Local Nuisance and Litter Control (Miscellaneous) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:55): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

The Local Nuisance and Litter Control Actpassed Parliament in 2016 and commenced in full on 1 July 2017. The Act modernised nuisance and litter laws in South Australia and removed confusion within the community about state and local government roles and responsibilities regarding local nuisance and littering issues. It determined that the local council is the principal authority for these matters.

Following a full year of operation, a review of the legislation commenced. On behalf of the South Australian Government, the Environment Protection Authority identified opportunities to improve the legislation and to ensure the legislation allowed councils to deliver on its objectives. A discussion paper, completed in liaison with the Local Government Association, was released in July 2019 for a three-month consultation period. A total of 47 submissions were received.

Following the consideration of all submissions, a consultation report was published on the Environment Protection Authority website in February 2021, and included several recommendations to improve the legislation. Key recommendations included:

The need to clearly delineate that the regulation of nuisance under the Liquor Licensing Act 1997 on licensed premises is limited to nuisances associated with the service of alcohol, including patron and entertainment noise, and that all other nuisances from these premises, such as noisy air conditioners, are regulated by the Local Nuisance and Litter Control Act;

Ensure that the Act applies to the construction stage of developments approved under the Planning, Development and Infrastructure Act 2016;

Include light as an agent of local nuisance;

Add shopping trolleys to the definition of 'general litter' and provide councils with further powers to reduce excessive trolley abandonment, whether through improvements to litter abatement notices or by other means; and

Clarify the application of the Act to tenanted properties.

Between October 2022 and February 2023, a draft amendment Bill and two sets of draft regulations that would implement the recommended reforms were released, with an explanatory report, for a four-month consultation. The consultation program was extensive and included a public meeting, with previously engaged stakeholders directly invited to attend, and a meeting with local government representatives hosted by the Local Government Association. Consultation was advertised in The Advertiser, the EPA website, on EPA social media and through coverage on talkback radio. There was also coverage in community newspapers. All Parliamentarians were provided with consultation materials directly. Following the consultation program, a total of 38 submissions were received.

Consideration of the submissions is now complete and the responses to the submissions made during the consultation on the draft amendment Bill and draft regulations have been compiled into a report that is listed on the EPA website. Only minor changes to the amendment Bill resulted from the consultation process.

The Environment Protection Authority worked closely with the Local Government Association throughout the review to ensure the needs and views of councils were heard given their primary role in its administration. A Local Government Association working group was engaged throughout the process and reviewed the consultation report including the recommendations for minor changes to the Bill prior to it being published. The CEO of the Local Government Association, Clinton Jury, publicly commended the engagement of the South Australian Government with local government during the review of the legislation and the development of the proposed reforms.

The amendment Bill includes reforms across numerous aspects of the Act. These include:

more efficient processes for the assessment and issuing of exemptions;

increased expiation fees to improve deterrence;

the inclusion of an offence to install an air conditioner or a light in a place where it causes local nuisance;

the addition of a general duty for business owners to prevent or minimise litter resulting from their business, including from stormwater management systems;

improved cost recovery mechanisms for local government;

improved delineation of responsibility between councils and the Liquor and Gambling Commissioner for the regulation of different types of nuisance occurring on premises licensed under the Liquor Licensing Act 1997; and

provisions to improve the management and collection of abandoned shopping trolleys.

The inclusion of light as an agent of local nuisance and ensuring the application of the Act to the construction stage of developments and to tenanted properties will be implemented by regulation.

The amendment Bill will provide for the streamlining of the exemption application process under the Act by building in greater flexibility such as:

allowing councils to waive the need for an applicant to submit a site nuisance management plan, which is currently mandated, where the nuisance is of a limited nature or unavoidable;

allowing councils to determine an appropriate length of an exemption; and

allowing councils to extend an exemption without the need for a further application.

Differing expiation amounts for body corporates and individuals are proposed to achieve greater deterrence for businesses that may otherwise absorb expiation fees into the cost of doing business. This reform was proposed by the Small Business Commissioner.

The Bill also includes the ability to register nuisance abatement notices to land so that issues with nuisance causing equipment, such as air conditioners, are linked to a premises and can be managed regardless of changes to the ownership of the premises.

A new offence is proposed for the installation of an air conditioner or light source in a location where it causes local nuisance, to ensure that installers give due consideration to siting of equipment. Often local nuisance associated with these devices is a result of poor location and there is a cost to the owner to relocate the equipment that could be avoided if due consideration was given at the time of installation. Implementation of this reform will include communication with trade associations and it is expected that word of mouth will also help with educating installers.

The amendment Bill introduces a general duty for businesses to prevent litter caused by or related to their business, including obligations upon relevant businesses to maintain existing stormwater management systems so that these systems remain functional. Currently, the installation of stormwater management systems, such as gross pollutant traps and oil plate separators, is often a requirement of development approvals, however, there is no obligation upon businesses to maintain them. As a result, liquid pollutants and litter from these businesses often bypass these systems and pollute the environment a short time after the development is operational.

