Local Nuisance and Litter Control Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:42): As I was saying, the question also to be considered is the amendments to provide for the responsibility of the owner of a vehicle who is presumably departing the scene where they have dumped a whole lot of waste. What happens at present is that, when waste product is found, it is often difficult for the police, if they receive an inquiry or complaint about it, to actually ascertain who dumped the waste.

Members interjecting:

The DEPUTY SPEAKER: Order! I cannot hear the deputy leader.

Ms CHAPMAN: Sometimes, the nature of the waste in itself is so unique that it is quite obvious. Something that was recently identified was the disposal of a whole lot of horses that were apparently repeatedly dumped in a public park or reserve, so that would presumably limit the inquiries by the police to the people who were known to have owned horses. In this case, I think they were broken-down racehorses or something of that nature. I am only using this as an example because of the nature of what has been dumped.

If a particular building material was dumped, then we are obviously talking about people who might find it too expensive to dispose of building material that has been removed from the site in preparation for a rebuild or is excess to requirements in the new rebuild. Again, they are likely to be a select group: the owner of the property, the builder or—

Members interjecting:

The DEPUTY SPEAKER: Order! If members cannot cooperate with the speaker on her feet and enable the Deputy Speaker to chair the session for them, I am not sure how to handle it. Everyone who is not speaking needs to sit down, and I do not want to hear any voices except from the member on her feet. Deputy leader.

Ms CHAPMAN: If it is just general household rubbish somebody wants to get rid of, then I suppose the police could swab it for DNA tests or something of that nature, and try to identify who might have been using the piece of refuse before it was disposed of. It may not actually prove who dumped it; nevertheless, it might narrow the group. As I understand it, it is often difficult to find the culprit who has disposed of rubbish.

What the government intends to do in this bill is at least create a liability or responsibility on the part of the owner of the car that might be seen, photographed or recorded in some way as leaving the scene of the crime (in this case, the dumping). I am not quite sure how that is going to operate, and perhaps the minister can explain. If this is going to be an easy way out for an easy prosecution, then I have some concerns about it. I accept that it is probably reasonable for people to be responsible for the use of their car, especially if it is for a criminal or summary offence, and to be able to at least assist in the inquiries as to who might have been driving their car at the time.

The fact is that by simply charging the offender with some responsibility, and therefore allowing them to be tied up in the process in some way, on the face of it this would be a lazy prosecution. There would not be any direct effort to find out who was driving at the time. It would simply be, 'This is a recording of evidence, this is the person whose car was seen at the scene and they will be prosecuted.' Apparently, the onus would be on the owner of the vehicle to come forward, and to presumably have the defence that they either did not know who had use of the vehicle at the time or did know who had use of the vehicle at the time but certainly had not authorised the use of that vehicle for the purposes of dumping waste illegally.

I certainly have some concerns about that, but I will say that I think it reasonable to have a civil remedy, which is being proposed here. Again, I am not entirely sure how that is going to work, but I think, in this area of public nuisance (including the disposal of rubbish) it is reasonable for us to look at ways in which we can encourage better behaviour by the statutes rather than by fining or imprisonment. With those few words, I indicate that I will be supporting the bill but, for obvious reasons, with significant reservation.

Ms WORTLEY (Torrens) (16:47): I rise to speak on the Local Nuisance and Litter Control Bill, and in doing so I recognise the importance of a bill that will establish clarity and consistency regarding responsibility for dealing with littering and local nuisance, as well as highlight the importance of real consultation and cooperation.

It aims to improve service delivery to South Australians and make the distinction between state and local government responsibilities clearer. Ultimately, it will improve the management of nuisances and littering across the state by introducing a number of important reforms to better regulate littering and illegal dumping, including tiered offences aligned to the severity of offending and public litter reporting.

As the member for Torrens, I, like other members in this place, receive complaints from constituents regarding noise, illegal dumping, animals, smoke and so on. I join my local Lions Club for Clean Up Australia Day, where we see firsthand some of the illegal dumping that occurs. These environmental nuisances are common, and they are not unique to my electorate. They are occurrences in all cities, and it is necessary that clear guidelines exist for dealing with such complaints.

This bill will see residence receive the same services regardless of where they live. As it currently stands in South Australia, we are the only state in which local government responsibility in this area is not legislated to some extent. While provisions do exist in the Environmental Protection Act 1993 for councils to manage nuisance, they are not mandatory and they lack consistency in their enforcement across councils.

