Understanding the Objective.pdf

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husband’s job. Their choices are extremely limited and this adds to the stress that Amee experiences. Amee’s anxiety is deeply felt and genuine and her response to the situation cannot be termed irrational; on the contrary, it is a subjectively rational response and many of the parents feel the same way, and the most effective methods of controlling adverse emotional responses (such as moving away from the threat) will be difficult to utilise when you have limited influence over outcomes and your options are few. There can be little doubt that the normative response of most parents would be the same and would probably remain unchanged regardless of the expert opinion evidence given and the assessment of risk made by the court. Researchers have explained this phenomenon in various ways 15 but it is inaccurate to classify this unwillingness or inability to accept majority scientific opinion as irrational per se ; rather it connotes a “conflict over what is the available science and how it should be evaluated” 16 and the degree of risk that should be accepted. It is also a reflection that our approach to risk mirrors values. As Professor Cotgrove wrote in response to Lord Rothschild’s criticism of “eco-nuts”: 17 The acceptability of risk cannot be isolated from values. We take incalculable risks to save the life of a child. To cross the road, presumably even Lord Rothschild seeks zero risk. Where he and the environmentalists differ so passionately is for what goals, and to promote what kind of society, it is worth taking particular risks. Both are from this perspective rational. Why should parents accept any risk, no matter how small, to their children’s health, where there is little or no direct benefit to their families? And if such risks are imposed upon them, and continue on a daily basis, it is easy to understand the resulting anxiety. But as the Environment Court explained in Shirley Primary School v Christchurch City Council , “such fears can only be given weight if they are 15 See for example D Kahan and others “Fear of Democracy: A Cultural Evaluation of Sunstein on Risk” (2006) 119 Harvard Law Review 1071; compare to C Sunstein Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, Cambridge, 2005). Note also Shirley Primary School v Christchurch City Council [1999] NZRMA 66 (EnvC) at [233]. 16 Elizabeth Fisher Risk Regulation and Administrative Constitutionalism (Hart Publishing, Oxford, 2007) at 16. 17 See letter from Professor Cotgrove replying to Lord Rothschild, The Times (November 27 1978), quoted in Patrick McAuslan The Ideologies of Planning Law (Pergamon Press, Oxford, 1980) at 7.
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December 2011 Understanding the Objective 579 reasonably based on real risk”. 18 If, for example, the court finds that whilst one cannot rule out a risk, 19 any risk is infinitesimal, particularly compared to risks we take every day with our children (driving them in the car for example), the court will determine that the risk is of an acceptable level. As a result, the court
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