1. Introduction
   1. This report contains the Joint Standing Committee on Treaties’ (JSCOT) review of 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 or the Agreement).
   2. The Committee’s resolution of appointment empowers it to inquire into any treaty to which Australia has become a signatory, upon the treaty being tabled in the Parliament or as referred by a Minister.
   3. The treaties, and matters arising from them, are evaluated to ensure ratification is in the national interest, and that unintended or negative effects on Australia do not arise.
   4. Prior to tabling, major treaty actions are subject to a National Interest Analysis (NIA), prepared by the Australian Government. The NIA considers the treaty, outlines the treaty obligations and any regulatory or financial implications, and reports the results of consultations undertaken with state and territory governments, federal, state and territory agencies, and with industry or non-government organisations.
   5. The Committee takes account of the NIA in its examination of the treaty text, in addition to other evidence taken during the Inquiry.
   6. A copy of the treaty considered in this report and the associated documents can be accessed through the Committee’s website at:

/www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/AU-USSpaceLaunches

Conduct of the Committee’s review

1.7The treaty was referred to the Committee on 27 February 2024 and published on the Committee website on 27 February 2024. Submissions were requested by 19 March 2024. Ten submissions were received for this inquiry, as well as two responses to Questions on Notice.

1.8The Committee held one public hearing in Canberra on 13 May 2024. The transcript of evidence from the public hearings can be accessed through the Committee’s website.

1.9 A list of submissions received is at Appendix A and a list of witnesses who appeared at the public hearing is at Appendix B.

Overview

1.10The proposed major treaty action is the Agreement between the Government of Australia and the Government of the United States of America on the Technology Safeguards Associated with United States Participation in Space Launches from Australia (TSA or the Agreement). This Category 1 major treaty action was signed in Washington DC, USA on 26 October 2023.

1.11The Agreement establishes a legal and technical framework that enables and governs the activities of US companies, government organisations and universities to undertake commercial space launch activities in Australia.[1] The Agreement also protects US space technology in Australia including rockets and satellites,[2] including ensuring that the technology remains under US control while in Australia.[3]

1.12While the purpose of the TSA is to enable commercial civil space activities, the NIA notes that many space launch technologies are considered ‘dual use’ and can also be used for military purposes.[4]

Background

Key bodies

1.13The Australian Space Agency (ASA or the Agency) regulates Australian space and high-power rocket activities as well as overseeing international arrangements affecting space regulation.[5] Australia is a founding member of the Committee on the Peaceful Uses of Outer Space, as well as being party to other United Nations (UN) space treaties.[6] The ASA notes that ‘Australia is committed to ensuring a safe, stable and sustainable outer space environment by building a culture of safety and sustainability within the Australian space sector.’[7]

1.14The United Nations Office for Outer Space Affairs (UNOOSA) ‘works to promote international cooperation in the peaceful use and exploration of space, and in the utilisation of space science and technology for sustainable economic and social development.’[8] UNOOSA works with UN Member States to establish legal and regulatory frameworks to govern space activities.[9] The organisation also assists in strengthening the capacity of developing countries so that they can use space science technology.[10] UNOOSA further works on integrating space capabilities into national development programs.[11]

Domestic legislation

1.15With respect to the conduct of space activities, the relevant domestic legislation includes the Space (Launches and Returns) Act 2018 (the Act) which sets out a regime for the regulation of civil space-related activities that are carried out from or to Australia or by Australians who are overseas.[12] This act implements certain obligations Australia has agreed to under UN space treaties.[13] Further, three legislative instruments set out rules under the Act:

• Space (Launches and Returns) (General) Rules 2019 – outlines application requirements and additional criteria for approvals under the Act (aside from Australian high-power rocket permits;
• Space (Launches and Returns) (High Power Rocket) Rules 2019 – outlines application requirements and additional criteria for permit approval of Australian high-power rockets;
• Space (Launches and Returns) (Insurance) Rules 2019 – outlines insurance and financial requirements related to certain approvals under the Act.[14]

International agreements

1.16Australia has ratified all five space treaties:

• Convention on International Liability for Damage Caused by Space Objects[15]
• Convention on Registration of Objects Launched into Outer Space[16]
• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies[17]
• Agreement Governing the Activities of States on the Moon and other Celestial Bodies[18]
• Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space.[19]

Australia-US Relationship

1.17Australia has a longstanding bilateral relationship with the US which has been formalised through major treaties including the Australia-US Free Trade Agreement (AUSFTA), signed in 2004 and the Australia, New Zealand and United States Security Treaty (ANZUS Treaty), signed in 1951.[20]

1.18Australia and the US began their relationship in 1918 during World War I and the Battle of Hammel.[21] Diplomatic relations were established between the two countries on 8 January 1940 and the first Ambassadors from Australia and the US to the US and Australia respectively presented their credentials in 1946.[22] Since then, Australia and the US have developed a relationship and links in the areas of defence and security, business, trade and investment, culture, sport, education, research, and tourism.[23]

