GRADUATE CERTIFICATE IN ENVIRONMENTAL COMPLIANCE (LLAW 8002)

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1 GRADUATE CERTIFICATE IN ENVIRONMENTAL COMPLIANCE (LLAW 8002) THE THEORY AND PRACTICE OF ENVIRONMENTAL COMPLIANCE Topic Overview Welcome to LLAW 8002, The Theory and Practice of Environmental Compliance. This is one of the two topics offered in the first semester of the Graduate Certificate in Environmental Compliance (GCEC). This Topic will: i. Consider and clarify the range of concepts we deal with in discussing "environmental compliance" and consider a range of terminology. We will address the role of compliance in contemporary governance, the basic distinction between philosophies of persuasion and punishment and the need to direct the compliance function to achieving measurable outputs and achievements. ii. iii. iv. View environmental compliance in historical, political and socio-economic contexts in order to more fully appreciate external factors which have influenced and currently impinge on the development and implementation of environmental compliance regimes. Identify and discuss the concept of "compliance choices" made at the ideological, strategic and practical levels and the ways in which those choices may be made. Examine the application of compliance regimes and tools to corporations noting the fact that a corporation is a legal construct that may (or may not) behave very differently from the individual. We will examine the question "How do you effectively influence the behaviour of an entity that neither thinks nor feels?". v. Consider the nature of environmental offences and whether they are qualitatively different from general offences, address the issue of public perception of environmental offences and whether different types of environmental offenders (e.g. individuals, smallmedium corporations) require different compliance approaches. By the completion of this Topic you should be able to: i. Distinguish between various fundamental concepts associated with environmental compliance and comprehend the range of terminology used (and its appropriateness). ii. iii. iv. Appreciate the various political, ideological and economic factors that impinge on the compliance function and explain the effects of such influences. Recognise and distinguish between the ways that compliance regimes develop at political, administrative and practical levels. Apply appropriate criteria for determining the likely effectiveness (or otherwise) of compliance regimes and tools. v. Apply compliance regimes and tools in light of the behaviour of corporations as legal constructs. vi. Understand any qualitative or practical distinctions between environmental breaches and breaches of the general law, in particular criminal offences, and different categories of offender. Document1

2 vii. Explain the need for environmental compliance regimes to be linked to measurable outcomes. Teaching Team Mr David Cole Location: DLA Phillip Fox, Lawyers, 100 King William Street, Adelaide, SA, 5000 Qualifications: LL.B., Master of Environmental Studies, University of Adelaide. Biography David is an environmental lawyer with extensive experience throughout Australia and overseas. In recent years he has largely concentrated on environmental compliance and enforcement providing advice and training in this area to the private and public sectors including State and Commonwealth agencies. From David was the Director of the Centre for Environmental Management and Compliance (CEMAC) at the University of South Australia. Since then he has held the position of Special Counsel, Environmental and Site Contamination Law in the Adelaide office of the national law firm DLA Phillips Fox. About this Topic The Theory and Practice of Environmental Compliance is designed to provide to students an intellectual framework in which to further develop their skills and experience in environmental compliance and enforcement. In the last twenty years or so there has been a great deal of literature produced on the philosophies, strategies and practical application of regulatory compliance. However, a relatively small proportion of this writing has been directed at environmental compliance and enforcement. Yet the development and application of compliance regimes in this area arguably face challenges over and above most other areas of regulation. The environment is by no means integrated into the market place and environmental breaches tend to relate to effects on public rights rather than personal rights. Environmental costs can be externalised. Not only does this make environmental breaches somewhat amorphous, it provides governments with the opportunity to "soft pedal" their approaches to environmental breaches until such time as an issue assumes politically damaging dimensions. Similarly, under- resourcing environmental agencies is commonplace in times of economic stringency. Perhaps the greatest challenge (and distinguishing feature) for environmental compliance is the fact that industrial societies continue to be faced with a conflict between economic development and the maintenance of environmental quality. The concept of ecologically sustainable development (ESD), whilst lauded on its arrival on the scene twenty years ago, has been embraced politically but largely not applied in practice by governments. Generally, economic growth continues to have priority over the effective maintenance of environmental quality. Document1 2

