Proposed NSW legislation to undercut High Court decision risks undermining rule of law

The NSW Government has announced it will shortly introduce a Bill to allow an expansion of the MACH Energy Mt Pleasant coal mine in the Hunter region (the Bill).¹ The announcement follows a recent High Court decision that returned an expansion application for this mine to the NSW Land and Environment Court (Court) for reconsideration.² The Bill is intended to address claimed ‘uncertainty’ cast over the mine expansion by this decision and save 400 jobs prior to Christmas.³ Yet other than a reference to MACH Energy’s and the union’s employment data records, reportedly no evidence has been provided indicating imminent job losses,⁴ in the context of an existing approval until 2032.⁵ The Bill will also include limited conditions intended to address scope 3 emissions,⁶ being downstream emissions released from the burning of resources – the most significant emissions from coal mining.

This rapid, targeted intervention to facilitate a partial expansion of the Mt Pleasant mine by way of special legislation carries significant environmental and community consequences. If passed, the Bill would prematurely facilitate the mine expansion and bypass proper approval processes. Such action risks undermining the rule of law and separation of powers and weakening public accountability and trust in the planning process. EDO opposes these changes and, to protect good governance, community trust, and the environment from increased carbon pollution, considers the Bill should not be introduced.

Background

The High Court decision of 7 October 2026 concerned a state significant development application to extend the Mt Pleasant mine operation until 2048 and increase annual coal production from 10.5 to 21 million tonnes.⁷ The original approval of the application by the NSW Independent Planning Commission (IPC) was challenged successfully by the Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMS HEG) in the NSW Court of Appeal. MACH Energy then appealed to the High Court.

The High Court decision, by way of a 3:2 majority, clarified statutory requirements for NSW planning processes, including that the consent authority must actively consider ‘scope 3’ emissions. This consideration includes whether any conditions should be imposed to minimise emissions to the greatest extent practicable.⁸ The High Court found the IPC did not do this.⁹ As this ‘material’ consideration was not undertaken, the matter was to be remitted to the Court for consideration as to whether to suspend the consent in whole or in part, and to specify terms for compliance to validate the consent (with or without variations).¹⁰ This reconsideration by the Court has not yet occurred.

In an announcement on 19 October 2026, the NSW Government advised it had been ‘working closely’ with MACH Energy since the High Court decision and would introduce the Bill to address ‘uncertainty’ arising from the decision and to save 400 jobs before the end of the year.¹¹ As part of the proposed arrangement, MACH Energy has agreed to sign a ‘Jobs Guarantee’ to maintain its current workforce through until 2032.¹² In addition, the NSW Department of Planning, Housing and Infrastructure approved a modification to the Mt Pleasant mine on 14 August 2026 allowing an extension of the mine until 2032, and increased output from 10.5 to 12.5 million tonnes per year.¹³

However, media reports warn that MACH Energy may have been illegally increasing operations since the IPC’s initial decision in 2022 beyond approved limits, even after the decision of the NSW Court of Appeal to invalidate the IPC’s approval.¹⁴ EDO understands that an investigation into this matter has commenced.¹⁵

Why it’s a problem

The Bill is intended to overcome any delays in the decision on the extension application through the Court’s reconsideration. The Minister claims the Bill is needed to ensure the delay does not lead to loss of jobs in the short term.¹⁶ However, reportedly no evidence has been forthcoming as yet as to there being a risk of job losses due to the High Court decision if the mine is mining within authorised limits.¹⁷

EDO raises strong concerns that the proposed legislation risks undermining the rule of law, effectively side-stepping the required process set out by the High Court to determine whether any expansion should go ahead and if so, on what conditions, and standard planning processes.

If it is found that MACH Energy has operated the mine beyond the approved output, including after the declaration of invalidity by the NSW Court of Appeal, the apparent special treatment offered to MACH Energy by the Bill is even more concerning and less justifiable.

A willingness to legislate ad hoc to work around the applicable legal processes following the binding High Court decision risks undermining incentives for careful primary decision-making, transparent assessment of environmental impacts, and robust consideration of community interests at the approval stage.  While there is a legitimate role for thoughtful and debated planning law reforms, rapidly introduced interventions aimed at specific projects results in poorer decision architecture and weaker accountability. As a matter of public policy, this risks poorer community and environmental outcomes by weakening legally disciplined decision-making under the planning framework, and it undermines good governance and public trust in impartial institutions and accountable government.

The matter also raises significant concerns regarding separation of powers. The judicial branch’s function is to interpret, declare and enforce the law. In the case of judicial review, a court is asked to consider the legality of a government decision. Here, the High Court has identified issues with the legality of a decision on a coal mine expansion application and recommended a course to correct this legal invalidity. A Bill designed to undercut that outcome and partially bypass the proper reconsideration process risks incentivising shortcuts around the disciplined assessment and legality checks inherent in the NSW planning framework.

