Federal Court of Australia

Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science (No 2) [2026] FCA 761

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The order made on 17 March 2025, to suspend the operation of the decision of the Commonwealth-New South Wales Offshore Petroleum Joint Authority made on 16 January 2025, is vacated with effect from 5.00 pm AWST on 1 July 2026.

3.    Any party (or interested person or amicus) may file written submissions on costs of no more than three pages in length by 4.00 pm AWST on 1 July 2026.

4.    Any party (or interested person or amicus) may file and serve responsive written submissions of no more than three pages in length by 4.00 pm AWST on 15 July 2026.

5.    If no submissions are filed in accordance with paragraph 3 above, the applicant must pay the first respondent’s costs of the proceeding, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Asset Energy Pty Ltd, seeks judicial review of a decision made under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act). The application is brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

2    The decision under review was made by the Commonwealth-New South Wales Offshore Petroleum Joint Authority. Under the constitutional settlement concerning coastal waters that is reflected in the OPGGS Act, the Joint Authority was constituted by the Commonwealth Minister for Industry and Science and the New South Wales Minister for Natural Resources. The decision concerns an offshore petroleum exploration permit, numbered NSW/PEP11 (Permit), which covers an area of Commonwealth waters. Consequently, the Commonwealth Minister, who is the first respondent and was the decision-maker for the Joint Authority under s 59(3) of the OPGGS Act, has taken responsibility for resisting the application for judicial review. The New South Wales Minister, as second respondent, has filed a submitting appearance (save as to costs).

3    The decision under review was made on 16 January 2025, and notified to Asset with reasons on 17 January 2025 (I will refer to the decision itself as well as the reasons given for it on 17 January 2025 as the Decision). In essence, the Joint Authority refused two applications made by Asset to vary and suspend the program of work required to be performed under the Permit, and to extend the term of the Permit. If not set aside, the effect of the Decision will be that the Permit comes to an end.

4    The reasons for the Decision say that it was made on two grounds: that it was not in the public interest for Asset’s applications for suspension and variation of Permit conditions and extension of the Permit to be granted (public interest conclusion); and that Asset had not demonstrated that it had the financial capacity to undertake the revised exploration program that was proposed in its applications (financial capacity conclusion).

5    Asset challenges each of those conclusions in its application for judicial review. In broad terms, its challenge to the public interest conclusion is based on a ‘no evidence’ submission. As will be seen, Asset seeks to invoke the privileges of the Parliament of New South Wales in a novel way in support of that submission. Asset also challenges the public interest conclusion on the basis that it was so unreasonable that no reasonable decision-maker could have reached it.

6    As for the financial capacity conclusion, Asset says that the Joint Authority denied it procedural fairness, and also contends that the Decision as to that conclusion was unreasonable.

7    Finally, there is an overarching ground of review based on what Asset says is the Joint Authority’s misconstruction or misapplication of the provisions under which the Decision was made, namely s 264 and s 265 of the OPGGS Act.

8    For the following reasons, the application will be dismissed.

I.    Brief history of the Permit

9    The area covered by the Permit is located some 25 km off the Central Coast of New South Wales. It runs roughly from the same latitude as Newcastle on its northern boundary south to the latitude of Sydney. Asset holds an 85% share in the Permit, with Bounty Oil and Gas NL holding 15%.

10    The Permit was originally granted (under different legislation) in 1999. It has been renewed and extended on multiple occasions since. The expiry date of the Permit as it currently stands would have been 12 February 2021, but s 265A of the OPGGS Act meant that it did not expire on that day while the applications for variation were pending, and the Court has since made an order under s 15(1)(a) of the ADJR Act suspending the effect of the Decision until the present application is determined.

11    Minimum work requirements apply as conditions of the Permit. They are set out in the original Permit document as a six year program, which was later reduced to a five year program following the Permit’s renewal in 2012. While the Permit has been in place for around 25 years, variations, suspensions and extensions previously granted meant that as at December 2019, only the first three years of the program had been completed, and year 4 and year 5 were yet to be performed.

12    On 23 January 2020, an application was made under s 264 of the OPGGS Act for a 24-month suspension of the conditions attaching to year 4 to allow for completion of an exploration well. A corresponding extension of the term of the Permit was sought under s 265. In addition, Asset sought a variation to the work program for year 5 which would have relieved it of the obligation to conduct a 500 km2 seismic survey, and would have replaced that with post-well studies.

13    Seismic surveying uses sound waves to penetrate the seabed; these waves bounce back to the surface and are detected by audio receivers. By analysing the sound patterns geologists can produce models of the ocean bedrock prior to drilling. The proposed post-well studies would, instead, involve analysis of samples from the year 4 exploration well. The difference in estimated costs between these works is significant: Asset has estimated the seismic survey would cost $3.5 million and that the post-well studies would cost $250,000 .

14    On 4 February 2021, Asset made a second application. This sought a suspension of the conditions of the Permit and an extension of the term of the Permit. It was based on the impacts of the COVID-19 pandemic on the Joint Authority’s consideration of the first application, on the oil price and capital raising, on rig availability, and on community engagement.

15    It will be necessary to set out some detail of the history of the two applications below, when dealing with the procedural fairness ground. For now, it is enough to note that on 26 March 2022, the Joint Authority decided to refuse the first application. But on 14 February 2023 this Court set the decision aside, by consent, because it was affected by apprehended bias: Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86 (Asset Energy 2023). Hence the two applications of January 2020 and January 2021 were outstanding.

16    On 18 September 2024, the National Offshore Petroleum Titles Administrator (NOPTA) wrote to Asset informing it that the Minister had formed the preliminary view that it was appropriate to refuse both applications, and providing preliminary reasons (the Preliminary View) and inviting Asset to make submissions. One of NOPTA’s functions is to correspond with permit holders on behalf of the Joint Authority: OPGGS Act s 63.

17    The final Decision of the Joint Authority to refuse both applications, as has been said, was notified to Asset on 17 January 2025.

18    I will now address each of the grounds of review, grouping them into the following three subjects: the public interest conclusion; the financial capacity conclusion; and the asserted misconstruction or misapplication of the OPGGS Act.

II.    The public interest conclusion

The Joint Authority’s reasoning

19    As well as corresponding on the Joint Authority’s behalf, another function of NOPTA is to give the Joint Authority advice on applications such as those that led to the Decision here: OPGGS Act s 695B. NOPTA did give the Joint Authority written advice in relation to both of Asset’s applications. That advice, which was given on 17 October 2023 and updated on 4 December 2024, was favourable to the grant of the applications in relation to a range of matters that were relevant for the Joint Authority to consider. These matters included whether force majeure grounds existed for the 60-month suspension of the year 4 work program and a consequent extension of the term of the Permit.

20    NOPTA said, however, that the public interest considerations raised by Asset were for the Joint Authority to consider, as were matters pertaining to the public interest more broadly. In relation to both applications, NOPTA said (Decision, paras 51(e) and 52(d)):

From a technical perspective, NOPTA considers that without drilling a prospect, there is no known petroleum pool, and therefore there is insufficient evidence currently to comment on the potential of PEP-11 in the context of Australia’s energy security.

21    In the Decision, the Joint Authority said that it had considered certain ‘evidence’ in relation to public opposition to the Permit. It was referring to the Second Reading Speech given on 7 February 2024 by the New South Wales Minister for Planning and Public Spaces, the Hon Paul Scully MLA, in support of a Bill, and the Act that was passed by the New South Wales Parliament as a consequence of that Bill. That Act is the Environmental Planning and Assessment Amendment (Sea Bed Mining and Exploration) Act 2024 (NSW) (EPAA Act).

22    After considering and rejecting a submission by Asset that the Joint Authority should consider exercising the power to vary and suspend conditions of the Permit under s 264 of the OPGGS Act entirely separately to the power to extend the term of the Permit under s 265 of the Act (as to which see section IV of this judgment), the Decision turned to consider the public interest.

23    After setting out a summary of the various submissions that Asset had made to it in connection with the public interest, the Joint Authority noted (Decision para 66) that in the Preliminary View, the Minister had:

expressed the view that it is also relevant that, during the period since the First and Second Applications were made, NSW has prohibited the carrying out of sea bed petroleum and mineral exploration and recovery and related development. This prohibition was passed with bipartisan support in the … EPAA Act …

24    The Joint Authority further noted that Mr Scully had said in the Second Reading Speech (Decision para 67) that the then proposed EPAA Act would:

‘ban exploration and mining in the coastal waters of New South Wales but will also ensure that development in New South Wales does not support exploration or mining projects in the offshore areas of New South Wales which are beyond the limits of our State’.

25    The Joint Authority thus noted (Decision para 68, annexure citation removed) that the Minister had:

expressed the preliminary view that, while the EPAA Act would not directly prevent the works that are the subject of the Permit, it would prevent future development that may be required to support the extraction of gas in the Permit area, impacting the utility of the works that are the subject of the Permit. Minister Husic also expressed the preliminary view that the bipartisan support for the EPAA Act is suggestive of a high level of public opposition within NSW to the exploration to be conducted under the Permit.

26    After setting out some arguments that Asset had put in response to the Preliminary View, the Joint Authority said that it accepted three matters that had been put:

(a)    that the issue of exploitation of any gas that may be identified through exploration was not relevant to the Decision, because the applications related to the Permit, which is an exploration permit only;

(b)    that there was a public interest, apart from exploitation, in knowing what resources are off the coast of New South Wales, and that this was a factor that weighed in favour of the public interest being to grant the applications; and

(c)    that the EPAA Act would not directly prevent the works that were the subject of the Permit, and that it may be possible for gas extracted from the Permit area under a hypothetical future production permit to be imported via a liquefied natural gas import terminal that was under construction at Port Kembla.

27    It can be inferred that in making that last point, Asset and the Joint Authority were observing that there would still be scope to recover any gas from the Permit Area, even though the EPAA Act may have the effect put by Mr Scully, namely that development in New South Wales would not support exploration or mining projects in Commonwealth offshore waters.

28    The Joint Authority did not consider that it was appropriate for it to consider certain contentions that Asset had made about the validity of the EPAA Act. In that context, the Joint Authority said ‘for the avoidance of doubt’ that it had not relied on the legal effect of the EPAA Act in making its decision: Decision para 72.

29    The Decision then said:

73.     The Joint Authority noted that, if the Applications are granted, a community consultation process will be undertaken in relation to the environmental plan for the Permit works. The Joint Authority did not accept that this precluded it from having regard to the bipartisan support for the EPAA Act as evidence of a high level of public opposition within NSW to the exploration to be conducted under the Permit.

74.     While the Applicant characterised statements made in relation to the EPAA Act as merely political positions within a state parliament, the Joint Authority noted that in his Second Reading Speech, Minister Scully stated that many Members of Parliament had raised concerns about offshore mineral or petroleum exploration or mining for commercial purposes either in or adjacent to NSW coastal waters. As the role of a Member of Parliament is to represent their electorate, the Joint Authority considered that the opposition to gas exploration expressed by many Members of Parliament, across political parties, may be relied on as representing a broadly held community opposition within NSW to gas exploration activities being conducted either in or adjacent to NSW coastal waters. As the Permit area is located in the offshore area adjacent to NSW coastal waters, the Joint Authority considered the views of the community in NSW to be relevant to its assessment of the public interest.

75.     Overall, while the Joint Authority acknowledged the general need for increased domestic gas supplies, and the public interest in understanding what resources lay off the coast of NSW, it found that it would not be in the public interest to grant the First Application or the Second Application in light of the community opposition to the gas exploration activities being conducted in areas including the Permit area, and that this public interest consideration would support a decision to refuse the First Application and the Second Application. The Joint Authority considered that this public interest consideration was, of itself, a sufficient reason to refuse the First Application and the Second Application.

Asset’s case about the public interest conclusion of the Decision

The grounds of review

30    Asset’s case for judicial review as to the Joint Authority’s public interest reasoning is twofold.

31    The first aspect is put in ground 2 of review (ground 1 concerns the alleged misconstruction of the OPGGS Act, and it is convenient to deal with it last). By ground 2, Asset contends that there was no evidence or material before the Joint Authority to justify the conclusion that the grant of the applications was not in the public interest.

32    In the particulars to ground 2, Asset alleges that the evidentiary basis for the Joint Authority’s public interest conclusion was comprised entirely of the passage of the EPAA Act and the Second Reading Speech. But, Asset says, by the EPAA Act the Parliament of New South Wales created no prohibition on its activities under either the existing work program for the Permit, or any proposed work program.

33    The particulars then seek to rely on parliamentary privilege in the following way. They aver that because Mr Scully’s statements in the Second Reading Speech are the subject of parliamentary privilege, as a matter of law they cannot be relied on outside Parliament as evidence of the truth or correctness of what Mr Scully said. In the particulars this appears to be advanced as a reason, in itself, as to why there was no evidence to support the Joint Authority’s conclusion as to the public interest. But as will be seen, by the end of the hearing of this application, Asset had clarified its position on this in a significant way.

34    It is also said in the particulars to ground 2 that even if Mr Scully’s statements could be used by the Joint Authority, and were not the subject of parliamentary privilege, they cannot be used to determine the intentions of Parliament in enacting the EPAA Act, as it cannot be supposed that members of Parliament necessarily agreed with Mr Scully’s reasoning and conclusions. It appears that this is advanced in the alternative, as a basis for concluding that if parliamentary privilege does not prevent the making of reference to the Second Reading Speech, the content of the speech itself provides no probative support for the Joint Authority’s conclusions. For reasons that will be explained, it is not appropriate to deal with this alternative argument.

35    The second aspect of Asset’s challenge to the public interest ground of the decision is in ground 3. Asset contends, further or alternatively, that the Joint Authority’s conclusion that it would not be in the public interest to grant the applications was so unreasonable that no reasonable decision-maker could have reached it in the circumstances. In written submissions this also led Asset to characterise the Joint Authority’s public interest reasoning as irrational. The particulars to ground 3 are the same as the particulars to ground 2 but, as will be explained, in some respects the submissions made under ground 3 depart from those particulars, and so do not engage questions of parliamentary privilege. To that extent, ground 3 may be considered on its merits, although one further aspect of it is precluded by parliamentary privilege.

Asset’s reliance on parliamentary privilege by the time of the hearing

36    The way in which Asset relies on parliamentary privilege is not fully apparent from the particulars to the grounds of review as just summarised. There is ambiguity in the way in which the relevant particular to the grounds of review is framed. As just described, it says that the Second Reading Speech cannot be relied on outside Parliament. It is put as broadly as that. So this might be a contention that the Joint Authority should not have relied on the speech when coming to the Decision, or it might be a contention that a different person or institution, on a different occasion, is precluded from relying on it, or it might be both. The different person or institution could be the Minister acting as a respondent, and it could be the Court, and in each of those cases the occasion could be this proceeding.

37    Despite that ambiguity, it emerged by the time of the hearing of this application that Asset’s case in this proceeding is indeed that it is the Court and the Minister as first respondent who cannot rely on the Second Reading Speech. Asset does not contend that parliamentary privilege disabled the Joint Authority from relying on the Second Reading Speech, and it does not contend that the Joint Authority fell into jurisdictional error by transgressing the privilege. Rather the company contends that it is the Court that cannot have regard to it now, and the Minister who cannot rely on it before the Court. That being so, according to Asset, there is nothing before the Court that counts as probative evidence or material that is capable of supporting the Joint Authority’s reasoning. The Court should thus conclude, Asset says, that ground 2, the ‘no evidence’ ground, is made out.

38    Asset makes a further point in its written submissions. It accepts that parliamentary privilege means that it, also, cannot contest the truth of the relevant parliamentary statement, or make submissions that it should be read in a certain way so as to be confined (for example) to ‘the metes and bounds of the issues dealt with by the EPAA Act’. Relying on Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418, a decision I will come to, Asset submits that ‘a parliamentary statement cannot be used by an administrative decision-maker to create his or her own unfalsifiable truth’. As will be developed below, the point appears to be that it would be unjust to permit the Minister to assert that the Second Reading Speech did furnish a probative basis for the Decision in circumstances where parliamentary privilege disables Asset from contesting that assertion.

39    Asset seeks to encapsulate ground 2 by submitting that ‘[o]nce the truth of the Hon Paul Scully MLA’s parliamentary statement is put to one side then there is nothing significant left of the Public Interest Ground’, as a ground of the Decision. That is because the parliamentary statement is said to have been critical to the conclusion the Joint Authority reached concerning the public interest.

The Minister’s response to Asset’s reliance on parliamentary privilege

40    The Minister’s response to this point does not depend on disputing the principles of parliamentary privilege on which Asset relies. There was not a great deal of difference between the parties as to those principles. Rather, the Minister disputes the way Asset seeks to rely on parliamentary privilege. He submits that if the principles are properly understood and applied, it is Asset that is disabled from advancing grounds 2 and 3, not the Minister who is disabled from resisting them.

41    That is because, the Minister contends, Asset’s submission on this point seeks to reverse the onus of proof or burden of persuasion of establishing jurisdictional error. It is Asset that has the burden of persuading the Court that the Joint Authority fell into jurisdictional error by making the Decision without probative material to support it. The Minister submits that parliamentary privilege does not prevent the Court from accepting the Second Reading Speech as proof of what happened in Parliament as an historical fact. Since that fact must be accepted, it is for Asset, then, to persuade the Court that the speech had no probative value. To do this would require the kind of critical examination of the speech that is precluded by parliamentary privilege. The Minister therefore submits Asset’s case is the one that infringes the privilege.

42    The Minister meets Asset’s further point about unfairness by saying, in effect, that if the privilege does preclude Asset from making submissions it might otherwise make, so be it. Privileges and similar principles such as public interest immunity sometimes do handicap one of the parties to litigation. The Court is nevertheless bound to observe and give effect to the privilege or immunity.

43    Asset makes some further submissions in order to meet these points, which are convenient to set out when I come to consider them below.

Whether ‘evidence’ is required to support the public interest conclusion

44    Before addressing Asset’s argument based on parliamentary privilege, it is convenient to consider another submission that the Minister made at the threshold, to the effect that a ‘no evidence’ ground could not succeed in relation to the public interest conclusion, because the Joint Authority did not need ‘evidence’ in order to proceed on the basis that there was community opposition to offshore gas exploration.

45    To support that proposition, the Minister relies, by analogy, on CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634. That case concerned a finding made by the Minister for Home Affairs that Australia had a low tolerance of criminal conduct for people like the appellant (whose visa had been cancelled after he was convicted of murder) who had been participating in and contributing to the Australian community for only a short period of time.

46    The Full Court held (Moshinsky, O'Bryan and Cheeseman JJ, at [28]) that the Minister’s finding did not require evidence. Their Honours considered that it was ‘the expression of an evaluative judgment about what is tolerated by the Australian community; an assessment that the Minister, as an elected representative, is capable of making’. Their Honours referred to authorities concerning the application of a requirement to take community expectations into account that is found in certain ministerial directions made under the Migration Act 1958 (Cth). These authorities were to the effect that community expectations are not a provable fact, and indeed the lack of homogeneity in the community means there may be no single set of expectations held throughout the community or predominantly in it: see CKL21 at [29]. It was therefore acceptable for the Minister to take account of the Minister’s own conception of community expectations. At [30] their Honours said:

In determining the Australian community’s expectations, the Minister does no more than form an opinion about those expectations, based on all relevant facts and circumstances, as the elected representative of the community empowered to make the revocation decision.

47    At [31], their Honours confirmed that it followed that the principles referred to in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17] had no application to such a finding. Those principles are relevant in this case and are set out at [57] below.

48    In resisting the Minister’s submission based on CKL21, Asset says that no party has identified a case in which that authority has been applied outside the migration context. And it submits more particularly that the actual path of reasoning followed by the Joint Authority here is not analogous to the kind of reasoning that the Full Court was considering in CKL21.

49    I accept the latter submission. I therefore do not accept that, in reaching the public interest conclusion, the Joint Authority did not need to rely on ‘evidence’, in the sense of probative factual material. In a different case, it may be that a decision-maker holding political office is able to form views about matters that have political and policy dimensions without having a specific factual basis for doing so. The question of whether it is in the ‘national interest’ for the Minister to cancel a visa using the extraordinary power conferred by s 501BA of the Migration Act is an example: see Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [137], per Besanko J.

50    In this case, however, in reaching the public interest conclusion, the Joint Authority relied on the existence of a factual phenomenon that existed objectively (in the Joint Authority’s view, at least). That phenomenon was ‘a high level of public opposition within NSW to the exploration to be conducted under the Permit’: Decision para 73. The Joint Authority reasoned to the existence of that public opposition from another factual phenomenon, namely, concerns held by many members of the New South Wales Parliament. It was the Second Reading Speech that was the factual source of the Joint Authority’s knowledge of those concerns.

51    This is quite different to the logic of the evaluative judgment about community expectations that is the subject of CKL21. The logic was that in their capacity as a representative of the community, a minister of the Crown is capable of making a judgment of that kind about that subject, without approaching it as though it were a provable fact. But in this case, the Joint Authority did approach community opposition to petroleum exploration as a provable fact. That is perhaps unsurprising in circumstances where the community in question was the populace of the State of New South Wales, which the Commonwealth Minister, as the decision-maker for the Joint Authority in this case by virtue of s 59(3) of the OPGGS Act, did not represent, save as part of the broader Australian community. The Joint Authority did not purport to reach the public interest conclusion on the basis of the Minister’s personal or specialised knowledge or by reference to that which is commonly known: see Viane at [17], set out at [57] below. That explains the reliance placed on the perceived concerns of New South Wales parliamentarians.

52    The reasoning in CKL21 does not apply here, and, as said, I do not accept the Minister’s submission that the Joint Authority could reach the public interest conclusion without relying on any evidence.

Summary of conclusions about parliamentary privilege

53    Turning to the case based on parliamentary privilege, however, for the reasons that follow I do accept the submissions of the Minister, and do not accept those of Asset.

54    In short, the case as put by Asset does require the Court to undertake a critical examination of the Second Reading Speech, an undertaking which parliamentary privilege precludes. Since the Decision expressly bases the public interest conclusion on the speech, and since the Minister has established before the Court that the speech was in fact made, the inquiry then becomes whether the speech was rationally capable of supporting the Joint Authority’s conclusion. It is this inquiry that cannot be performed due to the privilege. The Court simply cannot know, then, whether the speech is probative of the conclusion. Since Asset bears the burden of persuading the Court that it is not rationally probative, its case fails.

