Parties charged with conspiring in connection with granting of exploration licence
Australia’s High Court dismissed appeals against a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which upheld findings of guilt relating to the common law offence of conspiracy to commit misconduct in public office.
In Obeid v The King; Obeid v The King; Macdonald v The King [2026] HCA 1, the Department of Primary Industries (DPI) held an exploration licence (EL), granted under the Mining Act 1992 (NSW), at Mount Penny in NSW.
The authorities indicted the appellants in this case – two family members and a mineral resources minister – for the common law offence of conspiracy to commit misconduct in public office.
Under the alleged conspiracy, the government minister would wilfully misconduct himself, without reasonable cause or justification, in connection with the granting of the EL. Two material facts supported the prosecution.
First, in September 2007, a company associated with the appellants’ family executed a contract to purchase a particular park west of Mount Penny at Bylong. A settlement occurred in November 2007.
Second, the Department of Mineral Resources identified a coal seam, following the Bylong Valley’s general direction. The coal seam’s eastern section lay under the park and two other properties. The EL covered the area with these three properties.
In late 2007, the DPI had no intention to release the area for private exploration due to the absence of an assessment of the coal seam’s extent and value.
The indictment concerned the minister’s steps to release the area for private exploration. Releasing the area for private exploration could benefit the appellants’ family, given their ownership of the park.
A trial judge of the NSW Supreme Court found the appellants guilty and sentenced them to imprisonment. The appellants each appealed their convictions.
The NSW Supreme Court’s Court of Criminal Appeal gave each appellant leave to assert a single appeal ground: whether the Crown proved a conspiracy to commit misconduct in public office, though it did not allege an agreement for the minister to do particular acts amounting to such misconduct.
The Court of Criminal Appeal dismissed the appeals. The appellants argued that the Crown’s case during the trial failed to constitute a conspiracy to commit misconduct in public office.
In dismissing the appeals, the High Court of Australia agreed with the trial judge that the scope and object of the agreement comprehended by the conspiracy grossly departed from the government minister's responsibilities.
The High Court acknowledged that the “particular acts” the minister would undertake to fulfill the agreement’s objects were unknown at the time of the agreement.
However, the High Court ruled that the agreement the Crown alleged in its indictment and particularised during the trial amounted to the complete offence of conspiracy to commit misconduct in public office.
The High Court held that the conspirators clearly contemplated an abuse of public trust – the minister’s use of his official position in connection with the granting of the EL to the financial advantage of the family members and their associates.
The High Court found the case, which the Crown put and proved at trial, capable at law of constituting a conspiracy to commit misconduct in public office.
The High Court rejected the appellants’ assertion that the minister’s agreement to favour the family’s financial interests could not amount to an agreement that he would commit the offence, as his manner of departure from the objects of his office was unknown at the time of the agreement.
The High Court found that the misconduct alleged and particularised by the Crown met the offence’s fifth element: the misconduct was serious and deserving of criminal punishment, considering the responsibilities of the office and the officeholder, the importance of the public objects served, and the nature and extent of the departure from those objects.
The High Court concluded that the tribunal of fact, not the conspirators, could determine whether the misconduct contemplated by the conspiratorial agreement was serious and deserving of criminal punishment.
