If you have access the Telegraph and The Australian suggest you read and digest carefully what this means for NuCoal. It is extremely telling that Margaret Cunneen (former senior prospector for DPP) has agreed to represent Ian Macdonald in the upcoming case. She'll invariable now expose both NSW ICAC and the NSW DPP for what they have become, Hopefully she'll also stick around to see the NSW Government for $10m of dollars on behalf of Macdonald and Maitland.
See one of these stories below:
The extraordinary tale ofIan Macdonald has a very clear lesson: the findings of the NSW government’santi-corruption commission are not conclusive and anyone who treats them assuch does so at great risk.The quashing of Macdonald’s conviction formisconduct in public office by the NSW Court of Appeal now stands in starkcontrast with the corruption finding against this former minister that was madeby the Independent Commission Against Corruption.Those who might seek to defend this agency’saccusation against Macdonald find themselves in a difficult position. Theycould argue that ministerial corruption is somehow not equivalent to misconductin public office, or they could take the equally unpersuasive route and assertthat ICAC is right and five judges of the state’s highest court are not justwrong but unanimously wrong.In these circumstances, their silence isunderstandable.The Court of Appeal, while quashing Macdonald’sconviction, ordered him to face a retrial and accepted a clear reformulation ofthis common law offence that will govern the retrial. This is likely to havetwo effects.The first is that the court’s reformulation,while based on precedent, is closely related to Macdonald’s submission and istherefore likely to improve his chances of exoneration at retrial.The second effect is thatthis formulation is so favourable to Macdonald’s argument, and is backed sosolidly by the appeal court, that the Director of Public Prosecutions mightthrow in the towel, forgoing any appeal to the High Court and declining to runa retrial.The new approach to misconduct in public officeis essentially a “but for” test that recognises that most ministerialdecisions, while creating winners and losers, are not criminal offences.The key is this: if an impugned decision wouldnever have been made but for an illegitimate collateral effect, the law hasbeen breached.But if a decision would have gone aheadregardless of any collateral effect, the decision-maker is on the correct sideof the law.The options open to the prosecution have alsonarrowed in separate ICAC-related proceedings in which Macdonald has beencharged with conspiracy to engage in misconduct in public office. That matterwill also be governed by the Court of Appeal’s reformulation.Regardless of the DPP’s decision on how toproceed, the Court of Appeal has increased the likelihood that the justicesystem will side with Macdonald. That would leave ICAC isolated on an issuethat has devoured millions of dollars in public money, generated hundreds ofheadlines and fascinated NSW for years.The issue is this: was this former miningminister engaging in misconduct when he issued a coal exploration licence inorder to establish a “training mine” for coalminers that was to have been runby Doyles Creek Mining, a company chaired by former mining union leader JohnMaitland?The Court of Appeal’s formulation meansMacdonald will win unless the DPP can show that the training mine would neverhave gone ahead but for the benefit flowing to Maitland’s company.A conclusive answer can only be provided by thecourts — which is something that this affair should drive home to thepoliticians of NSW and parts of the media.Instead of adhering to that principle, leadingfigures in politics and the media made crucial decisions based on the conceitthat a government agency, untroubled by the rules of evidence and thediscipline of merits appeals, had the final word.One way or another, this affair is coming to anend in the courts. If the final answer favours Macdonald, as now seems likely,the impact on politics and the media will be immense.Gladys Berejiklian, or whoever is premier afterthis month’s election, would face pressure to unwind the legislativeexpropriation of the Doyles Creek exploration licence that was rushed throughparliament based on ICAC’s belief that the process of issuing it had beentainted by corruption.If the courts rule on retrial there was in factno misconduct, or the DPP declines to prosecute, ICAC’s credibility will sufferand the NuCoal expropriation will be even more insupportable.In those circumstances, failure to restoreNuCoal’s property would further infuriate the innocent shareholders whosecompany bought Doyles Creek Mining long after the licence had been issued.Those shareholders include hundreds offamilies, particularly in the Hunter Valley of NSW, and institutional investorsin the US. The Americans must now view the risk of doing business in NSW asequivalent to that of a banana republic with no respect for property rights,the rule of law or the presumption of innocence.All of this is the direct consequence of theNSW parliament’s reliance on ICAC. It jumped the gun and took away NuCoal’sproperty without waiting for a conclusive assessment of Macdonald’s conduct; itmade things worse by ignoring ICAC’s recommendation to compensate innocentparties who would be hurt by the expropriation.If the DPP does throw in the towel, theconsequences will be sensational. But a decision to run a retrial could be justas spectacular.Macdonald’s star witness might well be thestate’s former premier, Kristina Keneally, who is now a prominent Laborsenator. Her secret evidence to ICAC — which Macdonald says favours his case —never made it into ICAC’s Acacia report to parliament.That in itself is extraordinary: a governmentagency investigating ministerial corruption made no mention of a formerpremier’s view on appropriate ministerial conduct. Macdonald is taking legaladvice on whether Keneally should be called to repeat her secret evidence.Another of those who provided secret evidence was federal Labor’s deputyleader, Anthony Albanese.Macdonald told The Australian thatover the past few years, a significant amount of information had come to lightthat demonstrated how witnesses before several ICAC inquiries had been deniedprocedural fairness.