Scott Morrison’s decision to use extraordinary ministerial powers to block the controversial Pep-11 gas exploration licence off the coast of New South Wales is being challenged in the federal court, with the proponent accusing the former prime minister of “bias” that denied procedural fairness.
Pep-11 is a petroleum export permit covering coastal electorates between Sydney and Newcastle. It was strongly opposed by communities in seats targeted by teal independents and Liberal MPs had raised concerns with the prime minister’s office about its unpopularity.
Federal court documents obtained by Guardian Australia also suggest that Morrison’s decision to block the permit renewal as the joint decision-maker came despite the National Offshore Petroleum Titles Administrator (Nopta) recommending in April 2020 that the exploration licence be extended.
The court documents state that by announcing at a media conference in Terrigal on 16 December last year the government’s intention to refuse the application, Morrison pre-empted the final decision and denied asset energy procedural fairness. A media release was also issued jointly on that day with other Liberal Party MPs representing coastal electorates.
Morrison said at the time he had called the press conference “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 (sic) permit, known as Pep-11”.
In an application for judicial review filed with the federal court in June, the Pep-11 proponent, Asset Energy, alleges Morrison “predetermined the application and the purported decision was infected by actual bias” after he secretly took over the portfolio from resources minister, Keith Pitt, in April last year.
“The prime minister predetermined the application and did not bring an impartial and unprejudiced mind to the resolution of the function he was required to perform in March 2022 to determine the application,” it states.
“Further or in the alternative, there was a reasonable apprehension of bias, in the form of predetermination, on the part of the prime minister, such that there was a denial of procedural fairness.”
The document goes on to state Asset Energy was denied procedural fairness because the prime minister did not take into account the company’s submissions in January 2022 before determining the merits of the application.
“In circumstances where the prime minister had publicly committed to a final position of refusing the application, prior to receiving the submissions of the application dated 22 January 2022 … it can be inferred the Prime Minister did not properly take into account the applicant’s submissions and in the premises the application was not given an opportunity to be heard,” it states.
According to an affidavit lodged with the court, Nopta “recommended that the joint authority approve the application” in April 2020.
However, after consideration of the correspondence between the administrator and the company, Morrison as joint decision maker with the NSW minister, Paul Toole, later instructed Nopta to advise the proponent of the notice of intention to refuse. This was provided on the same day as the prime minister held a press conference in Terrigal alongside four Liberal MPs to announce the government would block the application.
Among reasons cited in the court documents are “financial uncertainty” as to whether the company had “access to adequate financial resources to allow it to fulfil its obligations”, and the rejection of the company’s claims that “force majeure” circumstances should be taken into consideration.
The statement of reasons also notes a “high level of community opposition to the application” and says the joint authority’s refusal also considered the public interest, as it is entitled to do under section 779 of the offshore petroleum and greenhouse gas storage act.
The December notification to Asset Energy invited the company to make submissions responding to the reasons for the proposed refusal.
It provided these on 22 January, before Morrison and Toole made a final decision to refuse the project. The statement of reasons was signed by Morrison on 26 March, and by Toole on 12 April.
The court documents also include correspondence from the Office of the Australian Government Solicitor to Asset Energy’s legal counsel confirming that Morrison was the responsible minister for the decision.
It states: “We advise that, on April 15 2021, the then prime minister, the Hon. Scott Morrison MP, 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 26 March 2022, the ‘responsible Commonwealth minister’ for the Joint Authority.”
Pitt has refused to comment on the decision to refuse the licence.
“As this particular matter is before the courts I won’t be making any specific comment on the decision,” he said in a statement on Monday.
“As a minister my obligation was to ensure I discharged my responsibilities in accordance with the ministerial standards, in accordance with the cabinet handbook, in accordance with legislation, and that’s what I did on every single occasion.”
Morrison declined to comment on the ministerial arrangements and did not respond to Guardian Australia’s request for an interview. The member for Cook told Sky News he would not comment on reports on Monday, adding: “Since leaving the job I haven’t engaged in any day-to day-politics.”
