Science and Uncertainty


DividerScience and Regulation

Science, Law and Environmental Litigation

Edward Christie

A RECENT FEATURE OF THE AUSTRALIAN legal system has been the proliferation of Royal Commissions and Public Inquiries into an almost unlimited range of issues varying from tax avoidance, organized crime, aboriginal cell deaths, corruption and meat substitution rackets. Several environmental problems have also been the subject of inquiry; for example toxic chemical hazards and human health ( Agent Orange ), logging of natural forests and World Heritage Listing.

However, the hopes of a lawyer-led resolution of issues in which scientific evidence has been paramount has not always materialized (Faine 1990). The following statements illustrate this point. First the scientihc competence of the Evatt Royal Commission into Agent Orange was questioned:

"The final report is also an example of bad science and little of the document stands scrutiny from the perspective of existing scientiflc orthodoxy. In regard to its treatment of science much of the Report is clumsy, misinformed and simply wrong. An analysis of any volume reveals errors in approach and competence. In brief the Commission failed to grasp even basic principles in current scientific procedure." (McCulloch 1987)

Similarly, after a decision arose from the Helsham Inquiry into Tasmania's forests as to the area worthy of nomination for the World Heritage List with Mr Justice Helsham a retired Equity Court Judge and Mr Robert Wallace a university economist concurring; Mr Peter Hitchcock a former forester dissenting, nine of the 11 independent environmental consultants sent a joint communication to the then Federal Environment Minister Senator Richardson stating that they wished to:

"dissociate ourselves from the majority conclusions of the Commission of Inquiry into the Lemonthyne and Southern Forests. We are in general agreement with the minority conclusion of Mr Hitchcock on the subject of the qualifying areas." (Staples 1988).

Scientific evidence has long provided problems for law and science. Because environmental disputes are significantly founded on scientific and technical issues expert evidence is crucial for their outcome. The role of the expert is to examine and interpret evidence to advise counsel and also to be able to rebut the opposing party's case. Because an expert can be found to support almost any position it is not surprising that the question of their impartiality arises. Consider the followlng remarks made by Sir George Jessel in 1877 (Thom v Worthing Skating Rink Co [1877] 6 Ch D 415) in relation to the selection of expert witnesses by lawyers:

"A man may go and does sometimes to half a dozen experts. I have known it in cases of valuation within my own experience at the Bar. He takes their honest opinions he finds three in his favour and three against him; he says to the three in his favour will you be kind enough to give evidence? And he pays the three against him their fees and leaves them alone; the other side does the same. . . "

More recently observations by a Federal Court of Australia Judge Mr Justice Pincus (1988) on opinion evidence complement the remarks of Sir George Jessel. In particular he expressed a lack of confidence in the impartiality of some expert witnesses called before him; also on occasions expert wltnesses gave an impression that their task was to advocate a view favourable to the party who was paying the bill. Today there is a need to optimize the linkage between science and law through some reform to the legal process to ensure future resolutions of environmental disputes will be consistent with the best available scientific evidence. The purpose of this paper is to examine alternative means for achieving this goal.

The Adversarial System

Science in contrast to law has not been thought of as an adversary discipline. One of the main arguments in favour of the adversarial system is that it represents the only effective way to test the credibility of the evldence of a witness. However critics claim that the gladiatorial aspects of the adversarial trial may sometimes prevent the truth from emerging when the aim to win becomes paramount. Furthermore, it is claimed that there is no reliable empirical evidence to indicate that the adversarial system is more consistent than any other existing system of adjudicature in use; for example the inquisitorial system in yielding true or correct results (Rhode 1985).

Selinger (1984) has succinctly highlighted the concern of scientists in relation to the adversarial system. First the concern by scientists at the ease with which well presented but erroneous science is accepted by the courts. Next the fact that scientists cannot put their questions and arguments to each other directly in court but only through partially comprehending lawyers. Finally, a successful attack on a scientist's work on a single point can be devastating&emdash;even if the point in question is not destructive of the conclusion, it may be destructive of the credibility of the researcher. In cases involving expert witnesses and complex scientific evidence an attack on the credibility of the research may sometimes seem easier for counsel than the challenge in cross-examination of finding facts from the expert's evidence that would be unfavourable to the expert's side, or eliciting facts from the expert which might be favourable to the opposing side.

