Brownlie v State Pollution Control Commission (New South Wales)

[1991] HCATrans 329

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl09 of 1991

B e t w e e n -

GEOFFREY ROBERT BROWNLIE

Applicant

and

STATE POLLUTION CONTROL

COMMISSION <NEW SOUTH WALES)

Respondent

Application for removal
pursuant to section 40 of

the Judiciary Act

DEANE J

TOOHEY J

GAUDRON J

Brownlie 1 15/11/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 9.31 AM

Copyright in the High Court of Australia

MR s.w. WALKER:  May it please Your Honours, I appear Hi:~

MR P.W. LARKIN for the applicant. (instructed by

Cowley Hearne)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MS H.G. MURRELL for

the respondent, to oppose the application.

(instructed by the Crown Solicitor for the State o:

New South Wales)

DEANE J:	Mr Walker.
MR WALKER:	Your Honours, we have prepared a short note of

the reasons why we say the question raised by the

issues sought to be removed is one which both

deserves the attention of this Court and deserves

it sooner rather than possibly later.

DEANE J: Mr Solicitor, what is your attitude in this

matter?

MR MASON:  The application is opposed, Your Honours.

DEANE J:  Thank you. Yes, Mr Walker.

MR WALKER:  Could I commence by drawing Your Honours'

attention at page 1 of the application book to the

fact that the removal sought is that part of the

proceedings before the Court of Criminal Appeal

which raises the two questions there named, namely

the constitutional validity of section 16 of the

New South Wales statute and the larger question of the power of the New South Wales Parliament.

There are two other issues raised by the

notice of appeal in the Court of Criminal Appeal,

one of which is, I think, the question whether

there was proof beyond reasonable doubt of whether

fish died on the Queensland side of the Barwon or

on the New South Wales side of the Barwon. we do

not seek to remove that into this Court. There is

also an issue concerning the technical questions

arising upon the amendment of a summons and the

time limits for prosecution consequent upon that

amendment. That is a matter peculiar to New South

Wales procedure and we do not say that is of

transcending importance which justifies removal.

· If we were successful in the removal

application, and if in turn we were successful in

one or other of our constitutional arguments, then

of course those remaining issues would have no need

to be litigated in the Court of Criminal Appeal.

If we were - - -

TOOHEY J:  Does the converse hold true; Mr Walker?

'\ Ml) Wll. T .i(~'R lS/11/91

MR WALKER:  No, it does not, Your Honour. That is, if we

succeeded in removal and did not succeed in any of

our constitutional arguments, that is this Court

upheld the power of the New South Wales Parliament

Criminal Appeal only those two issues. That

to have rendered criminal my client's conduct in of

represents - - -

TOOHEY J: If those issues were resolved in favour of your

client, what would be the consequence?

MR WALKER:  He would be acquitted.

TOOHEY J: And the constitutional question would not arise?

MR WALKER:  If there were no removal and all issues,

including the constitutional issue, were before the

Court of Criminal Appeal, that court may choose to
deal with those two more mundane issues first.

That would be unusual. It would be usual for the

whole case to be heard and decided. But

Your Honour is quite correct, with respect, that it

is conceivable that the whole case could be
disposed of in favour of my client on one or other

of those grounds.

DEANE J: What would be the effect if the Court of Appeal

held there was no inconsistency between the

Queensland and State legislation?

MR WALKER:  That may or may not, Your Honour, contribute to

their concluding either there was no constitutional

issue of the kind we seek to raise or that if there

is, that it ought to be, in principle, decided

against us. But it does not follow that simply

because it is held there is no inconsistency that

the constitutional issue either does not arise or

ought be concluded against us. Indeed, if the

major way we wish to put the constitutional point

is correct, then inconsistency or consistency does
not matter.	The question is: whose law regulates

the conduct? And that in turn will determine
whether or not we can be convicted under a law

which does not regulate our conduct,

notwithstanding for example that it is verbatim

consistent with the law which does regulate the

conduct.

So that inconsistency itself may well be a

matter of moment in argument, but we will not be submitting that it is logically necessary to our success.

Could I just return to Mr Justice Toohey's

question. We do say that there is no question here

of the inefficiency of the use of judicial time

Brownlie 15/11/91

because on no view could there be, upon a removal

and whatever the result in this Court, more time or

issues litigated than need be litigated the other

way around.

DEANE J:  But if you come to the substance of what you want

to argue before this Court it is this, is it not,

that a State - putting aside questions of

inconsistency - cannot make it an offence to

pollute rivers in the State in circumstances where

the acts causing pollution are not done within the

territory of the State?

MR WALKER:  Your Honour, the way we would wish to put it is

very close to that, though bearing in mind examples

such as the Parcel Bomb case and the role or not of

intention or inevitable result, it may be that the

proposition we urge has to be qualified beyond the

stark form Your Honour has put it to me, but I do

not wish to escape the real force of the

proposition Your Honour puts to me, yes, the

argument for which we contend approaches very

closely to the way Your Honour has put it.

We would perhaps prefer to put it this way,

that where conduct, which must include acts or

omissions, is in a substantial sense completed

within one legislative Territory and the

legislature of that Territory has in some way

regulated it, and that may even raise the question

of whether it has been negatively regulated by

legislative inactivity, then a bordering State may

not intrude so as to punish that conduct. Of

course, we raise the extreme case of the conduct

being compelled in one Territory and forbidden in

another.

