Abstract
The Australian legal system is based on the English common law system. Within this system, the sources of law are (a) statute and delegated legislation; (b) common law, equity and custom; and (c) judge-made and international law.
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- 1.
Australian Department of Industry, Tourism and Resources. 2003. Space Engagement. The Australian Government’s Space-related Activities: Policy Framework and Overview.
- 2.
Australian Space Activities Act, No 123, 1998.
- 3.
5 June 1961, [1961] ATS 10.
- 4.
19 December 1974–11 February 1975, [1975] ATS 6.
- 5.
The various States of Australia had been ‘colonies’ of the United Kingdom before independence on 1 January 1901, and the United Kingdom at the time maintained facilities and operations at the Woomera site.
- 6.
Article 5, Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the Federal Republic of Germany concerning the Launching of a Skylark Vehicle and Payload at Woomera for Scientific Purposes.
- 7.
Exchange of Notes constituting an Agreement between the Government of Australia and the Government of Canada relating to the Launching of a Canadian Scientific Rocket from Woomera 26–27 August 1976, [1976] ATS 22.
- 8.
For example, Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America concerning the Launching of Seven Aerobee Rockets18 September 1973, [1973] ATS 25 and Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America on the Launching of Sounding Rockets1 September 1987, [1987] ATS 13.
- 9.
Open for signature 14 January 1975, in force 15 September 1976, 1023 U.N.T.S. 15.
- 10.
Button, John. A space policy for Australia. Media release as Minister for Industry, Technology and Commerce, 22 September 1986.
- 11.
Australian Government Space Engagement: Policy Framework and Overview at 3.
- 12.
‘Milestone for Australian Satellite as Space Effort Hits Wall’ Space Daily 15 December 2004 (accessed at www.spacedaily.com on 20 January 2005).
- 13.
WRESAT (Weapons Research Establishment Satellite), a scientific satellite was launched from Woomera on 29 November 1967
- 14.
Australian Government Space Engagement: Policy Framework and Overview at 10.
- 15.
DIISR; CSIRO; the Australian Research Council; Geoscience Australia; Office of Spatial Data Management; Defence Space Engagement; Broadcasting Division of Department of Broadband, Communications and the Digital Economy; Australian Communications and Media Authority; Department of Infrastructure, Transport, Regional Development and Local Government; International Organisations and Legal Division of Department of Foreign Affairs and Trade; Emergency Management Australia; Public International Law Branch of Attorney-General’s Department; Office of International Law; Bureau of Rural Sciences; Corporate Strategies Division of Department of Environment, Water, Heritage and the Arts; IPS Radio and Space Services; and the Bureau of Meteorology.
- 16.
Australian Government Space Engagement: Policy Framework and Overview at 3.
- 17.
Australian Government Space Engagement: Policy Framework and Overview at 9.
The first HyShot launch in October 2001 failed and did not achieve its goal of achieving the world’s first supersonic combustion flight: ‘Aussie Scramjet Test Fails’ SpaceDaily 31 October 2001 (accessed at www.spacedaily.com on 1 November 2001).
- 18.
Australian Government Space Engagement: Policy Framework and Overview at 13.
- 19.
- 20.
The First Decadal Plan for Australian Space Science (2008–2017): ‘Building a National Presence in Space’ http://<http://www.physics.usyd.edu.au/∼ncss/DraftPlan_Release.pdf>.
- 21.
Senate Standing Committee on Economics, Lost in Space? Setting a new direction for Australia’s space science and industry sector. November 2008.
- 22.
Defending Australia in the Asia Pacific Century: Force 2030
- 23.
The Strategy was announced by the Prime Minister in Parliament on 4 December 2008.
- 24.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 1967 (Outer Space Treaty); the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968 (Rescue Agreement); the Convention on International Liability for Damage Caused by Space Objects, 1972 (Liability Convention); the Convention on Registration of Objects Launched into Outer Space , 1975 (Registration Convention); and the Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979 (Moon Agreement).
- 25.
Article VI: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.
Article VII: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.
Article VIII: A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.
- 26.
Liability Convention, Art 1(c) defines a ‘launching state’ as a state which launches or procures the launching of a space object and a state from whose territory of facility a space object is launched.
