Certainty About Uncertainty? - The Precautionary Principle in Australian Environmental Law Stuart Menzies Introduction In the last two decades sustainability has emerged as a key concept and objective shaping environmental policy. Many of the principles of sustainability have become part of international and domestic laws. Among these, the ‘precautionary principle’ has emerged as one of the most significant in terms of directing environmental decisions, but at the same time one of the more difficult concepts for decision-makers to apply. Inevitably an increasing number of cases involving the precautionary principle have been brought before the courts, however, judicial decisions have not necessarily provided clear direction on the issue. This paper provides an overview of the application of the precautionary principle in Australian environmental law (focussing on Commonwealth law, as well the law in the State of New South Wales). A number of judicial decisions regarding the application of the precautionary principle in environmental disputes are reviewed. Following this, comments are made about improving environmental law to better apply the intent of the precautionary principle, and from this some insights for China are offered. The Precautionary Principle The precautionary principle states that where scientific evidence is uncertain, decision-makers should take action to limit continued environmental damage and should err on the side of caution when evaluating proposals that may seriously or irreversibly impact on the environment (Spry 1997). In the environmental context, there are three levels of stringency contained in the principle: • initiatives should not pose an unacceptable risk of harm to the environment; • action to protect the environment should not be postponed for lack of scientific certainty; and • the onus of proof lies with the proponent of an action that might damage the environment to prove that the action can proceed without unacceptable risk to the environment. Origins of the Precautionary Principle The origin of the precautionary principle lies in the German concept of Vorsorgeprinzip, literally translated as the ‘foresight principle’. The principle first appeared in the mid 1960s when environmental issues were becoming a major political issue in Germany (Stein 1999). By the early 1970s the principle could be found in domestic West German legislation in respect of environmental policies aimed at combating the problems of global warming, acid rain and maritime pollution (Gullet 1997). The earliest international agreement which explicitly refers to the precautionary principle is the Ministerial Declaration of the Second International Conference on the Protection of the North Sea, issued in London in November 1987. The precautionary principle has since been widely used in international environmental law and has been applied to areas such as climate change, hazardous waste, ozone layer depletion, biodiversity and fisheries management (Stein 1999). Article 3.3 of the 1992 United Nations Framework Convention on Climate Change states: The parties should take precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost. The June 1990 Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer states: [The Parties to this Protocol are] determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge, taking into account technical and economic considerations and bearing in mind the developmental needs of developing countries. The precautionary principle received strong endorsement in the Rio Declaration on Environment and Development (adopted in 1992 by the United Nations Conference on Environment and Development [UNCED] in Rio de Janeiro). The Rio Declaration contains 27 principles to guide the International Community in the promotion of sustainable development. Principle 15 states: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The Precautionary Principle and Sustainability Along with the principles of intergenerational equity, ecological protection and improved valuation and pricing, the precautionary principle is a key concept underpinning the idea of sustainability. The modern manifestation of sustainability stems from the The Brundtland Report (WCED 1987) where development was defined as sustainable: ... if it meets the needs of the present without compromising the ability of future generations to meet their own needs. Sustainability is premised on the integration of economic and environmental processes in decision-making. In addition, decision-makers must adopt a long-term rather than short-term view (CGA 1992: 6). In the Australian National Strategy for Ecologically Sustainable Development (CGA 1992), the central objectives of sustainability are stated as: • to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations; • to provide for equity within and between generations [inter and intra generational equity]; and • to protect biological diversity and maintain essential ecological processes and life-support systems. The precautionary principle therefore needs to be considered in the broader context of the wider principles and philosophies forming the concept of sustainability. While this paper focuses primarily on the precautionary principle, sustainability and the laws which are shaped by its objectives, should