Brownlie v Environment Protection Authority of New South Wales

[1993] HCATrans 269

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S82 of 1992

B e t w e e n -

GEOFFREY ROBERT BROWNLIE

Applicant

and

ENVIRONMENT PROTECTION

AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA.ON FRIDAY, 10 SEPTEMBER 1993, AT 10.20 AM

Copyright in the High Court of Australia

Brownlie 1 10/9/93

MR B.W. WALKER:  May it please Your Honours, I appear with

my learned friend, MR P.W. LARKIN, for the

applicant. (instructed by Cowl~y Hearne)

MR K. MASON, QC, Solicitor-General for the State of New

South Wales:  I appear with my learned friend,

MS H.G. MURRELL, for the respondent. (instructed

by the Crown Solicitor for New South Wales)

MR H. BURMESTER: If it please the Court, I appear for the

Attorney-General of the Commonwealth, to support

the application by the Environment Protection

Authority of New South Wales.	(instructed by the
Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of

Victoria:  May it please the Court, I appear with

my learned friend, MR M.D. MURPHY, for the

Attorney-General of the State of Victoria,

intervening in support of the respondent.

(instructed by the Victorian Government Solicitor)

MR B.M. SELWAY:  If it please the Court, I appear with my

friend, MS G.L. EBBECK, for the Attorneys-General
of the States of South Australia and Tasmania,

intervening in support of the respondent.

(instructed by the Crown Solicitors for South

Australia and Tasmania)

MASON CJ: Yes, Mr Walker.

MR WALKER:  If it please Your Honours, this Court in Port

MacDonnell, 168 CLR 374, noted what it described as

the problem, which was not presented by that case,

of what it described as competing State laws

enacted by States both of which had what was

described as a real connection with the matter in

hand.

This case, as described by the Court of present an example of the laws of two States, Criminal Appeal in New South Wales, does, we say,

Queensland and New South Wales, which by their

terms and in their operation, that is, on the Court

of Criminal Appeal's view of the New South Wales

laws operation, affect the same person, namely,

Mr Brownlie, and the same transaction, namely, his

conduct in applying insecticide to his cotton crop

in Queensland.

It is our submission that this case presents

for this Court the possibility to consider the
problem referred to in Port MacDonnell in the

particular, and we say sharp focus, of competing

criminal statutes. Statutes which, in our

submission, are properly characterized as laws

Brownlie 10/9/93

which render certain conduct punishable as the most

direct and coercive means by which civilized

governments, according to the rule of law, seek to

guide or regulate conduct within their reach.

We say that the approach taken by New South

Wales in its legislation, that is, by

characterizing its legislation as a law which may

properly punish Mr Brownlie's conduct in

Queensland, adds a gloss to the maxim, which we

submit still has real force and vigor, all crime is

local. We say it does so by relying on a supposed

doctrine of State interest, which we submit this
Court should reject in the form proposed by New

South Wales, as one which may permit, according to

circumstances, some crime to be more or less local
than other crime or, in the particular context of

the legislative competence of the States, would

permit some States' legislation, by way of criminal

statute, to be more or less locally confined

according to circumstances.

For the reasons we would seek to develop,

those are arguments which, in our submission, are

anti-federal in their nature, that is, both their

expression and their consequence.

There are three arguments for which we seek

leave to appeal so as to challenge the decision of
the Court of Criminal Appeal. The first argument

is in two forms but in both forms it advances the

following proposition that, as a matter of

legislative competence by reason of Federation and

overreached itself in this case by claiming to render conduct of the kind carried out by

in particular sections 106, 107 and 108 of the

Mr Brownlie in Queensland punishable in New South

Wales.

There are two forms to the argument. The

broader form is that the New South Wales Parliament

regardless of whether Queensland has enacted laws	lacks the power to enact a law with such a reach,
which cover the same conduct. The second form is
that the power of New South Wales to enact a law
with this extraterritorial effect is subject to and
must yield to the superior power of Queensland which it has exercised to enact laws with
intra-territorial effect covering the same conduct.

McHUGH J:  What do you mean by extraterritorial effect? The

pollution takes place in New South Wales.

MR WALKER:  For reasons which we will develop in a very

short time, it is not at all clear that it may

confidently be stated that the pollution as defined

Brownlie 3 10/9/93

by the New South Wales statute takes place in New

South Wales. For reasons which we will develop, it

also takes place in Queensland.

But, the extraterritoriality which we

attribute to this law has, of course, nothing to do
with a choice of law problem, or the question of

what law the New South Wales statute should apply,

that is not an extraterritorial effect. The

extraterritoriality is, with respect, to the

legislative reach to regulate conduct outside the

State, by a general criminal statute as opposed to

a purely intra-territorial law that is obviously

within the legislative competence of New South

Wales to enact, to regulate the private adjustments

of rights and obligations, or to regulate the

procedure for dispute resolution by reference,

amongst other things, to out of State elements.

McHUGH J:  Does that mean if somebody is standing in

Queensland shot somebody dead in New South Wales,

that New South Wales could not charge that person

with murder?

MR WALKER:  No. We distinguish this case, and cases which

would be similar to it, from cases of that kind by

drawing what might be called, Your Honour, a grim

analogy with an American approach in civil law.	In
the American jurisprudence on full faith and
credit, as well as on due process, the 14th

Amendment, one finds justification for the subjection of out of State actors to a State's laws by factors including their voluntary entering into the stream of influence of that State, the obvious

example being someone who, from out of State, seeks

to trade into a State, or in a State.

The grim analogy is that somebody who, with

the requisite intent necessary for the offence,

fires a projectile across a border plainly intends

to be having the sole effect in the other State.

Such cases are clearly cases where dividing lines,

having no breadth, must still be given meaning in

law and, we say, clearly it is in the interest and

proper scope of the State where the person is

killed, having been struck by the bullet, to

legislate so as to render criminal what might

otherwise be called "conduct" in another State,

because in that case the conduct has been done with

the intention, and with the practically inevitable result, of having its sole effect, or at least its major intended effect, in the other State.

So that cases where it can be said that the out of State actor has subjected themselves

according to a rule of, or a notion of,

argumentative fairness to control of the conduct by

Brownlie 10/9/93

the State in which that conduct's intended effect

happens is to be distinguished from cases of the

present kind where it would be absurd for anyone to

suggest that Mr Brownlie intended to spend money on

endosulfan in order to kill fish in Queensland

where, in fact, his intentions have been defeated

by it being washed off his crop and into New South

Wales eventually.

