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 9: The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review

Warwick Gullett


Warwick Gullett INTRODUCTION The increasing preparedness of Australian environmental managers to rely on the precautionary principle when exercising their legislative powers is testament to the principle’s usefulness regarding a range of environmental management challenges. However, Australian legislation provides limited support for precautionary decision making because it adopts a vague formulation of the principle and appears to limit its application to circumstances when there are ‘threats of serious or irreversible environmental damage’. Further, many environmental management agencies remain without express legislative instructions either to consider or apply the principle. The combination of a weak legislative mandate for precautionary decision making, and its potentially significant economic consequences for affected individuals, raises the prospect of a new wave of judicial review challenges against decisions which are arguably impermissibly precautionary. Such legal challenges to decisions made by environmental and planning agencies may not only result in their invalidation; they may also shape administrative culture in using the principle. This makes it necessary for care to be taken in how the principle is incorporated into rules and regulations so that decisions of government departments and agencies can be made in a manner consistent with the philosophy behind it. The Australian experience reveals that the legislative formulation of the principle may be pivotal in determining the lawfulness of precautionary management decisions. This experience is informative for other jurisdictions which embed the principle in legislation. The adoption of the precautionary principle in Australian environmental legislation, despite its lengthy history, has failed to come with clear...

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