This bill aims to ensure consistency of service to the community across these council boundaries, and it will deal more effectively with vexatious complaints and deliver better regulatory tools for enforcement. Recognising the importance of local and state governments working effectively together, the development of this bill has involved extensive consultation, including a ministerial working group consisting of representatives from the EPA, the LGA, the Department for Health and Ageing, SA Police, KESAB and the Office of Local Government, which guided the drafting of the legislation and provided governance for the project.

What will the bill do? It will provide the statutory basis for using the registration of a vehicle to hold the owner responsible for acts of littering. It provides for improved controls for unsightly premises: the neighbourhood junkyards that are often seen as a form of local nuisance, and I know that in many of our electorates we have these. Councils have raised concerns with the state government that powers in this area within the Local Government Act are not always effective and that reform would be welcome.

This bill provides greater authority for councils to order the rectification of unsightly conditions and unsanitary conditions on premises, as well as improved tools for the enforcement of notices. Importantly, the EPA will continue to deal with any nuisance issues not of a minor nature. In addition, a number of guidelines will be developed by the EPA to support councils in administering the legislation. The Local Nuisance and Litter Control Bill will ensure that all South Australians will be able to rely on consistent service and assistance when it comes to local nuisances. I commend the bill to the house.

Mr SPEIRS (Bright) (16:51): It is a pleasure to rise this afternoon to speak on the Local Nuisance and Litter Control Bill 2015. It is a bill which has received bipartisan support in large part, and we have seen that today, with speakers from both sides of the house able to speak in broad support of this bill. It is a bill which is probably quite close to the hearts of many members of parliament because the issue of local nuisance and litter is something which is of significant concern to the vast majority of South Australians. There is nothing that riles people in our community more than dumped rubbish, general nuisance in the community and particularly unsightly buildings.

It is the unsightly buildings component of this bill that I want to discuss. Several speakers have brought to the attention of the house the fact that this bill will be able to deal with unsightly buildings, and I do hope that is the case. Historically, local governments in South Australia, and in other jurisdictions in Australia, have found it particularly difficult to hold building owners to account when a building falls into a state of disrepair so that it gets to a situation where it is detracting from the general amenity of the surrounding community.

As the member for Torrens mentioned, this is something that many of us see, particularly along main roads. These unsightly buildings significantly detract from the community of which they are a part. It appears that this is not necessarily something related to the socioeconomic status of a community. Across our city, from north to south and east to west, there are buildings, particularly on our main thoroughfares, which significantly detract from the area that they are in.

I often find that these unsightly buildings are disused service stations, which may have been strategically purchased to lock out competition. These are areas which are hard to rehabilitate due to contamination and the like, and these buildings are the subject of complaint to local councils and local members of parliament. It has been a problem when I have approached local councils about unsightly buildings. The councils have said to me that they would love to be able to tackle these buildings. They would love to be able to initiate the clean-up of these buildings and then bill back the building owner in some way.

You would think the very existence of such legislation would create a remedy in itself to discourage building owners from letting their buildings fall into a state of disrepair because they have the knowledge that the local council or the state government could intervene and tidy up the building, probably at greater cost than the building owner could tidy it up themselves. Councils have repeatedly raised with me that they find it difficult to hold building owners to account. I know from my time on the Marion council that this was an issue; I know dealing with the City of Holdfast Bay that this is an issue. I do hope that this legislation tightens that up.

The biggest challenge that local governments have had was when they have ended up in the courts, the interpretation of statutes suggesting that it will create a situation where magistrates and judges feel uncomfortable going into the subjective area, which is interpreting whether a building is unsightly or detracts from the local community in some way or another. Traditionally, the judiciary has felt uncomfortable going down this path.

I have some concerns about whether this legislation is explicit enough on unsightly buildings and whether it is also open to interpretation by our courts as to whether they can step in on this and enforce something that a council or the state government does if challenged by a building owner. I think there is still ambiguity in this legislation, and perhaps the minister in her closing remarks could provide some understanding about how an unsightly building would be dealt with under this legislation because I do not think it is quite tight enough in terms of giving councils and the state government the power to clean up an unsightly building and reclaim the money that it cost in order to do that.

I think the ambiguity still exists, and that is the ambiguity that local government has struggled with through trying to use the Local Government Act in the past to deal with these sorts of buildings. That is a question I would pose to the government: is this legislation tight enough and does it go far enough to deal with those unsightly buildings that are such a blight on the communities that we represent? With those remarks, I will provide my overarching support for the Local Nuisance And Litter Control Bill and commend it to the house.

