Hinchinbrook Island and the Precautionary Principle in Australian Environmental
Law
Max Spry
Politics and Public Administration Group
August 1997
Earlier this year, Sackville J of the Federal Court upheld a decision
of the Minister for the Environment granting certain development consents
pursuant to the World Heritage Properties Conservation Act 1983
in relation to the development of a resort in north Queensland (this decision
was currently upheld on appeal). The applicant challenged the Minister's
decision on a number of grounds including his alleged failure to have
regard to the precautionary principle.
In short, the precautionary principle states that where the 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.
This Research Note explores the extent to which the precautionary principle
has been adopted in Australia.
The Rio Declaration
Australia was one of the 178 countries participating in the UN sponsored
conference on Environment and Development held in Rio de Janeiro in 1992.
That conference formulated the Rio Declaration on Environment and Development,
a statement of 27 principles directed towards promoting sustainable development,
including the protection of the environment. Principle 4 states:
In order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and cannot
be considered in isolation from it.
Principle 15 of the Declaration acknowledges the role of the precautionary
principle in achieving sustainable development. It provides:
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 in Australia
At a Special Premiers' Conference held in Brisbane in 1990, the Commonwealth,
States, Territories and representatives of Local Government, agreed to
develop an Intergovernmental Agreement on the Environment (IGAE). The
IGAE, concluded in 1992, recognises, amongst other things, that environmental
problems are often not limited by jurisdictional boundaries, the importance
of clarifying State, Territory and Commonwealth responsibilities in the
environmental field, and the significance of ecological sustainable development.
Section 3 of the IGAE sets out a number of principles which the parties
agree will inform their decision-making in the environmental context,
including polluter pays, intergenerational equity and the precautionary
principle. The precautionary principle is expressed in the IGAE as follows:
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.
The precautionary principle has been stated in few enactments. It is
stated in, for example, the Great Barrier Reef Marine Park Act
1975 (Cth). Subsection 39Z(1) of that Act provides that in preparing management
plans the Great Barrier Reef Marine Park Authority (GBRMPA) is to have
regard to both the protection of world heritage values and the precautionary
principle.
Case Law Before Hinchinbrook
The most extensive curial discussion of the precautionary principle in
Australia remains 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]. Due to a population increase, the Council
proposed to construct a road to relieve 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.
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'. Is the precautionary principle a relevant consideration
in the appeal? 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:
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.
All the parties before the Court accepted that the proposed road would
likely have an adverse impact on the Yellow-bellied Glider.
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.
Hinchinbrook
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 vitiated 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.
Further, Sackville J 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.' 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, Sackville J concluded, 'took into account the commonsense
principle that caution should be exercised where scientific opinion is
divided or scientific information is incomplete.'
In upholding the validity of the Minister's decision, Sackville J stated
that 'none of the grounds advanced for challenging the Minister's decision
to give consents under the World Heritage Act has been made out.'
Conclusion
As yet there is very little judicial discussion of the precautionary
principle in Australia. It seems fair to say, however, that the principle
is likely to be argued further in environmental litigation.
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