NuCoal
hear from chair of nucoal resources ltd, gordon galt
Circumstances surrounding the inquiry
In 2013, the O’Farrell Government in NSW requested the ICAC to enquire into the circumstances surrounding the grant of EL7270, Doyles Creek to Doyles Creek Mining Pty Ltd in 2008.
Commissioner Ipp handed down his report in late 2013 and concluded that five persons were corrupt – the Minister (Macdonald), and directors of DCM – John Maitland, Craig Ransley, Andrew Poole and Mike Chester. Macdonald and Maitland were subsequently tried and Macdonald was found guilty of Misconduct in Public Office and Maitland of being an accomplice. Poole and Chester have never been charged by the DPP.
The convictions of Macdonald and Maitland were quashed in the Supreme Court in 2020 and at a subsequent trial Maitland was exonerated and Macdonald was re-convicted.
In the ICAC’s report the expungement of EL7270 was recommended, but the Commissioner specifically recommended compensation for innocent parties, which he has clearly stated means NuCoal shareholders.
Despite the ICACs recommendation, O’Farrell enacted a new law in 2014 which expunged the licence, indemnified the state and its minister and cancelled any right to compensation.
NuCoal shareholders lost over $300 million as a result. In the ensuing 10 years successive Premiers have failed to compensate NuCoal, even in light of numerous court cases and the recommendations of two Parliamentary Committees.
Details of the ICAC Investigation and Methods
The ICAC held both secret and public hearings. NuCoal was not party to the hearings and no evidence was taken from NuCoal.
The ICAC prevented proper cross examination of witnesses at its public hearing – which was in effect a show trial designed for political impact rather than objectively seeking the truth.
The ICAC report had numerous factual errors and made many conclusions based on no evidence at all. The ICAC ignored clear statements regarding motivations of individuals from numerous witnesses, including the current Prime Minister Anthony Albanese.
The ICAC conferred with the Premier regarding his desired outcome from the enquiry and even pointed out how the State could subvert the intentions of the Mining Act by taking away NuCoal’s rights. This proved that the ICAC was NOT independent, but merely a pawn of the State and specifically the Premier of NSW (who provided the ICAC budget).
The ICAC constantly fed the SMH details of what was to be heard at the public enquiry in advance of the hearing.
Length of time under ICAC investigation
The ICAC investigation, known as Operation Acacia, commenced its public hearing phase on 18 March 2013 with hearings held over 3 months, concluding on 17 May 2013. The first ICAC Report was published in August 2013. An additional report addressing outstanding questions was published in December 2013. On 30 January 2014, the Mining Amendment Act was introduced and EL 7270 was cancelled forthwith. The NSW Parliament was given no advance notice of the Mining Amendment Act (MAA) and most MPs had no idea of what they were voting for. Since then, many have stated they were sorry they ever voted for the MAA.
Result
NuCoal is entirely innocent of any wrongdoing, despite the attempts of the ICAC and the Premier to prove the opposite.
The shareholders of NuCoal lost their entire investment and many investors are still suffering from their monetary losses to this day. Overseas investors have not been able to claim under any free trade agreements.
Using market metrics - prior to the announcement of the ICAC inquiry - NuCoal’s market capitalisation on the ASX exceeded $300 million. Immediately after the MAA was passed, NuCoal’s market capitalisation had fallen dramatically to a mere $16 million.
Since the suspension of NuCoal shares in March 2023 pursuant to Listing Rule 12.1, the share price has remained at $0.005 meaning the market capitalisation currently sits at approx. $3.8 million.
The huge financial loss suffered by NuCoal’s shareholders, which is demonstrated by these figures, is very significant and was clearly caused by the ICAC’s flawed Acacia investigation. The financial loss is unmatched in the history of the ICAC.
The NSW Government of the day deliberately went out of its way to use its Parliamentary power to steal NuCoal’s asset, while denying it compensation and shutting down any and all avenues for NuCoal to object and get compensation.
