Space (Launches and Returns) Legislation Amendment (Regulatory Reform) Rules 2024

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Industry and Science

Space (Launches and Returns) Act 2018

Purpose and Operation

The Space (Launches and Returns) Act 2018 (the Act) establishes a system for the regulation of space activities from Australia or by Australians overseas, as well as a system for the regulation of the launch of high power rockets in Australia. Section 110 of the Act includes powers for the Minister to make rules by legislative instrument. The rules are needed to support the effective operation of the Act. They are intended to provide clear information and a streamlined process relevant to the approval of an activity under the Act.

The Space (Launches and Returns) Legislation Amendment (Regulatory Reform) Rules 2024 (the Amendment Rules) make amendments to two sets of rules under the Act, being the Space (Launches and Returns) (General) Rules 2019 (the General Rules) and the Space (Launches and Returns) (High Power Rocket) Rules 2019 (the High Power Rocket Rules). The amendments are intended to better achieve the object of the Act by removing inefficiency and improving flexibility, while not impacting on safety standards.

The Amendment Rules remove the requirement in the General Rules that an application for the grant of the launch facility licence be undertaken in three stages and that an applicant be invited by the Minister to submit specified information for each stage. This change provides the Agency and licence applicants with flexibility as to when documents may be lodged and removes the administrative burden imposed by the requirement that the Minister invite an applicant to the next stage. The Amendment Rules also add a note at the end of section 24 of the General Rules which provides examples of the types of approvals required under laws other than the Act. This change is intended to provide clarity on the types of approvals that the section refers to, including any relevant consultation that should occur before an approval is given.

The General Rules prescribe circumstances that will not be an accident for the purposes of subsection 85(b) of the Act. The Amendment Rules further prescribe circumstances that will not be an accident, namely where the launch or return of the space object or high power rocket does not damage third-party property. The Amendment Rules also amend the existing circumstances relating to destruction or damage consistent with the stated purpose of a launch or return, to make its meaning clearer without intending to change their operation.

The General Rules and High Power Rocket Rules require certain aspects of an application for a launch facility licence, Australian launch permit, return authorisation or Australian high power rocket permit to be conducted by, or include written confirmation from, a suitably qualified expert. The Amendment Rules clarify the process for the Minister to approve a suitably qualified expert and specify what the approval may cover. For example, the approval may relate to a specific application, or may apply to certain types of activities. The new provision also clarifies that this approval remains in force until it is revoked, or for a specified period of time or until a specified event has occurred (for example, once a decision is made on a specified application) and that the Minister may amend or repeal the approval.

The Amendment Rules enable the Minister to delegate their powers or functions under the High Power Rocket Rules consistent with the Minister’s power to delegate under section 124 of the General Rules.

Subsection 16(3) of the General Rules requires, for a launch facility licence application, that an auditor report be provided on the financial capacity of the applicant to operate and build the facility as well as the applicant’s system of financial management. The Amendment Rules replace the reference to ‘auditor’ with ‘qualified accountant’ as the skills of an accountant are better suited to the requirements of the provision.

For the launch of a space object authorised by an Australian launch permit, paragraph 120(2)(a) of the General Rules requires that the Launch Safety Officer for the launch give written notice of certain matters not later than 30 days before the launch. Paragraph 120(4)(a) imposes a similar requirement on the Launch Safety Officer for a return of a space object authorised by an Australian launch permit or return authorisation to a place or area in Australia. The Amendment Rules reduce the notice period from 30 days before the launch or return to 20 days before the launch or return. This will reduce delays between the grant of an Australian launch permit or return authorisation and the date from which the space object may be launched or returned.

Further details on the Amendment Rules are outlined in Attachment A.

Authority

Subsection 110(1) of the Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed by the rules, or make rules prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Consultation

Public consultation on the Amendment Rules was undertaken over a period of 3 weeks in July and August 2024.

As part of this consultation, the Australian Space Agency, a division of the Department of Industry, Science and Resources, released a consultation paper outlining the proposed changes and received submissions on the proposal. The majority of submissions were in favour of the proposed changes.

A summary of the consultation responses can be found on the Department of Industry, Science and Resources consultation hub webpage at: https://app.converlens.com/industry/space-launches-and-returns-rules-amendments-2.

Regulatory Impact

A preliminary assessment form was completed during the development of the Amendment Rules and provided to the Office of Impact Analysis (OIA). The Amendment Rules are unlikely to have more than a minor impact on individuals, businesses, or community organisations. As such a Regulatory Impact Statement was not required (OIA reference number OBPR22-03425).

