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TRANSPARENCY WIN IN FIGHT TO SAVE THE BIGHT

7 April 2022

Independent Senator Rex Patrick has welcomed a decision by the acting Freedom of Information Commissioner granting access to advice prepared by the National Offshore Petroleum Titles Administrator (NOPTA) for the Joint Authority over whether Bight Petroleum’s two exploration licences in the Great Australian Bight should be extended.

“This decision should be the final nail in the coffin for drilling in the Great Australian Bight,” Senator Patrick said. “It will also serve as an important precedent that the Joint Authority can’t make exploration and drilling decisions on oil and gas tenements without public scrutiny."

Extensions to Bight Petroleum’s exploration licences have now been rejected after pressure was placed on NOPTA at Senate Estimates by Senator Patrick and after making an FOI request to see the reasoning of the Joint Authority. The data requested under FOI will provide reasons as to why extensions had been granted in the past.

Senator Patrick commenced his FOI battle with NOPTA more than two years ago, back in February 2020. NOPTA had claimed that statutory secrecy provisions relating to information provided to NOPTA by oil and gas companies extended to the advice that NOPTA provided the Joint Authority. The FOI Commissioner stated in her decision, “I do not consider that the Department can rely on s 712 of the OPGGS Act for the blanket application of the exemption in s 45 of the FOI Act to the documents at issue.” The Commissioner also rejected arguments that the information in NOPTA’s advice to the Joint Authority was commercially valuable.

The Commissioner did consider that the information was deliberative in nature but then found that the public interest required the documents to be released. In his submissions Senator Patrick had argued:

There has been considerable public concern related to potential oil drilling in the Great Australian Bight. These documents would serve to inform the public about decisions related to drilling in the Bight which has proven to be a matter of substantial public importance.

In the specific case of Bight Petroleum, there has been public concern with the fact that this company has been granted nearly ten years’ worth of extensions to conduct their work, only for the work to in no way progress in that time, all the while creating great uncertainty for the regional communities in Port Lincoln. Now that a further extension has not been granted, even more questions arise.

It is in the public interest to expose the reasons why this Government has allowed for this regional uncertainty.

Oversight of an authority’s advice, assessments and recommendation is a right. Failure to have access to this information denies community participation in decision making. It also fetters access to remedies such as judicial review.

The FOI Commissioner agreed with Senator Patrick’s argument stating in her reasoning:

I accept the applicant’s submission that the variation or extension of the exploration licences is a matter of public importance. The applicant has highlighted key sectors of the Port Lincoln economy, such as the fishing and tourism industries, that may be impacted by the exploration licences. I am satisfied these industries would have a reasonable desire to understand the decision-making process in approving further extensions to Bight Petroleum’s exploration licences and I have given this factor weight.

I am also satisfied the issue of petroleum exploration in the Great Australian Bight has generated interest in the community and I acknowledge the applicant’s submission that the community has expressed its concern regarding the environmental impacts that may be associated with mining exploration in the Great Australian Bight. Scrutiny and oversight of NOPTA’s recommendations carries public interest.

Having considered the objects of the FOI Act, I am satisfied the documents may provide the community with a greater understanding of government operations and will provide context for government decision making. These factors carry weight in circumstances where the decision to extend Bight Petroleum’s exploration licences may impact the local community.

I am not persuaded that Bight Petroleum’s business interests outweigh the public interest factors identified by the applicant and expressed in the FOI Act and FOI Guidelines. I am also not persuaded that releasing the material will impact the Department’s ability to obtain similar information in the future.

“I am pleased this sort of information can no longer be hidden from the public," Senator Patrick said. "The decision I have obtained will help other communities around Australia get access to information about approvals to explore and drill for oil in nearby oceans.”

"The next Parliament should pass a Bill granting National Heritage Status to the Great Australian Bight. This would help protect the Bight's ecostystem, and the fishing and tourism industries that depend on it, from drilling by tax avoiding multinationals."

The FOI Commissioner’s decision can be found here. NOPTA have 28 days from the decision date to lodge an appeal.