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The former prime minister’s use of secret ministerial powers in the Asset Energy gas exploration veto cannot be defended, Commonwealth court filings reveal. By Karen Middleton.

Scott Morrison gas decision overturned

The government has officially conceded that Scott Morrison’s use of secret ministerial powers to veto a contentious gas project could not be defended and has agreed to start the assessment process again.

“The parties jointly submit that a breach of the rules of natural justice occurred,” the submission to the court says, “in connection with the making of the decision.”

It says the current minister for Resources, Madeleine King, “accepts that the Decision is infected by apprehended bias” based on comments Morrison made about the project.

This week, the Commonwealth abandoned its defence of a Federal Court challenge to the decision Morrison made last year regarding Asset Energy’s PEP11 gas exploration project proposed for the New South Wales Central Coast.

The company launched proceedings in the Federal Court in Western Australia before it was revealed publicly that Morrison had been secretly sworn in to five extra ministerial portfolios, including Resources.

The company argued it was not afforded due process. After Morrison’s secret ministerial powers emerged, it amended its court application to include an argument that the decision was unconstitutional and unlawful because Morrison’s secrecy breached the principle of “responsible government” – which holds that governments must be accountable and responsible to its electors – and he therefore did not have legal authority to make it.

The resolution of the case ends the prospect that the High Court might adjudicate on the constitutionality of Morrison’s secret appointments and on the “responsible government” principle.

The agreement between Asset Energy and the government must still be officially approved by the judge before it can take effect. The company was not seeking compensation, only that Morrison’s decision be reviewed.

That process could become politically tricky for the Albanese government, however.

Remaking the decision is complicated by the fact that the supply and price of gas is a volatile political issue. King and Prime Minister Anthony Albanese have also made comments in the past opposing the PEP11 proposal.

On February 5, 2021, Albanese condemned the proposed project as “crazy” and vowed he would not approve it in government.

“The idea that you would have exploration for oil and gas just off this coast is a disaster, even if things go as well as they possibly could have,” he said. “But if they don’t, then it’s potentially catastrophic. And that’s why a Labor government that I lead will stop this proposal dead in its tracks.”

On November 2, 2021, King issued a media release describing the project as “putting our coastline, our marine life and our economy at risk”.

The court documents show the company and the government agreed the decision should be “quashed”.

The matter is set down for hearing on February 8 but the judge may deal with it before that, out of session.

This article was first published in the print edition of The Saturday Paper on February 4, 2023 as "Morrison overturned".

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