Gullett, Warwick --- "The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review" [2006] ELECD 392; 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 9

Section Title: The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review

Author(s): Gullett, Warwick

Number of pages: 20

Extract:

9. The threshold test of the
precautionary principle in
Australian courts and tribunals:
lessons for judicial review
Warwick Gullett

INTRODUCTION

The increasing preparedness of Australian environmental managers to rely
on the precautionary principle when exercising their legislative powers is tes-
tament to the principle's usefulness regarding a range of environmental
management challenges. However, Australian legislation provides limited
support for precautionary decision making because it adopts a vague for-
mulation of the principle and appears to limit its application to cir-
cumstances when there are `threats of serious or irreversible environmental
damage'. Further, many environmental management agencies remain
without express legislative instructions either to consider or apply the prin-
ciple. The combination of a weak legislative mandate for precautionary
decision making, and its potentially significant economic consequences for
affected individuals, raises the prospect of a new wave of judicial review
challenges against decisions which are arguably impermissibly precaution-
ary. Such legal challenges to decisions made by environmental and planning
agencies may not only result in their invalidation; they may also shape
administrative culture in using the principle. This makes it necessary for care
to be taken in how the principle is incorporated into rules and regulations
so that decisions of government departments and agencies can be made in
a manner consistent with the philosophy behind it. The Australian experi-
ence reveals that the legislative formulation of the principle may be pivotal
in determining the lawfulness of precautionary management decisions. This
experience is informative for other jurisdictions which embed the principle
...