City of Marion By-laws

The Hon. N.J. CENTOFANTI (17:51): I move:

That by-law No. 8 of the City of Marion concerning shopping trolley amenity, made under the Local Government Act 1999 on 23 June 2020 and laid on the table of this council on 21 July 2020, be disallowed.

The Legislative Review Committee put forward a motion to disallow this by-law in the chamber some time ago as a holding motion because the committee had a range of concerns with the by-law. The committee has been liaising with the Marion council on these concerns for some time. As Presiding Member, I would like to acknowledge the Marion council for their cooperation.

I would also like to acknowledge that the committee recognises that discarded or abandoned shopping trolleys represent a highly visible form of litter and have the potential to end up in waterways, be hazardous to people by obstructing roads or walkways and have a negative impact on the amenity of areas. It is also acknowledged that councils can be affected by clean-up costs associated with shopping trolleys.

However, the committee's primary concern related to one of its scrutiny principles, which is whether the law impinges on personal rights and liberties and more specifically whether it is fair that an owner of an object is held responsible by the council for the theft and improper disposal of their property. This is a by-law that is the first of its kind in South Australia and therefore warrants discussion and debate within this chamber. I would like to acknowledge the Hon. Connie Bonaros, who also has a notice of motion to disallow this by-law. It is also worth noting that the by-law came into operational effect on 1 February. Consequently, whilst it would have been a preference not to bring the by-law to a vote in this chamber in such a swift manner, it was required.

I would like to formally state that the government's position on this by-law is to support the disallowance motion. This is a by-law that seeks to penalise supermarkets if their trolleys are found abandoned in the council district. The by-law gives the council the power to impound abandoned trolleys and force retailers to pay a fee to release them. We the government argue that the owner of an object who has that object effectively stolen should not be penalised because the person who stole that object did not dispose of it properly.

Although not mandatory, the by-law also recommends shopping centres and supermarkets install a coin system or a wheel-lock system to prevent trolleys from leaving the premises as a defence. These systems all cost money, some considerable money, and again it puts responsibility on the retailer, not on those who steal and abandon the trolleys. I suspect some of these supermarkets would invest and are investing in these systems of their own accord. However, the defence of a supermarket should not be contingent on the purchase of these systems.

Whilst we do acknowledge that the by-law has the ability to penalise individuals for taking a trolley out of the precinct, the reality is that this would be extremely difficult to police. Therefore, the onus will likely fall on retailers and supermarkets. I think it is also important to acknowledge that abandoned trolleys are already considered litter, known as general litter, under the Local Nuisance and Litter Control Act 2016.

Therefore, if a person is found to be improperly disposing of a shopping trolley then there are already provisions in place for authorised officers to act on this. Under this act, expiation fees of $210 and penalties of up to $5,000 can apply. Authorised officers can also request that a litterer remove the litter and dispose of it correctly, and it is a further offence for failure to comply with this request.

In short, we are of the firm view that retailers such as Drakes and Foodland that are employing and creating jobs in our community should not be held responsible by the council for the theft and improper disposal of their property.

The Hon. C.M. SCRIVEN (17:56): I rise to speak briefly on behalf of the opposition on this motion. The City of Marion's by-law creates penalties for retailers with more than 30 shopping trolleys that fail to collect them within 72 hours of receiving a notice about a dumped trolley. We acknowledge the complexity of these issues. We have heard the concerns of many City of Marion residents regarding shopping trolleys being dumped on their streets and in our natural environment.

We understand this issue has been discussed in that community for four years now. Indeed, the member for Badcoe, whose electorate currently includes the Castle Plaza shopping precinct, has been actively representing the views of her electors on this matter and has been carefully examining the issue. We also acknowledge the concerns of retailers about the cost burdens of penalties or implementing measures to address the by-law and what that expenditure might mean for jobs.

The Legislative Review Committee has recommended the disallowance of these by-laws, resulting in the debate today. We will not oppose the committee's recommendation. However, we encourage all parties to resume conversations with a view to cooperatively reaching a balanced and long-lasting solution as quickly as possible, for the benefit of residents and businesses and also for our environment.

The Hon. F. PANGALLO (17:57): I rise to support the disallowance motion. The by-law by Marion council is taking a big stick to a victim of crime. They are making suppliers responsible for the irresponsible conduct of shoppers, and I expect that most of the offenders who take these trolleys from shopping centres are probably the most vulnerable people in our community. These are those who do not have cars and probably live within walking distance.

