Justice Keith Mason AC highlights environmental law in 2007 Law Graduation Address
Justice Keith Mason AC, President of the NSW Court of Appeal presented
this year's keynote address at the 2007
law graduation ceremony held on 18 April. In his inspiring address to the
graduating class and their families and friends assembled on this important
occasion, Justice Mason shared with them some of his own memories from his
own illustrious career as a fellow law student in the 1960s, member of the
Bar, Chair of the NSW Law Reform Commission, NSW Solicitor-General to his
present position as President of the Court of Appeal.
The Law Division is grateful for the valuable intellectual contributions Justice Mason continues to provide to our faculty and students folowing his sabbatical as a Visiting Scholar in 2005.
LAW GRADUATION ADDRESS – MACQUARIE UNIVERSITY
Wednesday 18 April 2007
Justice Keith Mason AC
Every five years or so my graduating law class holds a reunion dinner. These events mark the passing of the years and the passing of our enthusiasms. At the early reunions, all the talk was about entry into legal practice, our encounters with the partners in the law firm, our early briefs at the Bar. A decade later, professional legal work was still the main topic of conversation, with much boasting about our climb up the greasy pole marked “wealth and/or status”. The solicitors talked about appointment as an associate partner; the barristers talked of acquisition of chambers; the academics about early publications in law journals.
By the early 1990s, the talk had swung away from law as the principal focus and more towards children, homes, gardening and overseas holidays. And there were gaps in our numbers: some had died, some disappeared, some were in gaol. Several had moved into other professions. One solicitor had become a grief counsellor. Others were fantasising about what life would have been like in an alternative universe such as (for me) professional golf.
At the most recent event, retirement plans were openly discussed. In Horace’s words, “Eheu fugaces, Postume, Postume, labuntur anni” (Alas Postumus, Postumus, the fleeting years are slipping by). That’s Horace of ancient Rome, not Horace Rumpole – although Rumpole must surely have muttered this passage sometime in his career.
What we – the graduating class of Sydney Law School of 1970 - have kept over the years are shared memories of an exciting and informative period of our youth. Often our discussion has returned to particular teachers whom we admired for their lecturing skills, capacity to inspire, humour and humanity. I am sure that the graduates assembled here today already share a body of mainly positive memories. These memories will endure, perhaps maturing with age.
Of course, talk of “shared” memories of a graduating class is something of an overstatement. Inevitably, each graduate takes away different perspectives. Experience in both life and the law teaches that witnesses to a common event perceive and remember things differently.
Henry Bournes Higgins was a leader of the Australian Federation movement and a Justice of the High Court of Australia between 1906 and 1929. Late in life he thought back to his preparatory schooldays in Dublin at the Wesleyan Connexional School. He was prompted by reading of a character called Henry Higgins in a play recently written by a famous school contemporary, George Bernard Shaw. Higgins the judge wrote to remind Shaw the dramatist of their shared experiences. He enquired whether Shaw's schooltime memories had prompted him to name the hero of his play Henry Higgins. To be certain that Shaw's recollection was jolted, Higgins mentioned a mutual friend called Kingsbury.
As you know, Shaw's play was Pygmalion. But Higgins the judge misnamed it Pygmalion and Galatea. This prompted a more than usually mischievous reply from the acerbic dramatist:
"Dear Mr Higgins, [he wrote]
I remember Kingsbury quite well; but I don't remember you. In 1865 when you left, I was only 9 years old. If we were really at the old Wesleyan Connexional School (now Wesley College and co-educational) together, it can have been for a short overlap only. I certainly did not call the hero of Pygmalion (not Pygmalion and Galatea, which is a play of the late W S Gilbert) after you …
There was a boy who came and went in my time whose name may have been Higgins, though I am not quite sure of it. But he was weakminded or rather infantile, and used to stand up and sing during roll call when the fellows next to him told him that Dr Crook expected him to do it. He stayed only a very short time, and should never have been sent there. A most goodnatured creature, who may have turned out well after all. Your dates exclude the possibility of identifying you with him.
