What is remote sensing?
Remote sensing is the gathering of data about objects without directly being in contact with them.
Usually this is by use of a satellite in geostationary orbit or low-earth orbit, although aircraft may also be used. This article will deal mainly with the use of satellites.
Sensing may be either passive or active:
- Passive sensors gather information about radiation that is naturally emitted or reflected by the object and its surrounding areas.
- Active sensors use energy emission systems such as radar, sonar, and x-ray, in order to scan objects and areas. A sensor then detects and measures the radiation that is reflected from the object.
Remote sensing technology can also map electronic communications.
What are remote sensing data used for?
There are many applications for this technology, including:
- Urban planning
- Military reconnaissance and intelligence
- Monitoring and protection of the environment
- Ocean topography
- Disaster management
Important to know
If you attach your remote sensing technology to aircraft, you must abide by Australian and international civil aviation law.
The Civil Aviation Safety Authority (CASA) regulates airspace in Australia. The existing rules and regulations can be found here.
The international legal framework
How is the Outer Space Treaty applicable?
The Outer Space Treaty of 1967 (OST) forms basis of international space law, and its principles are applicable to all activities in outer space.
The OST is based on the principle of freedom of space activities, meaning that no State can be impeded from carrying out space activities or be requested to obtain prior authorisation to do so. Therefore, any State is entitled to launch satellites into space for the purpose of remote sensing and this choice cannot be lawfully impeded by other States. Australia has signed the OST and implemented its various principles within domestic law.
Article VI of the OST states that private or commercial entities must be authorised by their national State, which then must continually supervise their activities. As remote sensing from a satellite requires a launch, which is regulated nationally in Australia (and many other States), you must therefore seek permission to launch. Your remote sensing activities will therefore be supervised by extension, especially where a State imposes conditions on its permission to launch satellites of a certain nature (such as those involved in remote sensing).
The United Nations Remote Sensing Principles
The only international law instrument specifically addressing the sensing of Earth from space are the United Nations Remote Sensing Principles. The Principles lay down the rights and duties of the actors involved in remote sensing activities and establish the rules regarding access to and distribution of data at an international level.
Are the Principles relevant to an Australian entrepreneurs?
The UN Remote Sensing Principles were established under UN Resolution 41/65 of 1986 – a General Assembly resolution, reflecting non-binding political commitments of States, as opposed to binding legal commitments in a treaty. However, ‘soft law’ (as it is sometimes called) still has utility, as it holds the potential for becoming ‘hard law’ in the future – that is, law that is legally binding. This may occur by incorporation into a treaty, which is binding on its signatories, or by influencing customary international law, which is binding on every State.
It is common for States to abide by ‘soft law’, and by extension these Principles and Australia has at least made a political commitment to give effect to them. An understanding of the Principles is therefore beneficial for an Australian entrepreneur in the space technology field, especially entrepreneurs who deal with the State (the Australian government).
Limits of the Principles
The UN Remote Sensing Principles are relevant to only a limited number of applications for civil purposes only. Specifically: natural resource management, land use, and protection of the environment. It is clear that military applications are not included within the scope, and it is currently uncertain whether dual-use satellites are regulated.
The Remote Sensing Principles also do not impose responsibilities on either those States or entities that are not operating satellites but who are receiving images and/or engaged in data handling activities, or the third parties that use the data. The Principles also do not deal with the increasing commercialisation of the remote sensing industry.
Provisions of the Principles
The key provisions can be divided into 3 groups:
Refers to the fact that all States have the right of data collection from space. Relevant rules:
- A state does not need prior consent, notification, or consultation before sensing
- Sensed states have no veto right on the sensing of their territories
- Areas cannot be exempted from observation based on geographic considerations
- There are no conditions imposed for sensing capabilities in terms of spatial and temporal resolution
- If another country were to collect data from Australia, it would not need Australia’s consent to do, nor does it need to notify Australian officials
- Australia cannot cordon off areas of Australia which it does not want to be sensed by another State
The Principles state that remote sensing activities shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State. However, they fail to clarify what the principles of sovereignty and the legitimate rights of the sensed States are in practical terms, and also do not cover the issue of the participation of a sensed State in remote sensing activities together with the sensing State.
- No specific obligations imposed on the sensing State (such as liability for misuse of data)
- No specific rights attributed to the sensed State (such as control over access)
These sections lay down general provisions concerning remote sensing data access and dissemination, and states that “As soon as the primary data and the processed data concerning the territory under its jurisdiction are produced, the sensed State shall have access to them on a non-discriminatory basis and on reasonable cost terms.”