55    That prohibition on critically examining the Second Reading Speech precludes the Court from addressing the substance of ground 2, even in the alternative. The same goes for a specific aspect of ground 3, as will be explained. Ground 2 and that aspect of ground 3 therefore fail.

56    The explanation of these conclusions given below proceeds as follows. First, I will set out the principles that govern the ‘no evidence’ and unreasonableness grounds Asset seeks to advance. Next, I will outline briefly how it is that the privileges of the Parliament of New South Wales come to apply to the Court in this case. After that, I will summarise and describe the principles that govern that privilege, in so far as they are presently relevant. I will then consider the case that Asset must establish in respect of the Second Reading Speech in order to succeed on the public interest conclusion. Finally, the application of the principles of parliamentary privilege to that case will elucidate the conclusions that are summarised above.

‘No evidence’ and unreasonableness grounds – principles

57    In Viane at [17], Keane, Gordon, Edelman, Steward and Gleeson JJ said that if:

the Minister exercises the power conferred by s 501CA(4) [of the Migration Act] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By ‘no evidence’ this has traditionally meant ‘not a skerrick of evidence’.

58    The same can be said of the Joint Authority here, exercising its powers under the OPGGS Act.

59    Some qualification or elaboration is needed, however, to the proposition that an applicant relying on a ‘no evidence’ ground must establish that there is not a ‘skerrick of evidence’. Asset submits that it is ‘probative’ evidence that must be absent. That was not controversial and I accept it.

60    In Bruce v Cole (1998) 45 NSWLR 163 at 188, Spigelman CJ (Mason P and Sheller and Powell JJA agreeing) said: ‘[a]cting without probative evidence is the equivalent of no evidence.’ His Honour then elaborated. After considering authorities on why a perverse finding of fact does not constitute an error of law in certain statutory contexts, he concluded (at 189) that:

[d]ifferent considerations arise in the development and application of common law principles identifying the proper basis for judicial review of administrative action. In my opinion, at common law, a decision-maker who acts without probative evidence – to which conduct the word ‘perversely’ has appropriately been attached – does not make a valid decision. It is the equivalent of acting without evidence.

I accept that a finding of primary fact by the Conduct Division will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary facts properly so found. In this case the finding of continued incapacity was an inference.

61    This way of framing the principle has been followed in this Court: see Wang v Australian Securities and Investments Commission [2019] FCA 1178 at [68] (Bromwich J); and Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203 at [58]-[59] (Katzmann J). It adopts Mason CJ’s formulation of the established basis to impugn findings of fact by administrative decision-makers in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358-359. The essence of the principle has been set out in similar terms by the Full Court of this Court; in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48], Mortimer J (Moshinsky J agreeing) accepted as an accurate statement of principle the following submission:

Save that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, the inquiry is not otherwise concerned with ascertaining the sufficiency or quality (including cogency) of the evidence. The ground necessarily invites and requires a comparison between the material available to the decision-maker and the conclusions drawn from that material.

62    Questions about the place of this rule in the developing doctrine of jurisdictional error (as to which see the authorities canvassed by Farrell J in Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730 at [42]-[48]) do not arise here. There was no issue between the parties that if the public interest conclusion required evidence to support it and if there was no probative evidence to do so, then the decision involved jurisdictional error.

63    Also not in issue was the proposition that ‘evidence’ in this context is not confined to evidence admissible in a court of law, but extends to material that would not count as evidence in a judicial context: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA, McColl and Whealy JJA agreeing).

64    Finally, as indicated in the quote from Bruce v Cole, an inference of fact must be open to be drawn on the basis of primary facts. This goes to Asset’s third ground of review. It is a way of expressing the principle enunciated by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 that the courts will interfere if a decision reached by an administrative decision-maker ‘appears so unreasonable that no reasonable authority could properly have arrived at it’ or ‘could not reasonably have been reached’.

65    As articulated by Asset, ground 3 was developed as an attack on the logicality or rationality of the Joint Authority’s reasoning. As such, the question asked focusses not on the reasonableness of the ultimate conclusion, but on whether it was open to the Joint Authority to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ); see also Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43] (Gordon J).

66    As is often the case in the field of jurisdictional error, multiple different formulations of the same essential concept are available, but there is no need to draw fine distinctions between them or to choose between the different formulations here. For the purposes of ground 3, it is sufficient to follow the capacious formulation of the concept given by Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, which was quoted with approval by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492:

The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.

67    To the extent that this approach means that ground 2 and ground 3 overlap here, it is of no concern. The particulars of each of the grounds of review are the same and, as Mason CJ observed in Bond at 359-360, to review a finding of fact on the ground that there is no probative evidence to support it and to review an inference on the ground that it was not reasonably open amount to the same thing.

68    The threshold for establishing the latter is high: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the actual decision-maker: SZMDS at [130]. Logical or rational or reasonable minds may differ in respect of their processes of reasoning and the conclusions they draw as a result: see SZMDS at [131]. Differences of that kind will not be enough. In SZMDS at [135], Crennan and Bell JJ said:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

69    However, ‘[q]uestions of weight per se are not amenable to judicial review: DCP16 at [87].

Why the privileges of the Parliament of New South Wales apply here

70    Given that Asset’s argument depends on the application of the privileges of the Parliament of New South Wales to a proceeding in the Federal Court, exercising federal jurisdiction, the first step is to ascertain whether those privileges do apply to this proceeding.

71    The reasons for decision in Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science [2025] FCA 1163 (Asset Energy (No 1)) explain how it came to be that this matter, commenced in the Court’s Western Australia Registry, has been heard and determined in New South Wales. The transfer was connected with the question of how the privileges apply here.

72    Both before and after the matter was transferred, the parties were agreed that those privileges would apply. There was also little controversy as to the reasons why that was so. But for reasons set out in Asset Energy (No 1), I decided that the Court needed to satisfy itself of this, and that it was likely to be easier to do that if the Court were to hear the matter in New South Wales. Hence the hearing ultimately took place in Sydney. As also explained in Asset Energy (No 1), the Attorney-General for New South Wales was given leave to intervene to address issues of parliamentary privilege, and the Speaker of the Legislative Assembly of New South Wales was given leave to appear as amicus curiae.

73    Parliamentary privilege has its origins in the common law (Duke of Newcastle v Morris (1870) LR 4 HL 661 at 667) and possibly finds continued application there. It has also been said to arise from ‘inherent necessity’, stemming from the character of the parliaments (Gipps v McElhone (1881) 2 LR (NSW) 18 at 21, 25; Chenard and Co v Arissol (1948) AC 127 at 133) or from the construction of the constituent instruments of ‘subordinate legislatures’ created by the Imperial Parliament (R v Turnbull (1958) Tas SR 80 at 83). But the parties here were all content to proceed on the basis that the relevant source of the privilege under consideration here is art 9 of the Bill of Rights 1 Wm & Mary Sess 2 c 2, which continues in force in New South Wales by reason of s 6 of the Imperial Acts Application Act 1969 (NSW): see Egan v Willis (1998) 195 CLR 424 at [22] (Gaudron, Gummow and Hayne JJ). Article 9 provides: ‘[t]hat the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.’

74    The parties agreed that two complementary paths to the application of art 9 to this Court exercising federal jurisdiction can be identified on the basis of Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 and Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554. In short, those two paths are the direct application of s 6 of the Imperial Acts Application Act, and its application by way of s 79 of the Judiciary Act 1903 (Cth). They are complementary, in the sense that if one does not apply, the other does. For the following reasons, I accept that the position put by the parties is correct.

75    The first path emerges from the principle encapsulated in the judgment of Bell, Gageler, Keane, Nettle and Gordon JJ in Rizeq at [56]:

The simple constitutional truth is that State laws form part of the single composite body of federal and non-federal law that is applicable to cases determined in the exercise of federal jurisdiction in the same way, and for the same reason, as they form part of the same single composite body of law that is applicable to cases determined in the exercise of State jurisdiction – because they are laws.

76    This was said after their Honours explained that federal jurisdiction was authority to quell disputes derived from the written federal Constitution: at [50]-[54]. Their Honours emphasised that it was important not to confuse the federal source of authority to quell disputes according to law (federal jurisdiction) and the composite body of law that governs how the disputes are to be quelled: at [53]-[55]. Subject to a qualification about to be mentioned, then, the laws of a State (such as art 9 of the Bill of Rights as applied by s 6 of the Imperial Acts Application Act) if they are relevant on their terms, are applied by a court exercising federal jurisdiction simply because they are laws. That is so even though they govern the outcome of a dispute that is to be quelled pursuant to authority conferred under the federal Constitution.

77    The qualification, as explained by their Honours (Rizeq at [57]-[62]), arises from the incapacity of State parliaments to affect the exercise of federal jurisdiction, which in turn arises from the exclusive nature of the power to regulate the exercise of federal jurisdiction that is conferred by s 51(xxxix) of the Constitution, to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the ‘Federal Judicature’. That incapacity explains the need for s 79 of the Judiciary Act (see Rizeq at [63]), which provides the complementary alternative path to the application of art 9 of the Bill of Rights here. Section 79(1) provides that:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

78    That these two paths are complementary follows from the confirmation of the plurality in Rizeq at [90]-[92] that s 79 fills the gap that would otherwise be left by the incapacity mentioned above: see also Masson at [30].

79    It follows in turn that it is not necessary for me to decide which of the paths applies art 9 of the Bill of Rights in or to the exercise of the Court’s jurisdiction in this proceeding. The fact that the Court is exercising its jurisdiction in New South Wales means that art 9 will apply by force of s 79 of the Judiciary Act if the law as to parliamentary privilege is properly understood as a law that regulates the Court’s exercise of federal jurisdiction. If it is not a law of that kind, then it will apply because of its place in the composite body of State and federal laws that governs the outcome of the proceeding.

80    The wide-ranging nature of parliamentary privilege, as explicated below, along with its character as a fundamental aspect of the constitutional division between at least two of the three arms of government (see [86], [106], [113] below) inclines me to think that the latter position is correct. But I am also conscious of the caution expressed in Rizeq at [83] in relation to ‘the difficult and sometimes elusive distinction between “substance” and “procedure”’. Nor is it abundantly clear where the privilege may sit in respect of the contrast drawn in Rizeq at [103]-[105], between a law determining the powers that a court has when exercising federal jurisdiction (which may engage s 79 of the Judiciary Act) and a law that applies to the conduct of persons independently of anything done by a court. As Leeming J has observed writing extra-judicially, some laws may be both: M Leeming, Cowen and Zines’s Federal Jurisdiction in Australia (5th ed, Federation Press, 2025) p 20.

81    I accept that the prudential approach to the determination of constitutional matters militates against deciding which path applies where, as here, it is not necessary to do so. It is sufficient to conclude that art 9 of the Bill of Rights does apply to the Court in the determination of this proceeding. Similarly, there is no call to comment on alternative paths to that application suggested by the parties here, such as the common law or s 106 of the Constitution.

82    The only reason why identifying the path to the application of art 9 might matter would be if there was a Commonwealth law that was inconsistent with it. For then, s 109 of the Constitution might invalidate the State law if it would otherwise apply of its own force, whereas if art 9 applies under s 79 of the Judiciary Act that problem does not arise: see Rizeq at [92]. But the only Commonwealth law touching on State parliamentary privilege that the parties identified was s 10(1) of the Evidence Act 1995 (Cth). Since that section provides that the Evidence Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament, it cannot be said to be inconsistent with such privileges at State level. Therefore, no s 109 issue makes it necessary to choose between the two paths.

83    I note that in Asset Energy (No 1) at [36], I said that it had been submitted that transferring the proceeding to New South Wales would make the application of the privilege easier to determine, since it was likely to be picked up by s 79 of the Judiciary Act. I also described the direct application of the Imperial Acts Application Act as a possibility. Having considered the question more closely, it should now be said that this was an unduly loose way of putting the matter, whether speaking of what had been submitted, or of what the true position was. As has been said, I now incline to the position that s 79 does not operate here, but have concluded that it is not necessary to decide whether that is so.

How parliamentary privilege affects this proceeding

84    It is now necessary to review the authorities on the scope and meaning of art 9 of the Bill of Rights to determine how, if at all, it affects the conduct of this proceeding, and what that means for the respective positions of Asset and the Minister. I was referred to a large number of cases on the subject. That was not because there was a great deal of difference between Asset and the Minister on the scope of the privilege – as I have said, there was not. But it is important to understand the precise scope in order to be able to deal with the novel submission that Asset makes about it.

The basis of parliamentary privilege

85    One basis to explain the way the privilege is enacted in the Bill of Rights is that freedom of speech can be regarded as inherent in the constitution of Parliament: Turnbull at 84. The purpose of the privilege is institutional or corporate; it is to facilitate the workings of Parliament: see Buchanan v Jennings [2002] 3 NZLR 145 (Buchanan NZCA) at [25]-[26] (Richardson P, Gault, Keith and Blanchard JJ).

86    Parliamentary privilege is not a mere exclusionary rule of evidence, but a fundamental constitutional doctrine essential to the separation of powers: Re Bell Group NV (No 2) [2017] FCA 927 at [36] (Jagot J). It is ‘a bulwark of representative government’: Crime and Corruption Commission v Carne [2023] HCA 28; (2023) 280 CLR 555 at [106] (Gordon and Edelman JJ and the authorities cited there). It is ‘an important principle that the legislature and the courts should not intrude into the spheres reserved to the other’: Buchanan v Jennings [2005] 1 AC 115 at [18] (Buchanan PC, Lord Bingham of Cornhill, delivering the advice of the Privy Council).

The occasions on which Parliamentary privilege applies

87    The scope or effect of parliamentary privilege has been expressed in broad terms, so that whatever is said or done in a House of Parliament ‘should not be liable to examination elsewhere’: Stockdale v Hansard (1839) 9 Ad & El 1 at 209, quoted by Stephen J in Bradlaugh v Gossett (1884) 12 QBD 271 at 279, quoted with approval in turn by Browne J in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 at 529. The latter case has proved influential. Browne J reviewed authorities on the scope and effect of the privilege, going back to the broad statement in Blackstone’s Commentaries on the Laws of England (17th ed, Clarendon Press, 1830) Vol 1 p 163 that anything said in a House of Parliament ought not be ‘examined, discussed and adjudged’ elsewhere. Blackstone attributed this to the need for Parliament to control its own proceedings and members. I note however that the ongoing relevance of Blackstone’s treatment of the subject has been questioned in Australia: see Erglis v Buckley [2004] QCA 223; (2004) 2 Qd R 599 at [13]-[27] (McPherson JA).

88    Nevertheless, the prohibition in art 9 of the Bill of Rights on questioning or impeaching parliamentary proceedings in ‘any … Place out of Parliament’ cannot be taken literally – in a liberal democracy, of course citizens and others are free to criticise things said in Parliament: see Pepper v Hart [1993] AC 593 at 638 (quoted at [102] below); Mees at [77]; Buchanan PC at [9]; Attorney-General (Tas) v Casimaty [2024] HCA 31 at [80] (Edelman J). In its modern application the privilege has been described as a ‘a constraint on the judicial arm of government’ and ‘effectively a duty on courts’: Mees at [78]; Casimaty at [72] (Edelman J).

89    The privilege can thus apply to restrict the use of parliamentary material to support or oppose a cause of action arising out of something done outside Parliament: Church of Scientology at 529-530. In Australia, at least, this includes an application for judicial review: see Hamsher v Swift (1992) 33 FCR 545 at 564 (French J); Artinian v Commonwealth [1997] FCA 1604 (Hill J); Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 at [44] (McLure J). That was not controversial in this case.

90    In such cases the Court proceeds as outlined in Halden v Marks (1995) 17 WAR 447 at 462 (Rowland, Murray and Anderson JJ, citations removed):

[T]here are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in Parliament. In the exercise its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceedings in Parliament.

What parliamentary privilege prevents – the conventional approach

91    In Church of Scientology, Browne J accepted (at 530) as a basis for the privilege ‘that a member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter’. His Lordship continued:

So far as the authorities are concerned it will be seen that the words used are very wide. In the Bill of Rights 1688 itself the word is ‘questioned’: ‘freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ Blackstone uses the words ‘examined, discussed, and adjudged,’ they ought not to be examined, discussed or adjudged elsewhere than in the House. In Lord Denman C.J.’s judgment in Stockdale v. Hansard (1839) 9 Ad. & El. 1, 114, which I quoted, the words are that ‘whatever is done within the walls of either assembly must pass without question in any other place,’ and in the same case Patteson J said, at p. 209, ‘that whatever is done or said in either House should not be liable to examination [elsewhere]’.

92    In Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1, Blackburn CJ followed this approach, summarising it (at 5) as follows:

In other words, I think that the way in which the court complies with Art 9 of the Bill of Rights 1689, and with the law of the privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference. The court upholds the privileges of Parliament, not by a rule as to the admissibility of evidence, but by its control over the pleadings and the proceedings in court.

93    However, in Church of Scientology, Browne J did not need to give full effect to the breadth of the principle. The decision concerned the striking out of particulars of a plea of malice in a defamation case that would have required an inquiry into the motives for things that were said in Parliament. The ground of the decision was thus that his Lordship was (at 531):

quite satisfied that in these proceedings it is not open to either party to go directly, or indirectly, into any question of the motives or intentions of the defendant or Mr Hordern or the then Minister of Health or any other Member of Parliament in anything they said or did in the House.

94    On the same page his Lordship appeared to accept a submission that Hansard:

could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, [the Attorney-General] said, the use of Hansard must stop there and that counsel was not entitled to comment upon what had been said in Hansard or to ask the jury to draw any inferences from it. I can foresee that we may get into difficulties later on in this case about this matter. But the general principle is quite clear, I think, and that is that these extracts from Hansard which have already been read must not be used in any way which might involve questioning, in a wide sense, what was said in the House of Commons as recorded in Hansard.

95    The proposition that Hansard could be read as evidence of what was, in fact, said in the House on a particular occasion, was followed by the Court of Appeal in Mundey v Askin [1982] 2 NSWLR 369 at 373. It has been confirmed repeatedly since: for example in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Buchanan NZCA at [41]; Mees at [80]; Leyonhjelm v Hanson-Young [2021] FCAFC 22; (2021) 282 FCR 341 at [47] (Rares J), [248] (Wigney J) and [365] (Abraham J). It, too, was not contentious in this proceeding.

96    The broad approach to the scope of the privilege laid out in Church of Scientology was also followed by Needham J in Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435 at 438-439, with his Honour holding that the principle prevented anything more than the limited purpose of proving what was said, ‘for example, comments on the material by counsel or, no doubt, by the court’.

97    In R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 Dunn LJ (McCullough J agreeing) adopted the wide statement of the effect of the privilege given in Church of Scientology and confirmed (at 239) that it could operate to preclude the use of Hansard to support an application for judicial review in respect of something that occurred outside Parliament. His Lordship held that:

the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J.

98    Thus, the applicant for judicial review in that case was not permitted to rely on Hansard to prove the truth of certain things said in Parliament, to the effect that the Secretary of State had divested himself of a certain decision-making function.

99    In Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231-232, after reviewing authorities including those mentioned above, Beaumont J followed the broad approach taken in Anderson Strathclyde and declined to adopt a much narrower view of the effect of the privilege that Hunt J had taken in R v Murphy (1986) 5 NSWLR 18, namely that the privilege only prevented the questioning of statements made in Parliament in proceedings that sought to assert legal consequences against the member of Parliament who made the statement. Beaumont J rejected that narrower view and ruled that the applicant could not tender Hansard for the contentious purpose of impugning the conduct of a senator.

100    In Hamsher v Swift at 564, French J seemed to take a similarly wide view of the privilege when his Honour ruled out an attempt to use Hansard to prove that a minister’s disposition of particular applications was a deferral rather than a refusal of them, on the basis that this would ‘involve the use of evidence of the Minister’s statement to the House for the purpose of establishing his intention or otherwise inviting the drawing of inferences from the proceedings in the Parliament of which that statement formed a part’.

What parliamentary privilege prevents – Pepper v Hart and Prebble

101    The 1993 decision of the House of Lords in Pepper v Hart appears at first glance to have effected a contraction of the view of the privilege that had been taken in the English and Australian authorities reviewed above. That case concerned the proper construction of certain tax legislation. The House of Lords was considering whether an examination of the proceedings in Parliament that led to the legislation’s enactment might give a clear indication of which of two competing interpretations was correct. Parliamentary privilege was raised as an objection to this course.

102    Delivering the leading speech, Lord Browne-Wilkinson favoured a limited relaxation of what was then the general exclusionary rule that references to parliamentary material could not be used as an aid to statutory construction. His Lordship considered whether art 9 of the Bill of Rights presented a constitutional objection to that. Specifically, the Attorney-General had submitted that using Hansard for the purpose of construing an Act would constitute the ‘questioning’ that art 9 prohibits (see [73] above). His Lordship rejected this, saying (at 638):

Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word ‘question’ which the Attorney-General urges. It must be remembered that article 9 prohibits questioning not only ‘in any court’ but also in any ‘place out of Parliament.’ If the Attorney-General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute ‘questioning’ since all Members of Parliament must speak and act taking into account what political commentators and other will say. Plainly article 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say.

In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil, or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there.

103    His Lordship also held (at 639) that the Attorney-General’s contentions were inconsistent with the practice that had evolved of referring to Hansard in judicial review proceedings, with a view to ascertaining whether a statutory power had been exercised for an improper purpose or in an unreasonable manner. In that regard, English law seems to differ from Australian law: see [89] above.

104    Lord Browne-Wilkinson went on to consider the two main English authorities mentioned above. His Lordship limited the authority of Church of Scientology to the ratio of the decision: that it would transgress the privilege to use parliamentary statements to question the motives and intentions of a member of the House. And as to Anderson Strathclyde, his Lordship referred to the case of R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696 in which, he said, the Attorney-General had conceded that references to Hansard for the purposes of judicial review litigation did not infringe art 9. His Lordship held that in view of those matters, Anderson Strathclyde had been wrongly decided on the point of whether it was permissible ‘to adduce Parliamentary materials to prove a fact’. The other Law Lords agreed with Lord Browne-Wilkinson, although only Lord Mackay of Clashfern and Lord Oliver of Aylemerton touched (briefly) on parliamentary privilege.

105    Nevertheless, I do not read Pepper v Hart as having curtailed the scope of parliamentary privilege beyond the specific subject of the decision. The question before the House of Lords was whether there was any constitutional objection to using Hansard to help construe legislation passed by the Parliament. Unsurprisingly (at least from today’s perspective), there was not. But that is an issue far removed from the one before this Court. Further, while Lord Browne-Wilkinson sought to confine the way that Church of Scientology was to be understood, his Lordship did not say that it was wrong. And Anderson Strathclyde was only held to be wrong on the specific point described above. In Re MacTiernan at [44], McLure J held that ‘Pepper v Hart is not authority for the general proposition that a proceeding in Parliament tendered to support a ground for judicial review cannot involve a breach of Article 9 of the Bill of Rights’.