be treated as a complete package where no one principle dominates over any other. This requires that the precautionary principle be applied with consideration of other principles that support sustainability. Key Components of the Precautionary Principle Three themes have been the subject of considerable discussion in the literature on the precautionary principle. These themes also reflect the core components of the precautionary principle and guide its application. The components are: • the threat of serious or irreversible environmental damage; • lack of full scientific certainty; and • not postponing measures for environmental protection. The Threat of Serious or Irreversible Environmental Damage Stein (1999) states that the existence of threats of serious or irreversible environmental damage is the threshold which must be satisfied before it is appropriate to apply the precautionary principle in decision-making. He recognises, however, that determining this threshold is difficult as the principle fails to offer any clear guidance in respect of what degree of proof is required before the principle becomes operational. Benkendorff (2001) suggests that the challenge in environmental decision-making, is to define more clearly what is meant by ‘serious or irreversible’ environmental damage. Farrier and Fisher (1993: 2) suggest that the precautionary principle is ‘triggered by proof of threats falling short of the degree of probability currently recognised by science as constituting proof.’ This clarification is aided by Cameron (1999: 36) who reverses the assessment of risk and argues that where the threat of environmental damage is ‘non-negligible’ then the precautionary principle applies. From the perspective of these authors, it can be concluded that the precautionary principle should be applied conservatively, generally in those circumstances where the environmental impact is likely to be detrimental, serious and irreversible. Lack of Full Scientific Certainty McDonell (1999) explains that the precautionary principle is based on the recognition that full scientific certainty cannot exist and that the level of proof required for scientists to assert a fact often comes too late for an effective response. Wayne and Mayer (1993: 33) agree that lack of full scientific certainty will always exist and say that this is because full scientific certainty is neither achievable nor provable. Stein (1999) adds that this problem is made more complex because there are different disciplinary approaches adopted by scientists in assessing evidence and the possibility of environmental damage. In light of the lack of full scientific certainty, Cameron (1999: 29) argues that the precautionary principle ‘provides the philosophical authority to take public policy decisions concerning environmental protection.’ Ramsay and Rowe (1995: 55) consider the precautionary principle is a step forward in the development of an environmental framework within which ‘soundly based scientific data can be integrated with the political, economic and social processes and considerations upon which policy must ultimately rest.’ From the perspective of these authors it can be concluded that the precautionary provides a basis for timely decision-making in response to scientific uncertainty and/or scientific disagreement. Not Postponing Measures for Environmental Protection Indisputable evidence of harm is rare in environmental fields due to the complexity of nature and the time delays between contaminant release and measurable effect. The precautionary principle requires that a cautionary approach be taken. Stein (1999) argues that the precautionary principle is preventative and symbolic of the need for change in human behaviour towards the ecological sustainability of the environment. However, he notes that the principle offers little guidance on precisely what measures ought to be taken. Farrier and Fisher (1993) state that in order to protect the environment from possibly damaging effects of an activity, a precautionary approach is necessary which may require action to control environmental effects even before a causal link has been established by absolutely clear scientific evidence. Cameron and Abouchar (1991) suggest the purpose of the precautionary principle is to ‘encourage, perhaps even oblige, decision-makers to consider the likely harmful effects of their activities on the environment before they pursue those activities.’ O’Brien (2000) argues that the precautionary principle is problematic in that it demands that proponents give proof of the impossible, namely a risk which is absolute zero. In response, Benkendorff (2001) argues this is an exaggeration and that if the emphasis is instead placed on the words ‘serious or irreversible’ in the statement of principle it becomes apparent that the precautionary principle should only be applied in limited situations where environmental degradation should be prevented irrespective of the short term costs. From the perspective of these authors it can be concluded that the precautionary principle is proactive in its orientation toward environmental protection. Australian Legislation and the Precautionary Principle Before the precautionary principle began to be included in legislation, common law was hindered in