Mr Justice Pincus (1988) has commented that the adversarial system does not work as well when facts become very complex and numerous. Environmental litigation involves the assessment of scientific facts which are extremely complex and often numerous. Nevertheless sound environmental regulatory decision-making should require that evidence be tested through cross-examination; this is one of the major strengths of the adversarial system. But it is important to recognize that the reliability of scientific evidence can only be achieved by a sequential examination of the procedures which end in the report of the scientihc finding. That is, it would be dependent on the validity of the underlying concept, experimental methods and design data analysis and the conclusions. Therein lies the major difference between a scientific fact and the more straightforward event in a civil or criminal action. It also underlines the difficulty of lawyers untrained in science to cope with evidence heavily founded on scientific and mathematical materials.

Possible Reforms to the Adjudicative Process

Courts decisions must be consistent with scientific reality and with each other. This goal can only be achieved when scientific evidence conforms to the standards and criteria to which scientists themselves adhere. Three alternative approaches to address this goal are discussed.

1. Public Inquiry

One viewpoint is that a Public Inquiry&emdash;adopting an informal round table non-confrontational approach and which discourages the need for legal counsel may be a better way of resolving environmental disputes than more formal court action. Such a forum provides adequate information to all interested parties whilst protectlng their rights of open and honest participation (Rankin 1989). Inquiries by the Resource Assessment Commission into Kakadu, Australia's forest and timber resources and protection of the coastal environment are all recent examples.

A Public Inquiry acts as a fact-finding agent for a decision-making body&emdash;rather than as a court of law. It may make some recommendations but these are not binding. The most likely area of challenge arises in respect of the decision following the Inquiry (Fisher 1978). The Helsham Inquiry into Tasmania's forests is one example of an Inquiry's recommendations not being adopted by Government. Subsequently Mr Justice Helsham was reported as saying:

". . . that such inquirles and commlsslons were not set up to resolve confllct or to assist in decision making, but to defer decision making, so that polltlclans could defer the matter until it had lost its urgency or could otherwlse be neutralised."(The Mercury, 27 March 1990)

The Public Inquiry seems to be the ideal forum for a public interest environmental dispute seeking to elicit public comment where questions of social and communal values are involved (Jeffery 1988). However a Public Inquiry may have major limitations where it is essential for the scientific evidence to be tested; for example through cross-examination to ensure its reliabllity. This situation could arise in most environmental disputes given their technical nature. In these circumstances there needs to be some change to the legal processes.

2. The Use of Court-Appointed Experts

At various times suggestions have been made (e.g. by the High Court of Australia in Minnesota Mining & Manufacturing Co & 3M Aust. Pty. Ltd v. Beiersdorf Aust. Pty Ltd (1980) 54 AWR 254 Aickin J. at 259) on procedural steps to resolve conflict associated with expert evidence; that is to counteract the perceived weakness of the adversarial system in its use of scientific expertise. Specifically the appointment by the court of an expert independent of the parties to provide a third opinion. This opinion would apply in situations where there was a conflict in expert evidence, or where a question of bias in the expert evidence might exist.

Critlcs of this approach suggest that where such a report is prepared and brought back to the court as legally indisputable fact an inordinate weighting could be placed on the expert's testimony because of their impartiality. Furthermore, it has been vigorously challenged whether impartiality would arise from such a process (Molinar, 1974) . The former Chief Justice of the ACT Sir Richard Blackburn (1986) refers to this approach as having a naive soundness and raises the question of procedural fairness viz. a party whose expert's view is rejected by the court-appointed expert may feel the dispute is beyond their control as they have no opportunity to influence the decision. Finally there is the issue of whether the court-appointed expert should be cross-examined on the report. The criticisms outlined suggest that this option should be open to the parties. However, such a procedural step could well resurrect the limitations outlined by Selinger (1984).

