Former NSW mining minister Ian Macdonald has called for a judicial inquiry into the state’s anticorruption commission after obtaining confidential transcripts in which witnesses, including Labor frontbencher Anthony Albanese , gave evidence in his favour that was never made public .
The transcripts were made during private compulsory examinations when the Independent Commission Against Corruption was investigating the allocation of mining exploration leases as part of what it referred to as Operations Jasper and Acacia.
According to Mr Macdonald’s lawyers the transcripts contain “considerable evidence which is exculpatory to Mr Macdonald” , who was later found by ICAC to be corrupt.
The exculpatory material was not revealed during ICAC’s public hearings and should have been incorporated into the agency’s final report, his lawyers say.
ICAC found that Mr Macdonald had acted corruptly by issuing a coal exploration licence to Doyles Creek Mining, a company then chaired by former union official John Maitland.
Doyles Creek Mining is now owned by NuCoal Resources, which yesterday lost a Supreme Court challenge to ICAC’s recommendation , later enacted by the NSW government, that the exploration licence be cancelled — a move that cost NuCoal shareholders at least $100 million.
NuCoal’s chairman, Gordon Galt, has complained to ICAC’s independent inspector, David Levine , that the state government had been seriously misled by ICAC due to maladministration during Operation Acacia.
ICAC had rebuffed Mr Macdonald’s past attempts to gain access to transcripts of the compulsory examinations and they have only become available now because he is facing criminal proceedings.
He has been charged with misconduct in public office and those proceedings are listed for mention in the Supreme Court next Friday.
The transcripts were obtained from ICAC by the NSW Director of Public Prosecutions and are among 80 volumes of material in the prosecution brief that has been provided to Mr Macdonald’s lawyers.
ICAC’s failure to reveal during its inquiry that it held exculpatory material about Mr Macdonald has led his lawyers, Bilbie Dan, to accuse the agency of denying procedural fairness by choosing which evidence to present at public hearings.
That accusation is outlined in a submission to Mr Levine that also accuses ICAC of leaking information to the media.
“On numerous occasions during various inquiries information would appear in the papers, primarily The Sydney Morning Herald , before the information was given in the public hearing in ICAC,” the submission says.
The submission says the transcripts show those who gave evidence in favour of Mr Macdonald included Mr Albanese and Paul Basten, a former state secretary of the Australian Manufacturing Workers’ Union.
The transcripts also made it clear that ICAC did not call another witness, John Graham, to give evidence at a public hearing after he gave evidence in private that was “clearly relevant and exculpatory” .
“Within these now released transcripts is considerable evidence which is exculpatory to Mr Macdonald,” the submission says.
“Examples include the transcripts of examination of Mr Albanese and Mr Basten whose compulsory examinations supported Mr Macdonald’s version of events.
“This evidence should have been considered at the inquiry and incorporated into the report,” the submission says.
Mr Macdonald’s complaint about a denial of procedural fairness is in line with allegations that have been made in two civil actions pending before the NSW Supreme Court by others who have been the subject of findings by ICAC.
Newcastle property developer and former lord mayor Jeff McCloy has accused ICAC of bias and a denial of procedural fairness .
Separate proceedings by former state Labor politician Eddie Obeid and his family accuse ICAC of suppressing exculpatory evidence and refusing to investigate who had been leaking information to The Sydney Morning Herald.
Mr Macdonald called on the NSW parliament to ensure ICAC adopted professional standards.
“Under the previous commissioner it became a media circus obsessed with headlines and paid scant regard to natural justice for witnesses,” he said.
Copyright © 2015 The Australian
This article is from the September 25 issue of The Australian Digital Edition. To subscribe, visit http://www.theaustralian.com.au/.
CHRIS MERRITT
LEGAL AFFAIRS EDITOR