important support structures.
The development of commercially viable spacecraft launchers is a growing activity, as is the growth of collaborative international space ventures, both public and private.
There are three main applications of space technology. They are remote sensing of Earth, communications systems, and scientific exploration.
Remote sensing of Earth
Remote sensing studies the atmosphere, oceans, ice and land and how they interact. This helps Australians to better understand the changing environment over a diverse continent and the surrounding seas. The work also assists our space industry to gain the best possible position in international markets for satellite systems, ground support stations and data services. Scientists use satellite data in many ways, from monitoring vegetation cycles, studying earthquake deformations, forecasting the weather and climate modelling, through to mineral prospecting, fishing stock mapping, urban planning and nature conservation.
Communications systems
Satellite communications and multimedia now link with navigation systems enabling global services for mobile terminals and applications such as aircraft contact, shipping logistics, tele-medicine, Internet use and tele-education. Broadcasting satellites provide direct regional television and radio and specialised local services. Telecommunications satellites offer flexible, high-capacity routes for voice and data services, providing backup in the event of undersea cable failure. Defence satellite communications and monitoring provide the basis for intelligence, treaty observance and military deployments. Given the rate of change in the information revolution, space systems will play a major future role.
Scientific exploration
Together with Earth-based astronomy, space science helps us to better understand the solar system, our galaxy, the Universe and ourselves. Special scientific instruments on spacecraft collect and interpret data on radiation levels, forces, magnetism and the electromagnetic spectrum of emissions. Bursts in the solar wind can disrupt power transmissions on Earth and also damage satellites. Investigation of the role of gravity in the evolution of plants can also lead to understanding in the causes of demineralisation of human bones and muscle atrophy. The pharmaceutical industry has interest in the growing of high quality protein crystals in space, while the study of influenza viruses in low gravity helps our understanding of Earth based biological processes.
Australia's involvement in space activities
Overview
Space activities are important to Australia in both monetary and utility terms. Australia already spends around $600 million annually on satellite systems but mostly overseas and with no guarantee that local industry will derive benefit and involvement in such programs. The nation has long purchased Intelsat and Inmarsat satellite system access, but our industry has not participated in their spacecraft or component assembly contracts. Other nations provide us with meteorological(1) and remote sensing imagery(2) and navigational satellite services,(3) but with no certainties over continuation of service or the future costs.
Meanwhile, a number of private commercial satellite launch vehicle proponents view the Australian landmass as offering stable potential for cost-effective rocket operations. They all involve use of derivative overseas rocket systems launched from sites as diverse as Woomera, Gladstone, or Christmas Island. However, their feasibility relies on the world market for communications and imaging satellite systems, a market that international competitors are also keen to secure.
Commercial markets
The market for launches derives from two principle requirements:
The new mobile communications systems of many small, low-Earth orbit satellites offer global telecommunications by handheld telephones, no matter where users call from on Earth.
Growth in national, direct-to-home TV broadcasting satellites include new geostationary systems for several Asian nations. By the end of 1997, there were 95 civilian geostationary communications satellites providing services to the region. Of these, some 24 satellites provide Australia with telecommunications or broadcasting type coverage up to the power of the domestic Optus communications satellite system.
Commercial satellite launch projects
While China and Russia remain the only current commercial launch service providers in the region (Japan and India are not far behind), other interests propose rocket flights from Australia. The various recent competing launcher proposals for Australia comprise the:
Together, they represent possible investment here of $1.85 billion. There may well be other such proposals in future.(6)
The Kistler venture proposes to launch commercial payloads into orbit while recovering the launch vehicle components on the Woomera range. The Government has entered into an agreement with Kistler detailing the regulatory requirements for the project. That agreement will be preserved under the provisions of this Bill.
A regulatory framework may also facilitate the commencement of the Asia-Pacific Space Centre on Australia's Christmas Island External Territory by International Resource Corporation. However, the project requires an environmental assessment.