If you are going to apply Marion council's reasoning, then let's fine McDonald's, Hungry Jack's and KFC when their packaging gets chucked on roadways, in waterways and elsewhere. Are we going to go to that extent? Mayor Kris Hanna was on Leon Byner's program recently in a debate with me on the proposal. I want to quote from his reasoning for this by-law. He said that the suppliers, the owners, the supermarkets, 'have to play their part in terms of penalising the supplier rather than the individual who leaves them on the streets'. He said:

…there is a comparison already in the law where pubs are fined if they've got someone who's too drunk on the premises…

He goes on to say:

Sometimes rope in the supplier who's part of the problem as well as the individual…that's really what we're trying to do here because it's the only way to make it effective.

I cannot comprehend that type of analogy. What do you do, for instance, Mayor Hanna, when these people leave the pubs, get into their car, drive and kill someone? Who do you charge? Do you charge the pub owner for that?

I will read a letter from Mr Colin Shearing, the Chief Executive of the South Australian Independent Retailers sent to the Legislative Review Committee in September 2020, which states:

The proposed by-law seeks to penalise the owners of shopping trolleys because someone has stolen the trolleys and dumped them within the community.

If this by-law becomes law then it will be the first time in South Australian history that the owner of an object, who has it stolen is penalised because the thief did not dispose of it properly.

This concept is fundamentally flawed at law. How is it right that one person be fined for another person's illegal action?

The whole litter stream is made up of product (usually purchased product) that has been disposed of incorrectly—is the process now going to be that all the sellers of the product get fined because their customer littered? Of course, our trolleys are not purchased but are stolen.

Supermarkets do not want their trolleys stolen and already have in place systems to try and prevent theft. Owners provide shopping trolleys for customers convenience and are an important investment to their businesses.

Supermarkets also seek to be good corporate citizens and already have in place lost trolley reporting systems and collection systems.

There is a cost to the supermarkets with trolley theft and they are proactive in trying to prevent it.

If this by-law becomes law, then it sets a precedent for other by-laws to impact other sectors. For example, could owners of cars that are stolen and dumped be fined? Could political candidates whose signs are stolen and dumped be fined?

An honourable member: No.

The Hon. F. PANGALLO: Not if we get rid of the corflutes. Mr Shearing's letter goes on:

This by-law is bad in law as it makes one person responsible for another person's illegal action.

That is quoting Mr Colin Shearing the Chief Executive Officer of the South Australian Independent Retailers. As he points out, I have not heard of another jurisdiction that has this type of loony, over-the-top punishment for a service that is provided and is then abused by the user.

This unfairly punishes supermarkets and will only add to costs. The fines being proposed are totally disproportionate—ridiculous really—as much as each item is worth. They are, as has been pointed out by the Hon. Nicola Centofanti, expensive. They do not put them out there to have them stolen. The owners do not want them taken out of the shopping centre precincts. Who is going to police this by-law? How would they work in practicality? Will it lead to a spike in deliberate acts of taking these trolleys from shopping centres? Do we have to get to the situation where supermarkets have to appoint trolley cops?

It is just so unworkable: a thought bubble that burst almost from the moment it was created because little consideration was given to the impact on the suppliers and the owners. Being cynical, I think that in some quarters this is being viewed as another form of revenue raising by local government. I do not believe it is as big a problem as the mayor of Marion makes it out to be. I have been through the Marion area; I go through it quite regularly in my travels and I do see the occasional trolley that has been left outside, usually a block of units or whatever, within walking distance. I really have not seen actual figures on how many are dumped or that have to be picked up.

Would the mayor support fines being given to individuals the moment they step outside the shopping centre with these trolleys, much like car parking fines are incurred by people who overstay in shopping centres? I am pretty sure he would not want to see that. Over the years, I have seen in the media efforts to implement various types of technology to stop these trolleys. I have not actually seen it but I have seen them proposing trials but I would urge Marion and other councils to first engage and consult with the trolley owners, the supermarkets.

I urge shopping centre operations like Westfield to also rethink plans to charge for car parking at Tea Tree Plaza because it could inadvertently lead to an increase in this very problem we are discussing here today. If they are intending to introduce car parking fees, at least make it reasonable, particularly for the vulnerable in the community.

While we are on this, I want to also point out that thieving from supermarket shopping centres does not just apply to trolleys. I know that there is a problem with plastic bread and pastry trays belonging to big baking suppliers like Vili's that are being stolen by smaller bakeries and businesses. It is not known whether these smaller businesses, these small suburban bakeries which are taking these plastic trays, go through the process of daily sterilisation which has to occur, as Vili's do. They do that on a daily basis to their plastic trays. Will councils try to regulate this activity? No, they will not because they will say it is not their responsibility.