BRENNAN J:	Mr Walker, you speak of conduct but if you are analysing conduct which is incriminated, are you
speaking of the physical act, the circumstances
attended upon the doing of the physical act, or the result achieved by the doing of the physical act in the circumstances?
MR WALKER:	Your Honour, for the purposes of our argument

when we use the expression "conduct", and I am

grateful to Your Honour for reminding me to define

it, we are referring to the physical act

acknowledging that in the case of omissions that is

physical in a slightly different sense.

BRENNAN J:	Then what you are saying is that irrespective of the result effected by a physical act, the
legislative competence is limited to the
proscribing of the physical act.

MR WALKER:  No, no. Our argument says nothing about the

propriety of enacting laws in the familiar and time

honoured form which attaches criminal liability to

acts with certain consequences.

BRENNAN J: But you are speaking in terms of murder and

using the term "intent" as the distinguishing

feature?

MR WALKER:	Yes.
BRENNAN J:	So you are looking at an intended result as

enlivening power but not an unintended result?

MR WALKER:  That is one of the distinctions we draw. We

also - for the purpose of the rifle shot across a border or the letter bomb posted in Brisbane with an address for delivery in Sydney or a conspiracy in premises in Queensland to cheat people in

New South Wales. It is not only the intended

location of the effect upon which rely to justify

what would be the ordinary expectation of

legislative competence in New South Wales to punish

such acts but it is also, in the case of those acts

with a physical connection, the fact that for all

practical purposes that result is inevitably going

to happen in the other State. In other words, if

the intention is achieved, the result must, in the

ordinary course, happen in the other State.

Brownlie	5	10/9/93
BRENNAN J:	Does your argument come to this:	legislative

scope depends upon probability of result and

intention?

MR WALKER:  No, Your Honour. Probability is too weak a word

for the quality that we describe as practical

inevitability. Probability would permit, we say, a

tenuous nexus between the actor and the

psychological state, whether it be intention or carelessness does not matter for the purpose of

this argument, which is discordant with the notion

of criminal liability at great territorial removes.

For example, probability may well render, on

the argument upon which New South Wales succeeded

below, a downstream territory, such as in this

case, South Australia, the dominant legislature for

controlling certain conduct in a watershed.

Australia has huge watersheds. The watershed of

rivers which are vital to the well-being of

South Australia, in which South Australia has the

clearest and most obvious political interest, will

extend far beyond South Australia to Victoria, New

South Wales and Queensland.

We say that if mere probability, let alone

possibility, were a test by which South Australia

could justify the criminalizing of agricultural

practices in Queensland, which are permitted by

Queensland's legislature, then there would have

been, as I say, the assertion of, in that case

literally but in other cases figuratively, a

downstream dominance which grants more power in

territorial reach the further away, either

literally or figuratively, a legislature finds
itself from the location of the original act. It

is for that reason that examples which immediately

spring to mind, such as the rifle shot across a

border or a letter bomb in a mail system which

usually delivers, is different from the

possibilities which may arise with pollution

offences, for example, where multifarious natural

and human influences may intervene between the

original act and omission and the ramifications of

its effects in many different places thereafter. e

We submit to Your Honours that intention is a

useful distinction because it is at the heartland
of a traditional concern in criminal law,
notwithstanding offences of strict liability, a
regard for intention and its effect on the

criminality of conduct is at the heart of the moral

purpose of criminal law, and we say that in terms

of a realistic nexus with effects, something

relatively intimate, which we chose to describe as

practical inevitability of effect, is one which

properly recognizes that people ought not to be

Brownlie 6 10/9/93

punished criminally for things which, for example,

would be regarded as far too remote to attract tort

liability because of the multifarious causal links

and ramifications necessary to be achieved in order

to link causally the act with the proscribed

effect. For those reasons, Your Honour, we do not

characterize the distinction we advance as turning

on probability.

Your Honours, could I move then to the second

argument - - -

DEANE J: If you bring in a reference to tort liability,

what would you say the position would be if your

client's activity had caused damage to A's property

in Queensland and B's property in New South Wales

and each had brought proceedings in negligence, A

under the law of Queensland, B under the law of New

South Wales?

MR WALKER:	Subject only to choice of law rules which, almost certainly in such an example, would have no
difference and would play no part in the argument,
Mr Brownlie would be liable.
DEANE J:	What is the difference, because there you have the

tort law of Queensland saying that his act is

tortious and unlawful; you have the tort law of New

South Wales applying to his physical act and saying

it is tortious and unlawful by reason of the result

it produces in New South Wales?

MR WALKER: 

The difference, Your Honour, lies in the nature

of criminal law and the governmental function of
criminal law.

DEANE J:  I follow that. I was just querying your calling

in aid a tort analogy, which you also did with

reference to the American cases.

MR WALKER:	Yes, and I should make it clear, though disavowal may not suffice, that we do not call in	aid the American cases which we have cited in our
written submissions, or those which we may refer to
in address or tort law generally, as being in any way directly applicable to our argument. In the course of the reasoning by which the results have
been reached in the various decisions to which we
refer and in the commentary about them, there are,
however, observations concerning the proper sphere of influence of legislation upon which we draw for
a completely distinct purpose, and we disavow any
in principle similarity between the tort adjustment of private rights and obligations, particularly at common law, though at statute in principle the

Brownlie 10/9/93

same, and the criminal legislative competence which

is the subject of our argument.

McHUGH J: Supposing this particular statute had given a

private cause of action to a person who was

affected by pollution, would that person be
entitled to enforce the statute against your

client?

MR WALKER:  Yes, for the private tort.

McHUGH J: But I thought the theory was that the duty that

the statutory cause of action proceeds on the basis that the duty is defined by the criminal liability.

MR WALKER:	No, Your Honour, we are not saying that the criminal statute of Queensland defines for all
purposes that which is capable of judicial
adjudication and that which is not capable of judicial adjudication in Queensland or in other
places.  We are only concerned with the criminal
liability, and we say that criminal statutes have
an intimate relation to the essence of a self-governing territory, and it is for those
reasons that we speak in terms of legislative
competence to control conduct in another State's
territory.

McHUGH J: But the point I was making to you is: if there

is no criminal liability, there can be no private

right of action on the statute.