A lesser-known venture, promoted by United Launch Systems, may also involve launches from Hummock Hill Island off Gladstone Queensland.
Australia has acted to negotiate a proposed bilateral agreement for collaboration in commercial space matters with the Russian Federation, noting that some of the launch proposals involve the use of Russian-built rocket systems. Australia already has some space agreements with some other nations including the United States, France, Japan and China.
Current Government arrangements
The May 1998 Federal Budget provided funds in advance of this proposed legislation to establish the non-statutory Space Licensing and Safety Office (SLASO). The Federal Government also granted a wholesale sales tax exemption of 22 per cent for imported space launch vehicles and satellites.
The current Federal Government made major administrative changes to space affairs after it came to power in 1996. It abolished the Australian Space Council and Office, terminated funded space programs, and instead moved to establish a new demonstration satellite program for the Centenary of Federation - FedSat. FedSat is under development through a Cooperative Research Centre for Satellite Systems; with broader policy matters still retained within the Department of Industry, Science and Resources (DISR), through its internal Space Policy Unit (SPU).
There is at present no existing legislative or regulatory framework for Australian space launch activities. This Bill seeks to address this lacuna and to define specific space launch policy. It is understood that this Bill follows the model established by the United States Commercial Space Launch Act 1984 with the Amendments of 1988. Other nations with regulatory frameworks for space include Sweden, Russia and Britain.
An objective of the proposed regulatory framework is to enable the introduction of a new industry and facilitate its operation to enable an estimated net economic benefit to Australia. The regulatory regime aims to be cost-neutral and require industry participants to carry appropriate commercial insurance to reduce the chance of claims against the Commonwealth. South Australia and Queensland are actively supporting launch projects.
The Bill proposes separate accident or incident investigation functions from SLASO, allowing the Minister to appoint an Investigator with general overriding powers.(7) The Explanatory Memorandum of the Bill states that DISR has recommended this function be performed by the Bureau of Air Safety Investigation (BASI), within the Department of Transport and Regional Services, under a memorandum of understanding.(8)
In the United States, the Office of Commercial Space Transportation, a similar organisation to the proposed SLASO, comes under the auspices of the Department of Transportation rather than the Department of Commerce, although cooperation exists.
As a signatory to the five United Nations (UN) space treaties, Australia is obliged to establish a licensing and safety regime for space launches and space objects. This particularly applies to matters of liability for damage, environmental effects such as harmful contaminations, registration, the Moon, space liability and astronauts. This Bill explicitly acknowledges Australia's international obligations under these treaties.
Liability for damage caused by space objects
The Liability Convention of 1972 imposes a liability on launching States for any damage or loss to other States or persons and third parties. The mechanisms for settling claims are complex and may place a heavy burden on any commercial entity outside government.
The 1975 Registration Convention obliges Australia to register all space objects for which it is the launching State. It appears that Australia has not done this for past launches including the Woomera Wresat and Prospero launches and the Australis-OscarV satellite.
Exploration and use of outer space
Under the 1967 Outer Space Treaty, Australia is responsible internationally for its outer space activities be they public or private. Australia is required to authorise and supervise any non-government entities active in space and is liable for any damage caused globally.
The Moon and other celestial bodies
The Moon Agreement of 1979 relates to the exploration and exploitation of the Moon. Australia has supported a variety of Lunar missions through spacecraft ground tracking and scientific experiments. In the next century, Australia may well play a greater role.
Rescue of astronauts and return of objects
Under the Rescue Agreement of 1968, if Australia discovers that a space object has returned to Earth it is obliged to inform the launching authority and the UN and recover the object if requested. Such an event occurred with the return of Skylab here in 1980.
