The High Court has decided three related matters each challenging the constitutional validity of sch 6A of the Mining Act 1992 (NSW) on various bases. Following a finding by the Independent Commission Against Corruption that directors and shareholders of Cascade Coal had engaged in corrupt conduct, and recommended the cancellation of exploration licences held by two wholly-owned subsidiaries of Cascade Coal. The Director-General of the NSW Department of Trade and Investment invited the subsidiaries to make submissions on why the NSW Government should not cancel the licences. On 31 January 2014, the NSW Parliament passed the Mining Amendment (ICAC Operations Jasper and Acacia) Bill 2014, inserting sch 6A into the Mining Act 1992 (NSW) and cancelling the licences.
Duncan, a director and shareholder of Cascade Coal, challenged the validity of the amendment on three grounds. First, the amendment constitutes an exercise of judicial power by the NSW Parliament, contrary to Ch III of the Australian Constitution. Secondly, sch 6A is an exercise of judicial power in that it determines pre-existing rights and duties. Thirdly, sch 6A is not a ‘law’ within the meaning of s 5 of the Constitution Act 1902 (NSW) Cascade Coal supports Duncan’s submissions, and further submits that it is also inconsistent with the Copyright Act 1968 (Cth) and is invalid to the extent of that inconsistency under s 109 of the Australian Constitution. NuCoal likewise seeks a declaration that the amending act and sch 6A are invalid, on the basis of Ch III and inconsistency with the Copyright Act.
The High Court unanimously held that the challenged clauses in sch 6A were not invalid, and that the argued inconsistency with the Copyright Act did not arise on the facts of the special case. Rejecting the argument that the amendments were not a ‘law’ within the meaning of the NSW Constitution, the Court held that the word ‘laws’ in s 5 ‘implies no relevant limitation as to the content of an enactment of the New South Wales Parliament. In particular, the word carries no implication limiting the specificity of such rights, duties, liabilities or immunities as might be the subject of enactment or the purpose of their enactment.’: at . The Court also rejected the judicial power argument. On its face the amendment act did not exhibit any ‘typical features’ of an exercise of judicial power (see at ). Nor did it constitute a ‘bill of pains and penalties’ as a legislative determination of a breach of a standard, or a penalty targeted at a particular person for that breach. Rather, the Parliament had, after considering the operational reports, ‘formed and expressed its own satisfaction that the administrative processes by which the three specified exploration licences were issued were tainted by corruption’ and then determined that it would be in the public interest to terminate those licences (see ff). Finally, the Court held that no issue of inconsistency with the Copyright Act arose on the facts of the special case: NuCoal’s copyright is merely asserted, and there was no evidence that NSW has or threatens to infringe copyright interests of the other parties (see at –).
|High Court Judgment|| HCA 13||15 April 2015|
|Result||Challenged provisions not invalid|
|High Court Documents||Cascade Coal|
|Full Court Hearings|| HCATrans 11||11 February 2015|
| HCATrans 9||10 February 2015|
|Leave Hearings|| HCATrans 211||17 September 2014|
| HCATrans 165||14 August 2014|