MR WALKER:  We do not say that. If the Queensland

legislature had said nothing and in the case which

is this case, namely it has proscribed certain

conduct on certain terms, but a New South Wales

resident wished to sue at common law for damage

supposedly caused by conduct in Queensland, the

content of that criminal law, either the silence or

the enactment, in Queensland would have nothing to

say about the topic at all.

Similarly, if a New South Wales statute

provided a cause of action to persons whose

property in New South Wales was damaged and, on its

proper interpretation, that applied to damage

caused by out of State events, an interpretation
which we would respectfully submit is unsurprising

and very likely, then that too, we would say, has

nothing to do with and is not affected by anything

said by the legislature of Queensland by way of

regulating conduct with criminal sanctions.

What we say about the regulation of conduct by

criminal sanctions is that it is at the very heart

of the governmental function of a legislature

responsible to its electors for conduct, that which

Brownlie 10/9/93

is right and wrong conduct, in its territory in

order to control or guide conduct generally, as

opposed to those elements, be they facts or legal

rights and liabilities, which may as between

individuals on the facts of any particular case

give rise to rights to compensation or other

judicial relief.	We say they are two entirely
different spheres of governmental concern.	Our

target in our argument is the New South Wales Court

of Criminal Appeal's implicit assertion that New

South Wales' interest extends to governing conduct

in Queensland by criminal sanction in exactly the

same way as Queensland clearly has an interest in

governing conduct in its own territory by criminal

sanction.

McHUGH J:  How do you deal with the illustration of a

conspiracy in Queensland to import drugs into New

South Wales? There is no inevitability about that.

MR WALKER:  I had hoped, Your Honour, to have dealt with it

by the distinction I raised earlier, namely

intention and, for all practical purposes,

inevitability.

McHUGH J: There is no inevitability. The conduct may never

be carried out.

MR WALKER:  Your Honour may recall that I used the

inevitability for those examples with what might be

called a physical connection. With conspiracy, the

analogy with the US civil cases of somebody being

bound by a legislature's commands and punishments

because of the entry into that legislature's

territory is very close. So, the nefarious

business intended by the conspiracy bears a very

close analogy, indeed perhaps a complete one, with

the out of State manufacturer who seeks to trade in
the State which legislates to impose liability and

we deal, therefore, with that case, very much by

reference to intention. In the sense that that

intention, not because of some magic quality of

that psychological State, but because that

intention renders it appropriate that the person be

judged, be dealt with, according to the law

governing outcomes, where his outcome is intended.

In other words, there would be a total asymmetry for a person who intends to cheat

residents of Sydney to say that he ought to be

judged by the law governing the cheating of

residents of Brisbane.

McHUGH J: Could I ask you one final question: would your

client be guilty, on your theory of legislative

competence, if he had intended to pollute the New

South Wales river?

Brownlie 9 10/9/93

MR WALKER:  Probably yes, depending upon the way in which

the statute was framed.

McHUGH J:  Even if it is a strict liability offence?

MR WALKER: That is why I added the qualification.

Your Honour's question, in one sense - and I hope
Your Honour takes no disrespect from what I am

about to say - has nothing to do with the present

statute because this case has been run on the basis

that it is strict liability.

McHUGH J:  I am assuming that, but what I putting to you is

that - - -

MR WALKER:  Yes, if the statute were a statute which

punished the intentional launching of pollution

into New South Wales, then, for precisely the same

reasons as we seek to deal with rifle shots and

letter bombs and conspiracies for interstate fraud,

we would not merely concede but assert, for exactly

the same reasons and principles of a State's

governmental interest in regulating conduct and

outcomes in its own Territory, that that would be

covered, that would be competent.

McHUGH J:  But it seems a strange doctrine that a State can

protect itself against a result only when a State

decides to make the intention of the wrongdoer part

of the offence.

MR WALKER:	Your Honour, it is not a strange doctrine once one accepts the appropriateness of subjecting
people to laws of places where they intend either
to take advantage of conditions in that place or to affect people in that place. That, of course, is a familiar form of argument in different but related
areas.

BRENNAN J: But your argument comes to this, does it, that

the distinction between power and no power depends

upon the distinction between intention to produce a

result and non-accidental production of a result?

MR WALKER:  Your Honour, "non-accidental" does not have the

same - - -

BRENNAN J:	I appreciate that, but it is the criminal standard, is it not?
MR WALKER:	Yes, Your Honour.
BRENNAN J:	So that, in this case it is a non-accidental production of the result.
MR WALKER:	We would not concede that of this case, but the issues which we bring to this Court - - -

Brownlie 10 10/9/93

BRENNAN J: Under this Statute?

MR WALKER: Under this Statute.

BRENNAN J: 

The liability is for non-accidental pollution.

right. This case was not being conducted in such a
way as to explore the non-accidental element at

MR WALKER: 

Your Honour, that may with respect, not be

all. It is possible that section 16 does, in

effect, impose criminal liability for what laymen

would call, accidental effects; though, of course,

non-accidental conduct.

BRENNAN J: Non-accidental conduct is - - -

MR WALKER: It is clearly non-accidental conduct.

BRENNAN J:  Do you suggest it is an offense of absolute

liability?

MR WALKER:  Yes.

BRENNAN J: That may be so.

MR WALKER:  We certainly would not say that section 16, on

its proper construction, punishes only non-

accidental effects. In our submission - - -

BRENNAN J: It just seems to me that the criterion that you

are looking for is one that is elusive, to put it

at its lowest. If we are looking at certainty or

inevitability of result, intention; going down the

scale, accidental, non-accidental; it just seems to

me that it is a very curious kind of criterion to

look for.

MR WALKER:  What Your Honour describes as a criterion is

what we would put as the nature of a law within legislative competence to control, by a general

criminal command, the conduct of persons outside

the legislative territory.	We accept the
extraterritorial legislative competence of the

Australian States. Whether the criterion or

qualities by which we seek to distinguish between

an incompetent and competent law of that kind are

elusive, is a matter for Your Honour's judgment.

However, we say the answering argument, that

espoused by New South Wales, presents even greater

elusiveness in a manner in which I would seek to
elaborate in a while, and introduces invidious
questions which operate far more greatly to the

political and personal detriment of residents of

particular States than do what might be called the

novelty of the argument that we present.

Brownlie 11 10/9/93

In our submission, what Your Honour describes

as illusiveness is really a consequence of the

relative novelty of what we advance and that, if

accepted, the standard which we propose would not

be illusive or difficult in practice, particularly

by comparison with the contest of legislative competences to be decided, as it were, in the

kitchen of every Queensland farmhouse before the

spraying commences, as to which law prevailed or as

to how many laws apply and which ought rationally

be obeyed for fear of the greatest punishment.

Your Honours, the second argument of the three

we wish to advance is that the power of New South

Wales to enact a law, with this kind of territorial

effect, is subject to and must yield to the
superior power of Queensland which Queensland has

exercised to enact laws with intra-territorial

effect governing the same conduct. That is the

second way in which we wish to put our first

argument about legislative competence which rests

on a federal principle in sections 106 and 107 of
the Constitution.

Our second argument relies on section 118 of

the Constitution and it is that the stronger claims
of Queensland to regulate Mr Brownlie's conduct,

that is, by comparison with the claims of New South

Wales, require legislative reticence on the part of

New South Wales so as to give "full faith and

credit" to Queensland's laws and public act, which

cover his conduct.

The third argument is not constitutional at

all, and that is that the difficulties of State

legislative clashes, which we submit may be

resolved by the two constitutional arguments, are
also overcome by section 12 of the New South Wales

Interpretation Act 1987, which imposes a

territorial limitation which, we submit, has been

wrongly applied and construed by the Court of

Criminal Appeal.

The first two arguments, the constitutional

arguments, go beyond any specific authority of this

Court, though, we say, is contrary to none of them.

The arguments concern what we submit is the

essential character of the Federation and the
serious question whether the Constitution provides

the means to prevent deleterious clashes of

legislative powers between States, while preserving

the freedom of the people of every State, to use

the expression of covering clause 5, to be governed

by the two Parliaments, Federal and State, which,

as residents of a State, they have a right to

elect.

Brownlie 12 10/9/93

Our constitutional arguments are directed to

legislative competence. We do not challenge the

principle of extraterritorial legislative

competence of State parliaments. We do not invoke

section 118 in the context of choice of law. This
case does not concern choice of law rules at all in

the sense they were considered by the Court in

Breavington, McKain and Stevens. We do not, of

course, challenge any part of the binding judgments

or decisions in those cases.

Our thesis is, overall, that the local

sovereignty of Queensland's Parliament in

Queensland, particularly with respect to crime,

ought to be the key to the resolution of the

problem.	Our argument does not require any wider
theory of a national legal system.	We do not seek

to confine all the legal consequences of for the reasons I have offered in answer to

Your Honours' various questions, for example,

success in this appeal on any of the grounds we

advance would, we say, have nothing to do with any

tortious liabilities for acts or omissions having

an effect across State borders.

Our arguments are directed to the mutual

limits of legislative power of the States and looks

to the fact that the States are members of one federal nation. We are not concerned with the

common law rules of private international law used

to regulate dispute resolution between individuals
or private litigants.

Your Honours, the facts are in narrow compass and are clearly set out in the application book,

but the following are the matters upon which we rely in particular to point up the arguments of principle we seek to advance. At the end of 1988

Mr Brownlie had endosulfan applied to his cotton

crop growing on his property in Queensland.	As
Your Honours have learned, endosulfan is an
insecticide. It has replaced DDT, of notorious

familiarity, in cotton growing operations.

Unfortunately, as well as being fatal to insects,

it is also deadly to fish but it has a low water

solubility. Obviously Mr Brownlie used the poison

to help him grow cotton and not for the disastrous

purpose of killing fish.

After he had had it applied, a rainstorm

broke. That washed some of the endosulfan off the

crop where it was intended to stay. The trial

judge found that the run-off containing this

endosulfan flowed through a gully after leaving

Mr Brownlie's property and eventually into the

Barwon River. As Your Honours know, some days

Brownlie 13 10/9/93

later dead fish were discovered at Mungindi, some

10 to 20 kilometres downstream. The Barwon River

flows through Mungindi and the border 'between

Queensland and New South Wales is in the centre of

the stream. The trial judge found that the fish

had been killed by the endosulfan which had

originally been applied to Mr Brownlie's crop.

It may or may not be critical to our argument

to observe the following. Mr Brownlie's conduct

may or may not have been punishable under

Queensland statute law. Under subsection 23(1) of

the Clean Waters Act, Queensland, 1971, an occupier

of land without a requisite licence who discharges

wastes indirectly to any waters commits an offence.

The maximum penalty at that time was $10,000,

section 48. But subsection 23(1) was itself

subject to subsection 23(2) which prevented the
application of the offence-creating section to

cases of storm water run-off from agricultural

lands if the operation complied with certain

administrative requirements of what is known as the

Water Quality Council of Queensland.

In the proceedings in the New South Wales Land

and Environment Court there was insufficient

investigation of the facts to allow it to be found

now whether or not there would have been an offence

committed against this Queensland statute. If the
onus lay on the prosecution in Queensland, for

example, to show non-compliance with council

requirements, then the onus was not discharged on

the basis of any evidence which was before the New

South Wales court.

In fact, he was prosecuted under the Clean

Waters Act of New South Wales on two counts, both of which are summary. Your Honours have seen the relevant provisions and they are reproduced at

pages 30 and 31 of the application book. The

elements to which I draw Your Honours' attention in

particular relate to Mr Justice McHugh's earlier

question concerning the location of the pollution,
as His Honour put it, in New South Wales.	The

structure is that under subsection (1) a tolerably

simple statement is made that:

A person shall not pollute any waters.

But in subsection (2), which was beyond any

question relied on by the prosecution, there is a

deeming definition of pollution. The deeming

definitions which were used in this case, as the

Chief Justice Mr Justice Gleeson has observed, are both items (i) and (ii) in paragraph (a), that is,

Mr Brownlie placed matter in a position where:

(1) it was washed "into any waters";

Brownlie 14 10/9/93

(2) Mr Brownlie placed matter in a position where

it was likely to be washed "into any waters".

For the purposes of the section 12 argument and in order to make out the offence, it was

conceded, and we understand this concession will

not be withdrawn, that "waters" in the expression

judgment and in the Court of Criminal Appeal judgments the contretemps that happened at the trial and was argued on appeal concerning the form

"into any waters" must mean New South Wales waters.

of the informations concerning location.

