Criminal redress in cases of environmental victimisation: a defence

In recent years growing concern has been voiced in the environmental justice literature regarding the ability of criminal justice mechanisms to adequately address environmental harms, especially when such harms are perpetrated by large corporations. Commentators argue that criminal justice processes are often ill-suited to the particular features of environmental cases, where the chain of causation between wrongful actions/omissions and environmentally harmful consequence can be very complex and extend over the course of many years. As an alternative, many such commentators now favour the adoption of more administrative resolutions when corporate bodies breach their environmental obligations (which may or may not amount to ‘crimes’). Others favour the use of civil sanction regimes, which is now the preferred approach of the UK Environment Agency. In this paper I will argue that the debate on how best to respond to environmental harm has so far neglected to factor in the perspective of the victims of those harms and, in particular, their need for redress. I will argue that by incorporating such a perspective, as opposed to focusing largely on questions of efficiency and cost-effectiveness, the criminal justice route still has much to recommended it, especially in relation to the provision of meaningful redress and/or compensation to the victims of environmental harm. Consequently, this paper will provide a victimological defence of the criminal justice process, and of criminal penalties, in their application to cases of environmental harms

Converging Currents: Custom and Human Rights in the Pacific

Pacific leaders frequently refer to two significant objectives – maintaining local values and custom and implementing universal, human rights. This study is about achieving both objectives. Both custom and specific human rights are embedded in many Pacific constitutions or statutes, yet the two concepts are often perceived as conflicting. From one perspective, human rights are seen as a threat to custom and the Pacific way of life, while from another perspective custom is seen as a threat to individual freedom and justice. Constitutions and court judgments can contribute to this polarisation by proposing that custom should trump human rights or, alternatively, that human rights should trump custom. The focus of our study is the practical operation of justice mechanisms, including both the courts and the wide range of community justice bodies found in the Pacific. We also consider the relationship between custom and the state. How the legislature and courts approach custom is critical in view of their role in determining how custom and human rights are applied. Custom and state-made law coexist within the state, but the state may modify the customary legal system by statute within any limits imposed by the constitution.An underlying but nevertheless critical aspect of our work is that development of a Pacific jurisprudence will only occur as Pacific nations find ways to better integrate these two sources of law. The rule of law can only be effective in each country to the extent that the law is owned by the people. Ownership is difficult to achieve if the legacy of colonial legal systems, whether British, American, French or international legal norms, are seen as alien to custom and customary sources of law.The legal systems of each Pacific Island nation are complex and under strain from a range of political, social and economic problems. The resources for addressing the problems are very limited. Our study convinces us that supporting and building on the legal infrastructures is vital, with implications for the future that go beyond this study of human rights and custom.Custom provides Pacific nations with much of their sense of identity and with vital governance and dispute-resolution mechanisms. Human rights provide Pacific people (especially the most vulnerable) with protection and support for realising their aspirations. A harmonising approach will strengthen legal systems and the development of jurisprudence unique to Pacific states

Adapting to Radical Innovation: Accident Compensation in New Zealand

This paper profiles the 1974 introduction of a new system for compensating individuals who suffer accidental injuries in New Zealand. It reviews the development of this scheme through the late 1980s and highlights the increase of political pressures for subsequent reform. Among the various difficulties identified in implementation are the operation of the "no fault" principle, the effect of the duration of disability, the payment of lump-sum compensation and the question of indexing payments. Disputes about the detailed funding of the scheme and politically inspired changes in the revenue base are explained. The major dilemma posed by different levels of compensation for those disabled by accident or sickness is examined. The paper concludes by querying whether the identified problems are a reflection of weaknesses in the original scheme or a result of less-than-full implementation. Copyright 1993 by The Policy Studies Organization.