The discussion arising from the case study of Queensland Nickel Management's application for a mooring facility raised four key questions:

• Who bears the burden of proof?
• What standard of proof is required?
• Does the process guarantee a fair hearing?
• What is the basis for the decision?

WHO BEARS THE BURDEN OF PROOF?

Historically, the burden of proof has usually been on those who have sought to prevent a proposed development. It has been assumed that any development would go ahead unless the objectors could show that there were grounds for restraint. The precautionary principle puts the burden of proof on those who wish to change the status quo. That is a more usual approach. That it should be seen as a threat is simply a measure of the extent to which the legal system has been tilted historically in favour of those proposing major developments.

WHAT STANDARD OF PROOF IS REQUIRED?

Though it has rarely been stated in these explicit terms, the decisions made by planning courts have usually been based on the standard of proof required in criminal law. Developments have only been prevented when they have been proven beyond reasonable doubt to be capable of causing serious environmental damage. This has always been a difficult test, because of the uncertainty of the science when impacts on a complex system are being assessed. The precautionary principle is being interpreted as putting the burden of proof on industries which propose major developments to show beyond reasonable doubt that there will not be serious damage. It is hardly surprising that they see that as a difficult test; it is, as various unsuccessful objectors to past environmental disasters can attest.

I have suggested before that it might have been reasonable to apply the standard of proof used in civil law, the balance of probabilities. It could be argued, however, that the stricter test is appropriate when the stakes are higher. For such minor matters as the responsibility for maintenance of a fence between two properties, the civil law test of balance of probabilities seems appropriate. We require a stricter standard in criminal law because the result can deprive an individual of liberty [or even, in some primitive jurisdictions, their life]. This argument leads to a defensible conclusion that the stricter test of proof beyond reasonable doubt is appropriate if the consequences of a development may be ''serious or irreversible".

DO THE PROCESSES GUARANTEE A FAIR HEARING?

It would be difficult to make a case that access to the law is equal in our society. Rather, it is apparent that those who can afford to pay more have a better chance of getting justice. It is usual for cases about the environmental impacts of proposals to pit well-resourced corporate entities with the overt or covert support of the state against voluntary groups or individuals. The proponent has a strong economic incentive to buy the services of consulting groups or scientific mercenaries, while objectors do such limited research as they can in their spare time. Those who have the power to decide which questions will be asked have the effective power to determine the range of answers which will be available. In the recent example of the Research Reactor Review, ANSTO as the proponent spent huge amounts of public money advancing their case for a new reactor. Environmental groups and the local community, though undoubtedly concerned about the possible impact of the proposal, had very limited resources by comparison.

We need a process for proper funding of public interest science. The capacity of universities and government laboratories to perform such work has been steadily eroded by government policy, forcing scientists to get more of their funds from the private sector and increasing their hesitation to be involved in work which could offend potential benefactors. If the process is to ensure that justice is to be done, there needs to be a deliberate policy of providing equality of opportunity to conduct research and present evidence. Without such a policy, the scales are heavily weighted in favour of applicants, with objectors reduced to trying to find the inadequacies in the work supporting the proposals being considered.

WHAT IS THE BASIS FOR THE DECISION?

There are three basic approaches to making the decision: a judicial model, an inquiry model and the RAC approach. The most common is the judicial model, using the adversarial approach which is the basis of British law. As has often been argued, this approach puts the emphasis on winning the argument rather than establishing the truth. It tends to be popular with those who can afford to pay specialists in winning arguments against the weight of evidence, but has little to commend it as a broad approach to resolving complex environmental issues. Such faith as there might have been in this method has been irreversibly undermined by recent demonstrat-

ions of the foibles of some members of the judiciary. Since many judges are technologically illiterate, socially privileged, politically conservative and chronologically advantaged, there is increasing community concern about the approach of allowing those people to weigh the evidence in complex disputes about environ-

mental impacts of technology. The saving grace of a judicial model is that decisions are open to appeal, but that avenue only offers hope if the judges at appellate levels are not seen as suffering the same deficiencies as those making the original decisions.

A second possible approach is an inquiry model. In such cases as the Fitzgerald Inquiry on Fraser Island or the Research Reactor Review, the process did not allow cross-examination of witnesses by hired legal guns, but did involve witnesses being questioned by the inquirers. Those who favour such a model feel that it is more likely to establish "the truth", freed of the petty point-scoring and character assassination of the adversarial approach. The concern with this model is that the process is inscrutable. After hearing the evidence, the wise elder [or group of wise elders] retreats for some time, then announces the verdict. Like competitions in tabloid newspapers, the judge's decision is final and no correspondence will be entered into. While I thought the Fitzgerald Inquiry on Fraser Island made the logical decision, I can certainly see why those who disagreed felt aggrieved. No process of challenge is possible and no convincing reasons or defence of the evidence used needs to be given.

The fatal flaw of both these models is that they implicitly assume that there is the possibility of objective technical assessment of these complex issues. If they admit any role for social values, they assume that those making the decision can be trusted to embody prevailing community values. The comments made above about the judiciary demonstrate my view of that assumption.

The third model is, in my view, clearly the best way to handle such complex issues. It was the approach used by the Resources Assessment Commission in its inquiry into the proposal to mine Coronation Hill. The RAC engaged expert consultants to draw up separate reports on the three sets of issues involved: the economic costs and benefits of the proposed mine, the risks to the natural environment and the social impacts, positive and negative. The report set out the ranges of estimates in each area. The RAC did not essay the sort of simplistic cost-benefit analysis which seeks to express these incommensurables in some common currency. It said that weighing up the economic benefits against the social impacts and the environmental risks is a value judgement which should properly be made in the political domain. Accordingly, the decision went to Cabinet. Our leaders were not comfortable with the process; the final outcome appears to have been driven by indecision and personal whimsy rather than a cool analysis of competing claims about net social cost or benefit. Politicians and bureaucrats were unhappy about the transparency of the political process. Given the preference for hiding behind the cloak of expert advice, the government surprised few when it decided in the 1993-94 budget round to abolish the RAC. The Commission's crime was to use a rational and visible process, thus exposing the nature of the decision to the public gaze.

CONCLUSION

The case study raises several important issues: the burden of proof, the standard of proof, the fairness of the process and the location of the final decision. These all require attention if the precautionary principle is to be applied to complex issues. The principle is no panacea; it will not automatically resolve difficult problems. But it does establish a more reasonable basis for resolution.

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