Lawyers for the resources minister have conceded the Morrison government’s “regrettable” conduct in a federal court case denied environmentalists the opportunity to prevent the Coalition from signing contracts to pay Empire Energy $21m to frack the Beetaloo Basin.
The federal court is currently hearing a case lodged by the Environment Centre NT challenging a grants program designed to accelerate fracking in the Northern Territory as part of the government’s gas-led recovery. The $50m program has already awarded almost half its funds to a single company, Empire, which is seeking to drill three exploratory wells in the basin.
The central allegation in the case is that the grants were not lawful because the resources minister, Keith Pitt, failed to properly consider the risk to global heating posed by opening up the region to fracking.
Earlier this year, as lawyers on both sides prepared for the current hearing, government solicitors wrote to the Environment Centre NT and promised it had no imminent plans to sign contracts with Empire. But, without any notice, it did precisely that in September.
The court heard the government’s actions effectively denied the opportunity for the Environment Centre NT and others to seek an order from the court to prevent the signing of such agreements until the case was resolved.
The government’s actions sparked a furious response from the federal court, where justice John Griffiths said they were “unfortunate and not reflecting well on the minister”.
The issue reared its head again on Wednesday. The Environment Centre NT and other applicants now allege the government signed the contracts in “order to stymy the applicants’ claim in this litigation”. They argue the government wanted to lock the contracts in before the court had the opportunity to determine whether the grants and the grant scheme were lawful.
Tom Howe QC, representing the minister, agreed the government had failed in its duty to act as a model litigant.
Howe agreed the government’s actions had denied those mounting the challenge the opportunity to seek interlocutory relief to prevent the contracts from being signed until the case was finalised.
“What happened should not have happened. What the commonwealth should have done when the opportunity to enter the contracts was brought forward was to write to the applicant and give them notice, reasonable notice of that so that they could make an application for interlocutory relief,” he said.
“That should have happened and it didn’t and that was quite regrettable conduct that involved a departure from model litigant standards.”
But Howe denied, in strong terms, that the government had signed the contracts with the intention of thwarting the case or the applicants.
“Your honour knows that very often, when conspiracy or malice is alleged, that it can often be truly explained on the basis of error,” Howe said. “Sometimes error of a serious kind, but not of a kind that involves intended wrongdoing.”
Howe also criticised the fact that the allegation had only been levelled at the government late on Friday.
“It is a most serious allegation to raise. It’s a serious allegation to raise very late in the day, for the first time after the close of evidence and only in submissions in reply.”
But the judge said the commonwealth was guilty of the same failing, having only notified the applicants of a key part of its argument and relevant case law on Sunday.
The hearing concluded on Wednesday. Griffiths has reserved his decision.