Bills

Local Nuisance and Litter Control Bill

Introduction and First Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (21:42): Obtained leave and introduced a bill for an act to regulate local nuisance and littering; to make related amendments to the Local Government Act 1999, the Motor Vehicles Act 1959 and the Summary Offences 1953; and for other purposes. Read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (21:43): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Littering and activities that cause nuisance such as noise, smoke and dust can impact on our enjoyment of local areas. The Local Nuisance and Litter Control Bill (the Bill) is innovative and necessary legislation that will considerably improve local nuisance and litter management services to the community. The Bill will result in improved amenity for communities, in particular reduced litter and illegal dumping in towns, regions and cities throughout the State.

Background

Communities currently experience considerable confusion about the delineation between state and local government roles and responsibilities related to local nuisance issues. Councils are better placed to respond quickly and effectively to most local nuisance issues as they have a local presence. Further, community expectation of local government with regard to policing environment protection matters is very high. A community survey undertaken by the Local Government Association (LGA) in 2006 indicated 66% of respondents considered councils are best placed to manage nuisance issues. South Australia is currently the only state in which local government responsibility in this area is not legislated to some extent.

State Government, through the EPA, has been negotiating with local government for more than 20 years to find better solutions for dealing with local nuisance issues. In 2012, the Statutory Authorities Review Committee, having enquired into the operation of the EPA, recommended in its 56th report that legislative reform be considered to clearly define the responsibilities of the EPA and other authorities including local councils with regard to dealing with these issues.

In 2013, the LGA established a Local Excellence Expert Panel consisting of the Honourable Greg Crafter AO, retired Judge Christine Trenorden and Professor Graham Sansom to establish a vision for the 'Council of the Future'. A recommendation of this Panel was that 'the responsibility for investigating and resolving matters of local environmental nuisance be accepted as part of the function of a regional Council on condition that the EPA provide support in the form of expertise and equipment'. This Bill will deliver on both of these recommendations.

Objectives

The objective of the Bill is to improve the management of nuisances and littering across the State. The Bill will protect individuals and communities from local nuisance and will reduce the prevalence of litter across South Australia, particularly along roadsides and in tourist and shopping precincts. In doing so, the Bill will improve the amenity value of local areas and promote the creation and maintenance of a clean and healthy environment.

The Bill will clearly delineate responsibility for managing nuisance in the community to local government; reinforcing the responsibilities of the EPA to manage nuisance on EPA licensed sites under the Environment Protection Act 1993. The Bill will limit the responsibility of local government to nuisance issues. More serious offences will continue to be referred to the EPA. The Bill will provide consistency of service to the community across council boundaries, better regulatory tools for enforcement, and will deal more effectively with vexatious complaints.

The Bill proposes a modern legislative scheme for litter control in South Australia that will provide:

considerable deterrence including higher penalties for more serious offences;

improvements in the usability of surveillance for evidence gathering in the case of illegal dumping (by linking an offence to the registered owner of a vehicle);

non-government organisations to undertake compliance activities subject to approval; and

establishment of a public litter reporting scheme in South Australia.

Benefits to the community

The benefits to the community will be significant. In relation to nuisance the Bill establishes consistency in the management of nuisance across South Australia and provides the community with a more effective local service for the management of nuisance complaints. The litter elements of the Bill will benefit the community through providing modern tools for policing litter and illegal dumping, providing heightened deterrence, and will ultimately result in a cleaner environment, particularly in peri-urban and regional areas where illegal dumping is a considerable problem. This benefit will have flow on positive effects to councils by improving amenity and reducing ongoing litter management and illegal dumping clean-up costs.

Consultation

Consultation to develop the Bill has been extensive. A discussion paper was released in March 2013 to commence consultation directly with local government. Five regional meetings, across the State, were held with local councils to support consultation on the discussion paper.

A Ministerial Working Group was established to guide the drafting of legislation and provide governance for the project. The Working Group consisted of representatives from the EPA, LGA, Department of Health and Ageing, SA Police, KESAB and the Office for Local Government.

The LGA also established a reference group to assist with development and review of the detail of the drafting instructions. The reference group consists of local government officers from the City of Charles Sturt, City of Salisbury, Rural City of Murray Bridge, and Alexandrina Council as well as representatives from Eastern Health Authority, LGA and the EPA. The reference group met regularly over an 18 month period.