Justifications

1.19Key justifications for Australia ratifying the TSA include:

• The rapid growth of the global space sector is expected to rise from US$ 464 billion in 2022 to US$1.1 trillion by 2040 which is largely the result of the commercialisation of the global space launch sector and the associated reduction in the cost to launch payloads into space.[24]
• The US dominates the global space market and has the largest and most advanced commercial space launch sector in the world.[25] The US was responsible for almost 50 per cent of all space launches in 2022 and almost 60 per cent of satellite launches.[26] The demand for satellites globally is expected to triple by 2032 compared to that of the previous decade to more than 20,000 satellites.[27]
• Currently most Australian satellites are exported from Australia to the US for launching by US companies.[28] US companies, government and universities will also be able to launch and return US satellites and spacecraft from Australia.[29]
• Australia has a unique geographical and strategic advantage to capitalise on the space launch sector.[30]
• The Agreement will provide a range of benefits to the space sector in Australia which will create opportunities for Australian companies.[31] There will be an increased investment in launch infrastructure which will reduce the costs to access space from Australia.[32]
• The Agreement will expand the market that is available to Australian companies.[33]
• The Agreement will also create new jobs for high-skilled technical positions and supply chains for US space launches in Australia.[34]
• The Agreement will benefit the relationship between Australia and the US particularly with respect to shared values and objectives in economic, strategic, diplomatic, and technical domains.[35]
• The Australian economy will benefit from increased US investment and activity in Australia.[36] Regional areas will particularly benefit as this is where space launches normally occur in Australia.[37]
• The joint commitment of the US and Australia to the non-proliferation of systems capable of delivering weapons of mass destruction is noted in the Agreement.[38]
• The Agreement does not restrict Australia from developing space launch vehicles.[39]
• Australia and the US have a longstanding partnership of more than 60 years on space collaboration which will strengthen through the Agreement and cooperation in commercial activities as well as scientific activities.[40]
• Australia will develop itself into a trusted and safe destination for the return of spacecraft from space.[41]

Obligations

1.20The following is a summary of key obligations in the TSA treaty.[42] The TSA is a legal and technical framework for the protection of US Launch Vehicles, US Spacecraft, US Related Equipment and US Technical Data.[43] The purpose of the TSA is to protect US technology launched from Australia.[44]

Scope

1.21The TSA precludes unauthorised access to or transfer of advanced technologies subject to US export controls and associated with US participation in the launching of US technology in Australia.[45] This technology includes US Launch Vehicles (e.g. rockets) and US Spacecraft (e.g. satellites).[46]

1.22The launch of the US technology is to occur within Australia (Article I).[47] A non-US spacecraft such as a foreign spacecraft or Australian spacecraft launched on a US Launch Vehicle falls under the scope of the TSA (Articles I and II(7)).[48]

1.23The definition of space Launch Activities comprises all actions associated with the launch of US technology from and returning to Australia (Article II(7)).[49] Non-US launch vehicles include Australian and other Missile Technology Control Regime (MTCR) Partner Launch vehicles (Article II(8)).[50] There are no barriers in the TSA to US Spacecraft being launched on non-US Launch vehicles including Australian launch vehicles.[51]

1.24While there is a positive intention for Australia to approve the relevant licences and permits required for space Launch Activities in Australia, the TSA does not obligate Australia to do so (Articles III(6) and III(8)).[52]

1.25The TSA does not restrict Australian authorities from carrying out their statutory powers, duties and functions (Article III(1)).[53]

Protection of US technology

1.26For any space launch activity in Australia involving US technology the protections including access and control mechanisms and procedures will be set out in any relevant US licence or authorisation on a case-by-case basis.[54]

1.27There are processes for protecting US technology including establishing restricted areas in Australian facilities (Article IV).[55]

1.28Australia must take measures to prevent unescorted or unmonitored access by unauthorised persons to US technology, including access to restricted areas where US technology will be hosted (Article IV(2)).[56]

1.29Both parties must take necessary measures to ensure that US Participants retain control of US technology and that all persons under their jurisdictions adhere to the TSA.[57] Australia must ensure that Australian Participants adhere to the Technology Transfer Control Plan and the Australian Technology Security Plan (Articles IV(3) and IV(4)).[58]

1.30Australia must facilitate the expeditious return of US technology to the US if the TSA, the Technology Transfer Control Plan or the Technology Security Plan have been breached (Articles IV(5) and IV(6)).[59]

Disclosure of information

1.31The US is not permitted to provide Australia with assistance relating to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, processing or use of US space technology unless authorised by the US (Article V(1)).[60]

1.32Both parties are obligated to ensure that their respective licensees are provided with the necessary information from the relevant US licences and authorisations and that both governments have access to this information (Article V(4)).[61]