Additional conditions do not meet international obligations to address scope 3 emissions

The government has also announced that the proposed Bill will include ‘additional conditions’ to minimise scope 3 emissions, and a technical appendix will be added to the NSW Coal Industry 2026-50 policy to provide ‘additional guidance for the industry and planning authorities’ on how to address scope 3 emissions.¹⁸ On the basis of this announcement, EDO understands that the conditions would apply only to the Mt Pleasant mine, but that the technical appendix could apply to all future decisions on mine applications.

The content of the technical appendix is unknown at this point in time. Including such conditions in the proposed Bill risks further circumventing the appropriate consideration of the emissions and necessary conditions for the Mt Pleasant mine by the consent authority. Further, the proposed conditions arguably do not meet Australia’s obligations to take full responsibility for reducing emissions caused from resources we produce, as outlined by the International Court of Justice, discussed below.

Scope 3 emissions represent the vast majority (approximately 87%) of greenhouse gas emissions from the resources sector – greatly exceeding all scope 1 and 2 (direct) emissions of NSW’s entire economy.¹⁹ For example, it is projected that 98% of emissions generated by the Mt Pleasant mine would consist of scope 3 emissions, being almost four times NSW’s 2022-23 economy-wide greenhouse gas emissions.²⁰ To ensure the conditions and any guidance documents are well considered in meaningfully addressing scope 3 emissions, the NSW Government should seek advice from the Net Zero Commission. As a public interest matter, public consultation should also be undertaken in the development of any conditions or guidance regarding how scope 3 emissions should be effectively and appropriately addressed. By way of comparison, guidance on assessing scope 3 emissions was released by the UK Government following an extensive public consultation process. The resulting guidance, which differed significantly between the initial draft and the final guidance following the consultation process, has been praised for providing clarity for industry participants and the public, as well as a ‘more credible environmental assessment of the true climate impacts of oil and gas production’.²¹

Proper process must be followed, including to properly consider climate impacts

The Minister’s media release noted that the government’s NSW Coal Industry 2026-2050 policy provides a clear framework for the industry supports coal mining jobs and communities, ‘while charting a course to net zero’.²² A necessary part of meeting this legislated net zero target is proper consideration of the emissions of individual projects and any expansions, as well as whether any conditions should be imposed under the planning process – including as indicated by the High Court decision.²³

The International Court of Justice’s Advisory Opinion on the Obligations of States in Respect of Climate Change also noted that States, in their duty to prevent harm to the climate system, must exercise due diligence.²⁴ In these circumstances, due diligence requires among other things ‘the adoption of appropriate rules and measures… [and] also a certain level of vigilance in their enforcement and the exercise of administrative control’.²⁵

It is necessary and appropriate that the proper planning processes are followed to ensure each new or expanded project and their impacts are carefully considered by consent authorities. This proposed Bill risks undermining that process and consideration. Further, the Court is the appropriate forum to balance the legal effect of the High Court’s decision with practical considerations such as urgency and perceived uncertainty, as the Court has a discretion as to the appropriate orders that should flow from the High Court decision.

EDO considers this Bill should not be introduced and proper approval process in alignment with the High Court’s considered decision should be followed. Provision should instead be made to support affected workers and communities. The NSW Government should work with fossil fuel-producing regions to assist them in transitioning into other sustainable economic and employment opportunities. Rather than protecting the interests of unsustainable coal production, there should be as a matter of priority increased funding commitments to support communities with this transition. Further, with the introduction of the Future Jobs and Investment Act 2026 (NSW) there is an urgent need for the prompt establishment of the Authority and strong regulations that prioritise supporting community and environmental resilience, recovery and wellbeing.  

---

1 The Premier, Minister for Natural Resources, ‘Minns Labor Government steps in to protect 400 Hunter jobs ahead of Christmas’ (Ministerial media release, 19 October 2026) available at <https://www.nsw.gov.au/ministerial-releases/minns-labor-government-steps-to-protect-400-hunter-jobs-ahead-of-christmas> (Ministerial media release).

2 MACH Energy Australia Pty Ltd v Denman Aberdeen Muswellbrook Scone Healthy Environment Group In & Anor [2026] HCA 35 (MACH Energy v DAMSHEG or High Court decision), [203] Gordon J.

