Reasonable satisfaction of consultation: the subjective jurisdictional fact in Tipakalippa v NOPSEMA; Santos

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.