Coming Back to Earth: What Can Space Law Teach Us About the Regulation of New Technologies?

Emerging technological industries such as AI, self-driving cars, and space technology present unique challenges for administrative law. Parliament and regulatory agencies must balance the need to maintain minimum standards with the requirement for regulations to be flexible enough to encourage innovation. Similarly, in reviewing administrative decisions around the regulation and licencing of these technologies, tribunals and courts must grapple with a regulatory system that often requires specialist technical knowledge to understand.

This problem has led to a global trend, particularly in western common law systems, for laws to employ ‘performance-based’ standards: standards that describe an end state but do not specify the precise means of achieving that end state. The use of these standards is intended to allow a regulated population to develop their own means of compliance, thereby limiting the risk of regulation hampering the development of new technologies. However, the use of performance-based standards can also lead to uncertainty and inconsistent or arbitrary decision-making, which increases the risk of challenges to administrative decisions.

This paper will examine the administrative law consequences of performance-based standards by using the case study of Australia’s fledgling industry for space launches and returns. This industry is regulated pursuant to the Space (Launches and Returns) Act 2018 (Cth) (SLAR Act). The system of authorisation for space launch activities under the SLAR Act uses performance-based standards to inform regulatory decisions. This paper will critically examine the regulatory and administrative law consequences of this system, and the learnings that can be derived for other high technology or innovative industry sectors that require authorisations prior to activities being undertaken.