Alternative to The Precautionary Principle?

by Don Aitkin

 

First published at Online Opinion, cross post via  license under a Creative Commons License

 

 



I've written about the Precautionary Principle before. With that title it was adopted at the 1992 Rio conference on climate, and it has been used a great deal by proponents of the need to 'combat climate change' internationally. Built into it is Pascal's Wager about the correctness of believing in God, and it has analogies in the medical precept 'first do no harm'. I didn't like it when I first came across it, partly because it was dressed up as a 'principle' and partly because of the capital letters, which suggested importance and longevity.

Image sourced [here]


I've come across a most interesting paper by Max More, an English philosopher and futurist, which offers instead a 'proactionary principle'. There's a lot in it, and it's well worth reading. I'll discuss his alternative in a later post, but use this one to show his demolition of the precautionary principle. It is clear and accessible.

'The precautionary principle has at least six major weak spots. It serves us badly by:

assuming worst-case scenarios

distracting attention from established threats to health, especially natural risks

assuming that the effects of regulation and restriction are all positive or neutral, never negative

ignoring potential benefits of technology and inherently favouring nature over humanity

illegitimately shifting the burden of proof and unfavourably positioning the proponent of the activity

conflicting with more balanced, common-law approaches to risk and harm.

First, the precautionary principle always assumes worst-case scenarios. Any release of chemicals into the environment might initiate a chain of events leading to a disaster. Genetically modified organisms might cause unanticipated, serious, and irreversible problems. By imagining the proposed technology or project primarily in a worst-case scenario, while assuming that refraining from action will have no disastrous consequences, the adherents of the principle immediately tilt the playing field in their favour.

Second, the precautionary principle ignores background risk, distracting our attention from established dangers to health. Nature itself brings with it a risk of harms such as infection, hunger, famine, and environmental disruption. We should apply our limited resources first to major risks that we know are real, not merely hypothetical. The more we attend to merely hypothetical threats to health and environment, the less money, time, and effort will remain to deal with substantial health problems that are highly probable or thoroughly established. The principle errs in focusing on future technological harms that might occur, while ignoring natural risks that are actually occurring.

Third, adherents of the precautionary principle assume that proposed regulations and restrictions will cause no harm to health. Yet the very application of the principle itself can endanger our health. Consider, for instance, the consistent correlation between the health of a nation's citizens and their standard of living. Widespread application of the precautionary principle, by hampering economic activity, will tend to reduce living standards and thereby worsen health. In addition, major efforts to eliminate small, speculative risks can unleash far greater and more likely harms.

Fourth, the precautionary principle fails to treat natural and human threats on the same basis. Users of the principle routinely ignore the potential benefits of technology, in effect favouring nature over humanity. The principle does not account for the fact that the risks created by technological stagnation are at least as real as those of technological advancement. As biochemist Bruce Ames of UCLA has demonstrated, almost all of our exposure to dangerous chemicals comes in the form of natural chemicals. Yet fear and attention are primarily directed toward synthetic chemicals. A particular chemical has the same effects regardless of whether its source is natural or synthetic. Despite this, scientifically unsound activists treat human-derived chemicals as guilty until proven innocent, and naturally occurring chemicals as innocent or insignificant.


Fifth, the precautionary principle illegitimately shifts the burden of proof by positioning advocates of proposed activities or new technologies as reckless, in contrast with the 'responsible' advocates of 'precaution'. The content - even the very name - of the precautionary principle positions environmental activists and Luddites as friends and protectors of the common person. The innovators are made to prove safety, having already been portrayed as indifferent to the common good and interested only in profiting.

Image sourced [here]

Having illegitimately shifted the burden of proof, activists can impose their values without troubling themselves with evidence and without taking responsibility for the results of overly-precautious policies. For example, the Environmental Working Group opposed the use of pesticides, speculating about possible carcinogenic effects of trace amounts of their residues. They do not seem to have taken into account the probability that restricting pesticides would increase cancer rates.
Activists get away with the burden of proof trick by managing perceptions of risk instead of examining the real risks. This move is particularly dangerous because we have limited resources to address a multitude of risks. We cannot afford to make decisions driven by manipulated perceptions. It's crucial that we rely on a comprehensive, scientifically grounded perspective when choosing which risks have the strongest claim on our attention.

