- Scientific Balloon Treaty
Exchange of Notes to extend the Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America to Amend and Extend the Agreement concerning the Conduct of Scientific Balloon Flights for Civil Research Purposes of 16 February 2006
4.1The Exchange of Notes to extend the Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America to Amend and Extend the Agreement concerning the Conduct of Scientific Balloon Flights for Civil Research Purposes of 16 February 2006 was referred to the Committee on 6 June 2024.
4.2The Committee received two submissions. The Committee held a public hearing in Canberra on 18 July 2024. A list of submissions can be found at Appendix A. The hearings and witnesses are listed at Appendix B. The transcript of evidence from the public hearing can be accessed through the Committee’s website.
Overview
4.3The Joint Standing Committee on Treaties was referred the following major treaty action (Category 2): Exchange of Notes to extend the Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America to Amend and Extend the Agreement concerning the Conduct of Scientific Balloon Flights for Civil Research Purposes of 16 February 2006 (Agreement).
4.4The original Agreement was established on 16 February 2006, with retrospective effect from 2002, and was extended for 10 years by an exchange of notes on 26 August 2011 and 24 April 2012. Due to the mutual benefits of the Agreement, the parties have agreed to again extend the Agreement for 10 years through an exchange of notes with retrospective effect from 12 June 2022, extending the Agreement until 12 June 2032.
Background
4.5The Australian and United States (US) governments began cooperating on space-related activities with the establishment of scientific facilities at Woomera in South Australia to track US satellites in 1957. This cooperation was broadened in 1960 with the establishment of additional satellite-tracking facilities in Woomera that were built by the US National Aeronautics and Space Administration (NASA). This relationship has since been maintained through continual agreements and exchanges of notes, with NASA spending over $1 billion on space-related activities in Australia.
4.6The extension of the Agreement allows NASA to use the existing facilities for ‘scientific balloon launchings and recoveries in Australian territory, tracking and telemetering of information from each balloon, and the recording and sharing of information from these flights’. The extension will continue the long-standing relationship between Australia and the US – a relationship that has ‘proven politically, scientifically and economically advantageous’.
Justifications
4.7Australia and the US first entered an agreement regarding the conduct of scientific ballooning activities in Australia in 1984 and reached an agreement regarding the launching of long duration balloon flights beyond Australia in 1985. These two agreements were merged and renewed for 10 years in 1992, expired in 2002, and in 2006, an updated treaty was concluded with retrospective effect to 2002. This Agreement was extended in 2012, until 12 June 2022, and is the subject of the proposed major treaty action.
4.8Ballooning campaigns have been conducted in Alice Springs by NASA under the Agreement, with Australian scientists also collaborating with NASA and conducting their own experiments. 11 scientific teams from the US, Japan and France have utilised the facilities and have contributed to the launch of 13 scientific experimental payloads. These experiments have studied matters related to black holes, quasars, and atmospheric and environmental science. The extension of the Agreement ensures that Australian scientists continue to benefit from such research and that Australia remains entitled to receive data from future ballooning experiments.
4.9These balloon campaigns can involve up to 40 people living in Alice Springs for the duration of the campaign, with campaigns being supported by a NASA launch team, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), and the University of New South Wales (UNSW), Canberra. CSIRO estimates that the economic benefit of each campaign is more than $5 million to the economy.
4.10Continuing cooperation under the Agreement would not only bring significant scientific and economic advantages but would also demonstrate Australia's political commitment to ongoing collaboration with the US in the fields of space and scientific research.
Obligations
4.11The exchange of notes between Australia and the US extends the Agreement until 12 June 2032, pursuant to Article 18(a) of the Agreement.
4.12Article 1 of the Agreement outlines that NASA and CSIRO must determine and set out the arrangement between the two parties for the following matters:
- allocating responsibility for operations of balloon launchings and recoveries in Australia;
- financial arrangements for a balloon campaign from commencement to conclusion;
- provision of facilities and services for balloon launchings and recoveries;
- tracking and telemetering information from balloons;
- recording and sharing of information from each balloon; and
- publication of information concerning the programs.