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (16:57): I believe that all second reading contributions have been made at this point, and I would like to thank all members for their contributions. This bill has been developed collaboratively with local government over the last three years and contains numerous important reforms that will considerably improve service to the community regarding local nuisances and significantly reduce the prevalence of litter and illegal dumping across the state.

Communities currently experience considerable confusion about the delineation between state and local government roles and responsibilities relating to local nuisance issues. Communities have high expectations that local government will assist them in resolving issues of minor local nuisance. This is evidenced by community surveys undertaken by McGregor Tan in 2001, 2003 and 2006 on behalf of the Local Government Association. They indicated that 53 per cent, 72 per cent and 66 per cent of all respondents respectively consider that local government is in the best position to deal with such matters.

This is not surprising, as councils are clearly better placed to respond quickly and effectively to most local nuisance issues, as they have a local presence. This is reinforced by the fact that every other state already allocates this function specifically to local government to some extent. The bill will limit the responsibility of local government to nuisance issues. More serious offences will continue to be referred to the EPA. The need to make this delineation is supported by recommendations of the Statutory Authorities Review Committee in this place as well as by the local government expert panel that was established by the LGA to consider future reforms for local government in South Australia. This bill will deliver on both these recommendations.

The bill proposes a raft of reforms to litter regulation in this state. These include provisions that support the establishment of a public litter reporting scheme in South Australia, improvements in the usability of surveillance for evidence gathering in the case of illegal dumping and allowing non-government organisations to undertake compliance activities, subject to approval. All these reforms will act as significantly increased deterrents for littering and illegal dumping and result in reduced clean-up costs to local government and improved amenity for the South Australian community.

In response to the questions raised by the member for Flinders in his second reading contribution, I am happy to provide the following answers. Budget impacts: with regard to the perceptions of cost shifting and impact on council budgets, I am advised that councils are currently undertaking responsibility for a higher proportion and diverse range of environmental nuisance complaints. This is not an exercise in cost shifting, rather providing better tools to councils to improve services to the community.

I am further advised that the EPA undertook a survey in February 2013 which found that 90 per cent of councils (60 of the 68) currently respond to greater than 50 per cent of nuisance complaint types. Twenty per cent of these councils (14 of the 68) are, in fact, responding to 100 per cent of all nuisance complaints.

The cost impact on councils will vary according to their current level of involvement in managing local nuisance matters. For those councils that already manage nuisance complaints, it will be business as usual with limited, if any, impact on their budget. Those that manage most nuisances already will experience a small increase in workload and those that are doing very little presently will need to resource any additional workload.

With regard to the extent of additional workload for councils, the EPA analysed its own complaints record between 2011-12 and 2013-14 to get an understanding of likely impact on councils. I am advised that over this period an average of 708 stage 1 responses were recorded annually. A stage 1 response means that relevant parties are advised that an issue exists that may warrant attention. This averages out at fewer than 12 complaints per council and, of course, metropolitan councils make up the majority of complaints received so the average for rural councils is much less. On average, only 37 of these continued to a stage 3 response. A stage 3 response means that an officer is required to attend at the site to assess a complaint.

With regard to litter, the main littering offence in South Australia is in section 235 of the Local Government Act 1999. Litter regulation is a council function. The EPA does not and has never managed littering other than commercial-scale illegal dumping which it has taken on quite recently through the establishment of its illegal dumping unit in 2011. The Local Nuisance and Litter Control Bill aims to improve service to the community. Local government, as the third tier of government in this country and the key provider of localised services, is better placed to efficiently and effectively service local communities across the state for minor local neighbourhood issues.

The EPA has offices in Victoria Square and Mount Gambier and a main role of providing specialist expertise to manage significant environmental risk in South Australia. For the EPA to respond to a complaint on Eyre Peninsula, two officers would need to book a flight from Adelaide to Port Lincoln or Whyalla and organise a rental car to get to the complaint to investigate it. There may also need to be overnight accommodation. These complaints are clearly better managed at the local level by the local council.