In July, 2015, the Bill was released for public consultation for a six-week period. The consultation process included direct communication with local councils, the LGA of South Australia, regional local government associations, Members of Parliament, industry groups, fast food businesses, government agencies, and other relevant stakeholders. Six public meetings were held across the State; in Adelaide, Karoonda, Naracoorte, Wudinna, Victor Harbor, and Port Pirie. The consultation has shaped the Bill into legislation that is innovative in its structure and tools, and limits the resource intensiveness of regulatory practice to local government.

Key elements

The Bill provides a straightforward definition of local nuisance that is designed to evolve with the needs of local government over time through the ability to prescribe nuisances under Schedule 1. The Bill also establishes three distinct classes of litter to differentiate between the seriousness of different types of offending. There is general litter that is of a benign nature, class B hazardous litter (that includes litter types that may cause an immediate danger or hazard), and class A hazardous litter (initially limited to asbestos). Each class of litter is also structured so that it may evolve over time with the needs of local government to manage new forms of litter as necessary.

Liability of vehicle owners

It is commonplace to see cigarette butts and other litter thrown from vehicles, and illegally dumped waste has typically been transported by vehicle to its destination, particularly where large quantities are involved. Currently, it is not sufficient to identify the license plate details and a description of the vehicle to prove a vehicle-related littering or illegal dumping offence.

To improve enforcement ability, the Bill seeks to apply an onus on the owner of the vehicle for an offence committed in association with or from that vehicle, which would bring South Australian laws into line with all other Australian jurisdictions. This function operates similar to speed camera and red-light camera infringements, where the owner of a vehicle has the option to declare a third party was responsible for the vehicle at the time of the offence.

This provision will also be critical to establish enforceable public litter reporting as it will allow for an expiation to be issued to the owner of a vehicle identified via licence plate and other identifying attributes under such a programme.

Public litter reporting

While it is possible to report littering in South Australia to Police, there is currently no dedicated public litter reporting programme in place. This is in part because it is difficult to determine the offender under current South Australian laws. The Bill, in addition to applying responsibility to the owner of a vehicle, contains a provision to allow for improved public reporting of litter by formalising a citizen's notification of littering. This provision stipulates that the contents of the notification may constitute evidence of the offence, which will allow expiations to be issued as a result of public litter reports, as is the case in all other Australian jurisdictions.

Significant provision for civil remedy by affected parties

The Bill allows for courts to order civil remedies. This allows councils, administering bodies, individuals or other body corporates who have been impacted by a contravention or a potential contravention to apply to the courts for a civil remedy.

The inclusion of civil remedies provisions will provide an alternative route for complaint resolution that may be exercised separately from the council or administering body. This will be particularly useful in circumstances where a council or administering body has been unable to determine a contravention through its own investigation and is unable to progress a complaint to the satisfaction of the complainant.

Ability to negotiate a civil penalty

This provision will allow councils or administering bodies to enter into negotiation, or apply to the relevant court, for a civil penalty. The EPA has used civil penalties successfully in administering the Environment Protection Act 1993.

The Bill contains an option for the Minister, councils or administering bodies to negotiate a civil penalty with an alleged offender rather than applying to the court for a criminal penalty. This will provide a lower cost alternative to prosecution that benefits the regulator as well as the alleged offender. Negotiations are voluntary and if an alleged offender chooses not to negotiate; the Minister, council or administering body has the opportunity to apply to the court for a penalty.

The Bill contains another option for the Minister, councils or administering bodies to apply to the Environment Resources and Development Court for a civil penalty as an alternative to criminal prosecution. Civil penalties may only be used for offences that do not require proof of intention or recklessness.

Compliance standards set via regulation

The Minister will be able to establish, via regulation, standards to further guide the implementation of the Bill. There will be provision for standards to be constructed to guide evidentiary provisions that would prove an offence. This provision will not limit the ability to prove an offence where a standard is not in place but be used as an improved determination where it is possible to define such standards. Councils will also be able to permit activities to occur outside of the standards where appropriate. The Minister will be required to consult with councils, administering bodies, the LGA, and the community in developing a standard.

Councils may work together to address nuisances

The Local Government Act 1999 allows for councils to establish regional subsidiaries. The Bill will support such arrangements by allowing for sharing of authorised officers between councils, and for other administering bodies to act on behalf of one or more councils.

Regional arrangements will allow smaller councils in particular to administer the Act by agreements with adjoining councils. These provisions will allow for one authorised officer to undertake duties across multiple council areas. However, such arrangements may also benefit larger metropolitan councils given their proximity to each other.

Other organisations may undertake compliance

The Minister may prescribe other organisations or public authorities as administering bodies through regulation for all or part of the legislation. Administration of the legislation by such agencies may be limited by the Minister, including the limitation of powers for authorised officers. Administration of this legislation in state waters will need to be performed by a state government agency or administering body, noting that councils do not necessarily have jurisdiction within navigable waters of the State.

