Moot Court tests ‘duty of care’ concept in farming

Published 25 September 2008

mason.jpgDoes the legal concept of a “duty of care” make it easier to solve environmental conflicts over farming? An experimental court case at the University of New England yesterday can be seen as a step towards answering that question.

UNE’s Moot Court, within the School of Law, became the “New England Land and Environment Court of Appeal” for the hearing of a hypothetical appeal case involving the alleged degradation of wetlands by a farmer.

The Hon. Keith Mason AC QC (pictured here), former President of the Court of Appeal of NSW, presided over the hearing, in which the farmer and the Attorney General were represented by opposing teams of lawyers – some of them specialists in environmental law. The legal participants in the moot court hearing travelled to UNE from Sydney, Lismore and Gunnedah, as well as from Armidale.

Their inquiry focused on the concept of “duty of care” as it relates to farmers’ environmental responsibilities. “The main issue was whether the legal concept of a ‘duty of care’ is an effective and fair way of managing environmental disputes,” Mr Mason said.

“Everybody agrees that we have a long-term duty to look after our land so that the environment is sustainable,” he continued. “But would it be fairer to have just a general ‘duty of care’ for farmers, or a more detailed regulatory framework?”

“While farmers would probably prefer a general ‘duty of care’ to a lot of regulation,” Mr Mason said, “it could leave them more open to being sued.”

“Although the concerns of farmers are focused on their farming interests,” he added, “they aren’t narrow or selfish concerns.”

Mark Shepheard, a CRC for Irrigation Futures research student at UNE, organised the hearing as part of his PhD project investigating the role of the “duty of care” concept in managing conflict about farming and the environment. The project is being supervised by Professor Paul Martin, the Director of UNE’s Australian Centre for Agriculture and Law, and Associate Professor Mark Lunney from UNE’s School of Law.

For yesterday’s hearing, Mr Shepheard created “legislation” (based on current laws in Queensland and South Australia), and outlined the background to the case and the courtroom scenario. “We took the kind of legislation that exists, and looked at the problems that could arise when it’s applied in the courtroom,” he said.

Mr Shepheard agreed that support for the “duty of care” concept was widespread throughout the community. “But how does a farmer translate that concept into practical measures?” he asked. “Yesterday’s experiment has taken a significant step towards answering that question by identifying some of the problems involved in explaining ‘duty of care’ in practical terms.”

THE PHOTOGRAPH displayed here shows the Hon. Keith Mason AC QC presiding in UNE’s Moot Court yesterday. Clicking on this image reveals a photograph of Mr Mason with Mark Shepheard, the research student who organised yesterday’s moot court hearing.