3. The Environmental Tribunal

Environmental issues involving novel scientific evidence&emdash; for example, sustainable development of natural resources or oncogenecity of chemicals&emdash;require a specialized adjudicative forum functioning as a scientific review board. I would argue that an Environmental Tribunal would provide a thorough, credible and unbiased analysis of significant scientific questions involving the management, protection or conservation of the environment. The proposed 'Environmental Tribunal' would be presided over by a judge (or lawyer), complemented by a panel of two or three scientists experienced and qualified in the subject matter of the dispute. Ideally, it would function using the adversarial and inquisitorial models as counter-balances to each other. The hearing would be conducted in the traditional format of Evidence-in-Chief, Cross-Examination and Re-Examination. It is further argued that conflicting scientific evidence would be more effectively tested by cross-examination of expert witnesses by counsel and, where appropriate, by members of the tribunal panel. Cross-examination of experts on disputed facts by their peers would do much to remove some of the inherent weaknesses of the adversarial system in evaluating conflicting scientific evidence.

The danger that a scientific member of the panel could substitute their opinion for that of the expert witness (Jeffery 1988) could be largely offset if a professional body of high standing, such as the Australian Academy of Science, recommended scientists who could serve on the panel in an impartial, independent and competent manner. As environmental disputes require a holistic approach to problem resolution, the characteristics of the panel members would be crucial. Ideally, 'multi-disciplinary scientists' rather than subject matter specialists' should be selected. The 'Environmental Tribunal' concept is not new and has existed in Canada since 1975 to deal with environmental assessment and planning matters. Despite the potential problem of bias Jeffery (1988) also maintains that the Environmental Tribunal is more likely to ensure integrity of process in environmental decision-making and represents the preferred adjudicative forum.


The challenge remains for science and law to investigate the potential for an 'Environmental Tribunal' to ensure that the resolution of environmental disputes is consistent with scientific reasoning and fact&emdash;especially in circumstances where novel scientific evidence exists.

It would be a tragedy for science in Australia if the following statement, concerning scientific expert witnesses made by J. Weinstein, Chief Judge of the United States Court for the Eastern District of New York and who ran the 'Agent Orange Trial' was ever made by an Australian Judge:

"I have had medicai testlmony before me that was shockingly suspect. Had a lawyer given equivalent misleading information I would have brought the matter to the attention of the disciplinary authorlty. What realistic threat exists against doctors? As to unlicensed economists and statisticians, the matter is now hopeless." (Marshall 1986)


Blackburn, R. (Sir) (1986) Fairness in trlals needs more than ordinary common sense. Aust. Law News 21, 34.

Faine, J. (1990) "[A]. . . lawyer ignores hlstory at his peril. J. Law Inst. Vic.,pp.186.

Fisher, D. E. (1978) Environmental planning public inquiries and the law. Aust. Law J. 52, 13-27.

Jeffery, M. 1. (1988) Appropriateness of judicial and non-judicial determination of environmental issues. E. P. L. J. 5, 265-75.

McCulloch, J (1987) Whistling in the dark. The Royal Commission into Agent Orange.

Maddock, K. & Wright, B. (eds) In: War: Australia and Vietnam. Harper & Row, Sydney, pp. 262-280.

Marshall, E. (1986) Immune system theories on trial Science 234, 1490-1492.

Molinar, J. B. (1973) The role of the expert witness. Forum 9, 789.

Pincus, Mr Justice C. W (1988) Alternative dispute resolution. Address to Australlan Insurance Law Association Conference. Aust. Law News 23,19-21.

Rankin, M (1989) The wilderness advisory commmittee of British Columbia: New directions in environmental dispute resolution. E. P. L. J. 6, 5-17.

Rhode, D. L. (1985) Ethical perspectives in legal practice. Stanf Law Reu. 37, 589-652.

Selinger, B . (1984) Sclence in the witness box . Legal Serv. Bull. 9, 108-

Staples, J. (1988) Getting it wrong on Tasmania's forests. Habitat, 3-

Source: Edward Christie, 'Science, Law and Environmental Litigation', Search Vol. 21 No. 8, December 1990, pp.258-260