10 of the PE Regs, required Imperial Oil to provide further information about matters required by the PE Regs to be included in the EMP. In addition, the Minister requested advice from the Northern Territory Environment Protection Agency ('NT EPA') pursuant to section 29B of the Northern Territory Environment Protection Authority Act 2012. 5. On 7 October 2024, the NT EPA provided its advice to the Minister, concluding that the environmental impacts and risks of the EMP activities were as low as reasonably practicable and acceptable. On 22 October 2024, the Minister approved the EMP pursuant to regulation 11(3)(a)(i) of the PE Regs.

1. A review of the Minister's decision to approve an EMP falls within the Tribunal's review jurisdiction in Part 3, Division 3 of the NTCAT Act. A review under the NTCAT Act is not a hearing de novo, nor is the Applicant required to identify errors made by the Minister in approving the EMP.[1] The decision of the Minister is reviewed on its merits[2] with the objective of the Tribunal to produce the "correct or preferrable decision".[3]
2. In Environment Centre Northern Territory v Minister for Environment, Climate Change and Water Security; Tamboran B2 Pty Ltd [2025] NTCAT 8, the Tribunal noted:

In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, Kiefel J (as her Honour then was) at [140] discussed the meaning of the term 'correct or preferable decision' in the context of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act'), which applies equally to the use of that term in 46(1) of the NTCAT Act.

"Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees.

1. The nature of administrative merits review was considered by the High Court of Australia in the context of the AAT Act in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250. At [14]- [15], Kiefel CJ, Keane and Nettle JJ noted:

The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was before the original decision-maker. As Bowen CJ and Dean J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original

decision-maker in accordance with the law as it applied to the decision-maker

Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.

1. The relevant provision in the NTCAT Act relating to the admission of further evidence in the exercise of the Tribunal's review jurisdiction is section 46(2). That section provides:

A proceeding in the Tribunal's review jurisdiction will include:

(a) an examination of the evidence or the material before the decision maker; and

(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for a rehearing.

1. Two conclusions may be drawn from the wording of section 46(2)(b) of the NTCAT Act. First, the inclusion of the words "in the circumstances of the particular case" evidence the fact that the Tribunal's decision to admit further evidence or material is not 'at large'. Secondly, the admission of further evidence or material is in the discretion of the Tribunal, which discretion is to be exercised with reference to the relevant provisions of the NTCAT Act, the Act or subordinate legislation that confers jurisdiction on the Tribunal, and any relevant case law.

1. The Applicant submits that, on the basis of the High Court of Australia authority in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 and a decision of the AAT in Rogers and Australian Securities and Investment Commission [2024] AATA 3161,

evidence of matters occurring after the original decision (including expert evidence drafted after the original decision) may, indeed should, be taken into account by the Tribunal in the process of informing itself.[4]

1. The Applicant maintains that the only decision before the Tribunal on review is whether the EMP meets the approval criteria in regulation 11(2) of the PE Regs. Contrary to the decision of the Tribunal in Environment Centre Northern Territory v Minister for Environment, Climate Change and Water Security; Tamboran B2 Pty Ltd [2025] NTCAT 8, regulation11(2) contains no temporal element. The admission of further evidence

or material will not change the nature of the decision or the question before the original decision-maker. 2. The Applicant submits that the Dr Vogwill's evidence is relevant to the question of whether the EMP meets the approval criteria in the PE Regs. According to the Applicant,

the Applicant's further evidence assists in the resolution of material issues in the EMP, such as whether planned activities pose a risk to the surrounding environment and communities, whether the approval of the EMP took into consideration principles of ESD [ecologically sustainable development] and ALARP [as low as reasonably practicable] and acceptability, including impacts on GDEs [groundwater dependent ecosystems], whether the risk assessment is adequate to mitigate adverse impacts to inter-aquifer connectivity, and whether water supply was addressed in the EMP appropriately. The Applicant's further evidence assists the Tribunal in determining whether the Minister could have been reasonably satisfied that the EMP met the statutory requirements ... and determining what is now the correct and preferrable decision in relation to the EMP.[5]