Position of significant interest groups
The Australian Academy of Technological Sciences and Engineering (the Academy) welcomes the legislation though it believes that its primary purpose should be the enabling and encouragement of a world-competitive Australian space industry.(9)
The Australian Space Industry Chamber of Commerce (ASICC) believes that a proper regulatory regime for the commercial launch industry is required to ensure that appropriate safeguards are in place and to help develop space business and investment. During the preparation of the Bill, ASICC recommended two principles for the legislation. Firstly, that the legislation establish a constructive and supportive environment to attract and foster investment in Australian space activities. Secondly, that the obligations imposed on business entities attempting space activities be clear and free from arbitrary determinations and as a minimum, no more stringent to business than those currently imposed elsewhere.(10)
ASICC expressed concern that the proposed legislation would subject launches outside Australia that were procured by Australian nationals, to the same requirements as those conducted within Australia. ASICC sees these as two separate issues and recommended that they be considered as such.(11)
ASICC raised issues on sales tax and incentives, launch licensing, fees, insurance and administration and the restrictions on Australian nationals launching outside Australia. ASICC remains concerned about the regulatory details including matters such as how fees will be assessed, Government administration and the exact licensing process.(12)
Prominent among members of ASICC are space insurance companies, which have large markets to gain through the provision of commercial launch insurance. The local space insurance sector has become significant in the region, with one insurance company reported to have written $150 million in premiums in the year to June 1997.(13) The sector may wish for liability protection and insurance to include related parties such as agents, employees and sub-contractors of licence holders to encourage a space industry.
Some believe that these initiatives may not necessarily lend themselves to advancing indigenous space activity, as there is no requirement for the involvement of local industry participants. Indeed, Kistler's proposal to invite Australian industry to provide rocket recovery parachutes, rather than any high-technology components, has drawn media scorn.(14) However, the project has already involved a number of Australian companies.
The Bill does not clarify the administrative arrangements applying to cooperation with other departments. There is no mention of CSIRO's significant space interests and the FedSat program under the Cooperative Centre for Satellite Systems. These activities involve wide international collaborations and participation in international space forums. Meanwhile, DISR also has space policy involvements and now, significant obligations.
There appears to be no actual definition of 'space' in the Bill. While this may seem arcane, there has actually been a long-running debate on defining the boundaries of space above Earth. The legal boundary between the Earth's air space and outer space remains unclear. Note also that the term 'launch' in the Bill refers only to objects launched into 'outer space'. Consideration might be given to whether the term 'outer space' should be defined to include objects launched into sub-orbital flights and low Earth orbit, in addition to those launched into outer space. It is not clear whether sub-orbital flights would fall within the 'outer space' category.(15)
There seems to be no specific cross-references to the requirements of air safety legislation, environmental review, or the Australian Contingency Plan for Space Re-Entry Debris, though these issues may be addressed in the regulations.
Part 1 sets out the objects of the proposed Space Activities Act and provides a simplified general outline of the proposed legislation.
Part 2 defines the terms used in the proposed legislation. Note that neither of the terms 'space' nor 'space activities' is defined.
Part 3 deals with regulation of space activities.
Part 3 Division 1 provides that the launch or return of a space object, and for the operation of a launch facility, requires certified approval. Overseas launches involving Australian nationals also require certified approval where the Australian national is a 'responsible party'.
Part 3 Division 2 allows the Minister to grant a space licence, which will authorise the operation of a launch facility. A space licence covers a particular launch facility in Australia, and a particular kind of launch vehicle.
Part 3 Division 3 provides for the Minister to grant a launch permit authorising the launch of a particular space object or series of space objects. The criteria to be satisfied as well as the terms of a launch permit are also prescribed.
Part 3 Division 4 sets out the criteria under which an overseas launch certificate may be obtained. Note that authorised launch certificates are only required if an Australian national is the 'responsible party' to the launch.
Part 3 Division 5 sets out the provisions relating to the return of overseas-launched space objects. Note that the returning space object need not be the same as the space object launched. For example, a launch may return with a different payload collected in space.
Part 3 Division 6 provides that the Minister may issue exemption certificates for activities under Items 11, 13 and 15. These activities concern launches, return of Australian-launched objects and space licences.