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is set out in Attachment B.

Attachment A

Details of the Space (Launches and Returns) Legislation Amendment (Regulatory Reform) Rules 2024

Section 1 – Name

This section specifies the name of the instrument as the Space (Launches and Returns) Legislation Amendment (Regulatory Reform) Rules 2024.

Section 2 – Commencement

This section provides that the instrument commences on the day after the registration of the instrument.

Section 3 – Authority

This section specifies that the instrument is made under the Space (Launches and Returns) Act 2018.

Section 4 – Schedules

This section provides that each instrument specified in a Schedule to the Amendment Rules is amended or repealed as set out by the Schedule, and any other item in a Schedule has effect according to its terms.

SCHEDULE 1 – REFINING APPLICATION PROCESS FOR LAUNCH FACILITY LICENCES

Space (Launches and Returns) (General) Rules 2019

Item 1 – Subdivision A of Division 3 of Part 2 (heading)

This item repeals the heading ‘Subdivision A—Preliminary’.

This change gives effect to the removal of the three-stage application process for a launch facility licence. The change is intended to provide the Agency and licence applicants with greater flexibility as to when documents may be lodged, and to remove the administrative burden imposed by the requirement that the Minister invite an applicant to the next stage.

Item 2 – Subdivision B of Division 3 of Part 2 (heading)

This item repeals the heading ‘Subdivision B—Initial stage of application’.

Item 3 – Section 12

This item repeals section 12 which provided that Subdivision B set out the material required in documents that were lodged when the application was made.

Item 4 – Subdivision C of Division 3 of Part 2 (heading)

This item repeals the heading ‘Subdivision C—Second stage of application’.

Item 5 – Section 17

This item repeals section 17 which set out that the Minister may, after the application had been made, make a request for the applicant to lodge documents for the second stage of the application. Section 17 also provided that Subdivision C set out the material required in documents that were lodged when the Minister made this request.

Item 6 – Subdivision D of Division 3 of Part 2 (heading)

This item repeals the heading ‘Subdivision D—Third stage of application’.

Item 7 – Section 23

This item repeals section 23 which set out that the Minister may, after the application had been made, make a request for the applicant to lodge documents for the third stage of the application. Section 23 also provided that Subdivision D set out the material required in documents that were lodged when the Minister made this request.

Item 8 – At the end of section 24

This item adds a note at the end of section 24 which provides examples of the types of approvals required under laws other than the Act in relation to the construction and operation of the launch facility and for which approval is required but not yet obtained.

This change is intended to provide clarity on the types of approval that the section refers to, including any relevant consultation that should occur before an approval is given. The note gives examples of an approval required under a planning or development law, or a law to protect cultural heritage, before the launch facility can be constructed (which may require, before approval is given, consultation with groups affected by the construction of the launch facility).

Item 9 – Subdivision E of Division 3 of Part 2 (heading)

This item repeals the heading ‘Subdivision E—Other matters’.

This change gives effect to the removal of the three-stage application process for a launch facility licence. The change is intended to provide the Agency and licence applicants with flexibility as to when documents may be lodged, and to remove the administrative burden imposed by the requirement that the Minister invite an applicant to the next stage.

Item 10 – Subsection 33(1)

This item omits the words ‘Subdivisions B, C and D of’ from subsection 33(1).

The change reflects the removal of the three-stage launch facility licence application process. The text is no longer necessary as these Subdivisions have been repealed.

Item 11 – Subsection 33(2)

This item omits the words ‘(that is, without a request from the Minister under subsection 17(1) or 23(1))’ from subsection 33(2).

The change reflects the removal of the three-stage launch facility licence application process. The text is no longer necessary as these provisions have been repealed.

SCHEDULE 2 – MEANING OF ACCIDENT

Space (Launches and Returns) (General Rules) 2019

Item 1 – Section 4 (after paragraph (a) of the definition of stated purpose)

This item inserts an additional paragraph for the definition of ‘stated purpose’, covering the return of a space object in accordance with an Australian launch permit.

This change is intended to ensure that the definition of ‘stated purpose’ includes a reference to the explanation given by the applicant as to why an object is to be returned in accordance with an Australian launch permit required under new paragraph 46(1)(f) of the General Rules. The ‘stated purpose’ of the activity is referenced in other provisions of the General Rules, for example in new subsection 121(2).