1. In oral submissions, the representative for Imperial Oil maintained, contrary to its written submissions, that whether the PE Regs contains a temporal element is not relevant to the resolution of the issues that arise in the application to admit further evidence. Imperial Oil argued that the admission of the evidence of Dr Vogwill and, to a lesser extent, Ms James, would change the nature of the decision or question that was before the Minister.
2. According to Imperial Oil, in allowing third party review proceedings, the legislature did not intend the parties to the review to engage in the exchange of extensive expert evidence about the issues raised in the Applicant's Amended Initiating Application. Such matters have been specifically considered in The Scientific Inquiry Into Hydraulic Fracking in the Northern Territory, Final Report, April 2018, and, in these proceedings, the advice of the NT EPA provided to the Minister on 7 October 2024.
3. Imperial Oil submitted that to allow the admission of the expert evidence of Dr Vogwill would be contrary to the objective of the Tribunal set out in section 10(d) of the NTCAT Act to:

Ensure that proceedings are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures where appropriate.

In addition, the admission of Dr Vogwill's expert evidence is inconsistent with the underlying statutory framework in regulations 8B, 9, 10 and 11 of the PE Regs, and the overriding object of the Petroleum Act 1984 of actively encouraging petroleum exploration and fracking.

1. The Minister's written and oral submissions focused primarily on whether the question before the Tribunal in the review proceedings contained a temporal element. Contrary to the conclusion of the Tribunal in Environment Centre Northern Territory v Minister for Environment, Climate Change and Water Security; Tamboran B2 Pty Ltd [2025] NTCAT 8, [31], the Minister submitted that the PE Regs "do not reveal a temporal element to the question before the Tribunal".[6]
2. In particular, the Minister submitted that the fundamental question before the Tribunal in the review proceedings is whether, in accordance with regulation 11 of the PE Regs, the EMP meets the approval criteria in regulation 9. "Regulation 11 does not disclose any statutory intention that the decision is referrable to a specific point in time. Rather, the criteria is broad and unconfined as to any specific time."[7] In addition, the Minister maintained that the further evidence the Applicant seeks to have admitted is,

evidence relating to facts which were in existence at the time of the original decision. It is not evidence of new facts or circumstances which have only come into existence since the original decision was made. Ultimately, the question for the Tribunal remains whether, in the circumstances of the proceeding, the evidence is relevant to a question in the proceeding such that the discretion should be exercised to admit that evidence.[8]

1. Section 46(2)(b) of the NTCAT Act, as has been noted above, requires the Tribunal to exercise its discretion to admit further evidence or material with reference to the relevant provisions of the NTCAT Act, the Act or subordinate legislation that confers jurisdiction on the Tribunal, and any relevant case law. Dealing first with the Petroleum Act 1984 and the Pet Regs, section 3(1) of the former stipulates that:

(1) The objective of this Act is to provide a legal framework that:

(a) encourages persons to undertake effective exploration for petroleum and to develop petroleum so that the optimal value of the resource is returned to the Territory; and

(b) provides protection to the environment of the Territory; and

(c) promotes the principles of ecologically sustainable development.

