The Precautionary Principle in Australia: Policy, Law & Potential Precautionary EIAs

Dr. Gullet argues that environmental impact assessments are a logical vehicle for factoring the precautionary principle into large-project-approval processes

Transportation systems

As China expands its economy, increases its population, and opens up to the outside world, its political leaders and urban designers face increased pressure to create more efficient and environmentally friendly transportation systems

Developments in Australian fisheries law: setting the law of the sea convention adrift?

Significant developments have recently occurred in the ongoing campaign by the Australian Government to combat illegal foreign fishing in Australian waters, particularly against Patagonian toothfish poaching. On 22 March 2004 significant amendments to Australia’s fisheries laws were passed by the Commonwealth Parliament to improve regulatory efficiency and combat illegal foreign fishing in the Australian Fishing Zone (AFZ). In addition, on 12 March 2004 the Federal Court of Australia delivered a landmark decision in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 concerning the automatic forfeiture of foreign vessels to the Commonwealth of Australia at the time when a fisheries offence occurs rather than upon apprehension. It is argued that the Federal Court’s decision and the amendments increase the disparity between measures Australia has adopted within its domestic legal regime to deter illegal foreign fishing in the AFZ and its responsibilities under the UN Convention on the Law of the Sea (LOSC)

Legislative implementation of the law of the sea convention in Australia

All States with marine and maritime interests need to ensure that their domestic laws enable them to meet their obligations, and to take advantage of the rights afforded to them, under the international law of the sea. This body of international law is structured around one of the most extensive and widely ratified international treaties: the United Nations Convention on the Law of the Sea (\u27LOSC\u27).1 This paper reviews the general process by which obligations and rights in international treaties become part of domestic law and then examines Australia\u27s experience in incorporating into its domestic law three broad areas of prescriptive and enforcement jurisdiction provided in the LOSC: maritime zones, fisheries and navigation. It is revealed that there are a number of areas in which Australia\u27s domestic law does not align exactly with provisions in the LOSC. This is due to the nature of the process for domestic legislative incorporation of international law and the desire by the Australian Government to contribute to the development of the international law of the sea in areas where LOSC provisions are open to a range of interpretations

Legal framework and enforcement experience of marine protected areas in Tasmania, New South Wales and Commonwealth waters

With the exception of the Great Barrier Reef Marine Park, there have been no prosecutions for specific offences within marine protected areas (MPAs) in Australia at the federal level or in Tasmania and New South Wales. However, it cannot be assumed that compliance is responsible for this lack of prosecutions. Rather, in some cases, enforcement officers prosecute offences under more general provisions found in fisheries legislation than under provisions for specific offences created in MPAs. In other cases, there has been a long lag time between the declaration of MPAs and the adoption of comprehensive and effective legislative arrangements creating offences for specific activities within them. Hence, there may be periods during which MPA regimes fail to give adequate legal support to the environmental objectives they seek to achieve, partly because of the need to \u27phase out\u27 existing fishing activities. Additionally, they may fail to prohibit inappropriate activities immediately adjacent to MPAs. This paper examines the legal regimes that exist to establish MPAs in Tasmania, New South Wales and areas under federal jurisdiction and the offences recognised to ensure the protection of ecological values. Those analysed are regimes set up under \u27umbrella\u27 MPA Acts, site-specific Acts and other legislative arrangements using existing fisheries legislation. It is concluded that a legislative system allowing the award of modest rather than severe penalties would increase the likelihood of prosecution and would complement educative measures aimed at ensuring compliance

Fishing industry - Taiwan

Taiwan has one of the largest fishing industries in the world. But because Taiwan no longer holds a seat in the United Nations, it is often left out of standard U.N. doctrines that monitor and regulate fishing. The dilemma of how to handle Taiwan\u27s unique situation while maintaining fishing-industry standards is an issue still to be addressed

Contesting the merits of aquaculture development: Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426

