Should a general "duty of care" for the environment become a centerpiece of a "next generation" environment protection statute?

Abstract

This article argues that there is considerable merit in the introduction of a general duty of care for the environment in jurisdictions which have not so far embraced this concept. As with work health and safety legislation, such a duty would establish the broad goals of the law, providing unifying themes that clarify the intentions of the law. A particular virtue is its all-encompassing character: providing a broad standard of care that can be applied to fit any set of facts. As such, it would provide a valuable framework within which duty-holders must operate, which will be particularly important where no more practical guidance is available from other sources.The broad scope of the duty also means that it does not date quickly and that it provides considerable flexibility for the duty-holder to determine the action to take to suit their operations. The South Australian experience shows that a duty of care, if fully embraced by the regulator, can be an important component of the regulatory toolkit. However, other Australian jurisdictions provide for a more limited (and so less controversial) form of the general duty, in which it operates primarily as a defence, and where the remedies for breach are administrative, not criminal. This article argues that there is a case for going one step further and imposing criminal liability, a proposal that is being contemplated in Victoria at the time of writing.