106    Indeed, two years after Pepper v Hart, in Prebble, Lord Browne-Wilkinson took an expansive view of the privilege which was consistent with the line of authority before Pepper v Hart, as discussed above. That was, once again, a defamation case. The defendant wanted to rely on statements made in the House of Representatives of New Zealand in order to suggest that they were calculated to mislead the House, or were otherwise improperly motivated. Lord Browne-Wilkinson delivered the advice of the Privy Council. At 332, His Lordship characterised art 9 of the Bill of Rights as a manifestation of a wider principle concerning the separation of powers between the courts and Parliament. He described that principle as meaning that the courts ‘will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges’. For this, his Lordship cited cases including Bradlaugh v Gosset and he then quoted Blackstone’s broad description of the effect of the privilege (see [87] above).

107    The defendant in Prebble nevertheless contended that he could use parliamentary materials for the impugned purpose, relying on the narrow view of privilege taken in Murphy. The Privy Council rejected this contention. Lord Browne-Wilkinson noted that almost immediately after Murphy, the Parliament of the Commonwealth of Australia had enacted the Parliamentary Privileges Act 1987 (Cth) to make it plain that Murphy did not represent the law of the Commonwealth. On behalf of the Privy Council his Lordship then went so far as to say that s 16(3) of that Act both declared the effect of art 9 of the Bill of Rights and contained ‘the true principle to be applied’. Section 16 is (and was at the time):

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

108    The section thus prohibits, not just questioning proceedings in Parliament, but also relying on their truth.

109    Lord Browne-Wilkinson then ruled (at 333) that Murphy was incorrect, and specifically that Church of Scientology and Comalco were correct. At 334 his Lordship described the basic concept underlying art 9 as resting on (emphasis in original):

the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.

Gordon and Edelman JJ endorsed this passage in Carne at [106].

110    Also relevant is the Privy Council’s treatment of a second argument put by the defendant in Prebble: that the privilege should not be available when, as in Prebble, the proceeding had been commenced by the member of Parliament who made the parliamentary statement in question. This too was rejected, on the basis that the privilege was an institutional one belonging to Parliament, so that the actions of an individual member could not determine whether it was to apply: see 335. At 336 Lord Browne-Wilkinson acknowledged the difficulties this could lead to, in the following terms:

Their Lordships are acutely conscious (as were the courts below) that to preclude reliance on things said and done in the House in defence of libel proceedings brought by a member of the House could have a serious impact on a most important aspect of freedom of speech, viz. the right of the public to comment on and criticise the actions of those elected to power in a democratic society: see Derbyshire County Council v Times Newspapers Ltd [1993] AC 534. If the media and others are unable to establish the truth of fair criticisms of the conduct of their elected members in the very performance of their legislative duties in the House, the results could indeed be chilling to the proper monitoring of members' behaviour. But the present case and Wright’s case, [(1990) 53 SASR 416] illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail...

‘Unfalsifiable truths’ and Mees

111    Those last quoted observations pertain in particular to Asset’s reliance on an Australian case decided in 2003, namely Mees. The nature of that reliance has already been touched on: Asset submits that to permit the Minister here to rely on the Second Reading Speech, while at the same time holding that Asset cannot contest its truth, would be to permit the Minister to create his own ‘unfalsifiable truth’ and that this should not be permitted to occur.

112    In Mees the applicant alleged that the respondents had provided misleading information to the Commonwealth Minister for the Environment, and sought injunctive relief. The respondents sought to tender statements that had been made in both Houses of Parliament of the State of Victoria in order to contend that the impugned material was true. They then contended, however, that parliamentary privilege meant that it was not open to the applicant to argue or the Court to find that either parliamentary statement had been untrue or misleading.

113    At [76], Gray J considered the history of parliamentary privilege, its origins in the ‘doctrinal struggle for supremacy between absolute monarchy and parliamentary democracy’ and its modern rationale in the separation of powers. His Honour thus adopted the explanation for the privilege given in Prebble as set out at [108] above. But at [77], he pointed out that art 9 of the Bill of Rights ‘cannot be taken absolutely literally’; of course people in a modern democracy are free to criticise and challenge outside Parliament things said within it. His Honour then observed (at [78]) that the privilege had evolved so that:

Art 9 seems to be construed now as a constraint on the judicial arm of government. The fundamental rationale of a court is the resolution of legal disputes through the exercise of impartial decision-making power and the ability to enforce the resulting decisions. Courts have a duty to resolve the disputes that are brought to them. There is therefore obvious scope for conflict between the duty of a court to decide a particular case according to law, and the privilege of Parliament to retain control over its own proceedings in a case which raises, or has the potential to raise, an issue about what has occurred in parliamentary proceedings.

114    His Honour proceeded at [80] to draw the line between permissible uses of parliamentary material to prove that relevant words were spoken, and impermissible uses, so that ‘any form of critical examination of the content of what has been said to Parliament will not be undertaken by a court’.

115    Gray J then went on (at [81]) to consider the ‘possibly controversial question’ of ‘whether it is permissible for a court to rely on the content of a statement to Parliament as evidence of the truth of a fact stated’. His Honour went on:

On one view, this would be far removed from impeaching or questioning the statement. It would be accepting the correctness of the statement. The difficulty is that such a use of a statement to Parliament would operate to the disadvantage of the party against whom it was used. That party would be unable to contend for the absence of the truth of the facts stated without impeaching or questioning the statement itself.

116    Gray J considered Anderson Strathclyde, its subsequent treatment in Pepper v Hart, and the status of s 16(3) of the Parliamentary Privileges Act as either a codification of or enlargement of the general law (his Honour’s attention seems not to have been drawn to the specific discussion of that in Prebble, as set out at [107] above). Then his Honour concluded:

85     The proposition that a statement made to Parliament can be tendered to a court to prove the truth of its contents, but that the truth of its contents cannot be the subject of any contest in the court, is fraught with difficulty. If accepted, it would have the effect of enabling a member of Parliament to create unchallengeable truth with respect to a factual situation, simply by making a statement to Parliament containing assertions of fact. The notion of manufactured truth is irreconcilable with the duty and function of a court to find the facts relevant to the issues in dispute in a case before it. Issues would arise as to the length of time for which a statement to Parliament could be considered operative to compel acceptance by a court of the facts stated. The unacceptability of the proposition is demonstrated by postulating the existence of more than one statement to Parliament, when there is a conflict between the statements. Plainly, a court could not be placed in the situation in which opposing parties tender the conflicting statements and the court is obliged to accept the truth of each of them. There are therefore many sound reasons for taking the view that it is not open to a party to tender a statement made to Parliament as evidence of the truth of the facts stated.

86     I am therefore of the view that it is open to the respondents in the present case to tender the Hansard reports of the statements made to the Victorian Parliament on 9 October 2001 and 19 March 2002. Those records can only be tendered for the purpose of establishing that those words were said to Parliament. The court is not able to accept the truth of anything stated in them for the purpose of determining the issue before it, namely whether the referral to the Environment Minister contains misleading information. The court cannot entertain a dispute as to whether the statement of 9 October 2001 satisfies the description of a clear statement, found in the referral to the Environment Minister. To the extent to which this view might be thought to hamper the respondents in resisting the applicant's case, that is the result of the requirements of parliamentary privilege. The respondents are in no way constrained from leading evidence as to the actual intention of the Victorian Government at the relevant time...

117    In Re MacTiernan at [45], McLure J agreed ‘with Gray J that the proposition that a statement made to Parliament can be tendered to a court to prove the truth of its contents but the truth of its contents cannot be the subject of any contest in a Court, is fraught with difficulty’. In Bell Group at [39], Jagot J held that it was plain that the doctrine of parliamentary privilege is not limited to the issue of whether Parliament has been misled or not: ‘any attempt to rely on the truth of or otherwise to impugn statements in or to Parliament to found a cause of action infringes the privilege’. Mortimer J applied Mees to similar effect in Guy v Crown Melbourne (No 2) [2018] FCA 36 at [398].

Does the fact of a parliamentary statement give a reasonable basis for a representation?

118    It is necessary, however, also to consider the case of Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 2) [2023] ACTSC 168. There, the defendants were alleged to have made misleading or deceptive representations about a future matter within the meaning of s 4 and s 18 of the Australian Consumer Law. They sought to tender certain parliamentary materials to counter the presumption found in s 4(2) of the Australian Consumer Law by which they would be ‘taken not to have had reasonable grounds for making the representation[s], unless evidence is adduced to the contrary’.

119    Acting Justice Curtin, in an ex tempore judgment dealing with objections to the tender of the parliamentary material, applied Sykes v Reserve Bank of Australia (1998) 88 FCR 511 to hold (at [22]) that in order to counter the presumption it was necessary for the defendants to show, among other things, that facts or circumstances existed on which they relied that were ‘objectively reasonable’ and that supported the representations. His Honour then rejected a submission by the plaintiff that, in relation to ‘reasonable belief’, the Court would be asked to draw an inference or inferences from the parliamentary material. His Honour quoted passages from Leyonhjelm, including those that are mentioned above (at [95]), to the effect that, to prove that a person said or did something in Parliament, did not necessarily amount to the prohibited use of drawing or inviting the drawing of inferences from parliamentary material. He relied in particular on the dissenting judgment of Rares J in Leyonhjelm, in which it was said (at [43], Rares J’s emphasis):

Importantly, s 16(3)(c) [of the Parliamentary Privileges Act], in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing.

120    In Bowes Street at [44], Curtin AJ described the relevant issue as whether or not the parliamentary material ‘was objectively reasonable material upon which to rely’. His Honour concluded (emphasis in original) that this did not ‘involve the drawing of any inference from the Parliamentary Material. One examines the material and determines whether it was an objectively reasonable basis for the making of the representation’. He went on:

45     The Parliamentary Material is tendered to prove a fact. It is then for me to determine whether the purpose of the reliance on that material involves any of the matters set out in s 16(3) [of the Parliamentary Privileges Act].

46     In this case the Parliamentary Material is simply a fact or facts upon which the defendants say they relied in making the alleged representations and they will ask me to make one or more findings to the effect that it was objectively reasonable for one or more of them (putting all their other defences aside) to rely upon that material in making the representations alleged (if they were made). As such, no inference could be sought to be drawn from the Parliamentary Materials.

121    It is difficult to reconcile these conclusions with the authorities canvassed above. It is no criticism of Curtin AJ to observe that his Honour did not consider those authorities in the course of delivering a pragmatic ex tempore ruling on objections to evidence in the course of trial. But it appears to me that to find that things said in Parliament provide an objectively reasonable basis for a future matter requires an inquiry into the credibility of the things said.

122    Certainly, the fact that they were said would be relevant, and it would also be possible to reach an understanding of what was said without infringing the privilege. But a further step would be needed, which can be revealed in the following way. If, hypothetically, what was said was obviously wrong, nonsensical or self-contradictory, it would not be objectively reasonable for the defendant to have relied on it. It follows that to ask whether it is objectively reasonable to rely on a statement is to inquire into the extent to which it can be relied on as truthful.

123    I will return to this way of conceiving of the inquiry when I come to determine the parliamentary privilege issue in this case below. But for now it is enough to say that, to the extent that Bowes Street stands for the proposition that finding that a statement was an objectively reasonable basis for a future representation goes no further than finding the fact that the statement was made and the fact of what was said, I respectfully decline to follow it. No party in this proceeding submitted that I should follow it.

Is there a ‘test’ for when the use of material offends parliamentary privilege?

124    In Casimaty at [74] Edelman J characterised the line of cases exemplified by the reasoning in Prebble as holding that ‘proceedings in Parliament are not “questioned” if the content of the proceedings is relied upon merely as fact rather than for the truth of the contents of the proceedings’. His Honour added immediately, however, ‘[t]his reasoning cannot be applied as a strict or rigid test’.

125    At [75]-[76] Edelman J went on to doubt the usefulness of this reasoning in the context of an alternative distinction submitted by the Commonwealth Solicitor-General, between using parliamentary proceedings to establish that occurred in fact and using them for the purpose of examining the propriety or validity of what occurred in Parliament. His Honour observed that difficult cases at the margins are unlikely to be resolved by that verbal formula.

126    Edelman J then endorsed, as the best presently existing test, a functional and pragmatic one that takes account of the purpose served by the privilege. His Honour quoted with evident approval the following passage from Chagnon v Syndicat de la fonction publique et parapublique du Quebec [2018] 2 SCR 687 at [27]:

the scope of parliamentary privilege is delimited by the purposes it serves ... It inheres to the nature and functions of legislative assemblies as a separate branch of government. The reach of inherent privilege extends only so far as is ‘necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.’

127    At [81] Edelman J articulated the test as follows:

The functional and pragmatic approach to balancing these competing considerations invites courts to ask whether consideration of, or admission of evidence of, parliamentary proceedings could give rise to a real or substantial prospect of a chilling effect upon the functioning of Parliament and its Members: ‘[i]f what is involved in a tender of evidence ... is simply not capable of being contentious, it is difficult to see how the right of free speech could be affected’. In that respect, there is merit in the focus, in the authorities mentioned above, upon whether anything said in any proceedings in Parliament is relevant in the legal proceeding only for the uncontentious fact of what was said. But attention should remain focused upon whether any use of speech, debates or proceedings in Parliament could give rise to a real or substantial prospect of chilling or restraining the free engagement of those involved in the Parliament and its processes.

128    This functional approach to the privilege has not been considered or embraced by other members of the High Court, and does not bind me. It nevertheless represents, with respect, a useful caution against any temptation to attempt to resolve the present issue by the application of a verbal formula. In my respectful view, it echoes the observations of the New Zealand Court of Appeal which in Buchanan NZCA at [50], after surveying Pepper v Hart, Prebble, and a subsequent House of Lords case (Hamilton v Al-Fayed [2001] 1 AC 395) said:

One conclusion to be drawn from the above account is the difficulty, if not impossibility, for Courts to state, in a consistent way, generally applicable rules in this area of the law. General statements may operate satisfactorily in the circumstances of the particular case in which they are stated but be problematical at best and misleading at worst in other circumstances. Rather, critical assistance is to be found in the particular words of art 9, its purpose and related principle (even if the particular understanding of both may shift over the centuries), and the actual rulings in, and facts of, the leading cases, as well as the particular facts of the case before the Court.

That is the approach I will take here.

129    In taking that approach, it is important to characterise with precision the purpose for which a party seeks to use the relevant parliamentary statement. That is illustrated well, with respect, by the judgment of Doyle CJ in Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450.

130    Mr Rann, who was Leader of the Opposition in South Australia at the relevant time, was suing the then Premier, Mr Olsen, for slander. Doyle CJ concluded that Mr Olsen could rely on a parliamentary statement made by Mr Rann, in order to establish a defence of qualified privilege, without infringing on parliamentary privilege. His Honour reasoned that there was a narrow but critical distinction between the prohibited purpose of questioning the truth or credibility of the parliamentary statement and the purpose of using the statement to prove Mr Olsen’s state of mind: see [63]-[69]. At [70] his Honour said:

The issue for the Court is not the truth of the statement the subject of qualified privilege, but the belief in its truth by the maker of the statement. An inquiry into the belief of the maker of the statement could easily involve an inquiry into facts which had been relied on in support of an unsuccessful plea of truth, but the failure of the plea of truth would not in any sense imply that the plea of qualified privilege would fail.

The place of the Second Reading Speech in Asset’s case

131    We come, then, to identifying exactly what use of the Second Reading Speech is proposed to be made in this Court. This requires examination of what Asset would need to establish in order to pursue each of ground 2 and ground 3. It does not require examination of any use of the speech proposed to be made by the Minister, as his submissions reveal no such intention. The idea that the Minister needs to rely on the speech comes from Asset, and will be considered when I address its submissions below.

Asset’s case under ground 2

132    I have summarised Asset’s case above. It is now necessary to consider, as precisely as possible, the extent to which that case requires an inquiry into the degree to which the Second Reading Speech can be relied on as truthful.

133    It will be recalled that by ground 2, Asset contends that the Joint Authority concluded that the grant of the applications was not in the public interest because of community opposition to gas exploration activities in areas including that of the Permit. And the Joint Authority’s view that there was community opposition is said to have been based, in part, on statements made by Mr Scully in the Second Reading Speech.

134    As to that speech, the particulars to ground 2 appear to contend that parliamentary privilege precluded the Joint Authority from making use of the Second Reading Speech for the purpose of coming to the public interest conclusion. But as has been explained, that contention has effectively been abandoned. What then remains, to indicate what Asset would seek to prove if it were unconstrained by the privilege, is the particular that the Second Reading Speech ‘cannot be used to determine the intentions of Parliament in enacting the EPAA Act as it cannot be supposed that members necessarily agreed with [Mr Scully’s] reasoning or his conclusions’ (particular (vi)).

135    That requires attention to the relevant statements made in the speech. The proposition is that it cannot be supposed that members of Parliament necessarily agreed with Mr Scully’s reasoning or conclusions. It is necessary to look at what that reasoning and those conclusions comprised. At this stage, I am simply identifying as a fact what Mr Scully said; as discussed above, that does not transgress the privilege (in this instance it is, rather, part of the Court’s proper function to ensure that it does not so transgress).

136    Materially, Mr Scully said:

The New South Wales Government does not support offshore mineral or petroleum exploration or mining for commercial purposes either in or adjacent to New South Wales coastal waters. I acknowledge that many members have raised that issue in this place, particularly noting the strong advocacy of the member for Sydney and the member for Wakehurst, and I consider the concerns of the members are reflected in the Government's position as outlined in the bill. The impacts of seabed exploration and mining are significant. They are a threat to our State’s sensitive marine environments, coastal areas and Indigenous heritage. Offshore mining activities can have a devastating impact on our marine fauna and their habitats, including the release of harmful or toxic materials, the removal of habitat and the creation of harmful sediment levels.

137    To contend that members of Parliament do not necessarily agree with Mr Scully in relation to this would be to contradict Mr Scully’s own statements that many members have raised offshore exploration as an issue, and that the Government’s position reflects the concerns of members. It is true that making that contention is not the same as seeking a finding that the statements are not true. That would be impermissible merits review of the Joint Authority’s decision, in circumstances where there can be no suggestion that this goes to any jurisdictional fact. But it would be to seek a finding that the statements are not probative of the attitudes of members of Parliament that are said to have founded the Joint Authority’s views about public opposition to offshore gas exploration. That requires an inquiry not into whether they are true, but into the extent that they can be relied on as truthful, so as to determine whether they meet the threshold of being probative.

138    In a different case, this might not have been so. In a different case, things said in Parliament might not be probative, because they are simply irrelevant. That would call for an inquiry into whether there was a logical connection between what was said and the conclusions reached by the decision-maker. It might not require any inquiry into whether the parliamentary statements can be relied on as true.

139    But that is not the case advanced under ground 2. As developed by the time of trial, it concerned the reliability of the Second Reading Speech, that is the extent to which it can reasonably be thought to be true. It did not concern its relevance. In its written submissions, Asset asserts that the Joint Authority’s public interest conclusion rested solely on the passage of the EPAA Act ‘and the truth of the statement in the related Second Reading Speech’. It submits that the Joint Authority ‘relied on certain external objective facts’ which ‘cannot be asserted without any basis at all’ (quoting from Viane at [20]).

140    Asset further confirms this (in its principal written submissions (AEPS) para 26) by submitting that parliamentary privilege disables the Court:

from accepting the truth of the parliamentary statement made by the Hon Paul Scully MLA in determining this issue. Given that the truth of that statement was the central factual hook on which the Public Interest Ground hung, without it there is no basis for the [Joint Authority’s] conclusion that there was widespread public opposition to the grant of the Applications.

141    It follows from this that on Asset’s conception of its case under ground 2, if parliamentary privilege did not apply, the Minister would need to meet the case by establishing that the Second Reading Speech was true or, more correctly, that it was sufficiently reliable to be treated as probative. The case is framed in similar terms at AEPS paragraph 33.

142    At AEPS paragraph 34, Asset submits that because of the privilege, it ‘cannot contest the truth of the impugned parliamentary statement by saying, for example, that it was an overstatement by reference to contrary public polling, it ceased to be true due to further supply constraints regarding the east coast gas market (given it was made on 7 February 2024), or that properly construed it needs to be read as confined to the metes and bounds of the issues dealt with by the EPAA Act’. The last of these might be a point about the relevance of the speech, but the first two are about the extent to which it can be relied on as truthful.

143    That Asset’s case about the lack of probative value of the Second Reading Speech concerns its truth was confirmed by its counsel in oral submissions when he said (at ts 25) that ‘what is clear is that the first respondent’s decision as regards the public interest ground rested solely on the bipartisan support for the EPAA Act and the truth or probative force of the statement in the … related … second reading speech’. Counsel later (at ts 38) confirmed ‘we say, whether it’s probative, can’t be wholly detached as to whether it’s true or not’.

144    Asset does not shy away from the fact that ground 2 challenges the truthfulness of the Second Reading Speech; indeed, it embraces it, because it is essential to its contention that the Minister cannot defend the public interest conclusion by supporting the truth of the speech.

Asset’s case under ground 3

145    The particulars of ground 3, asserting that the Joint Authority’s conclusion about the public interest was so unreasonable that no reasonable decision-maker could have reached it, are the same as the particulars to ground 2 (save for the omission of the claim that there was no evidence for the conclusion). At first blush, then, this ground too requires assessment of the probative value of the Second Reading Speech. Consistently with that, at AEPS paragraph 33, Asset submits that the speech cannot be relied upon by the Minister for its truth in opposition to both the ‘no evidence’ and the ‘unreasonableness/irrationality’ grounds.

146    When it comes to address ground 3 in AEPS, however, Asset frames the question as being whether it was open to the Joint Authority to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it: AEPS para 39 relying on SZMDS at [133] (Crennan and Bell JJ). Unlike the ground itself, the submissions focus attention (AEPS paras 39-40) on ‘the means by which a decision has been reached and not merely the end result’ and the requirement that ‘the evidence relied on provides a rational and logical basis for the conclusions reached’. It seems that the latter point differs from the ‘no evidence’ ground, in that it relies on the actual process of reasoning rather than a comparison between the material before the Joint Authority and the conclusion that it reached. Another way this latter point is put is whether a rational or logical decision-maker could have arrived at the decision on the basis of the material before the Joint Authority: AEPS para 40 relying on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).