Greater clarity will be provided for councils on the clean-up and disposal of illegally dumped items providing the power for immediate clean up where there is an environmental, health or physical hazard created.

Currently, there is confusion among council staff as to the extent that councils are required to seek out the owner of items that have clearly been illegally dumped prior to the council disposing of the dumped items. The reforms will also clarify the relationship between the Unclaimed Goods Act 1987 and illegally dumped items collected by a council. This Bill proposes a sensible approach to disposal of dumped items.

Consequential amendments are also proposed to the Liquor Licensing Act 1997 to provide greater delineation between nuisance matters covered by each Act, limiting the Liquor Licensing Act 1997 to noise from patrons and entertainment. This amendment has been sought by councils and the Liquor and Gambling Commissioner.

The dumping of shopping trolleys is a considerable issue for a number of councils and this amendment Bill proposes a number of provisions intended to reduce the prevalence of abandoned shopping trolleys in our communities. The main concerns of councils is that dumped shopping trolleys may block footpaths, create a traffic hazard, end up in waterways and have a negative impact on visual amenity. These reforms are the most substantive of those within the amendment Bill and I will take some time in outlining the case for their inclusion.

In 2018, the City of Marion reported collecting more than 230 shopping trolleys around the Westfield Marion and Castle Plaza shopping centres over a four-day period. In Port Augusta, again in 2018, the local council in association with major retailers in the town, employed divers to survey an accumulation of shopping trolleys that had been dumped at the town wharf over a number of years making it unsafe for swimming in the area. More than 500 trolleys were discovered and then later removed at a cost of $15,000.

There is significant interest from councils in South Australia to improve the tools they have to reduce the dumping of shopping trolleys in their respective areas. The City of Marion developed a by-law on shopping trolleys that was disallowed shortly after it commenced in the Legislative Council, on the recommendation of the Legislative Review Committee in February 2021. The key issue that the disallowance was based on was that the by-law allowed fines to be issued to a retailer when their trolley was dumped by someone else. Importantly, contributions to the debate indicated a general willingness to contribute to, and support, balanced solutions that might assist councils with addressing this problem in their communities.

The Malinauskas Government has listened to the concerns of local government and considered the views of retailers and is proposing reforms that are balanced and do not penalise retailers for the actions of their customers. The reforms seek to establish a cooperative approach between local government and retailers to reduce the abandonment of shopping trolleys in communities; and where they are abandoned, hasten their return.

A number of councils have held back from developing their own by-laws in the hope that the South Australian Government, and the Parliament, will deliver sensible reforms on this issue. It should be expected that if these reforms are not passed in some form that individual councils will embark on disparate by-law making journeys creating a patchwork of different requirements across the state, which would be a poor outcome. It is incumbent upon us to find a balanced solution for the community.

South Australia is not unique in experiencing issues with shopping trolley abandonment. All other states and territories across the nation experience this issue and most have laws in place to assist. In Victoria, Western Australia and Queensland, local laws, similar to South Australian by-laws, are used to regulate abandoned shopping trolleys. Local laws in these jurisdictions include:

offences for a retailer to allow shopping trolleys outside of designated precincts unless they have a trolley containment system in place such as a coin lock or geo-fencing;

powers to impound shopping trolleys and charge a fee to retailers for their release; and

an offence for failing to recover an abandoned shopping trolley within 24 hours of being notified.

The Australian Capital Territory (ACT) has a scheme in place to manage shopping trolleys dumped in the community. It should be noted however that the ACT Government provides all local government services as there are no councils in the ACT.

In any other state or territory, the programs established to manage shopping trolleys in the ACT would be administered by local government. The ACT scheme includes:

offences for the removal of trolleys from shopping centres;

requirements for signage;

requirements for the identification on shopping trolleys;

requirements that retailers keep shopping trolleys on their premises with an exemption from this requirement where a trolley containment system is in place such as a coin lock or geofencing; and

the impoundment of abandoned shopping trolleys with payment of a fee for their release.

In New South Wales the Public Spaces (Unattended Property) Act 2021:

contains an offence for the abandonment of shopping trolleys;

allows councils to impound shopping trolleys found in public places with a fee to be paid by retailers for their release; and

councils may require shopping trolleys to be collected by retailers within a period of no less than 14 days and failure to do so is an offence.

Local Government New South Wales estimates that, prior to laws being introduced in late 2021, the collection of abandoned shopping trolleys was costing councils $17 million per year. This cost is passed on to ratepayers via increased rates or reduced services in other areas. Whilst this number is likely to be considerably lower in South Australia for some of the larger metropolitan councils, there is a considerable cost to those councils that is passed onto ratepayers in the same way.

The amendment Bill that is before us provides consistent obligations regarding the identification and collection of shopping trolleys. It also aims to provide councils with sensible tools that can only be applied to retailers on a case-by-case basis where there is an issue, as opposed to a blanket requirement for all retailers.

The provisions will enable councils to work with retailers in problematic areas to reduce the issue through improved management practices rather than provide a direct punitive approach whereby retailers are fined for the actions of their customers, which was the key reason for the disallowance of the City of Marion by-law in the Legislative Council.

