The aim of this short paper is to provide some background information on the precautionary principle in Australia. It is essentially an expansion of the original paper released by the Institute of Environmental Studies on the precautionary principle. This overview does not aim to be an exhaustive survey of the status of the precautionary principle in Australian law and policy but rather illustrative within the Australian context.

Over the past 18 months or so the precautionary principle has appeared in legislation, policy documents and in conference papers. Despite this frequency of its use there has been

• no designated public discussion and
• little attention given to ways of applying the principle in various sectors of environmental management.

Many actions and measures already taken can be classified as 'precautionary'. However such measures have appeared in an ad hoc way. There is a need to build on these examples to develop a coherent framework for environmental policy and management embracing the precautionary principle. The aims of this conference are to:

• provide information on the multi-disciplinary scope of the concept of the precautionary principle
• give detailed examples of past operational strategies involving the precautionary principle
• attempt to set up a inter-transdisciplinary framework for the application of the precautionary principle
• establish groups to consider application of the principle within various environmental sectors

This paper provides each conference participant with some very basic information which we hope will provide a useful starting point for more detailed discussion of the principle.

A DEFINITION

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:

1. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; an
2. an assessment of the risk weighted consequences of various options.

(Intergovernmental Agreement on the Environment, May 1992, para 3.1 )

In law and policy there are many variations on the statement of the precautionary principle which relate to such matters as whether measures should be 'cost effective' or whether the damage threatened must be serious or irreversible. These variations will have an affect on the operation of the precautionary principle.

HISTORY OF THE PRECAUTIONARY PRINCIPLE

The precautionary principle first appeared in its present form in Germany in the mid 1970s as a general principle of 'good housekeeping' in environmental management. In the 1980s it played a leading role in policy reform in the area of marine pollution and was seen as a justification to impose upon industry a duty to use 'best available technologies' and 'cleaner production' methods.

From there it has become widely used in international environmental law and the principle has been applied to areas such as general environmental management, hazardous wastes, marine pollution, climate change and ozone layer depletion. It has been included in at least 10 treaties including the Maastricht Treaty of the European Union and the Bergen Declaration. Australia is a signatory to a number of these treaties including the Montreal Protocol on Substances that Deplete the Ozone Layer and the Rio Declaration.

AN UNDEFINED PRINCIPLE

Despite this widespread use of the precautionary principle there has been little consensus regarding its definition. As a result many different interpretations have emerged with little agreement over:

• The disciplinary basis of the principle. Is it a scientific, legal or philosophical concept?
• Whether it is a guiding or an operational principle?
• How it differs from other principles such as prevention and mitigation.

We are sure that many of these issues will be raised at the conference and the ambiguity over the principle will be well illustrated.

THE PRECAUTIONARY PRINCIPLE IN THE IGAE

The precautionary principle is a guiding principle in the Intergovernmental Agreement on the Environment (IGAE). The principle is stated in Section 3.5.1 of that document, as cited above.

The IGAE is an important milestone in Australian intergovernmental relations and co-operation concerning the environment. Although not legally binding it sets up a framework to deal with intergovernmental conflicts and the co-operative development of law and policy in numerous areas. These areas include:

• Land Use Decisions and Approval Processes
• Resource Assessment
• Biological Diversity
• Climate Change
• Environmental Impact Assessment
• Nature Conservation
• Data Collection
• National Estate
• National Environmental Measures
• World Heritage.

The precautionary principle among others is to be a guiding principle for informed 'policy making and program implementation' by all levels of government in Australia (IGAE 1992: para 3.1) in all the above areas. The important point to make here is that the principle:

• should guide both the public and private sector
• requires avoidance of serious or irreversible damage wherever practicable
• requires an assessment of different options.

While most states at present do not have the precautionary principle in either their legislation or their policies many are considering it now in the context of legislative reform in light of the IGAE. The importance of this document can not be over estimated.

THE PRECAUTIONARY PRINCIPLE AND ESD

The National Strategy for Ecologically Sustainable Development (ESD) includes the precautionary principle as a guiding principle which is part of a 'package' of core objectives and guiding principles in which

"[n]o objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD" (National Strategy for ESD, December 1992).

The other guiding principles include:

• the need for decision making processes to effectively integrate both long term and short term economic, environmental, social and equity considerations
• the need to recognise the global impact of decisions
• the need for a strong, growing and diversified economy
• the need for broad community involvement.

The objectives are:

• the enhancement of individual and community well being and welfare by following a path of economic development that safeguards the welfare of future generations
• to provide equity within and between generations
• to protect biological diversity and maintain essential ecological processes and life support systems.

Thus it is clear that precaution as a guiding principle of ESD is intended to be integrated (on many levels) into environmental planning and management in Australia. In addition the ESD Strategy covers a wide number of sectoral areas including:

• Mining
• Fisheries
• Agriculture
• Tourism
• Urban and Transport Planning
• Forest Resource Use
• Energy Use
• Energy Production.

It also impacts on intersectoral issues including:

• Land Use Planning and Decision Making
• Occupational Health and Safety
• Population Issues
• Industry, Trade and Environmental Policy
• Pricing and Taxation
• Water Resource Management
• Waste Minimisation and Management
• Coastal Zone Management
• Research, Development and Demonstration
• Environmental Impact Assessment
• Changes to Government Institutions and Machinery.

As well, a number of policy documents and the Protection of the Environment Administration Act 1991 (NSW) include the precautionary principle as part of the definition of ESD. The policy documents include:

• Decade of Landcare Plan
• National Water Quality Strategy
• Draft Policy for Commonwealth Responsibilities on the Coastal Zone
• National Forests Policy Statement.