This provision allows broader access than local government and enables greater enforcement. For example, KESAB, who has advocated litter prevention for over 40 years, has shown interest in taking on an enforcement role. Such a provision would allow this to occur, subject to approval from the Minister. It would also allow other organisations to contract to local government to provide this service. There is precedence in this approach with the Royal Society for the Prevention of Cruelty to Animals (RSPCA) administering the Animal Welfare Act 1985.

Where an organisation seeks to be an administering body (i.e. not a council) the Minister must consult with the LGA. The Minister may approve an administering body with conditions. For example, a condition may be applied that, in order to operate in the area of a council there must be an agreement in place with that council to do so.

The Minister may also allow administering bodies that are not councils to regulate all or some council generated nuisance or littering as part of the prescription/authorisation process. This would allow KESAB, as an example, to regulate litter from council activities.

This Bill will provide significant benefits to local communities across the State through the implementation of best practice litter regulation resulting in cleaner streets, towns, cities and regions through. The Bill creates flexibility in the regulatory options available to councils to manage local nuisances and innovative regulatory tools that will reduce the incidence of littering.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause contains definitions of terms used in the Bill.

Part 2—Objects and application of Act

4—Objects of Act

This clause sets out the objects of the Bill to which the Minister, councils and other persons or bodies involved in the administration of the Bill must have regard and seek to further. The objects are—

to protect individuals and communities from local nuisance;

to prevent littering;

to improve the amenity value of local areas;

to promote the creation and maintenance of a clean and healthy environment.

5—Interaction with other Acts

Subclause (1) provides that the Bill is in addition to, and does not limit, the provisions of any other law of the State.

Subclause (2) provides that the Bill is not intended to be construed so as to prevent any person from being prosecuted under any other enactment for an offence that is also punishable by the Bill, or from being liable under any other law of the State to any penalty or punishment that is higher than a penalty or punishment provided by the Bill.

Subclause (3) provides that nothing in the Bill affects or limits a right or remedy that exists apart from the Bill and compliance with the Bill does not necessarily indicate that a common law duty of care has been satisfied.

Subclause (4) provides that the Bill does not apply in relation to an activity authorised by an environmental authorisation within the meaning of the Environment Protection Act 1993.

However, under subclause (5), the Bill will apply in relation to the travelling by road of a vehicle used in connection with the following prescribed activities of environmental significance as specified in Schedule 1 of the Environment Protection Act 1993:

a waste transport business (category A);

a waste transport business (category B);

dredging;

earthworks drainage.

6—Territorial and extra-territorial application of Act

This clause provides for extra-territorial application of the Bill if conduct engaged in outside of the State results in local nuisance within the State and that conduct would, if engaged in within the State, constitute a contravention of the Bill.

Subclause (2) clarifies that the conduct could include a failure to act.

Part 3—Administration

Division 1—Councils

7—Functions of councils

This clause provides that councils are the principal authority for dealing with local nuisance and littering in their respective areas.

The functions of a council are—

to take action to manage local nuisance and littering within its area;

to cooperate with any other person or body involved in the administration of the Bill;

to provide, or support the provision of, educational information within its area to help detect, prevent and manage local nuisance and littering;

such other functions as are assigned to the council by the Bill.

Councils must, in performing their functions, have regard to—

the guidelines adopted or prescribed by regulation for managing unreasonable complainant conduct;

any other guidelines adopted or prescribed by regulation to assist councils in performing their functions.

8—Annual reports by councils

This clause requires councils to include details of the performance of its functions under the Bill in its annual report.

Division 2—Administering bodies

9—Administering bodies

This clause enables the Governor to declare a body to be an administering body for the purposes of the administration or enforcement of the Act and to confer certain functions conferred on councils (under the Act) on the body and its officers or employees. This is to enable bodies like KESAB to be involved in the administration or enforcement of the Act.

10—Delegation

This clause enables an administering body to delegate a function conferred on it to a committee of the body, an officer or employee of the body or an officer or employee of the body for the time being occupying a particular office or position.

11—Periodic reports by administering bodies

This clause requires an administering body to report to the Minister at such intervals as the Minister requires on the performance of its functions. The report must be laid before both Houses of Parliament.

Division 3—Authorised officers

12—Authorised officers

This clause provides that all police officers are authorised officers for the purposes of the Act, and enables the appointment of officers by the Minister or councils.

