By Joel Lisk
On 18 August 2023, the Australian Space Agency announced that it had amended the Space (Launches and Returns) (General) Rules 2019 (‘General Rules’) and Space (Launches and Returns) (High Power Rocket) Rules 2019 (‘High Power Rocket Rules’) to remove the requirement that certain aspects of applications under the Space (Launches and Returns) Act 2018 (‘the Act’) be reviewed by a suitably qualified expert ('SQE') that is not a 'related party' of the applicant.
What does this mean? Here is the short of it…
The Previous Requirements
When the General Rules and the High Power Rocket Rules were introduced in 2019, they both required that applicants for Australian Launch Permits, Return Authorisations, Launch Facility Licences and Australian High Power Rocket Permits have certain documents reviewed by a SQE that is not a 'related party' of the applicant. These documents varied between the different licence categories but generally included risk hazard analyses, flight safety plans, and cybersecurity strategies that formed part of a technology security plan.
For a person to be an SQE, they had to be approved by the Minister.
The Act defined related party as including an applicant and its employees. In effect, this prevented an applicant using its own personnel to act as the suitably qualified person.
Concerns from industry
The Australian space industry advocated the position that the requirement for a suitably qualified person to review certain documents was excessive, replicating the work they undertook internally when preparing the documents themselves. They also argued that as part of the assessment of applications lodged under the Act, the Australian Space Agency would also be reviewing these documents. Industry argued that seeking out a suitably qualified person to undertake reviews of these documents was also adding unnecessary costs to the application process. It was also argued that this requirement was out of step with international practices.
In April 2022, the Australian Space Agency began consultations on removing the requirement that a suitably qualified person not be a related party of an applicant. The Australian Space Agency, at the end of the consultation period, summarised that responses to the consultation were generally in favour of removing the requirement that a suitably qualified person is not a related party.
Implementing the Change
Due to timing of the consultation in April 2022, the Federal election in May 2022 delayed the Australian Space Agency acting on the outcomes of the consultation.
Minister for Industry and Science, Ed Husic signed the amending regulations, the Space (Launches and Returns) Legislation Amendment (Suitably Qualified Experts) Rules 2023 (Cth) on 10 August 2023. These amending regulations were registered (and commenced) on 16 August 2023.
These changes mean that an applicant who is required to produce a risk hazard analysis, flight safety plan, or cybersecurity strategy can use their own employees to prepare the documents by having them approved as SQEs by the Minister. This should reduce the cost burden on entities applying for authorisations under the Act.
The origins of the independent SQE requirement can be found in the Space Activities Regulations 2001 (Cth). The regulations produced under the Act (which was known as the Space Activities Act 1998 at the time) originally required certain documents to be prepared by an ‘independent person having suitable qualifications’ to assess environmental plans and financial management systems.
When the regulations were amended in 2002 following the HyShot Project ‘accident’, this requirement began to expand. This period also coincided with increasing concerns from the West Australian Government and the oil and gas industry about the Christmas Island Spaceport proposal and the risk of accidents involving high value assets. The 2002 amendments to the Space Activities Regulations required experts with suitable qualification who were not related parties of an applicant to verify risk hazard analysis methodologies if they departed from the Act’s Flight Safety Code, and certain flight safety plans and risk hazard analyses required for a Launch Permit. These requirements were transposed (and in some respects extended) into the General Rules and High Power Rocket Rules following the amendments to the Space Activities Act 1998 in 2018.
Joel Lisk is the Secretary of the Space Law Council of Australia and New Zealand, having previously served as a Director. Joel is a researcher working within the Jeff Bleich Centre for the US Alliance in Digital Technology, Security and Governance at Flinders University. Joel frequently publishes and lectures on Australia's regulation of space activities as well as the legal frameworks in place across countries including the United States, United Kingdom, New Zealand, Japan and several European States. Joel also researches in other areas including competition law, consumer protection and data privacy.
This post has been written as a general update on regulatory arrangements related to space and does not amount to legal advice. If the content of this post impacts you, seek legal advice to confirm how these changes might impact you.