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Precautionary Principal

 

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JG analysis of Preston analysis with my comment on that analysis

  • The application of the precautionary principle and the concomitant need to take precautionary measures.....

The first errors is to define the need to take "precautionary measures" as concomitant of the precautionary principle.

  • A concomitant: is defined as existing or occurring with something else, often in a lesser way;

  • A principle has many definitions the most useful in this case is: a law for the working of a system.

All components of a system comprise the system. - A head is no more a concomitant of a body than a "precautionary measure" would be a concomitant of the precautionary principle.

  • The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of the following twoconditions precedent or thresholds”: [178]

  • a threat of serious or irreversible environmental damage; and

  • scientific uncertainty as to the environmental damage

(JG said -the second threshold might more accurately be described in terms of "not using the lack of full scientific certainty for postponing a measure to prevent environmental degradation")---[178]

The next of Preston's errors is to assert that the precautionary principle has only two conditions precedent.

The term “conditions precedent” is the plural form of a legal term which refers to a cascading sequence of priorities where in order for the subsequent priority to be enlivened the preceding priorities conditions must be satisfied.

If we accept this definition of “conditions precedent” as correct, then for their application in precautionary principle as defined in Section 391 of the EPBdCA they would travel in this order:

  • is their a circumstances where there is a lack of fall scientific certainty in relation to a particular matter— YES

  • is this lack of scientific certainty being used as a reason supporting a decision— YES

  • is the decision, the postponing of a measure— YES

  • is the measure to prevent degradation of the environment— YES

  • is there a threat that this degradation will occur in the absence of a preventative measure— YES

  • is the degradation likely to be severe or irreversible— YES

Preston however is correct these “conditions precedent” are accumulative.

In the above material ALLconditions precedent” are required to return YES to satisfy the application of the principle but there is heap more than two.

  • The following two points should be noted regarding the first condition precedent:

    • it is not necessary that serious or irreversible environmental damage has actually occurred and

    • it is sufficient that there is a threat of such damage; and

  • The environmental damage threatened must attain the threshold of being serious or irreversible.  [179]

  • The assessment of whether there is a threat which is serious or irreversible “involves ascertaining whether scientifically reasonable (that is, based on scientifically plausible reasoning) scenarios or models of possible harm that may result have been formulated” and that the threat of environmental damage “must be adequately sustained by scientific evidence” [180]

  • emphases the distinction between determining whether or not a threat of serious or irreversible environmental damage exists and  an evaluation of the scientific uncertainty of the threat.[182]

This is Preston's next idiosyncrasy, the arrangements of the order of the “conditions precedent”

Preston has placed the assessment of the threat as the first test. The consequence of this is that it denies the order in which the legislation was crafted.

Preston has determined that the original designer must have got it wrong in presentation and that the “conditions precedent” should be deconstructed and reordered.

No reasoning was presented for why this exercise was undertaken.

  • The evaluation of the scientific uncertainty of the threat does not arise at the stage of assessing the first condition precedent; rather, it arises in the subsequent analysis. In other words, if there is no threat of serious or irreversible environmental damage, the precautionary principle is not triggered. [182]

The last aspect of the Preston analysis of the precautionary principle is to coin a phrase called ‘precautionary measure’.  The only ‘measure’ provided for in the application of the precautionary principle (as defined in the section 391 of the EPBdCA) is a “prevention” measure not a ‘precautionary’ one.

The application of the precautionary principle itself is the only “precautionary measure”.'

While we are here lets look at:

SECTION 547E

527E

Just for fun let’s take section 547E out for spin and turn it's intention into conversational language

527E  Meaning of Shit

Shit happens:-

SO- it's your shit, if you caused it to happen,

  • either by doing it yourself; or

  • by someone else doing it as a consequence - of what you did; and

  • at the time you did your shity thing

    • it was bleeding obvious to you as to what the flow on consequences could be.

Example 2A: As a gangster boss you says to a most obliging gang member- 'I wish that someone would kill that prick' and then that helpful gang member, who would do anything for his boss, hears you make that wish and goes and killed that prick for you. - Thats YOUR shit.

BUT it’s not your shit if :

  • Someone else did some thing, following on from what you did; and

  • you didn't tell them to do it; and

  • at the time you did your shity thing

    • you didn't have the foggiest idea that someone would do such a dip-shit thing.

    Example2B: As a gangster boss you says to the friend -'I going to kill that prick' and then that freind who would do anything for you hears you make that statement and instead goes and killed that prick for you. - Thats NOT your shit.

    YES MINISTER

    So let’s just knock together a small script for the “Yes Minister” program with section 527E in mind

    Scene 1  Opens with Minister in his office

    “Good morning Humphrey”

    “Good morning Minister are you up for a bit of deciding today?"

    "Why not! it’s a good day for it - what do we have on the table today?"

    "Not much Minister, just this one, some guy who wants to dig up 6 Billion tonnes of coal and would like our approval"

    "Seems fair!"- "6,000 Million tonnes of coal? Wonder what he’s going to do with that much coal?"

    "Perhaps! - --- sell it Minister?"

    "Sell it! - Where would you put all that coal Humphrey, if you brought it ?"

    "I don’t know Minister , perhaps turn it into the filling for pencils or maybe filling for chocolate biscuits!"

    "A bit crunchy don’t you think - Humphrey!"

    "I guess so - I have heard that some like to people burn it!"

    "Burn it? - Why would you buy something and then burn it? -Would it take a long time to burn all that coal?"

    "Well Minister, not really my expertise, perhaps I could get the chief scientist to give you some advice on what could be the possible uses for 6 Billion tonnes of coal."

    " Oh! I don’t know I’ve got lunch at 1:00 o'clock with the PM and you know how those Sciencie guys woffle on a bit incessantly about nothing of real consequence - you know!."

    "Yes I see your point, Minister - alright then, let’s give that a miss"

    Well Minister perhaps you can ask Mr Dhani? -After all he is the Applicant."

    "Do you think he would know- Humphrey?"

    "Oh! - Possibly- Minister!"

    "I see your are schedule to have lunch with Mr Dhani? tomorrow - perhaps you could raise it in casual conversation over your lunchen meeting?"

    "Oh I don’t know, terribly bad for digestion that sort of thing really, - talking business over lunch."

    "Yes quite Minister - I see your point!"

    "Here, be a good chap and pass me that rubberstamp over there so I can get this done and out here before morning tea arrives, one can't keep the PM waiting for lunch you know "

 

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