13—Identity cards

This clause provides for the issuing of identity cards to authorised officers. An authorised officer must produce the identity card for inspection by a person in relation to whom the officer intends to exercise powers under the Act.

14—Powers of authorised officers

This clause sets out the powers of authorised officers in connection with the administration or enforcement of the Act. Under this clause, an authorised officer may—

at any reasonable time, enter or inspect any premises or vehicle;

during the course of the inspection of any premises or vehicle—

ask questions of any person found in or on the premises or vehicle;

open a part of, or thing in or on, the premises or vehicle;

inspect any substance, material or thing found in or on the premises or vehicle;

take and remove samples of any substance, material or thing found in or on the premises or vehicle;

require any person to produce any plans, specifications, books, papers or documents;

examine, copy and take extracts from any plans, specifications, books, papers or documents;

take photographs, films or video recordings;

take measurements, make notes and carry out tests;

remove, or seize and retain, any substance, material or thing that has or may have been used in, or may constitute evidence of, a contravention of the Act;

require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, an offence against the Act, to state the person's full name and usual place of residence and to produce evidence of the person's identity;

require any person to answer any question that may be relevant to the administration or enforcement of the Act;

give directions as to the stopping or movement of a vehicle;

give any other directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above or otherwise in connection with the administration or enforcement of the Act.

The remaining subclauses provide safeguards around the reasonable use of force and other potential abuses of power by authorised officers, and prohibits the hindrance or obstruction of authorised officers.

15—Limit of area of authorised officers appointed by councils

This clause enables authorised officers appointed by council to exercise their powers outside the council area including within the area of another council or outside the State if they believe on reasonable grounds that an offence has been committed under the Act within the council area that requires the exercise of powers outside the council area.

16—Provisions relating to seizure

This clause deals with seized items and sets out procedures for their forfeiture or return to their owners and entitlement of owners to compensation. It also enables the Minister or a relevant council to dispose of forfeited items in such manner as the Minister or council may direct, including by sale, from which the proceeds are to go to the Minister or council as the case may be.

Subclause (2) clarifies that the section does not apply in relation to items removed or disposed of under clause 31 following non-compliance with the requirements of a nuisance abatement notice or litter abatement notice, or items collected, removed or disposed of by a council under the Local Government Act 1999.

Part 4—Offences

Division 1—Local nuisance

17—Meaning of local nuisance

This clause is definitional in nature and specifies what constitutes and what does not constitute a local nuisance. A local nuisance is—

any adverse effect on an amenity value of an area that—

is caused by—

noise, odour, smoke, fumes, aerosols or dust;

animals (including insects), whether dead or alive;

any other agent or class of agent declared by Schedule 1;

unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area;

insanitary conditions on premises that unreasonably interfere with or are likely to interfere unreasonably with the enjoyment of premises occupied by persons in the vicinity;

unsightly conditions, of a kind declared by Schedule 1, on premises caused by human activity or a failure to act;

a contravention of, or failure to comply with a provision of an environment protection policy, or of any other Act or law, declared by Schedule 1;

anything declared by Schedule 1 to constitute a local nuisance.

However, a local nuisance does not include anything declared by Schedule 1 not to constitute a local nuisance. See Schedule 1 for a list of these things.

The clause further clarifies when conditions on premises will be taken to be insanitary, namely if an authorised officer reasonably believes that—

the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or

offensive material or odours are emitted from the premises.

18—Causing local nuisance

This clause contains the two offences relating to local nuisance.

The first is the offence of carrying on an activity intentionally or recklessly and with the knowledge that local nuisance will result. The maximum penalty for this offence is $60,000 for a body corporate or $30,000 for a natural person.

The second is the offence of carrying on an activity that results in local nuisance. Intention does not form an element of this offence. The maximum penalty for this offence is $20,000 for a body corporate or $10,000 for a natural person.

Liability for causing local nuisance rests prima facie with the occupier or person in charge of the place where the local nuisance-causing activity was carried on.

The clause also clarifies that the term 'carrying on an activity' includes a failure to act.

19—Exemptions from application of section 18

This clause enables councils to exempt persons in respect of certain potentially local nuisance-causing activities from the application of clause 18, for example, construction or demolition works, concerts or events or activities using amplified sound. Before granting an exemption, a council will need to be satisfied as to the adequacy of an applicant's site nuisance management plan to prevent, minimise or address any adverse effects on the amenity value of the area and also that exceptional circumstances exist that justify the granting of the exemption. An exemption must be published on a council's website.

