Scott Morrison’s vocal opposition to the contentious offshore gas drilling project resulted in the Federal Court ruling that his later decision to officially block it was tainted by apprehended bias. Prime Minister Anthony Albanese’s vocal opposition has led to allegations that any decision under his government will be similarly tainted. On Tuesday, the Federal Court overturned Morrison’s December 2021 decision to reject an extension of the PEP-11 project permit and sent it back to the joint federal-NSW authority, which had been requested by the two governments and permit holder Asset Energy.
Albanese has criticized his predecessor’s decision, made after Morrison secretly appointed himself the resources minister, as legally untenable and a product of a dishonest and incompetent administration. Asset Energy launched a legal challenge to the PEP-11 decision last year, claiming that Morrison breached the requirements of procedural fairness and that he was not validly appointed as the responsible minister of the joint authority. Justice Darren Jackson did not make a finding as to whether Morrison had secretly appointed himself as a resources minister for the purpose of deciding the application, but he was satisfied that comments by Morrison provided a proper basis to conclude that the decision was affected by apprehended bias.
Petroleum Exploration Permit 11 (PEP-11) is a petroleum well off the New South Wales (NSW) coast between Wollongong and Newcastle, covering about 8200 square kilometres. Morrison had publicly expressed his opposition to the project in 2021, before and after his appointment as the second resources minister on April 15. On April 21, he stated at a press conference: “(The PEP-11 permit) will go through processes, but I’ve made it absolutely crystal clear that’s not something I support, and you can expect my view on that to be rock solid.”
Justice Jackson said that Morrison’s public comments “might lead a fair-minded observer to reasonably apprehend” that his “mind might have been closed to persuasion” when he deliberated on the matter in December 2021. The same could be said about any deliberation after Asset Energy was given 30 days to respond to the government’s intention to refuse its application, given Morrison held a press conference the day of his decision and said the project “would not proceed”.
Independent MP Zali Steggall has introduced a bill to end the project “once and for all” as questions of bias would remain given comments by Mr Albanese and others. She has been supported by Nationals MP Keith Pitt, the resources minister whose authority Mr Morrison seized. Resources Minister Madeline King is the sole federal minister charged with deciding on PEP-11. The NSW government has opposed the extension of PEP-11 in 2022 and reaffirmed its opposition this month.