The space and defence sectors are notorious for heavy regulation. For many years, tight US export control restrictions on US technology have been a barrier preventing Australia from offering space launch facilities to US companies. This is despite Australia’s ideal launch geography and the lack of available facilities in the US, where spaceports are already operating at capacity.
Recently, however, the Government has taken steps to remove restrictions and promote further Australian innovation and participation in the burgeoning space sector by entering into the “Agreement between the Government of Australia and the Government of the United States of America on Technology Safeguards Associated with United States Participation in Space Launches from Australia” (TSA), the most significant regulatory development in the Australian space sector since the Space (Launches and Returns) Act 2018 (Cth) (SLRA) came into force in 2018.
This article is the first in a planned series of articles covering changes in Australia’s regulatory and innovation landscape affecting technology, and takes an in depth look at the Australia/US TSA.
Understanding the impacts on the Australian space industry
What is a TSA?
The Missile Technology Control Regime (MTCR), established in 1987 and joined by Australia in 1990, aims to limit the proliferation of weapons of mass destruction by controlling the export of missiles, unmanned aerial vehicle systems, and equipment and technology used for the development or production of same. A lot of space technology is dual-use, which means it can be used for both civilian and military applications and is subject to the export control requirements of the MTCR. To address this, the US Government requires a Technology Safeguards Agreement to be in place before permitting another country to launch objects into space using or featuring sensitive US space technology, including American launch vehicles (ie rockets), spacecraft, related equipment and technical data - collectively referred to in this article as US space technology.
A Technology Safeguards Agreement is a treaty level agreement between the US and another MTCR country. The core purpose of the Agreement is to protect, and prevent unauthorised access to or transfer of, US space technology launched from other nations, including both launches in other countries using US launch vehicles, and US space technologies being launched on non-US launch vehicles. A Technology Safeguards Agreement is separate to, and does not amend, any export control or International Traffic in Arms Regulations requirements.
The US already has Technology Safeguards Agreements in place with several other partner countries including the United Kingdom, Brazil and New Zealand. The establishment of a Technology Safeguards Agreement in New Zealand led directly to the major success of RocketLab in launching space objects from its North Island spaceport.
The new TSA between the US and Australia
As noted above, in October 2023, the Australian Government entered into a TSA with the United States, providing the necessary framework for American companies, government organisations and universities to export US space technology to Australia for space launch activities. To date, these activities have been constrained by the US export controls and defence policies that limit the exporting of controlled technology.
The purpose of the TSA is to provide a framework that will enable compliance with those policies and facilitate the export of that technology to Australia, thereby giving companies from the US greater guarantees of protection for their technology when launched from or returning to Australia and ultimately fostering space launch activities in Australia. The Department of Industry Science and Resources states:
"The TSA will help Australia’s domestic launch sector and spaceports to grow. Australia is expecting US space launches on Australian soil to create new high-skilled tech jobs and supply chains".
As with other treaties, the TSA imposes obligations on the Australian Government, and not on companies or individuals. Domestic laws will then flow down these obligations to relevant participants in the space sector, including through conditions placed on licences and permits issued under the SLRA.
Key features of the TSA
The TSA establishes a framework for control of US space technologies during all phases of launch activities that involve US space technology, including transportation. The framework is not prescriptive, recognising that different technologies have different levels of sensitivity and need to be considered on a case-by-case basis. It is important to note that the TSA does not apply to all export controlled technology, only launch vehicles and spacecraft, meaning that excluded technology may still be subject to US export control laws.
A key focus of the TSA is on access controls:
- Nobody other than US participants, whether nationals of Australia or other countries operating on behalf of Australian persons or Australian licensees, is allowed to take unauthorized possession of US space technology imported to support launch activities except in exigent circumstances and in accordance with agreed procedures.
- US participants are to retain control of US space technology and the Australian Government must make available and set clear boundaries for Segregated and Controlled Areas.
Is an area within Australia designated by the Australian Government where access is limited to designated persons, the US Government, and governments of other countries directly involved with launch activities, and to which US persons can monitor, inspect, and access US space technology for the purposes of conducting launch activities (ie this may be a launch facility).
Are areas which are jointly designated by the Australian and US Governments and access and monitoring rights are limited to persons designated by the US Government only – this is likely to be an area within a Controlled Area (i.e segregated areas of a spaceport hosting sensitive technology).
