Latest / 360 with Katie Woolf / CDU law experts Elizabeth Spencer and Ros Vickers break down the legal proceedings involving Santos which has launched an appeal to regain its drilling rights for the offshore gas project

Transcript

CDU law experts Elizabeth Spencer and Ros Vickers break down the legal proceedings involving Santos which has launched an appeal to regain its drilling rights for the offshore gas project · 360 with Katie Woolf

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  Speaker 1: But yesterday we learned that there had been a decision made. Well,
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  Speaker 1: we know that Santos has launched an appeal to regain
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  Speaker 1: its drilling rights for the four point seven billion dollar
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  Speaker 1: offshore gas project. Now, Federal Court Chief Justice James Alsop
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  Speaker 1: said yesterday that he'd expedite the appeal against that decision
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  Speaker 1: that was revoked or it revoked Santos's drilling environment plan.
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  Speaker 2: Now, there is quite.
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  Speaker 1: A bit to this decision, and I guess you know,
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  Speaker 1: for me, i'd read through some of the different articles
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  Speaker 1: that had been published and certainly heard bits and pieces
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  Speaker 1: about it, and thought, I really have no idea what
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  Speaker 1: it all means. And I know that a lot of
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  Speaker 1: our listeners probably feel exactly the same way. So we
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  Speaker 1: have all been wondering what does this decision to halt
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  Speaker 1: the project mean for the local people, but also what
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  Speaker 1: does it mean more broadly when we talk about industry
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  Speaker 1: and the environment. And joining me in the studio to
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  Speaker 1: tell us a little bit more, or to hopefully give
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  Speaker 1: us a little bit of an understanding, I have got
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  Speaker 1: Charles Darwin, University Professor of Law, Liz Spencer, good morning
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  Speaker 1: to you, Good morning King, Thanks so much for your time.
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  Speaker 1: And we've also got course coordinator and lecturer in law,
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  Speaker 1: Roz Vickers.
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  Speaker 2: Good morning to you, Rosa. Thank you, yeah, thank you boy,
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  Speaker 2: it so much for your time this morning.
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  Speaker 1: Now, firstly, Roz, what does the decision by Santos to
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  Speaker 1: appeal to regain the drilling rights mean?
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  Speaker 3: Now? Well, what it means is essentially that the court
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  Speaker 3: will revisit the decision of Justice Bromberg. And the original
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  Speaker 3: decision that Justice Brombog made only a few weeks ago
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  Speaker 3: was to declare the drilling permit that Santos held to
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  Speaker 3: be invalid. And the reason that he said it was
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  Speaker 3: invalid was it the regulator, not SEEMA, didn't follow the
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  Speaker 3: laws or require the laws to be followed properly, and
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  Speaker 3: that Santos hadn't properly consulted with the Tee Islander people,
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  Speaker 3: in particular the Manupie clan about their interest in the
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  Speaker 3: sea country.
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  Speaker 1: Okay, and so I suppose a lot of people listening
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  Speaker 1: will sort of be wondering, now.
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  Speaker 2: What the appeal, Well, what the means?
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  Speaker 3: Yeah, So what the appeal really means is that the
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  Speaker 3: full Federal Court, so it will be at least three
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  Speaker 3: judges of the full Federal Court will redetermine the matter,
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  Speaker 3: and the matter will be determined by what's raised in
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  Speaker 3: the grounds of appeal or the notice of appeal, and
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  Speaker 3: that notice of appeal is really going to the fact
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  Speaker 3: that the original judge made a mistake in the way
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  Speaker 3: that he interpreted the laws and also interpreted the evidence
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  Speaker 3: that was given to him.
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  Speaker 1: And how long does a process like an appeal such
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  Speaker 1: as this, because it does sound like it's a pretty
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  Speaker 1: complicated thing.
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  Speaker 2: How long would something like that potentially tight?
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  Speaker 3: Yet, so the full Federal Court will be listed for
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  Speaker 3: two days to rehear the matter, and so that bit
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  Speaker 3: won't take so long. The original hearing I think was
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  Speaker 3: five and included a day of the court going out
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  Speaker 3: to the Tie Islands to hear the evidence on country,
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  Speaker 3: which was a first.
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  Speaker 4: The full Federal Court's.
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  Speaker 3: Been listed for two days, and it won't take so long.
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  Speaker 3: It's normally the part where the judges are mulling over
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  Speaker 3: the legal issues and delivering and determining what their judgment
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  Speaker 3: will be.
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  Speaker 4: Is the time is the time delay.
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  Speaker 1: And you know, in the meantime, I suppose a lot
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  Speaker 1: of people will be wondering what, you know, what the
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  Speaker 1: decision means? When it comes to the certainty of projects
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  Speaker 1: in the Northern Territory. I know that there's been a
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  Speaker 1: lot of discussion about gas sort of forming part of
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  Speaker 1: the economic bounce back, and so a lot of people
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  Speaker 1: will be wondering what the decision means in terms of
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  Speaker 1: certainty for those wanting to do business in the Northern Territory.
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  Speaker 3: And look at the decision is actually the decision of
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  Speaker 3: not SEEMA, which is a federal or the Commonwealth environment
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  Speaker 3: regulator for anything that's in the offshore petroleum area, so
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  Speaker 3: the Commonwealth Waters. So as far as yes, it does
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  Speaker 3: have an impact on the territory environment, but it's not
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  Speaker 3: actually a territory decision maker that's being challenged.
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  Speaker 4: So it's the.
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  Speaker 3: Implications could actually be greater for all activities in the
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  Speaker 3: Commonwealth Waters that fall under the particular regulations that a
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  Speaker 3: very specific to offshoal petroleum.
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  Speaker 5: I think that while you know, obviously we care about
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  Speaker 5: jobs and we care about attracting investment, and Santos has
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  Speaker 5: said that public a public policy issue here is what
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  Speaker 5: does project approval look like and how can business achieve certainty?
