Retired judge lashes NSW decision to rewrite laws to support coalmine

A former Supreme Court Judge says a NSW government plan to draft special laws for a Hunter Valley coalmine "obliterates" the legal process and should be independently reviewed.

The premier has announced the government will legislate to allow the Mount Pleasant mine to continue operating at expanded production rates, despite a High Court ruling against it this month.

"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," said Anthony Whealy, who is now on the board of the Centre for Public Integrity.

"They've effectively ignored what I would call respect for the rule of law by overriding it.

"It is, on the face of it, reprehensible".

The ABC can reveal the Hunter Valley mine is already being investigated over allegations it breached its coal production limits, as it scaled up construction during the court process. 

In 2022, the mine was given approval to double its capacity, from 10.5 to 21 million tonnes of coal per year, until 2048. But that approval was deemed invalid after a NSW Court of Appeal ruling in July 2025 that planning authorities had failed to consider the effect of overseas or Scope 3 emissions caused by the 406 million additional tonnes of coal exports over the life of the mine.

The Court of Appeal ordered a lower court, known as the Land and Environment Court, to revisit the expansion's approval, which was now "invalid", subject to that lower court's review. 

But MACH Energy did not want to wait for a decision from the lower court.  

In August 2025, weeks after the ruling, the company started earthworks to pave the way for millions more tonnes of coal to be produced, in what it described in company documents as "the next phase of the Mount Pleasant expansion".  

The company lodged a swift appeal with the High Court, and by December 2025 the mine had produced 12.78 million tonnes of coal. 

Department increases mine output while under investigation 

The residents' group that had won the NSW Court of Appeal case, known as the Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMSHEG), lodged a complaint with the planning department through its lawyer, Elaine Johnson.  

By her reading, the NSW Court of Appeal decision meant the company should not be furiously expanding while the matter was still before the courts.  

And the mine should instead be required to rely on its first planning approval from 1999, which only allowed 10.5 million tonnes of coal to be extracted.  

A department spokesman told her that it would "consider" her concerns.  

As the expansion gained pace, Elaine Johnson wrote another letter, and the planning department finally confirmed it was investigating.  

"The Department is committed to timely and appropriate compliance action," its letter from August 14, 2026 stated.

"Thank you for your correspondence."

On the same day, the department announced it would "modify" MACH Energy's first planning approval from 1999, which was not being challenged in court, to increase its 10.5 million tonne coal output to 12.5 million tonnes per year.

It also extended the mine's life for another six years, so there was no threat of it closing in December, when the existing 1999 permit was due to expire.

The "modification" could be done at the stroke of a pen because it met the "substantially the same development" test, according to a department spokesman.

High Court loss puts mine on back foot  

When the High Court ruled against MACH Energy this month, it threw its expansion plans into disarray.

For months the company had publicly forecast its 2026 production would reach 16.5 million tonnes, a figure it could only justify if its appeal was successful. 

That level of production relied on its second planning approval, the one tied to the expansion, being valid. 

But the High Court found planning authorities had failed to do what was required of them in that case, which was to "consider imposing conditions to minimise to the greatest extent practicable all greenhouse gas emissions, including Scope 3 emissions". 

The approval was invalid, and had to go back to the lower court, which could take months. 

The mine's plan to extract 16.5 million tonnes over 2026 was now in jeopardy, because it was unclear if it was allowed to extract the extra 4 million tonnes.

Premier wants to 'sidestep' law to increase output again 

Less than a fortnight after the High Court decision, NSW Premier Chris Minns announced new laws would be introduced to allow the mine to extract 16.5 million tonnes per year, the precise amount it had already scaled up to produce.  

In his statement, the premier said the laws would "address the unique legal uncertainty arising from the High Court's judgement", and "protect 400 jobs" while the court process continued.   

Retired Supreme Court Judge Anthony Whealy said the move had "obliterated" the legal process and appeared to be a "hollow" claim. 

Mr Whealy said there were no clear exceptional circumstances justifying the move, and that there was "no evidence whatsoever to show that 400 jobs are under threat here".  

"All this talk about 400 jobs being lost before Christmas is hyperbole, and not at the moment justified by any evidence that the government has produced," he said.   

In parliament yesterday, Upper House Greens MP Cate Faehrmann asked the NSW Resources Minister Courtney Houssos what evidence the government had that 400 jobs were under threat before Christmas, so that "standalone legislation was necessary".  

Ms Houssos told parliament the government had checked employment data records with both the company and the union.

She acknowledged the company had scaled up its operation over the past 18 months.

"Because they have legal advice that they had approval to operate at the higher rate, and as a result they took on additional workers," Ms Houssos said.

"We're not prepared to stand by in circumstances where we could see 400 workers lose their jobs before Christmas only to have the consent validated … in a matter of months."

Cate Faehrmann accused the government of "state capture".

"State capture is the undue influence of powerful individuals or corporations in shaping the formation of laws, policies, and regulations and institutions to their own advantage at the expense of society."

"This is state capture, right here."

Mr Whealy has called for an independent review into the government's decision.

"I remain very concerned that this is a dangerous precedent where governments just override the senior courts in order to get some sort of political advantage for themselves," Mr Whealy said.

Working 'hand-in-glove'  

MACH Energy posted a statement on its website welcoming the premier's announcement, which it said would "provide locals with much-needed reassurance that the Mount Pleasant project will continue to deliver critical benefits in the future".

"MACH Energy obtained legal advice that confirmed the 2022 consent remained valid during the High Court proceedings," it said.

Tony Lonergan, a co-founder of the DAMSHEG residents group fighting the mine, said the NSW government was working "hand-in-glove" with its "gung-ho" operators.  

"[They're] pretty certain that planning and the government is going to back them," he said. 

"And they think that they can just keep doing what they're doing." 

A spokeswoman for the NSW Department of Planning, Housing and Infrastructure told the ABC it would not comment on active investigations.