147    Asset then submits, relevantly, that the Second Reading Speech was not sufficient to conclude that the refusal of its applications was in the public interest. It gives three reasons for this. The first two concern what can logically be deduced from the fact of the passage of the EPAA Act by the New South Wales Parliament. They do not engage parliamentary privilege and will be addressed when I come to the balance of ground 3 below.

148    Asset’s third reason, however, is that if the truth of the Second Reading Speech can be used here (which Asset does not concede), then the speech cannot be used to determine Parliament’s intention in enacting the EPAA Act, since it cannot be supposed that members necessarily agreed with Mr Scully’s reasoning or his conclusions. This effectively replicates the matters advanced under ground 2 and leads to the same result: that unless disabled by parliamentary privilege, Asset proposes to inquire into the probative status of the speech. Asset goes further, to submit under ground 3 that neither Mr Scully nor the unnamed members of the New South Wales Parliament to whom he refers in the Second Reading Speech had the benefit of Asset’s applications and submissions and NOPTA’s advice to the Joint Authority to inform their views. Implicit in this is an attack on the probative value of the Second Reading Speech by comparing it with those other materials.

The privilege prevents Asset from advancing ground 2 and an aspect of ground 3

149    It follows from the above that parliamentary privilege prevents the Court from entertaining the case that Asset advances under ground 2, and also the third reason said to support ground 3. Since Asset has the burden of persuading the Court that the Joint Authority fell into jurisdictional error, those parts of its case fail.

Parliamentary privilege precludes the proposed use of the Second Reading Speech

150    As established above, and as is common ground, parliamentary privilege can constrain what is put to a Court in support of (or in opposition to) an application for judicial review of a decision made outside Parliament. It correspondingly constrains the material to which the Court may have regard in determining the application. This will lead the Court to prevent, in submissions, the ventilation of any matter that would involve an infringement of the privilege. It is true that if the matter can also be deployed for a use that is not prevented by the privilege, that will be permitted, but there is no suggestion of that here.

151    Wherever the line is to be drawn, I am comfortably satisfied that the use of the Second Reading Speech that would be required if Asset’s submissions are to be entertained falls on the wrong side of that line. Without proposing any test for infringement of the privilege, that use would involve, at least, a critical examination of things said in the speech to assess whether they have probative value so as to support the Joint Authority’s conclusion. And, as demonstrated above, in the context of this case, probative value refers to how likely the speech is to be true, and not merely to its relevance to the questions at hand.

152    To adapt the words of Blackburn CJ in Comalco (see para [92] above), to permit the Second Reading Speech to be examined in this way would be to permit the substance of what was said in Parliament to be the subject of a submission or inference. On the basis of the present understanding of art 9 of the Bill of Rights in the cases considered above, it would breach the prohibitions in the article on both impeaching and questioning the Second Reading Speech.

153    The same result ensues if the matter is tested by way of the functional approach advocated by Edelman J in Casimaty. The purpose of the privilege – ‘to ensure so far as possible that a member of the legislature … can speak freely without fear that what they say will later be held against them in the courts’ (Prebble at 334) – is achieved by refusing to examine the Second Reading Speech to assess how likely it is that it is true. For a conclusion that it has no probative value would necessarily imply that what Mr Scully said was untrue. It would involve a challenge in court to the veracity of a parliamentary statement, which may inhibit members from speaking fully and freely in Parliament. As explained above, I do not consider that Bowes Street is any basis to depart from these conclusions.

Asset cannot discharge its burden of proof

154    Contrary to Asset’s submissions (considered below), this does mean that it is incapable of discharging the burden on it, as applicant, of establishing ground 2, and incapable of establishing the third reason it advances in support of ground 3. Asset rightly accepts that it has that burden in this case: see e.g. MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [39] and the cases cited there.

155    In L & B Linings at [34], Basten JA said that what must be established to make out a ‘no evidence’ ground of judicial review depends, ‘not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached’. That is, with respect, orthodox: see Splendido at [61] above. It follows that, in order to make the ground good, the applicant must establish that there was no material before the decision-maker that was probative of the conclusion. In some cases, perhaps, this can be established by inference, often including inference from the terms of the reasons themselves. But in many cases, it will be necessary for the applicant to tender the material that was before the decision-maker to demonstrate that it did not provide a probative basis for the conclusion.

156    This is such a case. The Joint Authority’s Decision describes the Second Reading Speech as a basis for the public interest conclusion, in terms that indicate that the speech is probative of the conclusion: see para 74 of the Decision reproduced at [29] above. If the Decision alone is tendered, Asset will not have demonstrated that there was no evidence to support the conclusion.

157    Further, as established above, it is permissible to tender Hansard for the purpose of proving the historical fact that the Second Reading Speech was made. And it has been tendered in this proceeding, so it can be taken into account for that purpose (it is in evidence as an annexure to the Decision). Given what the Second Reading Speech says (see [136] above) that tender only confirms that to make out its case, Asset would need to impeach or question the speech.

158    Therefore, if the Decision and Hansard alone are tendered (the latter for the limited permissible purpose of establishing that the Second Reading Speech was made and what its contents were) there will be no basis to conclude that there was no probative material to support the public interest conclusion. To make that out, Asset would need to tender the speech for the prohibited purpose of critically examining it to establish that it does not reach the threshold of probative material.

159    It follows that parliamentary privilege disables Asset from making out its case under ground 2, and from advancing its third reason under ground 3. To reach that conclusion, it is not necessary to consider what the privilege might disable the Minister from advancing in order to resist the ground. That possibility only arises because of the different way in which Asset frames the case. I will now turn to its specific submissions to explain why I do not accept that framing is correct.

Considering Asset’s submissions

160    The particular to ground 2 that invokes parliamentary privilege says that the Second Reading Speech cannot be relied upon as evidence of the truth or correctness of what was said outside Parliament. Putting it this way implies that it is the Minister who cannot use the speech.

161    Asset’s written submissions proceed on that very basis. That is, they say that the privilege means that there is no evidence available to the Minister to support the public interest conclusion in the Decision. As explained above, this must be understood to refer to the Minister in his role as a respondent in this proceeding, seeking to resist the judicial review application. Correspondingly, Asset contends that the Court is precluded from relying on the Second Reading Speech as support for the public interest conclusion.

162    I accept that this is so. As set out at [107]-[108] and [116]-[117] above, the privilege rules out, not only challenging or impugning parliamentary statements, but relying on them for their truth, at least in respect of any contentious matter. If the privilege did not apply, it would be open to the Minister to seek to meet Asset’s case by defending the probative value of the Second Reading Speech. That does not address, however, the anterior question of whether the privilege precludes Asset from putting any case that the Minister would need to answer in this way. As explained above, it does preclude that. It follows that the Minister does not have to put a positive case in reply.

163    Asset’s different answer to the question appears to rest on the concept of an ‘unfalsifiable truth’ (Asset’s term) which comes from Gray J’s references in Mees to an ‘unchallengeable truth’ or a ‘manufactured truth’ (see [116] above). Asset acknowledges at this point that the privilege prevents it from contesting the truth of the Second Reading Speech. It points to what it says are positive statements in its favour in the Commonwealth Parliament, and says that it cannot use those to create its own ‘unfalsifiable truths’. While it is not entirely clear from the written submissions, Asset seems to be saying that this means that the Second Reading Speech should simply be disregarded on all sides, from which it follows that there was no evidence that is in support of the public interest conclusion.

164    In response to this the Minister makes the simple point, already explored above, that the onus of proving jurisdictional error is on Asset, so if the Second Reading Speech cannot be made the subject of submissions to show that it does or does not give probative support to the public interest conclusion, that defeats ground 2. Asset’s reply to this enlarges on its reliance on the concept of ‘manufactured truth’ mentioned in Mees. It quotes in particular the following phrase from Mees at [85]: ‘The notion of manufactured truth is irreconcilable with the duty and function of a court to find the facts relevant to the issues in dispute in a case before it.’ It says again that if the Hansard is disregarded, then there is nothing left to support the public interest conclusion. At trial, Asset’s counsel confirmed the submission was that if the Joint Authority’s reasons are considered alone, that is disregarding the Second Reading Speech itself, ‘then there is nothing left on the face of the [Joint Authority’s] reasons or record to support the public interest ground’ [ts 45].

165    The problem with these submissions is that they elide the use of the speech made by the Joint Authority in the Decision and the use that the Minister may make of it as a litigant in the judicial review proceeding. It is the latter use that is precluded. But for Asset to succeed on this point, it is the former use that must be disregarded. Yet parliamentary privilege does not require the Court to pretend that the Second Reading Speech did not happen at all, and it does not require the Court to disregard the references to it that are made in the Decision. Once it is understood that way, and once it is understood that Asset is not contending that the Joint Authority was disabled from relying on the speech, the Decision (with or without the tender of the Second Reading Speech) does not establish that there was no evidence for the public interest conclusion.

166    Asset nevertheless contends that it has discharged the burden of proof, by tendering the Decision and pointing to ‘the paucity of the reasoning contained therein’. But the reasoning in the Decision is not such as to support the ‘no evidence’ ground by itself. As set out at [29] above, it refers to things said in the Second Reading Speech to the effect that many members of Parliament had raised concerns about offshore gas exploration, it infers that the concerns of parliamentarians reflected broadly held community opposition, and it reasons from there that it would not be in the public interest to grant the applications. Taken by itself, this indicates that there was evidence to support the conclusion, namely the things said in the Second Reading Speech about the views of members of Parliament. So it is simply not true that there is nothing on the face of the Decision to support the public interest conclusion. Asset could not discharge its burden of establishing jurisdictional error by tendering the Decision alone. In order to show that the material relied on was not probative, it would need to challenge the veracity of the Second Reading Speech itself.

167    Asset nevertheless relies on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [11] in support of the proposition that the tender of the reasons of the decision-maker is all that is required in order to discharge the burden of proof. There, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (Beech-Jones J agreeing) said:

What must be proved to show what decision was made and how it was made will depend upon the nature of the error. In a common case – of which the present is an example – where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, the applicant’s onus of proving the relevant facts is discharged by nothing more than the tender of the decision-maker’s statement of reasons.

168    The reference in the first sentence to what decision was made and how it was made concerns something said in LPDT at [10], that both the question of whether an error occurred and the question of whether that error was material ‘are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made’. So their Honours said repeatedly that what needed to be proved depends on the nature of the error. In [11] they characterised the case before them as concerning the decision-maker’s reasoning. That is not this case. It is true that one of the errors of the Administrative Appeals Tribunal in LPDT involved reaching a conclusion for which there was ‘not a skerrick of evidence’, but it seems that this was apparent on the face of the reasons alone. The question of what needed to be proved to support a ‘no evidence’ ground was not before the High Court in LPDT and I do not take it as authority for the proposition, perhaps surprising, that in all circumstances an error of that kind can be established by the tender of the reasons alone.

169    The point may be illustrated this way. In Ex parte Moore quoted at [66] above, Diplock LJ said that a decision-maker ‘must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value’. If the Joint Authority’s reasons did indicate that it had relied on an astrologer, then the tender of those reasons might be enough. But if the reasons indicate that the Joint Authority relied on a source that is, on the face of things, capable of supplying probative material to support a conclusion, then it would be necessary to go to the material that the Joint Authority did have to establish that it was not material of that kind. That is the situation here.

170    Asset’s oral submissions put even more weight on its conception of ‘unfalsifiable truths’. Asset’s counsel seemed to submit that since it is not open to it to contest the probative value of the Second Reading Speech, it would be unjust for the Court to have any regard to it at all. He said at one point (ts 41-42) that:

the Parliamentary statement cannot be used by the administrative decision-maker to create his unfalsifiable truth in the confines of judicial review proceedings. Indeed, if one pauses for a moment to reflect, if the truth of a Parliamentary statement could not be tested, the injustice to any individual affected adversely by that administrative decision would be manifest.

171    It appeared that Asset was submitting that it would be unfair to proceed on the basis that the Joint Authority relied on the Second Reading Speech when Asset was disabled by parliamentary privilege from impugning that speech. Counsel emphasised that it was the Joint Authority that chose to rely on the Second Reading Speech in the Decision, and as a result of that choice, the Minister ‘now invites this court to enter a world of unfalsifiable facts and unreviewable decisions under the guise of parliamentary privilege’ [ts 179].

172    Counsel went further to submit that parliamentary privilege should not be ‘just be a weapon that only works against those who have had adverse administrative decisions made against them. One can’t decide these questions not cognisant of the institutional dimension’. There are three answers to this.

173    First, in my view it would, with respect, be a mistake to give Gray J’s references in Mees to ‘unchallengeable truth’ and ‘manufactured truth’ any doctrinal significance. Considered as a whole, his Honour was simply making the point that just as one cannot challenge the truth of a parliamentary speech, so one cannot rely on the truth of the speech. That is, with respect, orthodox: see [108] and [117] above. Gray J was merely advancing a rationale for that orthodox position. It was in this sense that Gray J was deprecating the situation that would arise if a statement could be relied on as to its truth, where that truth could not be challenged. When the privilege is properly understood, that unfairness does not arise. The manner in which I have applied it above is consistent with these principles.

174    Second, to the extent that parliamentary privilege constrains a litigant in the presentation of its case, and so may be thought unfair, that is simply the outcome of applying the privilege. The same ‘unfairness’ will often arise because of the application of more commonplace privileges, such as legal professional privilege or without prejudice privilege, or by the application of public interest immunity. Inherent in the very concept of a privilege in this sense is the idea that it may adversely affect the case of the person who otherwise would tender the privileged material.

175    That is simply the outcome of the relative priorities the law places on the competing interests in question. As set out above, parliamentary privilege is a fundamental doctrine rooted in the proper functioning of Parliament and the separation of powers. If that means that on some occasions, a case cannot be put, then that reflects the relative importance that the law places on these matters. This in turn reflects Lord Browne-Wilkinson’s analysis of the competing public interests in Prebble: see [110] above.

176    I do not accept that this view reflects inattention to the ‘institutional dimension’ of the issues raised. To the contrary, as just explained, it finds its source in that dimension. Nor do I accept that assistance is derived by positing a case where a parliamentarian may place assertions of fact in parliamentary statements with the intention of relying on them elsewhere, and at the same time preventing others from challenging them. For one thing, that is simply not what has happened here. The Joint Authority has identified a speech given in the New South Wales Parliament, about a Bill that was before that Parliament, as relevant to the deliberations of the Joint Authority. It cannot be suggested, and certainly has not been established, that the speech was given with a view to immunising the Decision from challenge.

177    Counsel for Asset seemed to suggest that the Minister was urging the Court to put obstacles in the company’s way that would not also face the Minister. But in truth neither litigant can rely on the probative value of the Second Reading Speech, or seek to impugn it. That this means that Asset fails in relation to ground 2 (and part of ground 3) is a product of what the Second Reading Speech is about, what each party might want to say about it, and where the burden of proof lies.

178    Thirdly, I do not accept counsel’s suggestion that in relying on the burden of proof, the Minister is advancing an ‘overly technical’ argument [ts 178]. To the contrary, the question of where the onus of proof lies is fundamental to our system of law. The principle that in civil cases a plaintiff must prove the essential elements of the case is a basic one: see Henderson v Queensland [2014] HCA 52; (2014) 255 CLR 1 at [90] (Gageler J), quoting from Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 70 (Davidson J). It is no mere technicality – ‘Principles governing the onus and standard of proof must faithfully be applied’: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [165].

Conclusion concerning parliamentary privilege

179    I do not accept Asset’s submissions about the way parliamentary privilege operates here. It follows that ground 2 will be dismissed, and the Court will not entertain the submission advanced under ground 3 that the Second Reading Speech cannot be used to determine Parliament’s intention in enacting the EPAA Act because it cannot be supposed that members necessarily agreed with Mr Scully’s reasoning or his conclusions.

Postscript on the parliamentary privilege ground – submissions of the Speaker

180    At the final hearing, counsel for the Speaker as amicus curiae developed an argument about how the Court might dismiss the no evidence ground advanced by Asset, without having to find that parliamentary privilege precludes reference to the Second Reading Speech. The argument proceeded by a close analysis of what were said to be various steps in the Joint Authority’s factual reasoning leading to the public interest conclusion, where only one of them required any consideration of the privilege. The Speaker submitted that after giving that consideration to the matter, the role that the privilege would take in the argument was ‘almost trivial or peripheral’.

181    It is not necessary to set out counsel’s careful reasoning in detail; much of it is encompassed in the discussion above. In particular, the Speaker’s argument was founded on the following two logical steps. First, that a ‘no evidence’ ground can be defeated by pointing to evidence from which the factual finding can be reasonably inferred. And second, that pointing to the fact of what the Second Reading Speech said, and making submissions about what the Joint Authority could rationally infer from it, would not infringe parliamentary privilege, because it would concern the reasoning process of the Joint Authority and not the veracity or other probative quality of the speech.

182    It is only necessary to say that I depart from that analysis to the extent that it appeared to be directed at persuading me that I could and should avoid finding that parliamentary privilege prohibited any inquiry into the probative value of the Second Reading Speech. In the words of his counsel, the Speaker seemed eager to persuade me to deal with ground 2 in the way he had outlined so as not to ‘venture into any larger pronouncements about Parliamentary privilege’. This was said to follow from the prudential principle that the Court should not venture into constitutional issues unless it has to, which counsel submitted should apply by analogy to parliamentary privilege.

183    I am not persuaded that the analogy applies that precisely: the numerous cases cited above, including decisions of judges sitting at first instance, betray no diffidence about pronouncing on the scope of parliamentary privilege, and it was not clear why the Speaker was so concerned to avoid that happening here. The true principle is more likely to be found in the following dictum of Gaudron, Gummow and Hayne JJ in Egan v Willis at [5] (footnote removed):

Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law, but they should not be entertained in the abstract and apart from a justiciable controversy.

184    In any event, and without addressing whether it is a ‘large pronouncement’, obviously I have made a finding that parliamentary privilege disables Asset from advancing the ‘no evidence’ ground. I did so for the simple reason that the effect of the privilege, as precluding reference to the Second Reading Speech in certain ways or for certain purposes, was central to the submissions of both Asset and the Minister. Procedural fairness required me to engage with those submissions. It did not permit me to strain to pursue a course of reasoning that did not engage with the points about the privilege that were advanced by the parties to the proceeding. The Court was required to resolve the justiciable controversy put to it by the parties, and has not entertained questions of privilege in the abstract contrary to the admonishment in Egan v Willis.

185    Further, counsel for the Speaker explained that what he was attempting to do was to outline a way that the Court could dismiss Asset’s ‘no evidence’ case, without entering into questions of parliamentary privilege, by identifying that the existence of the Second Reading Speech provides the skerrick of evidence that is necessary to defeat the ground. I do not accept that way of looking at it, however because, as explained above, I consider that to conclude that the Second Reading Speech meets the necessary ‘threshold probative value’ (Splendido at [48]) requires one to enter into the probative value of the speech, however shallow that entry may be.

The balance of ground 3 – unreasonableness or irrationality

186    As has been said, two arguments advanced by Asset under ground 3 do not engage questions of parliamentary privilege, and so can be addressed on their merits. They both concern what can logically be deduced from the fact of the passage of the EPAA Act by the New South Wales Parliament.

187    The first argument is that the Joint Authority’s reasoning as to the public interest conclusion ‘infringes the logical principle of non-contradiction’. Asset submits that the Joint Authority says that it does not rely on the legal effect of the EPAA Act in its reasoning, and at the same time says that it did rely on the bipartisan passage of the Bill that became that Act as evidence of a high level of opposition in New South Wales to the exploration to be conducted under the Permit. Asset contends that if the legal effect of the passage of the EPAA Act was not considered at all, then the fact that it was passed with bipartisan support proves nothing, because the Joint Authority has not considered what that bipartisan support was for. The purpose of the passage of a Bill is found in the legal effect of the Act. So, Asset says, the reasoning of the Joint Authority is self-contradictory and therefore illogical.

188    The second argument, which has some overlap with the first, is that the EPAA Act passed by the Parliament of New South Wales does not prohibit any activities in the area of the Permit. That is unsurprising, as under the constitutional settlement mentioned earlier, that Parliament has no right to legislate in respect of the area of the Permit, which lies outside the three nautical mile (approximately five and a half kilometre) limit of New South Wales’ legislative power. Asset therefore submits that it is a non sequitur for the Joint Authority to rely on the passage of the EPAA Act. The fact that a well can be drilled in the Permit area without breaching that Act means that it has no relevance. This is said to include no relevance as to whether there is widespread public opposition to the applications.

189    The principles that apply to jurisdictional error on the basis of unreasonableness, irrationality or illogicality have been set out above. Considering Asset’s two arguments in light of them, there is no illogicality, irrationality or unreasonableness in connection with the public interest conclusion that amounts to jurisdictional error.

190    It was open to the Joint Authority to reason that the passage of the EPAA Act indicated that there was widespread public opposition in New South Wales to the exploration that was to be conducted under the Permit. Read fairly, the role of that Act in that reasoning was as follows. The Joint Authority understood that the EPAA Act would not ban that exploration as such: Decision paras 67 and 69(a). But it noted that the Act was intended to prevent development works that would support the extraction of gas from the Permit area, even though it was accepted that it might not achieve that here because gas could still be imported via Port Kembla: Decision paras 68, 69(d) and 71. When the Joint Authority said that it did not rely on the legal effect of the EPAA Act, that was in the specific context of disavowing any reliance on the validity or invalidity of that Act. The Joint Authority did not consider that it was appropriate to form a view on validity: Decision para 72. But it was not the legal effect of the Act, necessarily confined to New South Wales waters, to which it had regard. It was what could be inferred or implied from the bipartisan support for the Act, namely that there was a high level of public opposition to offshore gas exploration activities: Decision para 73.

191    It was open to the Joint Authority to reason that the passage of the EPAA Act reflected an intention on the part of New South Wales Parliament to impede gas exploration, not only in the waters over which it had legislative power, but in waters further offshore. In reaching that view, the Joint Authority relied on a statement in the Second Reading Speech about that intention; there is no call to inquire into the veracity of that statement, but the Joint Authority’s reliance on it can be noted. Having found that the passage of the EPAA Act reflected that intention, it was open to reason from that, and from the bipartisan support of members of Parliament, and from the commonplace that the role of those members was to give effect to the views of the communities they represent, that the objective of impeding gas exploration in the Permit area was widely held in the New South Wales community.

