Perspectives and Prospects
Edited by Elizabeth Fisher, Judith Jones and René von Schomberg
Chapter 7: The Burden and Standard of Proof in Environmental Regulation: The Precautionary Principle in an Australian Administrative Context
Judith Jones and Simon Bronitt1 1. INTRODUCTION Textual formulations of the precautionary principle or precautionary approaches within legislation in Australia vary (Stein 2000). Most have been derived from Principle 15 of the Declaration on Environment and Development (12 August 1992). The progenitor Australian version of precaution was that contained in the 1992 Intergovernmental Agreement on the Environment (IGAE, 1992), between the Commonwealth and the States and Territories, which stated (at 3.5.1): Precautionary principle – Where there are threats of serious or irreversible environmental damage, lack of full scientiﬁc certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: i. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and ii. an assessment of the risk-weighted consequences of various options. The terminology of burden of proof and standard of proof do not appear within this or in the other familiar texts of the precautionary principle. This is true of all current Australian legislative forms of the principle of precaution. Yet the term ‘burden of proof’, familiar in legal doctrine from the courtroom context, has subsequently been considered and accepted as a core conceptual component of the precautionary principle, internationally and in Australia (Stein 2000, Cameron 2001, Bates 2002, Farrier, Whelan and Brown 2002). The companion to burden of proof in the courts, namely, the standard of proof, has also appeared in the Australian discourse on the precautionary...
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