1. The Pet Regs sets out timelines within which the Minister must publish an EMP (regulation 8A(2)), the time within which interested persons may submit written comments on an EMP (regulation 8B), and, if the Minister requires further information from the interest holder pursuant to regulation 10(1), the time within which the Minister must make a decision under regulation 11(2) after the interest holder submits a modified EMP in response to a resubmission notice (regulation 11(3)). Further, regulation 11(1A) stipulates that the "Minister must take into account any comments submitted under regulation 8B when making a decision under subregulation (2) in relation to a plan published under regulation 8A".
2. While the time within which the Minister must make a decision whether to approve an EMP can be extended through the issuance of a resubmission notice, there is no power or discretion afforded to the Minister under the Pet Regs of the Petroleum Act 1984 to extend the 28-day period in regulation 8B for public comments on an EMP. If the Minister had allowed the Applicant to submit the material it now seeks to submit outside of the 28-day period stipulated in regulation 8B, arguably that would have constituted grounds for a review of the Minister's decision. The Tribunal is being asked to consider material that it was not open to the Minster to consider.
3. For whatever reason, the Applicant chose not to submit the material it now seeks to have admitted in the review proceeding within the timeframe stipulated in regulation 8B of the Pet Regs. The decisions of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 and Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 are not authority for the proposition that an interested person within the meaning of regulation 8B may use the Tribunal's review jurisdiction to remedy a failure to submit evidence or material it could have submitted within the timeframe stipulated in the Pet Regs.
4. The Tribunal acknowledges, contrary to its decision in Environment Centre Northern Territory v Minister for Environment, Climate Change and Water Security; Tamboran B2 Pty Ltd [2025] NTCAT 8 at [31] that the time-frames in the Pet Regs are not temporal in the sense that they preclude the Tribunal from considering new evidence. Such time-frames, however, are highly relevant to the exercise of the Tribunal's discretion to admit further evidence or material under section 46(2)(b) of the NTCAT Act.
5. In Frugtniet, the High Court, as has been discussed above, noted that the exercise of the Tribunal's discretion to admit further evidence or material is not at large.

It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.[9]

1. In Shi, Kiefel J noted that the "Tribunal has been said to stand in the shoes of the

original decision-maker, for the purpose of its review".[10] To admit the further evidence

of Dr Vogwill and Ms James would result in the Tribunal making a decision on review in a different context to the Minister. The Tribunal would not be standing in the shoes of the Minister. Rather, it would be standing in somewhat larger shoes. 2. In making the decision whether to approve an EMP, the Minister was required to take into account the public submissions submitted within the time-frame stipulated in regulation 8B of the Pet Regs. An exercise of the Tribunal's discretion to admit the further evidence of Dr Vogwill and Ms James, which were not submitted in accordance with the Pet Regs, would undermine the regulatory process under which the Minister, and the Tribunal, are required to operate.

1. In allowing third party review proceedings, the legislature did not intend the parties to the review to engage in the exchange of extensive expert reports not considered by the Minister in the original decision. In this proceeding, the exercise of the Tribunal's discretion to allow further evidence or material would change the nature of the decision or question that was before the Minister. The Application should be dismissed.
2. The Tribunal makes no order as to costs. This was an interlocutory matter and the question of costs, if any, is a matter for determination at the conclusion of the substantive proceedings.

1. The Form 3 Ordinary Application to admit an Unattested Declaration dated 18 March 2025 of Dr Ryan Vogwill and an Unattested Declaration dated 18 March 2025 of Ms Carina James is dismissed.
2. By no later than 4:00pm on 5 September 2025, the parties are to provide the NTCAT registry with and electronic copy of agreed timetabling orders for the filing of written submissions in the substantive proceeding.

[1] Kasper v Psychology Board of Australia [No 2] [2015] NTCAT 179, [16]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[142].

[3] Northern Territory Civil and Administrative Tribunal Act 2014, s 46(1).

[4] Applicant's Submissions on Admission of Further Evidence filed on 23 July 2025, [18].

[5] Applicant's Submissions on Admission of Further Evidence filed on 23 July 2025, [64].

[6] First Respondent's Submissions on an Application to Adduce Further Evidence dated 1 August 2025, [2(c)(i)].

[7] First Respondent's Submissions on an Application to Adduce Further Evidence dated 1 August 2025, [19].

[8] First Respondent's Submissions on an Application to Adduce Further Evidence dated 1 August 2025, [23].

[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250, [14].

[10] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [134].