We say, for the purposes of our section 12

argument, but I will observe it now while looking

at the statute, that just as "waters" in that

expression is properly conceded to be New South

Wales waters, so must the "dry bed" which follows,

the "drain", the "channel" and the "gutter". All
of those must be in New South Wales by parity of

reasoning with "waters".

Your Honours will note that, as well, it is

clear that the "position" referred to in

paragraph 16(2)(a) is different from "the waters"

themselves, and that appears from the last lines of

subsection (2) because it is there pointed out that

it is necessary for an offence using that deeming

definition to show that the matter would, had it

been placed in any waters, have polluted or been

likely to pollute those waters.

Subsection (3) is an offence creating

provision under which my client was also convicted.

Its relation with subsection (1) is obscure as

referred to by the Chief Justice. That is not an

obscurity with which we will trouble Your Honours.

It suffices to note, for the purposes of our

legislative competence argument, that

subsection (3) would appear, if it has

extraterritorial reach, to be referring to actions

in Queensland in this case for the conviction to

have been proper. Accordingly, on New South Wales'

argument, subsection (3) reaches directly into

Queensland by punishing conduct entirely in

Queensland.

Your Honours will note subsection (4) which, perhaps, adds to the obscurity referred to by the

Chief Justice, but is of no moment for our

argument. Subsection (6) has this relevance: that

it provides non-application of the offence creating

provisions for those who have a licence, and who do

not contravene the conditions of a licence. That

licence, of course, is from a New South Wales

authority. That licence, therefore, would appear,

Brownlie 15 10/9/93

on the argument New South Wales advances, to be a

licence which Mr Brownlie, realistically, could

never have been expected to be seeking.

In subsection (7) the then maximum penalty was

$20,000, a disparity of outcome with the Queensland

provision where the then maximum was $10,000. Of

interest to note is that that disparity has been

increased. The maximum is now $60,000 under the

Environmental Offences and Penalties Act 1989 in

the case of unintentional conduct.

The deeming definition to which I have taken

Your Honours, as the Chief Justice observed -

application book 32 to 33 - meant that Mr Brownlie

was guilty at two temporal stages, that is, the

offence was committed at two temporal stages.

Those temporal stages coincide with physical

location. First, he was guilty when he sprayed his

land because when he did so he placed the

endosulfan in the position where it was likely to

be washed into the Barwon. Following the rain,

when the contaminated run-off had flowed into, down

and across the Barwon, he was again guilty for

having placed the endosulfan in a position where it

was washed into New South Wales waters.

It is clear, then, that the reach of this

statute is to proscribe and punish not merely

consequences in New South Wales of conduct in

Queensland, but also a consequential State, namely

a likelihood, fully achieved in Queensland. The

result is that he has been convicted and fined on

the basis of a statute as a result of a prosecution case, part of which relied on the likelihood of the

endosulfan being washed into the Barwon River, an

argument which succeeded as soon as facts were

proved concerning his conduct in Queensland and the

nature of the watershed from his property to the

Barwon.

He was fined $12,000, that is, in excess of the Queensland maximum. He was fined $12,000 on

the conviction under section 16(1) and he was fined

$1 on his conviction of the offence under section

16(3). We, none the less, challenge both

convictions for the reasons of principle, or seek

to challenge both convictions.

Could I then move, Your Honours, to the

reasons why, in our submission, sections 106, 107

and 108 and the act and fact of Federation deprived

New South Wales of the competence to enact

legislation in that form.

Your Honours, a defining characteristic of any

self-governing political entity is that its

Brownlie 16 10/9/93

legislature governs in its territory, thus self-

governing. The essence of government is the

exertion of State power, the civil power as it has

been called, to effect control and regulate conduct

and conditions in its territory, the government's

territory. The essence of democratic government,

we say, is the right of the people to oversee and
ultimately direct their own government by

expressing approval or disapproval of their

representative's actions in government by their

periodic votes.

MASON CJ:  Mr Walker, you are, of course, presenting an

application for special leave. You ought to

confine your submissions within that framework.

MR WALKER:  May it please Your Honour. Your Honours, we say

that the Court of Criminal Appeal has overlooked an

essential element of the federal respect for the

States as self-governing legislatures. When we say

federal, we mean the provisions of sections 106,

107 and 108 inserted by the peoples of the colonies

to govern their relations as peoples of the States

thereafter.

While extraterritorial legislative competence

obviously follows from the nature of self-

government, because interests of a State may

require attendance to elements out of State, there

is an essential difference, we say, that the

Court of Criminal Appeal did not regard between the

position obtaining, with respect, to independent

nation States, one against the other, and the

position between the States of the Federation.

Between nation States it is only comity, and

that not compulsorily, which restrains the exercise

of legislative power to encompass control by

criminal sanction of conduct outside the territory.

Nation States, of course, are free to go to war

against each other. More to the point, nation

States do not, by their existence as nations,

individually undertake to preserve the existence of

other nations let alone the maintenance of the

civil power in other nations.

We say the Court of Criminal Appeal paid no

regard, or inadequate regard, to the fact that the

argument under sections 106, 107 and 108,

particularly 107 with respect to the powers of the
parliaments of the States, involves a compact

between the peoples of the States, and that means on a political legislative level, something which

binds the States, to ensure that the powers of the other States are not prevented from continuing, to use the word of section 107.

Brownlie 17 10/9/93

If section 107 were given a literal, or what

the Americans might call an automatic, effect, then

a similar absurdity might flow from some arguments,

which have been rejected and which no member of

this Court has espoused, under section 118; that

is, it would be absurd if regard for the powers of

a neighbouring Parliament's extraterritorial

legislative competence meant that another State had

to accept the dictate of that neighbouring State's

legislation in its own territory. That would be

absurd.

In order to avoid that absurdity and to serve

the federal principle of one nation, in our

submission, 107 ought to be construed to as to

require the power of the respective parliaments to

be preserved in continuance by each of those
parliaments by refraining from legislating where

there is no doubt but that the neighbouring State

has a prior claim. We say there can be no argument

but that control by threat of general criminal
sanction on conduct inside a State is a prior
claim.

One need only contemplate this consequence of New South Wales' argument with respect to land use

regulation generally. If New South Wales be right,

the interest of New South Wales to improve the use

of its land must involve a power to affect by

direct legislative control, civil or criminal, the

use of neighbouring land because adjacent lands

clearly affect the ability properly to use land

next door.