Item 2 – Paragraph 46(1)(f)

This item amends paragraph 46(1)(f) to include a new requirement to include an explanation as to why a space object connected with the launch is to be returned.

Section 46 sets out the information that an applicant for an Australian launch permit must provide. New subparagraph 46(1)(f)(i) is intended to ensure that an applicant for an Australian launch permit, where the proposed activities include a connected return of a space object, provides an explanation as to why the object is to be returned. It is intended to ensure that applicants provide the information mentioned in the definition of ‘stated purpose’ in section 4 of the General Rules. New subparagraph 46(1)(f)(ii) restates former paragraph 46(1)(f), requiring the applicant to provide the period for the return and return windows within the period.

This information is required in addition to the description of the purpose of the launch under paragraph 46(1)(a), as the purpose of the launch may be different to that of the connected return of a space object.

Item 3 – Section 121

This item repeals the current section and substitutes new prescribed circumstances that will not be an accident for the purposes of paragraph 85(b) of the Act.

Subsection 121(1) sets out that the section prescribes circumstances in which a space object or high power rocket being destroyed or seriously damaged, or causing damage to other property, is not an accident.

New subsection 121(2) sets out prescribed circumstances that apply to a space object or high power rocket launched or returned in accordance with an Australian launch permit, return authorisation or an Australian high power rocket permit. Subsection 121(2) sets out that the prescribed circumstances are where the destruction or damage is consistent with the stated purpose of the launch or return and the flight or return is not terminated by operation of the flight safety system. This subsection restates the circumstances set out in former paragraphs 121(a)-(c) which have been amended to make their operation clearer.

New subsection 121(3) sets out that subsection 121(2) does not apply if the property of a third party is damaged by the destruction or damage mentioned in that subsection. ‘Third party’ is defined by section 8 of the Act. This change is intended to make clear that if a space object or a high power rocket causes damage to the property of a third party, an accident occurs for the purposes of the Act even if the circumstances prescribed in new subsection 121(2) apply. Subsection 121(3) links to new subsection 121(4) that deals with other circumstances where an accident will not occur.

New subsection 121(4) sets out that for the purposes of paragraph 85(b) of the Act, in relation to a space object or high power rocket causing damage to other property, the prescribed circumstances are that the damaged other property does not include the property of a third party. This change is intended to establish that an accident does not occur for the purposes of the Act where there is no damage to the property of a third party.

These changes are intended to expand the circumstances in which a space object is destroyed or seriously damaged or causes damages to other property, but is not considered an accident. It will provide the Minister with broader discretion on the circumstances which requires investigation, so that circumstances that do not cause serious harm or injury to any persons or any third-party property are not automatically required to be investigated as an accident. Such circumstances may still be an ‘incident’ (defined by section 86 of the Act) and in these cases the Minister will have discretion as to whether an Investigator should be appointed.

While safety of space activities is always a primary consideration, these changes acknowledge that failures will occur and are part of the innovation process.

SCHEDULE 3 – SUITABLY QUALIFIED EXPERT AND DELEGATIONS

Space (Launches and Returns) (General Rules) 2019

Item 1 – Subsection 37(4)

This item omits the words ‘who is approved by the Minister’ and substitutes the text ‘who is approved under section 124A to perform the analysis’.

This change is intended to clarify the process for approving a suitably qualified expert to provide the statement mentioned in subsection (4). That approval process is now specified in section 124A.

Item 2 – Paragraph 52(2)(a)

This item omits the words ‘who is approved by the Minister’ and substitutes the text ‘who is approved under section 124A to perform the analysis’.

This change is intended to clarify the process for approving a suitably qualified expert to provide the statement mentioned in paragraph (2)(a). That approval process is now specified in section 124A.

Item 3 – Subsection 53(3)

This item omits the words ‘who is approved by the Minister’ and substitutes the text ‘who is approved under section 124A to give the written confirmation’.

This change is intended to clarify the process for approving a suitably qualified expert to provide the statement mentioned in subsection (3). That approval process is now specified in section 124A.

Item 4 – Paragraph 98(2)(a)

This item omits the words ‘who is approved by the Minister’ and substitutes the text ‘who is approved under section 124A to perform the analysis’.

Item 5 – Subsection 99(3)

This item omits the words ‘who is approved by the Minister’ and substitutes the text ‘who is approved under section 124A to give the written confirmation’.

This change is intended to clarify the process for approving a suitably qualified expert to provide the statement mentioned in subsection (3). That approval process is now specified in section 124A.

