NSW Labor to introduce law overriding High Court coal mine ruling

The NSW Labor government will introduce a law to allow MACH Energy to expand output at its contested Mount Pleasant coal mine in the Upper Hunter region of NSW, in response to a High Court ruling that invalidated the expansion approval.

The High Court ruled on October 7 that the NSW Independent Planning Commission (IPC) failed to consider how pollution from its coal would affect the region. It also emphasised that the IPC must consider Scope 3 emissions — downstream emissions from coal burned elsewhere, including overseas — as part of its approval process.

Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMSHEG) first challenged the IPC’s approval in 2023 in the NSW Land and Environment Court. Following a protracted legal battle, DAMSHEG had its case upheld in the High Court.  

Premier Chris Minns told the ABC on October 19 he was moving to protect jobs that would be “on the line”. He said the new law would “guarantee” 400 direct jobs until 2032 — the deadline for the temporary extension MACH Energy sought and was given, even though the High Court was considering MACH Energy’s case against DAMSHEG.

The mining corporation wants a licence to mine thermal coal until 2048 — something Minns and Prime Minister Anthony Albanese support.

However, the 22-year extension of the coal mine would include no guarantee of 400 jobs. DAMSHEG’s Tony Lonergan said the mine relies on contractors who can be laid off at any time.

Wendy Wales, also from DAMSHEG, said she wants fossil fuel workers to be able to transition to alternative employment. “We have never wanted anyone in the Hunter to lose their livelihood.”

“A law written for one company, days after the High Court ruled against that company, is an inappropriate use of the NSW legislative process,” she said. “The laws should reflect a balance where the overall welfare of citizens and environment is paramount and industry serves the needs of all citizens.”

The NSW Minerals Council welcomed Labor’s move. Chief executive Stephen Galilee said: “The Mount Pleasant mine has endured four years of activist legal challenges, creating uncertainty for hundreds of mine workers, their families and local supplier businesses.”

Greens MLC Sue Higginson said NSW Labor is being “fed lies about the job numbers at Mount Pleasant” and “selling the integrity of the NSW planning and legal systems down the river”.

She said MACH Energy had threatened to sack 400 workers at Mount Pleasant mine unless Labor introduced this law. It has been revealed that new job advertisements were posted by MACH Energy shortly after Minns announced the special law allowing expanded coal mining.

“MACH Energy’s own documents show that the increased coal mining that will be allowed by Minns’ special laws would only create around 100 jobs, completely undermining its threat to fire 400 workers if they didn’t get their way,” Higginson said.

“This is state capture — a form of modern day corruption ... where billion dollar corporations are writing laws that benefit them, in defiance of the law as laid down by the High Court of Australia.”

Retired Supreme Court judge Anthony Whealy has called for an independent review of the Minns government’s decision to draft laws to circumvent the High Court ruling.

Whealy told the ABC on October 20 that the government’s decision is “reprehensible” because it “obliterates” the legal process.

“The idea that a substantial mining venture can approach the government and say, ‘Look, let’s go behind the court processes and sort this out between ourselves’ is a very dangerous precedent, and that’s exactly what appears to have happened here,” Whealy said.

“They’ve effectively ignored what I would call respect for the rule of law by overriding it.”

The Greens are supporting his call for an independent review.

Higginson said Labor has “decided to step over the independent planning process ... the High Court of Australia and they are trashing the rule of law”.

The ABC also reported on October 20 that MACH Energy is being investigated over allegations it breached its coal production limits, as it scaled up construction during the High Court appeal process.