20—Person must cease local nuisance if asked

A person must, on request by an authorised officer, cease an activity, or remove from premises owned or occupied by the person any substance, material or thing that, in the opinion of the authorised officer, is causing local nuisance. The maximum penalty for this offence is $5,000 or an expiation fee of $210.

21—Regulations for purposes of Division

This clause enables regulations to be made for the purposes of the Division including regulations that—

prohibit, restrict or regulate an activity, or the use or sale of a substance, material or thing, or the use or installation of equipment or infrastructure relevant to the prevention or management of local nuisance; and

prohibit, restrict or regulate the manufacture, possession, transport, storage, use or disposal of a substance, material, equipment or thing that causes local nuisance; and

provide for the removal or destruction of a substance, material, equipment or thing that causes local nuisance; and

provide for compliance standards, and testing or monitoring standards, procedures or techniques (including sensory techniques), to be applied or used by authorised officers in detecting or identifying local nuisance; and

provide for the taking, analysis or testing of samples relevant to detecting, identifying or monitoring local nuisance including—

the persons who may take, analyse or test those samples;

the places where those samples may be analysed or tested;

the reporting of the results of the analysis or testing of those samples.

Division 2—Litter control

22—Disposing of litter

Subclause (1) sets out the principal offence of littering, namely, a person must not dispose of litter onto any land or into any waters. The tiered penalty structure means that there are higher penalties for disposing of larger amounts of litter or different classes of litter, ranging from class A hazardous litter which is the most toxic to general litter which is the least toxic.

Subclauses (2) and (3) clarify which activities will or will not fall within the principal offence.

Subclause (4) sets out the defences to the offence, namely, disposal on one's own property or on some other person's property with their consent, or accidental disposal, provided all reasonable steps are taken to retrieve the litter.

Class A hazardous litter is defined as domestic or commercial waste comprised of—

asbestos;

material containing asbestos;

any substance, material or thing of a kind prescribed by regulation;

a combination of litter referred to in a preceding paragraph of this definition and any other litter.

Class B hazardous litter is defined as—

when disposed of onto land or into waters—

live cigarettes or cigarette butts;

used syringes;

waste glass (whether or not broken);

any substance, material or thing of a kind prescribed by regulation;

a combination of litter referred to in a preceding paragraph of this definition and general litter;

when disposed of into waters—any disused or decommissioned vehicle, appliance or device or part of such a vehicle, appliance or device or any other structure or thing that an authorised officer reasonably suspects is being used, or is intended for use, in the waters as an artificial reef.

General litter is defined as any solid or liquid domestic or commercial waste (other than hazardous litter), including—

cigarettes or cigarette butts;

chewing gum;

food or food scraps;

beverage containers;

packaging;

clothing, footwear or other personal accessories or personal items;

furniture;

garden cuttings or clippings or other plant matter;

garden landscaping material;

dead or diseased animals;

vehicles or vehicle parts;

machinery or equipment used in farming or agriculture;

demolition material (including, but not limited to, clay, concrete, rock, sand, soil or other inert mineralogical matter);

building or construction material or equipment;

any material or thing used or generated in the course of carrying on a prescribed activity of environmental significance;

any substance, material or thing of a kind prescribed by regulation.

Further key terms used in section 22 are defined in subclause (5).

23—Bill posting

A person must not post a bill on property without the consent of the owner or occupier. The maximum penalty for this offence is $10,000 or an expiation fee of $315. Subclause (2) additionally makes a person who distributed or authorised the distribution of such a bill guilty of an offence with a maximum penalty of $20,000 for a body corporate or $10,000 for a natural person. The clause further sets out a defence to the second offence, namely lack of foreseeability, and enables a court to order compensation for loss or damage to the property caused by the commission of either offence.

24—Litterer must remove litter if asked

This clause requires a person, if requested by an authorised officer, to remove any bills or other litter posted or disposed of in contravention of the Division and to dispose of it as directed. Failure to do so attracts a maximum penalty of $5,000 or a $210 expiation fee.

25—Citizen's notification

This clause enables evidence of the commission of an offence to be provided by way of a citizen's notification. It will enable the making of regulations allowing a member of the public to forward a citizen's notification (which could include a photograph) of suspected littering or bill posting activity which constitutes evidence of the matters in the notification.

Division 3—Miscellaneous

26—Liability of vehicle owners

This clause presumes an owner of a vehicle to have committed an offence if an activity is carried on in, at, from, or in connection with the use of the vehicle, resulting in an offence against section 18, 22 or 23 (a principal offence).

The clause provides further safeguards for owners and alleged principal offenders and evidentiary provisions to maximise a successful enforcement regime under the Act whilst ensuring that the risk of convicting the wrong person is avoided. Precedents for this clause are to be found in the Road Traffic Act 1961.

