Former union leader John Maitland spent almost two years in prison for a crime he did not commit. And now he wants justice – not for himself but for thousands of others.

Nobody can give Maitland back those lost years. But he wants the new Labor government of NSW to recognise that this great injustice was exacerbated by one of the worst decisions of the former Coalition government.

No government is perfect. From time to time, mistakes are made. But in January 2014, the government of former Liberal premier Barry O’Farrell made an absolute clanger.

He persuaded state parliament to rely on unproven accusations of wrongdoing from the Independent Commission Against Corruption and cancel a coal exploration licence that had been issued to Maitland’s company, Doyles Creek Mining.

The first problem is that O’Farrell jumped the gun: ICAC is not a court and its findings are not conclusive. When the Supreme Court ruled in December, it acquitted Maitland of any wrongdoing.

The second problem is that by the time O’Farrell cancelled that licence, Doyles Creek Mining had been sold to a listed third party, NuCoal Resources, which has never been accused of wrongdoing and has thousands of shareholders here and offshore.

The third problem is that O’Farrell refused to compensate NuCoal, which had spent $94m buying Doyles Creek Mining and another $40m on exploration, development studies and land acquisitions.

NuCoal and its shareholders did nothing wrong. Yet they were stripped of private property by legislative fiat, prevented from launching a legal challenge – again by legislative fiat – and forced to bear the cost of wrongdoing by others.
In December, the Supreme Court convicted former minister Ian Macdonald of misconduct in public office. That means the corruption associated with this affair took place entirely within the NSW government.

By cancelling the Doyles Creek licence without compensation, O’Farrell’s government shifted the losses associated with government corruption to the private sector while insulating the government from legal liability.

On Saturday, Maitland has convened a meeting of ICAC’s innocent victims, who include families whose life savings invested in NuCoal were wiped out when O’Farrell jumped the gun.

Some of those innocent victims have been seeking justice even longer than those associated with NuCoal.

Consider the case of Charif Kazal, a businessman who was declared corrupt in 2011 not because he had broken the law, but because ICAC believed he “could” have broken a law.

For more than a decade, this man has been trapped in what amounts to a Kafkaesque nightmare.

ICAC says he is corrupt and wanted him prosecuted. But independent lawyers from the Office of the Director of Public Prosecutions disagreed and refused to charge him with anything.

For Kazal, this is the worst possible outcome.

He has been publicly accused of conduct that could amount to a criminal offence but has been denied an opportunity to have that accusation tested in the criminal justice system.

Because NSW does not permit the merits of ICAC’s assertions to be tested on appeal, Kazal was limited to a narrow form of challenge known as judicial review.

This was destined to fail. He could not test the merits of ICAC’s accusations and was limited to arguing that the commission had exceeded its jurisdiction and made legal errors.

So ICAC’s assertion of 12 years ago, that Kazal “could” have broken the law, remains in place. This is despite the fact that prosecutors repeatedly told the commission the material it had collected about Kazal did not justify prosecuting him for anything.

Kazal’s plight has been taken up by human rights lawyer Geoffrey Robertson, KC, who has made the point that conduct of a criminal nature should be dealt with by courts, not tribunals that deprive people of rights available in the justice system.

Those rights are guaranteed by the International Covenant on Civil and Political Rights. Yet Kazal was deprived of those rights by the simple expedient of shipping him off to ICAC instead of allowing allegations of a criminal nature to be dealt with by the criminal justice system.

The Kazal affair is a warning. Even today, people in NSW who have breached no law can still be publicly impugned by this agency with little chance of clearing their names.

Appeals are still limited to judicial review. Yet even this narrow ground led to the exposure of ICAC’s two other great mistakes – its unlawful pursuit of former premier Nick Greiner and leading silk Margaret Cunneen, SC, who is now president of the Rule of Law Institute.

Just imagine what might come to light if the merits of ICAC’s public findings were subject to a full appeal, just like the public findings of judges.

After the long years of Coalition government in NSW, Labor’s Chris Minns needs to decide where he stands.

Will he follow the example of his Coalition predecessors by running a protection racket for an agency that has damaged innocent people and exceeded its jurisdiction? If not, will he repeal the Coalition’s ICAC Amendment (Validation) Act, which protects the commission from the consequences of its past unlawful actions?

If Minns believes in the presumption of innocence, will he provide a remedy for those like Maitland and Kazal who have been traduced by ICAC yet, in the eyes of the law, have done nothing wrong?

The new government has an opportunity to breathe life into the rule of law.