192    This is an intelligible course of reasoning and is not so illogical or irrational that no reasonable decision-maker could have followed it. To focus on the alleged contradiction between a statement that the Joint Authority has not relied on the legal effect of the EPAA Act, and the statement that the passage of the Act reflected bipartisan opposition to gas exploration in the Permit area, is to take the first statement out of its context (which concerned validity) and, in any event, to disregard the connective reasoning that has been just outlined. The Decision is not to be approached as though it were written in computer code; it is to be understood fairly and as a whole. The Joint Authority did not disable itself from making any inferences based on the passage of the EPAA Act, merely by saying in a certain limited context that it did not rely on the legal effect of the Act.

193    If I am wrong when I say that there is no logical contradiction of the kind alleged, I would still hold that no jurisdictional error arises. Not every lapse of logic is jurisdictional: SZMDS at [130]. For the reasons given, the public interest conclusion was still one that a logical and rational decision-maker would reach.

194    Asset’s second submission, that the EPAA Act prohibits nothing in the Permit Area, also disregards the connective reasoning outlined above, and overlooks the New South Wales Parliament’s apparent intention to impede offshore exploration activities, even though it has no direct power to prohibit them.

195    Ground 3 will be dismissed.

Determination as to the public interest conclusion

196    To the extent that grounds 2 and 3 of the application rely on the Judiciary Act, there is no jurisdictional error.

197    As to the ADJR Act, Asset relies on s 5(1)(e) together with s 5(2)(g) (an exercise of power that is so unreasonable that no reasonable person could have exercised the power). It can be inferred that it also relies on s 5(1)(h) (no evidence or other material to justify the making of the decision). For the same reasons given above, these grounds have not been made out.

Materiality

198    Since no error has been established, any question about the materiality of the error is hypothetical. I need only comment briefly. The authorities as to materiality are set out in section III below, where the issue is determinative, and will not be set out here. Suffice to say that had I found that the Joint Authority’s treatment of the public interest conclusion was erroneous, I would likely have found it to be material. While the Joint Authority said that each of the public interest conclusion and the financial capacity conclusion was sufficient for the applications to be refused, there is a train of reasonable conjecture by which the outcome could have been different if the public interest conclusion had not been reached on the basis of the Second Reading Speech and the passage of the EPAA Act. For, as has been said, the Joint Authority found that other aspects of the proposed work program were in the public interest: see [26] above. It is realistically possible that, had the Joint Authority not had regard to what it perceived as public opposition, its view of the public interest could have outweighed the concerns about Asset’s financial capacity that are about to be addressed. In this way, as a matter of reasonable conjecture, the outcome could have been different.

III.    The financial capacity conclusion

199    As has already been mentioned, Asset challenges the financial capacity conclusion reached by the Joint Authority on two bases: (1) that it involved a denial of procedural fairness; and (2) that the Joint Authority had no or insufficient evidence to support the conclusion, further or alternatively that it was unreasonable.

The Joint Authority’s reasoning as to financial capacity

200    It is necessary to summarise the reasoning of the Joint Authority that led to the financial capacity conclusion, in order to put those two grounds of review in context. That reasoning was considerably more involved than the reasoning that led to the public interest conclusion.

201    In the Decision, the Joint Authority considered two matters in connection with Asset’s financial capacity to complete the proposed varied work program. The first, under the heading ‘Financial uncertainty’, was the estimated cost of activities in respect of the exploration well that was to be the main outcome of the proposed work program set out in Asset’s applications. The second was under the heading ‘Titleholders’ ability to raise capital’, which is self-explanatory.

202    The Joint Authority reached conclusions adverse to the applications on both matters. This led it to reach the financial capacity conclusion, which was to the effect that its concerns about these matters provided a basis to refuse the applications.

Exploration well costs

203    The Joint Authority commenced by noting the concern raised by the Minister in the Preliminary View that the cost of the well may be significantly more than the estimated amounts given by Asset. The Joint Authority also listed contentions made by the company in submissions in response to the Preliminary View. Those submissions and the Preliminary View will be considered below, so it is not necessary to set them out in detail here. But, as a result of its focus on that exchange, the Joint Authority made the following points. (All references to $ in this judgment are to Australian dollars unless otherwise indicated, although the symbol ‘AU$’ will occasionally be used for clarity.)

(1)    The cost of the exploration well was relevant, because whether Asset would incur that cost depended on whether the Joint Authority granted the applications to vary the term and conditions of the Permit (para 83).

(2)    Asset had given different estimates of the cost of the exploration well at different times (para 84), namely:

(a)    $20 million in the first application;

(b)    $15 million in the second application; and

(c)    $20 million in a submission following the decision in Asset Energy 2023 dated 18 April 2023.

(3)    Two Advices, regarding each of the applications, which were provided to the Joint Authority by NOPTA on 4 December 2024, estimated that the cost of the proposed exploration well would be ‘$36 million (using a jack-up rig) or $53 million (using a semi-submersible rig) if the time required to drill the well is 48 days’ (para 86). The Joint Authority considered that the significant difference between those estimates and the latest $20 million estimate given by Asset indicated that the company may have underestimated the costs it would be likely to incur under the proposed varied Permit. The Advices are at the heart of Asset’s complaint about procedural fairness, and it will be necessary to return to them.

(4)    The cost of a well called ‘New Seaclem 1’ that Asset had drilled in the Permit area in 2010 was $29,977,916 (para 87). This was, again, some 50% higher than Asset’s latest cost estimate. And that was so even though the proposed well would be 3,174 metres deep, compared to 750 metres for the 2010 well.

(5)    Asset had produced an Offer that it had received to hire a drilling rig from COSL Drilling Europe (CDE). This had been given to Asset in January 2020 and was provided by Asset to NOPTA in February 2020. The Offer required Asset to give a US$16 million bank guarantee. It specified a daily rate of US$360,000 (albeit with lower rates for ‘for moving, standby, re-drill, force majeure and repair’). It posited a scenario of the hire lasting for the month of December 2020 (para 89).

(6)    The work schedule provided by Asset, however, indicated that the ‘drilling window’ would be 67 days. In any case, the Joint Authority calculated that even if the ‘drilling window’ were limited to 31 days the operational costs would be US$11.16 million or AU$16.6 million. In addition, the cash required to support the bank guarantee would be AU$22.9 million. The total cash requirement calculated by the Joint Authority on this basis was therefore AU$39.5 million. Once again, this was significantly higher than the $15 and $20 million estimates given by Asset. Even though the Joint Authority acknowledged that the Offer was unlikely to reflect the final terms of any rig hire, it considered that the disparity between the different estimates indicated that Asset had significantly underestimated the costs of the proposed Permit works (paras 90-93).

(7)    The Joint Authority did not accept Asset’s argument that the $20 million estimate was consistent with the estimated costs of other exploration wells. It noted that Asset had supplied other estimates, derived from other companies’ exploration permits, which recorded an average cost per well of $30 million (para 85). Even on these figures, $20 million was only 67% of the average estimated costs of other wells. The Joint Authority considered that the available information, including NOPTA’s estimates, indicated that the $20 million estimate was significantly less than the actual likely cost of the proposed well (para 94).

(8)    The Preliminary View, which was given to Asset on 18 September 2024, put the company on notice that the estimated cost of the exploration well was a matter to which the Joint Authority may have regard in making its decision. It was therefore open to Asset to revise its cost estimate when responding to the Preliminary View. But Asset provided no update on the $20 million estimate of 18 April 2023 (para 95).

(9)    The Joint Authority noted that Asset did not consider that more precise information regarding the costs of the proposed exploration well was required. But the Joint Authority decided that this information was relevant to its assessment of Asset’s financial capacity to undertake the proposed Permit works. It rejected Asset’s argument that detailed costings for exploration wells are not required for work bid programs such as the Permit program, and noted that NOPTA has published a fact sheet which says that an applicant will need to provide satisfactory evidence of financial resources. It said that this, together with the Minister’s comments in the Preliminary View, put Asset on notice that the costs of the exploration well was a matter to which it may have regard (paras 96-97).

(10)    The Joint Authority accepted a submission by Asset that the costs of the exploration well would be determined by the market. It seemed to then make a finding that the information to which it had regard reflected market costs (para 98).

204    After running through these matters, the Joint Authority said (para 100):

Overall, the Joint Authority considered that the Applicant may not have accurately estimated the proposed well cost, and that the actual cost may be substantially higher. The Joint Authority found that to be a consideration that weighed against exercising its discretion to vary and suspend the conditions of the Permit, and to extend the period of the Permit.

Ability to raise capital

205    The Joint Authority then turned to the second matter supporting its conclusion, namely the ability of Asset (and its joint venture partner Bounty) to raise capital to fund the cost of the proposed Permit works.

206    The Joint Authority again commenced with a concern expressed in the Preliminary View. This time, the concern was that the information provided about the ability of the titleholders to raise capital to fund the proposed Permit works was highly speculative and based on estimates of costs that were likely to be half or less than half of the true costs. The Joint Authority ran through a number of points that Asset raised in its submissions in response to that concern. Eliminating a few matters that are no longer relevant, and also repetition from points considered in respect of the first ‘premise’, the Joint Authority’s views were as follows.

207    The Joint Authority accepted that the capital raising capacity of the titleholders would depend on a wide range of factors, which ‘could be subject to a considerable degree of fluctuation and uncertainty’ (paras 105-106). However, it was concerned that NOPTA’s conclusion in an advice dated 17 October 2023 that the necessary capital would likely be raised, was based on the estimate of $15 million, which was a significant underestimate. The Joint Authority noted that guidance published by NOPTA indicated that NOPTA expected applicants to have not only the funds to meet drilling, plugging and abandonment costs, but an additional minimum 50% contingency amount (paras 108-110).

208    After reviewing the sources of capital said to be available to the titleholders in a letter dated 28 June 2023, the Joint Authority calculated that this showed an intention to raise in the order of $67 million in capital. It further noted that Asset had expressed an intention to raise $73 million. Although this seemed to satisfy NOPTA’s expectations (including as based on the Joint Authority’s cost estimate of at least $40 million), the Joint Authority noted that it did not provide for additional costs including certain regulatory requirements, ongoing operations and plugging and abandonment (paras 111-115).

209    Finally, the Joint Authority considered that Asset had not addressed a discrepancy between its intention to raise up to $73 million and the estimates it had provided of $15 million and $20 million for the cost of the exploration well and $10.5 million for other costs (para 116).

210    The Joint Authority summarised these deliberations at paragraph 121 as follows:

Overall, the Joint Authority considered that the verified information confirming that the Titleholders had continued to raise capital, supported the Titleholders having the ability to raise capital. However, the Joint Authority noted that not all of the capital raising relied on in the Applicant’s submission was supported by evidence, and a substantial portion of the capital raising relied on in the Applicant’s submissions was not allocated to funding for exploration development of oil and gas investments overall or specifically to the investment in exploration development under the Permit.

The financial capacity conclusion

211    The reasoning of the Joint Authority that concluded its consideration of Asset’s financial capacity was as follows (citation removed):

123.     The Joint Authority noted that in its December 2024 advice, having considered each of the arguments raised by the Applicant in its submissions in response to Minister Husic’s preliminary view, NOPTA considered the impact on its previous assessment. NOPTA expressed the view that, as the Applicant had previously undertaken capital raising through a staged process and had formulated a strategy to raise approximately $73 million, it considered the Titleholders were likely to be able to raise sufficient capital to complete the Permit works, even with an estimated well cost of $36 million or $53 million. However, NOPTA noted that the amount that would ultimately be raised would be subject to the conditions at the time the entities approach the market, and that the timing and quantum of funds that the entities would raise is uncertain and could impact on the Titleholders’ ability to complete the Permit works in line with the proposed work program. The Joint Authority considered that this degree of uncertainty regarding the Titleholders’ ability to raise sufficient capital to fund the Permit works emphasised the speculative nature of the capital raising proposed by the Permit.

124.     Having regard to all of the information available to it, the Joint Authority concluded that the information regarding the Applicant’s ability to raise sufficient capital to undertake the Permit works is highly speculative and that the Applicant has based its submissions on a particular estimated cost of drilling an exploration well, in circumstances where it appears that the cost of drilling the exploration well is likely to be one and a half times or more the cost that is presently estimated by the Applicant. While the Joint Authority acknowledged the Applicant's confidence that it would be able to raise sufficient capital to fund the Permit works if the Applications were granted, the Joint Authority did not consider that the information provided by the Applicant was sufficient to satisfy it that the Applicant would raise the requisite funds. The Joint Authority found that this was a consideration that weighed against granting the First Application and the Second Application.

125.     In forming a view on the Applicant's financial capacity, the Joint Authority had particular regard to the reliance on an estimated cost that appears to be substantially lower than a realistic likely cost of the exploration well, and the uncertain and speculative nature of the information regarding the Titleholders’ ability to raise the necessary capital to undertake the Permit works. The Joint Authority concluded that the financial capacity of a titleholder to complete the works required under their permit is of such importance that this consideration would, of itself, provide a sufficient basis for it to refuse the First Application and the Second Application.

Asset’s case for jurisdictional error

Procedural fairness

212    The allegation of denial of procedural fairness is raised in ground of review 4. Asset contends that it was not given the opportunity to respond to issues raised by the Joint Authority in relation to the costs of the proposed works – presumably a reference to the Joint Authority’s concerns that those costs had been significantly underestimated – or to issues raised in relation to Asset’s capacity to pay for ‘the properly estimated costs of the proposed works’.

213    The particulars to this ground are detailed, and go through the chronology of communications between NOPTA, the Joint Authority and Asset, which will be addressed below. The nub of the ground as particularised is that the Advices, which estimated well costs at ‘A$36 million using a jack-up rig or $A53 million using a semi-submersible rig’, were relied on in the Decision, but had not been put to Asset for comment.

214    The Joint Authority is said to have relied on those figures in the formation of certain concerns that were expressed in the Decision; see in particular those summarised at [203(3)], [203(7)], [204], [207] and [211] above. Asset contends that if it had been notified of these concerns, it would have made submissions to address them, and submissions about NOPTA’s approach to estimating well costs.

215    Asset thus contends that the Joint Authority denied it procedural fairness by failing to provide it with the opportunity to make submissions to the Joint Authority about its capacity ‘to raise the funds to pay for the properly estimated costs to carry out the proposed exploration well’.

Unreasonableness

216    By ground of review 5, Asset contends that the Joint Authority ‘had no or no sufficient evidence’ to conclude that it had failed to estimate the exploration well costs accurately. It also contends that the Joint Authority’s conclusion was so unreasonable that no reasonable decision-maker could have made it.

217    The particulars given for both these contentions concern the CDE Offer. Again, the factual detail given in those particulars will be set out below. One matter revealed by that detail, according to the particulars, is that the Joint Authority was wrong to treat the US$16 million bank guarantee as though it represented a cost, since it could either be used to meet the costs of the well or the money would be returned intact. The other matter for which Asset contends is that the Joint Authority therefore miscalculated the costs of the Offer; the calculation should have come to US$16.16 million, not the US$27.16 million at which the Joint Authority arrived.

218    Asset contends that if the bank guarantee had not been factored in as a cost, and if correct calculations had been performed, then the cost of US$16.16 million, equating to about AU$23 million, was comparable to the AU$20 million estimate provided by the company.

The procedural fairness ground

Principles

219    On the proper construction of the OPGGS Act, the Joint Authority was required to observe the requirements of procedural fairness when exercising its powers under s 264 and s 265. There is a presumption that this is what the statute requires: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [75]. The Minister did not suggest that the presumption is displaced here.

220    The concern of the law of procedural fairness is to ‘avoid practical injustice’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [37] (Gleeson CJ). The particular content to be given to the requirement to accord procedural fairness will depend upon the statutory framework and on the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].

221    That said, in SZSSJ the High Court stated some generally applicable principles as follows (footnotes removed):

82    … compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a ‘practical injustice’.

83    Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.

222    Similarly, in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 the Full Court said:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

223    And in Alphaone at 591-592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.

224    Both of these passages have been quoted with approval by the High Court, including in SZBEL at [29] and at [32].

225    In AB (Pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 278 CLR 300 at [25] the High Court similarly identified ‘some basic propositions about the applicable common law principles of natural justice where a person’s interests are likely to be affected by an exercise of power’ as follows:

First, such a person ‘must be given an opportunity to deal with relevant matters adverse to [their] interests which the repository of the power proposes to take into account in deciding upon its exercise’ [Kioa v West (1985) 159 CLR 550 (Kioa) at 628 per Brennan J]. Second, the person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. However, ‘in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made’ [Kioa at 629 and numerous other citations]…

226    Nevertheless, as Allsop J said in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [27] (Gyles and Conti JJ agreeing):

Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.

227    Rather, the requirement to accord procedural fairness necessitates that the person to be affected by the decision receives an opportunity which a reasonable decision-maker ought fairly to give in the totality of the circumstances: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [53]. ‘Fairness is normative, evaluative, context specific and relative.’: TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361 at [86] (Allsop CJ, Middleton and Foster JJ).

228    It is not always incumbent on a person who seeks to establish denial of procedural fairness to demonstrate what would have occurred if procedural fairness had been observed; that depends on the precise defect in the decision-making process that is alleged to have occurred: WZARH at [58]. In WZARH at [60] Gageler and Gordon JJ said:

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

229    As elucidated in subsequent High Court cases leading up to Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, the latter requirement, as to materiality, can be satisfied by positing a conjecture as to how the outcome could have been different. That is, a conjecture that is reasonable in the context of the historical facts as to the decision-making process that has been established on the balance of probabilities: see Nathanson at [55] (Gageler J). That is an undemanding standard, which does not require demonstration of how the affected person might have taken advantage of the lost opportunity to present their case: Nathanson at [33] (Kiefel CJ, Keane and Gleeson JJ). As a plurality of six High Court judges explained further in LPDT at [15] (citations removed):

Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is ‘no easy task’ for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome.

Evidentiary objection

230    Having just stated those principles, it is convenient to deal with an evidentiary objection that engages them, which with the agreement of counsel on both sides, I reserved to be resolved in these reasons.

231    The objection was to paragraph 7 of an affidavit sworn by Asset’s Managing Director, David Breeze, on 20 May 2025. In that paragraph, Mr Breeze says that, had Asset been provided with the Advices ‘and knew that more precise information regarding the cost of its proposed exploration well was required before the Joint Authority’ made the Decision, then he would have caused Asset to take certain steps, including for example to make further submissions as to whether the costs estimates in the Advices were accurate.

232    At trial, senior counsel for the Minister objected to this paragraph on the basis that it was not relevant and therefore not admissible. Senior counsel made the point, relying on Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73, Nathanson and LPDT, that it was not necessary to adduce evidence as to what the person affected by the decision could (not ‘would’) have done differently if the error had not been made. Therefore, he submitted, the evidence was not relevant.

233    Senior counsel submitted in the alternative that if the evidence was admissible, it should be excluded as prejudicial under s 135 of the Evidence Act because it had low probative value, if any. In this regard he relied on a statement from Kirby J in Hoyts Pty Ltd v Burns [2003] HCA 61 at [54], in which his Honour warned of the risks inherent in hypothetical evidence by persons of what they would have done in situations that never arose. While senior counsel did not articulate which of the ‘dangers’ identified in s 135 outweighed the impugned paragraph’s probative value (unfairly prejudicial to a party, misleading or confusing, or unduly wasting time) I take him to have advanced the first two of these (it did not seem to be suggested that the evidence was going to take up much time, especially since the Minister declined to cross examine on it).

234    I do not uphold the objection to relevance. Evidence is relevant if, assuming it is accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act s 55(1). The fact in issue here is a hypothetical past fact, namely as to whether and how the Decision could have been different had Asset received the opportunity to comment on the Advices (which it says it was denied). As senior counsel for the Minister emphasised, what has to be established is a realistic possibility as to what could have happened, rather than what would have happened, on the balance of probabilities. But Mr Breeze’s evidence about what Asset would have done, if accepted, could rationally affect the assessment of how likely it is that the company may have presented different evidence or submissions that might have led to a different result. In other words, it rationally affects the assessment of the reasonableness of the conjecture based on the historical facts: see Nathanson at [32]-[33]. While it was not incumbent on Asset to lead evidence of that kind, so that Mr Breeze’s evidence may have been redundant, that does not make it inadmissible.

235    As to the exclusion of the evidence under s 135 of the Evidence Act, I accept that the courts regularly caution against placing weight on evidence of this kind, as even the most careful and honest witness will have a tendency to reconstruct what they might have done to achieve a favourable outcome when that is a hypothetical question about the past: see the authorities discussed in Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 2) [2023] FCA 1654 at [182]-[194]. But as those authorities show, the courts are accustomed to treating evidence of this kind with the caution it deserves, and I do not accept that the risk that it will be unfairly prejudicial or misleading or confusing is such as to outweigh its probative value, slender though that value might be.

236    Paragraph 7 of Mr Breeze’s affidavit of 20 May 2025 is admitted into evidence.

Chronology of communications

237    The parties did not direct my attention to any particular features of the OPGGS Act that bore upon the content of the requirement to afford procedural fairness here. As the following reveals, the contest concerned, instead, what it was that the facts and circumstances required, in light of the course of communications between Asset and the Joint Authority. It is therefore necessary to run through the relevant communications.

238    First, Asset notes, the previous decision of the Joint Authority that was quashed in Asset Energy 2023 did not rely on well costings.

239    Asset submits that at the outset of the application process, the company was proceeding on the basis of advice from NOPTA that it should keep its proposed costings consistent with the pre-existing approved work program. Asset supports this submission by reference to the history of previous applications for variation, suspension and extension of the Permit, throughout all of which, it says, the costs estimates were kept consistent. The estimated well costs in the program that had been most recently approved before the presently contentious applications were $15 million. Counsel for Asset further pointed to an application dating from August 2012, where the estimated costs of drilling the exploration well were also $15 million.

240    An objection raised by senior counsel for the Minister in response to this submission led to clarification of the point the company sought to draw from it. Asset does not contend that it was denied procedural fairness because the Joint Authority departed from a prior practice to accept cost estimates that were consistent with previously approved work programs. Rather, this submission was relied on for the more limited purpose of establishing that there was no reason to doubt that Asset believed that the costs estimates should remain consistent.

241    In any event, Asset further points out that in February, March and July of 2020, NOPTA made four written requests for information, to each of which the company responded. That was all before the original decision was made, which was then overturned by consent in early 2023 in Asset Energy 2023. Then after that judgment, NOPTA made four further requests for information, in March, May, August and September of 2023, to each of which Asset responded.

