Thanks tothe excellent questioning of Debra O’Neill in the Senate Estimates and the finejournalism of Karen Middleton in The Saturday Paper, the truth of the eventsthat took place between 11th February 2021 and the 17thDecember 2021 has now been exposed. These disclosures have IMO put the currentGovernment in an unwinnable position as far as the court case lodged by AssetEnergy is concerned. Here is the updated “who” knew “what” and “when”:-
11thFebruary 2021 – Keith Pitt becomes aware that John Barilaro has said he will berecommending the NOPTA application be rejected. Keith responds with thefollowing:-
“We are working through that process, I note MinisterBarilaro’s comments in the press and if NSW wants to withdraw completely frommaking Joint Decisions that’s a matter for them, but we have asked them toadvise us formally as quickly as possible. Sowe can get on with it.”
12thFebruary 2021 – Keith Pitt makes releases a statement to select media whichincludes the following comment:-
There is no deadline for this decision to be delivered, however giventhe community interest in the issues, I would prefer the decision was made soon.
18thFebruary 2021 – John Barilaro formally notifies Keith Pitt of his decision.
In between18th February and 15th April 2021, Keith Pitt meets severaltimes with Scott Morrison, at the PM’s request, regarding PEP11. On at least one occasion, it includes Deputy PM and National Party Leader Michael McCormack. Scott Morrison tries to convince Keith Pitt to decline the PEP11 NOPTA application. Keith Pitt does not agree and does not acquiesce. Keith Pitt is supportive of offshore exploration citing the numerous successful examples around Australia and Pitt knows PEP11 was drilled successfully without incident in 2010. Scott Morrison tells Keith Pitt that the PM can make the decision himself but fails to disclose how. Pitt refers this to McCormack who replies “he is the Prime Minister”.
4thMarch 2021 – At a Press Conference held at Tomago Aluminium, a journalist asksan off-topic question, does the PM support the PEP11 extension? Scott Morrisonreplies that he does not, his first public comments on PEP11.
15thApril 2021 – Morrison instructs the Governor General to install him as Ministerfor Resources. The Governor General elects to keep the appointment secretstating that it’s a matter for the Government to gazette the appointment.
21stApril 2021 – A senior member of the Department of Premier and Cabinet (most likelyYaron Finkelstein) calls a senior member of the Department of Resources (mostlikely David Fredericks) and notifies DISER of the new powers of ScottMorrison. PM&C instruct DISER that this new power is to be kept secret and thereforeneither the Minister Keith Pitt nor NOPTA staff are aware of this change. It islikely that Fredericks did not share the existence of this new power with any otherDISER staff.
15thJune 2021 – DISER announces the annual offshore exploration acreage release. Itincludes a new title just 5km offshore of The Twelve Apostles, a globallyrecognised tourist attraction in Victoria. Scott Morrison did not prevent thisacreage being released despite it’s proximity to “pristine beaches” and “potentialimpact on tourism”.
21st June2021 – Keith Pitt is demoted from cabinet following Barnaby Joyce’s elevationto Leader of the National Party. This is likely to be punishment for Keith’srefusal to bow down to Scott Morrison over PEP11. Keith Pitt retains hisMinistry.
26thAugust 2021 – Keith Pitt states on radio that “he is the final decision maker,and will make the decision in due course”. Keith by now is receivingnegative publicity for the delay in making the decision.
31stAugust 2021 – Keith Pitt writes to concerned shareholder again re-iterating thathe is the final decision maker.
21stOctober 2021 – Independent MP Zali Steggall introduces the “Stop PEP11” Billinto Parliament. The Liberal Party shut it down.
24thOctober 2021 – Keith Pitt re-instated to Cabinet following Barnaby Joycenegotiating Net Zero 2050 agreement. Was a deal done to “hold off” on PEP11?Did Keith Pitt do a deal on PEP11 to get his cabinet position back?
8thDecember 2021 – PM&C reach out to DISER/NOPTA and seek a brief on PEP11under Scott Morrison’s secret Ministry instrument. This is the first time thosebelow senior level have heard of this instrument and DISER/NOPTA do notinitially comply while they seek their own legal advice.
10thDecember 2021 – NOPTA provide the brief having received advice the appointmentis valid.