- Article 2 provides that support activities with other countries must be coordinated by the US Government and must comply with Article 8 of the Convention on International Civil Aviation (Chicago Convention). Article 8 requires that pilotless aircraft flown over a Chicago Convention state must have authorisation by that state and the state conducting the activity must ensure that the flight shall be so controlled as to prevent danger to civil aircraft.
- Article 3 enables CSIRO to permit balloon flights as long as they have received NASA’s advice that the steps required by Article 8 of the Chicago Convention have been taken. Article 4 specifies that the US Government is responsible for the recovery of any balloon and its payload that has had its flight prematurely ended in a third country and that its recovery is subject to the third country’s laws and regulations.
- Article 5 states that neither party can make ‘claims against the other party, its employees, contractors or subcontractors arising from any activities performed under the Agreement’. Such claims relate to the injury or death of a party’s employees, contractors or subcontractors, or to damage or loss of either party’s property (whether from negligence or otherwise), except in the case of wilful misconduct. Article 5 does not limit the application of criminal laws of either party.
- Article 6 stipulates that the US Government is responsible for meritorious claims (including judgments awarded by courts of competent jurisdiction) brought against the Australian Government by third parties for personal injury (including death), property damage or property loss caused by NASA employees or contractors in Australia that resulted from activities carried out on behalf of the US Government under the Agreement. Payments made pursuant to Article 6 are subject to the appropriation of funds for this purpose by the US Congress.
- Article 7 further states that if a claim is made against the Australian Government pursuant to Article 6, the US Government must be notified by the Australian government within one month of receiving the claim and that the US Government is permitted to assist in the defence of any claim by providing information and advice.
- Article 8 provides that when conducting balloon operations in Australia, NASA must make its best efforts to assist Australian scientists in conducting balloon-based experiments as long as there is a written arrangement that covers ‘operations, payment of fees and liability between NASA and the Australian sponsoring institution or organisation’.
- Article 9 obliges both governments to transfer the technical data, software and goods necessary to undertake each party’s obligations under the Agreement, with the following provisions:
- Activities must be carried out in accordance with each government’s laws and regulations, including those pertaining to export control and the control of classified information;
- Technical data transferred for the purpose of discharging the parties’ responsibilities with regard to interfacing, integration and safety must unrestricted, except as provided above;
- Transfers of proprietary or export-controlled goods and technical data are subject to additional conditions, including identification requirements, and must protect any such goods or data from unauthorised use or disclosure. The parties must ensure their contractors, subcontractors, grantees or cooperating entities comply with these conditions; and
- Proprietary or export-controlled goods and technical data exchanged in the performance of the Agreement must be used exclusively for the purposes of the Agreement. The receiving party or related entity must return or destroy the goods or data at the request of the providing party or related entity.
- Article 10 stipulates that the US Government retains title to any equipment, materials, supplies and movable property that has been provided by or acquired in Australia for the purposes of activities under the Agreement. While the US is entitled to remove any property upon termination of the Agreement or if reasonable notice is given to the Australian Government, it must not dispose of the property within Australia except in accordance with the Exchange of Notes constituting an Agreement concerning the Disposal of United States Government Excess Property in Australia.
- Article 11 obliges the Australian Government to facilitate entry and exit of US Government or NASA personnel who do not normally reside in Australia, in connection with activities provided for in the Agreement. The personal and household effects of these personnel are permitted free entry, in accordance with Australian customs law, as stipulated by Article 12.
- Under Article 14, US nationals who are sent to but do not typically reside in Australia and who are US Government or NASA employees are exempt from income tax in accordance with the Convention between Australia and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, 1982, as amended by the 2001 Protocol and the domestic laws of Australia. Personnel that do not fit this criteria are subject to Australian taxation laws.
- Article 15 stipulates that the Australian Government must take the necessary steps to facilitate the admission of any equipment, materials, supplies and movable property connected to activities under the Agreement that has been provided by or on behalf of the US Government, and that duties, taxes or like charges not be levied on the property.
- Both parties must be consulted on any issues regarding the interpretation or implementation of the Agreement, with disputes to be referred to program managers of cooperating agencies or designated representatives of each party, as stipulated by Article 16.
- Article 17 states that to the ‘maximum extent practicable’, the US Government use Australian resources in activities under the Agreement. All activities are subject to the availability of appropriated funds, as specified by Article 13.