242    In none of these requests did NOPTA directly ask for revised estimated well costs. But, as the Minister points out, in a letter dated 23 March 2023, NOPTA said that Asset may wish to provide information about a number of matters, including ‘[u]pdated information about Asset Energy’s financial and technical capacity to undertake the requested work program’. This letter was sent in order to ‘outline a way forward’ following the overturning of the original decision in Asset Energy 2023. NOPTA and Asset were agreed that updated information needed to be provided, and NOPTA suggested that this could be done either by the company making a new consolidated application, or by updating information in support of the two applications that were outstanding when the original decision was quashed. Asset chose the second of these two options.

243    Asset’s response to the invitation to provide further information about its financial capacity was to say, in a letter dated 18 April 2023, that the additional financial burden of the proposed work program was ‘very minor’, and to submit further (emphasis in original):

On the evidence before the Joint Authority, there is no basis for a conclusion that the Titleholders lack the availability of the financial means to comply with the proposed revised work program on PEP-11. This is because the evidence before the Joint Authority regarding the financial capacity available to the Titleholders establishes a history of raising capital for works regarding PEP-11.

244    Asset then made a number of points, said to be relevant to the titleholders’ ability to raise capital. It did not provide any revised well costings. But it did include, in an annexure setting out revised changes to the work program, figures for ‘indicative expenditure’; which showed an estimated cost of $20 million for the activity of drilling the exploration well.

245    NOPTA responded to this by requesting further information in a letter dated 22 May 2023. It noted the apparent increase in the estimated cost of drilling the exploration well from $15 million to $20 million and sought Asset’s confirmation of this understanding. NOPTA also asked Asset to ‘provide relevant information to demonstrate sufficient financial resources, referring to specific sections of a NOPTA fact sheet titled ‘Financial Resources’.

246    Asset replied confirming that NOPTA’s understanding was correct, but it did not provide any further information about well costs.

247    On 12 September 2023, NOPTA emailed Asset asking for, among other things, ‘estimated costs for the rig booking (including vessel safety case revision) and long lead purchases’. Asset replied on 2 October 2023, saying that the exact cost of booking the rig would be subject to a number of matters, without providing any estimated figure.

248    On 18 September 2024, NOPTA sent the Minister’s Preliminary View to Asset. As has been said, the Preliminary View was that the applications should be refused. Included in the Minister’s reasons was a reference to the various $15 million and $20 million costs estimates for the proposed well that Asset had given, and an expression of concern that the true costs may be significantly in excess of those amounts. That concern was based on the Offer and the costs and depth of the New Seaclem 1 well, with details given for both bases of concern.

249    On the basis of the Offer, the Minister estimated an actual cost of approximately $39.5 million (paras 64-68). On the basis of the New Seaclem costs, adjusted for inflation, the Minister estimated an actual cost of over $41 million (at $41,933,208 it was much closer to $42 million, but since $41 million was the round number that Asset used to describe this figure, I will do the same). This did not, however, allow for the significantly greater depth of the proposed well. In the Preliminary View the Minister said (para 80):

Overall, on the basis of the information currently available to me, my preliminary concern is that the information regarding the Applicant’s ability to raise sufficient capital to undertake the Permit works is highly speculative and is based on a particular estimated cost of drilling an exploration well, in circumstances where it appears that the cost of drilling the exploration well is likely to be double or more the cost that is presently estimated.

250    The letter from NOPTA enclosing the Preliminary View asked Asset to make any submission it wished to make ‘in respect of any or all of the matters set out in the statement of the reasons for Minister Husic’s preliminary view’ within 30 days from the date of the letter. Asset then asked for more time than that, until 15 November 2024, and NOPTA acceded to that request.

251    Asset thus responded to the Preliminary View on 15 November 2024. It said that the titleholders’ ‘indicative figure’ of $20 million was within the range of equivalent estimates provided by other titleholders. This was supported by an appendix containing a sample of the indicative costs for 21 exploration wells which had been accepted by NOPTA and the Joint Authority.

252    Asset asserted that detailed costings for exploration wells were not required for work bid programs. It further stated the titleholders’ position was as follows (para 19(e), citation removed):

the amount it will cost to drill the exploration well will be determined by the market. It can be accepted that this figure may prove to be greater than the indicative cost given in the work programme of $20m. Even so, on the responsible Commonwealth Minister’s view that the proposed well will cost c.$41m the Applications should still be granted as the Titleholders will have, and will raise, sufficient capital to complete the proposed work programs.

253    Asset’s response also emphasised the titleholders’ ‘robust plan to raise c.$73m in capital (which is still greater than 50% of the sum of $41m)’ (para 20(c)).

254    It was after that response that NOPTA gave the Advices to the Joint Authority. As has been said, there were two documents, each dated 4 December 2024. They were not provided to Asset until they were annexed to the Decision in January 2025.

255    One of the subjects covered in the Advices was the cost of the proposed exploration well. The parties agree that the two Advices were materially identical in their meaning; one simply related to the first application and the other to the second application. It will be convenient to refer only to the advice that related to the first application. It contained the following summary of NOPTA’s advice on well costings:

•    NOPTA agrees with the titleholders (paragraph 19(e) of the Response) that the cost to drill the exploration well will be determined by the market.

•    Using information available to NOPTA, it is estimated that the cost of the Seablue-1 exploration well is approximately $A36 million using a jack-up rig or A$53 million using a semi-submersible rig.

256    This summarised the following more detailed advice contained in the body of the first advice (footnotes removed):

Paragraph 19 in the Response outlines reasons (a) to (f) as to why the Joint Authority should not refuse the First and Second Applications based on the information presented to Minister Husic which suggested the applicant may not have accurately estimated the proposed well cost, and the actual cost may be substantially higher.

Paragraph 19(a), (b), (c), (d) relate to the use of indicative cost estimates within work programs for Exploration Permits. While the observations made are accurate, they do not address the likely cost that will be associated with drilling the proposed well within the timeframes presented in the application and as such do not address any matters related to financial uncertainty.

NOPTA agrees with the titleholders (paragraph 19(e) of the Response) that the cost to drill the exploration well will be determined by the market. The titleholders’ position is that it can be accepted that this figure may prove to be greater than an indicative cost of $20 million. The titleholders did not identify in the Response any issues with the methodology used by the Minister in determining the proposed well cost.

Based on permanently confidential information provided to NOPTA via regulatory submissions from titleholders (Annual Titles Assessment Reports and Daily Drilling Reports) NOPTA is aware of actual expenditure incurred on operational activities such as drilling a well. In relation to reported actual drilling costs incurred in the period between 2018 and 2023 and using the schedule provided by the titleholders on 18 April 2023 at Figure A1, NOPTA has estimated the average cost per day of conducting an exploration drilling operation. NOPTA estimates that the cost of the Seablue-1 exploration well (48 days) is $A36 million using a jack-up rig or A$53 million using a semi-submersible rig.

257    As reflected in the summary of the Decision given above, the Joint Authority relied on those cost estimates of $36 million and $53 million in reaching the financial capacity conclusion; it is convenient to repeat the internal cross references of [203(3)], [203(7)], [204], [207] and [211] above. Asset submits that this means that the Advices ‘underpinned’ the financial capacity conclusion and ‘ought to have been provided to Asset for comment and review’.

258    This all occurred, says Asset, in a context where the Joint Authority was aware that the titleholders did not consider that more precise information regarding the costs of the proposed exploration was required. The Joint Authority acknowledged in the Decision that this was Asset’s view (para 97 – see [203(9)] above). Counsel for Asset submitted that this meant that the Joint Authority knew that Asset was not aware that it was required to furnish any more precise information regarding the costs of the proposed exploration well. But I do not accept that the acknowledgment goes so far. It meant, rather, the Joint Authority recognised that Asset was resisting the proposition that it was necessary to provide more precise costings. That is not the same thing as recognising that Asset did not know that the Joint Authority might treat precise costings as being significant to its decision. What Asset knew or, more to the point, what it can be taken objectively to have known about the matters that it may have needed to address to satisfy the Joint Authority of its financial capacity, emerges from the course of communications as a whole, and will be considered below.

259    Asset also submits that financial capacity is not a mandatory consideration for the purposes of decisions made under s 264 and s 265 of the OPGGS Act let alone, more specifically, well costings. I accept this; the Minister made no attempt to contradict it. Asset points out that revised well costings were not the subject of any of the numerous requests for information made by NOPTA, although information about the negotiations to procure a drilling rig had been requested in February 2020 and again in September 2023 and responses provided. Asset also submits that the proposed changes to the work program were minor, so they did not impose any additional financial burden to the existing program, and the $20 million figure it proposed reflected existing indicative well costings. I accept that these are all matters that are contextually relevant to whether Asset could reasonably be expected to understand that it needed to provide revised well costings.

260    Asset also makes a number of submissions as to why costings did not need to be provided, but it is less clear how they are relevant to the procedural fairness ground and it is not necessary to summarise them.

261    What is important is the objective understanding the parties had as to what was likely to be material to the outcome of the applications before the Decision was handed down. For it is this that provides the context necessary to understand whether Asset suffered any practical injustice from being deprived of an opportunity that ought reasonably to have been given to respond to a point on which the Joint Authority relied in the Decision: WZARH at [60]-[61] (Gageler and Gordon JJ).

262    Asset does not accept that confidentiality precluded the earlier disclosure of the Advices, since they were disclosed with the Decision in any event. And, the company submits, even if the information that underlay the costs estimates was confidential, the substance or gist of the information could still have been disclosed to it.

Consideration of the procedural fairness ground

263    Asset submits that the history just recounted establishes that at no point in the lengthy decision-making process did NOPTA or the Joint Authority ask Asset for revised estimated costings for the proposed exploration well. That is despite the many requests for information about other matters that NOPTA did make. The company submits that it was not until the Preliminary View in September 2024 that it was made aware that there was concern about the costs estimates.

264    Had it been made aware of the figures in the Advices, Asset says, it could have either challenged them by providing different information, or it could have done what it did with the $41 million estimate given in the Preliminary View, which was to agree with the estimate and pursue its applications on that basis.

265    According to the Minister, the communications summarised above show that Asset was apprised of the issue concerning well costings, so that there was no need for the Joint Authority to make any more specific request for revised estimated costings. It was clear that the $20 million figure that Asset had provided might not be accepted, and Asset had ample opportunity to say whatever it wished to about that.

266    The Minister does not contend that the Joint Authority did not have regard to the well cost estimates in the Advices. He submits, however, that the information in the Advices was not adverse to Asset. For NOPTA had expressed agreement with Asset’s position that the costs of the exploration well would be determined by the market, and Asset had already expressed a willingness to proceed on the basis of an estimated cost of approximately $41 million.

267    In any event, according to the Minister, Asset could not meaningfully have critiqued the Advices without the confidential source information, which could not be provided to it. All it could have done would have been to provide its own, different estimate. He submits that Asset had already had several opportunities to provide its own estimates of the cost of the proposed works.

268    To the extent that Asset submits that it was not fairly apprised of the fact that well cost estimates were of concern to the Joint Authority, I do not accept that. It does appear, as the company submitted, that for much of the history of the applications and previous applications in respect of the Permit, the Joint Authority had been content to proceed on the basis of cost estimates that had previously been provided. But that was only relied on for a limited purpose: see [239]-[240] above.

269    It also appears that throughout much of the history of the applications, NOPTA on behalf of the Joint Authority did not ask for revised estimated well costs. But that is not to the point. Asset had provided the estimated costs and it was open to the Joint Authority then to accept or reject them. It did not need to expressly give Asset another opportunity to put revised costs. And in September 2023 NOPTA did ask for estimated costs for the rig booking, which Asset effectively declined to provide (although it had provided the Offer earlier, in February 2020): see [247] above.

270    But whatever the position before the Preliminary View, with the provision of that document in September 2024, NOPTA and the Joint Authority made it abundantly clear that a concern that the costs previously given by Asset were underestimates was likely to be an important factor in the Joint Authority’s decision. This concern, as the Preliminary View indicated, was likely to be adverse to Asset.

271    While NOPTA’s letter enclosing the Preliminary View gave Asset 30 days to respond, when the company asked for more time this was readily given. I infer that if even more time were needed to provide revised costings, that would have been given too. Asset did not press any case that it lacked sufficient time to respond. In fact it chose to respond by defending its $20 million ‘indicative figure’, while at the same time acknowledging that it might be an underestimate and saying further that even if the higher estimate given in the Preliminary View were adopted (approximately $41 million on Asset’s reading of it), the company would be able to raise the necessary capital (including a 50% buffer): see [251]-[253] above. By this point (September 2024), Asset had been apprised of the issue, had been given an opportunity to put on any material relevant to it, and had chosen to address the issue in a certain way.

272    The real issue is whether NOPTA’s provision of the Advices to the Joint Authority on 4 December 2024 was an additional fact that led to a denial of procedural fairness after that date. For the following reasons, I have concluded that it was.

273    First, as Asset submits, the Joint Authority relied on the information about well costings in the Advices. It referred to it in its reasons as a basis to think that the estimates that Asset had given may have been underestimates: see [203(3)] above. It also relied on the information as a basis not to accept the $20 million estimate: see [203(7)] above. These findings fed through to its conclusion that the actual cost of the well may be substantially higher than the company’s estimates, which in turn fed through to the Joint Authority’s doubts about whether the company would be able to raise the necessary funds. The concern was an important part of the conclusion that the Joint Authority reached in paragraph 124 of the Decision: see [211] above. As has been said, while the Minister submitted that the Advices were not relevantly adverse to Asset, he did not suggest that the Joint Authority did not take the undisclosed costs estimates of NOPTA into account in reaching the financial capacity conclusion. I accept Asset’s submission that the well costs estimates in the Advices ‘underpinned’ that conclusion.

274    Second, while there can be no doubt that Asset was made aware that the well costings were an issue that it needed to address, the sections of the Advices that dealt with that issue contained new information that potentially put the issue in a different light. The new information was comprised of both the specific dollar figures – $36 million for a jack-up rig and $53 million for a semi-submersible rig – and a description of the basis of those figures.

275    That basis was ‘permanently confidential information provided to NOPTA via regulatory submissions from titleholders’, comprised of Annual Titles Assessment Reports and Daily Drilling Reports ranging across 2018 to 2023. NOPTA said in the Advices that this information made it aware of ‘actual expenditure incurred on operational activities such as drilling a well’. All of these reports presented the new estimates as being based on specific and particular information provided pursuant to regulatory obligations. The information covered a range of wells over such a period of time so as to provide a large sample size of raw data on which the estimates were based. This presented the estimates as reliable and relevant.

276    The new information was specific to two different types of wells, one of which (semi-submersible) was the same kind of well that was the subject of the CDE Offer that Asset had submitted to NOPTA in late 2020. That kind of well was the basis of the upper range of the estimates, $53 million, which was significantly higher than the $41 million estimate that was the only specific figure that NOPTA had nominated to Asset for well costs. And that $41 million figure was derived from figures provided for one well only, New Seaclem-1, which had been completed in 2010, some 14 years before the time at which the new applications were under consideration. The new information was based on a broader and more recent data set. It was different in substance and different in kind to the information on which, to Asset’s knowledge, the Joint Authority was intending to rely.

277    It involves no simplistic syllogism to conclude that the estimates in the Advices, including the description of their basis, was new, substantial, relevant and reliable information that in all the circumstances set out above ought fairly to have been disclosed so that Asset had the opportunity to answer it. The Joint Authority breached the condition of its statutory powers under s 264 and s 265 of the OPGGS Act by which it was required to accord procedural fairness to Asset.

278    The Minister resists that conclusion by submitting that the well costings in the Advices were not, in truth, adverse to Asset. That is because the company had itself had acknowledged that its $20 million ‘indicative expenditure’ on the proposed well may prove to be inaccurate and that the actual cost would be determined by the market (a proposition with which the Advices expressly agreed), and because the company had indicated a willingness to proceed on the basis of the Minister’s earlier $41 million estimate. But with respect, that skips over the simple point that the upper end of the undisclosed estimates – $53 million – was significantly higher than that figure. That is so even though, as counsel for Asset rightly conceded, it was in the same ‘ballpark’ as the $36 million to $53 million range. Further, it was described as being based on information that was likely to be more reliable than the information forming the basis of the earlier estimate. From the point of view of assessing practical injustice, it was adverse to the grant of Asset’s applications.

279    It was therefore not to the point that Asset presented an argument for its capital raising abilities based on the earlier $41 million estimate. $53 million is significantly higher than $41 million. With the 50% buffer that NOPTA seemed to require, Asset would need an additional $18 million or so to be raised. Even accounting for the $73 million that Asset had advised it was capable of raising, on that revised estimate the company would fall short by $6.5 million. And a reasonable decision-maker in the Joint Authority’s position would also recognise that the basis of the new information might require an applicant to take it more seriously, so as to require a different approach.

280    It is also not to the point that the Advices indicated that NOPTA accepted some of Asset’s general points in its response to the Preliminary View; namely the trite and uninformative proposition that the ultimate cost would be determined by the market, and the broad acknowledgment that this ‘may prove to be greater than the indicative cost given in the work programme of $20m’. What Asset had not accepted, and had not been given an opportunity to address, was the more specific, and clearly adverse, point that based on regulatory reports (presumably numerous and reliable) the cost may be as high as $53 million.

281    For the same reasons, it is not to the point that Asset had hitherto refused to provide its own costs estimates revised from the $20 million. Nor that the Minister had previously expressed concern that this was an underestimate. It is one thing to be aware of an issue, and to make a decision about how to deal with it. It is another thing to be denied the opportunity to consider whether to address it in a different way in light of new information.

282    The Minister also relies on the dictum in Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73; (2004) 137 FCR 146 at [183] that ‘[t]here is no principle by reference to which internal public service memoranda in connection with an impugned decision need (except, perhaps, in extraordinary circumstances) be provided’ to the person likely to be affected by the decision. But that was said in response to a submission, put only ‘faintly’, that the actual internal reports needed to be shown to the affected persons (taxpayers). Allsop J (Ryan and Finkelstein JJ agreeing) then said (citing Alphaone) that the ‘real submission was that an issue critical and unfavourable to the taxpayers was taken into account, which issue was not, from the nature of the decision, the terms of the statute or otherwise, apparent on the known material’. Similarly here, Asset’s case focusses on disclosure of the ‘real issue’ or undisclosed fact, not on disclosure of the Advices per se. Asiamet does not assist the Minister here.

283    Nor do I accept the Minister’s submission that the Joint Authority was not required to disclose the Advices because the confidentiality of the source material for the new cost estimates meant that there was nothing that Asset could have done to meaningfully rebut them. To the extent that this is a point about whether procedural fairness was accorded, as distinct from materiality, it is inconsistent with the principles derived from WZARH, Nathanson and LPDT that are discussed above.

284    But whatever conceptual category this submission fits within – breach or materiality – I do not accept the point on its merits. The parties were not agreed as to the content and scope of NOPTA’s obligations, found in the regulations, to keep the source data from other companies’ regulatory filings confidential. They made detailed submissions on that subject. But it is not necessary to address those submissions, because I will assume, favourably to the Minister, that the information in both the Annual Titles Assessment Reports and Daily Drilling Reports was information that NOPTA was required to keep confidential from both the Joint Authority and Asset.

285    Even on that assumption, there were plainly things that Asset might have done that could have made a meaningful difference to the financial capacity conclusion. It might have provided its own detailed cost breakdown, based on up-to-date information specific to the proposed well. It might have provided further information about its capital raising prospects, based on the higher figure of $53 million plus the 50% buffer. It might have indicated that it would use a jack-up rig, thus eliminating the higher end of the spectrum of costs given in the Advices.

286    So, while knowledge of the source data may have helped Asset to respond, it was hardly essential. If the company had been given specific numbers for specific kinds of rigs, it could have addressed them in the ways suggested above, and perhaps in other ways that are not immediately obvious.

287    To the extent that the Minister’s point here is about materiality, the possibilities above are within the realm of reasonable conjecture, based on the facts proven about how the decision-making process that led to the Decision did proceed. For example, since NOPTA thought that a jack-up rig might have been used, it is reasonable to suggest that Asset might have decided to use one.

288    To the extent that it was a point about breach, the above possibilities demonstrate why it was not fair for NOPTA or the Joint Authority to withhold the new costs estimates. Whether Asset would proceed in accordance with those possibilities or in some other way would, of course, have been a matter for it to decide. But it was effectively deprived of the ability to make that decision because the Advices were not disclosed.

289    In resisting these conclusions, the Minister relied heavily on Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 230 FCR 82. But that was quite different to this case. The Government of Croatia sought the extradition of Mr Snedden to that country to face prosecution for alleged war crimes. One step that needed to be taken in the extradition process was for a minister to decide whether Mr Snedden was eligible for surrender to the Croatian authorities. The Minister for Justice decided that he was eligible. Mr Snedden sought judicial review of that decision on grounds that included an alleged denial of procedural fairness, because he was not given the opportunity to respond to information that the Croatian government had provided to the Minister for Justice.

290    The majority judgment in Snedden was careful to record (at [199]) that Mr Snedden ‘did not point to any new adverse information in the Croatian response’ and that he ‘did not suggest that there was any new information that was credible, relevant and significant to the Minister’s decision’. The letter from the Croatian authorities on which the ground relied was ‘purely responsive’. At [200] the Full Court acknowledged that if the Croatian response had:

raised any new issue, or contained any new piece of information, not previously known to Mr Snedden, that was adverse to his interests and credible, reliable and significant to the decision, procedural fairness may have required that Mr Snedden be advised of that new issue or new information.

291    The majority thus went on to decide whether the Croatian response contained any new adverse information: see [203]. But with two possible exceptions none of the new information concerned Mr Snedden himself or his personal circumstances; it was information at a high level of generality about Croatian law and criminal procedure and practice: see [207]. Also, it was directly responsive to contentions that Mr Snedden had made, and related to issues that had already been the subject of extensive submissions. To the extent that the response did relate to him personally, it was neither new nor material (even acknowledging that ‘the content of the duty to accord procedural fairness does not depend upon what Mr Snedden may or may not be able to say in reply upon being provided with adverse material’): see [209] and also the discussion of the relevant information from [201]-[221].

292    On the very different facts of this case, the well costs estimates contained in the Advices were credible, relevant, significant and adverse, for the reasons I have given. Snedden does not advance the Minister’s position here.

293    For those reasons, the Joint Authority failed to accord procedural fairness to Asset in relation to the well costing estimates in the Advices. All concerned proceeded on the basis that this would be a jurisdictional error, if material. As for the ADJR Act component of the claim, Asset has not identified which ground in s 5 it relies on, but the breach of procedural fairness is a breach of the rules of natural justice for the purposes of s 5(1)(a).

Materiality

294    Although ground 4 does not go so far as to allege that the error was jurisdictional because it was material, this was nevertheless clearly in issue at the hearing.

295    Is there a realistic possibility that the financial capacity conclusion could have been different had the Minister disclosed the well costing estimates in the Advices to Asset and given it an opportunity to comment before making the Decision? In my view, the answer to that question is ‘yes’. To the extent that the Minister makes a point about materiality when he submits that there is little that Asset could have done differently had it received the Advices, I do not accept that. I have already outlined approaches that, as a matter of reasonable conjecture, Asset could have taken to undermine or otherwise address the cost estimates in the Advices. It is also reasonable to posit that those measures might have led the Joint Authority to be satisfied that Asset had the financial capacity to complete its proposed work program. I have reached this conclusion, and my earlier conclusion that in fairness the well cost estimates in the Advices ought to have been disclosed, without relying on paragraph 7 of Mr Breeze’s affidavit of 20 May 2025 (addressed at [230]-[236] above).

296    But materiality must ultimately be addressed at the level of the Decision to refuse the applications, and here Asset cannot succeed.

297    The Joint Authority said, in terms, that each of the public interest conclusion and the financial capacity conclusion, by itself, was a sufficient reason or basis to refuse the application. It appears to me that the decision-maker’s own assessment of the significance of its conclusions is relevant; Asset did not suggest otherwise. However, nor did the Minister suggest that the assessment is determinative. In the end, where the materiality of an error is in issue, it is incumbent on the Court to decide whether there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7]. The Court must do this by reference to the historical facts that have been established on the balance of probabilities as to the decision that was made and, depending on the nature of the error, how it was made: LPDT at [10].

298    That being so, I have concluded that it is not realistically possible that the outcome could have been different had the Joint Authority accorded procedural fairness to Asset. The public interest conclusion was indeed an independent and sufficient basis for the Joint Authority to refuse the applications, irrespective of whether it also decided that Asset may not have had the financial capacity to carry out the proposed exploration. The Joint Authority says as much in the Decision and the objective facts support that statement.

299    That is because it cannot reasonably be conjectured that the Joint Authority, having determined that the variation and extension of the Permit was against the public interest, would nevertheless have granted the applications, had it been satisfied that the company had the financial capacity to undertake the revised work program. Being satisfied of that would have had no impact on the Joint Authority’s consideration of the public interest issue; Asset posited no scenario under which that might have occurred. Therefore, the public interest conclusion remaining undisturbed, had the Joint Authority been satisfied of the company’s financial capacity, it would have been satisfied that Asset could pay for, and so carry out, the very activities that it had decided were against the public interest.

300    Again, Asset did not suggest any process of ‘reasonable conjecture within the parameters set by the historical facts that have been determined’ about the way the Decision was made (see MZAPC at [38]) that could realistically have led the outcome to have been any different. Nor did Asset suggest that the error was of a kind where materiality was not necessary to be established: cf LPDT at [6].

301    Finally, although a decision may be set aside under the ADJR Act whether or not an established ground of review involves jurisdictional error, the Court may consider materiality when exercising its discretion to grant relief: see Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809; (2023) 299 FCR 50 at [267] (Charlesworth J) and the cases cited there. Alternatively, and at least for the grounds of review referred to in s 5(1)(e) and (f) (improper exercise of power and error of law), it might be said that the grounds themselves incorporate an essential element of materiality: Barngarla at [268]; Mohamed t/as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2) [2020] FCA 1749 at [38] (O’Bryan J). Asset did not suggest that, if an error was not jurisdictional because it was not material, it could nevertheless found relief under s 16 of the ADJR Act. I proceed on the basis that a want of materiality defeats relief under each of the Judiciary Act and the ADJR Act.

302    For those reasons, the Joint Authority’s error in failing to afford procedural fairness was not a jurisdictional error and does not otherwise provide a foundation for any order setting the Decision aside. I do not uphold ground 4.

Ground 5 – the CDE Offer

The parties’ cases

303    Asset submits that there was ‘no or no sufficient evidence’ before the Joint Authority to support the view that the titleholders had failed to estimate the costs of the proposed exploration well accurately. It relies first on the fact that the titleholders had estimated that the indicative cost of the well would be $20 million and did not consider that more precise information about the costs was required.

304    With respect, however, there is no recognised category of judicial review that concerns the ‘sufficiency’ of material relied on, assuming that the low threshold of it being probative has been cleared: see the principles explained above. Further, to submit that Asset put a certain factual position to the Joint Authority and assumed a position about what information was required, does not help to establish that there was no probative material supporting the financial capacity conclusion. I will disregard this first submission and focus on the balance of the submissions, which concern the CDE Offer.

305    As to that, Asset submits that the Offer indicated that the cost of chartering the CDE rig to drill the proposed exploration well would be:

(a)    a lump sum of US$3 million for mobilisation of the rig;

(b)    US$360,000 as the ‘operating daily rate’; and

(c)    a lump sum of US$2 million for demobilisation.

306    While Asset would also have been required to provide a US$16 million on demand bank guarantee to CDE as a condition of the hire, this was a security, rather than an additional cost. Asset says that the funds deposited to establish the bank guarantee could be returned in total at the end of the hire, or the bank guarantee could be drawn upon in order to meet the costs of hiring as just itemised. Its point is that, either way, the guarantee did not represent an additional cost.

307    Asset appears to submit that contrary to this, and illogically, the Joint Authority estimated the total cost as including the US$16 million guarantee as a separate component, to arrive at an estimate of US$27.16 million (AU$39.5 million) for the hire of the CDE rig (based on an estimated hire period of 31 days and disregarding the US$5 million in combined fees for mobilisation and demobilisation). Instead, if the bank guarantee had not been treated as a separate component of the costs, the estimate would have come to US$16.16 million, or approximately AU$23 million as of January 2020 (inclusive of the US$5 million mobilisation and demobilisation fees). That is not significantly higher than the indicative value of $20 million which Asset put to the Joint Authority.

308    The Minister says that the terms and availability of the bank guarantee are not apparent on the face of the Offer, so that no error is apparent on the face of the documents. In any event, he says, the Joint Authority’s view that Asset had not estimated well costs accurately did not depend on its interpretation of the Offer. It was supported by the average of reported costs provided by Asset itself ($30 million – see [203(3)] above) and the cost and lesser depth of the New Seaclem 1 well (see [203(5)] and [248] above). Also, although the Joint Authority did not expressly rely on this, there was before it a revised work schedule indicating that the drilling would take 67 days, which provided a rational basis to find that the costs would be more than Asset estimated. Asset itself had been prepared to accept the possibility that the proposed well may cost around $41 million.

309    Further, the Minister points out that the calculation Asset now impugns appeared in the Preliminary View, and Asset did not challenge it then. This is said to undermine Asset’s position now that the approach was irrational, or an obvious error and, the Minister submits, the very failure of Asset to challenge the reasoning in the Preliminary View provided a rational foundation for the Joint Authority to accept it. That failure also provides a discretionary reason why, according to the Minister, relief should be refused even if there was jurisdictional error.

Principles

310    As has already been said, there is no apparent merit in Asset’s contention that there was no probative material to found the Authority’s concern that the company had significantly underestimated the costs of the proposed exploration well. I will give that point no more attention, and proceed on the basis that the real issue arises under the second limb of ground 5, whereby Asset Energy contends that the Joint Authority’s conclusion that the company had underestimated the costs of the well was unreasonable in the sense that no reasonable person could have made it.

311    While framed that way in the originating application, as developed in the submissions this ground is an attack on the logicality of the Joint Authority’s reasoning as based on the Offer. Are they two different things? In Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; (2026) 315 FCR 435 at [21], Perry, Kennett and Shariff JJ noted (most citations removed):

the real but sometimes subtle distinction between a purported exercise of discretion (where the term ‘unreasonable’ aptly describes a decision that lacks an evident and intelligible justification) on the one hand and the formation of a state of satisfaction (where findings or reasoning that lack a probative basis lead to a decision properly described as ‘irrational, illogical or not based on findings or inferences of fact supported by logical grounds’) on the other. The Full Court in Djokovic [Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [29]-[35] discussed these two kinds of case together (as they are related emanations of the same basic principle), but was careful to note the distinct existence of both. The issues that arose in Djokovic concerned a state of satisfaction, as does the issue in the present appeal.

312    Here, while the OPGGS Act does not specifically mandate the formation by the Joint Authority of any particular state of satisfaction, the same considerations may apply because it was, in the end, satisfied as to a matter of fact, namely that Asset had significantly underestimated the well costs.

313    Be that as it may, in SZMDS, after exploring at [123]-[130] the relationship between irrationality and illogicality on the one hand and unreasonableness on the other, Crennan and Bell JJ were content to combine them when they framed the correct approach in [131] as follows:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

314    That is the approach I will take here. It is useful in that respect to have regard to the caution expressed in Djokovic at [34] as follows:

The task in assessing illogicality is not an exercise in logical dialectic. ‘Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case’: [SZMDS] at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction.

315    I have otherwise summarised relevant principles already at [65]-[69] above.

Consideration

316    The understanding of the costs component of the Offer which Asset puts in its submissions is essentially correct. The Minister does not seriously contend otherwise. The Offer appears to schedule Asset’s use of the rig for all of December 2020, being 31 days. With mobilisation of US$3 million, demobilisation of US$2 million and a daily rate of US$360,000 (or less for different activities such as moving, standby or repair), the estimated cost would have been US$16,160,000 (or less).

317    All that is known about the proposed bank guarantee is that the Offer says:

For COSL Drilling Europe to be in a position to contract with Asset Energy, there will be a requirement for an On-Demand bank guarantee with a reputable Western bank for the sum of US$16m.

318    Nevertheless, I do not accept the Minister’s submission that this means that no error is apparent on the face of the documents. Typically, a bank guarantee is an instrument by which a bank promises ‘that it will pay, to the beneficiary named in the bond, an amount up to the limit set out in the bond unconditionally or on specified conditions and without reference to the terms of the contract between the parties’: see Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85 at [2] (French CJ). It follows that it will be drawn upon, in part or in full (or not at all), to meet the liability that leads to the call, in this case the liability to pay the hiring costs. It will be returned, in part or in full. Either way, it is incorrect to treat it as an additional cost.

319    I am not satisfied, however, that the Joint Authority misunderstood the Offer, at least not in the way that Asset contends. The Joint Authority’s reasoning about it was (Decision para 91):

On the basis of the amounts specified in the offer from CDE, even if the drilling period were limited to the period of 31 days referred to in the offer (rather than the period of 67 days cited by the Applicant), that would have required the Applicant to have had approximately:

a.     USD $16 million (being approximately AUD $22.9 million as at 31 December 2019 using Wise Bank historical exchange calculator) in the form of a bank guarantee; and

b.     USD $11.16 million in operational costs (being approximately AUD $16.6 million as at 31 December 2019 using Wise Bank historical exchange calculator) (less any lower applicable rates for moving, standby, re-drill, force majeure or repair), available to it to undertake the works.

320    For one thing, favourably to Asset, the Joint Authority seems only to have factored in the daily operational costs (recognising that these may end up lower than US$360,000 per day). It can be inferred that the difference between the Joint Authority’s US$11.16 million and the US$16.16 million calculated by Asset is because the Joint Authority only had regard to ‘operational costs’ and so did not include the US$5 million total for the mobilisation and demobilisation fees.

321    More importantly, though, the Joint Authority is not saying that, in addition to that $11.16 million in operational costs, Asset was going to spend $16 million in respect of the bank guarantee, as some sort of irrecoverable cost. It is saying, rather, that Asset would need to ‘have had’ that US$16 million plus the US$11.16 million operational costs. That totals US$27.16 million, and while the Joint Authority does not quote that figure, it does refer at paragraph 92 to the currency converted equivalent ‘total of AUD$39.5 million’. Read fairly, without an eye attuned to the detection of error, this is just referring to the amount of money that Asset needed to have on hand to hire the rig (disregarding, for some reason, the US$5 million in mobilisation and demobilisation costs). It was open to the Joint Authority to reason that the company needed both the cash to pay the operational costs and $16 million in cash or some other liquid asset to provide to the bank in order to obtain the bank guarantee.

322    It is true that later, in paragraph 93, the Joint Authority does say that ‘the discrepancies between the offer from CDE and the estimate of costs provided by the Applicant may indicate that the Applicant has significantly underestimated the likely costs of the works it would be required to undertake in accordance with the Permit’. Read in isolation, this might be taken to characterise the AU$39.5 million estimated total as an irrecoverable expense. But read in the context of the next part of the Joint Authority’s reasoning, where it links these concerns with questions of Asset’s ability to raise capital, it is just as likely to be referring to the amount of money that Asset needed to have on hand to pay the operational costs and to obtain the bank guarantee. Even though the company might have been able to recover the latter amount after the hiring was over, it was open to the Joint Authority to reason that it needed to have that much money on hand in order to hire the rig.

323    If I am wrong to conclude that the Joint Authority did not misunderstand the Offer, the same reasoning still leads to the conclusion that there was no jurisdictional error. For it was still reasonably open to the Joint Authority to conclude that, whether comprised entirely of costs or not, Asset would have needed to raise US$27.16 million in order to hire CDE’s rig. And, as demonstrated above, that was the essential basis of the financial capacity conclusion. After all, from the point of view of the Joint Authority, the costs by themselves were not to the point; it was the company’s ability to pay them that mattered, and hence its access to capital. So, if the Joint Authority did indeed illogically characterise the bank guarantee as a cost, that was a lapse of logic along the way that did not result in its conclusion being so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could have reached. It was open to the Joint Authority to conclude that, one way or another, Asset still needed to have, or raise, US$27.16 million.

324    The other bases for the Joint Authority’s concern about costs on which the Minister relies, which are independent of the Offer, only reinforce the conclusion that if the Joint Authority’s treatment of the Offer was illogical, it was not such a lapse of logic as to render the financial capacity conclusion, or even the concern about costs, so illogical, irrational or unreasonable as to vitiate the Joint Authority’s exercise of statutory powers.

325    I also accept the Minister’s submission that ground 5 is significantly undermined by Asset’s failure to challenge the impugned calculation when it was presented in the Preliminary View. This both provides further grounds to conclude that the Joint Authority was rational to proceed in the way that it did, and a good discretionary reason to refuse relief, had I determined that there was an error.

Conclusion on ground 5

326    Asset has not established any errors under ground 5. If it had, for the same reasons as given in respect of ground 4, the error would not have been material.

327    I do not uphold ground 5.

Determination as to the financial capacity conclusion

328    To the extent that grounds 4 and 5 rely on the Judiciary Act, there is no jurisdictional error. Nor is there any error under ground 5 for the purposes of the ADJR Act. And while Asset has established a breach of the rules of natural justice for the purpose of s 5(1)(a) of the ADJR Act, it could not possibly have made a difference to the Decision, so relief under s 16 of that Act will be refused.

329    That being so, the only way that Asset can succeed is if it makes out its case under ground 1 that the Joint Authority misconstrued s 264 and s 265 of the OPGGS Act. To that ground I now turn.

IV.    Whether the Joint Authority Misapplied the OPGGS Act

The legislation

330    Asset’s first ground of review concerns the proper construction and application of s 264 and s 265 of the OPGGS Act. It is convenient to set those provisions out first. They appear in Ch 2 of the Act, concerning the regulation of activities relating to petroleum, at the beginning of Pt 2.11. As at the time of the applications, which is the relevant time (see Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Act 2021 (Cth), Sch 3 cl 237) they were as follows (note, the table in s 264(1) contains no item 9):

Part 2.11–Variation, suspension and exemption

Division I–Variation, suspension and exemption decisions relating to petroleum exploration permits, petroleum retention leases, petroleum production licences, infrastructure licences and pipeline licences

264     Variation, suspension and exemption – conditions of titles

When the conditions of a title may be the subject of a variation, suspension or exemption

(1)    This section applies if an event specified in the table happens, or a circumstance specified in the table exists:

(lA)     An application under item 1 of the table in subsection (1) for a variation of any of the conditions to which a permit, lease or licence is subject may be set out in the same document as an application under that item for a suspension of any of the conditions to which the permit, lease or licence is subject.

Variation, suspension or exemption

(2)     The Joint Authority may, by written notice given to the permittee, lessee or licensee:

(a)     vary; or

(b)     suspend; or

(c)     exempt the permittee, lessee or licensee from compliance with;

any of the conditions to which the permit, lease, or licence is subject, on such conditions (if any) as are specified in the notice.

(2A)     A variation under subsection (2) may be in the same notice as a suspension under that subsection.

(3)     Subsection (2) does not authorise the giving of a notice to the extent that it would affect a condition of a petroleum exploration permit, petroleum retention lease or petroleum production licence requiring compliance with the Royalty Act.

Notice of refusal of application

(3A)     If:

(a)     an application is made under item 1 of the table in subsection (1); and

(b)     the Joint Authority refuses the application;

the Joint Authority must:

(c)     by written notice given to the applicant, notify the applicant of the refusal; and

(d)     do so as soon as practicable after the refusal.

When variation takes effect

(4)     A variation of a petroleum production licence, infrastructure licence or pipeline licence under this section takes effect on the day on which notice of the variation is published in the Gazette.

(5)     A variation of a petroleum exploration permit or petroleum retention lease under this section takes effect on the day on which notice of the variation is given to the permittee or lessee.

265     Extension of term of petroleum exploration permit or petroleum retention lease–suspension of conditions

Scope

(1)     This section applies if, under section 264, the Joint Authority decides to suspend any of the conditions to which a petroleum exploration permit or petroleum retention lease is subject.

Extension of term

(2)     If the Joint Authority considers that the circumstances make it reasonable to do so, the Joint Authority may extend the term of the permit or lease by a period that the Joint Authority considers appropriate.

(3)     In considering what period of extension may be appropriate, the Joint Authority must have regard to:

(a)     the length of the period of suspension; and

(b)     such other matters (if any) as the Joint Authority considers relevant.

(4)     The extension may be:

(a)     in the notice of suspension; or

(b)     by a later written notice given to the permittee or lessee.

(5)     Subsection (2) has effect subject to this Chapter but despite:

(a)     in the case of a petroleum exploration permit—section 102; and

(b)     in the case of a petroleum retention lease—section 139.

331    Section 102 is a provision under Pt 2.2 that sets out how the duration of a petroleum exploration permit is to be worked out. Pt 2.11, Div 1 also contains provisions for the extension of the term of permits or leases in other circumstances; for the suspension of rights in the national interest; and as to what happens if a change to the boundary of the coastal waters of a State or Territory affects Commonwealth title held under the Act.

332    So, in broad terms, s 264 relevantly concerns when the Joint Authority may vary or suspend any of the conditions to which a petroleum exploration permit is subject (exemption is irrelevant and may be disregarded for present purposes), and s 265 concerns the extension of the term of a petroleum exploration permit.

The ground of review

333    It will be observed that s 265(1) of the OPGGS Act provides that s 265 ‘applies if, under section 264, the Joint Authority decides to suspend any of the conditions to which a petroleum exploration permit or petroleum retention lease is subject’. Asset’s principal contention is that therefore these provisions required the Joint Authority to make two decisions, in sequence: first, it was required to make a decision about the company’s application for variation and suspension of the conditions to which the Permit was subject; and second, if it decided to suspend any of the conditions, it was required to decide, then and only then, whether to extend the term of the Permit.

334    Ground 1 is, in full:

Error of law.

1.    In making the Decision the Joint Authority made an error of law by misconstruing its discretionary powers under sections 264 and 265 of the [OPGGS Act].

Particulars

i.    Properly construed, the discretionary power contained in s 265 of the Act to extend the term of a permit should not be exercised conjointly and on the same basis as the discretionary power under s 264 of the Act, which allows for a variation or suspension of proposed works.

ii.    Properly construed, the discretionary power contained in s 265 of the Act requires that the discretionary power in s 264 first be satisfied as an essential preliminary before the power in s 265 is engaged.

iii.    Properly construed, the discretionary power under s 264 of the Act must be exercised to determine whether a variation or suspension is appropriate. If a proposed variation or suspension is appropriate under s 264 of the Act, the question of extension under s 265 then depends upon whether it is reasonable to grant [it to] a permit holder to undertake the varied works, or whether it is necessary to accommodate (by way of an extension) a period of suspension or variation which has already been determined as appropriate.

iv.    The Joint Authority, in its Statement of Reasons at [63], adopted an approach to the discretionary powers contained in ss 264 and 265 which collapsed the analysis of matters that would be relevant under the separate steps required by those sections into a single overarching discretion. The Joint Authority considered that the matters relevant to the exercise of the discretion under s 265 were also relevant to the exercise of the discretion under s 264 as ‘any suspension of a condition of the Permit [under s 264] would be rendered futile if the period of the Permit were not extended [under s 265]’.

v.    The incorrect construction of ss 264 and 265 of the Act as adopted by the Joint Authority in sub-paragraph (iv) above, was material to the Decision in that the Joint Authority did not determine whether an extension under s 265 of the Act was justifiable given a pre-existing determination under s 264.

vi.    For the reasons set out in sub-paragraphs (i) to (v) above, the Joint Authority’s Decision is infected by an error of law.

The Joint Authority’s reasoning

335    The Joint Authority was alive to the issue of whether s 264 should be addressed prior and separately to s 265, because Asset had raised it. The relevant paragraphs from the Decision are:

62.     In its submissions in response to the statement of reasons for Minister Husic’s preliminary view, the Applicant contended that Minister Husic erred in failing to adopt a two-step approach of considering whether to decide to vary and suspend the conditions of the Permit then separately considering whether to extend the period of the Permit.

63.     As noted in paragraph 46.b above, the Joint Authority may consider the whole of a work program when reviewing a suspension or suspension and extension application. In this case, while the Joint Authority’s power to extend a permit under s 265 is only engaged if the Joint Authority has suspended a condition under s 264, any suspension of a condition of the Permit would be rendered futile if the period of the Permit were not extended, noting that the Permit has a current expiry date of 12 February 2021. For this reason, the Joint Authority considered that matters relevant to the exercise of the s 265 discretion to decide whether or not to extend the period of the Permit are also relevant to the exercise of the s 264 discretion to decide whether or not to vary and suspend the conditions of the Permit.

