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New Laws for New Space? Using Law Reform to Drive Commercial Space Initiatives

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Abstract

This paper considers the use of domestic laws, and the consequent need for law reform, to encourage broader engagement with commercial space innovation. It will consider, in particular, the Review of the Space Activities Act 1998 (Cth) currently being undertaken in Australia, which examines whether existing legislative arrangements “provide an appropriate balance between supporting emerging commercial opportunities and ensuring Australia meets its international obligations for the use of space”. It undertakes an examination of the history of civil space activities in Australia and addresses the failure of space policy in Australia since the 1960s to encourage the development of a commercial space industry. The example of the early success of Australia as a space-faring nation, being the fourth country in the world to launch a satellite from its own territory, followed by a period of almost complete inertia, provides an excellent case study through which to explore how law reform may drive the development of a commercial space industry. In particular, it considers the early cooperation of Australia in the ELDO project, the focus on being a launch provider and the emerging recognition of the role space research and development may play in innovation and commercial success. This paper looks at how the domestic laws of Australia were designed to implement obligations under the international Outer Space treaties and the impact that decisions made in that legislation may now be impeding the growth of a New Space industry in Australia.

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Notes

  1. 1.

    Ministry of Business, Innovation and Employment, NZ Space Agency (24 June 2016) http://www.mbie.govt.nz/info-services/sectors-industries/space.

  2. 2.

    Australian Government, Review of the Space Activities Act (15 August 2016) http://www.industry.gov.au/industry/IndustrySectors/space/Pages/Review-of-the-Space-Activities-Act-1998.aspx#header; Review of the Space Activities Act 1998 Issues Paper (15 August 2016) http://www.industry.gov.au/industry/IndustrySectors/space/Documents/SAA_Review_IssuesPaper.pdf. See also Ministers and Assistant Ministers for the Department of Industry, Innovation and Science, Atmosphere is right for a review of our space activities (24 October 2015) http://minister.industry.gov.au/node/811.

  3. 3.

    Christine Garnaut, Robert Freestone & Iris Iwanicki, “Cold War Heritage and the Planned Community: Woomera Village in Outback Australia,” 18(6) Int. J. of Heritage Studies 541, 547 (2012).

  4. 4.

    Ibid.

  5. 5.

    Review of the Woomera Prohibited Area, Final Report, Australian Government 5 (4 February 2011) http://www.defence.gov.au/woomera/review/papers/WoomeraFinalReport.pdf. See also Australian Commonwealth Senate Standing Committee on Economics, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector, 25–26 (November 2008).

  6. 6.

    Mary Heath, “Cold War Defence Legislation in the Current Australian Context: Dinosaur or Civil Liberties Disaster?,” 1(2) Flinders J. of L. Ref. 207, 208–209 (1997).

  7. 7.

    The UK mission, led by General J.F. Evatts, upon visiting the site in 1946 declared that it had many advantages: ‘Three thousand three hundred hours of sunshine a year, cloudless skies for nine months of the year, close to a rail link, good for airfield building and, of course, its remoteness.’ Woomera High School, A Sense of Urgency: A Social History of Woomera: its inception and growth 1947–1965 and The History of Education in Woomera 1950–1978 8 (Woomera High School ed, 1978).

  8. 8.

    Helen Buchanan & Katrina Edwards, Woomera the First Fifty Years 1947–1997 3 (1997).

  9. 9.

    M.L. James, Into Space from Australia - the Early Days 53 (Fifth National Conference on Engineering Heritage: Interpreting Engineering Heritage, Perth, Western Australia, 1990).

  10. 10.

    For further exploration of the history of Woomera see Peter Morton, Fire Across The Desert: Woomera and the Anglo-Australian Joint Project 1946–1980 (Commonwealth of Australia, 1989); Woomera High School, supra note 7; Buchanan & Edwards, supra note 8; Christine Garnaut, Paul-Alan Johnson & Robert Freestone, The Design of Woomera Village for the Long Range Weapons Project, 30 J. of the Historical Society of South Australia 5 (2002).

  11. 11.

    Morton, supra note 10, at 77.

  12. 12.

    Ibid. at 63–65.

  13. 13.

    See Defence Force Regulation 1952 (Cth) Regs 34, 35 (Austl.); Defence Act 1903 (Cth) Part VIB (Austl.); Woomera Prohibited Area Rule 2014 (Cth) (Austl.).

  14. 14.

    Woomera Prohibited Area Rule 2014 (Cth), r 7 (Austl.) (‘The Minister must not issue a permit that provides permission for a person to be in the Red Zone.’).

  15. 15.

    Garnaut et al., supra note 3, at 548, citing A Gorman, La Terre et l’Espace: Rockets, Prisons, Protests and Heritage in Australia and French Guiana 3(2) Archaeologies: J. of the World Archaeological Congress 153–168 (2007); I Iwanicki, More than a Space Race: Post-War US Influences on Public and Private Spaces and Buildings in Woomera Village, South Australia 187-202 (Paper presented at In: Public Versus Private Planning: Proceedings of the International Planning History Society 13th Biennial Conference, Chicago, 2008).