17thDecember 2021 – at 7am, radio station 2HD break the news that “PEP11 will becancelled”. This is clearly a leak from PM&C. Later that day, ScottMorrison appears at Terrigal beach to make the announcement. Scott Morrisonrefers to a “whole of government decision” whilst failing to disclose that hehad in fact usurped Keith Pitt as Minister to make the decision. Appearing alongsidehim are Lucy Wicks, Jason Falinski, and the 2022 Federal Election Liberal Candidatesfor Shortland and Paterson.
22ndMay 2022 – The Liberal Party lose the Federal election, Lucy Wicks, JasonFalinski, Trent Zimmerman, and Dave Sharma lose their seats. Labor retainsShortland and Paterson and Zali Steggall retains Warringah with an increasedmajority.
2ndJune 2022 – Asset Energy lodges case in Federal Court alleging bias by way ofpre-determination and failure of due process
14thAugust 2022 – The 5 Secret Ministries are revealed to the public for the firsttime. Scott Morrison states that he only used one power, the DISER instrument, specificallyfor the purpose of cancelling PEP11. He comments “If I wished to be the decision maker, then I had to take thesteps that I took. And then I had to follow a very meticulous process in informingmyself about the issue, taking briefs on the issue, and then making a decisionin accordance with all the legal requirements, which I did,”
The actualcircumstances advised by DISER cast the validity of that statement into seriousdoubt.
26thAugust 2022 – Anthony Albanese announces former High Court Justice VirginiaBell will undertake an inquiry into the secret Ministries, in particular as towhether it’s use in the case of DISER, was valid. It has been confirmed byDISER that their staff have appeared before Ms Bell. Ms Bell has also contactedthe Governor General. It is fair to assume that Scott Morrison, Keith Pitt,Michael McCormack, and Yaron Finkelstein would also have been asked to appear.
12thOctober 2022 – The Judge presiding over the Asset Energy Federal Court casereleases the documents submitted by each party. Each party agreed to theirrelease and the Judge believed it was in the public interest they be released.The “bundle” included the NOPTA advice. It showed that NOPTA recommended approvalof the application. The documents also revealed that Scott Morrison was warnedabout the possibility of losing a challenge referring to a precedent (PathfinderEnergy P/L). Scott Morrison chose to ignore the advice of NOPTA and the legalwarning and went ahead and declined the application at the risk of tax payerdollars for his own political pursuits.
14thOctober 2022 – Former High Court Justice Bill Gummow espoused a view that theDISER instrument and the other 4 appointments were in his opinion invalid dueto their clandestine nature.
28thOctober 2022 – Asset Energy lodges an amendment to their court case citing theinvalidity of the DISER instrument deeming the decision void.
8thand 10th November 2022 – DISER staff appear before the SenateEconomics committee and reveal the secrecy of Scott Morrison’s DISERappointment and confirm Minister Keith Pitt was not consulted on PEP11 nor didhe receive the PEP11 brief which was sent to Scott Morrison via PM&C.
19th November2022 – Michael McCormack is quoted in The Saturday Paper as “being worriedabout rigs up and down the NSW coastline” and “not wanting to trash Morrison’slegacy”. McCormack reveals that Scott Morrison had not told him that he held, orintended to hold, the power of Resources Minister when informing McCormack thathe intended to cancel PEP11.
MY OPINION
Theevidence has mounted against the Government. Allegations of bias by way ofpre-determination and procedural fairness are now incredibly strong. Severalexpert legal opinions have pointed to the DISER instrument being invalid.Former High Court Justice Bell will hand down her report this Friday andjudging by the evidence in the Senate, the evidence from the Bell Inquiry islikely to get worse for the Government. The Bell Report has serious implicationsfor the court case, the Government may be forced to concede the case.
A positiveBell Inquiry outcome for BPH will no doubt be well received by the market.Media attention will be enormous and when you combine this with the East Coastgas “shortage” looming, Narrabri weighed down in disputes, and that the gasspot price has risen from $5/Gj in January 2021 to over $40/Gj post Ukraineinvasion. Manufacturing on the East Coast is under enormous threat from risinggas prices, for example Incitec closing their Mt Gibson Urea factory and buyingit directly from a producer in WA. Jobs are being lost on the East Coast.
The EastCoast, and the world, are in a very different place to January 2021 and thelooming Bell Report represents a significant catalyst for the BPH SP.
JMO. DYOR
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