Implementing the Precautionary Principle
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Implementing the Precautionary Principle

Perspectives and Prospects

Edited by Elizabeth Fisher, Judith Jones and René von Schomberg

This challenging book takes a broad and thought-provoking look at the precautionary principle and its implementation, or potential implementation, in a number of fields. In particular, it explores the challenges faced by public decision-making processes when applying the precautionary principle, including its role in risk management and risk assessment. Frameworks for improved decision-making are considered, followed by a detailed analysis of prospective applications of the precautionary principle in a number of emerging fields including: nanotechnology, climate change, natural resource management and public health policy. The analysis is both coherent and interdisciplinary, employing perspectives from law, the social sciences and public policy with a view to improving both the legitimacy and effectiveness of public policy at national and international levels.
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Chapter 7: The Burden and Standard of Proof in Environmental Regulation: The Precautionary Principle in an Australian Administrative Context

Judith Jones and Simon Bronitt


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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