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  Speaker 5: And that's something that all Australian governments should be addressing
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  Speaker 5: consultation has been a fraud issue, as you would know,
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  Speaker 5: and it isn't settled what that looks like. But I
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  Speaker 5: think one of the great things about this ongoing discussion
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  Speaker 5: and the debate that this decision process is engendering no
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  Speaker 5: matter which way it goes. It really helps us focus
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  Speaker 5: our thinking in Yeah, we need to we need to
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  Speaker 5: respect business interests and we need certainty for investment, but
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  Speaker 5: stewardship of the environment also means not shutting out the
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  Speaker 5: voices that are most interested in the protection of the
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  Speaker 5: land and the traditional owners and.
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  Speaker 6: Making sure that there is that genuine consultation with them. Absolutely,
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  Speaker 6: and what does that look like, Yeah, and I suppose
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  Speaker 6: that's going to be, you know very much. I guess
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  Speaker 6: an interesting part of this whole process the consultation factor,
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  Speaker 6: because that at the heart of it all is, you know,
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  Speaker 6: is what needs to be happening. And like you've said there,
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  Speaker 6: if this decision then potentially is going to impact not
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  Speaker 6: just here in the Northern Territory but Commonwealth waters all
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  Speaker 6: around the place, It's going to have a much greater
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  Speaker 6: impact right around.
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  Speaker 4: Look, it could do.
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  Speaker 3: The other thing that the Commonwealth government can do is
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  Speaker 3: actually change the regulations and essentially mean that this particular
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  Speaker 3: issue about consultation will no longer be an issue.
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  Speaker 4: If the law says this is no longer an issue.
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  Speaker 3: This is how you undertake consultation and make it a
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  Speaker 3: bit clearer, then it won't be an issue.
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  Speaker 1: Yeah, right, And so is that something that potentially could
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  Speaker 1: or you know, it could be looked at or should
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  Speaker 1: be looked at.
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  Speaker 3: Something that I'm sure that the Federal government will be
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  Speaker 3: looking at right now, and it's it would be the
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  Speaker 3: normal course of action that you know, you've got a
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  Speaker 3: decision that's come from the Federal Court. What does it
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  Speaker 3: mean you're a government lawyer and you'd be looking at, well,
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  Speaker 3: this is what the regulation says. Is this what we
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  Speaker 3: want it to really mean? According to the federal law
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  Speaker 3: or the Federal Court's decision and providing advice.
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  Speaker 1: I mean, would that potentially makes things much clearer then
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  Speaker 1: for any industry wanting to do business, whether it's here
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  Speaker 1: or where ever it is around Australia, if there's very
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  Speaker 1: clear cut regulations when.
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  Speaker 2: It comes to that consultation.
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  Speaker 4: Well no, not necessarily.
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  Speaker 3: I mean it would still be up to the original
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  Speaker 3: or the decision makers to ensure that those regulations are
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  Speaker 3: being complied with. It's definitely one solution, but you've also
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  Speaker 3: got to go back to and say, well, what's the
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  Speaker 3: point of having these regulations. Is it to ensure that
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  Speaker 3: we include all of those voices that need to be
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  Speaker 3: heard in the process. And if that's the case, well
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  Speaker 3: it may be that the consultation provisions are actually widened
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  Speaker 3: and make it clearer that yes, you do need to
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  Speaker 3: insult with all traditional owners about all of their interests.
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  Speaker 4: So it could go either way.
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  Speaker 2: That's a really difficult question.
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  Speaker 1: Yeah, COMPLI well, it all sounds so complicated, and I
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  Speaker 1: guess that this is the you know, the difficult part
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  Speaker 1: for a lot of people listening, and I know even
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  Speaker 1: for me is that you you know, you understand or
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  Speaker 1: you certainly find out about these different decisions, but you
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  Speaker 1: do wonder what kind of impact they're going to have
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  Speaker 1: longer term.
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  Speaker 5: It's not a seismic shift in my view, and RAS
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  Speaker 5: might disagree. In some ways. It is a seismic shift.
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  Speaker 5: And I'm here because I'm a bit of a Justice
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  Speaker 5: Bromberg groupie, and he's known for some really interesting decisions.
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  Speaker 5: For example, the Sham decision that found that a Minister
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  Speaker 5: owed future generation's a duty of care in considering the environment,
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  Speaker 5: and this is also a really brave decision on his
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  Speaker 5: part on the part of a single judge of the
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  Speaker 5: Federal Court. Alsop in his statement saying he could understand
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  Speaker 5: and see why it needed an expedated appeal. To me,
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  Speaker 5: looks like he's almost already thinking, you know, a little
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  Speaker 5: bit more pro industry and balancing the decision more in
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  Speaker 5: his mind on that side of the equation. But I
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  Speaker 5: think what's what's really great about this is it it
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  Speaker 5: is it is. It's tiny shift. It's a tremor, maybe
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  Speaker 5: not a seismic shift, but those those small shifts move
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  Speaker 5: us forward a lot, so these decisions are super important
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  Speaker 5: from that perspective.
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  Speaker 1: Well, I really appreciate you both coming in this morning
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  Speaker 1: and giving us a bit of an understanding, certainly from
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  Speaker 1: that legal perspective, about how it's all going to work.
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  Speaker 1: So thank you so very much for your time this morning.
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  Speaker 1: Charles Dalwin, University Professor of Law, Elizabeth Spencer and also
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  Speaker 1: course coordinator and lecturer in law Ros Vickers, thank you
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  Speaker 1: so much.
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  Speaker 4: Thank you