This is even more obvious in the case of

rivers which, far from dividing, both physically

and in economic terms, link people on either side.

The watersheds come from both sides of a stream.

Land use which refers to land use regulation

concerned with regulation of water use or of water

purity plainly therefore, on New South Wales'

argument, gives to each State on either side power

to punish by criminal sanction conduct one in the

other.

In our submission, the Court of Criminal

Appeal has given insufficient regard to the fact that in a country like Australia, it necessarily

follows that more than two States may compete for

that control because watersheds affect more than

two States. If conduct in the watershed, as New

South Wales must be asserting, is sufficient to

provide the territorial nexus, the State interest

which justifies this extraterritorial reach, then

the further upstream one is, the greater number of

legislatures may govern your conduct by criminal

sanction.

Brownlie 18 10/9/93

In our submission, no decision of this Court has yet addressed whether that is a proper federal

outcome, particularly in light of section 107. No

decision of this Court has addressed whether the
powers of the Parliament in section 107 ought, for

example, be construed in light of the belief in the

1890s, made manifest in MacLeod's case, of course,

that those colonial legislatures had severely

circumscribed extraterritorial legislative powers

indeed. But even if ahistorically one were to

assume that section 107 was inserted by persons who

were completely accepting of the extraterritorial

legislative competence, found by this Court in

Union Steamship, then the fact would remain that

section 107 bound the States and the people of the

States so to use their respective parliamentary

powers as not to prevent the continuance of the

powers of other parliaments. Purposefully, and not

absurdly, that requires mutual restraint from areas
of intraterritorial criminal control.

Your Honours, the argument, in our submission, which has not been considered by this Court in any other case and in particular has not been

considered with respect to the intimately

governmental interest in criminal statutes, just as

in judicial systems and in procedures of courts,

concludes with the proposition that when the people

of the colonies agreed by agreeing to sections 106,

107 and 108, particularly section 107, that upon

statehood in the:

one indissoluble Federal Commonwealth -

referred to in the preamble, "the civil power of

each of them should continue'', to use section 107's

words, and that the laws of the Colony which became

a State should continue in force in the State. The

preposition "in'', in our submission, accords with

the basically territorial sovereignty of the

understanding then and now of self-governing

legislatures.

Your Honours, it may be that the fallacy which

informed the reasons in MacLeod's case help explain

why there is no equivalent of section 109.	The
argument we seek to put is that section 107

fulfills any deficiency which may be thought thus

to have arisen. The consequence in this case we wish to argue is that if there was ever power in

New South Wales to render conduct in Queensland

criminal, as extraterritorial legislative

competence may well otherwise suggest, then a

literal or automatic operation of section 107 would

be a self-defeating absurdity; an exercise in

fruitless cancelling out, one by the other

Parliament. That cancelling out whereby each

Brownlie 19 10/9/93

Parliament, Queensland and New South Wales claim to

have competence to regulate by criminal sanction

conduct in the other territory, does not continue

power; in our submission, it renders it a nullity

in both places.

Section 107, we say, does not command each

State to bow to the power of other States to

legislate extraterritorially so as to see defective

control over its own territory to the possibly

multifarious, and therefore discordant effect, of

other States' criminal legislation.

TOOHEY J:  Mr Walker, is this an argument that depends upon

the prior existence of Queensland legislation
relating to pollution, or does it derive from the

subject-matter of the New South Wales legislation?

MR WALKER:  Your Honour, the argument at its highest does

not depend upon the prior, or any existence, of

Queensland criminal statute, but in its alternative

form, does. It certainly requires consideration of

the form of the particular statute because,

depending upon the kind of considerations we

referred to earlier, a criminal statute which pays

regard to extraterritorial elements need not be, on

the arguments we wish to put, beyond the competence

of New South Wales, far from it. So, yes, the

terms of the New South Wales statute and its

subject-matter are important to our argument.	The
prior existence of Queensland legislation is

critical to our alternative argument, but is not
critical to the first way we put it, because the

first way we put it says that it is an exercise of

power by the Parliament of Queensland to stay its

hand, as well as to speak, with respect to criminal

sanction. That parliaments exercise power by not enacting prohibitory or criminal sanction as much

as by enacting them, that is the first way we put

it.

Alternatively, if it is natural to describe the power of a parliament, bearing in mind what

parliaments do, as the power to enact legislation,
then it would at least follow that the power to
enact its own Clean Waters Act, with effective

control by criminal sanction in its own territory,

is the power which cannot be truncated by New South

Wales' exercise of extraterritorial reach.

In our submission it is significant that an

unstoppable consequence of New South Wales'

argument is that one can never be assured that it

will only be two States on either side of the

river, or on either side of the border, who are in

conflict as to which set of criminal sanctions will

guide the conduct of rational persons. In other

Brownlie 20 10/9/93

words, if people rationally respond by obeying that

law which threatens the worst consequence to them,

it is clear from New South Wales' State interest

argument that this must permit more than one State

to provide its threat, its sanction, so as to guide

conduct in one place, and the example we have

already given of South Australia's obvious interest

in the purity of what eventually becomes the

Murray, is just one example.

The State interest argument - may it please

Your Honours, I will leave that to matters of

reply.

Consequences of the Court of Criminal Appeal's

assertion that New South Wales' interest was

entirely sufficient to justify the enactment of
this statute include the important matter for
personal liberty of the doctrine of autrefois,
convict or acquit. If such statutes are enacted
which require an effect, deemed or actual, in the

territory of the enacting States by reason of

conduct in some out-of-State location, then it will

not follow, of course, that the evidence necessary

to secure one conviction will be sufficient to

secure another conviction; even more so when there

are systems of local licences or local
requirements, as in this case.

The resultant inconvenience is, in our

submission, worthy of more than the word
"inconvenient". It is, in our submission, entirely
invidious that according to this doctrine of State

interest justifying State power persons in any one

location who are described using constitutional

expressions as residents in that State, and who

elect just one State Parliament, are none the less

put to difficult legal choices which may require
judicial determination as to which of the statutes

they would rationally obey in order to avoid harsh

consequences.

