LEGL8303 Enforcing Environmental Law

2016

4.5

1 ^ LEGL8300 - Principles of Environmental Law
2 ^ LEGL8301 - Environmental Compliance: Theory and Practice
Must Satisfy: (1 and 2)

Topic Coordinator approval is required for enrolment in this topic. Students should apply via courseadvice.bgl@flinders.edu.au.

LLAW8004 has been successfully completed

Online topic

This topic examines the role of litigation (legal proceedings) in the environmental compliance and enforcement function and introduces students to the part that Australian courts play in resolving environmental disputes. In particular the topic examines the qualities that specialist environmental courts may bring to resolving such disputes compared with the general courts.

Students will examine the ways in which criminal and civil matters and merits appeals are brought to and managed in the courts. The role of the compliance regulator in these processes will be closely considered.

The outcome of disputes in the courts can be subject to appeals that may involve the compliance regulator. The role of the superior courts in hearing appeals and determining judicial reviews will be examined.

Australia adopts a concurrent National/State & Territory system of environmental laws. Legal disputes under Commonwealth laws are resolved in the Federal Court jurisdiction. The ways which breaches of Commonwealth environmental laws are managed in the Federal Court structure will be examined as will the way in which cross-jurisdictional breaches can be handled at both the investigation and adjudication stages.

Finally, in the case of environmental crimes the courts will be called upon to impose a penalty where the offence is proved. The capacity of the courts to impose sentences appropriate to environmental offences (and the consequences of such offences) and in light of corporate behaviour and response will be examined.

The aims of this topic are to expose students at an advanced level to:

• the role and function of Australian courts in resolving environmental and natural resources disputes in Australia

• the differences between criminal and civil legal proceedings and when it is appropriate to pursue either or both in resolving an environmental dispute

• the role that the compliance regulator may play in preparing and participating in court proceedings

• the role that the private sector environmental manager may play in responding to legal proceedings brought to resolve an environmental dispute

• the process of preparing a brief for prosecuting lawyers that is relevant, concise and complete and the requirement to relate the necessary evidence to the essential elements of the breach

• the potential for Commonwealth/State cooperation where offences are common to both State and Commonwealth environmental legislation

• the importance of submissions to the courts for appropriate penalties (including community and publicity orders) for environmental crimes

As a consequence of studying this topic, students will be able to:

• discern the role that the courts play in resolving environmental disputes in Australia

• analyse the difference between criminal and civil environmental legal proceedings and when it is appropriate to pursue either or both to resolve an environmental dispute

• demonstrate the respective roles of the compliance regulator and private sector environmental manager in the bringing and defending of legal proceedings arising from an alleged environmental breach

• observe and demonstrate, to their peers, the importance of gathering evidence for use in criminal proceedings both lawfully and fairly and the implications of not doing so

• distinguish the roles of the Commonwealth and States/Territories in enforcing environmental laws and the potential for cooperation between jurisdictions where circumstances indicate a breach of both State/Territory and Commonwealth environmental laws

• contribute to the formulation of appropriate submissions on penalty, particularly where the relevant legislation permits the imposition of community and publicity orders for environmental crime