Brandis supports state in battle over coal licences

City hall feuding

FEDERAL Attorney-General George Brandis and his state counterparts have backed NSW in a High Court battle over coal licences that were torn up in the wake of corruption inquiries into Eddie Obeid and other Labor figures.

Private mining company Cascade Coal and its former director Travers Duncan, along with listed company NuCoal, have asked the High Court to overturn NSW laws stripping the companies of lucrative coal exploration licences.

The laws were passed on January 30, after the Independent Commission Against Corruption said the licences were so tainted by corruption they should be expunged or cancelled.

Senator Brandis and the state attorneys-general have intervened in support of NSW in all three cases, which will be heard together in Canberra on February 10.

The companies and Mr Duncan argue in written submissions the NSW Parliament strayed outside its powers by passing laws that amount to a punishment or penalty. They say this is an exercise of judicial power that can be exercised only by the courts.

But Senator Brandis’ legal team, led by Solicitor-General Justin Gleeson, SC, says Parliament has not strayed outside its powers under the Commonwealth Constitution.

‘‘There is no basis in the text or structure of the Commonwealth Constitution, or in state constitutional law, to prevent the NSW Parliament from enacting a law whose operation can also be characterised as judicial in nature,’’ they said.

The companies and Mr Duncan also argue the Parliament acted without power by making findings of corrupt conduct before meting out a punishment.

But Mr Gleeson and his junior, James Stellios, say the laws related to tearing up the licences do not involve the ‘‘adjudgment and punishment of criminal guilt’’ and any prosecutions following the ICAC inquiries are unaffected by the cancellation of the licences.

Separate submissions supporting NSW have also been lodged by the state attorneys-general.

NuCoal says the NSW laws stigmatise the companies. It has noted their ‘‘mum and dad’’ shareholders were also affected by the laws, although they were not a party to any wrongdoing found by the ICAC.

The ICAC had recommended the government consider compensating any innocent person affected by the laws, but the former government of Barry O’Farrell decided against it.

Cascade Coal previously held two exploration licences, including one over a Bylong Valley property owned by the family of Mr Obeid.