Mr Milisits employs one of his staff to seek out his stolen trays each week. They are worth $10 each and it costs him, conservatively, $100,000 a year to replace these items. He has to wear the costs, so you can imagine the costs on other bakeries as well. I would also like to see these supermarkets take some responsibility or a similar attitude in also protecting the property of their suppliers rather than just shrugging their shoulders and saying, 'It is too hard for us to see what is going on at the back of our supermarkets, particularly when it comes to these plastic baking trays.'

Perhaps councils could also take an interest in this problem from a health and hygiene perspective. They do not do that. We know that councils can be and are quite diligent—and it is a good thing—in inspecting premises and other places that deal in food with their health and hygiene requirements, and this is an important area. Food is actually placed on these trays on a daily basis. As I pointed out, businesses like Vili's, when they collect their trays, need to take them back to their factories and then put them through a process of cleansing, and we are not sure whether this happens by others. That is certainly an area they can look at. In closing, I would like to say that we will support the disallowance.

The Hon. M.C. PARNELL (18:08): I am conscious that it is after 6 o'clock but I do want to put a few things on the record because we have only heard one side of this debate. What I would say at the outset is that, regardless of the outcome of this motion today, the problem is not going away. It is a problem that exists not just in Adelaide but all over Australia and in other places in the world. If honourable members do not think this is the solution, then they do need to put their minds to what is.

I want to give members a little bit of background and history. According to an ABC Radio National broadcast back in 2014, the origin of the modern supermarket shopping trolley goes back to 1937. It was the idea of an American supermarket owner, Sylvan Goldman, who dreamt it up as a way of encouraging shoppers to buy more items in his Humpty Dumpty chain of stores in Oklahoma.

The frame was inspired by a folding chair and held two wire shopping baskets, one above the other, doubling the quantity of goods that could be carried. Apparently, they were very unpopular at first; they reminded women of prams and men considered them effeminate. To counteract this, Goldman hired male and female models who spent their days pushing trolleys around his stores. That eventually led to their global acceptance.

Further developments added over the years included the telescopic cart, with the hinged rear panel that enables more compact stacking, that was patented in 1949 and which is still used today. Then in 1954 we had the fold-down toddler seat—we still have those—and more recently the coffee cup and mobile phone holder. The presenter of Radio National's very popular By Design series, Colin Bisset, said:

While the wonky-wheeled trolley has long been a visual gag in film, the abandoned trolley is more often a symbol of urban waste, and many are dumped by roadsides or in waterways. More than one million trolleys are manufactured each year, adding to the millions already in circulation. Most supermarkets now make considerable efforts to retain their property, adding coin-deposit mechanisms to ensure their return in areas of high theft as well as wheels that lock when a trolley is pushed over a magnetic strip set at a mall entrance.

So the idea of supermarkets taking measures to prevent the misuse of their trolleys is not new. According to Wikipedia, coin deposits are almost ubiquitous in continental Europe and the UK. They were very common in Australia decades ago, but my guess is that once one major chain abandoned the idea, their competitors followed suit. Now we are back to square one, with trolley dumping a major problem in certain neighbourhoods.

As fewer people carry coins, coin deposits might not be the answer, but there are plenty of other technologies available to help ensure trolleys are used only where they are supposed to be used. These include reusable tokens that are issued by supermarkets up to high-tech solutions such as geo-fencing and automatic wheel locking.

South Australia is not alone; other jurisdictions are tackling this problem as well, including through legislative interventions. I note the Hon. Frank Pangallo made an offhand comment, 'Who else would do something like this?' Well, I will tell you: the Western Australian Local Government Association has advised their councils that they should adopt and modify the Activities in Thoroughfares and Public Places Local Law. That provides that local government can have the authority to infringe retailers for failing to collect illegally dumped shopping trolleys within a defined notice period. In other words, exactly what the City of Marion is asking to be able to do. In New South Wales, Local Government NSW President Linda Scott said:

Councils are virtually powerless because they can only fine customers who are caught abandoning trolleys in public places, which is impractical and almost impossible to enforce.

The New South Wales government is now considering giving councils stronger powers. This could include the power to fine retailers that fail to collect abandoned or impounded trolleys. I will not go through every jurisdiction, other than to say that this is not a problem unique to the Marion local government area in Adelaide's southern suburbs. It is a national problem.

If people want to find out more about the range of technical and social responses to the misuse of shopping trolleys, there is an excellent article published in The Conversation on 9 January last year by Johan Barthelemy, a Research Fellow at the SMART Infrastructure Facility at the University of Wollongong. His article is entitled, 'The war on abandoned trolleys can be won. Here's how.'

