Previously, I thought Asset's case was weak if the Government was to refuse the PEP-11 extension. However, soo much has happened since then.
e.g
- Madeleine King recused herself.
- Ed Husic became the "responsible minister" even though the NOPTA site still lists Madeleine King as the "responsible minister" https://www.nopta.gov.au/legislation-and-compliance/legislative-overview/relevant-decision-makers.html
- 1608 pages of "preliminary views" were given, which seems odd considering the amount of documents shown in the previous 2022 court case. source: 11/10/2024, ASX:BPH, PEP-11 Update, https://www.asx.com.au/markets/trade-our-cash-market/announcements.bph.
- The reasons given:https://www.minister.industry.gov.au/ministers/husic/media-releases/statement-pep-11-1 "reasons of public interest, concerns about the applicants’ estimate of the cost of works and their ability to raise the necessary capital to fund the proposed works." Previously the biggest problem for Asset Energy was the force majeure, now somehow that has miraculously disappeared, probably because the public are now aware that NOPTA themselves stated COVID affected the titleholder. The "estimate of the cost of works", which was approved by NOPTA in 20121... isn't even listed on the JA decision making chart (Post #:72280380)... (I am embarrassed as an Australian citizen, that they tried to use this as a reason).
- This court case will be the first time the 2nd application has seen the courts. This means the legal system will apply the "COVID-19 Fact Sheet: Work-Bid Exploration Permits", including the feature: "additional flexibility will be required to assist titleholders to manage and plan"... I didn't see any "additional flexibility" in the decision making process thus far, in fact, I didn't see any flexibility at all, especially when compared with Emperor Energy Limited, they had e.g. "Cash and Cash Equivalents at end of period" = $53,000. source: https://www.asx.com.au/markets/trade-our-cash-market/announcements.emp 31/10/2023, ASX:EMP, during their submission for their suspension and extension of VIC/P47 source: https://public.neats.nopta.gov.au/Opggs/Title/7a1ec486-78c1-4dbe-8c0d-91036ea7811f
- As for the apprehended bias argument, I admit that a tenuous link can be made with Ed Husic's caucus vote, and Albanese's influence etc... but I maintain this is a weak argument, and probably not needed to win the case, in my opinion.
- among other things like the preliminary decision being made without Courtney Houssos having any input (the state JA).... and many other things...
Now that the Labor party has returned to Government, the chances of the Government fighting the case in court has risen. The silver lining here is, if they attempt to go to trial, then we will get the court documents, and this will be devastating for the Government, if, once again, the spotlight gets to shine on a possible case of: clear as day, procedural unfairness.
Also.... if the Government loses this case, the Government have a 0% chance of convincing David Breeze to once again submit both applications before making yet another Joint Authority decision, instead, if they choose to flagrantly disregard the court's orders again in 2026, then the company will be immune to threats of cancellation whilst withholding the 2nd NOPTA application.
Lastly, I doubt the Government will want their first year re-elected to be tarnished with a devastating intervention by Justice Jackson, the worst case scenario would be:
- Section 16 of the Administrative Decisions (Judicial Review) Act 1977 (provides for remittal with directions),
- Section 23 of the Federal Court of Australia Act 1976 (general power to make orders "as the Court thinks appropriate"),
- The High Court’s approach in cases like Minister for Immigration v Jia Legeng (2001), where judicial supervision was used to correct repeated administrative failures.
"Judicial enforeability" or Court Supervision of the Reconsideration, e.g remittal with directions, mandatory reporting to the court, timeframe enforcement, or liberty for the applicant to apply for further orders, would be devastating for the Government (at least in Legal circles), it would essentially mean the Judge is not impressed with the Government's obvious bias/procedural unfairness, and needs to keep them on a short leash (embarrassing).
In my opinion, the most important point of all is, if is the Government lose, and Justice Jackson makes any reference to 1) public interest, 2) finances, 3) anything else in the decision making table (which, to be clear, I don't think will happen)... that will regulate all Joint Authority decision making powers from then on, essentially putting them back where they belong, in their box, as the signature to the NOPTA finding.
(20min delay)