A prominent environmental lawyer has warned that Peter Dutton’s pledge to approve a major WA gas project within 30 days of taking office will expose the project to likely legal challenges.
They argue that indicating a clear position on the decision before taking office exposes the process to claims of “apprehended bias” — effectively making a decision before the evidence has been considered.
Last week, the Coalition promised to make a decision on Woodside’s plans to extend the life of its North West Shelf project until 2070 within its first 30 days in office.
The Coalition has made fast-tracking approval processes for gas projects a key part of their energy pitch for the coming election, and there are suggestions gas could form part of Peter Dutton’s budget-in-reply speech tonight.
The deadline for a decision on the project has been repeatedly pushed out, and it’s understood Environment Minister Tanya Plibersek is yet to receive a decision brief from her department.
Fast-track pledge puts ‘lawfulness’ in question
Shadow Environment Minister Jonno Duniam promised “a Dutton Coalition government would make a decision on the North West Shelf extension within 30 days” of taking office.
Mr Dutton later stated at a press conference that “there is no conceivable reason as to why approval can’t be given”.
Opposition Leader Peter Dutton is expected to raise gas in his budget reply. (ABC News: Matt Roberts)
Director of environmental law firm Johnson Legal, Elaine Johnson, said that statement from the opposition leader was “highly problematic from a legal perspective”.
“It’s impossible to promise that a lawful approval could be granted within 30 days of taking office, without reviewing all the material underpinning the decision-making process,” she said.
“Such a promise, if made, would raise legitimate questions as to the lawfulness of any subsequent approval.“
Ms Johnson, who has previously worked with the Environment Defenders Office, said claims of apprehended bias were something many decision-makers worked hard to avoid.
“Generally, decision-makers or potential decision-makers shy away from making comments that might suggest an outcome is predetermined,” she said.
“Such statements could lead to claims of apprehended bias.
“Of course, it’s impossible to promise that a project approval will be granted, without having first considered the material underpinning the decision-making process.”
Coalition confident project will stack up legally
The federal Coalition argues that no matter what process it takes to decide the future of the North West Shelf, it is going to face legal challenges.
Mr Duniam, who would be expected to take the environment portfolio in a Dutton government, said environmental groups would look for any reason to appeal an approval.
“It doesn’t matter what you do. If it’s not to knock a project on the head or reject it, you will find yourself in court,” he said.
“It doesn’t matter how you frame up what you say, they will find a way to challenge it at law, and they have made an art form out of doing that.
“I don’t think that should mean a government should shy away and hide from a decision to try and pursue a project.”
The Coalition also argues that not enough weight is being placed on lengthy state approval processes.
The North West Shelf extension was considered by WA authorities for six years before being signed off by state environment minister Reece Whitby late last year.
Mr Duniam said 30 days was a reasonable time frame to make a decision.
“I don’t think there is any good reason why, given they have an approval over west, that we couldn’t do the same here in an expedited fashion,” he said.
“Our request to the department would be, please have that information before the minister so a decision can be made within 30 days.
“I think that’s entirely achievable, and it’s what industry and the community would expect.”
Jonno Duniam said there was no reason not to approve the gas project’s life extension. (ABC News: Matt Roberts)
Labor slams ‘moronic’ statements from opposition
Federal Labor figures were quick to criticise the 30-day commitment from the opposition, arguing it placed a possible approval in legal jeopardy.
Resources Minister Madeleine King said the comments from the opposition leader in particular were deeply concerning.
“For Peter Dutton to come out in the last couple of days with his statements is moronic, thoughtless and, frankly, just stupid,” he said.
“Furthermore, it’s reckless. It endangers any future decision that might be made in relation to this North West Shelf expansion because it introduces an idea of apprehended bias that he has made a decision before he’s looked at the evidence.
“And that is, quite frankly, the worst thing a minister can do or a government can seek to do.”
Elaine Johnson said that given the proximity of the project to a 50,000-year-old natural rock art gallery at Murujaga, it should go through proper processes.
“Murujuga is the only place on Earth where the story of the people and their changing environment has been continuously recorded through art for more than 50,000 years,” she said.
“A project that will impact a site of such national and international importance must be subject to the most rigorous level of assessment and consideration before any decision on approval is made.”