applying the principle due to the lack of an agreed applicable standard as to what it was. Since 1992 the precautionary principle has become part of a wide range of (primarily environmental) legislation at the national and state level in Australia. The Intergovernmental Agreement on the Environment (IGAE) made between the Commonwealth and the States in 1992 set out a number of principles to inform decision-making about the environmental (Spry 1997). This was the first formalisation of the precautionary principle at the national level in Australia. Section 3 of the IGAE states: 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 options of the various options. Stemming from the IGAE, there is now a large number of federal, state and territory statutes that have expressly referred to or incorporated sustainability principles, including the precautionary principle. Status of the Precautionary Principle in Commonwealth Legislation The precautionary principle is now widely accepted in Commonwealth legislation. Examples of specific Commonwealth legislative requirements for the application of the precautionary principle include: • Environment Protection and Biodiversity Conservation Act 1999 – s 3A and Part 16, s 391; • Environment, Sport And Territories Legislation Amendment Act 1995 No. 25 of 1995 – Schedule; • Fisheries Administration Act 1991 - s 4, s 6; • Fisheries Management Act 1991 - s 3, s 4; • Fisheries Legislation Amendment Act 1997 No. 120 of 1997 - Schedule 1; • Great Barrier Reef Marine Park Act 1975 - s 39Z; • Hazardous Waste (Regulation Of Exports And Imports) (Waigani Convention) Regulations 1999; and • National Environment Protection Council Act 1994 - s15(a) and Schedule 1. The principles of sustainability, including the precautionary principle, are defined in s 3A of the Environment Protection and Biodiversity Conservation Act. The principles of ecologically sustainable development are referred to in the objectives of the Act. The objectives of the Act also include a definition of the precautionary principle but do not acknowledge it as being the precautionary principle (Kriwoken 2001). Under the Act there are 14 decisions for which the precautionary principle must be taken into account. These decisions involve determining whether a proposed action is a controlled action, and whether to approve the taking of an action. Section 391 of the Act is important and requires that the Minister must take account of the precautionary principle in making a decision listed under s 391(3) which relates to the granting of permits, the making of plans and the approval of variations for a variety of matters. The precautionary principle is discussed in detail in Chapter 6 - Administration, Part 16 - Application of precautionary principle in making decisions. Section 391 - Minister must consider precautionary principle in making decisions, states that: Taking account of precautionary principle (1) The Minister must take account of the precautionary principle in making a decision listed in the Table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act. Precautionary principle (2) The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. Status of the Precautionary Principle in New South Wales Legislation The Protection of the Environment Administration Act 1991 is the principal statute for environmental protection in New South Wales. Section 6(1) of the Act lists the need to maintain ecologically sustainable development as one of many objectives. The defining principles of sustainability, including the precautionary principle, are defined in s 6(2). Many other NSW statutes define sustainability by reference to this section. Section 3 of the Protection of the Environment Operations Act 1997 lists the protection, restoration and enhancement of the quality of the environment in NSW, with regard to the need to maintain ecologically sustainable development, as one of many objectives of the Act. Indirect reference is made to sustainability principles in s 13 which requires that, in preparing a draft policy, the Environment Protection Authority (EPA) must take into consideration, inter alia, the principles of environmental policy set out in the IGAE. Under s 45 the EPA is further required to take into consideration the objectives of the EPA as referred to in s 6 of the Protection of the Environment Administration Act 1991 in relation to its licensing functions under Chapter 3 of the Act. Principles of sustainability have now been expressly incorporated into the objects section (s 5) of the Environmental Planning and Assessment Act 1979 by 1997 amendments. Prior to such amendments, sustainability had only been specifically referred to in the Regulation for the purposes of preparing environmental impact statements. However, prior to the inclusion of sustainability in s 5, the Land and Environment Court had accepted that it could be a head of consideration arising under s 90. It is worthwhile noting that an increasing number of planning instruments made under the Environmental Planning and Assessment Act are including sustainability principles. Further, a number of state environmental planning policies are based on sustainability principles, e.g. coastal wetlands, urban bushland preservation and littoral rain forests. The National Parks and Wildlife Act 1974 does not explicitly refer to sustainability principles but indirectly includes it by reference to ‘sustainable development.’ Limitations on the Precautionary Principle in Australian Legislation Although it is a positive development that the precautionary principle has been included in a significant number of Australian statues (as outlined above) a closer analysis reveals that it is usually confined to the objectives of the relevant statute or as a criterion to be considered in (an often limited range of) decision-making. In cannot be said that the precautionary principle has been made a major ‘driver’ of environmental management by being assigned a central role in the operation of environmental law. A consequence of the limited status that has been given to the precautionary principle is uncertainty about its application in environmental decision-making. Difficulties of interpretation and application among practitioners have become manifest. An increasing number of cases dealt with by the courts have had to deal with the precautionary principle both at a conceptual level and, of course, as it applies technically to the particular dispute. Judicial Application of the Precautionary Principle Discussed below is a selection of Australian judicial decisions that have made reference to the precautionary principle and have contributed to its development as a common law doctrine. These cases are by no means a complete set or fully representative of the variety of decisions handed down by the courts. The cases have been selected to illustrate the range of judicial perspectives on the precautionary principle and the different circumstances in which it has arisen in environmental matters. Leatch v National Parks and Wildlife Service and Shoalhaven City Council The most extensive curial discussion of the precautionary principle in Australia is that of Stein J of the NSW Land and Environment Court in Leatch v National Parks and Wildlife Service and Shoalhaven City Council [(1993) 81 LGERA 270]. The Council proposed to construct a road to address traffic congestion on existing transportation routes. Before commencing construction of the road, the Council obtained a licence, as required by the National Parks and Wildlife Act 1974 (NSW), from the National Parks and Wildlife Service (NPWS) permitting it to ‘take or kill’ protected fauna. The applicant appealed the decision of the NPWS to grant the licence mainly on the basis of the effect that the proposed road would have on the Yellow-bellied Glider and the Giant Burrowing Frog (Spry 1997). Stein J noted that pursuant to the National Parks and Wildlife Act 1974 (NSW) and the Land and Environment Court Act 1979 (NSW) he was required to take into account various matters including those which the Court considers relevant as well as the ‘circumstances of the case and the public interest.’ Stein J described the precautionary principle as a ‘statement of commonsense.’ He continued: It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision makers should be cautious. His Honour then considered the nature of Part 7 of the National Parks and Wildlife Act 1974 (NSW) and concluded that it was aimed at the preservation and protection of endangered fauna. He observed that although the precautionary principle is not expressly stated, the cautious approach it suggests is ‘clearly consistent with the subject matter, scope and purpose of the Act.’ Stein J stated that there is very little information on the Giant Burrowing Frog. What information is available is inadequate to assess the impact of the road on the survival of the Frog. His Honour therefore concluded in relation to the Frog (Spry 1997): Application of the precautionary principle appears to me to be most apt in a situation of a scarcity of scientific knowledge of species population, habitat and impacts. Indeed, one permissible approach is to conclude that the state of knowledge is such that one should not grant a licence to ‘take or kill’ the species until much more is known. In weighing up all the issues, including possible alternative routes and the operation of the precautionary principle, Stein J concluded that the decision of the NPWS granting the licence to the Council should be overturned. Friends of Hinchinbrook Society Inc v Minister for Environment In Friends of Hinchinbrook Society Inc v Minister for Environment [(1997) 142 ALR 632] the applicant challenged the decision of the Commonwealth Minister for the Environment granting consents to Cardwell Properties to carry out certain works in connection with the construction of a tourist resort near Cardwell in North Queensland. The Minister’s consent was required pursuant to the World Heritage Properties Conservation Act 1983 (Cth) given the location of the proposed development and its potential impact on an area (the Great Barrier Reef) included on the World Heritage List. The applicant argued that the Minister’s decision was invalidated on a number of grounds including his failure to have regard to the precautionary principle. Sackville J dismissed this argument suggesting that the precautionary principle, in the manner formulated in the IGAE, is not a relevant consideration that the Minister is bound to take into account when making a decision under the Act (Spry 1997). His Honour noted that it would be difficult for the Minister to have regard to the conservation and protection of Heritage Listed sites, as required by the Act, if he did not consider ‘the prospect of serious or irreversible harm to the property in circumstances where scientific opinion is uncertain or in conflict.’ His Honour continued: The Minister did not refer to the principle in the reasons for his decisions but he did make arrangements in relation to matters raised in the scientific reports before him. The Minister was aware that he should act cautiously in making his decision. The Minister took into account the commonsense principle that caution should be exercised where scientific opinion is divided or scientific information is incomplete.’ Sackville J upheld the validity of the Minister’s decision to give consents under the World Heritage Act. Nicholls v Director-General of National Parks and Wildlife The case of Nicholls v Director-General of National Parks and Wildlife [(1994) 84 LGERA 397] involved an appeal against a decision by the Director-General of National Parks and Wildlife Service to grant a license to the Forestry Commission permitting forestry operations in the Wingham Management Area to ‘take or kill’ endangered fauna. The applicant argued that the fauna surveys and fauna impact statement obtained under the legislation contained deficiencies, and that the precautionary principle, as provided by the IGAE, should be taken into account by the Court in considering the appeal. Talbot J noted that the IGAE created no binding obligation on the Director-General or the Court. In refusing the application, his Honour held that the fauna impact statement did include to the fullest extent reasonably practicable the information required by s 92D of the National Parks and Wildlife Act 1974 and that the fauna impact statement was but one of a number of tools to be used in determining whether to grant a license. By way of obiter, his Honour referred to inherent difficulties associated with the application of the precautionary principle. The statement of the precautionary principle, while it may be framed appropriately for the purpose of a political aspiration, its implementation as a legal standard could have the potential to create interminable forensic argument. Taken literally in practice it might prove to be unworkable. However, his Honour added that the application of the precautionary principle, as provided in the IGAE, was ‘a practical approach which the court finds axiomatic, in dealing with environmental assessment.’ Greenpeace Australia Ltd v Redbank Power Co In Greenpeace Australia Ltd v Redbank Power Co [(1995) 86 LGERA 143] the Singleton Shire Council granted development consent to Redbank Power Co. Pty Ltd for the construction of a coal-based power station at Warkworth in the Hunter Valley. Greenpeace objected to the proposal contending that the impact of carbon dioxide emissions from the project would unacceptably exacerbate the greenhouse effect and that the Court should apply the precautionary principle, as defined in the IGAE, to refuse development consent. Her Honour accepted that the precautionary principle could be incorporated as a factor to which the Court must have regard as a matter of ‘public interest’ under s 90 of the Environmental Planning and Assessment Act 1979, and s 39(4) of the Land and Environment Court Act 1979. Her Honour stated, however, that there are: The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; it does not require that the greenhouse issue should outweigh all other issues. Pearlman J noted that the Framework Convention on Climate Change (ratified by Australia), the IGAE and the National Greenhouse Response Strategy relied upon by Greenpeace, were not binding policy documents. Whether such proposals ‘should be prohibited is a matter of government policy and it is not for the Court to impose such a prohibition.’ In concluding, her Honour highlighted that the precautionary principle was but one factor to be weighed in the balance. The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various factors in determining whether or not to grant consent; it does not require that the greenhouse issue should outweigh all other issues. Alumino (Aust) Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 Alumino (Aust) Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [Land and Environment Court, 29 March 1996, unreported] concerned an appeal seeking to establish an aluminium dross plant. Talbot J reiterated what he had said about the precautionary principle in Nicholls. His Honour stated: It is obvious that where development involves the handling and processing of materials which have the potential to cause significant harm to the health of human beings and vegetation, extreme caution must be used in determining whether development consent will be forthcoming. In this case the issue of uncertainty, a central concern of the precautionary principle, came into consideration. His Honour stated: In the present case the Court has sat and listened to the testing of technical opinions and advice tendered by expert witnesses in the relevant fields ... the Court has the advantage of knowing that none of the applicant’s expert witnesses were persuaded to deviate from their conviction that