With respect to Your Honour Mr Justice Deane,

the difficulty that we have to face will certainly

include problems such as the Parcel Bomb effect

where one can say that the entirety of the conduct	was completed upon popping the parcel bomb through
the slot in Brisbane and that it was Australia Post
that, like the Barwon River, carried the nefarious
substance over into New South Wales. But, in our submission, there is not by any means a complete
analogy between the two cases and there is a
difference between Australia Post and the forces of
nature. But, for those reasons, though we say the substance is as Your Honour puts it, it requires
some qualification.

Could we say also this, again returning to

Mr Justice Toohey's questions: though it is

theoretically possible the Court of Criminal Appeal could isolate the two relatively mundane points for determination so as to avoid or with the effect of

Brownlie 15/11/91

avoiding addressing the constitutional issue,

without saying too much or too much perversely with respect to those arguments, this Court ought not to underestimate the difficulty we face in those

arguments. It seems, therefore, very likely that

in the Court of Criminal Appeal, were there no

removal, the constitutional issue would most

certainly be raised and would require to be

addressed.

DEANE J: The argument that the fish observed the median

line in the Barwon River did not read very

persuasively.

MR WALKER:  I am not here to persuade Your Honour out of

that view.

TOOHEY J:  I am not sure that I follow that last comment,

Mr Walker, because if the Court of Appeal dealt

with all issues and resolved the constitutional

issues against you and resolved the other issues in

your favour, there is no constitutional question

left that is of interest to you.

MR WALKER:  No.

TOOHEY J: Then why should we remove the matter at this

stage?

MR WALKER: Because, Your Honour, the prospect of that

occurring is sufficiently slim for it to be far
more likely than not that the constitutional issue

would be the subject eventually of a special leave

application. Now, it could only be the subject, of

course, were we to fail in the Court of Criminal

Appeal and what I have to tell Your Honours is that

those two arguments do not present themselves as
arguments which seem bound for success. It is for
that reason that we say there is no increase of

occupation of this Court's time by the step we

propose in this application; indeed, now that we

have made this application, the course that we

would urge would certainly remove the necessity of

a special· leave application.

TOOHEY J: You would be on stronger ground, no doubt, if the

other grounds of appeal were abandoned.	I am not
suggesting that you ought to do that - - -

MR WALKER:  We are painfully aware of that, Your Honour.

TOOHEY J: - - -but it would isolate the issue rather more

starkly.

MR WALKER:  I have to concede that we would be on stronger

ground. I have to say I have no instructions to

permit me to move to that ground.

Brownlie 15/11/91

Your Honours, finally on the question of the appropriateness of removing this part of the

proceedings to this Court at this stage,

Your Honours will no doubt have noticed that the

learned trial judge was clearly not given an opportunity, as he puts it, to deal with the
arguments which we wish to raise in this Court in anything like sufficient detail for, with respect

to him and it was no fault of his, for it to be of

any assistance to this Court.

DEANE J:	He says the argument was effectively abandoned.
MR WALKER:	All but abandoned, yes, Your Honour. Now,

first, of course, it is the case that most of the
large constitutional issues before this Court come
without benefit of a lower Court's judgment. That

is a negative argument in favour of my present

application. But second, and more importantly, the

facts are as ripe as they ever will be on this

constitutional issue. The facts are very plain and

present as a most appropriate vehicle for testing

the degree to which, what might be called

presently, comity between States across their land

borders, and for that matter perhaps across their

borders extending into the seas, should be

crystallized by this Court into a federal principle

which requires, rather than would simply

politically urge, by law mutual reticence.

GAUDRON J:  Does your argument go to the point that only by

joint legislative action can pollution of boundary

rivers be prevented?

MR WALKER:  Your Honour, it may well come to that with

certain forms of conduct and it may well be, for
example, that there are mechanisms otherwise

provided in the Constitution which could be given

new force in this respect. But certainly, so far

as the legislative penalizing of certain conduct,

it almost certainly requires, not surprisingly,

that a Federation pull together rather than apart.

That, with respect, would follow from a scheme of the Federation which we urge certainly imposes this

duty of mutual reticence and would no doubt then

impose a political imperative of congruence of

legislation so far as certainly it affects

bordering areas. That would not be an argument

against our conclusion, it may be a consequence of

our conclusion.

Your Honours, as I say, the facts are

completely ripe. They cannot be changed by

whatever fate, assuming lack of success for us in

the Court of Criminal Appeal, whatever fate the

fact-finding by His Honour could suffer in the

event of our failure in the Court of Criminal

Brownlie 6 15/11/91

Appeal, the poison was placed on my client's land

by or at his request, it was on the findings washed

eventually so as to, on the findings - some of them are under challenge - so as to kill fish on the New

South Wales side of the Barwon. Those facts cannot
suffer refinement or qualification by the Court of

Criminal Appeal unless we succeed to some extent,

to a necessary extent, in the Court of Criminal

Appeal.

For those reasons, there is nothing in that

court which could further mature the case as a

vehicle for raising the question which we wish to

raise. For those reasons, in my submission there

should be a removal of that part of the

proceedings.

DEANE J:  Thank you, Mr Walker. The Court need not trouble

you, Mr Solicitor.

Notwithstanding the submissions of Mr Walker

for the applicant, we do not consider that it would

be appropriate, in the circumstances of this case,

to make an order for removal into this Court of

part of the pending appeal to the Court of Appeal.

Accordingly, the application for an order for

removal is refused.

MR MASON:  I would ask for costs, although it is a criminal

matter, Your Honours.

DEANE J:  Mr Walker, what do you say about costs?

MR WALKER: That they are not appropriate in such a cause.

DEANE J: Thank you. Mr Solicitor, there will be no order

for costs.

MR MASON: If the Court pleases.

AT 9.49 AM THE MATTER WAS ADJOURNED SINE DIE

Brownlie 7 15/11/91