I know that for a number of members there is something uncomfortable about supporting a law that, at face value, looks to be penalising retailers for the misbehaviour of their customers. Supermarkets and other big retailers have signs advising customers not remove trolleys from the car park; in fact, my local supermarket does not allow trolleys to be taken even past the checkout. Instead they employ a team of mostly junior staff to carry bags out to customers' cars using different trolleys to those used in store. This creates additional employment, less wear and tear on the trolleys, and results in zero misappropriation.

Most supermarkets rely just on signs, and clearly the signs do not work for some customers. So who are these people? It would be very easy to categorise them as lazy, antisocial and dishonest. It is always difficult to categorise a cohort of people we do not necessarily know much about, but one thing I suspect they mostly have in common is that they are poor. Not everyone has a car, and for those who travel to the shops on foot not everyone is strong enough to carry home all of their shopping.

Of course, it would be easy for us to say, 'Well, they could just buy their own shopping trolley,' or, 'They could organise home delivery,' but the reality is that for some in our community their lives are chaotic and disorganised and things that are logical and relatively easy for most of us are beyond their capacity. One social worker I spoke to said that some of her clients, who were regular trolley pinchers, would probably get taxis to and from the shops, which they clearly cannot afford to do, so it is indeed a wicked dilemma.

I do not think that blaming the customers solely is necessarily the right way or the only way to look at this problem. Under the council's by-law, big retailers are not being penalised because their customers disregarded the rules and removed a shopping trolley from the premises, they are being penalised if, having been notified of the location of the abandoned trolley, they fail to remove it or to retrieve it within three days. That is a very different matter.

The big supermarkets will emphasise that the trolleys are a convenience for their customers. That is correct to a certain extent, but the trolleys are also good for the supermarkets. They allow us to buy more than we can carry; they are good for business. That is why they were invented, which is why I went back to the origins of the shopping trolley.

Clearly, the supermarkets have already built the cost of the trolleys into their cost of doing business. They take responsibility for repair, maintenance and replacement, so why should they not take some responsibility for collection, both on and off premises. The alternative is that the community at large, through council rates, pays for the retrieval of abandoned trolleys from roadsides, parks and waterways. How is it fairer that local councils pay, rather than the businesses that benefit from the trolleys?

I know it is easy to get stuck into the big supermarkets. A former colleague of ours, the Hon. Nick Xenophon, used to make an art form of getting stuck into the duopoly—the two big supermarkets, which between them had 80 per cent of the grocery trade. His view was that they did not need any help from us to further entrench their commercial power. I note that the honourable member's successors are now championing the cause of Coles, Woolworths and the big retailers. How times change!

But the supermarkets can hardly cry poor, they are doing pretty well. They have been some of the most profitable businesses in the country during COVID. This means, I believe, that they can well afford to share in some of the costs associated with the misuse of their equipment. The by-law will apply to all big retailers with more than 30 shopping trolleys, so in terms of competition between the retailers they will be similarity affected. The big players will not be disadvantaged amongst themselves.

According to the Mayor of Marion, Kris Hanna, this by-law has been borne out of frustration with the supermarkets not taking their responsibility seriously, despite 2½ years of discussion. It is all very well and good for members here to say, 'Marion council should talk more with the supermarkets.' How much more can they do? Unless something happens, such as the passing of a by-law, the supermarkets have it all their own way. They are saying, 'Nothing to do with us, not our responsibility.'

I think the mayor has said that the aim of the by-law was to prompt more retailers to adopt containment systems: that is the object of the exercise. He notes that those retailers who have such systems have vastly lower dumping rates than other retailers.

At the end of the day the Greens will side with the local community, which is frustrated at the inaction of the big supermarkets and other retail chains in developing an appropriate containment policy for their trolleys. We would allow these by-laws to stand in order to give local councils some bargaining strength in forcing the big supermarkets and other big retailers to take this issue seriously. If these by-laws are disallowed, then it lets the retailers off the hook, but it will not be the end of the matter. What we might see is other councils trying different measures.

I know the Hon. Frank Pangallo mentioned this in passing, but if there was a substantial impoundment fee for every trolley that was abandoned in a public place and collected by the local council, then I suspect the big retailers would be racing around the suburbs picking up their trolleys before the council did to avoid the impoundment fee. Ultimately, though, I think it would make more sense for everyone if we had better containment systems and avoided the problem in the first place.

Whilst the Greens appreciate the legitimate concerns of those who are pushing this motion, we will not be supporting the disallowance of these council by-laws. We think the greater good is served by putting more pressure on the retailers rather than letting them off the hook entirely.

The Hon. N.J. CENTOFANTI (18:19): I would like to thank the honourable members for their contributions: the Hon. Clare Scriven, the Hon. Frank Pangallo and the Hon. Mark Parnell. With that, I commend the motion to the council.

Motion carried.