Government liability for regulatory failure in the Fukushima disaster: An Australian comparison

Abstract

This chapter considers the response of the Japanese Government to the Fukushima nuclear power disaster in assisting Tokyo Electric Power Company (TEPCO) with handling claims for compensation. It argues that in setting guidelines for claims, establishing a government alternative dispute resolution (ADR) body to deal with disputes, and creating a convoluted funding structure that has led to the effective nationalisation of TEPCO, the Government has intervened significantly in what are essentially private disputes governed by the Nuclear Damages Act. This is contrasted with the response of the New South Wales (NSW) Government to mass tort claims for asbestos exposure in Australia, whereby it established an independent court to hear claims, and funded the primary defendant through a long-term finance facility without any powers of control. It is argued that this difference in approach can be attributed to the respective standards imposed by courts in both countries relating to state liability for regulatory failure. Whereas Australian courts have imposed a high threshold establishing the liability of public authorities, Japanese courts have acknowledged liability more readily, creating an incentive for the Japanese Government to divert potential claims against it from the courts.