Proposed amendments to the Water Licensing and Water Administration Acts in NSW include the precautionary principle as does the Environment Protection Bill 1993 in South Australia.

The fact that the precautionary principle is included as part of the 'official' definition of ESD suggests that it is implicit in any statement of ESD. If this is the case then an undefined reference to ESD in legislation would be an inference to consider the precautionary principle. Legislation which falls into this category includes:

• Natural Resources (Financial Assistance) Act 1992 (Cwlth)
• Land (Planning and Environment) Act 1991 (ACT)

Although the actual ambit of the principle is unclear its relationship with ESD must mean that it affects many areas of environmental management.

A good example of where the precautionary principle is being applied in Australia as part of ESD is in the context of water quality management.

The National Water Quality Strategy (August 1992) states:

"Ecologically sustainable development provides the basis for water quality management."

In the publication, National Water Quality Management Strategy - Policies and Principles - A Draft Reference Document (August 1992) it is stated:

"The combination of equity considerations with the fourth principle of dealing cautiously where there is uncertainty about the environmental outcomes of development, requires that the management of water resources should be precautionary with respect to decisions that impact upon water quality. The precautionary approach requires a philosophical and strategic sympathy with avoidance of resource degradation. Decisions which may result in even small erosions of water quality should be carefully evaluated and avoided where possible" (p. 5).

The Strategy is very comprehensive and covers a wide range of water quality problems (rural, ground water and trade waste) and discusses numerous types of strategies to deal with these problems.

RELATED CONCEPTS: RISK AND UNCERTAINTY

Many other documents in Australian law and policy contain related principles. For example the Resource Assessment Commission has been legally bound (Resource Assessment Commission Act 1989 (Cwlth) to consider uncertain and unquantifiable risks in making decisions and hence the precautionary principle is clearly relevant. The Resource Assessment Commission Act 1989 requires the Resource Assessment Commission to:

"[s.8](d) assess the losses and benefits involved in the various alternative uses, or combination of uses, of that resource, including:

1. losses and benefits of an unquantifiable nature; and
2. losses and benefits that are uncertain or long term; and....."

The precautionary principle deals with the concepts of risk and uncertainty. Both risk and uncertainty are complex concepts. Uncertainty is not an easy term to define and we must be able to distinguish between:

• Technical uncertainty
• Ignorance
• Indeterminacy.

Dealing with 'uncertainty' in its various forms requires diverse decision making strategies and the use of a wide range of resources and knowledge.

In considering risk the following matters are relevant:

• The social nature of risk perception
• The processes of risk communication
• The uncertainties of risk assessment
• The problems risk management
• The equity of risk distribution.

Risk is not solely a technical concept and this has important consequences for application of both the precautionary principle and conventional forms of risk management.

THE PRECAUTIONARY PRINCIPLE IN OPERATION

Just as there are many different definitions of the principle there are also many different ideas concerning its practical operation. The conventional view is that the principle is a reversal of the burden of proof. That is the developer and polluter have the onus of proving their activity is not harmful to the environment before they can proceed with it. In a strict scientific sense such a task is impossible. Hence in operational terms 'shifting the burden of proof' involves practical and conceptual problems due primarily to the nature and treatment of uncertainty.

Many other approaches to the practical operation of the principle have been discussed. These include:

• Use of best available technologies
• Use of appropriate discount rates
• Re-analysis of the role of risk assessment
• Pollution prevention
• Research and development
• Clean production technology
• Use of insurance bonds
• Emphasis on liability and due diligence
• Reform of environmental impact assessment
• Greater attention to the role of uncertainty in environmental management
• Use of 'offsets' in environmental management
• Consideration of the implicit uncertainty in scientific activity.

The precautionary principle may be applied as a general principle for broad environmental policy or for a particular sectoral area such as forestry or hazardous waste management. It may be applied by either public or private sectors and may be applied in many different forms. It may also be mandatory or directory.

CONCLUSION

From the discussion above the reason for this conference is very clear. By nature of its inclusion in policy and legislation the precautionary principle must be considered as an important component in environmental planning and management. We believe that this is both timely and relevant to many of the issues being faced in environmental management in Australia today. Moreover, the role of precaution is bound to increase in importance in the future. We hope that this conference provides a relevant and useful forum for discussing that role.

Finally we include some questions for consideration as you attend and after you leave the conference. There are no simple solutions but each makes an interesting point for discussion.

Law

• How can one regulate effectively under scientific uncertainty?
• What role is there for reversing the burden of proof and strict liability offences?
• Does self regulation have a role to play ?
• How relevant are traditional common law rules?

Science

• What role is there for scientists in the formulation of precautionary principle policies?
• Should we be putting more funding into environmental research?

Industry

• Can business operate under the precautionary principle?
• What liabilities and responsibilities may be imposed?
• Will the precautionary principle result in unreasonable barriers to development?

Economics

• Are discount rates applicable to the precautionary principle?
• What economic instruments are relevant for applying the precautionary principle?

Sociology

• How does the precautionary principle affect relations between the State, society and organised science?
• What are the social implications of the precautionary principle for processes of innovation and political decision making?

Engineering

• What is meant by Clean Production?
• What role is there for Best Available Technologies?

Risk Management

• How does the precautionary principle differ from conventional risk management?

Government/Planning

• How can a decision maker effectively deal with the science/policy interface?
• What decision making structures and strategies will implement the precautionary principle?
• What reforms to inter- and intra-governmental relations are required?
• What role is there for planners in applying the precautionary principle?
• Is enhanced community participation in environmental decision making required by the precautionary principle?

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