The clause does not apply if—

the principal offence is an offence against section 22 (disposing of litter); and

the vehicle from which the litter was disposed of is—

a taxi; or

a train, tram, bus, ferry, passenger ship, or other public transport vehicle that was being used for a public purpose at the time; and

the litter was disposed of by a passenger of the vehicle.

27—Defence of due diligence

This clause allows for a defence of taking all reasonable precautions and exercising due diligence to avoid the commission of an offence under section 18 (causing local nuisance) or 22 (disposing of litter).

The defence, as applied in relation to an offence committed in the course of undertaking a prescribed activity of environmental significance (to the extent referred to in section 5(5)), requires proof that the person—

had taken reasonable steps to prevent or avoid the circumstances that gave rise to the offence including by putting in place any systems or safeguards that might reasonably be expected to be in place; and

complied with the requirements of any notice under this Act that related to preventing or managing the circumstances that gave rise to the offence; and

as soon as becoming aware of the circumstances that gave rise to the offence—

reported those circumstances to the Minister or the relevant council; and

took all reasonable steps necessary to prevent or reduce those circumstances.

A person may, despite availing themselves of a defence under this clause, be considered to have contravened section 18 or 22 for the purposes of—

any proceedings under section 33 in respect of the contravention;

the issuing or enforcement of a nuisance abatement notice or litter abatement notice in respect of the contravention;

the making by a court of an order under section 45 in proceedings for an offence in respect of the contravention.

The clause does not apply in relation to a person who is charged with an offence under section 46.

28—Alternative finding

If, in proceedings for an offence against the Part, the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against the Part that carries a lower maximum penalty (determined according to relative maximum monetary penalties), the court may find the defendant guilty of the latter offence.

29—Notification to EPA of serious or material environmental harm

This clause requires a council that has reason to believe that an offence committed under section 18 or section 22 has, or may have, resulted in material environmental harm, or serious environmental harm, within the meaning of the Environment Protection Act 1993, to notify the Environment Protection Authority of that belief.

Part 5—Nuisance abatement notices and litter abatement notices

30—Nuisance and litter abatement notices

This clause provides for the issuing by the Minister or a council of nuisance abatement notices or litter abatement notices and is a mechanism for securing compliance with Part 4 of the Act. Such a notice enables the Minister or council to require a person to undertake a range of measures to achieve compliance. If urgent action is required, the person may be issued with an emergency notice which may, at least initially, bypass some of the procedural requirements of a written notice. The person may appeal against a notice to the ERD Court. Failure to comply with a notice is an offence attracting a maximum penalty of $60,000 for a body corporate and $30,000 for a natural person or an expiation fee of $500. It will also be an offence, attracting a maximum penalty of $25,000, to hinder or obstruct a person complying with a notice.

31—Action on non-compliance with notice

This clause provides the Minister or a council with the option of taking action required by a notice if the notice is not complied with by the person to whom it was issued. The action itself may be taken by an authorised officer or some other person authorised by the Minister or council. The clause further provides for cost recovery options available to the Minister or council as against the person in default, including debt recovery, interest, and having a charge imposed on land in favour of the Minister or council in accordance with a scheme prescribed by the regulations.

32—Appeals

This clause sets out procedures relating to an appeal to the ERD Court against a nuisance abatement notice or litter abatement notice.

Part 6—Civil remedies and penalties

33—Civil remedies

This clause provides that applications for orders of an injunctive nature may be made to the ERD Court. The Court may also make orders for damages (including exemplary damages). Subclauses (4) and (5) limit the Court's power to make awards of exemplary damages. The clause further provides for procedural matters around who has standing to make an application and the right to make an application in a representative capacity. The Court may make interim orders including orders made ex parte pending the final determination of a matter. Under subclause (18), if, on an application under the clause alleging a contravention of the Act, the Court is satisfied that the respondent has not contravened the Act and has suffered loss or damage as a result of the actions of the applicant, the Court may require the applicant to pay the respondent an amount in compensation.