1.33Both parties must handle and safeguard classified information under the TSA (Article V(5)).[62]

Ensuring US access to US technology

1.34US technology is to remain under US control while in Australia unless otherwise authorised (Article VI).[63] Australia is also to permit and facilitate oversight and monitoring of space Launch Activities by the US (Article VI(1)).[64]

1.35Australia is to give the US 24 hour access and control to US technology throughout all phases of the space Launch Activity (Articles VI(2), VIA (3) and VI(4)).[65] If there is to be any impact to access and control requirements of the US, Australia must give timely notice to the US (Article VI(5)).[66]

1.36Australia must require all representatives to display visible identification while performing dues in the area where US technology is hosted and in other areas of the Australian launch site (Article VI(6) and VI(8)).[67]

Transport, preparation and post-launch procedures

1.37There are provisions relating to processing procedures for the handling of US technology to and from Australia such as to not open certain labelled and sealed containers except to fulfil statutory powers, duties and functions and appropriate border checks including biosecurity inspections (Article VIII(1)).[68]

1.38There are rules relating to procedures for the preparation of US technology at Australian launch facilities including that Australian representatives do not access restricted areas while US technology is being assembled, installed, tested, prepared, and integrated (Article VII(2)(a)).[69]

1.39That post launch only US representatives dismantle the US technology (Article VII(3)).[70]

Launch delay, cancellation, anomaly or failure

1.40If there is a launch delay or cancellation, Australia must permit the US to monitor US technology, to be present if US Spacecraft are exposed or removed from launch vehicles and to monitor and accompany US Launch Vehicles and US Spacecraft (Articles VIII(1) and VIII (2)).[71]

1.41Australia is obligated to permit US representatives to assist in the search and recovery of US technology or debris in Australia. Australia must provide a debris recovery site and provide the US with access to this site. Australia must return US technology and debris items without their being photographed unless there has been mutual agreement to do so (Article VIII(3)).[72]

Working with international partners

1.42Australia cannot launch Foreign Spacecraft that are owned or controlled by countries that are subject to United Nations Security Council sanctions or countries that have repeatedly provided support for acts of international terrorism (Article III(3)(a)).[73]

1.43Australia is restricted from permitting significant quantitative or qualitative inputs of equipment, technology, manpower, or funds into essential and integral parts of launch vehicles or launch facilities of the Australian Licensees from countries that are not Partners (members) of the MTCR (Article III(3)(b)).[74]

1.44Australia must enter into less-than-treaty status politically binding arrangements with other governments that have jurisdiction and/or control over entities involved in Space Launch Activities and non-US Launch Vehicles (Article III(3)(e)).[75]

Other obligations

1.45Australia may not use funds that it has obtained from space Launch Activities for the acquisition, development, production, testing, deployment, or use of MTCR Category 1 systems (primarily launch vehicles). Funds may however be used for the development and improvement of the Australian Space Program (Article III(2)).[76]

1.46Australia must ensure that no nationals of Australia or other nationals operating on behalf of Australia take unauthorised possession of equipment or technology imported to support space Launch Activities (Article III(3)(c)).[77]

1.47Australia must ensure that projects related to Space Launch Activities or items imported for these projects are not used for other purposes unless mutually agreed by the parties (Article III(3)(d)).[78]

1.48Parties must appoint an entity for each Space Launch Activity to oversee the exchange of US Technical Data between Australian and non-Australian Participants (Article III(4)).[79]

1.49Australia must not permit the transfer of US technology without written approval from the US (Article V(2)).[80]

1.50Australia must ensure US technology is only used for the purposes licenced and authorised by the US (Article V(3)).[81]

Implementation

1.51The Space (Launches and Returns) Act 2018 is the primary piece of legislation that will give effect to obligations under the TSA, through the regulation of space launch activities.[82] This Act contains existing provisions that recognise obligations under international agreements that relate to safeguarding technology such as the TSA.[83] Further domestic laws that will be used to implement the Agreement include the Defence Trade Controls Act 2018, National Security Information (Criminal and Civil Proceedings) Act 2004, Crimes Act 1914, Biosecurity Act 2015, Customs Act 1901 and relevant state and territory laws.[84]

1.52Domestic implementation of the TSA will not require amendment to any Australian laws or regulations.[85]

Costs

1.53The Agreement does not contain any provisions concerning costs.[86] There will however be additional administrative costs to the Australian Government because of the implementation of the TSA, although these are not expected to be significant.[87] These costs will be incurred by the Department of Industry, Science and Resources (DISR or the Department). State and territory governments will also be responsible for additional administrative costs.[88] There will also be costs to industry in both Australia and the US from conducting space launch activities under the TSA.[89]

Withdrawal or denunciation

1.54The Agreement can be terminated by either party if they give the other party written notification of their intention to terminate. The termination will take effect one year after written notification.[90]

Consultation

1.55Consultation with respect to this treaty was conducted with relevant Australian Government departments and agencies as listed in the NIA.[91] State and territory governments were also consulted on the development of the TSA.[92] State and territory legislation will not need to be changed to implement the TSA.[93] Consultation also included industry and targeted space sector participants.[94]

Footnotes

[1]National Interest Analysis [2024] ATNIA 3 with attachment on consultation - 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 (Washington D.C., 26 October 2023) [2024] ATNIF 6 (NIA), para 2.

