Why use legal services for space activities?
There are several good reasons to use legal services in respect of space activities
- To foresee and manage legal risks before they arise, such as exposure to liability arising from space activities.
- To get assistance with the drafting of documents that may have significant legal consequences, such as a launch services agreement, or a contract to provide or procure satellite or rocket components.
- To assist you in proactively complying with regulatory requirements to forge a positive and constructive relationship with regulators, such as the Australian Communication and Media Authority, and avoid any penalties.
- To understand, and plan for, the requirements that you must meet in undertaking your space activities – for example, by identifying the information, documentary evidence and payment that you will likely need to provide to the Australian Space Agency to obtain an Australian Launch Permit.
- To advocate for legal reform to achieve a more optimal legal framework that provides you with the best chance of success in the global market – for example, but reduction of duplicative processes within multiple government agencies, such as the Australian Space Agency and Defence Export Controls.
- To defend a claim, penalty or decision against you, such as the suspension of a Launch Facility Licence.
- To challenge a decision made by a regulatory body, for example, not to grant a licence for use of spectrum.
Whatever the case, seeking legal advice early could save you many thousands of dollars, and help to ensure the success of your enterprise.
A Lawyer’s Duties to You, the Client
When you engage a lawyer, a relationship of trust is formed – the lawyer is ethically bound to act in your best interests, subject to a higher duty to the court and the administration of justice. The lawyer must:
- act in your best interests
- be honest and courteous in all dealings in the course of legal practice
- deliver legal services competently, diligently and as promptly as is reasonably possible
- avoid any compromise to their integrity and professional independence
- provide you with clear and timely advice
- follow your lawful, proper and competent instructions
- avoid any conflict of interests
- disclose the fees that you will be charged upfront and disclose any updates or changes regarding costs
- honour any undertakings given in the ordinary course of legal practice.
Significant penalties may be imposed on a lawyer, under professional conduct rules, in the event of a complaint by you and/or another client.
Is a lawyer cost effective?
Fees charged by different lawyers will vary due to expertise, experience, urgency and location.
A more specialised lawyer (for example, a lawyer with expertise in space activities specifically) will generally be more expensive than a lawyer without such expertise, but such a lawyer will be able to provide the legal service with greater competence and more efficiency due to her or his familiarity with the subject matter, so that the specialist lawyer is cheaper overall.
Different ways lawyers may charge their fees
There is flexibility in the way in which a lawyer may charge a client. An hourly rate is not the only means of charging.
Hourly rates for a mid-range lawyer without specialist expertise in space activities would generally be around $350 an hour, although much of the work may be done by more junior staff at lower rates.
You may also agree on a fixed fee, an hourly rate with a ceiling, a periodic retainer for a fixed number of hours per period (for example, per month), payment of fees on the occurrence of some contingency (such as you winning a contract) or some other method of charging to suit the circumstances.
What other fees might be included
In addition to their fees, a lawyer will charge you for expenses incurred on your behalf. For example, the payment of a spectrum licence fee to the Australian Communication and Media Authority (ACMA). These are known as ‘disbursements’ and a lawyer will usually seek money from you in advance for disbursements, which the lawyer will then hold in a trust account until the money is spent in accordance with your directions. The lawyer should provide you with details of how this money is spent on your behalf.
A lawyer cannot charge you for preparing your bill.
Is the cost-benefit of a lawyer worth it?
Although lawyers’ fees can be high, they often represent value for money where the legal services help you to avoid liabilities, penalties and mistakes, or achieve outcomes, that are many times greater than the fees you will pay.
Finding the right lawyer
A person must have the appropriate qualification and certification to provide legal advice generally, but it may be wise to find a lawyer with expertise and experience in the space industry specifically.
Qualification and Certification
Only a person with a current Legal Practising Certificate may provide legal advice. A Practising Certificate will mean that the person:
- has satisfied both academic and practical legal training requirements
- has been admitted to the profession by the Supreme Court in an Australian state or territory
- has committed to maintain her or his skills and knowledge at the requisite level
- is bound to comply with a range of laws that govern professional standards in the legal profession.
The law society websites in most States and territories provide a web-based means to ‘Find a Lawyer’ (see the Law Society of South Australia, for example).
Expertise in space activities in Australia
Although space law is a very specialised and niche area, there are some lawyers in Australia who practise specifically in this area. In addition to undertaking his PhD research at Adelaide Law School, Duncan Blake has been practising space law for many years as a RAAF permanent legal officer, and as a Reserve legal officer, and in a commercial context, he is also Special Counsel – Space Law with International Aerospace Law and Policy Group. It was in his commercial capacity that he founded and managed the ANGELS Project. He has worked with, and is working with, Adelaide Law School in other space law related projects. He helped Adelaide Law School to establish its Strategic Space Law course and he initiated, and is the Managing Editor for the Woomera Manual project, a global, multi-year project, led by the University of Adelaide with three other universities, to clarify the application of the Laws of Armed Conflict to space activities.
What to do next
1. Identify your need for legal services
Although a lawyer will help you to clearly and precisely identify the legal services you need, it is best to start with a good idea of the legal services you seek. That may be to mitigate the risk of liability, help to obtain a licence or permit, identify the legal requirements applicable to your activity, defend a claim, penalty or decision against you, or help you do demonstrate your capacity to meet the legal requirements of a contract that you are pursuing.
2. Find an appropriate lawyer
There is a Law Society in each State and territory that can help you find a lawyer for your needs. For legal services related to space activities, consider a lawyer who specialises in space law. One such lawyer is Duncan Blake, the founder and project manager for the ANGELS project. In a commercial capacity, he is Special Counsel – Space Law at International Aerospace Law and Policy Group.
3. Make the most effective use of your lawyer
- Give full and clear instructions
- Be candid about all aspects of your matter
- Come prepared with a summary and all relevant documentation
- Follow instructions
- Understand the fees and costs, noting that your lawyer has a duty to disclose her or his fees
- Ask questions, noting that the law is complex – don’t hesitate to seek clarification to avoid later misunderstandings
- Keep in contact
- Let you lawyer know if circumstances of the matter or your personal circumstances change.