3 The above provides a context in which we will endeavour to provide a rigorous framework for and approach to the effective design and implementation of environmental compliance regimes and the application of compliance tools in particular situations. Limited resources require rational and defensible decision-making. A risk-based approach to compliance planning, the development of compliance regimes and the application of compliance tools to particular situations is essential to justify the allocation of limited governmental resources to the compliance function. Understanding the behaviour and responses of corporations in the context of compliance processes will assist in determining the most effective approaches to preventing and responding to environmental breaches by corporations. Choosing compliance tools based on rationally identified outcomes will introduce a degree of logic and rational resources allocation to the compliance process. The five initial modules (although the order of presentation may be varied) are: The Concept of Environmental Compliance Political, Cultural and Institutional Factors the Context for Compliance The Nature of Environmental Laws and Environmental Offenders Corporations, Corporate Behaviour and Compliance Compliance Options Making Effective Choices The remaining three modules will be developed as particular themes and issues of interest evolve from the first five. Study Method This Topic has been designed on the basis that much of its benefit will arise from interaction between the students. You come from diverse backgrounds with considerable experience. Sharing your experiences and professional challenges will enhance the value of the Topic. Each Module's Student Guide will initially pose questions which students are asked to consider before commencing the Module. At the completion of the Module's reading, listening and research requirements, a specific series of issues and questions will be posed. Students must respond in writing to at least one of these. Additionally, the second assessment component will require that students work collaboratively. Each Module will be podcast accompanied by the relevant power point presentation which, short of a video presentation or link, is as close to a real life classroom presentation as this form of delivery will allow. You must read the relevant (and attached) readings before moving on to the podcast and the final Module questions. Readings are divided into "Essential Readings" and "Optional Readings". All essential readings have been attached as PDFs as many of them are not easily accessed. Where they are more readily accessed, the URL is included. Document1 3

4 There are two basic texts which, although you are not obliged to purchase them for this Module, may prove valuable. For basic environmental law information the text is Godden and Peel, Environmental Law, Scientific, Policy and Regulatory Dimensions. Oxford University Press, This book is required reading for the Topic Principles of Environmental Law (LLAW8001). For The Theory and Practice of Environmental Compliance I recommend Durwood Zaelke et al (eds). Making Law Work. Environmental Compliance & Sustainable Development. Volumes 1 & 2. Institute for Governance and Sustainable Development and the International Network for Environmental Compliance and Enforcement Cameron May. Universitybookshop.com.au has this publication available at a recommended retail price of $ (including online discount). You should contact Unibooks at Flinders to determine its local availability. Students are expected to spend approximately five hours per week on this topic, reading the materials posted or referenced and carrying out the actions based on them. These actions will require students to access a range of texts and journal articles although, as indicated above, most will be attached to the Student Guides for each Module. You will also be required occasionally in this Topic to use basic search engines, in particular to access legislation and cases of relevance. However, this will be of greater importance in Principles of Environmental Law (LLAW 8001). The readings and non-assessed actions will form the basis for students to move on to the actions which are assessed, notably the team project and the assignment to be submitted in the final week of this topic. Before commencing any of the modules: Your first action is to post a brief introduction about yourself (an introductory posting) to the General Topic Discussion Board. You will also do this for Principles of Environmental Law. This is an opportunity to express your perceptions of what you hope to achieve from undertaking The Theory and Practice of Environmental Compliance and also introduce yourselves to me (maximum of 100 words). Your second action (if you decide to do so) is to obtain a copy of Zaelke et al (see above) which will be a very useful resource for this Topic. Your third action is to make sure you take a look at the short online tutorial that we have prepared about using a free and well-known online legal database called AustLii (www.austlii.edu.au). While this is not intended to equip you with the legal research skills that a practising lawyer needs, the tutorial will give you a brief insight into using this database so that you will be able to access various court decisions easily. For general materials the Flinders University Library is accessible through the Topic home page. Document1 4

5 Assessment To complete the requirements of this Topic you must successfully pass in each of the modules with formal assessment requirements. The Statement of Assessment Methods (SAMS) is set out below. Statement of Assessment Methods Cover sheet for School Teaching and Learning Committee Number of Topic: LLAW8002 Name of Topic: THE THEORY AND PRACTICE OF ENVIRONMENTAL COMPLIANCE Name of Topic Co-ordinator: DAVID COLE Year and semester of offering: SEMESTER 2, 2010 Does the assessment in this topic fall within the School guidelines, or (in the case of word length and duration of exams guidelines) fall outside them by 10% or less? Yes If any of the assessment falls outside the guidelines or (in the case of word length and duration of exams guidelines) fall outside them by more than 10%, please provide an explanation of why you have chosen this approach to the assessment in your topic: Flinders University STATEMENT OF ASSESSMENT METHODS Students' attention is drawn to the Student Related Policies and Procedures Manual 2010 (http://www.flinders.edu.au/ppmanual/student.html), which outlines the University s Assessment Policy. Document1 5

6 Topic number: Topic title: LLAW8002 THE THEORY AND PRACTICE OF ENVIRONMENTAL COMPLIANCE Unit value of topic: 4.5 Date on which this statement was provided to students: 16 August 2010 Duration of topic:... NS2 (16 August 22 October 2010) Academic Organisational Unit(s) responsible for topic (Department/School): FLINDERS LAW SCHOOL Topic Coordinator: DAVID COLE Telephone number of Topic Coordinator: Expected student workload* (http://www.flinders.edu.au/ppmanual/student/secc_expected.htm): 135 hours in total (specify). * Indicative only of the estimated minimum time commitment necessary to achieve an average grade in the topic. Expected student workload should be based on the standard student workload of approximately 30 hours of student time commitment per unit. Details of assessable work in the topic. Format of each form of assessable work Proportion of total marks Maximum word limit, exam length etc Deadline for submission* Date work is expected to be returned to students First assignment 15% 500 words 30 August 6 September Second assignment (Team Project) 35% 1500 words (each) 4 October 11 October Document1 6

