After two takeover bids the financial benefits of the SECRET $610 million concessional loan to Genex Power Ltd passed to the foreign entity, J - Power.
Despite repeated requests that Ministers King and Gallagher to have NAIF obtain a legal opinion on the use of the taxpayers funds from the Solicitor-General there seems to be evidence that NAIF's Chief Legal Officer, Mr Chris Collins, avoided doing so.
When I learnt the Independent review of NAIF had been established, (as required by the Act), I decided the three members of the Review, (Warren Snowdon, Lisa Caffery and Peter Yu ), should be aware of how NAIF had dealt with the SECRET $610 million concessional loan.
I have pointed out that Ministers King and Gallagher, (for very obvious reasons), made no reference to Genex Power Ltd and the SECRET loan in the Terms of Reference.
I have informed the Review members that a great deal about what went on during the course of Simon Kidston and others working to dispose of the company is available on HotCopper.
It is interesting to note that the NACC Commissioner, the Hon Paul Brereton KC, seems to have done nothing more than acknowledge receipt of my report of possible corruption.
His record re the Robdebt is far from encouraging - misfeasance from within public office seems to be too hard to address.
What I have said to the review members, (and copied to some thirty others who have some awareness of what went on), is below:-The Independent Review of the Northern Australia Infrastructure Facility Act 2016
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Howard Patrick<[email protected]>
Wed, Sep 25, 12:01 PM (1 day ago)
2024 INDEPENDENT REVIEW OF THE NAIF ACT
Dear Warren Snowden, Professor Peter Yu and Dr Lisa Caffery
ABROGATION OF MINISTERIAL RESPONSIBILITIES BY MINISTERS KING AND GALLAGHER WITH RESPECT TO THE USE OF COMMONWEALTH OF AUSTRALIA FUNDS PROVIDED TO NAIF.
ABROGATION OF THE RESPONSIBILITIES OF THE HEADS OF THE MINISTER’S RESPECTIVE DEPARTMENTS, THE CHAIRPERSON, CEO AND CHIEF LEGAL OFFICER OF NAIF AND THE CEO OF THE AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION, (ASIC), TO COMPREHENSIVELY INFORM THE MINISTERS ON THE ABOVE MATTER.
You have been appointed by Ministers King and Gallagher to undertake the review prescribed by the NAIF Act 2016.
The terms of reference for the review are wide and varied. I am bringing to your attention particular matters concerning NAIF’s most substantial loan, (investment), the $610 million concessional loan originally made to Genex Power Ltd. A loan subsequently transferred to a large Japanese corporation J - Power; (JPGA Partners Pty Ltd).
There exists very substantial evidence that Ministers King and Gallagher were not willing to direct NAIF to request and obtain legal opinions concerning the Facilities largest investment from the Solicitor-General. They, the Ministers, NAIF and ASIC have not given explanations for what seems to have been derelictions of duty or what might also be described as abrogations of their respective duties.
For the committee to not to have been directed by the responsible Minister's to review the history of the administration of this substantial investment is a further dereliction of duty on their, (the, ministers) parts and will become a major shortcoming of your December 2024 Report if it is not investigated and discussed. Your panel has been put in a difficult situation; how will you do your task without revealing the abrogation of those minister’s responsibilities?
I have, on two separate occasions, challenged the administration of this concessional loan.
In July 2022 I challenged a proposed takeover of Genex Power Ltd by two individuals; Mr Scott Farquhar, his life partner and business partner, Ms Kim Jackson; (Atlassian Corporation). At all times NAIF acted as if the transaction with Skip Capital was legal.
I pointed out to the two ministers, the Chairperson and CEO of NAIF and the CEO of ASIC that the NAIF Act 2016 made it illegal for the $610 million loan to be made available for the benefit of individuals.
I requested that NAIF obtain a legal opinion from the Solicitor- General. As far as I know the ministers, NAIF and ASIC did not request and/or obtain an opinion from the Solicitor -General. What I do know is that the takeover offer was withdrawn, on the pretext of unforeseen costs, (relatively minor), because of the egress of water into the Main Access Tunnel for the Kidston Pumped Hydro project.
What the above revealed is that all those parties associated with the transaction were prepared to accept a breach of the Act.
Earlier this year it was announced that another takeover offer was being made for Genex Power Ltd by the large Japanese corporations; (J- Power).
As in the Skip Capital, (Jackson/Farquhar), takeover bid all the parties associated with the transaction chose to adopt the approach;“we don’t know if the transaction is legal but we will act as if it is”.
I challenged the takeover, with a Report of Misconduct to ASIC, because of the way the market had been manipulated in the months leading up to the takeover. Not surprisingly, ASIC determined that my report would be ignored.
When ASIC did what ASIC invariably does, ignore complaints, I took up with Ministers King and Gallagher, NAIF, ASIC and the Attorney-General, (Dreyfus), the issue of whether or not it was legal for the $610 million loan to be transferred to the Japanese corporation. Just as I did in 2022, I requested these parties obtain a legal opinion from the Solicitor-General.
I have no evidence that NAIF obtained Solicitor-General opinions or was provided with an opinion by the Australian Government Solicitor. Many officers in the Australian Government Solicitor’s Office were well aware of the situation but seemingly no action was taken by the e Australian Government Solicitor to enter into a dialogue with the NAIF; in particular NAIF’s chief Legal Officer It seems this was yet another example from within the Australian Public Service of responsibilities being abrogated?