Sixth, and finally, the precautionary principle conflicts with the more balanced approach to risk and harm derived from common law. Common law holds us liable for injuries we cause, our liability being proportionate with the degree of foreseeable risk. By contrast, the precautionary principle dismisses liability and acts like a preliminary injunction, but without the involvement of a court, without the burden of proof, and without taking responsibility for harm caused by the injunction.'
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PRA: Qld reforms to Vegetation management act

Hats off to Premier Campbell Newman for having the courage to make much needed reforms to the Vegetation Management Act. With many of the worst attacks on our civil rights such as reversal of the onus of proof, denial of the right to silence and mistake of fact, to be reversed. These rights have long been considered basic principles of the Westminster system and their removal has received criticism from jurists and legal academics.

The Queensland government has acknowledged that it will not stay in power without the support of the South East corner and that a well organised and vocal environmental front will seek to portray any reforms as environmental vandalism. We are mindful of that.

Photo sourced Courier Mail

 

 

 

Property Rights Australia (PRA) appreciates and applauds the reforms made on behalf of rural Queenslanders by the Newman government.

The Vegetation Management Act 1999 had almost 400 amendments made during the terms of the Beattie and Bligh ALP governments with about half being retrospective. Clearly it was hastily drafted and unworkable.

The prosecution of the Act was shambolic with the Department of Environment and Resource Management (DERM) and its predecessors completely forgetting that as a government agency it was required to be a model litigant which requires it to adhere to the highest standards of probity and fairness in its conduct of litigation. It is also required to spend taxpayer's money with due cause and due process. Many who believed they were innocent were charged but were unable to field the resources to challenge against the might of the State. Charged but exonerated were landowners such as Ashley McKay who had a legal permit to clear.

Using taxpayer funds to chance their arm and to the ire of some Magistrates the Department brought cases which were out of time, where correct certified vegetation maps as specified by the legislation were not produced and one case where a government officer was charged with contempt of court. Other examples can be found of cases where fabrication of evidence and perjury were a feature.

Fines have been exorbitant and appear to have been administered in an ad hoc manner, with the penalties being many times higher than mining companies are commonly required to pay under other environmental protection regulations. Given the stress and financial hardship caused to landowners by these regulations, the amendments to this Act are well overdue and much appreciated.

Property Rights Australia has long advocated the necessity for reform and we are prepared to defend the Amendments against criticism in any forum

 

IPA : Anti-Discrimination Bill

There has been some worrying comment about the Human Rights and Anti-Discrimination Bill that the Federal Gillard Labor government wishes bring into effect. A series of articles in The Australian newspaper and elsewhere has given a number of reasons to be concerned.

Today the Institute of Public Affairs has released its submission to the Senate Legal and Constitutional Affairs Legislation Committee. Printed below is the Executive Summary from IPA’s submission. To read the entire submission go to the following web address http://ipa.org.au/library/publication/1356055327_document_211212_submission_-_anti-discrimination.pdf 

The exposure draft of the Human Rights and Anti-Discrimination Bill 2012 [“the draft Bill”] represents a dramatic and radical attack on Australians’ fundamental freedoms under the guise of reforming anti-discrimination law.

The draft Bill makes government the arbiter of behaviour within a substantial range of private political and personal activities. The draft Bill would politicise and regulate private interpersonal relationships in a way they never have been in Australia.

In a very real sense, these laws are not anti-discrimination laws. They are laws designed to give the government authority over our lives in completely new and unjustifiable arenas. This is an excessive and indefensible increase in state power.

The proposed laws give the government explicit power to interfere in almost all facets of human interaction including eighteen areas of public and private life, such as political opinion, religion and social origin. The government is also required to decide what falls into these categories, making the state the total and final arbiter on our most fundamental liberties.

By redefining discrimination to be anything which “offends, insults or humiliates” the proposed law will extend the infamous provisions of the Racial Discrimination Act that led to the Andrew Bolt case to almost every area of public and private life. By expanding the grounds on which people can claim to be discriminated against to include areas such as “political opinion” the law will stifle genuine discussion on almost every topic for fear of legal consequences.

This draft Bill has deservedly been criticised from across the political spectrum as a massive overreach and an unjustified curtailment of individual freedoms.

Democratic governments rely on the free exchange of opinion for their legitimacy. This draft Bill, if enacted, would dramatically limit freedom of speech in Australia.

This submission also raises other concerning elements of the draft Bill. The draft Bill substantially reverses the burden of proof onto the defendant. It introduces a large amount of uncertainty and ambiguity into anti-discrimination law.

The draft Bill introduces a subjective test for decisions about whether the law has been breached. Subjective tests are impossible to comply with and should never be used by the courts.

There is no justification for such a dramatic overhaul of anti-discrimination law, and no place for such extraordinary limits on freedom of speech.