3 Ministerial media release, above n 1.

4 New South Wales, Parliamentary Debates, Legislative Council, 20 October 2026, 13 [13.47] (Courtney Houssos, Minister for Finance, Minister for Domestic Manufacturing and Government Procurement, and Minister for Natural Resources) (NSW Parliamentary Debates, 20 October 2026, Houssos); Charlotte King, ‘Retired judge lashes NSW decision to rewrite laws to support coalmine’ ABC News (21 October 2026) available at <https://www.abc.net.au/news/2026-10-21/probe-into-nsw-coalmine-at-the-centre-of-climate-court-battle/107268146>; see also Justin Page, ‘Stop using coal workers’ jobs as political bargaining chips’ Newcastle Herald (28 October 2026), p 18.

5 See Notice of Modification, DA92/97-Mod-8 Mount Pleasant Operation Modification 8 (14 August 2026), available at <https://majorprojects.planningportal.nsw.gov.au/prweb/PRRestService/mp/01/getContent?AttachRef=DA92%2F97-MOD-8%2120260814T045419.234+GMT>.

6 Ministerial media release, above n 1.

7  MACH Energy v DAMSHEG, [88], Gordon J.

8 MACH Energy v DAMSHEG, [183]-[185], [191], [195], [199] Gordon J.

9 MACH Energy v DAMSHEG, [174], [191] Gordon J.

10 MACH Energy v DAMSHEG, [195], [200] – [203] Gordon J.

11 Ministerial media release, above n 1.

12 Ministerial media release, above n 1..

13 See NSW Department of Planning, Housing and Infrastructure: Planning Portal, ‘Mt Pleasant Mod 8 – Extension of mine life’ (Determination Date 14 August 2026), available at <https://www.planningportal.nsw.gov.au/major-projects/projects/mt-pleasant-mod-8-extension-mine-life>.

14 It is reported that MACH Energy sought legal advice in relation to expanding its operations, see NSW Parliamentary Debates, 20 October 2026, Houssos, 13 [13.47]; King, above n 4; Lisa Cox and Penry Buckley, ‘‘Disgraceful’: Geoffrey Watson accuses Minns government of overturning high court ruling on coalmine’ Guardian Australia (21 October 2026) available at <https://www.theguardian.com/australia-news/2026/oct/21/disgraceful-geoffrey-watson-accuses-minns-government-of-overturning-high-court-ruling-on-coalmine?CMP=Share_iOSApp_Other>; see also Cate Faehrmann NSW Greens MP, ‘MACH energy’s Mt Pleasant Coal Mine expansion – motion’ (21 October 2026) available at <https://www.catefaehrmann.org/mt_pleasant_coal_motion>.

15 King, above n 4; Cox and Buckley, above n 14.

16 NSW Parliamentary Debates, 20 October 2026, Houssos 13 [13.47]; Wendy Yang, ‘NSW Government to introduce legislation following MACH Energy High Court decision’ Law Society of NSW Journal (20 October 2026) available at <https://lsj.com.au/articles/nsw-government-to-introduce-legislation-following-mach-energy-high-court-decision/>.

17 King, above n 4.

18 Ministerial media release, above n 1.

19 Net Zero Commission (NZC), 2026 Annual Progress Report (July 2026) available at <https://www.netzerocommission.nsw.gov.au/sites/default/files/2026-10/Net-Zero-Annual-Progress-Report-2026.pdf> (NZC, 2026 Annual Progress Report), p 82.

20 NZC, 2026 Annual Progress Report, above n 21, pp 82-83, citing data from the Commonwealth Department of Climate Change, Energy, the Environment and Water, State and Territory greenhouse gas inventories: 2023 emissions (2025) available at <https://www.dcceew.gov.au/climate-change/publications/national-greenhouse-accounts-2023/state-and-territory-greenhouse-gas-inventories-2023-emissions>.

21 Upstream, Downstream and Everything In-Between: Developments in Assessing Scope 3 Emissions in the UK (Report, Uplift, March 2026), available at <https://www.upliftuk.org/post/upstream-downstream-and-everything-in-between-developments-in-assessing-scope-3-emissions-in-the-uk>, p 7.

22 Minister for Natural Resources, ‘MACH Energy High Court decision’ (Ministerial media release, 7 October 2026) available at < https://www.nsw.gov.au/ministerial-releases/mach-energy-high-court-decision>.

23 Net Zero Commission, Coal Mining Emissions: Spotlight Report (December 2025), available at

<https://www.netzerocommission.nsw.gov.au/sites/default/files/2025

12/NZC_Coal_Spotlight_Report_2025.pdf>, p 37.

24 International Court of Justice, Obligations of States in Respect of Climate Change [2025] ICJ Rep 187,

available at <https://www.icj-cij.org/sites/default/files/case-related/187/187-20250723-adv-01-00-en.pdf> (ICJ Advisory Opinion), p 50 [183]

25 ICJ Advisory Opinion, citing Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment ICJ Reports 2010 (I) p 79 [197].