ICAC head court test challenge

ICAC head court test challenge

Vanda Carson
The Daily Telegraph
March 23, 201312:00AM

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ICAC commissioner David Ipp displayed bias by failing to disclose discussions he had with the government about whether to grant or refuse a mining lease for the Mt Penny tenement, a court has heard.

In the Supreme Court yesterday, lawyers for mining baron Travers Duncan alleged the ICAC boss had shown a “reasonable apprehension of bias” when he failed to reveal the contact with Planning Minister Brad Hazzard and Premier’s Department director-general Chris Eccles.

Mr Duncan’s lawyers argued a “fair-minded observer” may believe Mr Ipp’s exchange of calls and letters with the government during the inquiry indicated he had “pre-judged” Mr Duncan.

Mr Duncan wants to to shut down the partially completed corruption inquiry into the awarding of a lucrative mining exploration licence at Mt Penny, near Mudgee, by former minister Ian Macdonald.

Mr Duncan and his fellow investors in Cascade Coal stand to make tens or even hundreds of millions of dollars if the government gives planning approval for an open-cut mine on the site, which is currently subject to an exploration lease.

Mr Ipp’s contact with Mr Eccles and Mr Hazzard occurred in January as the government weighed up whether the Planning Minister could use a new “public interest test”, including corruption allegations, when assessing an application for a mine at Mt Penny.

Mr Duncan’s barrister, Noel Hutley SC, told the court Mr Ipp had met with Mr Eccles on January 15, and they had spoken on the phone on January 31, where they discussed Mr Ipp’s phone call with Mr Hazzard.

Mr Hutley said these meetings and discussions were not revealed publicly and “could be viewed” by a fair-minded observer as showing he is “other than frank and fair”.

“The Commissioner has taken it upon himself to approach the head of the Premier’s Department to (create) what he describes as a legislative pathway to” block the mine, Mr Hutley said.

Counsel for the ICAC, Brett Walker said Mr Ipp had done nothing wrong.

Mr Walker said Mr Ipp did not say “all bets are off, we are going to start again” and cancel Cascade Coal’s right to mine Mt Penny.

“The criticism of Commissioner Ipp for not having disclosed his communications with Minister Hazzard and others is misplaced and has no rational bearing on the question of apprehended predetermination,” Mr Walker said.

Mr Duncan has asked Justice Cliff Hoeben to order Mr Ipp be “restrained” from preparing his report to the NSW parliament, due to be handed down in late July.

Mr Ipp has repeatedly told the inquiry that he has not made findings against any of the players.