Imprisonment is a very common criminal sanction. Imprisonment will, of course, always be

inflicted and suffered in the place of the court

where the conviction is entered. The spectre is

therefore raised, we say, which ought to be

dispelled by a decision of this Court of persons by

their one act of conduct being liable to

imprisonment in various other States,

notwithstanding that they have committed just the

one act. As soon as one has offences of strict

liability, as in this case, where mere scientific

or physical demonstration of causation to an

effect, or worse, to a threatened effect, which is

the first leg of the prosecution case against us,

as soon as they are enacted, in our submission,

Brownlie 21 10/9/93

that spectre necessarily arises on the approach

taken by the Court of Criminal Appeal.

We say that the basis upon which we would seek

to ground our argument, namely, that location,

locale or territory, ought to be always the prior

claim of legislative sovereignty, is entirely

consistent with the notion of residency, or

belonging to a State which is found, as I say, in

covering clause 5, in section 75(iv), in

section 100 and in section 117. Similarly, though

for entirely different purposes, the Constitution,

has regard to the physical location of crime in

section 80.

In our submission, it would be curious if one

did not prefer the place where the act or omission

took place rather than the place where threatened

consequences or actual consequences may unwind one

after the other. In our submission, the importance
is that the consent of the government, the
sovereignty of the people, is reflected in ensuring
that criminal liability, being the general control
of conduct by government, is imposed by the

Parliament for which one may vote according to the

basically residential franchise throughout

Australia.

Finally, in our submission, this argument

accords with the approach taken by this Court in

the entirely different area dealt with in

Breavington v Godleman, McKain v Miller and Stevens

v Head because the argument by a broad analogy

gives the same prominence to the place where the

wrong act was committed as the new choice of law

rules give for that different civil purpose. The

analogy is clearly not perfect because there is a
difference between the location of criminal acts

and the occurrence of the last element in a civil

cause of action but, in our submission, it accords

with an appropriate federal principle as well as

with the common law notions adumbrated in those

cases, namely a prior claim of physical location as

the place where the legal characterization of

conduct ought be determined.

For the higher alternative we put for this

argument, we rely by general analogy on the US

dormant or negative commerce clause approach in

answer to Justice Toohey's question, namely that

even if Queensland has not spoken, that is a power

of Parliament to be continued. Alternatively, we

rely of course on the fact that Queensland had

spoken in this area.

Your Honours, South Australia, we understand,

will raise an argument about simultaneous obedience

Brownlie 22 10/9/93

and the manner in which that may be used to resolve

these problems. If we may, we will not touch on
them in-chief. They do not inform, in our

submission, the reasons why special leave ought to

be granted to raise the argument of federal

principle which we have just put.

Your Honours, the second argument which can be

put more briefly now because it derives from much

of the material we have referred to for our first

argument, relates to section 118. We stress that

we are not invoking section 118 for the purposes of

any choice of law exercise at all, and we are

therefore not looking at section 118's primary

speech which has been debated in this Court to

courts. We are looking at its speech to

legislatures in this case.

The argument we would seek to advance does not seek to subject New South Wales to Queensland law.

What it seeks to do is to prevent New South Wales

from entrenching on the sovereign operation of

Queensland law. Undoubtedly, a consequence of our

argument, were it correct, is that there will be an

effect on New South Wales court proceedings because

certain New South Wales law will be held not to

have had the purported effect. But that is not by

applying Queensland law to the New South Wales

proceedings or to any part of New South Wales

territory. Instead, it proceeds by preventing the

New South Wales law from applying where the

Queensland law certainly does - or to put it

another way, where the public Acts of Queensland

undoubtedly run.

Put shortly, we wish to argue that the New

South Wales Parliament can give full faith and

credit to the public Acts and law of Queensland

only by permitting the Queensland law to serve its

obvious governmental and political function of

shaping the conduct by threat of criminal sanction

in its territory; that otherwise the command of

section 118 as it is addressed to State

legislatures is misserved by being lip-serviced to

the continued legislative activity of other States,

while simultaneously and by another State's own

laws a calculated refutation or undermining of the intended governmental effect of a parliament's law

was within its own territory.

The argument that we seek to advance under

section 118, far from seeking to construe and apply

it as requiring some interstate uniformity, in fact
is designed to prevent the anti-federal imposition

of a form of interstate uniformity.

Brownlie 23 10/9/93

There would be an interstate uniformity in

terms of the practical command of State legislation

if New South Wales is correct and a legislature

which claims to have an interest which will be

served by laws with criminal effect outside its

territory, that is, which impose sanctions on

conduct outside its territories.

Whichever legislature proposes the harshest

law of that kind will, of necessity, be that which

is going to be obeyed by rational people.

Uniformity will be imposed, not by agreement

between the States, as is presently the case, and
an entirely federal response by co-operative

schemes at a political level, but uniformity would

be imposed by simply noting, as New South Wales

does, that there being an undoubted interest, there

must follow in its train a power to legislate with

that extraterritorial effect.

The argument which we advance, both under

sections 106, 107, 108 and 118, is in fact designed

to secure local variation, whereas as been put with

respect to the rather different position in Canada,

designed to serve the object of a federal union,

being the freedom of each State to experiment,

rather than being a collection of self-interested

Balkanised States.

Your Honours, if I might simply hand up,

without taking Your Honours to it, the certain

extracts from convention debates, the relevant

passages I believe are visibly marked in the

margins. We say it is not at all surprising that

there is very little attention paid to this kind of

issue in the debates, and nor is it surprising that it was paid at the beginning of the process, rather than throughout and at the end. Because, the very

act of proposing federation was an act which

required reassurance, as these extracts show, one

to the other, that the States were not grabbing for

power over each other's territory. In our

submission, these extracts show that that, we would

say, self-evident proposition for political

efficacy then, and we say for federal union now,

was accepted in certainly some somewhat flowery

oratory.

The extracts also include a reference to a

proposal by Mr Wrixon that there be a uniform

criminal law throughout the Commonwealth, perhaps

to avoid the kind of problem that may otherwise

have arisen, and that that was rejected precisely

in order that each State may regulate, for its own

conditions, according to its own legislature's

assessment of what was right by criminal statute,

conduct within its own territory. That

Brownlie 24 10/9/93

particularly emerges in the perhaps extraordinary

passage in Mr Clark's speech, starting at page 252,

where Your Honours will find a robust

characterization of the differences between the

various American States and why that justified, for

example, territorial autonomy as to criminal law.

We do not say for a moment that that would

have applied to the Australian colonies at the time of these debates, but that the very principle which

is so colourfully put there is one which permits of

the State local experiment, the local variation,

which can be effective only if there is one set of

criminal sanctions guiding the conduct by a mixture
of goad and reward within the territory.