- Only persons authorised by the US Government can control access to US space technology throughout transportation, construction/installation, mating/demating, test and checkout, launch preparations, launch, and return of US related equipment and US technical data.
- Other specific controls relating to launch activities are to be set out in technology transfer control plans and technology security plans.
- The US Government is given certain rights of access, including:
- The Australian Government must facilitate 24-hour unimpeded access for US participants to US space technology including by allowing US participants to accompany Australian authorities carrying out statutory functions under Australian law.
- The Australian Government must ensure US licensees are permitted, on an uninterrupted basis, to monitor, access, and accompany US space technology and to control access to Segregated Areas except in exigent circumstances and in accordance with agreed procedures.
- US Government officials present in Australia for launch activities will have unimpeded access to inspect and check US space technology whether located in Controlled Areas, Segregated Areas or elsewhere. The US Government, including through US licensees, may also inspect and monitor launch activities, Segregated Areas and Controlled Areas including through electronic CCTV, and US participants may be permitted to accompany US launch vehicles and/or US spacecraft along the route that US launch vehicles take to launch pads.
The TSA also sets out additional detailed requirements for the transport, inspection and handling of US space technology in Australia, including post-launch obligations for successful, cancelled and failed launches, and relating to the search and recovery of US space technology components and debris within Australia.
Key considerations for Australian innovators under the TSA
There is no doubt that the TSA will open the door for easier involvement of US entities should they wish to conduct launch activities in Australia. The submissions to the Joint Standing Committee on Treaties generally recognise that this will deliver significant opportunities for Australia’s space industry.
However, these benefits and opportunities may not be shared equally by all in the Australian space industry and some in the industry suggest the lowering of barriers may come at a trade-off, advocating more needs to be done to address some of the implications the TSA may have on Australia’s sovereign capabilities in space technology.
Navigating the implications for sovereign space capabilities
Submissions from industry have particularly focused on the degree of alignment with the US, noting:
- That access to Controlled Areas requires approval of the US Government – these terms could be read to limit Australian involvement;
- The treatment of Controlled Areas and Segregated Areas, to which US personnel are given special and unrestricted access, may impact traditional custodians of Australian territory;
- That the TSA does not enable technology sharing, collaboration or manufacturing in Australia of technology – it only facilitates the export of US space technology to Australia;
- That it is not clear that the arrangement delivers a right to require the US Government to provide full information in support of launch activities;
- That the arrangement may lead to reliance on US technology and reduce opportunities for local industry and collaboration with other countries; and
- That the TSA aligns Australia closely with US space policy.
Notwithstanding the above, the prevailing commentary reflects that by facilitating the involvement of US participants in Australian launch and return activities, the TSA will make launch and return activities by US participants a far more attractive and viable proposition than they are now. The point is made that the TSA is no more onerous than similar arrangements that the US has with other nations, which are currently ahead of Australia in its dealings with the US on these technologies, and that the absence of a TSA will not facilitate greater involvement of the Australian space sector in those activities.
Next steps: Preparing for opportunities in space collaboration
The TSA was signed by the Governments of Australia and the USA in October 2023 and tabled in Federal Parliament on 27 February 2024. The TSA was subsequently referred to the Joint Standing Committee on Treaties, as required by Australia’s treaty making process.
The Joint Standing Committee is currently considering the submissions received, and the next step is a public hearing on 14 May 2024.
What does this mean for Australian innovators?
- Engage early - The TSA expressly reserves the power of the Australian government to regulate its own launch licensing regime. The ASA has made clear that its approval process will continue to apply and, if US tech is involved, an applicant needs to ensure early engagement with the ASA.
- Opening the doors - In practice, once the TSA enters into force, the parties involved in launch activities involving US space technology will need to ensure that the proposed Australian launch facilities are designed and built to accommodate the requirements for Controlled Areas and Segregated Areas, and that they agree on the nature and apportionment of the cost of security controls that will apply based on the US space technologies and activities involved. This will largely depend on what the US Government requires of the US participant, including what the US technology transfer control plan requires for the relevant US space technology.
- Examining the role of US collaboration in the new AUKUS normal - For some, the TSA represents a positive step forward in fostering innovation in the sector in Australia. For others, it cements a pivot into a new AUKUS normal with a greater focus on US collaboration. No matter how you cut it, the TSA, combined with a range of other Australian Government initiatives which we will cover in subsequent articles, makes Australia a more appealing location for investment in technology businesses in the defence and space sectors.
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