- 27.
Heather Walker ‘Bi-lateral Agreements to Facilitate Launch Projects and Satisfy Non-Proliferation Obligations’ (unpublished paper presented at 47th Colloquium of the International Institute of Space Law, Vancouver, 2004), p. 6 (on file with authors).
- 28.
Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Bill 1998 December 1998 at p. 4 (accessed at www.aph.gov.au on 21 August 2004).
- 29.
The establishment of a detention centre on Christmas Island has itself been the cause of some concern: ‘Detention centre threatens Russia’s Christmas island space project’ SpaceDaily 15 April 2002 (accessed at www.spacedaily.com on 16 April 2002).
- 30.
Michael Davis ‘Space Legislation: The Australian Experience’, Project 2001 Workshop on ‘Needs and Prospects for National Space Legislation’, Munich 6 December 2000 (on file with authors).
- 31.
The previous countries were the United States, Sweden, the United Kingdom, the Russian Federation and South Africa: Frans G von der Dunk ‘Launching from “Down Under”: The New Australian Space Activities Act of 1998’ [2000] Proceedings of the Forty-Third Colloquium on the Law of Outer Space 132 at 139 (footnote 9).
- 32.
Australian Senate Standing Committee on Transport, Communications and Infrastructure, 1992, Developing Satellite launching facilities in Australia and the role of government, Canberra.
- 33.
Ibid., Recommendation 5, p. 88.
- 34.
Australian Ministry for Industry, Science and Resources Explanatory Memorandum to the Space Activities Bill 1998 December 1998, at p. 4 (accessed at http://www.aph.gov.au on 21 August 2004).
- 35.
Space Activities Act 1998 (Cth) Section 3.
- 36.
Part 4 of the Space Activities Act 1998 (Cth) sets out a comprehensive regime regarding the liability of launch operators. For a description of these provisions see Ricky J Lee & Associates The Australian Legal & Regulatory Framework for Space Launches: Guide for the Space Industry 2004 Profusion, Australia at pp. 51–63.
- 37.
As noted above, Australia has ratified each of the five United Nations space treaties. While there have been some suggestions that a change is gradually emerging, it is still widely recognised that Australia operates under the ‘transformation’ approach to international law. Under this approach, it is necessary for treaty obligations to be transformed into Australian domestic law through implementing legislation. The Space Activities Actacts as the specific implementing domestic legislation in relation to certain obligations arising in the United Nations space treaties.
- 38.
23 May 2001, [2004] ATS 17.
- 39.
Space Activities Act 1998 (Cth) Sections 15 and 18.
- 40.
Space Activities Act 1998, Section 18.
- 41.
Including requirements under the Environment Protection (Impact of Proposals) Act 1974 and Environment Protection and Biodiversity Conservation Act 1999.
- 42.
Space Activities Act 1998, Section 24.
- 43.
Space Activities Act 1998 (Cth) Section 18.
- 44.
Space Activities Act 1998 (Cth) Sections 11 and 26(1).
- 45.
Space Activities Act 1998 (Cth) Section 26(2).
- 46.
Space Activities Act 1998 (Cth) Section 12(a).
- 47.
Space Activities Act 1998 (Cth) Section 35.
- 48.
Space Activities Act 1998 (Cth) Section 35(3).
- 49.
Space Activities Act 1998 (Cth) Sections 14(a) and (b).
Australia has previously been the ‘unintended’ return destination for space objects. The most well-known example was in 1979, when several tonnes of debris from the United States’ US$2.6 billion Skylab space station, at the time the largest space object ever to orbit the Earth, crashed into the Great Australian Desert, having re-entered the Earth’s atmosphere several thousand kilometres from its planned orbital track. This provoked a hurried and rather embarrassed apology to the Australian Government by United States President Jimmy Carter: see Steven Freeland ‘There’s a Satellite in my Backyard! – Mir and the Convention on International Liability For Damage Caused by Space Objects’ (2001) 24:2 University of New South Wales Law Journal462, at 463.
- 50.
Space Activities Act 1998 (Cth) Section 43.
- 51.
Space Activities Act 1998 (Cth) Section 43(4).
- 52.
Space Activities Act 1998 (Cth) Section 46.
