George Brandis and state attorneys-general back NSW in High Court case over coal licences

United front: Attorney-General George Brandis’ legal team have intervened in the cases involving Eddie Obeid and other Labor figures. Photo: Alex EllinghausenFederal 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.
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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 that 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 only be exercised by the courts.

But Senator Brandis’ legal team, led by Solicitor-General Justin Gleeson, SC, says the 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 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 that 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 O’Farrell government decided against it.

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

The ICAC found Mr Obeid and his middle son, Moses, corruptly agreed with former mining minister Ian Macdonald to create a coal tenement over the Bylong Valley property.

Mr Duncan and his business associates were found to have acted corruptly by concealing the Obeid family’s involvement in the tenement.

Mr Macdonald was also found to have acted corruptly by granting the Doyles Creek exploration licence to a company chaired by his “mate”, former union boss John Maitland. NuCoal subsequently acquired the licence.

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