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Jones, Judith; Bronitt, Simon --- "The Burden and Standard of Proof in Environmental Regulation: The Precautionary Principle in an Australian Administrative Context" [2006] ELECD 390; in Fisher, Elizabeth; Jones, Judith; von Schomberg, René (eds), "Implementing the Precautionary Principle" (Edward Elgar Publishing, 2006)

Book Title: Implementing the Precautionary Principle

Editor(s): Fisher, Elizabeth; Jones, Judith; von Schomberg, René

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427023

Section: Chapter 7

Section Title: The Burden and Standard of Proof in Environmental Regulation: The Precautionary Principle in an Australian Administrative Context

Author(s): Jones, Judith; Bronitt, Simon

Number of pages: 23

Extract:

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 pre-
caution 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 precau-
tion. 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 ...