Nile legislation could right numerous ICAC wrongs

Fred Nile has wasted no time in making good on one of the promises he made in March before the NSW election.

Nile had signed a pledge with other members of the state’s Upper House. They had committed themselves to compensating innocent shareholders who had been wrongly caught up in an ICAC-related frenzy and unjustly stripped of assets by the NSW parliament.

This week, Nile gave notice that he intends to introduce two private member’s bills that should set things right. And he says he would not have bothered unless he was confident they would gain sufficient support from both sides of politics.

If those bills become law, they will clear the way for shareholders in mining company NuCoal Resources to receive compensation for the losses inflicted on their company when parliament cancelled its coal exploration licence in 2014.

The basis for imposing this penalty was extraordinary flimsy.

Parliament thought it was giving effect to a recommendation of the Independent Commission Against Corruption. But ICAC made no allegation of wrongdoing against NuCoal.

ICAC’s allegations concerned the unproven actions of others that took place long before NuCoal acquired its asset. Even ICAC had accepted that innocent parties should have been compensated.

Nile says he decided to act after meeting NuCoal shareholders, many of them ordinary families who have lost thousands of dollars.

“I’m just making it possible to have machinery whereby the government can appoint a retired judge as an arbiter who will investigate the compensation issue and make a recommendation to the government,” he says.

“It will then be up to the government whether they want to pay. It has to be reasonable. It’s not going to be billions of dollars.

“It won’t be a big pile of money but hopefully it will be fair compensation.”

In March, NuCoal chairman Gordon Galt estimated the compensation bill would come to “somewhere north of $100 million”. Righting this wrong will go a long way towards restoring confidence in property rights. But Nile’s second bill is just as significant.

It could show that the NSW parliament will no longer tolerate unlawful conduct by government agencies — even if that means exposing ICAC’s wrongdoing to the normal law.

Nile’s bills have not yet been drafted but his notice of motion in the Legislative Council says the second bill would enable the Supreme Court to nullify certain ICAC findings.

The only way that can happen is if the Nile bill repeals provisions in the ICAC (Validation) Act of 2015 that had the effect of retrospectively changing reality so past unlawful actions by ICAC were henceforth rendered lawful.

The Validation Act was introduced to protect ICAC from the consequences of a High Court decision that found it had been exceeding its jurisdiction.

When that distortion is removed from the statute book, the victims of those unlawful actions will regain access to the Supreme Court that was taken away from them by the Validation Act.

They will then be able to seek declarations that ICAC’s actions against them were a nullity.

In a rational world, parliament should never have stripped anyone of access to the court. It was also wrong to change the law retrospectively to protect an agency that had made serious mistakes.

It might have taken years, but these bills look like drawing a line under this regrettable episode.

Chris Merritt, Legal Affairs Editor
The Australian

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