Background
Asset Energy Pty Ltd held offshore petroleum exploration permit NSW/PEP11, covering an area approximately 25 km off the Central Coast of New South Wales and running from roughly Newcastle’s latitude south to Sydney’s. The permit, originally granted in 1999, had been repeatedly renewed and extended. As of late 2019 only three of five required work-program years had been completed. In January 2020 and February 2021 Asset lodged two applications under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act) to vary and suspend the remaining work conditions and to extend the permit’s term, citing COVID-19 impacts, oil-price volatility, and capital-raising difficulties among other matters. A prior Joint Authority refusal in 2022 was set aside by consent in 2023 due to apprehended bias, leaving both applications outstanding.
On 16 January 2025 the Commonwealth–New South Wales Offshore Petroleum Joint Authority (constituted by the Commonwealth Minister for Industry and Science and the NSW Minister for Natural Resources) refused both applications on two independent grounds: (1) granting them was not in the public interest, in light of strong community opposition to offshore gas exploration evidenced by the NSW Parliament’s bipartisan passage of the Environmental Planning and Assessment Amendment (Sea Bed Mining and Exploration) Act 2024 (NSW) (EPAA Act) and the accompanying Second Reading Speech; and (2) Asset had not demonstrated the financial capacity to undertake the proposed revised exploration program. If unset aside, the Decision ends the permit. Asset sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), challenging both conclusions and the Joint Authority’s statutory construction.
The NSW Attorney-General appeared as an interested person and the Speaker of the NSW Legislative Assembly appeared as amicus curiae on the parliamentary privilege issues. The Court had suspended the Decision’s operation pending the judicial review proceeding.
The Court’s Holding
Jackson J dismissed the application in its entirety. On the public interest conclusion, the Court rejected Asset’s “no evidence” ground. Asset’s central strategy was to invoke parliamentary privilege as a sword: it argued that because the Joint Authority’s public interest reasoning rested on Mr Scully’s Second Reading Speech, and because parliamentary privilege (Article 9, Bill of Rights 1688; s 16 Parliamentary Privileges Act 1987 (Cth)) renders statements made in Parliament incapable of being relied upon outside Parliament as proof of their truth, there was no legally probative evidence before the Joint Authority to sustain the public interest conclusion. The Court found the opposite: parliamentary privilege prevents a court from examining or impugning the probative value of a parliamentary statement, and Asset’s case depended on challenging the truth of what Mr Scully said. It was therefore Asset, not the Joint Authority, that was barred by privilege — Asset could not discharge its onus of proving the absence of evidence by tendering the Joint Authority’s reasons alone. The unreasonableness aspect of Asset’s challenge that also depended on contradicting the parliamentary statement was equally foreclosed. The Court separately dismissed the argument that the EPAA Act’s failure to directly prohibit permit-area activities made the public interest conclusion unreasonable: the Joint Authority was entitled to reason from the Act’s bipartisan passage that there was broadly held community opposition, an inference that was reasonably open to it.
On financial capacity, the Court found that the Joint Authority had committed a procedural fairness breach by relying on revised cost estimates that were credible, relevant, significant, and adverse without first disclosing them to Asset. However, applying the materiality test from MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, the Court held the breach was not material because the public interest conclusion alone was a sufficient and independent basis for refusal. No jurisdictional error therefore arose. The Joint Authority’s substantive reasoning on financial capacity — including its conclusion that Asset had underestimated drilling costs — was supported by probative material and was reasonably open, so the unreasonableness ground also failed.
On the statutory construction ground, the Court rejected the contention that ss 264 and 265 of the OPGGS Act required strictly sequential, wholly separate decisions, or that s 264 precluded consideration of the public interest. The Joint Authority had not impermissibly collapsed the two powers, and its consideration of public interest within the s 264 analysis was lawful. Accordingly, all grounds of review failed and the application was dismissed, with the suspension of the Decision vacated effective 1 July 2026.
Key Takeaways
- Parliamentary privilege is a two-edged constraint: a party who seeks to use Art 9 of the Bill of Rights 1688 to demonstrate that a decision-maker had no probative evidence will fail where its own case requires the court to test the truth or accuracy of a parliamentary statement — privilege prevents that inquiry and, critically, prevents the applicant from discharging its onus of proof.
- A proven breach of procedural fairness does not attract relief in judicial review where the breach was not material — that is, where it cannot be said that compliance could realistically have produced a different outcome, particularly when an independent ground fully supports the decision.
- Under the OPGGS Act, a Joint Authority considering applications to vary permit conditions (s 264) and to extend a permit term (s 265) may take the public interest into account when exercising its s 264 discretion and need not treat the two provisions as hermetically sealed sequential stages.
- Community opposition to resource exploration, evidenced by bipartisan passage of legislation even where that legislation does not directly prohibit the permitted activities, can constitute a legitimate and sufficient public interest basis for refusing permit applications under the OPGGS Act.
Why It Matters
This decision is a significant ruling for offshore resource titleholders and regulators alike. It confirms that Joint Authorities assessing petroleum permit applications may give decisive weight to community sentiment as reflected in state legislative action, even where that legislation does not legally extinguish the federal permit. The case also marks an important — and cautionary — elaboration of parliamentary privilege in administrative law: litigants cannot wield privilege selectively to neutralise adverse parliamentary material while escaping the privilege’s reciprocal constraint on their own evidentiary case.
For practitioners in the resources sector, the decision underscores that public interest determinations by Joint Authorities carry wide discretion that is difficult to dislodge on “no evidence” or unreasonableness grounds, especially when underpinned by legislative and parliamentary activity. It also reinforces that procedural fairness obligations in complex regulatory decisions are real but non-automatic pathways to relief — materiality remains a formidable threshold where multiple independent grounds support the impugned decision.