Farmers' stewardship responsibility and a duty of care
Author: Mark Shepheard
Abstract
The statutory duty of care as a basis of legal accountability for farmers' sustainable land management is a legal development in Australia that is the focus of this paper. Using a duty of care in this way raises issues about the tensions between farmers and society and the absence of clear definition of boundaries of responsibility. The intention of the statutory form is difficult to achieve given that administrative enforcement processes are favoured over a civil process. Administrative actions to enforce the legislation are however likely to be challenged in court due to the potential effects on farmers' property interests, requirements for expenditure or possible criminal sanctions for non compliance. When this occurs the courts will draw on the common law duty of care from civil negligence, in the absence of other clear direction, for guidance about how this new statutory form may function. This expectation of judicial review mirrors the experience with implementation of the statutory precautionary principle, from initial confusion over the practicality of political aspiration in the statement, to a detailed judicial interpretation of its use in decision-making. Legislation for native vegetation conservation provides another example where political aspirations for sustainability have proven impossible to enforce. Implementation of sustainable development through law is a field where political aspirations are likely to be frequently dashed. Testing the potential effect of judicial review through an experimental moot court, where legal practitioners and a judge applied their expertise to a hypothetical problem involving enforcement of a farmers' statutory duty of care confirmed the anticipated challenges for implementation of a statutory duty of care.
