Duty of care: A smarter way of regulating

1. Duty of care: A smarter way of regulating Prof. Mike Young Research Chair, Water Economics and ManagementThe University of Adelaide Melbourne 24th September 2008

2. The concept of Duty of Care • Requires all persons • to take all reasonable and practical steps • to prevent harm arising from their activities • Reverses onus and remains flexible • Offers an efficient way to establish and define the point where the polluter pays principle ends • Leaves resource users free to decide how to comply • Outcome orientated

3. Important examples • Environmental Duty of Care • UK, Waste Management Act, 1990 • Australia, River Murray Act in South Australia • Queensland Environmental Protection Act

4. River Murray Act – South Australia • 23—General duty of care • (1) A person must take all reasonable measures to prevent or minimise any harm to the River Murraythrough his or her activities. • (2) For the purposes of subsection (1)— • (a) harm includes — • (i) a risk of harm, and future harm; and • (ii) anything declared by regulation to be harm to the River Murray; and • (b) harm need not be permanent but must be more than transient or tenuous in nature; and • (c) in determining what measures are required to be taken, regard must be had, amongst other things, to— • (i) the nature of the harm; and • (ii) the sensitivity of the environment that may be affected and the potential impact of the harm environmentally, socially and economically; and • (iii) the practicality and financial implications of any alternative action, and the current state of technical and scientific knowledge; and • (iv) any degrees of risk that may be involved; and • (v) the significance of the River Murray to the State and to the environment and economy of the State; and • (vi) insofar as is reasonably practicable and relevant, any assessment of potential harm to the River Murray as a result of the relevant activity undertaken before a statutory authorisation (if any) was granted under a relatedoperational Act, and the extent to which any such harm was intended to be prevented or minimised through the attachment of conditions to a statutoryauthorisation (if any) under a related operational Act.

5. River Murray Act Enforcement • (3) A person will be taken not to be in breach of subsection (1) if the person is acting in circumstances prescribed by the regulations. • (4)  A person who breaches the duty created by subsection (1) is not, on account of the breach alone, guilty of an offence but— • (a) compliance with the duty may be enforced by the issuing of a protection order under Part 8; and • (b) a reparation order or reparation authorisation may be issued under Part 8 in respect of the breach of the duty.

6. Legal Concepts and Risks • Common Law Environmental Duty of Care • Statutory Environmental Duty of Care

7. Comparison of statutory and common law concepts

8. Limits and Risks • Government lack of will to enforce defined duties • Strategies used to manage this risk • Progressive steps from threats, shaming, orders, to action in courts • Independent bodies – increasingly local and regional boards and organisations • Duties of Care can discourage progressive development of codes of practice

9. Title to Not Harm Catchment Land Not Harm Biodiversity Duties Not Harm River Health Relationship with other instruments Grazing Cultivation Entitlements Forestry Water Access Farm Chemicals Vegetation Clearance Regulations Irrigation Practice

10. Instruments commonly used in catchment management

11. REWARD & ENCOURAGEMENT PENALTIES & DISCOURAGEMENT Duty of care penalties and incentives DUTY OF CARE Environmental Standard Environmental Standard Time Time

12. Risks of ecosystem service payments • Discourage innovation, change and structural adjustment • Pay people to undertake things that they were already intending to do • Erode common notions of responsibility and create legal situations where landholders have an implicit right to hold the interests of the environment and other landholders to ransom • Build bureaucracies and administrative processes with very high transaction costs, especially if they have to be run in perpetuity • Discourage private investment by creating the impression that the care for the environment is the duty of governments not that of the individuals

13. Paying for Ecosystem Services • In the long run, payments should be limited to the reimbursement of the cost of services provided to society that • Can not be captured in the market • Are not expected of the majority of landholders with whom they compete • Aim ultimately to internalise the costs of not using resources sustainably into the normal costs of production

14. Application Opportunities • Provide high-level clarity for landholders and managers across the State by defining environmental duty of care • Operationalise these definitions by defining them in more detail in catchment and other plans. • Support development of codes of practice, environmental management systems etc that can be used as a reference point for discovery of the meaning of an environmental duty

15. Possible entry points EDoC • A duty to the catchment community • A duty to the economy • A duty to help maintain biodiversity • A duty not to pollute water

16. Seven Policy Principles • Employ policy processes & mechanisms that allow for adaptation as conditions & expectations change • In long run, do not subsidise sustainable resource use • Manage transitions by signalling and securing permanent changes to entitlements, obligations and duties • Use transitional assistance policies to speed adjustment and acceptance of new obligations • Reward best practice and continuous improvement • Payments should be forward looking • Expect to pay in perpetuity for the supply of unique site-specific public conservation services beyond duty

17. Concluding Remarks • An environmental duty of care can be used to constrain the pursuit of individual interests that may potentially cause harm to the environment and hold it to ransom • The purpose of is to maximise opportunity to produce socially expected outcomes at least cost to society and to individuals in an equitable manner

18. Subscribe to droplets at www.myoung.net.au Contact: Prof Mike Young Water Economics and Management Email: Mike.Young@adelaide.edu.au Phone: +61-8-8303.5279Mobile: +61-408-488.538 www.myoung.net.au