Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74

ORDER Appeal allowed with costs. Answer the questions asked as follows: 1. Whether an incorporated company is entitled to a privilege commonly known as privilege against self-incrimination. Answer: No. 2. Whether there is power under s. 29(2)(a) of the Clean Waters Act 1970 NSW enabling the appellant to issue and serve a notice in connexion with, or for the purpose of, obtaining material for use in a prosecution which at the time of the issue of that notice is pending before the Land and Environment Court. Answer: Yes. 3. Whether the notice issued pursuant to s. 29(2)(a) of the Act and served on the respondent on 18 April 1991 is a lawful exercise of power. Answer: Yes. 5. Whether the service by the appellant of a notice to produce on the respondent on 26 April 1991 to produce the same documents referred to in the notice under s. 29(2)(a) of the Act should be set aside as an abuse of the process of the court. Answer: No. 6. Whether the privilege against self-incrimination extends to the respondent in respect of the said notice issued pursuant to s. 29(2)(a) of the Act. Answer: No. 7. Whether the privilege against self-incrimination extends to the respondent in respect of the said notice to produce. Answer: The respondent is entitled to either the privilege against self-incrimination or the privilege against self-exposure to a penalty in respect of the said notice to produce.

Cur. adv vult.

The following written judgments were delivered:

1993, Dec. 24 Mason C.J. and Toohey J.

The appellant, the Environment Protection Authority (the successor to the State Pollution Control Commission ( "the S.P.C.C." )), appeals against an order of the New South Wales Court of Criminal Appeal answering questions of law stated to that Court by Stein J., a judge of the Land and Environment Court of New South Wales. The questions were stated in proceedings arising out of the prosecution by the appellant of the respondent ( "Caltex" ) for pollution offences under the Clean Waters Act 1970 NSW( the Act )and the State Pollution Control Commission Act 1970 NSW( the S.P.C.C. Act ). Following commencement of the prosecution, the appellant served on Caltex two notices, each requiring production by Caltex of identical documents relating to the pollution offences. The first notice was a notice pursuant to s 29(2)(a) of the Act( " the s 29notice") and the second was a notice to produce pursuant to the Rules of the Land and Environment Court 1980 (N.S.W.). The sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecution. Caltex challenged the issue of the notices before Stein J. Although his Honour held that Caltex was required to produce the documents specified in the notices, he stated certain questions of law to the Court of Criminal Appeal for determination. Those questions of law were as follows: [48]