the plant could be operated in a way which would not have any significant environmental consequence ... this is not a case which there really is a competing expert view demonstrating different scientific opinions which remain unresolved. Rather it has been demonstrated that the dross recycling process can be managed and controlled in such a way that the predictions will be met. In upholding the applicant’s appeal, his Honour was satisfied that there was no relevant scientific uncertainty, endorsing at the same time the taking of a cautionary approach. Smyth v Nambucca Shire Council The decision of Commissioner Brown in Smyth v Nambucca Shire Council (No.10537 of 1998, 3 February 2000) is another case of the application of the precautionary principle, although it was not expressly identified as such. The case concerned a development application for subdivision of 45 rural residential lots at North Valla at a site located about 300m from the Pacific Ocean and near Oyster Creek. A key issue concerned the on-site effluent sewerage disposal system proposed for the site, particularly concerning the sensitivity of the nearby Oyster Creek. Professor Thom, on behalf of the Department of Urban Affairs and Planning, identified for the Court that an estuary management plan had not been undertaken prior to council’s assessment. The evidence before the Court revealed that Oyster Creek is an example of an intermittently closed/ open coastal lake or lagoon which is unusual, and as such, required special care and expert examination. Due to conflicting evidence about the capacity of the system and Oyster Creek, the Commissioner dismissed the appeal. In his conclusion, the Commissioner said: The location and special characteristics of Oyster Creek dictate that there must be no uncertainty in relation to the disposal of effluent from the proposed lots. On the evidence, I could not be assured that the effluent disposal would not impact on the water quality of Oyster Creek and for this reason the appeal must fail. Observations from Judicial Decisions on the Precautionary Principle While judicial decisions have provided greater direction about the operation of the precautionary principle in Australian environmental law, there remains a degree of uncertainty about the application of the principle in public policy and environmental decision-making. The key issues are: • uncertainty about the status of the precautionary principle; and • confusion about the relationship between the precautionary principle and other decision-making criteria. Status of the Precautionary Principle As can be seen in the case of Leach, the situations where the precautionary principle applies can be taken to be very wide. In this case the precautionary principle is not included in the relevant legislation, however, the presiding judge considered it a relevant matter. Although the precautionary principle was a key factor in the determination it operated as a justification for the decision, rather than being a matter of dispute in the case. In contrast, in the case of Nicholls Talbot J noted that the precautionary principle created no binding obligation on the responsible authority even though the subject of the case was a matter under the same legislation as in Leach. Similarly, in the Friends of Hitchinbrook case the judge limited the application of the precautionary principle as a relevant matter citing that it was not a specific requirement of the relevant legislation and that government agreements or statements of policy that referred to the precautionary principle did not apply. In this case the precautionary principle was taken as an optional or insubstantive consideration. These cases demonstrate that there is no consistency in determinations about when the precautionary principle actually applies. The Precautionary Principle and Other Decision-Making Criteria In Greenpeace the precautionary principle was cited as being just one of many considerations to be taken into account in making a decision. This raises the issue of what weight is to be given to the precautionary principle compared to other sustainability principles, or to other social and economic factors. In Leach and Smyth the precautionary principle was given primary weight in the determination not to allow a potentially detrimental activity to proceed. In these cases the precautionary principle was paramount and outweighed other factors that were in favour of the development. These cases demonstrate that there remains some ambiguity about the status of the precautionary principle relevant to other decision-making criteria. The Future of the Precautionary Principle in Australia The inclusion of the precautionary principle in environmental law has contributed significantly to sustainability in Australia. The limited number of cases presented here does not reveal the widespread use of the precautionary principle in everyday decision-making. However, for environmental law not to frustrate sustainability outcomes being achieved there is a need for improvement. The improvements are twofold: a clear enunciation in both the federal and state laws of the status of the precautionary principle (along with the other principles of sustainability), particularly in relation to other objectives or decision-making criteria; and