Further, the argument about cost shifting has focused on potential costs regarding nuisance management but has not considered the potential for a net benefit or improved bottom line for councils when considering the littering reforms proposed. The littering and illegal dumping provisions of the bill have the potential to save councils considerable resources as councils currently spend significant amounts of money on litter and illegal dumping clean-up. For example, I understand the City of Playford has allocated an annual cost of $912,000 for cleaning up illegal dumping in the area and has recently employed a litter prevention officer. Even a modest achievement of a 10 per cent reduction in costs through the new framework could save the council $90,000 in clean-up costs.

I believe that the proposed reforms in this area will work. Many of the reforms are operating successfully in other states of Australia and have had a marked impact on littering and illegal dumping in those states. I am advised that feedback from councils during consultation on the draft bill identified a number of areas that could be improved to limit the impact on council resources. The majority of these suggested improvements have been included in the bill before you. With regard to the state budget impact, the EPA will not be losing staff or making savings as a result of this legislation. There is no shifting of cost. EPA staff currently involved in responding to residual nuisance complaints across the state will now take on a mentoring and support role to local government to improve the service provided to the community; that is, four FTEs for the next four years.

Litter rates: the member for Flinders asked what the likely impact of legislation would be on the rates of littering with reference to illegal dumping. The Keep Australia Beautiful Litter Index 2014-15 provides an insight into the presence of litter, including illegal dumping in Australian jurisdictions. The litter data is measured as litter items per 1,000m² and volume (litres) per 1,000m². In South Australia, the litter rate for 2014-15 was reported to be 45 items per 1,000m² and 4.74 litres per 1,000m². This is somewhat higher than litter rates in Victoria, which had the rate for that period of 25 items per 1,000m² and 2.68 litres per 1,000m². Victoria has implemented the litter reduction tools contained in the bill, such as public litter reporting and vehicle owner responsibility, over the last decade and has achieved a substantial reduction in litter, even without the container deposit system in that state.

With regard to how other states manage these issues, I am advised that South Australia is the only state where local government responsibility in this area is not legislated to some degree. In New South Wales, section 6 of the Protection of the Environment and Operations Act 1997 determines that councils are the appropriate regulatory authority for non-scheduled activities (non-licensed) in its area.

In Tasmania, section 20A of the Environmental Management and Pollution Control Act 1994 determines that councils have a duty to prevent or control pollution in its area on non-licensed premises. In Queensland, section 514 of the Environmental Protection Act 1994 and regulations 98, 99, 100 and 101 of the Environmental Protection Regulations 2008, devolve powers to local government and include licensing of certain minor activities. This provides some level of funding to local government.

In Victoria, the Environment Protection Act 1970 gives local government responsibility for noise, septic tanks and litter. In Western Australia, the Environmental Protection (Noise) Regulations 1997 give local government direct responsibility for noise but further issues are able to be delegated. The litter penalties proposed in the bill are generally comparable to interstate penalties where the offences are similar.

Expiations for general litter range between $80 and $295 for a natural person and dangerous littering is around $500 across the country. Illegal dumping expiations are considerably higher interstate. In New South Wales, the expiation fee for illegal dumping is $15,000 for corporations and $7,500 for individuals. In Queensland, the expiations range between $5,890 and $8,835 for corporations, and between $1,884 and $2,356 for individuals.

I would also like to attempt to respond to the question raised by the deputy leader about the owner of the vehicle. I note that the ability to associate an offence with a vehicle will provide an additional tool to identifying litterers and illegal dumpers, as well as other nuisance-related complaints. Littering or illegal dumping for a vehicle or littering that is associated with a vehicle is often witnessed by other drivers and this provision associated with public reporting of litter offences will provide tools necessary to fine these offenders and curb this type of offending.

The intent of this approach, which has been demonstrated as successful in all other states, is to increase actual and perceived surveillance of litter and illegal dumping activities. Currently, unless you are caught in the act by a police officer or council officer, there is little deterrence for littering and illegal dumping. Under this bill, offenders will have to consider that anyone who sees them can make a valid report that can land them in trouble.

In addition, the use of surveillance cameras in known illegal dumping hotspots, combined with the ability to determine the owner of the vehicle who is responsible for the offence, will significantly improve the chance of offenders being caught and also provide a significant deterrent. I hope that that addresses the questions raised by the deputy leader.

In conclusion, I would like to thank members for their contribution to this bill and look forward to the implementation of modern laws to reduce the rates of littering and illegal dumping in the state, reduce the incidences of local nuisance in communities, and improve service to the community across South Australia in these areas. I commend the bill to this house.

Bill read a second time.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (17:08): I move:

That this bill be now read a third time.

Bill read a third time and passed.