It is very questionable as to whether or not NAIF did the legally correct and financially sensible decision when it did not make it conditional that the takeover only proceed if J - Power pay out the $610 million loan; in other words why didn’t NAIF announce if it did require that the loan beRE-FINANCED.
Had NAIF insisted upon the loan beingRE-FINANCEDsome $610 million would have become available for other projects in Northern Australia..
On a number of occasions, over an extended period, the NAIF’s Chief Legal Officer< Mr Chris Collins, has been asked to reveal the terms and conditions of the $610 million concessional loan. Repeatedly he refused to do that. With the takeover by the foreign corporation, (JPGA Partners Pty Ltd), the situation is that the terms of the loan, (theSECRETAustralian Government Loan), remains unknown and it is not known if NAIF sought and obtained an alteration of the terms loan. The Australian National Audit Office is aware of this secrecy and the potential that secrecy opened up for corrupt practice(s). The ANAO has maintained a silence on the issue.
Mr Collins claimed that the Ministers were to be fully informed, (briefed), by NAIF, through him, about the implications of the takeover upon the Kidston Pumped Hydro loan. Detailed answers about the ministerial briefing should be forthcoming from Mr Collins because of the potential for dubious payments and gratuitous benefits from the transaction.
Again, as far as I know, an opinion from the Solicitor-General was neither requested or obtained by the NAIF Chairperson, the Board or Mr Collins. To this day it is not clear if the change of ownership of the loan is legal; was it legal to use NAIF funds for the direct benefit of a foreign corporation. If Mr Chris Collins did not obtain an opinion from the Solicitor-General; the question for the Review Panel is; why not?
Because of the way ASIC handled my complaint; including by its CEO, Mr Greg Yanco, (who, as I have said to him, I believe knowingly and wilfully did NOT raise the passing of the $610 million concessional loan to the foreign entity with NAIF, the Ministers responsible for NAIF, Attorney=General Dreyfus and his own Minister, Minister Stephen Jones), I lodged a formal complaint with the NACC. The formal complaint asked if the handling of the loan by NAIF involved corruption; given clarification was, apparently, not sought from the Solicitor-General. NACC has 90 days in which to consider the complaint.
A copy of the NACC report about NAIF is attached to this email.
In the course of challenging the dealings with both takeovers and the associated handling of the $610 million loan I ensured there exists a trail of documents as evidence of what occurred. I did that by placing records of correspondence on the website, Hot Copper. I don’t anticipate the review panel delving into the details of what went on but at least you can, if you wish, gain an appreciation of NAIF’s failures in handling both takeover proposals. The following link provides information about how NAIF and Ministers King and Gallagher enabled the $610 million NAIF loan to pass to a foreign entity:-
I provided this letter to the three of you by way of a submission form 2024 Northern Australia Infrastructure Facility Act Review site. I emailed it to you because I have no expectation that the directly responsible Ministers, Department of Infrastructure, Transport, Regional Development, Communication and the Arts and the Office of Northern Australia will make any effort to bring this subject to your attention. If anything there will, I anticipate, be ongoing efforts by the bureaucrats involved to cover-up what went on.
In further efforts to have the ministers, NAIF and ASIC act in the interests of the Commonwealth of Australia and taxpayers I brought the highly dubious J - Power/Genex Power Ltd transaction to the attention of many; including Senators O’Neill and Bragg, the Australian National Audit Office, the AFP and others. Not even Senator O’Neill responded when informed that her colleagues, King and Gallagher, chose to ignore legal requirements of the Act for which they are responsible. For this reason I have bb’d this email to the aforementioned and numerous others who are to various degrees aware the determination of the particular Ministers, (King and Gallagher), NAIF, ASIC other ministers to accept the position taken by the NAIF;“we don’t know if the transaction is legal but we will act as if it is”.
It is indeed disturbing that Ministers King and Gallagher have failed to provide any explanation as to why they and NAIF did not seek an opinion from the Solicitor-General as to whether or not it was legal to make the $610 million concessional loan available to J - Power. Ministerial responsibility was ignored by the ministers and those parties and individuals who had responsibility for briefing them. They, NAIF, ASIC and others jointly and/or severally abrogated, in numerous ways, their responsibilities
It will be interesting to see if anywhere in your review you delve, in any detail, into what I see as the corrupt use of Commonwealth of Australia funds? NAIF, having done what it did with the $610 million Kidston Pumped Hydro project investment, has given cause for there to be concern about NAIF’s handling of other projects.
The numerous abrogations of responsibilities are clear. It is often said that rot begins at the head. Ministers King and Gallagher need to ask if they are primarily responsible for Commonwealth of Australia financial benefits being made available to a foreign corporation and if that happening was mainly a consequence of abrogation of responsibilities by NAIF’s Chief Legal Officer because he did not request and obtain an opinion(s) from the Solicitor-General for the ministers, the members of the NAIF Board and to the CEO of ASIC?
Yours sincerely
Howard Patrick
24 September 2024
NB
I have been unable to obtain an email address for Warren Snowdon. I would appreciate it if one or other of you would forward this email to him.
After two takeover bids the financial benefits of the SECRET...
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