Part 3 Division 7 provides that certain insurance/financial requirements are to be met by the holder of a launch permit, an overseas launch certificate or an Item 43 authorisation.(16)
Part 3 Division 8 provides that the Minister must appoint a Launch Safety Officer for each licensed launch facility, though a Launch Safety Officer can be responsible for more than one licensed launch facility. Items 51 and 52 set out the functions and powers of the Launch Safety Officer.
Part 3 Division 9 covers administrative arrangements, including fees, requests for information and applications for review of ministerial decisions to the Administrative Appeals Tribunal.
Part 4 deals with liability for damage by space objects and sets out the scope of liability. Briefly, liability may arise if damage is caused by a space object launched from Australia, or where Australia is the launching State and where the damage is caused during the liability period.
Part 4 Division 2 sets out the rules for liability for third party damage. Item 66 provides that the responsible party for the launch or return of a space object is liable to pay compensation for any damage the space object causes to a third party on Earth or as a result of damage to an aircraft in flight. The responsible party will not be liable if it establishes that the damage was caused by the gross negligence of the third party or that the third party intended to cause the damage.
Part 4 Division 3 provides that the Federal Court has jurisdiction to hear and determine actions for compensation for damage under this Part.
Part 4 Division 4 deals with compensation claims by foreign countries in accordance with the Liability Convention under international law (as set out in Schedule 1 of this Bill).
Part 5 provides for a Register of Space Objects and specifies the information to be entered into the Register. The Register must be made available for public inspection.
Part 6 sets out the civil penalty provisions of the proposed legislation.
Part 7 deals with investigation of accidents and defines the terms 'accident' and 'incident'.
Part 7 Division 2 establishes a system for accident investigations. Item 90 sets out the powers of the Investigator in gathering information and taking custody of things relevant to the investigation. Item 92 provides that no part of a report or other document given to the Minister under this item may be published without the Minister's written approval. Item 96 makes other Commonwealth investigating agencies or persons subject to this Part.(17)
Part 8 Item 108 maintains any pre-existing agreement between the Commonwealth and another person made before 11 November 1998. Item 109 allows for matters to be prescribed by regulation.
Schedules 1-5 all deal with international agreements relevant to this proposed legislation. Each Schedule sets out the Articles of each agreement.
While Australia currently spends in the order of $600 million annually on space system applications much of this expenditure heads overseas with only limited local input. Australia does, for example, have expertise in managing ground control systems, spacecraft component manufacture, especially optics and image processing techniques. However, for the first time, the Bill acknowledges the importance of space to Australia and it is understood that the Department is developing a specific space industry policy. It is of interest to note that Australia is not directly participating in the International Space Station program, which involves more than 15 nations in the assembly of an always-crewed infrastructure in-orbit.(18)
The Bill only grants a licence after consideration of, among other things, security and environmental aspects. However these safeguards may not remove the risk to certain population centres from falling debris and explosive propellants. The proposed Asia Pacific Space Centre on Christmas Island could have far reaching effects on the local community and also in a strategic sense. The proximity of Hummock Hill Island to the Great Barrier Reef Marine Park is also of note.
Item 96 of the Bill provides that other investigative bodies are subject to the general investigation provisions under Part 7 Division 2 of the Bill. However, the Explanatory Memorandum notes that DISR has recommended this function be carried out by BASI in the Department of Transport and Regional Services under a memorandum of understanding. This proposal to streamline investigative functions for both space and air accidents or incidents may be implemented by regulations under the Bill.
Whereas the UN Space Treaties were written in the first decades of the Space Age, now the private sector has begun to establish and launch space operations to match public activity. Some of these treaties may be the subject of review in July 1999 when, for the first time since 1982, high-level government officials will meet at the Third United Nations Global Conference on the Exploration and Peaceful Uses of Outer Space (Unispace III).
Ross Kilmurray and Matthew James
25 November 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.
ISSN 1328-8091
© Commonwealth of Australia 1998
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Published by the Department of the Parliamentary Library, 1998.