"... if 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" (S.6(2)(a).The 1992 Intergovernmental Agreement 6n Environment has also utilised this formulation, but
expanded it by adding:
"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 weighed consequences of various options."
On behalf of the Director-General, Mr.Preston made submissions on the incorporation of
international law into domestic law. It seems to me unnecessary to enter into this debate. In my
opinion the precautionary principle is a statement of commonsense and has already been applied
by decision-makers in appropriate circumstances prior to the principle being spelt out. 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 or ignorance exists concerning the
nature or scope of environmental harm (whether this follows from policies, decisions or
activities), decision-makers should be cautious.
I have earlier referred to the factors the Court must take into account on an appeal under s 92C of
the Act. These include the submissions made (S.92B)(6)(b), some of which argued that the
precautionary principle was appropriate to the case; any other matter which the Court considers
relevant (s 92A(6)(e)) and the circumstances of the case and the public interest (s 39(4) of the
Land and Environment Court Act). The issue then is whether it is relevant to have regard to the
precautionary principle or what I refer to as consideration of whether a cautious approach should
be adopted in the face of scientific uncertainty and the potential for serious or irreversible harm to
the environment.
To test the relevance of these considerations, or the Precautionary Principle, to the endangered
fauna provisions of the National Parks and Wildlife Act, one needs to examine the subject matter,
scope and purpose of the enactment. A consideration will be irrelevant if one is bound by the
enactment to ignore it. However, where a matter is not expressly referred to, consideration of it
may be relevant if an examination of the subject matter, scope and purpose shows it not to be an
extraneous matter: Minister for Aboriginal Affairs vs Peko- Wallsend Ltd (1986) 162 CLR
Under Pt 7 of the Act, the Director-General is appointed the authority for "the protection and care
of fauna"(S.92). The remainder of Pt 7 establishes a regime requiring consideration and
identification of endangered fauna (threatened or vulnerable and rare) (s 92A), licensing where
endangered fauna may be taken or killed and the creation of offences involving stringent penalties
(including imprisonment) for the taking or killing of protected and, endangered fauna in
contravention of the Act (as 98, 99, 103). It is clear that the purpose of these provisions is the
protection and care of endangered fauna. To this end the scientific committee (in placing fauna on
the endangered list), the Director-General (in determination of a licence) and the Court (on
appeal) are to have regard, inter alia, to the population, distribution, habitat destruction and
ultimate security of a species; see s 92A(5) and s (2A(6). Similar data or details are to be assessed
under the fauna impact statement: see in particular s 92D(c)(ii) and s 92D(c)(iii).
When Pt 7 of the Act is examined it is readily apparent that the precautionary principle, or what I