Federal Court of Australia

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

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the Court’s website together with this summary.

This litigation concerns a gas exploration Permit which covers waters off the central coast of New South Wales. The applicant is the majority holder of the Permit, Asset Energy Pty Ltd. The company seeks judicial review of a decision to refuse its applications to vary and suspend conditions attaching to the Permit. The decision maker was the Commonwealth-New South Wales Offshore Petroleum Joint Authority, acting under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act). The Permit is in Commonwealth offshore waters, and the Commonwealth Minister for Industry and Science has actively resisted the application.

Asset identified five grounds of challenge to the Joint Authority’s reasons for its decision. To succeed on any one or more of those grounds, Asset needs to establish that the Joint Authority committed a particular kind of error which in administrative law is called ‘jurisdictional error’, or that it committed a similar kind of error for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

In their arguments at the hearing, the parties left the first ground until last, and I will do the same here.

I will start with Asset’s second ground, then. It was that there was ‘no evidence’ to justify the Joint Authority’s conclusion that it was not in the public interest to grant the applications. Asset says that this is because the Joint Authority relied on a statement that was subject to parliamentary privilege, being something said by the New South Wales Minister for Planning and Public Spaces in the Parliament of New South Wales. I have found that parliamentary privilege does prevent any party from relying on, or questioning, that statement in this Court. But because Asset has the onus of proving that the Joint Authority fell into error, and because its argument relies on questioning the privileged statement, parliamentary privilege means this ground cannot succeed. Ground 2 will be dismissed.

Asset’s third ground was that the public interest conclusion was unreasonable. I have found that one aspect of this ground cannot be put, also due to parliamentary privilege. As to the remainder of the ground, I have found it was open to the Joint Authority to reason from the passage of the Environmental Planning and Assessment Amendment (Sea Bed Mining and Exploration) Act 2024 (NSW) that there was community opposition to the grant of the applications, even though the Joint Authority did not rely on the legal effect of the Act, and even though the Act does not prohibit activities in the Permit area. Ground 3 will be dismissed.

Asset’s fourth ground was that the Joint Authority denied it procedural fairness by relying on undisclosed revised cost estimates, to conclude that Asset lacked financial capacity to undertake the proposed Permit works. I have found that the Joint Authority did fail to provide procedural fairness: the revised costing estimates were credible, relevant, significant and adverse, and ought fairly to have been disclosed. However, I have concluded that this was not a jurisdictional error (or an error leading to an order under the ADJR Act). That is because it is not realistically possible that the decision could have been different, even if the Joint Authority had afforded procedural fairness to Asset. Ground 4 will be dismissed.

Asset’s fifth ground was that the Joint Authority wrongly estimated the costs of proposed Permit works, and therefore there was ‘no evidence’ to support its conclusion about Asset’s financial capacity. Asset also says that the conclusion was unreasonable. But I am satisfied that there was probative material before the Joint Authority to justify the conclusion. I have also found that the Joint Authority’s reasoning was reasonably open to it, and that even if the Joint Authority did misunderstand the costing materials, that did not result in its conclusion lacking a rational or logical foundation. Ground 5 will be dismissed.

Finally, Asset’s first ground was that the Joint Authority misunderstood or misapplied s 264 and s 265 of the OPGGS Act by collapsing the two sections together, and by incorrectly considering the public interest when deciding not to vary or suspend the Permit conditions. I have found that the Joint Authority did not disregard a requirement to decide s 264 and s 265 sequentially, and that it could consider the public interest in connection with its decision under s 264. Ground 1 will be dismissed.

The end result is that Asset has not succeeded in establishing any of its grounds for reviewing the Joint Authority’s decision. As a result, the application for judicial review will be dismissed, with costs.

The order that the Court made in March of last year extending the term of the Permit will, however, stay in force for the next two weeks, so that Asset can consider its options after today’s judgment.

Justice Jackson

17 June 2026