The Premier of NSW then deliberately and knowingly defamed the Directors of NuCoal to deflect criticism from himself and after a subsequent defamation action was brought against him – and only then and reluctantly – he publicly apologised to the directors. Costs were paid by the State of NSW.
Was there a review?
The only review available to NuCoal was via a judicial enquiry. This was pursued but NuCoal was unsuccessful in the action. A judicial review is not a merit review, so none of the conclusions of the Commissioner were allowed to be challenged.
The review was only looking at whether the ICAC had gone through its required process and was – in the end – nothing but an exercise in futility.
Subsequent interactions with the ICAC or State Government
NuCoal has never stopped pursuing its legitimate claim for compensation. Over numerous reviews, trials and enquiries, there has never been one successful prosecution of any officer or shareholder of NuCoal.
On the other hand, Premier O’Farrell had to resign after he admitted lying to the ICAC, Premier Berejiklian resigned because of an ICAC enquiry which found her to be seriously corrupt and Premier Perrottet – who while Treasurer specifically told NuCoal Directors that he would make sure that our compensation claim was progressed properly - failed to conclude his intentions before his Government was voted out. Perhaps even more amazingly, Premier Baird passed the ICAC Validation Act during his term – which made the illegal acts of the ICAC retrospectively legal after the ICAC was defeated in a High Court case regarding its jurisdiction – notwithstanding that an agreement that had been reached between the ICAC and the Supreme Court to exonerate a number of “corrupt” persons – but that’s another story.
Two significant Parliamentary Committee enquiries handed down recommendations during the 2018 to 2022 period. Both recommended and urged the NSW Government to compensate NuCoal. Each committee was multi-partisan and their recommendations were unanimous.
The NSW Government did start to engage with NuCoal on several occasions with the last being in mid-2022, when the Perrottet Government asked for relevant shareholder lists. This process was stillborn when the election cycle started later in 2022.
NuCoal spoke directly to Chris Minns before the election and he summarised by saying that we had not been given due process and the rule of law had not been followed. NuCoal has attempted to engage with Premier Minns and many of his ministers since the election but has been told that “there is no appetite in Cabinet” for compensating NuCoal.
It was much easier for the Chinese Communist Party to get compensated by the NSW Government. They also had their tenement removed but received over $360 million in compensation. This was done because the Chinese Government “leaned’ on the NSW Government, who then bowed to the political pressure. Clearly the NSW Government regards NuCoal shareholders as a much easier target who can be ignored.
Why do you think the Inquiry was held?
It is our belief that the inquiry was held after the O’Farrell government saw an opportunity to make long term political capital out of finding Labor politicians to be corrupt.
In many respects NuCoal was collateral damage – the targets were always the political opposition. The Premier engineered a report by Clayton Utz which suggested that the matter of the EL award should be reviewed. When Clayton Utz said that a Commission of Enquiry should be convened, the Premier intervened and sent the matter to the ICAC. This was because he “controlled” the ICAC, that its methods were secret, and that in contrast a Royal Commission would have to be much more objective, public and use proper evidentiary rules and methods.
The Government was supported and encouraged by the NSW racing breeders whose horse studs were in the vicinity of the Doyles Creek tenement. Coolmore was given standing at the enquiry and Darley was allowed to make a closing submission – much of which was directly lifted into the ICAC Commissioner’s report. This support is further evidenced by the Statement of George Souris who was the member for Cessnock when he said that saving the racing industry by cancelling the NuCoal tenement was the most important thing he did in his parliamentary career. Mr O’Farrell subsequently was made the CEO of Racing Australia – a job for which he had little apparent qualification.
Additional Comments
Shareholders of NuCoal have no choice but to continue to pursue the NSW Government for compensation. This will never go away and until fixed will be a permanent stain on the reputation of NSW, successive NSW Governments and politicians, and the ability to attract overseas investment. By contrast every shareholder in NuCoal and its officers can hold their heads up high – because they are victims who have been bullied by the Government and have not been allowed their rights under the rule of law - innocent till proven guilty and the right to a fair trial.
