Precaution v Precaution

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Friday, February 19th, 2016
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One of the more interesting philosophical issues to emerge in the early 21st century is the relationship, as determined by our courts, between the precautionary principle as implemented in environmental legislation, and the precautionary approach as articulated in the harmonised Work Health and Safety (WHS) legislation.

It is interesting because the intellectual source of these ideas appears entirely different, yet the judicial operationalisation of both approaches appears to align.

The environmental precautionary principle is generally recognised as coming from Germany’s democratic socialist movement in the 1930s and gained acceptance through the German Green movement in the ’70s and ’80s as a formal articulation of the German principle of vorsorge-prinzip, that is, quite literally, precaution-principle. In Australia, Parliaments adopted the formulation derived from the Rio convention in the ’80s as expressed by the Intergovernmental Agreement on the Environment (1992) between the Commonwealth and the States. That is:

“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 precautionary approach in the model WHS legislation appears to be derived as a defence against negligence in the common law. The common law (commencing in the 12th century with King Henry II) is now established from case law as modified progressively by the judiciary over the next 800 years and, in particular with regard to negligence, by the English law lord Lord Atkin in 1932. He favoured the adoption of a manifestation of the ethic of reciprocity or the golden rule of most major philosophies and religions, expressed in the Christian tradition, as: love your neighbour as yourself meaning do unto others as you would have done unto you.

In The precautionary principle, the coast and Temwood Holdings, published in the Environmental and Planning Law Journal 2014, Justice Stephen Estcourt summarises the attempts by the judiciary in Australia to operationalise the environmental precautionary principle over the last 20 years and describes the way various decisions depend on earlier decisions and the way in which aspects of possibly unrelated decisions can be ‘borrowed’ (for want of a better term) from other judgments. For example, he observes that Osborn J in Environment East Gippsland vs VicForests (2010) notes the Shirt calculus. Wyong Shire Council v Shirt (1980) considers the liability of the Council for a water skiing accident, which at first glance would not appear to have any obvious connection to an environmental forestry matter. The issue was a question as to on which side of a sign saying ‘deep water,’ the water was actually deep.

What the judges appear to be doing is extracting what are perceived relevant principles from other decisions. This has been conceptually noted by others. In their book Understanding the Model Work Health and Safety Act, Barry Sherriff and Michael Tooma quote a decision from the NSW Land and Environment Court to establish what due diligence means in the model Work Health and Safety legislation. Their point is that, whilst due diligence has been defined in the model WHS Act, the definition closely mirrors the current definition of due diligence in case law. That is, existing environmental case law may serve as a guide to this interpretation for WHS legislation.

From the perspective of due diligence engineers trying to reverse engineer the decisions of the Courts, all this is actually quite refreshing. Deconstructing the precautionary principle back to established common law protocols to establish due diligence facilitates a robust pre-event alignment of the laws of nature with the laws of man.

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