Item 6 – Section 124 (heading)

This item repeals the current heading ‘Delegation’ and replaces it with ‘Delegation by the Minister’.

Item 7 – After section 124

This item adds a new section 124A dealing with approval of suitably qualified experts. This change is intended to clarify the process for approving a suitably qualified expert for the purposes of subsections 37(4), 52(2), 53(3), 98(2) and 99(3). The change also clarifies what the approval may cover and introduces flexibility in the appointment of suitably qualified experts. For example, the approval of a suitably qualified expert may relate to a specific application, or may apply to certain types of activities.

Subsection 124A(1) provides that the Minister may, by writing, approve a person as a suitably qualified expert to give a statement or confirmation, or perform an analysis, for the purposes of any or all of subsection 37(4), 52(2), 53(3), 98(2) and 99(3). The three notes beneath this subsection make clear that the approval may be for one or more statements, confirmations or analyses, that the approval may be for a class or classes of statements, confirmations or analyses and that the Minister may amend or repeal the approval.

Subsection 124A(2) sets out that the approval must specify that it remains in force:

until revoked by the Minister; or
for a specified period; or
until the happening, or the cessation, of a specified event.

Subsection 124A(3) clarifies that the Minister may approve a person only if satisfied that the person is a suitably qualified expert in relation to the matters covered by the approval.

Space (Launches and Returns) (High Power Rocket) Rules 2019

Item 8 – Subsection 26(3)

This item omits the words ‘who is approved by the Minister’ and replaces it with the text ‘who is approved under section 43B to give the written confirmation’.

This change is intended to clarify the process for approving a suitably qualified expert to provide the statement mentioned in subsection (3). That approval process is now specified in section 43B.

Item 9 – Subsection 26(4)

This item repeals the subsection and substitutes it with the note: ‘The expert can be the same expert who gave the written confirmation under subsection 25(6). However, the expert still needs to be approved for the purposes of this subsection.’

The note restates former subsection 26(4), which had set out that the written confirmation under subsection 26(3) may be from the same suitably qualified expert who provided the written confirmation under subsection 25(6). Noting that the suitably qualified expert under subsection 25(6) does not need to be approved by the Minister, the applicant has the choice of using a single suitably qualified expert to provide written confirmation under both subsections 25(6) and 26(3) if they desire. The new note highlights that if the same suitably qualified expert provides written confirmation in relation to the flight safety plan and the risk hazard analysis, they must be approved by the Minister to provide a written confirmation in relation to the flight safety plan (however they are not required to be approved by the Minister to provide a written confirmation in relation to the risk hazard analysis).

Item 10 – After Part 3

This item inserts Part 3A – Miscellaneous, which includes two new sections; section 43A Delegation by the Minister and 43B Approval of suitably qualified experts.

Section 43A allows the Minister to delegate any of the Minister’s powers or functions under the High Power Rocket Rules to:

The Secretary of the Department; or
The Head of the Agency; or
An SES employee, or acting SES employee, in the Department.

Subsection 43A(2) specifies that the delegate must comply with any directions of the Minister in doing anything under a delegation.

The purpose of including this delegation power is to allow for efficient and more flexible decision making. Given the number of decisions the Minister may need to make, this will be particularly important if the volume of activity increases. The level of delegation is appropriate as it is limited to government officials at a sufficiently senior level, who therefore have experience in exercising decision-making powers.

Section 43A is drafted in the same terms as existing section 124 of the General Rules.

The insertion of section 43B is intended to clarify the process for approving a suitably qualified expert to provide the written confirmation mentioned in subsection 26(3). The change also clarifies what the approval may cover and introduces flexibility in the appointment of suitably qualified experts. For example, the approval of a suitably qualified expert may relate to a specific application, or may apply to certain types of activities.

Subsection 43B(1) provides that the Minister may, by writing, approve a person as a suitably qualified expert to give a confirmation for the purposes of subsection 26(3). The three notes beneath subsection 43B(1) make clear that the approval may be for one or more confirmations, that the approval may be for a class or classes of confirmations and that the Minister may amend or repeal the approval.

Subsection 43B(2) sets out that the approval must specify that it remains in force:

until revoked by the Minister; or
for a specified period; or
until the happening, or the cessation, of a specified event.

Subsection 43B(3) clarifies that the Minister may approve a person only if satisfied that the person is a suitably qualified expert in relation to the matters covered by the approval.

SCHEDULE 4 – OTHER AMENDMENTS

Space (Launches and Returns) (General Rules) 2019

Item 1 - Paragraph 9(4)(b)

This item substitutes the word ‘license’ with ‘licence’. This change corrects a typographical error.