34—Minister or council may recover civil penalty in respect of contravention

This clause provides for civil penalties. The Minister or a relevant council may, if satisfied that a person has contravened the Act, recover (by negotiation or in civil proceedings in the Environment, Resources and Development Court) an amount as a civil penalty in respect of the contravention instead of prosecuting the person for the relevant offence. Other features of the scheme are:

a civil penalty can only be pursued if the relevant offence does not require proof of intent or some other state of mind and the factors to be considered in deciding whether to use the provision or prosecute in the ordinary way, are the seriousness of the contravention, the previous record of the offender and any other relevant factors;

the notice must be served on the person (at least 21 days before any application to the court is made under the provision) advising the person that he or she may elect to be prosecuted in relation to the contravention, and if the person does so elect, civil proceedings cannot be commenced under the provision;

civil penalties negotiated by the Minister or council are capped at the maximum penalty specified under the Act for the relevant offence and the amount of any economic benefit acquired by the person or accruing to the person as a result of the contravention however the court can order, as a civil penalty in respect of a contravention, payment of an amount not exceeding the criminal penalty for the relevant offence and the amount of economic benefit as referred to above;

civil penalty proceedings are stayed if criminal proceedings are commenced in respect of the same contravention and can only be resumed if the person is not found to be guilty of the offence (note that the wording of subsection (1) would preclude the commencement of criminal proceedings in respect of the contravention if a civil penalty has already been recovered from the person in respect of the contravention, so this provision is only relevant where civil proceedings have not yet been finalised);

the time limit for bringing civil penalty proceedings is three years or, with the authorisation of the Attorney-General, up to 10 years;

the court can, in an application for a civil penalty, make an order for the payment of costs as the court thinks just and reasonable.

Part 7—Miscellaneous

35—Constitution of the Environment, Resources and Development Court

The Environment, Resources and Development Court is, when exercising jurisdiction under this Act, to be constituted in the same way as it is when exercising jurisdiction under the Environment Protection Act 1993.

36—Delegation by Minister

This clause sets out the powers of the Minister to delegate functions and powers conferred on the Minister under the Act.

37—Service of notices or other documents

This clause sets out a range of optional methods of effecting service where the Act requires or authorises a notice or other document to be given or served on a person. Companies may be served in accordance with the provisions of the Corporations Law.

38—Immunity

This clause relieves the Minister or an authorised officer or any other person engaged in the administration of this Act from personal liability for an honest act or omission in the performance, exercise or discharge, or purported performance, exercise or discharge, of a function, power or duty under the Act. Subject to subclause (3), a liability that would, but for subclause (1), lie against a person lies instead against the Crown. A liability that would, but for subclause (1), lie against an officer, employee, agent or contractor of a council lies instead against the council.

39—Protection from liability

A failure by the Minister or a council to perform a function under this Act, does not give rise to any civil liability.

40—Statutory declarations

If a person is required by or under this Act to provide information to the Minister or a council, the Minister or council may require that the information be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been so verified.

41—False or misleading information

This clause creates an offence of making a false or misleading statement in furnishing information or keeping a record under the Act. The offence attracts a maximum penalty of $50,000 for a body corporate and $20,000 for a natural person.

42—Confidentiality

This clause prevents a person from divulging any information gained in the administration of the Act relating to trade practices or financial matters except as authorised under the Act, by consent of the person from whom the information was obtained, for administration or enforcement purposes or for the purpose of legal proceedings arising out of the administration or the enforcement of the Act. The offence attracts a maximum penalty of $25,000.

43—Offences

This provides that proceedings for an offence under the Act may be commenced by—

the Director of Public Prosecutions;

the Minister;

an authorised officer;

a relevant council;

the chief executive officer of a relevant council;

a police officer;

a person acting on the written authority of the Minister.

44—Offences and Environment, Resources and Development Court

Offences constituted by the Act lie within the criminal jurisdiction of the Environment, Resources and Development Court.

45—Orders in respect of contraventions

Under this clause, a court may, incidental to criminal proceedings under the Act, order a person who, in contravening the Act, has caused injury to a person or loss or damage to property, to take specified action to make good any damage or prevent further damage and publicise their contravention of the Act and its consequences and any other orders made against the person and reimburse the Minister or council for costs incurred by it or to pay a person damages for injury, loss or damage suffered by any person as a result of the contravention. The court may also order the person to pay the Minister or council the value of any economic benefit acquired by the person as a result of the contravention. Any value of economic benefit paid to the Minister must be paid into the Environment Protection Fund.

46—Offences by bodies corporate

This clause is a standard clause operating across the statute book that attributes liability for offences committed by bodies corporate to directors of the body corporate or members of the governing body of the body corporate, subject to certain qualifications. This is so that directors and members cannot, in carrying on their activities as a body corporate, hide behind the corporate veil.

47—Continuing offences

This clause provides for continuing offences and allows a further penalty for each day on which the offence continues, of not more than one fifth of the maximum penalty applicable and, where a person has already been found guilty of an offence, allows for the conviction of the person for a further offence against the relevant provision and an additional penalty of not more than one fifth of the maximum applicable penalty for each further day on which the offence continues.

