Using the moot court to trial legislation about land stewardship

Abstract

Frequently difficulties arise in translating the political aspirations of parliament to protect the environment through regulation into on-ground action. In part, these difficulties may arise because there is a lack of clear guidelines about the terms used in the regulation. This is illustrated by the statutory precautionary principle, and recent experience with native vegetation conservation legislation. It is anticipated as a complexity for implementation of a statutory duty of care for environmental protection. The judiciary seeks clear interpretative guidance on the meaning of statutes so that they can pass judgement on specific cases that will impact on the interests of the citizen. Insufficient clarity in meaning is likely to continue to arise as 'virtue based' rules, such as a duty of care for the environment, are increasingly developed as policy approaches and then incorporated into statutes with the hope of creating less prescriptive approaches while increasing stewardship accountability. This paper examines the potential of a moot court with legal practitioner participants, as a means to test the likely interpretation of legislation by the judiciary. It describes the need for ex-ante testing to identify interpretive difficulties with legislation, and how a moot court has been used to test the application of a duty of care. The experiment showed that a court is likely to interpret a statutory duty of care for environmental protection by reference to interpretive norms from the common law. Thus a duty to take reasonable care or reasonable measures only provides environmental protection to the extent of ordinary negligence principles. These are unlikely to meet the stewardship aspirations that advocates of a statutory environmental duty of care expect. Although proving to be a valuable method of ex-ante testing, the moot court experiment highlighted some practical requirements to ensure that the moot court methodology works well.