- No prior consent is needed before dissemination is required
- Sensed States are not given preferential access to data and information concerning their territories
- Sensed States are not given guaranteed a financial privilege, such as data the data about their territories being provided either free of charge or at a lower cost
- Data availability from sensing states is based only on good faith. There are no legal mechanisms to enforce them to release data
The Australian framework
Australia, like many other countries, does not have a legal framework which specifically addresses remote sensing technology. However, this does not mean that there are no mechanisms in place which regulate access to and distribution of data by Australian entrepreneurs.
How can the Australian government regulate remote sensing technology?
Although there is no specific legislation or regulations regarding remote sensing technology, there are other ways in which the Australian government might attempt to control access and dissemination of data, especially as it pertains to intelligence and security.
Use Case 1: Regulation of Data
ANGELS Aerospace is a successful remote sensing enterprise that now has foreign nationals as investors. In the process of mapping central Australia to gather topographical information for one of its clients, ANGELS Aerospace has incidentally collected data about the location and activities of a secret joint Australia-US intelligence facility.
- Because ANGELS Aerospace has a foreign national as an investor, it may then be referred to the Foreign Investment Review Board
- Although the Foreign Investment Review Board does not have legislative power, it can make recommendations to bodies which do have power, such as Defence Export Controls
- Defence Export Controls can make decisions about licences or grants that are the subject of applications by ANGELS Aerospace
Use Case 2: Regulation of Data
In this scenario, ANGELS Aerospace does not have a foreign national as an investor. After collecting the topographical data and the information about the intelligence base, ANGELS Aerospace had difficulty separating the data stack in order to provide their client with only the topographical data, damaging their relations with the government.
Later that year, ANGELS Aerospace wants to launch another satellite, but they were refused authorisation for the launch.
- The Minister for Industry, Science and Technology, as the Minister responsible for the Australian Space Agency, may take into account security, defence, and international relations when deciding to grant a permit, licence, or authorisation.
These examples are just some of the ways the Australian government might go about regulating remote sensing data.
important to know
The collection of data is valuable and the lack of regulation surrounding remote sensing technology should not be taken as carte blanche. Although it may seem to make working in this field easier, it creates substantial uncertainty, which means an entrepreneur cannot predict the actions of actors in the industry. The Australian government has significant discretion in decision-making.
Visit the Australian Space Agency website for more information on its functions and responsibilities:
Visit the Civil Aviation Safety Authority website for more information on aviation law:
Visit the Australian Communications and Media Authority website for more information on frequency assignments and spectrum licences:
Visit the Defence Export Controls website for more information on export licences:
Frequently asked questions
- The UN Remote Sensing Principles: only regulate civil uses of remote sensing technology
- No specific regulatory mechanisms
Although there are no specific regulatory mechanisms, there are other ways in which the Australian government might assert some control over access and dissemination of data, especially as it pertains to intelligence and security.
- Example 1: enterprises with a foreign investor may be referred to the Foreign Investment Review board, which can make recommendations to Defence Export Controls.
- Example 2: the Minister for Industry, Space and Technology may take into account security, defence, and international relations when deciding to grant a permit, licence, or authorisation.
Although it may seem easier on the basis that an entrepreneur in this field does not need to acquire the authorisations and licences like those in other stages of the lifecycle, the lack of regulation creates legal uncertainty, meaning the Australian government has vast discretion when making decisions.
What to do next
1. Contact the Australian Communication and Media Authority to discuss your potential need for a spectrum licence
Remote sensing technology utilises the electromagnetic spectrum, which is regulated internationally and in Australia. After application, it may take up to six months or longer to receive the licence, although the time varies from case to case. It would be beneficial to contact ACMA as soon as possible.
- Click here for an ACMA fact sheet detailing information about satellite services licences.
- Take a look at the articles on Spectrum Regulation and Satellite Communications for more information.
2. Arrange the launch of your satellite
Liaise with a launch provider. Australia has no commercially available space ports, so you will need to launch from a foreign country if you intend to launch into space.
- Take a look at the article on Launch for more information, and the articles on foreign licensing requirements, which can be found here.
3. Enquire about insurance for the launch of your satellite
Australian law requires insurance to be purchased by anyone intending to launch.
- Take a look at the article on Liability and Insurance for more information.
4. Contact Defence Export Controls to discuss your potential need for an export licence
Defence Export Controls regulates licensing of technology used overseas.
- Take a look at the article on Export Controls for more information.
- Click here to go to the government’s Defence Export Controls website.
5. Concerned about the legality of data you have collected?
Seek the advice of a lawyer who specialises in space law (see ‘Getting Legal Advice’).