S.92C(2) directs the Court to S.92B(6). It is mandatory for the Court to take these matters into
account. They comprise:
- The fauna impact statement.
- Any public submissions received by the National Parks and Wildlife Service.
- The factors set out in S.92A (5) and S.92A (6). These differ between threatened and
vulnerable and rare species but in both cases include (e) "any other matter which the
Committee [I interpolate the Director-General under S.92B (6) and the Court under S.92C
(2)] considers relevant". - Any reasons of the scientific committee under S.92A (3)(d).
- Any further information provided under S.92B (6).
In addition, S.92C (2) makes it clear that the factors set forth in S. 92B (6) do not limit S.39 of the
Land and Environment Court Act. As quoted earlier S.39(2) states that in addition to any other
functions and discretions that the Court has, it shall have all the functions and discretions of the
person whose decision is the subject of the appeal, in this case the Director-General of the
National Parks and Wildlife Service. Subsection (3) requires an appeal to be by way of re-hearing
and fresh evidence, in addition to or in substitution for the evidence given on the making of the
decision, may be given. Of importance to this application are subs (4). It provides that in making
its decision on appeal the Court shall have regard to the Land and Environment Court Act and any
other relevant Act or instrument, "the circumstances of the case and the public interest".
As previously mentioned, at least two submissions raised the question of the application of the
"precautionary principle". The question arises whether, if the principle is relevant, it may be
raised in the appeal. Mr. Dood asks that it be taken into account, particularly in relation to the
Giant Burrowing Frog. On behalf of the Director General, Mr. Preston submits that the principle
could be applicable. For example, he says that the Court would not issue a licence to take or kill a
particular endangered species if it was uncertain where that species would be present or there was
scientific uncertainty as to the effect of the development on the species.
While there has been express references to what is called the "precautionary principle" since the
1970's, international endorsement has occurred only in recent years. Indeed, the principle has
been referred to in almost every recent international environmental agreement, including the 1992
Rio Declaration on Environment and Development [Principle 15], the 1992 UN Framework
Convention on Climate Change [Art 3(3)], the June 1990 London Amendments to the Montreal
Protocol on Substances that Deplete the Ozone Layer [preamble, par 6] and the 1992 Convention
on Biological Diversity. This latter convention, which Australia has ratified, is of relevance to the
present case. It formulates the Precautionary Principle in the following terms:
"... Where there is a threat of significant reduction or loss of biological diversity, lack of
full scientific certainty should not be used as a reason for postponing measures to avoid
or minimise such a threat."Within Australia the Commonwealth has enacted the Endangered Species Protection Act 1992
which makes provision under S.175 to give effect to international agreements specified in
Schedule 4 of the Act. At this point in time, Schedule 4 does not include the 1992 Convention on
Biological Diversity. However, the precautionary principle has been incorporated in the
Commonwealth strategies on Endangered Species and Biological Diversity and, more generally,
in the 1992 Intergovernmental Agreement on the Environment, as well as state legislation such as
the Protection of the Environment Administration Act 1991 (NSW). In this statute the statement
of the principle has taken the following form: