It's a good question, and I can't fully answer it, but I can walk you through the sequence of events and give you my theory...
Under Pitt, the 2021 application was "marked" to be decided sequentially, ie. 2020 first, then 2021 if necessary (which it wouldn't have been should the 2020 have been rightfully approved).
DISER notes and the Morrison Ministerial briefing (released under the Federal Court bundle) refer many times to this 2021 "decision" and the risks to the Minister.
Then something changed.
Firstly, the Morrison decision was quashed.
Then, for reasons not clearly explained, DISR/NOPTA changed their previous position from "sequentially" to "simultaneously".
Bear in mind, at the time of the decline in December 2021, the 2021 application status was "request more information"
So, under King, that information was provided by Advent to NOPTA, and in October 2023, advice was issued on both applications.
I have sought access to the RFI's and the responses under FOI, guess what, DISR declined to provide them under S47.
So we, the poor old public are in the dark as to why the change, but it is significant in my opinion.
This information will be available to Advent during discovery should the Government elect to contest this case.
My theory - NOPTA was blindsided by the whole Scomo incident. They took two days of the eight day December 2021 briefing period obtaining their own legal advice as to whether Scomo was entitled to make the PEP11 decision. From then, they were coerced into reversing their original advice and issuing new conflicting advice. The entire process was an insult to their professionalism and deeply embarrassing to Graeme Waters. I think, once the original decision was quashed, and it arrived back at NOPTA in 2023, Graeme (or someone senior in DISR) has managed to get both applications in front of the JA simultaneously in order to ensure this debacle cannot be repeated. If, despite NOPTA's recommendation, the JA were to concoct reasons to decline the 2020 application, they would immediately be confronted with the 2021 application. The assessment criteria for the COVID application is extremely simple, and Advent has possession of the 2020 advice which directly acknowledges COVID as a factor. The 2021 application has no out for the JA, so IMO Graeme has placed the JA in a position where the title extension simply cannot be refused.
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