Considerations Regarding the “Principle of Prevention” and the “Precautionary Principle” in Environmental Laws in Thailand and the Commonwealth of Australia

Abstract

     “The Principle of Prevention” and “The Precautionary Principle” are environmental principles, widely acknowledged both internationally and domestically. In Thailand, however, there are no cler criteria and scope of their application provided in laws or by the courts. This article presents the information and analysis of these principles, comparing their criteria and scope of application in Thailand and the Commonwealth of Australia one of the first few countries to incorporate the Precautionary Principle into domestic policies and laws. The study finds that the applications of these principles in Australia are more concrete than in Thailand, because the core environmental statutes explicitly recognize these principles, especially the Precautionary Principle. In addition, Australian courts have been laying down precedents that articulate the criteria for applying these principles and the differences between them. As for Thailand, generally, the status of these principles is less explicit, although their concepts have been embraced in several legislations and certain specific laws have directly recognized them. With regard to the legal cases, there have not been any articulations on guidelines or criteria for applications of these principles or any attempts to explicitly distinguish them by the Administrative Court of Thailand. In Practice, the courts tend to make decision based on the basic notation of “It is better safe than sorry”. In the final part of this article, recommendations are proposed by the author. First, statutory provisions explicitly recognizing the Principle of Prevention and the Precautionary Principle, as well as setting forth the application criteria and clear definitions, should be increasingly inserted into Thai laws, especially the Enhancement and Conservation of the National Environmental Quality Act, B.E. 2535 (1992). Additionally, as the scientific knowledge or information plays significant roles in the application of the said principles in the court proceedings of the administrative environmental cases, the appointment of expert witnesses should be regarded as highly important, both in the aspects of qualification and impartiality.