The company behind the contentious Pep11 offshore New South Wales gas exploration project has lost patience with persistent delays from the federal and state governments and has asked the court to force them to make a decision.
BPH Energy and Bounty Oil and Gas NL, the parent companies of Pep11 joint-venture operator Asset Energy, notified the Australian Stock Exchange on Tuesday that Asset Energy has begun proceedings in the federal court in Western Australia against the joint authority responsible for determining whether the proposed PEP11 project can proceed.
If approved, the Pep11 project would be located offshore between Newcastle and Sydney. The company is asking the court to find that the Commonwealth-NSW Offshore Petroleum Joint Authority has breached an implied duty by failing to make a decision on two pending applications relating to its number 11 Petroleum Exploration Permit (Pep). It wants the court to compel a decision within 45 days.
Held since 1999 and renewed in 2012, the Pep11 permit is the only offshore petroleum exploration title granted to date in NSW.
In 2019, Asset Energy applied to vary the permit, seeking extra time to drill an exploration well and a change to the kind of surveying required. The application was accepted in January 2020. It applied again a year later for another extension, citing delays due to the Covid-19 pandemic. That application was accepted in February 2021.
In March, 2022, two months before the federal election, Morrison vetoed the project. At the time, but not known publicly until after he left office, Morrison had secretly taken administrative power over five extra portfolios, including Industry, Science and Resources.
In June 2022, Asset Energy began proceedings to challenge the decision in the federal court, arguing the decision-maker had a predetermined view and was biased.
It amended its case when the secret ministries were revealed two months later, challenging Morrison’s authority to make the decision at all, arguing he was not reasonably appointed. The court found the Morrison government had demonstrated apprehended bias and ordered the joint authority to start over.
In his letter to the ASX this week, BPH Energy’s executive director, David Breeze, said that between March and October of last year the project’s proponents had provided further information to the National Offshore Petroleum Titles Administrator (Nopta) to assist it in making a decision. Nopta sits within the federal industry department and advises the government and joint authority.
“To date, neither the First Application nor Second Application have been determined by the Joint Authority according to law,” Breeze wrote. He said it had now been 1,656 days since the acceptance of the first application and 1,278 days since the second.
“Asset [Energy] alleges that the failure by the Joint Authority to make a decision with respect to the First Application and the Second Application constitutes a breach of its duty to consider the applications within a reasonable time,” Breeze wrote.
In 2022, the court found the Morrison government’s decision had been “affected by bias”, pointing to public comments Morrison made in 2021 declaring he was opposed to the project.
“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,” Morrison told journalists in 2021.
Last year, Justice Darren Jackson found Morrison’s comments demonstrated “implacable opposition” to the project.
“Mr Morrison’s public comments might lead a fair-minded observer to reasonably apprehend that when he did come to deliberate on the matter, sometime between 10 and 14 December 2021, his mind might have been closed to persuasion,” the judge said.
By the time the court overturned the decision last year, Morrison had been replaced by Anthony Albanese, whose government had to make the decision again, balancing energy needs against the expectations and environmental concerns of some of Labor’s core constituents.
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Albanese had also made public comments about Pep11. In November 2021, ahead of the federal election, he rebuked the project.
“The idea that you’ll have oil and gas drilling just off this coast needs to be rejected,” Albanese said at the time. “A Labor government that I lead will rule out Pep11. Unequivocal. Full stop. Exclamation mark.”
The resources minister, Madeleine King, has said the government would make a decision in “an orderly and appropriate way”.
However, in November 2021, she also condemned the project, warning in a pre-election statement that it would “put our coastline, our marine life, and our economy at risk”.
“Thousands of jobs up and down the NSW coast depend on our pristine beaches,” King said at the time. “Those jobs will be under threat if this risky project goes ahead… Labor stands with our communities against Pep11.”
In April this year, King announced she had recused herself and delegated her decision-making power on the Pep11 applications to the industry minister, Ed Husic.
Husic’s office has been contacted for comment.
The independent MP for Mackellar, covering the northern beaches, Dr Sophie Scamps, urged the company to listen to the local people.
“We do not want drilling for oil or gas off our pristine coastline,” Scamps said. “We’ve fought this for decades and will continue to fight it.
“It’s time to say ‘no’ to this project.”