7 Third assignment 50% 2500 words 22 October 15 November * Extensions may be granted by a topic coordinator where the following criteria apply: the student has made a written request for an extension prior to the due date for the assessment item; the student has justified the request on the basis of unforeseen individual circumstances that are reasonably likely to prevent completion of the assessment by the specified due date. Penalties to be applied if deadline is not met: In the absence of an extension, 2.5% of the total mark possible for a piece of work will be deducted for every two days or part thereof that the assignment is late. 1 Penalties to be applied if written work exceeds the word limit: 2.5% of the total mark possible for a piece of work will be deducted for every 10% of the total word limit by which the assignment exceeds that limit. This means no penalty is imposed until the number of words reaches the limit plus 10%. 2 The criteria for successful completion of the topic (including, where appropriate, the achievement of a certain minimum level of competence in both the theoretical and practical components of the topic and details of special requirements concerning particular elements or aspects of the topic such as attendance/participation requirements, group activity) are as follows: Expected Learning Outcomes in the Topic: 3 Expected Learning Outcomes By the completion of this module I anticipate that students will have gained a clear understanding of: A theoretical framework within which more effective environmental compliance 1 This penalty is a default and Topic Co-ordinators are free to insert a different one. 2 This penalty is a default and Topic Co-ordinators are free to insert a different one. 3 These are available on Flinders Learning Online, under Course Content Topic Information. Document1 7

8 and enforcement strategies can be developed. The political and cultural contexts in which environmental compliance and enforcement tools are introduced into legislation and applied by government agencies The sociological and criminological principles that support different approaches to compliance and enforcement and they way in which they apply (or otherwise) to environmental compliance and enforcement strategies The range of environmental compliance and enforcement options available and the circumstances in which they might be applied The bases for more rationally developing and applying compliance and enforcement strategies and approaches in particular instances Detection of Breaches of Academic Integrity Staff may use a range of methods (including electronic means) to assist in the detection of breaches of academic integrity. In addition, the University makes available for staff and student use the electronic text matching software application SafeAssignment. Will the electronic text matching software application SafeAssignment be used?: No Scaling procedures The Law School employs scaling procedures in an endeavour to meet HD targets of 3% in compulsory law topics and 5% in optional law topics. Will any additional scaling procedures be used in determining marks for each piece of work or for determining the final topic grade? No May assessment exercises be resubmitted after revision for re-marking? No Special consideration Students who believe that their ability to satisfy the assessment requirements for this topic has been or will be affected by medical, compassionate or other special circumstances and Document1 8

9 who want these circumstances to be taken into consideration in determining the mark for an assessment exercise may apply to the relevant Director of Studies Grant Niemann (Law) or Derek Dalton (Criminal Justice) for special consideration, preferably by or letter. Supplementary assessment for this topic may be approved on the following grounds: Medical/Compassionate a student who is unable to sit or complete the original examination due to medical or compassionate reasons may apply for supplementary assessment. If the illness or special circumstance prevents the student from sitting or completing the scheduled supplementary examination, or from submitting by the agreed deadline a supplementary assessment exercise, the student will be either: awarded a result in the topic of Withdraw, Not Fail (WN); or be offered the opportunity to demonstrate competence through an alternative mechanism. If the illness or special circumstance is demonstrated to persist up to the commencement of the next academic year, then the student will be awarded a result in the topic of WN. Academic a student will be granted supplementary assessment if he/she : achieves an overall result in the topic of between 45 and 49%, (or between 40 and 49% where a student obtains a fail grade in the last 12 units required for completion of a course) or the equivalent where percentage marks are not awarded; has completed all required work for the topic; has met all attendance requirements; and obtains at least a pass level grade in any specific component of assessment (other than an examination) for the topic where this is explicitly stated to be a formal requirement for the successful completion of the course or topic. A student with a disability, impairment, or medical condition who seeks reasonable adjustments in the teaching or assessment methods of a topic on the basis of his/her disability may make a request to the Topic Coordinator or the Disability Liaison Officer as soon as practicable after enrolment in the topic. Any such reasonable adjustments must be agreed in writing between the student and the Topic Coordinator and must be in accordance with related University policy. A student who is dissatisfied with the response from the Topic Coordinator or with provisions made for reasonable adjustments to teaching or assessment methods may appeal in writing to the Faculty Board. David Cole Signature of Topic Coordinator Date Document1 9

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