64.     The Applicant also contended that the s 264 discretion exists ‘for the singular purpose of allowing the Joint Authority to vary, suspend or exempt a permittee from compliance with permit conditions’ and that the Joint Authority accordingly ought not consider whether it is desirable for the Permit to exist. In circumstances where the Applicant would not be permitted to proceed with the works under the Permit if the Applications were not granted (noting that the periods within which the works were required to be undertaken have ended), the Joint Authority considered that it was open to it, and consistent with the guidance noted in paragraph 46.b above, for the Joint Authority to have regard to the whole of the work program when making its decision.

336    The cross reference to paragraph 46b in paragraph 63 concerns paragraph 5.18 of the ‘Offshore Petroleum Exploration Guideline: Work-bid’ available via NOPTA’s public website, where it can be inferred that the statement about considering the whole of a work program is found.

337    For reasons that will be explained below, also relevant to this ground is the following passage from the Decision (annexure citations removed):

Conditions of the Permit

78.     In the statement of reasons for his preliminary view, Minister Husic expressed concern that the Applicant may not be able to comply with the Permit, as he was not satisfied that the time remaining in the Permit was sufficient for the titleholders to undertake the appropriate consultation and prepare and obtain approval for an environment plan, and then drill the well and conduct the post-well evaluation.

79.     In its submissions in response to Minister Husic’s preliminary view, the Applicant contends that:

a.     if the timeframes proposed in the First Application and the Second Application are no longer appropriate, this is because of the length of time taken by the Joint Authority to make a decision;

b.     the Joint Authority has power under s 265 of the OPGGS Act to extend the timeframes for the Permit to allow for a work program to be completed, so it is within the power of the Joint Authority to extend the Permit to ensure there is sufficient time for completion of the proposed work program; and

c.     alternatively, its submission should be read as amending the First Application and the Second Application to extend the timeframes for the work program ‘by an appropriate amount depending on when a final decision with respect to the Applications is made (be it 6 months, 12 months, or 18 months etc.)’.

80.     The Joint Authority accepted that, if the work program were amended by reference to the timing of the Joint Authority’s decision, such amendment would overcome the concern expressed by Minister Husic in the statement of reasons for his preliminary view. The Joint Authority did not place any reliance on that concern in making its decision.

The parties’ cases as to the proper construction and application of s 264 and s 265

338    In ground 1 Asset says that, on the proper construction of the OPGGS Act, the Joint Authority is first required to decide whether suspension or variation is appropriate under s 264. If a decision to suspend any permit conditions is made, the Joint Authority must then decide whether this means that an extension is warranted under s 265, presumably including a determination of how long the extension should be.

339    Asset contends that the Joint Authority collapsed these two separate steps at paragraph 63 of the Decision. It did so, Asset says, by taking the matters that were relevant to the exercise of its discretion under s 265 as also being relevant to the exercise of its discretion under s 264.

340    The Minister does not take issue with the proposition that the Joint Authority’s discretionary power under s 265 only arises if a decision to suspend has been made under s 264. But, he says, the Joint Authority understood this, and did not impermissibly ‘collapse’ the analysis of matters relevant under each of s 264 and s 265. He defends the Joint Authority’s reasoning that the availability of an extension of the term of the Permit can bear upon whether a variation or suspension of a condition is futile.

341    Asset’s written and oral submissions about s 264 and s 265 went further than the ground of review in its originating application. The company’s further points can be summarised as follows.

342    Asset submits that the aims and purposes of s 264 confine the apparent breadth of the discretion conferred under it. Asset appears to be saying here that the purpose of s 264 is to address whether the relevant permit conditions are to be varied or suspended.

343    That seemed to inform a further point, which is that the power conferred under s 264 does not extend to the power to decide that it is not in the public interest for the rights conferred by the relevant permit to continue to exist. Asset went so far in its written and oral submissions as to assert that the Joint Authority questioned whether it was in the public interest for the exploration rights under the Permit ‘to exist in the first place’ (AEPS paras 71 and 73; ts 88).

344    In support of its characterisation of the aims and purposes of s 264, Asset points to s 125(2) of the OPGGS Act, which effectively requires the Joint Authority to renew a permit if all the conditions of the permit and other relevant legislative requirements have been complied with, provided it is satisfied as to the technical advice and financial resources available to the applicant. Asset submits that this provision is a strong indicator that it is also not open to the Joint Authority to consider the overall desirability of the existence of the Permit under s 264.

345    Asset submits that, contrary to what it considers to be the proper approach (as just outlined), the Joint Authority chose to assess the public interest – that is whether Asset should be permitted to continue with exploration in the Permit area at all – in order to determine what should have been the narrower question of ‘whether a minor amendment and related extension should be made to an existing permit’ (AEPS para 73, emphasis in original). Asset says that, while it was permissible for the Joint Authority to assess ‘whether any specific application for a variation, exemption, suspension and related extension is in the public interest’, it could not apply that public interest assessment at the higher level of generality of whether it is desirable for exploration in the Permit area to continue at all. Asset submits that the general question only arises in different applications for the grant of a petroleum exploration licence or for the conversion of an exploration licence into a different kind of permit.

346    The Minister submits that Asset’s attempt to characterise the applications here as being for minor amendment and extension strays into merits review. Further, it ‘ignores the time-limited nature of permits’ (Minister’s written submissions dated 2 September 2025, para 14). The Minister points out that when the Joint Authority was considering the applications, the time for Asset to undertake the activities then authorised by the Permit had already passed. It was permissible for the Joint Authority to consider, at that point, whether the activities proposed in the applications should be undertaken at all.

347    Asset also appeared to submit that, had the Joint Authority approached s 264 on a correct understanding of its limits, it would have made a determination about suspension (apparently favourable to Asset) and then would have confined its deliberations under s 265 to ‘whether an extension under s 265 of the Act was justifiable given a pre-existing determination under s 264’ (AEPS para 73). This can be understood as a point about materiality (which the Minister did put in issue).

348    Senior counsel for the Minister made the point that for any error established under ground 1 to be material, it would have to affect the Joint Authority’s decision under s 264 not to suspend any conditions of the Permit. That is because under the express terms of s 265(1), the question of whether to extend the term under s 265 can only arise if a decision has been made to suspend under s 264.

The issues that arise

349    The parties’ submissions give rise to the following issues:

(1)    Do s 264 and s 265 require a sequential decision-making process, under which the question of whether the conditions of a permit should be varied or suspended must be decided separately and prior to the determination of the question of whether, assuming that suspension will occur, the term of the permit should be extended?

(2)    If so, did the Joint Authority misunderstand or misapply the provisions by disregarding that requirement?

(3)    Further or alternatively, is it outside the scope of the statutory power conferred by s 264 for the Joint Authority to have regard to the question of whether the permit holder should be permitted to continue to conduct any exploration activities under the permit, that is, whether the permit should continue to have effect?

(4)    If so, did the Joint Authority purport to exceed the scope of its power by concluding that petroleum exploration activities under the Permit should not be permitted to continue in any form?

(5)    Were any such errors, if established, material to the outcome of the Decision?

350    I will now determine each of these issues in turn.

Determination of the issues

Do s 264 and s 265 require a sequential process?

351    Asset and the Minister were in agreement to this extent: the power to grant an extension of a permit under s 265 of the OPGGS Act only arises if the Joint Authority has first decided under s 264 to suspend a condition attaching to the permit. I accept that is so. It is the ordinary meaning of s 265(1) and it is also implicit in s 265(3)(a).

352    It may therefore be accepted that, if the Joint Authority were to make a determination to refuse to extend the term of a permit before determining related variation and suspension applications, and to reason from there that the latter applications must be refused because there is insufficient time remaining to fulfil the varied conditions or to accommodate a suspension, then that would be an error of law. It may also be accepted that if the Joint Authority were to somehow make both decisions at once, that too would be to misapply the provisions.

353    It does not follow, however, that the Joint Authority is required to undertake a process of decision-making or reasoning that expressly and hermetically seals off consideration of issues that may bear on any decision under s 265 from consideration of issues relevant to the exercise of power under s 264, with the former issues to be entertained only once a decision to grant suspension under s 264 has been made. Still less does it follow that matters germane to a decision under s 265 cannot also be relevant to any decision under s 265.

Did the Joint Authority impermissibly collapse s 264 and s 265?

354    In this case, I am not persuaded that the Joint Authority made a decision under s 265 before or at the same time as it made a decision under s 264.

355    Whether it did so is a matter for Asset to establish on the balance of probabilities, having regard to the reasoning of the Decision itself. It is trite that, in considering that, the Decision must be read fairly and as a whole, without an eye attuned to the detection of error. It is also the case that an administrative decision-maker such as the Joint Authority is not necessarily to be held to the same standard in explaining its reasons as a court of law: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]. My attention was drawn to no provision of the OPGGS Act that might affect the content of any obligation on the Joint Authority to give reasons.

356    The following relevant features of the Decision emerge when it is read in accordance with these principles.

357    The Joint Authority approached Asset’s first application as seeking a work program variation to replace a seismic survey with post-well studies and a 24-month suspension of the conditions attaching to the fourth Permit year, and a corresponding extension of the Permit term to allow the completion of an exploration well (Decision para 7). The second application similarly sought a 24-month suspension and corresponding extension on the basis of impacts of the COVID-19 pandemic. The suspension and extension aspects of the two applications were both based on the same force majeure considerations.

358    The Joint Authority said at paragraph 63 that its ‘power to extend a permit under s 265 is only engaged’ if it ‘has suspended a condition under s 264’ (emphasis added). This shows that the Joint Authority understood correctly that its power under s 265 only arises if, and after, it has decided to suspend the conditions of a permit.

359    The Joint Authority then said that ‘any suspension of a condition of the Permit would be rendered futile if the period of the Permit were not extended, noting that the Permit has a current expiry date of 12 February 2021’. That statement, too, is correct, as far as it goes.

360    For the Joint Authority, those two statements combined to form the reason for concluding that ‘matters relevant to the exercise of the s 265 discretion to decide whether or not to extend the period of the Permit are also relevant to the exercise of the s 264 discretion to decide whether or not to vary and suspend the conditions of the Permit’. That too is unobjectionable. Asset pointed to no matter that could be relevant to one of the sections but not to another.

361    Taking paragraphs 62 and 63 together, this last point is properly understood as the Joint Authority’s response to Asset’s submission that consideration of whether to extend the term of the Permit must be separate to consideration of whether to vary and suspend its conditions. The Joint Authority understood that the variation and suspension decision must precede any extension decision, but did not accept Asset’s contention that deliberation about the two decisions must be kept entirely separate. That was because matters that are relevant to one may be relevant to the other. That is essentially the same view that I have expressed in the previous section of this judgment.

362    Later, in the passage reproduced at [337] above, the Joint Authority made it plain that at that point in its reasoning, it had not yet determined that no extension of the term of the Permit would be granted. The Joint Authority did not consider that the end date of the Permit was a reason why Asset might not be able to ‘obtain approval for an environment plan, and then drill the well and conduct the post-well evaluation’, that is, to undertake the proposed revised work program. It follows that, in evaluating the proposed variations under s 264, the Joint Authority was not making any assumption that the term of the Permit would not be extended, and had not pre-emptively made any decision to that effect.

363    This understanding of the Joint Authority’s reasoning is consistent with the relationship between s 264 and s 265 described above, and does not demonstrate any misunderstanding or misapplication of those provisions.

364    As for the Joint Authority’s dispositive reasoning as to the public interest conclusion, Asset had not submitted that this demonstrates any misunderstanding or misapplication of the OPGGS Act (given my determination that the financial capacity conclusion was affected by error, but the error was not material, the financial capacity conclusion may be disregarded for present purposes). It will be recalled that the public interest conclusion was expressed in terms that ‘it would not be in the public interest to grant the First Application or the Second Application’ and that this was of itself a sufficient reason to refuse those applications (see [29] above).

365    That statement does not expressly step through an ideal path of reasoning, by which the application under s 264 would be dismissed, and it would then be observed that no decision under s 265 arises. But, in light of the reasoning that has just been canvassed, the Joint Authority is fairly understood to have proceeded that way. If it is not in the public interest to suspend any conditions, it follows that it is not in the public interest to grant the applications. That the s 265 aspect of the applications then falls away need not be expressly articulated.

366    The same may be said of the Joint Authority’s ultimate conclusion at paragraph 130 of the Decision, which was:

Taking into account the material and issues referred to in this statement of reasons, the Joint Authority decided to refuse the First Application and the Second Application under ss 264 and 265 of the OPGGS Act. The Joint Authority considered that each of the public interest consideration and the uncertainty regarding the Applicant’s financial capacity was an issue of such significance that it would constitute a basis to refuse the First Application and the Second Application, and it relied on both matters when making its decision.

367    The reference to the decision to refuse the applications ‘under ss 264 and 265 of the OPGGS Act’ does not indicate that the Joint Authority ‘collapsed’ the two decisions. In light of the other parts of its reasons that have been canvassed, it is better understood as implicit acknowledgment that all aspects of the application have been refused, where the refusal of the application under s 265 follows inevitably from the refusal of the application under s 264.

Does s 264 allow consideration of whether the Permit should continue at all?

368    It is convenient to determine issues (3) and (4) raised in paragraph [349] above together.

369    Asset’s submissions here proceeded on the basis that s 264 only authorised the Joint Authority to consider the variation or suspension of conditions of the Permit, so that it did not allow consideration of whether the company’s ‘rights’ to explore for gas in the Permit area should ‘exist in the first place’.

370    With respect, that submission overlooks the context in which the applications were being considered. For in truth, such rights as Asset had under the Permit were significantly curtailed by the fact that the Permit was limited in time. As the Minister submits, the essence of a petroleum exploration permit granted under the OPGGS Act is that it authorises exploration activities that are otherwise prohibited, and does so for a limited period of time: s 97, s 98, s 102.

371    The first application was made on 23 January 2020, when the Permit was due to expire on 12 February 2021. The then existing programs for years 4 and 5 of the Permit had not been performed, so that a 24-month suspension and extension was requested. So if the first application was not granted, Asset was not going to be in a position to obtain a renewal of the Permit under s 125 of the OPGGS Act by satisfying the Joint Authority of the limited range of matters listed in s 125(2), which include compliance with the conditions to which the permit was and had been subject.

372    At the time the second application was made, 4 February 2021, the expiry date for the Permit was imminent, and there was no scope for compliance with the conditions unless they were varied and suspended. After 12 February 2021, the Permit remained in force only by reason of s 265A, which extends the term of a permit pending the outcome of a suspension application.

373    The Joint Authority was, inevitably, conscious that the grant of the applications was necessary if the Permit were to subsist beyond that time. That is so regardless of whether the applications are properly characterised as seeking ‘a minor amendment and related extension’. Was it extraneous to the statutory power for the Joint Authority to have regard to the public interest in connection with that possible outcome?

374    Although s 264(2AA) of the OPGGS Act now lists certain matters to which the Joint Authority may have regard, as at the time of the making of the applications, the Act provided no express guidance as to what considerations, if any, the Joint Authority was required to take into account, or required not to take into account. Section 264(2) simply provides that the Joint Authority ‘may, by written notice’ relevantly vary or suspend ‘any of the conditions to which the permit, lease, or licence is subject, on such conditions (if any) as are specified in the notice’.

375    In R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 the High Court considered a discretion with a similarly undefined scope, being that conferred under s 89A(1) of the Broadcasting and Television Act 1942 (Cth) to grant or refuse the transfer of a broadcasting licence, as follows:

Nor is there to be found any express provision specifying the criteria which the Tribunal is to observe, or the matters which it is to take into account, in deciding whether to grant or refuse consent, though s 17(1) provides that for the purpose of exercising its functions the Tribunal shall have power to do all things as it thinks fit. Nevertheless, it is not in doubt that the effect of the statute is to place the Tribunal under a duty to consider an application for consent (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 ) and that the Tribunal has a discretion whether to grant or refuse its consent, the discretion to be exercised within proper limits (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 ).

Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is ‘unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view’, to use the words of Dixon J in Browning at 505. In that case his Honour went on to remark, as he had done earlier in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758 , ‘on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power’.

376    To succeed on this ground, Asset would have to point to some implied limitation, found in the subject matter, scope and purpose of the OPGGS Act, as to the factors to which the Joint Authority may legitimately have regard: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). Save for two specific matters, addressed below, Asset did not identify any such features, and its submissions were limited to the assertion that a power to vary or suspend conditions did not encompass a power to decide whether the Permit should be permitted to continue at all. But for the reasons already given, the end of the Permit would be an inevitable consequence of any decision not to suspend the conditions. There is no reason to think that the OPGGS Act required the Joint Authority to ignore that consequence, or that the Joint Authority was required not to consider whether that consequence was in the public interest.

377    The same may be said of Asset’s submission that to apply s 264 in the way that the Joint Authority did ‘is to derogate from a grant of a statutory licence’: Asset’s reply submissions para 19. The scope of the Permit was delimited by the need to observe the conditions that attached to it, and by its fixed duration. The Joint Authority’s Decision did not derogate from any of that. Asset relied on Swan Hill at 761-762, where Dixon J held that a power to make by-laws for the purpose of ‘regulating and restraining the erection and construction of buildings’ did not extend to prohibiting the relevant activities. But that decision turned on the particular text of the statute, including the scope of the word ‘regulating’, and no broader proposition can be drawn from it.

378    The first specific matter to which Asset pointed in support of its construction of s 264 was the Joint Authority’s asserted inability to take the public interest into account in deciding whether to renew a petroleum exploration permit. This has already been alluded to: under s 125(2), if an application to renew such a permit is made and all the requirements specified by that provision are satisfied, then the Joint Authority must renew the permit. The public interest is not a prescribed matter, so consideration of it under s 125(2) is effectively precluded. Asset submits that this is ‘a strong contextual indicator’ that the public interest cannot be considered under s 264.

379    That does not follow, however. Section 125(2) concerns a different situation, where the permit holder has essentially complied with all that is required of it. It is easy to understand why the legislature saw fit to constrain the Joint Authority’s discretion in that situation. That understanding of the legislative purpose is confirmed by s 125(3), which concerns a situation where the permit holder has not complied with the conditions or the legislation. In that situation, the Joint Authority must be satisfied that ‘there are sufficient grounds to warrant the granting of the renewal of the permit’, which considerably enlarges the discretion compared to s 125(2). Similarly, the situation that confronts the Joint Authority when a permit holder is applying for variation and suspension of the permit conditions under s 264 is different to that which arises under s 125(2).

380    The second specific matter on which Asset relied was the fact that s 265(2) empowers the Joint Authority to grant an extension if it ‘considers that the circumstances make it reasonable to do so’. But that provides no basis to think that the subject matter, scope and purpose of the OPGGS Act means that the public interest is a matter to which the Joint Authority must not have regard in making a decision under s 264.

381    To the contrary, s 779 relevantly provides, ‘for the avoidance of doubt’, that a provision of the OPGGS Act that requires the Joint Authority to have regard to the public interest in making a particular decision does not, by implication, prevent the Joint Authority from having regard to the public interest when making any other decision under the Act. This points in the opposite direction to any conclusion that the public interest is extraneous to the Joint Authority’s power under s 264 to vary or suspend permit conditions.

382    At one point in its submissions, Asset seemed to say that if a decision had been made under s 264 to suspend a permit condition, the Joint Authority was then required to decide whether this required an extension of the term of the permit, and, if so, for how long. In other words, Asset seemed to be saying that once the Joint Authority had decided to grant the suspension, its focus under s 265 should narrow to the question of what extension of the term of the permit, if any, was warranted by reason of the suspension that was to be given. If that was the submission, I do not accept it. While it is true that s 265(3)(a) makes the length of the period of the suspension a mandatory consideration, s 265(3)(b) also requires the Joint Authority to have regard to such other matters, if any, as it considers relevant. It would have been open to the Joint Authority to have had regard to the public interest at that point.

383    In any event, the Joint Authority did not fall into error when it considered the public interest in relation to the continuation of the Permit. The discretion under s 264 is not constrained in the way that Asset contends. That is essentially the conclusion that the Joint Authority reached at paragraph 64 of the Decision (set out at [335] above).

Materiality

384    I will briefly consider materiality in case I am wrong in concluding that the Joint Authority did not fall into error.

385    If the Joint Authority had erred by collapsing together its decisions under s 264 and 265, that error would not have been material. There is no realistic possibility that, had it separated the two decisions, it could have concluded that it was not against the public interest to vary or suspend the Permit conditions. On the view the Joint Authority had taken as to the public interest, it would still inevitably have refused the application under s 264, meaning that any decision under s 265 would have fallen away.

386    But if the error was to have taken the public interest into account for the purposes of s 264, on the assumption that this was something the Joint Authority was required to disregard, then that would have been material. It is reasonable to posit that the Joint Authority could have approved the suspension of the Permit conditions had it considered itself unable to address the public interest at that point. Then, even if that constraint did not apply to the decision under s 265, it is realistically possible that the Joint Authority would have focussed on the length of the period of suspension, that being a mandatory consideration under s 265(2), and focussed less or not at all on its concerns about the public interest. That is a reasonable conjecture of fact, even allowing for the construction of s 265 outlined at [382] above.

Conclusion on ground 1

387    The Joint Authority did not err by making a decision under s 265 before or at the same time as making a decision under s 264. Nor did it err by taking the public interest into account in connection with its decision under s 264. As such, there is no jurisdictional error to the extent that ground 1 relies on the Judiciary Act. Nor are the ADJR Act grounds made out: it can be inferred that Asset relies on s 5(1)(f) (an error of law) and perhaps also s 5(1)(e) together with s 5(2)(a) (an irrelevant consideration taken into account in the exercise of a power).

388    I do not uphold ground 1.

V.    Determination of the application for judicial review

389    Asset has established that the Joint Authority erred, in that it did not accord procedural fairness in connection with the Advices. It has not established any of the other errors for which it contends.

390    The error that has been established pertains to the financial capacity conclusion. The public interest conclusion was independent of that, and afforded a sufficient basis for the Joint Authority to refuse the applications. There is no realistic possibility that the outcome could have been different, had the Joint Authority harboured no concerns about Asset’s financial capacity to complete the proposed revised work program.

391    As a result, the application for judicial review will be dismissed.

392    The order that the Court made on 17 March 2025 suspending the operation of the Decision will be set aside, with effect from 1 July 2026, in case Asset wishes to appeal and seek, in effect, a further extension of the Permit.

393    Costs as between Asset and the Minister will follow the event, but the parties, interested person and amicus will have liberty to apply as to that, in case they wish to draw the Court’s attention to something relevant of which it is not aware.

Associate:

Dated:    17 June 2026