Electronic Proceedings - United Nations Office for Outer Space Affairs

RICKY J. LEEThe Australian Space Activities Act 1998: Building the Regulatory Capacity for an Australian Launch IndustryCONCLUDING OBSERVATIONSIn the three years since the enactment of the Act, the Australian Government hasmanaged to create and implement a comprehensive and detailed regulatory and launchsafety framework for Australian launch operators. There are, however, several areas inthe régime where there is room for improvements to take place in the future.Statutory ceiling on insurance cover. Some concerns remain within the Australianlaunch industry relating to the statutory ceiling on the insurance cover for launchoperators as required under the Act. The Senate Economics Legislation Committeenoted recently that the statutory ceiling on the insurance cover provided under the Actexceeds the ceilings imposed in other States (except for the Russian Federation in somecases and the United States), especially considering the Australian requirement to have aflight path that avoids any high-value Designated Assets or Protected Assets. 227 On theother hand, the Australian Petroleum Production and Exploration Association (the“APPEA”) argued that the potential high costs associated with any damage caused byspace launches meant that the insurance cap artificially lowers the risk borne by launchoperators, as liability under the Act is capped at the corresponding insurance cover. 228 Itdoes appear, however, that this ceiling is unlikely to change except for the purpose ofindexation, as the launch industry is unlikely to accept a higher exposure to liability thanit does presently under the Act.Returns of launch vehicles and space objects. The Act has gone further than thelegislative framework of any other State in regulating the return of space objects.However, the Act appears only to be concerned with the return of an Australian reusablelaunch vehicle, as regulated through a Launch Permit, or the return of a foreign-launchedspace object, regardless of whether it is the launch vehicle or the payload. In otherwords, the Act either does not distinguish between the return of an Australian launchvehicle and that of an Australian payload or it does not provide for the return of anAustralian-launched space object at all. As a result, the Act potentially produces theunfair and impractical result of requiring the launch operator to be administratively andlegally responsible for any return of space objects, even when the return of the payloadmay be years after the launch took place and beyond the control of the launch operator.Alternatively, the Act may in fact be prohibiting the return of space objects other thanthat of a reusable launch vehicle, except by means of an Exemption Certificate. 229Common law actions by third parties. Confusion remains over the effect of the Act onpotential common law tort claims brought by Australian and foreign third parties inAustralia. One of the current Australian launch operators suggested to the SenateEconomics Legislation Committee that the Act leaves open the possibility of tortactions in common law. 230 The Government’s response was that the liability limitationprovided in the Act means that immunity is available to launch operators for liability in227Senate Economics Legislation Committee, supra note 115, para. 1.18. It was noted that the insurance ceilingsimposed by other States are: US$100 million for China, US$53 million for France, US$200 million for Japan andUS$500 million for Russia and the United States.228Ibid., para. 1.21.229Section 13.230Senate Economics Legislation Committee, supra note 115, para. 1.32.155