Implementation and costs
4.26No changes are required to existing legislation to implement the extension of the Agreement. No additional costs to Australia are anticipated as a consequence of the extension of the Agreement. NASA funds CSIRO to maintain facilities and is responsible for relevant remediation work.
Consultation
4.27When consulting Australian Government agencies and States and Territories during the negotiation of the proposed extension of the Agreement, CSIRO received no comments or requests for amendments.
Future
4.28Article 18(a) provides that the Agreement may again be extended by an exchange of notes. Article 18(b) allows either party to terminate the Agreement through written notice after consultations have occurred, with termination taking effect one year after the notice.
Issues
Sovereignty
4.29During the public hearing, the Committee raised the issue of sovereignty in relation to several aspects of the Agreement. One aspect queried was which party controlled the work health and safety processes and procedures for activities conducted under the Agreement.
4.30The CSIRO confirmed that Australia maintained control of every balloon launch conducted at the Alice Springs facilities. The UNSW detailed the procedures leading up to launches, including seeking approval from Airservices Australia and the Civil Aviation Safety Authority, and specified that UNSW controlled air traffic control communications and the launch and termination processes.
4.31The Committee raised the responsibility of funding for facility maintenance and remediation work. The CSIRO stated that NASA was responsible for funding CSIRO to maintain the facilities and that Australia would not make significant financial contributions outside of the costs associated with collaborative research opportunities with other nations using the facilities.
4.32Given that this maintenance funding is provided by the US Government, the Committee asked whether Australia would be able to invite non-US nations to use the facilities without seeking permission from the US. CSIRO explained that the current practice was for space agencies of other nations to contact the US Government directly, and typically form an agreement to conduct civil research under the same liabilities as the existing treaty. Once that agreement has been made, the space agency then contacts CSIRO to ‘work out a process to enable that campaign to occur’.
Broadening of Agreement
4.33In their submission to the inquiry, the Capricorn Space Agency suggested expanding the scope of the Agreement to include collaborative research examining subjects such as ‘weather mapping systems, soil and ocean degradation, flora and fauna alternations and various effects of climate change’. The Committee explored the potential for such collaborations in the public hearing, to which the CSIRO said that they did not align with NASA’s strategic goals as it would be ‘difficult [for NASA] to favour one commercial supplier over other commercial suppliers’.
4.34The Committee also raised non-commercial collaboration with other nations. The CSIRO stated that Australia does not currently undertake its own balloon flights and that Australian researchers instead respond to NASA callouts to offer additions to a payload, obtain data gathered by balloons, or collaborate with investigations after data has been collected.
4.35At the public hearing the Committee was surprised to hear that in the near 60-year length of the Agreement Australia had not developed its own capability to conduct balloon launches. The CSIRO noted that while balloon launches had been conducted by Australian universities and the current Agreement does not prevent that development from occurring, it had not occurred ‘as of late’.
Committee comment
4.36The treaty being considered extends a long-standing agreement between Australia and the US that is politically, scientifically and economically advantageous for both governments. The Committee recognises the mutual benefit that the Agreement has brought both parties and the potential value that could be realised by it being extended.
4.37The extension of the Agreement allows NASA to use existing facilities in Woomera for the launching, tracking, recording and recovery of scientific balloons in Australian territory. The Committee was pleased to hear that the Agreement allows Australian scientists contribute to and benefit from this research and the extension of Agreement ensures that Australia remains entitled to receive data from future ballooning experiments.
4.38The Committee notes that the extension of the Agreement does not impose any new obligations or costs upon Australia, nor does it require any legislative changes.
4.39The Committee notes that all submissions made to the inquiry were supportive of the Agreement being extended.
4.40At the public hearing for the inquiry, the Committee heard issues raised relating to Australia’s sovereignty as well as a future broadening of the Agreement. The Committee found that the Agreement did not impose upon Australia’s sovereignty and while there were no current plans to broaden its scope, the Agreement itself did not place any limitations on doing so.
4.41The Committee supports the Exchange of Notes to extend the Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America to Amend and Extend the Agreement concerning the Conduct of Scientific Balloon Flights for Civil Research Purposes of 16 February 2006 and recommends that binding treaty action be taken.
Ms Lisa Chesters MP
Chair
19 August 2024