Item 2 – Subsection 16(3)

This item substitutes the words ‘an auditor’ with ‘a qualified accountant (within the meaning of the Corporations Act 2001)’.

This change requires applicants for a launch facility licence to have a qualified accountant (within the meaning of the Corporations Act 2001) report on the financial capacity of the applicant to operate and build the facility as well as the applicant’s system of financial management. This change has been made as the skills of a qualified accountant are better suited to the requirements of subsection 16(3).

Item 3 – Paragraph 112(2)(c)

This item substitutes the word ‘application’ with ‘applicant’. This change corrects a typographical error.

Item 4 – Paragraphs 120(2)(a) and 4(a)

This item substitutes the words ‘30 days’ with ‘20 days’ in subsections 120(2)(a) and 4(a).

For the launch of a space object authorised by an Australian launch permit, paragraph 120(2)(a) requires the Launch Safety Officer for the launch to give written notice of certain matters. Paragraph 120(4)(a) imposes a similar requirement on the Launch Safety Officer for a return of a space object to a place or area in Australia authorised by an Australian launch permit or return authorisation. The notice is to ensure that the relevant persons mentioned in subsection 120(5) may take actions, including safety actions, in relation to the launch or return event and have time to take whatever action may be needed in preparation for an emergency.

This change reduces the notice period that the Launch Safety Officer must give from 30 days before a launch or return to 20 days before a launch or return. The purpose of this amendment is to reduce delays between the grant of an Australian launch permit or return authorisation and the date from which the space object may be launched or returned.

Item 5 – At the end of Part 10

This item adds a new section 126 dealing with the application of particular amendments made by these Amendment Rules.

New subsection 126(1) provides that the amendments relating to applications for a launch facility licence (Division 3 of Part 2), application for a transfer of a launch facility licence (Division 5 of Part 2), applications for an Australian launch permit (Division 3 of Part 3) and applications for a return authorisation (Division 2 of Part 5) apply to applications made on or after the day on which section 126 commences. Amendments made to standard Australian launch permit conditions (Division 2 of Part 3) apply to Australian launch permits granted on or after the day this section commences.

Subsection 126(1) will allow the changes made by the amending instrument to apply immediately to all new applications made on or after that day, and for the amended standard conditions to apply to all Australian launch permits granted on or after that day.

New subsection 126(2) provides that the amendments do not affect the approval of any suitably qualified expert who is, immediately before the section commences, approved by the Minister. This ensures that the amendments do not nullify or affect approvals of suitably qualified experts made by the Minister prior to commencement of the amendments.

The new subsection 126(3) provides that the Minister may, for an application to which the amendments made by the amending instrument do not apply, approve a person as a suitably qualified expert under section 124A. This subsection intends to clarify that, for applications to be a suitably qualified expert that have commenced but have not been finalised before section 124A commences, the Minister may still approve that person under section 124A. It is intended for applicants to be able to choose whether to have their application dealt with under new section 124A, or under the provisions as they existed at the time they commenced their application.

Space (Launches and Returns) (High Power Rocket) Rules 2019

Item 6 – At the end of Part 4

This item adds a new section 45 dealing with the application of particular amendments made by these Amendment Rules.

The new subsection 45(1) provides that the amendments made by this amending instrument to the High Power Rocket Rules apply to applications made on or after the day on which section 45 commences.

New subsection 45(2) provides that the amending instrument does not affect the approval of any suitably qualified expert who is, immediately before the section commences, approved by the Minister. This ensure that the amendments do not nullify or affect approvals of suitably qualified experts made by the Minister prior to commencement of the amendments.

New subsection 45(3) provides that the Minister may, for an application to which the amendments made by the amending instrument do not apply, approve a person as a suitably qualified expert under section 43B. This subsection intends to clarify that, for applications to be a suitably qualified expert that have commenced but have not been finalised before section 43B commences, the Minister may still approve that person under section 43B. It is intended for applicants to be able to choose whether to have their application dealt with under new section 43B, or under the provisions as they existed at the time they commenced their application.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Space (Launches and Returns) Legislation Amendment (Regulatory Reform) Rules 2024

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Human rights implications

This instrument does not engage any of the applicable rights or freedoms.

Conclusion

This instrument is compatible with human rights as it does not raise any human rights issues.

The Hon Ed Husic MP

Minister for Industry and Science

Administered by Department of Industry, Science and Resources

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