  16. 16.

    James, supra note 9, at 53.

  17. 17.

    Steven Freeland, “Sensing a Change? The Re-Launch of Australia’s Space Policy and Some Possible Legal Implication” 36(2) J. of Space L. 381, 383 (2010).

  18. 18.

    Australian Commonwealth Senate Standing Committee on Transport, Communications and Infrastructure, Developing Satellite Launching Facilities in Australia and the Role of Government, 1, 6 (April 1992) cited in Australian Commonwealth Senate Standing Committee on Economics, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector, 25 (November 2008).

  19. 19.

    James, supra note 9, at 54.

  20. 20.

    Morton, supra note 10, at 409; Buchanan & Edwards, supra note 8, at 5.

  21. 21.

    Freeland, supra note 16, at 385. Australia had been a member of the original ad hoc committee created by the General Assembly of the UN in 1958, and hence was one of the founding members of COPUOS.

  22. 22.

    Steven Freeland, “Reshaping Australia’s Space Policy and Regulation – Recent Developments” 61(1) Zeitschrift für Luft- und Weltraumrecht 99, 101 (2012).

  23. 23.

    The European members of ELDO were Belgium, the Federal Republic of Germany, France, Great Britain, Italy and the Netherlands.

  24. 24.

    Morton, supra note 10, at 451–453.

  25. 25.

    James, supra note 9, at 54.

  26. 26.

    Ibid. Most satellites operate in either Low Earth Orbit (LEO) or Geosynchronous Orbit (GEO). GEO satellites are located in orbital slots allocated by the ITU (International Telecommunications Union), 36,000 km above the Equator and thus appear to remain stationary above the Earth. This means that they are located in a relative position to the Earth below them at all times. LEO satellites operate in orbital planes around the North and South Poles. Brett Biddington & Roy Sach, Australia’s Place In Space: Toward a National Space Policy, 44 (June 2010) http://www.regionalsecurity.org.au/Resources/Files/KP13_Space_Biddington_Final.pdf. Woomera is too far south for launches to GEO. Bruce Dorminey, “Does Australia Have a Space Future?,” Forbes (12 June 2013) http://www.forbes.com/sites/brucedorminey/2013/12/06/does-australia-have-a-space-future/#6673f53c6b68.

  27. 27.

    James, supra note 9, at 55.

  28. 28.

    Freeland, supra note 21, at 100. See also Buchanan & Edwards, supra note 8, at 9.

  29. 29.

    James, supra note 9, at 54.

  30. 30.

    Morton, supra note 10, at 477.

  31. 31.

    Jo-Anne Gilbert, “‘We can lick gravity, but…’: What trajectory for space in Australia?,” 25 Space Policy 174, 175 (2009).

  32. 32.

    PTE John Wellfare, Our vital wastleland, Air Force, (24 February 2005) http://www.defence.gov.au/news/raafnews/editions/4702/features/feature02.htm.

  33. 33.

    Ibid.

  34. 34.

    Australian Government, Defence Capability Plan, Department of Defence 136 (Commonwealth of Australia, 2009); Australian Government, Defence Capability Plan, Department of Defence 162 (Commonwealth of Australia, 2012); Lindsay Campbell, Revival of Australian test range, 16–19 Aerospace Testing International Showcase 2010. Second pass of JP3024 is currently in development, with funding granted for development of second pass project development in 2011. Minister for Defence and Minister for Defence Materiel, Record number of Defence capability approvals in 2011, Department of Defence (13 December 2011) http://www.minister.defence.gov.au/2011/12/13/minister-for-defence-and-minister-for-defence-materiel-record-number-of-defence-capability-approvals-in-2011-2/; Christine Garnaut, Robert Freestone & Iris Iwanicki, Home on the Range: The Planning and Development of Woomera Village, 1947–2009, in Green Fields, Brown Fields, New Fields: Proceedings of the 10th Australasian Urban History, Planning History Conference 145, 154 (David Nichols, Anna Hurlimann & Clare Mouat eds.).

  35. 35.

    Millie Thomas, “Scratching the Surface…Woomera Uncovered,” The Monitor 8–9 (11 December 2013).

  36. 36.

    Australian Government, 2016 Defence White Paper, Department of Defence (Commonwealth of Australia, 2016) 100. The JP3024 upgrade project is likely to be completed by the end of 2018, and a number of other projects are currently in progress. Notably, the Australian Prime Minister announced a $297 million contract with Raytheon in June 2016 to remediate, upgrade and provide ongoing support for the Woomera Test Range. Malcolm Turnbull MP, Woomera Test Range upgrade to drive jobs and growth in South Australia (27 June 2016) https://malcolmturnbull.com.au/media/woomera-test-range-upgrade-to-drive-jobs-and-growth-in-south-australia.

  37. 37.

    Opened for signature Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

  38. 38.

    Opened for signature Apr. 22, 1968, 672 U.N.T.S. 119 (entered into force Dec. 3, 1968).

  39. 39.

    Opened for signature Mar. 29, 1972, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972).

  40. 40.

    Opened for signature Jan. 14, 1975, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1976).

  41. 41.

    Opened for signature Dec. 18, 1979, 1363 U.N.T.S. 3 (entered into force Jul. 11, 1984).

  42. 42.

    Gilbert, supra note 31, at 175.

  43. 43.

    Freeland, supra note 21, at 110.

  44. 44.

    Bruce Dorminey, “Does Australia Have a Space Future?,” Forbes (12 June 2013) http://www.forbes.com/sites/brucedorminey/2013/12/06/does-australia-have-a-space-future.

  45. 45.

    Jeff Kingwell, “Commercial Spaceport proposed for Cape York,” 4.3 Space Policy, 240, 240–244 (1988). See also Simon Miller, Whatever happened to the Cape York Spaceport, SL Blogs (21 October 2013) http://blogs.slq.qld.gov.au/jol/2013/10/21/whatever-happened-to-the-cape-york-spaceport/.

  46. 46.

    Australian Commonwealth Senate Standing Committee on Economics, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (November 2008).

  47. 47.

    Ibid. 1, para 1.3.

  48. 48.

    See also Noel Siemon & Steven Freeland “Regulation of Space Activities in Australia,” in National Regulation of Space Activities (Ram Jakhu (ed), 2010).

  49. 49.

    Freeland, supra note 21, at 108.

  50. 50.

    Ibid.

  51. 51.

    Australia’s Satellite Utilisation Policy, Commonwealth of Australia (2013) http://www.industry.gov.au/industry/IndustrySectors/space/Publications/Pages/Australias-Satellite-Utilisation-Policy.aspx. See also Asia Pacific Aerospace Consultants Pty Ltd, A Selective Review of Australian Space Capabilities: Growth Opportunities in Global Supply Chains and Space Enabled Services, 2015.

  52. 52.

    Barnaby Osborne, Andrew Dempster and Elias Aboutanios, Investing in space: what the UK Space Agency can teach Australia, The Conversation (24 July 2014) http://theconversation.com/investing-in-space-what-the-uk-space-agency-can-teach-australia-28559.

  53. 53.

    Department of Industry, Innovation and Science, Civil Space Co-ordination, Australian Government, http://www.industry.gov.au/industry/IndustrySectors/space/Civil-space-coordination/Pages/default.aspx.

  54. 54.

    Ibid.

  55. 55.

    Ibid.

  56. 56.

    Ministers and Assistant Ministers for the Department of Industry, Innovation and Science, Atmosphere is right for a review of our space activities (24 October 2015) http://minister.industry.gov.au/node/811.

  57. 57.

    Australian Government, Review of the Space Activities Act 1998: Issues Paper 4, Department of Industry, Innovation and Science 4 (Forthcoming).

  58. 58.

    Malcolm Davis, “A strategy for Australia in space’ Australian Strategic Policy Institute,” The Strategist (18 July 2016) http://www.aspistrategist.org.au/strategy-australia-space/.

  59. 59.

    Australian Government, 2016 Defence White Paper, 52, para 2.52 Department of Defence (Commonwealth of Australia, 2016) 100.

  60. 60.

    Ibid. at 87, para 4.14.

  61. 61.

    The NZ Space Agency is to be formed within the NZ Ministry of Business, Innovation and Employment in 2016. Ministry of Business, Innovation and Employment, NZ Space Agency (24 June 2016) http://www.mbie.govt.nz/info-services/sectors-industries/space.

  62. 62.

    Andrew Dempster, “Let’s talk about the space industry in Australia’s election campaign,” The Conversation (28 June 2016) http://theconversation.com/lets-talk-about-the-space-industry-in-australias-election-campaign-61567.

  63. 63.

    Brad Howarth, How Outer Space has become the new frontier for economic strength, In The Black (2 February 2015) https://intheblack.com/articles/2015/02/02/how-outer-space-has-become-the-new-frontier-for-economic-strength.

  64. 64.

    David Moore, Michael Ryan and Mary Davies-Colley, Economic Impact Analysis of the Development of a Rocket Industry in New Zealand, Sapere Research Group (9 June 2016) http://www.mbie.govt.nz/info-services/sectors-industries/space/pdf-library/Sapere%20Economic%20Impact%20Analysis%20of%20the%20Development%20of%20a%20Rocket%20Launch%20Industry%20-June%202016.pdf.

  65. 65.

    NZ Space Agency (24 June 2016) http://www.mbie.govt.nz/info-services/sectors-industries/space.

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  1. University of Adelaide, Adelaide, Australia

    Melissa de Zwart

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  1. National Law School of India University, Bengaluru, Karnataka, India

    R. Venkata Rao

  2. Indian Space Research Organisation, Bengaluru, Karnataka, India

    V. Gopalakrishnan

  3. National Law School of India University, Bengaluru, Karnataka, India

    Kumar Abhijeet

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de Zwart, M. (2017). New Laws for New Space? Using Law Reform to Drive Commercial Space Initiatives. In: Rao, R., Gopalakrishnan, V., Abhijeet, K. (eds) Recent Developments in Space Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-4926-2_5

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