Watch This Space: The Development of Commercial Space Law in Australia and New Zealand
| Date | 01 September 2019 |
| Published date | 01 September 2019 |
| Author | Joel Lisk,Melissa de Zwart |
| DOI | 10.1177/0067205X19856498 |
| Subject Matter | Articles |
Article
Watch This Space:
The Development
of Commercial Space
Law in Australia
and New Zealand
Joel Lisk* and Melissa de Zwart**
Abstract
Space law is regulated largely by international treaties which have little to say regarding the use and
regulation of commercial space. As the costs of access to outer space decrease and the benefits
exponentially increase, more countries are seeking to support and encourage ‘NewSpace’
entrepreneurs in order to establish commercial space industries. Australia has been a minor player
in the space domain, primarily through involvement with Europe and the US since the late 1960s,
but its domestic legislation bears little relevance to the shape of space industry today. Australia’s
neighbour, New Zealand, now wants to become a NewSpace incubator and has recently enacted
legislation designed to make it a competitive host nation for launch providers. This article will
compare the regulatory space regimes of these two countries to provide an assessment of the
importance of domestic regulation in fostering competitive commercial space services, for
countries seeking to become competitive in the commercial space race.
Introduction
Outer space is the final frontier for humankind, an endless domain with just as many possibilities.
The commercial sector has rapidly embraced space, working to increase the frequency and viabi-
lity of private sector projects. Government launches are no longer the ‘on-trend’ option for
reaching orbit, with American companies such as SpaceX and United Launch Alliance, and the
France-based Arianespace leading the global launch industry, providing unprecedented access to
space.
1
With outer space being regulated at the international level, countries are left to implement
their own laws to ensure that nationals and companies act appropriately in orbit while also paying
* Joel Lisk, Adelaide Law School, University of Adelaide, Adelaide, Australia. The author may be contacted at joel.lisk@
adelaide.edu.au.
** Melissa de Zwart, Adelaide Law School, University of Adelaide, Adelaide, Australia. The author may be contacted at
melissa.dezwart@adelaide.edu.au.
Federal Law Review
2019, Vol. 47(3) 444–468
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19856498
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regard to international obligations. Australia implemented their Space Activities Act 1998 (Cth)
(‘SAA’) before the invention of the CubeSat,
2
when Space Shuttle launches were commonplace
and the ‘big satellite’ was king. No company has launched a payload into space from Australian
territory since the SAA’s inception despite numerous viable proposals and test launches over the
last two decades. Comparatively, New Zealand introduced their Outer Space and High-altitude
Activities Act 2017 (NZ) (‘OSHAA’) while a small-scale launcher was already establishing them-
selves in the country.
3
These regimes follow similar patterns by focusing almost exclusively on
launch, but their interpretation and application can prove complicated and may act as a disincen-
tive to new industry, despite commercial efficacy being central to the long-term viability of space
industries and the ‘NewSpace’ movement.
4
This article outlines the context and relevant regulatory environment in both Australia and New
Zealand, followed by an analysis of the likely impact of the applicable regulation on fostering and
encouraging a domestic commercial space industry in each of those jurisdictions. The article will
conclude that despite public pronouncements of the enhanced flexibility and commercial applic-
ability of the New Zealand legislation, there is little evidence to suggest that the regulatory regime
to be developed in New Zealand represents a major improvement on the Australian model, upon
which it was based. The authors recommend that for a commercial space industry to flourish in
either country, a broad and permissive approach to the interpretation of the applicable legislative
regime will be required.
Background
International Law
International space law is composed of treaties, multilateral agreements, custom, State practice
and other instruments of varying applicability. Modern-day space is regulated by five treaties
administered by the United Nations. In order of introduction, these treaties are the Outer Space
Treaty,
5
Rescue Agreement,
6
Liability Convention,
7
Registration Convention
8
and Moon Agree-
ment (collectively, ‘Space Treaties’).
9
The most significant of these, the Outer Space Treaty,
10
establishes the basic principles determining use of the domain and, in many circles, ha s been
taken to codify the basic customary international law applicable to the space domain.
11
The
treaties have varying statuses. The Outer Space Treaty is the most widely adopted, with over 105
parties.
12
As time progressed and the treaties became more comprehensive in the obligations
they impose on states, the adoption rate declined.
13
These treaties only bind their State parties.
Commercial entities are bound by domestic laws that implement the operative provisions of the
Space Treaties, epitomising the importance of international law as the foundation of modern
domestic space instruments.
The patterns of adoption by Australia and New Zealand are indicative of their historical
approach to space activities. Australia approached space with vigour and enthusiasm, evidenced
by its relatively early adopt ion of all five Space Treaties and role as a founding member of
UNCOPUOS.
14
New Zealand is party to four of the five treaties, with accession of the Registration
Convention taking place in January 2018 as part of reforms in the space law field.
15
Adoption of
the treaties by New Zealand was much slower than Australia, indicative of a later and less
ambitious drive into the realm of space activities, perhaps one assisted by the benefit of hindsight
with respect to the highly criticised Moon Agreement.
16
Lisk and de Zwart 445
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