Your Honours, finally in our submission, there is a special leave point with respect to section 12

as well, because the reasoning by which the
Chief Justice found a contrary intention against

ascribing New South Wales locality to the word
"position" in section 16 is a reason which partakes
of precisely the same erroneous approach we have

attacked, namely that a State's interest .is the

only limit on a State's power to legislate

extraterritorially; as if States, in other words,

were separate nations.

I drew Your Honours' attention earlier to the

words which New South Wales concedes must mean,

under section 12 in New South Wales, that is

"waters", and to the "dry beds" and the "drains",

and the "gutters" which follow that, which must

also refer to New South Wales. Now, the obvious

intent of the legislature in punishing people who

place material in a position where it may blow or

percolate or find its way into a dry bed, is

clearly because the Parliament wishes to prevent

potential pollution of actual waters.

BRENNAN J: But this case was conducted, so the

Chief Justice said, on the basis that the Crown

relied upon evidence that the endosulfan entered

the Barwon River.

MR WALKER:  Your Honour, the way the Chief Justice puts it

is that it was conducted on the basis that the

offence was complete both by the likelihood and by the entry and, as His Honour points out, the entry into the waters was itself evidence with respect to

the likelihood offence.

BRENNAN J: That may be so, but the basis on which it was

conducted was that the offence which was charged

was one which had as one of its factual elements

the actual pollution of New South Wales waters.

Brownlie 25 10/9/93

MR WALKER:  By way of evidence, yes, Your Honour; by way of

constituent element, no, not necessarily.

BRENNAN J: That cannot be so because if the offence was

complete prior to that time, that is prior to the

entry of the waters, there must be a new element

added at the time of the entry of the waters.

MR WALKER:  No, Your Honour, with respect. As His Honour

puts it at page 33 of the application book, line 7:

As a practical matter, proof that something is washed into waters will often assist a

conclusion that it was originally placed in a

position where it was likely to wash into

those waters.

So that a new element in terms of evidence is added

to the prosecution case of likelihood, but it is

not necessary in order to justify the relevance of

that evidence that the offence as well be charged

as requiring as a constituent element in the

imposition of criminal liability actual entry.

BRENNAN J: All I wish to point out is for the special leave

purposes, the case was understood in the court
below as being a case in which a result, namely the

pollution of New South Wales waters, was in issue.

MR WALKER:  Yes, Your Honour, but pollution of New South

Wales waters -

BRENNAN J:  It may be a different kind of argument if we

were not concerned with a result of polluting New

South Wales waters.

MR WALKER:  Your Honour, the result of polluting, according

to this statute, is brought about by events and

conditions wholly confined to Queensland, as well

as by events and conditions actually manifested in

New South Wales and what the Chief Justice has said

is that the evidence of the latter phenomena was

evidence of the former, as well as being in itself

an element in an alternative way of putting the

charge. But we accept, as we must, that the case

was certainly conducted on the basis that one way

in which the offence was put was that the material

had entered the Barwin in New South Wales; we

accept that, Your Honour, that is clear.

However, the means by which the Chief Justice

reasoned to our contrary conclusion, within the

meaning of section 12, for the purposes of that
conviction, which depended upon the material
originally being placed in a position where it was

eventually washed into the Barwin, necessarily

involved His Honour saying that position was not

Brownlie 26 10/9/93

qualified by location in New South Wales, contrary,

we say, to the ordinary and plain understanding of

the words of section 12.	And why it is a special
leave point is that - - -

BRENNAN J:  Your argument basically is that New South Wales,

if it passes a law which is in protection of a

result occurring in New South Wales, must accept

that Queensland is an Alsatia as to the cause.

MR WALKER:  I am sorry, Your Honour, now - - -?

BRENNAN J: That if New South Wales passes a law in

protection of a particular result that occurs in

New South Wales, Queensland is, nevertheless, an

Alsatia into which the New South Wales law cannot

reach to proscribe the cause.

MR WALKER:  Yes, depending upon the kind of distinctions we

put earlier, yes, Your Honour. The reasoning by

which the Chief Justice excluded the section 12

territorial limitation was precisely the same kind

of reasoning as led to the rejection of the

constitutional arguments, namely, that the interest

of New South Wales required that the watershed be

entirely covered by its legislation; that conduct

which was likely, because of location in the

watershed, to affect New South Wales' waters needed

to be controlled by New South Wales statute in

order to make the New South Wales stat~te indeed an

act for clean waters in New South Wales.

In our submission, that argument, in a sense,

assumes its own conclusion because the inquiry is

whether section 12 is excluded, that is, whether

the law does, on its proper interpretation,

sanction conduct out of New South Wales.

His Honour assumes that New South Wales is, as it

were, bordering barbarian territory where there
will be no concern for clean water at all, and yet we know that Queensland has a Clean Waters Act and

that could have been expected from the nature of

the federation of equal States, both politically	and in many other ways at the time of Federation.
The common phenomena of State co-operative
legislative schemes, in our submission, puts the
lie to the proposition that it is only by
individual self-interested extraterritorial reach
of criminal statutes that New South Wales could be
assured of an effective regime for keeping its
waters clean.

So, in my submission, the section 12 argument

as well raises for consideration by this Court

whether the interest of States which would

otherwise be the touchstone for determining the

validity of extraterritorial legislation suffices

Brownlie 27 10/9/93

on all occasions and in all contexts including the

imposition of criminal liability to permit more

than one State to punish conduct which, so far as
the Act is concerned, is wholly committed in

another State. May it please Your Honours.

MASON CJ: Yes, thank you, Mr Walker. Court will take a

short adjournment in order to determine the course

it will take in this matter.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.50 AM:

MASON CJ:  The Court does not need to trouble counsel for the respondent, nor counsel for the interveners.

Having regard to the wording of section 16(1)

of the Clean Waters Act 1970 (NSW) and the fact

that it is common ground that the references to

"waters" in that subsection should be understood as

references to waters in New South Wales, the Court

considers that, on the facts of this case, the

proposed appeal would not enjoy sufficient
prospects of success to warrant the grant of

special leave to appeal.

The application is therefore refused.

AT 11.51 AM THE MATTER WAS ADJOURNED SINE DIE

Brownlie 28 10/9/93