“Core information favourable to witnesses atthose inquiries was not presented,” he says.“The problem is that the sensational nature ofpublic inquiries and the role of the media makes it hard to defend oneself inthe public arena.“Such inquiries, if they are to be conducted,should always present information that is contrary to the narrative that isbeing presented in the interests of fairness and justice to witnesses.”In his case, Macdonald says he knows ICAC hadcritical information that could have been explored by his legal team had itbeen disclosed. Much of that information emerged years after ICAC’s publichearings.“I was charged over the training mine prior toeven the DPP having access to a large volume of material taken in compulsoryexaminations (by ICAC) and kept away from public scrutiny,” he says.“My lawyers found it quite extraordinary thatthis information had not been presented for consideration. That material wasvital.“It included interviews with Kristina Keneallywhich provided information that supported my position.“In other words, the ICAC narrative which wasdelivered in sensationalist terms in opening addresses, failed to mention thatthere was substantial information given by witnesses that was directlycontrary to that position and it was never furnished at the inquiry so it couldbe examined by my defence counsel.“An inquiry is needed to determine whyinformation was withheld from representatives of witnesses. How can you have afair inquiry if you have not presented evidence that is contrary to the linebeing put by the agency.“This should be assessed because publicinquiries do enormous damage to witnesses. It affects their job prospects,families and friends. It affects their lives.“I know of witnesses who have gone through theprocess who have virtually become hermits because of the public pressure theyreceived during that period.“I received quite a few insulting comments inthe street generated by those public inquiries, let alone the impact it has hadon my family and friends and our finances.“In the interests of justice, not only to mebut to several other witnesses before other inquiries, there needs to be a fulland public assessment of the information that was not presented and why,”Macdonald says.When ICAC sent its report on the Acacia inquiryto parliament, former commissioner David Ipp wrote: “Of course, counselassisting and the Commission must act fairly, and reveal any material that intheir view is reasonably exculpatory.”He also wrote that: “It should be stated inclear terms that the commission is not aware of anything exculpatory in anytranscript that was not the subject of evidence in the public inquiry.“If there was credible exculpatory evidencegiven by a witness, the commission would expect counsel assisting to adduce itby calling that witness at the public inquiry.“In no circumstance, to the commission’sknowledge, did counsel assisting fail to do so,” the Acacia report says.Before he was released from prison last monthby the Court of Appeal, Macdonald had been serving 10 years after beingconvicted by a jury in March 2017 and sentenced in May of that year. On March 8last year, while Macdonald was still in prison, the Liberal Party’s PeterPhelps stood in the NSW Legislative Council and started reading extracts from Keneally’ssecret evidence.The Hansard record shows that ICAC counselassisting Geoffrey Watson SC asked Keneally whether she would recall ifMacdonald had taken the Doyles Creek exploration licence to cabinet.“Possibly,” she said. “although it is a matterthat would not usually come before cabinet.”She said there would be “many circumstances” inwhich a minister would not take the allocation of an exploration licence tocabinet.According to Hansard, Phelps told the NSW upperhouse that this extract of Keneally’s secret evidence “gives the lie to the assertionthat was made in one of the final chapters of the Acacia report that theyrefused to release the private testimony … Because they said ‘any exculpatoryevidence would have been adduced by us’.“We now know that is a lie.”Macdonald is still talking to his lawyers aboutwhether Keneally and other prominent figures should be called to give evidenceif a retrial goes ahead.But he points out that “Keneally saysexploration licences don’t go to cabinet, which is precisely what I have said”.“They didn’t call Keneally, so her evidence,supportive of me, exculpatory of me, was not presented,” Macdonald says.Chapter 33 of the Acacia report, headed“Aberrant conduct by Mr Macdonald”, lists “Mr Macdonald’s conduct in failing torefer the application to the cabinet or the cabinet budget subcommittee”.There is no suggestion that Ipp is guilty ofwrongdoing.
CHRIS MERRITTLEGALAFFAIRS EDITOR
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