- 53.
Space Activities Amendment Act 2002, No 100; date of Assent 10 November 2002.
- 54.
Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Amendment Bill 2002 February 2002 at p. 4 (accessed at http://www.aph.gov.au on 23 May 2005).
- 55.
See Steven Freeland, ‘The 2008 Russia/China Proposal for a Treaty to Ban Weapons in Space: A Missed Opportunity or an Opening Gambit?’ (2008) 51 Proceedings of the Colloquium on the Law of Outer Space, 261–271.
- 56.
Article 1(d) of the Liability Convention defines a space object as follows: ‘The term ‘space object’ includes component parts of the space object as well as its launch vehicle and parts thereof.’
- 57.
Space Activities Act 1998 (Cth) Section 8.
- 58.
See, for example, Department of Industry, Tourism and Resources, Guidelines for Industry: Overseas Launch Certificate, 1 May 2003 and Department of Industry, Tourism and Resources, Guidelines for Industry: Authorized Return of Overseas Launched Space Object, 3 March 2005 (both accessed at www.industry.gov.au on 4 April 2005).
- 59.
Under the terms of the Space Activities Act 1998 (Cth), there is a differentiation between an ‘accident’ and an ‘incident’. Under the legislation, a ‘suitably experienced and qualified investigator’ must be appointed in the case of an accident, but need not be in the case of an incident (see Space Activities Act 1998 (Cth) Sections 85, 86 and 88). For further details see Department of Industry, Tourism and Resources, Introduction to the Australian Space Safety Regime, 1 May 2003 (accessed at www.industry.gov.au on 4 April 2005).
- 60.
Department of Industry, Tourism and Resources, SLASO Website Introduction (accessed at www.industry.gov.au on 4 April 2005).
- 61.
Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Bill 1998 December 1998 at p. 8 (accessed at www.aph.gov.au on 21 August 2004).
- 62.
Ibid., Section 50.
- 63.
Space Activities Act 1998, Section 51.
- 64.
Ibid., Section 52(2).
- 65.
Ibid., Section 56(1).
- 66.
Ibid., Section 76.
- 67.
Space Activities Act 1998 (Cth) Section 67.
- 68.
Space Activities Act 1998 (Cth) Section 68.
- 69.
Space Activities Act 1998 (Cth) Section 8.
- 70.
Ibid., Sections 67 and 69(4)
- 71.
Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Bill 1998 December 1998 at p. 9 (accessed at www.aph.gov.au on 21 August 2004).
- 72.
See also David Sagar ‘Compulsory Insurance: Basic Features of National Insurance Regulations’ Project 2001 Plus Workshop ‘Towards a Harmonised Approach for National Space Legislation in Europe’, Berlin 29–30 January 2004, pp. 9–10.
- 73.
Space Activities Act 1998 (Cth) Section 95.
- 74.
Ibid., Section 94.
- 75.
Ibid., Section 88(1).
- 76.
Ibid., Section 93.
- 77.
For a more detailed discussion on some of these points, see Ricky J. Lee and Associates The Australian Legal & Regulatory Framework for Space Launches: Guide for the Space Industry 2004.
- 78.
Section 16(1)(ca).
- 79.
‘Space object’ means an object (whether artificial or natural) that is beyond, has been beyond or is intended to go beyond the major portion of the Earth’s atmosphere, or any part of such an object, even if the part is intended to go only some of the way towards leaving the major portion of the Earth’s atmosphere.
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Australia. Parliament. Senate. Space Activities Act 1998: Explanatory Memorandum.
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Biddington, B. 2008. Skin in the Game: Realising Australia’s National Interests in Space to 2025, Kokoda Paper No. 7, May 2008. The Kokoda Foundation. Canberra.
Button, J. 1986. A Space Policy for Australia. Media release as Minister for Industry, Technology and Commerce, 22 September 1986.
Chapman, G. S. 2006. Space – A Priority for Australia.Department of the Senate, Parliament House, Canberra, 2005.
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Siemon, N., Freeland, S. (2010). Regulation of Space Activities in Australia. In: Jakhu, R. (eds) National Regulation of Space Activities. Space Regulations Library Series, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9008-9_3
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