Sub sections:
Mark Shepheard - responsibility and accountability in farming systems for landscape health
Supervisors: Prof. Paul Martin (UNE) and Prof. Mark Lunney (UNE)
The central question for Mark’s thesis is: What is reasonable behaviour for a farmer? A duty of care is promoted as a way to answer this question and provide the essence of self regulation for natural resource management. A duty is seen as an alternative to prescriptive regulation for natural resource management by farmers and already exists in legislation from Queensland, South Australia, and Victoria.
So how does a farmer find out what is reasonable behaviour? Does a duty of care really help in answering that question? Mark’s PhD research has taken a step towards answering these questions with a test case in the New England Land and Environment Court of Appeal (UNE Moot Court) when the fictitious New England Attorney-General appeared against a landholder to seek clarification about what it means for a farmer to take reasonable measures in land management. The case tested whether a duty of care will make it easier to solve environmental conflicts over farming using the experience of six legal practitioners, including the Hon. Keith Mason AC QC, former President of the NSW Court of Appeal (acting as judge), barristers and solicitors.
The moot court experiment was important to the research because, if a legislated statement of reasonable behaviour for farmers is to be effective it needs to provide clear guidance about who is the duty of care is owed to, what is reasonable behaviour and what is unreasonable. Existing statements of a duty in legislation related to natural resource management are not clear about these, and so there is a need to draw on the common law with its well established use of a duty as it has evolved through the courts.
The New England Land and Environment Court of Appeal in this case has tested the extent that the common law is used to inform the debate about what it means to be a reasonable farmer for natural resource management purposes. Finding a workable duty of care as the centre of self regulation for farmers is likely to require that reasonable behaviour is defined through a series of court cases. Is this really an improvement on the prescriptive regulation model that a self regulatory approach is said to replace?