[2]NIA, para 3.

[3]NIA, para 6.

[4]NIA, para 6.

[5]Australian Space Agency, ‘Australia’s space regulations’, www.space.gov.au/Australia’s-space-regulations, accessed 7 June 2024.

[6]Australian Space Agency (ASA), ‘Australia’s Space Regulations’, www.space.gov.au/Australia’s-space-regulations, accessed 7 June 2024.

[7]ASA, ‘Australia’s Space Regulations’.

[8]United Nations Office for Outer Space Affairs (UNOOSA), ‘About Us’, www.unoosa.org/oosa/en/aboutus/index.html, accessed 7 June 2024.

[9]UNOOSA, ‘About Us’.

[10]UNOOSA, ‘About Us’.

[11]UNOOSA, ‘About Us’.

[12]ASA, ‘Australia’s Space Regulations’.

[13]ASA, ‘Australia’s Space Regulations’.

[14]ASA, ‘Australia’s Space Regulations’.

[15]UNOOSA, ‘Convention on International Liability for Damage Caused by Space Objects’, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html, accessed 7 June 2024.

[16]UNOOSA, ‘Convention on Registration of Objects Launched into Outer Space’, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html, accessed 7 June 2024.

[17]UNOOSA, ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html, accessed 7 June 2024.

[18]UNOOSA, ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html, accessed 7 June 2024.

[19]UNOOSA, ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’, www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html, accessed 7 June 2024; ASA, ‘Australia’s Space Regulations’.

[20]Australian Embassy and Consulates, ‘Australia and the United States’, usa.embassy.gov.au/australia-and-united-states, accessed 7 June 2024.

[21]Australian Embassy and Consulates, ‘Australia and the United States’.

[22]Australian Embassy and Consulates, ‘Australia and the United States’.

[23]Australian Embassy and Consulates, ‘Australia and the United States’.

[24]NIA, para 9.

[25]NIA, para 10.

[26]NIA, para 10.

[27]NIA, para 10.

[28]NIA, para 11.

[29]NIA, para 11.

[30]NIA, para 12.

[31]NIA, para 13.

[32]NIA, para 13.

[33]NIA, para 14.

[34]NIA, para 14.

[35]NIA, para 16.

[36]NIA, para 15.

[37]NIA, para 15.

[38]NIA, para 17.

[39]NIA, para 17.

[40]NIA, para 18.

[41]NIA, para 18.

[42]Joint Standing Committee on Treaties, ‘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’, www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/AU-USSpaceLaunches, accessed 19 April 2024.

[43]NIA, para 20.

[44]NIA, para 19.

[45]NIA, para 23.

[46]NIA, para 23.

[47]NIA, para 23.

[48]NIA, para 24.

[49]NIA, para 25.

[50]NIA, para 25.

[51]NIA, para 25.

[52]NIA, para 26.

[53]NIA, para 27.

[54]NIA, para 28.

[55]NIA, para 30.

[56]NIA, para 31.

[57]NIA, para 32.

[58]NIA, para 32.

[59]NIA, para 33.

[60]NIA, para 34.

[61]NIA, para 35.

[62]NIA, para 36.

[63]NIA, para 37.

[64]NIA, para 38.

[65]NIA, para 39.

[66]NIA, para 40.

[67]NIA, para 41.

[68]NIA, para 42.

[69]NIA, para 43.

[70]NIA, para 44.

[71]NIA, para 45.

[72]NIA, para 46.

[73]NIA, para 47.

[74]NIA, para 48.

[75]NIA, para 49.

[76]NIA, para 50.

[77]NIA, para 52.

[78]NIA, para 52.

[79]NIA, para 53.

[80]NIA, para 54.

[81]NIA, para 55.

[82]NIA, para 57.

[83]NIA, para 57.

[84]NIA, para 57.

[85]NIA, para 58.

[86]NIA, para 61.

[87]NIA, para 62.

[88]NIA, para 62.

[89]NIA, para 63.

[90]NIA, para 66.

[91]NIA, Attachment on Consultation: ‘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’ (Attachment on Consultation) para 1.

[92]NIA, Attachment on Consultation, para 2.

[93]NIA, Attachment on Consultation, para 2.

[94]NIA, Attachment on Consultation, para 3.