Australia\u27s aquaculture industry has grown rapidly since the mid-1990s. It has become the fastest growing industry in the primary sector and is a valuable contributor to development in regional areas. However, there is increasing community concern about the potential environmental impacts of aquaculture. Concerns vary enormously depending on the type of aquaculture activities but they typically include habitat modification, marine floor degradation, diminished water quality, disease, translocation of aquatic organisms, cumulative impacts and, particularly in highly populated coastal stretches (such as in New South Wales (\u27NSW\u27)), effects on amenity values. The challenge is to develop an approval process for aquaculture proposals that ensures that likely and potential environmental impacts are avoided, reduced or otherwise managed while not unnecessarily restricting the development of the industry. Compounding this challenge is the fact that many coastal ecosystems are already subjected to a range of anthropogenic stresses. Further, most Australian aquaculture operations are marine based and therefore involve the use of public space. This involves the perceived or actual alienation of public space for private purposes. As a result, the regulatory framework for aquaculture must, in addition to assessing environmental impacts, aim to achieve a balance between aquaculture needs and other legitimate uses of the marine environment. (This is commonly referred to as \u27Integrated Coastal Zone Management\u27.) There are Australian and state government efforts to promote the development of the aquaculture industry, yet there is often public opposition to proposals, especially where these are seen to conflict with other industries, notably tourism and recreational pursuits (such as yachting). Two recent NSW aquaculture proposals have polarised regional communities: the extension of mussel culture in Twofold Bay at Eden on the State\u27s south coast, and approval of pearl farming in Port Stephens on the State\u27s central coast. In Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 (decision 15 August 2005), the Land and Environment Court allowed the developer\u27s appeal against the decision of the Minister to reject development consent. The Minister\u27s decision had run counter to advice from his own department. The case highlights the protracted approval process for aquaculture development in NSW and how environmental issues are assessed and weighed by the Land and Enviromnent Court

The precautionary principle in Australia: policy, law and potential precautionary EIAs

The precautionary principle has been adopted in such a widespread fashion that it is now difficult to find in either the international environmental arena or countries with advanced environmental protection frameworks an environmental policy document, a new environmental law, or even a political statement about environmental management that does not include a reference to the principle or reflect some of the core ideas of the precautionary concept. References to the principle can be found in documents produced by organizations such as the European Environment Agency, the World Trade Organization, and of course the United Nations; in numerous environmental treaties ranging from the management of straddling fish stocks to the prevention of pollution in the North Sea; in domestic and provincial environmental legislation; as well as in a plethora of domestic environmental policies and strategies. That the precautionary principle/approach is commonplace internationally (and, in fact, is considered by many to have crystallized into a norm of customary international law) and in domestic jurisdictions, is a testament to the soundness of the concept and the usefulness of considering precaution when devising environmental management and protection strategies

Enforcing bycatch reduction in trawl fisheries: legislating for the use of turtle exclusion devices

The mandatory use of bycatch reduction devices (BRDs) in prawn trawl fisheries is now commonplace in Australia. BRDs are designed to allow unwanted or juvenile species to escape fishing nets with consequent benefits for the abundance of such species, species which prey on them, and general ecosystem integrity. In the Queensland East Coast Trawl Fishery, as well as in a handful of other Australian prawn trawl fisheries, specific turtle excluder devices (TEDs) are required to prevent turtles from entering the codend section of trawl nets. This article reviews international and Australian legal measures to protect turtles from prawn trawl fishing activities. It focuses on the difficult task fisheries officers in Queensland were presented with in 2002 when they attempted to prosecute two fishers for alleged non-compliance with their licence requirement to use a device which enables turtles to escape “immediately” after being taken in the net. A review is presented of this case which highlights the difficult task of securing convictions for alleged non-compliance with fisheries regulations where scientific uncertainty compounds the establishment of the required evidentiary burden of proof. The decision in the case exposes the challenge drafters of legislation face when they attempt to translate sound fisheries management objectives into effective and enforceable law