The future of Australia’s commercial space sector under the US-Australia space technology treaty – Aviation

16 March 2024

Corrs Chambers Westgarth

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On 28 February 2024, the Australian Government tabled
the US-Australia Technology Safeguards Agreement (TSA), kicking off
the initial stages of the domestic ratification process that would
bring the TSA into force if passed by the Australian
Parliament.

The TSA was inked between Canberra and Washington on 26 October
2023, but the text of the treaty was only made publicly available
for the first time when it was tabled before the Australian
Parliament and referred to the Joint Standing Committee of
Treaties.

The TSA treaty-level agreement establishes a legal framework
that safeguards US space technology deployed within Australian
territory. More particularly, it ensures that US technology remains
under US control while in Australia, except in ‘exigent
circumstances’. Observers expect the TSA to pave the way for
more American companies, government organisations and universities
to participate in space launches and related activities in
Australia involving sensitive US space technology.

The TSA applies to a ‘launch activity’ that involves US
technology (being US spacecraft, US launch vehicles, US related
equipment and US technical data). The term ‘launch
activity’ broadly encompasses ‘all actions
associated with the launching from within the
territorial jurisdiction of Australia’ and ‘landing within
the territorial jurisdiction of Australia’ from the initial
technical discussions to the launch and return of US related
equipment and US technical data. This essentially captures all
activities relating to maintenance, repair, overhaul, reassembly,
inspection, testing etc. of launch vehicles and spacecrafts.

Below, we discuss the potential implications of the TSA for the
existing commercial space regulatory framework in Australia.

Background

The Space (Launches and Returns) Act 2018 (Cth)
(SLR Act) is the primary legislation governing
space launches and related activities in Australia. The Act is
administered by the Australian Space Agency under the Department of
Industry, Science and Resources.

The SLR Act sets up a regulatory framework under which the
Australian Space Agency regulates space activities in Australia
through the grant of approvals, which can come in the form of a
licence, permit, or authorisation, depending on the type of the
space activity applied. For example, a launch facility licence is
required to operate a launch facility in Australia, a launch permit
is required to launch a space object or a high power rocket, and a
return authorisation is required to return a space object to
earth.

The criteria for the grant of these approvals are prescribed in
the Space (Launches and Returns) (General) Rules 2019
(Cth) and the Space (Launches and Returns) (High Power
Rocket) Rules 2019 (Cth) (together, the
Rules), which, among other things, require
applicants to include a ‘technology security plan’ in their
application for any proposed space activity to be conducted in
Australia.

Technology security plans

Whilst the Rules do not prescribe a set of technical
requirements or specifications that the technology security plan
must contain, they require an applicant to include a technology
security plan that broadly addresses operations security, physical
security and cyber security.

More specifically, a technology security plan must include:

• arrangements and procedures for safeguarding technology to be
  used in operating or conducting the relevant space activity applied
  for (e.g. operating the launch facility or conducting
  launches);
• the procedures to prevent unauthorised persons from having
  access to the technology;
• a cyber security strategy; and
• where there is in force an agreement between Australia and
  another country in relation to the safeguarding of any technology,
  information on how the plan ensures Australia gives effect to its
  obligations under that agreement – a provision under which
  agreements such as the TSA can be implemented.

Although the obligations in the TSA are imposed on Australia as
a nation rather than Australian entities directly, certain
obligations are expected to have a flow-on effect on Australian
entities participating in launch activities that involve US
technology.

What does this mean for the Australian commercial space
sector?

The obligation to develop a technology security plan is not new.
However, it is expected that future space activities in Australia
that involve US technology will require a more detailed
consideration around the planning of technology safeguards and a
robust technology security plan.

It is anticipated that the implementation of the TSA will not
require amendments to existing laws – rather the TSA will be
implemented under the existing approval process.

Other features of the TSA that may affect Australian entities
that are worth noting include the requirement:

• that US participants retain control of US launch vehicles, US
  spacecraft, US related equipment and US technical data for any
  launch activities;
• that only persons authorised by the American government be
  given 24-hour control access to US launch vehicles, US spacecraft,
  US related equipment and US technical data; and
• to establish ‘segregated areas’ (areas which access
  will be limited to persons approved by the US Government only) and
  ‘controlled areas’ (areas which access will be limited to
  persons approved by the Australian Government, US Government, and
  governments of other countries directly involved with the launch
  activity) in Australia.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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