Wesley College has sometimes claimed my interest as an old alumnus; but I have not a good word to say for it. It could not even teach Latin; and it never seriously tried to teach anything else. A more futile boy prison could not be imagined. I was a dayboy: what a boarder's life was like I shudder to conjecture."
I hope that you have had better learning experiences at this institution;
and that you will retain closer ties with your alma mater than George Bernard
Shaw did for his old school.
The School of Law here – and its graduates – are held in high esteem by the legal profession. From the outset, the faculty has pursued independent paths, blending core legal studies with innovative analyses of the societal impact of particular subjects and a critical assessment of the role of law itself.
The Centre for Environmental Law is particularly well-known for its interdisciplinary and collaborative approaches to a vast and vital topic. The Centre’s research staff and teaching methods model the wide embrace of the subject by blending law, science and public policy and viewing the topic globally.
It must be a fitting source of pride that the recently appointed Chief Judge of the Land & Environment Court is a graduate of this still young establishment.
Environmental law is now mainstream. But I want to say a few words about the contribution that it has made to the law generally. In doing so, I trust you will forgive some further personal reminiscences.
When I was at law school in the 1960s a classical illustration of the extra-territorial legislative power of the English Parliament was its supposed capacity to make it a crime for a Frenchman to smoke on the streets of Paris. This example would not be used nowadays because we perceive that a single gauloise cigarette smoked in Montmartre may be like the flapping of a single butterfly’s wings in the Amazon jungle in its potential environmental impact. Concern for the global environment has caused the constitutional theorists to think up alternative examples of the outer limits of legislative power of a national Parliament.
I was the Solicitor General for this State between 1987 and 1997. In this role, I had the pick of the appellate litigation conducted on behalf of the State and its agencies.
At the start of my decade in office the greater part of the work involved old fashioned constitutional law, especially federal demarcation disputes. By the end of the decade at least a third of my work involved matters environmental, many of them of the highest sensitivity. The change in emphasis reflected a massive upsurge of governmental concern about such matters. It also reflected a trend to use litigation against the State and its agencies as a form of participatory democracy and a means of setting agendas for action. Environmental issues also tended to set agency against agency, and one of my roles was to advise and/or mediate in such disputes.
Adjunct Professor Patricia Ryan, a law school classmate of mine from Sydney,
has described the 1970s as the decade of environmental awakening. The Australian
Conservation Foundation was instituted in 1965 and a number of environmental
bodies began to emerge in the following decades. Significant events in this
State were the Environmental Planning and Assessment Act 1979 and
the establishment of the Land & Environment Court. These signalled switches
from town planning law to environmental law, from mainly bureaucratic control
to mainly judicial control, and from a piecemeal bandaid approach to a more
holistic one. Concern for the amenity of a neighbourhood became transformed
into concern for the whole environment as perceived by all five of the senses.
Nation states came to realise that they could exert or be forced to respond
to international pressure to lift their game and to show concern for others,
including the generations of the future.
These trends provoked constitutional disputation as the federal Parliament
began to pay attention to land use issues that were traditionally the concern
of the States; and as State Parliaments sought to control the impact on
the local environment of conduct taking place elsewhere. An example of the
latter phenomenon was Brownlie v State Pollution Control Commission
in which a Queensland farmer was successfully prosecuted for releasing the
insecticide endosulfan that washed into the Barwon River on the State border
killing fish on the New South Wales side of the middle line of the river.
Australia’s environmental consciousness was stirred with legal landmarks that included the Whitlam government’s intervention in the International Court of Justice to challenge French nuclear testing in the Pacific, the Murphyores case of 1976 involving banning of export of sand mined from Fraser Island, the Tasmanian Dam case in 1983 and the Bropho decision in 1990.
