Last year’s revelation that former Prime Minister Scott Morrison secretly appointed himself as an additional minister for health, finance, industry, science, energy and resources, Treasury, and Home Affairs during his time in the top job, has given a legal lifeline to the company behind the controversial PEP11 gas exploration licence – its Federal Court action will argue against the Morrison decision on the grounds of bias and denied procedural fairness.
By Harry Mulholland
Asset Energy, the company behind PEP11, that proposed to drill for gas off the coast of New South Wales, last year seized on the Morrison Ministry revelations in the hopes the Federal Court would overturn the Morrison ruling that blocked PEP11 from going ahead.
Former Prime Minister Scott Morrison officially rejected PEP11 on December 16, 2021, while visiting Terrigal, stating he had overridden the former Federal Minister for Resources and Water, Keith Pitt, noting the community opposition to the proposal.
The then Federal Member for Robertson, Lucy Wicks, who was a Morrison supporter, was receiving a great deal of community heat over PEP11 and Morrison, needing to hold Robertson in the May 2022 federal election, needed to kill it.
“The reason why we’re here today, and that is to announce, that after careful consideration, the government has taken, through my own decision, the first step to formally reject an application for the petroleum export permit, known as PEP11,” Morrison told reporters in Terrigal.
In June 2022, Asset Energy, which holds an 85 percent stake in PEP11, lodged a case in the Federal Court of Australia alleging Morrison was biased in his decision not to renew the PEP11 exploration permit, concerned that it was denied procedural fairness in extending the permit.
In a document lodged for judicial review on October 28, Asset Energy claimed Morrison breached the requirements of procedural fairness in that he premeditated the application, and the purported decision was infected by actual bias.
It also argued there was a reasonable apprehension of bias in the form of predetermination, on the part of the Former Prime Minister, such that there was a denial of procedural fairness.
The document also claimed Asset was denied procedural fairness because the Former Prime Minister failed to take into account the submissions made by Asset dated January 22, 2022 before determining the merits of the application.
The document highlighted that, in making the decision, Asset was denied procedural fairness because it was not provided the opportunity to respond to issues raised by the National Offshore Petroleum Titles Administrator (NOPTA) in relation to Asset’s financial capacity.
Lastly, the document claimed the decision was void because Morrison was not validly appointed as the responsible Commonwealth Minister of the Joint Authority to administer the Department.
Commenting on the matter in August on ABC Radio in Newcastle, Asset Energy’s Executive Director, David Breeze, said the comments that former Minister for Resources and Water, Keith Pitt, seemed to be supportive of PEP11, as the Morrison Government had been spruiking a gas-led recovery from COVID.
“We are now in a position where we have massive increases in the cost of energy and the cost of gas, and businesses in New South Wales are going broke as a result of the increasing gas price, and the government has had to intervene twice now into the market in June and July at a cost of up to $1.8 billion.
“That $1.8 billion is going to be worn by consumers, and that means that everyone that uses energy in New South Wales has a cost to bear out of that.
“We think in light of the international energy crisis, and the energy crisis in New South Wales it is extremely important that we be allowed to proceed with the project.
“New South Wales only produces about five percent of the total gas it consumes, and as we’ve seen in the past, the gas pipelines that bring gas down from the north can be almost fully utilised by other customers and not able to bring additional gas into the New South Wales market.
“This is a critical consumer and household issue,” Breeze said.
He said the community should be looking to the offshore gas production in Victoria which he commented has been producing gas safely over the past 50 years.
“We believe we have a significant resource that can be used very safely and in an environmental way for the consumers and businesses and create employment here in New South Wales,” Breeze concluded.
Breeze made these comments before Prime Minister Anthony Albanese and Climate Minister Chris Bowen made their gas price cap deal in December.
PEP11 is an offshore gas exploration project covering an area of 4,576 square kilometres between Newcastle and Wollongong rejected by local communities, both sides of the Federal Government and the New South Wales Government.
While Asset claimed Morrison was biased for knocking back the proposal, the Former PM maintained the decision was all above board.
“I sought and was provided with the authority to administer matters in relation to this department and considered the issue observing all the necessary advice and issues pertaining to the matter before making a decision, without prejudice, which I announce publicly,” Morrison told the Australian Financial Review.
This view was also shared by the Australian Government Solicitor who stated that Morrison had been appointed as a Minister for Resources in April 2021.
“We advise that on April 15, 2021, the then Prime Minister, Scott Morrison, was directed and appointed by the Governor-General pursuant to sections 64 and 65 of the Constitution to administer the Department of Industry, Science, Energy and Resources and was therefore, for the purposes of the Joint Authority’s decision of March 2022, the responsible Commonwealth Minister for the Joint Authority,” the Australian Government Solicitor said.
Among the long list of opponents to PEP11 is a host of Federal Politicians with electorates along the coastline from Newcastle to Sydney.
Member for Shortland, Pat Conroy told The Point his thoughts on PEP11 were well known, and have not changed.
“This matter is now with the courts, and they will make their decision.
“I won’t prejudge that decision by making further comment,” Conroy said.
This is a sentiment shared by the Member for Dobell, Emma McBride, who said her position on PEP11 was also well known.
“We made our position very clear well before the last election.
“Given the matter is currently subject to legal proceedings, it would be inappropriate to comment further,” McBride said.
Commenting on the matter in June to Central Coast Newspapers, Federal Member for Robertson, Gordon Reid, said the judicial process should run its course but Labor’s position on PEP11 had not changed.
“It was a position backed by the entire community and a position the former Prime Minister was dragged kicking and screaming to reluctantly adopt.
“Extending PEP11 has never made sense from an economic, environmental, or enery perspective,” Reid said.
Independent Federal Member for Mackellar Sophie Scamps said the community on the Northern Beaches as well as communities all along the coast up to Newcastle rejected the proposed PEP11 licence.
“Here in Mackellar our community is not willing to risk a potential environment catastrophe off our coastline and will never accept offshore drilling for oil and gas.
“If the PEP11 proposal is revived, we will fight it every step of the way.
“I strongly urge the Albanese and Perrottet Governments to resist the lobbying efforts of the fossil fuel industry.
“We should listen to the science, and the wishes of our community to ensure the PEP11 exploration licence remains dead in the water.
“The reality is we should not be opening up any more oil or gas wells, either offshore or onshore.
“The science is clear. It’s time we focused on investing in renewables and the clean technology industries of the future and leave fossil fuels in the ground, where it belongs,” Scamps concluded.
The Federal Court case between Asset Energy and the Commonwealth Minister for Resources is currently ongoing with a case management hearing scheduled for February 8, 2023, which will be followed by a hearing on March 14, 2023.
While members of the community cannot be directly involved in the federal court case lodged by Asset Energy, there is still a lot they can do to make sure PEP11 is finally killed for good.
The charity Surfers for Climate is currently running a petition to stop PEP11 again which can be found on their website.
Visitors to Surfers for Climate’s website can also make a donation to help them achieve its goals of mobilising an alliance of surfers to care about the climate, to help the community play a powerful role in stopping coastal and offshore fossil fuel development.
It also aims to take action by implementing climate solutions and to make MPs representing surfing communities take action on climate issues.
Popular ice cream company Ben and Jerry’s also has a petition to stop PEP11 which can be signed on its website. (Website Link: https://www.benandjerry.com.au/values/issues-we-care-about/say-no-to-pep11)
Members of the community can also contact Asset Energy to share their thoughts on PEP11 by contacting them on their website.