48—Recovery of administrative and technical costs associated with contraventions

Where the Minister or a council successfully prosecutes a person, the Minister or council may recover from the person costs and expenses incurred in relation to technical procedures undertaken for the purposes of the prosecution.

49—Assessment of reasonable costs and expenses

Where it is necessary to calculate the reasonable costs or expenses incurred by the Minister, a council or some other person or body, those costs and expenses are to be assessed by reference to the reasonable costs and expenses that would have been incurred in having the action taken by independent contractors engaged for that purpose.

50—Evidentiary provisions

This clause sets out a number of evidentiary provisions in relation to matters required to be proved by the Minister or a council in proceedings under the Act.

51—Regulations

This clause sets out the general regulation making powers under the Act.

Schedule 1—Meaning of local nuisance (section 17)

1—Things that are not local nuisance

This clause sets out, for the purposes of section 17, things that do not constitute local nuisance. They are:

noise or other nuisance from blasting operations carried out as part of a mining operation within the meaning of the Mines and Works Inspection Act 1920 or Mining Act 1971;

noise or other nuisance from any activity carried on in accordance with a program for environment protection and rehabilitation that is in force for mining operations under Part 10A of the Mining Act 1971;

noise or other nuisance from the keeping of animals in accordance with a development authorisation within the meaning of the Development Act 1993;

noise or other nuisance from any other activity carried on in accordance with an approval, consent, licence, permit, exemption or other authorisation or entitlement granted under any other Act (other than this Act);

noise or other nuisance from fireworks displays;

noise or other nuisance from sporting venues;

noise or other nuisance from community events run by or on behalf of a council (subject to any conditions imposed by the council);

noise or other nuisance from public infrastructure works;

noise or other nuisance from vehicles (other than vehicles operating within, or entering or leaving, business premises);

noise or other nuisance that may be the subject of proceedings under—

the Community Titles Act 1996; or

the Strata Titles Act 1988; or

the Residential Tenancies Act 1995;

an activity on, or noise emanating from, licensed premises within the meaning of the Liquor Licensing Act 1997 in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of that Act;

behaviour in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of the Liquor Licensing Act 1997;

noise principally consisting of unamplified music or voices, or both, resulting from an activity at domestic premises;

noise from activities carried on in the normal course of a school, kindergarten, child care centre or place of worship;

noise created by a dog barking or otherwise that may be the subject of an offence under section 45A(5) of the Dog and Cat Management Act 1995;

aircraft or railway noise;

noise caused by emergency vehicle sirens;

noise outside of the human audible range.

Schedule 2—Related amendments, repeal and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Local Government Act 1999

2—Repeal of section 235

This clause repeals section 235 (Deposit of rubbish etc) as this will now be dealt with under Part 4 of the measure.

3—Amendment of section 236—Abandonment of vehicles

This clause removes the term 'or farm implement' from section 236 as abandonment of farm implements will now be dealt with under Part 4 of the measure.

4—Repeal of section 240

This clause deletes bill posting provisions from the Local Government Act 1999 as it is now to be dealt with under Part 4 of the measure.

5—Amendment of section 254—Power to make orders

This clause deletes items 1 (Unsightly condition of land) and 3 (Animals that may cause a nuisance or hazard) as these matters will now be dealt with under Part 4 of the measure.

Part 3—Amendment of Motor Vehicles Act 1959

6—Amendment of section 139D—Confidentiality

This clause makes a consequential amendment to the Motor Vehicles Act 1959 in relation to accessing information relating to registered vehicles for the purposes of Part 4 of the measure.

Part 4—Amendment of Summary Offences Act 1953

7—Repeal of section 48

This clause deletes bill posting provisions from the Summary Offences Act 1953 as it is now to be dealt with under Part 4 of the measure.

Part 5—Transitional provisions

8—Continuation of by-laws under section 240 of the Local Government Act 1999 relating to bill-posting

This clause continues council by-laws dealing with bill posting, and section 240 of the Local Government Act 1999 which enables those by-laws to be made, until such time as the by-law is revoked or expires (whichever is sooner).

9—Continuation of orders made under section 254 of the Local Government Act 1999

This clause continues the operation of certain orders under section 254 and section 254 itself until the order is complied with or for such longer period as may allow the person or council to exercise any rights or powers in relation to the order under Chapter 12 Part 2 of the Local Government Act 1999.

Debate adjourned on motion of Hon. D.W. Ridgway.