Bropho’s case involved the question whether a Western Australian statute prohibiting the destruction of aboriginal sites and objects bound the Crown. The High Court significantly lowered the threshold for determining whether an enactment bound the Crown and its agencies. This marked a shift in the approach to statutory interpretation in which it became much easier to infer (if Parliament had left the matter in doubt) that civil and criminal enactments protective of the environment applied to the governmental bodies as much as the citizenry. Section 124 of the Environmental Planning & Assessment Act gave standing to “any person” to apply to enforce these laws that now bound the Crown. There was no shortage of people willing to keep government accountable in the courts. Some plaintiffs were vexatious, many were impecunious and therefore immune from an effective costs sanction, but the bottom line was that their access to justice allowed rule of law accountability to be maintained.
The State government soon discovered that laws prohibiting pollution or the destruction of natural habitat were more likely to be invoked against its own regulatory authorities than against private miscreants. I found myself doing more than prosecuting polluters. I began to represent the State or its agencies as defendants in the Land & Environment Court or the Supreme Court. On one occasion the Forestry Commission was effectively charged with killing koalas in breach of the National Parkes and Wildlife Act 1974 through its licensing of tree-felling.
At other times my role was to argue that significant activities that government wanted to happen in a hurry (like establishing a waste disposal depot, or the opening of a coal mine or Fox Studies at the Showground) ought not to be impeded by the slow toils of environmental litigation launched by men of straw or community groups with minimal assets. To this day it is environmental law that produces most judicial review proceedings in the Supreme Court of New South Wales and many significant issues of statutory interpretation. Important questions concerning access to justice and governmental accountability have also been thrashed out in the minutiae of FOI applications touching environmental matters and fights over the rules about payment of costs in “public interest” litigation.
These were some of the trends that changed the nature of the practice of the Second Law Officer almost overnight. Sometimes my role was to arbitrate privately in disputes between governmental agencies (such as the Department of Planning, the Mining Department and the Forestry Commission) that were each given powers to supervise each other, but in a context where a member of the public could go to the Land & Environment Court complaining if the regulator rested on its oars.
The most interesting case encountered in my entire career at the Bar, for its mix of black letter law and social policy, involved a prosecution for pollution in which the prosecuting agency sought access to records that the defendant had been required to keep as a condition of a licence. Environmental Protection Authority v Caltex Refining Co Pty Ltd saw a sharply divided High Court hold that the privilege against self-incrimination did not apply to corporations or their records.
You will not be surprised to learn that I was not always on the side of the angels. But the adversary system needs a proper contradictor to bring out the best in issues. And of course it is fallacious to think that environmental issues arise in a vacuum or that government gets into stoushes with greenies for the fun of it. No one wants a waste disposal facility in their backyard, but everyone wants an efficient system for disposing of their own waste. There is inevitably a role for government in organising, regulating and legislating for the responsible promotion of development. But government and industry operate in an increasingly well informed market in which there are many perspectives as to where the public interest lies in matters environmental. Public opinion here and abroad is demanding that government take an increasingly global and long-term approach to environmental sustainability. This will inevitably impact upon legal processes and the political forces that mould them.
What is fascinating about environmental issues is that they are in one sense too vast for even the most powerful government in the world to handle in isolation. Yet at the same time they are of personal concern to each individual worried about what happens in his or her backyard or what will befall his or her children and grandchildren.
May I close with another reminiscence that illustrates this interplay of the macro and micro in environmental law. In the mid 1990s I was representing those anxious to promote a sewage outfall for the Coffs Harbour district. The State government and the local council believed they had all necessary powers to force the matter through. Some citizens took a different view about where the public interest lay. The governmental promoters of the project struck a snag in that the outlet pipe had to cross a short expanse of land dedicated as a public reserve. It was called “Look-At-Me-Now Headland”. The whole project was stalled when this impediment was raised in the Land and Environment Court by a small ginger group who retained Tim Robertson, now Tim Robertson SC a leader of the environmental bar. From my perspective as a government lawyer the case raised big issues of statutory construction. But I first learnt that Tim was involved when my wife mentioned at the dinner table that she had sent a donation to the group of greenies that was promoting the litigation and instructing him.
I congratulate the graduates for your efforts and achievements. Your are entitled to be proud of yourselves, just as your family and friends who are gathered here are also entitled to be proud of you. The teaching and administrative staff of the Law Faculty also deserve praise for their dedication, inspiration and perseverance.