an improved policy framework for implementation in subordinate policies and guidelines. What can be drawn from the review of existing judicial decisions is that these reforms should seek to deal with: • indication of the threshold for ‘serious and irreversible’ environmental harm; and • indications of what constitutes ‘cost effective’ in terms of environmental measures. It is likely that into the future strategic environmental assessment (the assessment of the environmental impact of policies, strategies, budgets and even legislation) will take on the role of ‘fleshing out’ the application of the precautionary principle. Insights for China This paper has provided a general overview of the precautionary principle in Australia. From this analysis some basic insights can be made that are relevant to China. Consideration should, of course, be given to the different legal, judicial, environmental and political systems in each country, and caution should be applied before attempting to apply the Australian ‘model’. • Sustainability – increasingly environmental law will have to deal with sustainability issues in more detail, and not just as a general objective. The precautionary principle will be key to more specific actions to achieving sustainable outcomes. Consideration should be given to the benefits (and potential problems) that inclusion of the precautionary principle in Chinese environmental law will entail. • Attitudinal Change – sustainability and the precautionary principle reorientate thinking about environmental management and planning. A change is not just required in the letters of the law but in the thinking of people that administer it. The successful application of the precautionary principle is unlikely to be successful unless attitudinal changes take place in institutions, government and the community about valuing natural capital, protecting the integrity of ecosystems and taking decisions for the long term. • Strategic Environment Assessment – the precautionary principle relies on a well-developed policy framework to support legislative provisions. It is likely that Strategic Environmental Assessment (recently implemented in September 2003 in China through the Environmental Impact Assessment Law 2002) provides a good mechanism for ‘operationalising’ the precautionary principle in a practical way as part of China’s system of environmental management. SEA will be crucial in forming a framework for assessment of policies, strategies and budgets and determining whether serious and irreversible environmental impacts may eventuate that therefore need to be avoided.. • International environmental law – there is unlikely to be any opportunity to opt out of including the precautionary principle in environmental laws in the future. As highlighted in the first part of this paper, the principle is increasingly being used in a great variety of treaties and conventions at an international level. These will have wide reaching impact and those countries familiar and adept at working with the precautionary principle in the domestic sphere will be the most successful at the international level. Conclusion The precautionary principle has been part of Australian environmental law for over ten years. This has been a part of the considerable reform of environmental law based on the objective of sustainability. Freestone (1999) sees the emergence of the precautionary principle as one of the most remarkable developments of the last decade and arguably one of the most significant in the emergence of environmental law itself. It is an evolving process and adjustments will need to be made as decision-makers, the courts and the community develop a better understanding of the principles on which to make decisions about the environment. In Australia the precautionary principle has been influential in many court decisions on environmental matters and this will probably be increasingly the case into the future. The scope of issues to which it comes into play is also likely to continued to expand (e.g. international trade, genetically modified organisms) as the utility of the precautionary principle and a guide for decision making becomes more widely appreciated. One thing is clear - the precautionary principle will become more and more a central tenet of environmental law into the future. It is here to stay, with or without legislative prescription. Decision-makers and courts will not be able to avoid grappling with the conceptual and technical aspects of the precautionary principle. Undeniably the courts will be required to review its application and attempt to apply it. 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Are decision-makers too cautious with the precautionary principle, Land and Environment Court Annual Conference, Blue Mountains, Australia 14-15 October 1999. Wayne, B. and Mayer, S., (1993) ‘How Science Fails the Environment’, New Scientist vol. 138 no. 187833 at 34 World Commission of Environment and Development (1987) Our Common Future: Brundtland Report, Oxford University Press, Oxford. 对不确定的肯定吗？-论澳大利亚环境法的风险预防原则 Stuart Menzies 引言 风险预防原则 风险预防原则的起源 风险预防原则和可持续性 风险预防原则的重要成分 对严重或不可逆转的环境损害的威胁 缺乏科学充分确实证据 不得延迟采取环境保护措施 澳大利亚立法和风险预防原则 风险预防原则在新南威尔士立法中地位 风险预防原则在澳大利亚立法中的限制 风险预防原则的司法实施 关于风险预防原则司法判决的评论 风险预防原则的地位 风险预防原则在澳大利亚的未来 洞察中国 结论