Time for a reckoning over ICAC’s Doyles Creek Mining injustice

Former NSW minister Ian Macdonald has lost his appeal and must serve out the rest of his 14-year sentence. Picture: Jane Dempster

On Monday, the NSW Court of Criminal Appeal handed down a clear and unanimous decision that contains two messages.

The first is that Ian Macdonald, a former state minister for mineral resources, has lost his appeal and is back in prison serving the rest of his 14-year sentence for misconduct in public office.

The second message, while of great political significance, only becomes apparent once Monday’s decision is seen in context.

This was the last step in the marathon proceedings over Macdonald’s role in issuing a coal exploration licence to Doyles Creek Mining, a company chaired by former mining union leader John Maitland.

This saga has been dragging on for more than a decade and has consumed vast amounts of resources by politicians, courts, the media and the Independent Commission Against Corruption, which put on a spectacular show trial.

After that performance, all sorts of accusations were thrown about with great certainty – all of which missed the point that none of the “facts” uncovered by ICAC had been tested by the justice system.

But now they have. And it’s time for a reckoning.

There is no getting around the reality that many of those in politics and the media went off on an ICAC-induced frolic over the Doyles Creek affair.

The decisions of the courts have now untangled what really happened and have made it clear where the blame rests. Those who acted on ICAC’s untested assertions should take note.

The courts have determined conclusively that there was criminality associated with the issuing of the Doyles Creek licence.

But just as conclusively, their decisions show that this criminality took place entirely within the NSW government. Maitland did nothing wrong and neither did anyone associated with Doyles Creek.

That demolishes the stance taken by many politicians and media pundits 10 years ago who believed ICAC when it claimed to have uncovered a web of wrongdoing in the private sector associated with the Doyles Creek licence.

Former Doykes Creek Mining chairman John Maitland, pictured leaving court in 2017. Picture: Toby Zerna

But there is another lesson here. Macdonald was an agent of the state, not a private individual. He was convicted of misconduct in public office, not private wrongdoing.

The losses caused by his conduct are therefore the moral responsibility of the NSW government, regardless of the political affiliation of the government that happens to be in office.

Yet those losses have effectively been transferred to the private sector – to companies, institutions and families that did nothing wrong.

And that transfer of losses was based on the incorrect assumption that Maitland’s company, Doyles Creek Mining, was in cahoots with Macdonald. It was not.

That was rejected by the Supreme Court in December 2022, when it freed Maitland who had spent two years in prison for a crime he did not commit.

Yet it is the reason why the NSW government, when Barry O’Farrell was premier, cancelled the exploration licence that had been issued to Doyles Creek and refused to pay compensation.

The cancellation also paid no regard to the fact that Doyles Creek had been bought by another company, NuCoal Resources, which paid $94m and then spent another $40m on exploration, development studies and land acquisitions.

That investment represented the life savings of thousands of small shareholders who, along with institutional investors, have been forced to suffer financial harm because the great state of NSW got its facts wrong.

Innocent people have suffered because of that decision and that hardship will continue until the current Labor administration of Chris Minns sets things right.

Unlike O’Farrell, Minns has the benefit of multiple court rulings showing nobody associated with Maitland and Doyles Creek has a conviction against their name. So if Maitland and Doyles Creek are clean skins, how can it be right to take an asset without just cause and then refuse to pay compensation?

This might be common in the third world, but it sets a new low for a state that is supposed to respect the rule of law.

O’Farrell’s government fell into error by assuming ICAC was right when it accused Maitland of being involved in Macdonald’s wrongdoing.

That was shown to be wrong in December 2022, when the Supreme Court freed Maitland.

Justice Hament Dhanji praised Maitland’s character and recognised that, as chair of a mining company, he was merely doing his duty by lobbying Macdonald so his company could obtain a licence to explore for coal.

“It was entirely open to him, and indeed expected of him, to do everything lawfully within his power to seek to influence Mr Macdonald to make a decision favourable to himself and DCM,” the judge said.

“It is appropriate that I give Mr Maitland the benefit of good character as to his motivation in pursuing the relevant approvals, an absence of intention or awareness Mr Macdonald would engage in wrongdoing, and also when assessing his evidence,” the judge said in 2022.

With luck, Monday’s judgment against Macdonald might bring NSW politicians closer to understanding the immense harm they have inflicted on innocent people by mishandling this affair.

Families are still suffering because no state government – Labor or Coalition – has been prepared to correct O’Farrell’s great mistake.

It’s time for NSW to stop punishing people who had nothing to do with the corrupt conduct that has sent Macdonald back to prison.

If Minns still needs to be persuaded, he might care to refer to the 2019 report of the NSW parliament’s law and justice committee.

That committee examined the cancellation of NuCoal’s licence and recommended: “That the NSW government address the outstanding matters raised by this inquiry, including the issue of compensation for innocent shareholders.”

Chris Merritt is vice-president of the Rule of Law Institute of Australia