The Environment Protection Authority engaged with major retailers during consultation on the draft Bill including Foodland, Woolworths, Coles and the National Retailers Association. Only Coles provided a written submission, which indicates the proposed laws have likely found a reasonable middle ground for the regulation of this issue.

Following consultation with the Small Business Commissioner, a threshold of 20 shopping trolleys has been added to the Bill. This will mean that councils will not be able to require the development of a management plan from smaller retailers.

The provision of shopping trolleys as a service is done so voluntarily by retailers in support of their business and customers and there is rarely advice provided to customers regarding limits to removing trolleys from stores or the shopping precinct.

Retailers generally do not prevent shopping trolleys from leaving the premises and the service is provided for the purpose of transporting purchased goods away from the retailer so a comparison between trolley abandonment and theft is misguided. Some people probably do steal shopping trolleys and keep them but abandonment of a trolley is not the same. The provision of a shopping trolley service by retailers should be done in a way that minimises the potential for abandonment and, where abandonment takes place, facilitates the prompt collection of trolleys to reduce the impacts of the service on neighbouring communities.

The majority of amendments proposed in the Bill will provide clarity on the application of the Act to shopping trolleys rather than create new powers. Specifically, whereas shopping trolleys fall within the current definition of general litter under the Act, the Bill will add shopping trolleys specifically under the definition to avoid doubt. Additionally, the litter abatement notice provisions of the legislation, which may already be applied to retailers regarding shopping trolley abandonment, include better guidance on how they can be applied to trolleys.

New provisions are proposed that require the identification of shopping trolleys and their timely collection once retailers are notified. Many retailers, including the major retailers already meet the identification requirement with current branding of their trolleys. For those that don't, this can be achieved by updating the branding element in the handle of each shopping trolley. Alternatively, this obligation could be achieved by a simple weatherproof sticker on each trolley. Contact details can be for the company rather than individual stores which will further reduce costs. This is expected to be a minimal cost to business. Such cost would be recouped by the business if it resulted in one or more shopping trolleys not needing to be replaced due to loss. Trolleys, depending on their style, cost between $200 and $500 each, so there is benefit to retailers, through reduced replacement costs, in reducing the incidence of abandonment.

The Local Nuisance and Litter Control Act is ultimately an act for local government. It is important that the South Australian Government and the Parliament listen to their views on the administration of state laws that they are responsible for and provide modern legislation that supports them to undertake their statutory functions in an efficient and effective manner and continue to provide valued services to their communities.

These reforms address the needs identified by the community and local government through a rigorous consultation process and I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Local Nuisance and Litter Control Act 2016

3—Amendment of section 3—Interpretation

This clause inserts definitions of business premises, shopping centre and stormwater management system into section 3 of the Act. In addition, a number of definitions are moved from section 22 to section 3 to make it clear that they apply for the purposes of the whole Act.

4—Amendment of section 5—Interaction with other Acts

Section 5 is amended by this clause to make it clear that the Act applies in relation to—

the use of a vehicle for the purposes of, or in connection with, the conduct of a waste transport business (category A) and a waste transport business (category B) (subject to certain exceptions set out in the provision); and

the use of a road or road related area by a vehicle for the purposes of, or in connection with, dredging or earthworks drainage, as authorised by an environmental authorisation under the Environment Protection Act 1993.

5—Amendment of section 18—Causing local nuisance

This clause substitutes new expiation fees for the offence of carrying on an activity that results in local nuisance. In addition, wherever a penalty provision refers to a 'natural person' , the reference is changed to 'individual' for consistency with the Legislation Interpretation Act 2021.

6—Amendment of section 19—Exemptions from application of section 18

Section 19 authorises a council to declare that a person is exempt from the application of section 18 in respect of a specified activity. A person applying for a declaration is required to provide the council with a site nuisance management plan. Under the section as amended by this clause, a council will be able to waive this requirement if satisfied that the adverse effects from the specified activity on the amenity value of the area concerned are not reasonably able to be avoided and are of a limited nature.

If a site nuisance management plan is required, the section as amended will only require the council to be satisfied, before making a declaration, that the applicant's plan adequately sets out the measures that the person will take to prevent, minimise or address any anticipated adverse effects from the specified activity on the amenity value of the area concerned. This removes the requirement that the council be satisfied there are exceptional circumstances before making a declaration.

Further amendments made by this clause authorise a council to extend the period for which a declaration under the section operates.

7—Insertion of section 19A

This clause inserts a new section.

19A—Installation of designated device that results in local nuisance

Under proposed section 19A, it is an offence for a person to install an air conditioning unit or an external light, or to cause such a device to be installed, on premises in a fixed position where the operation of the device results in local nuisance.

8—Amendment of section 20—Person must cease local nuisance if asked

Under section 20 as amended by this clause, the expiation fee payable by a body corporate will be higher than the fee that applies to an individual. The section currently includes one fee that applies to both bodies corporate and individuals.

9—Insertion of section 21A

This clause inserts a new section.

21A—General duty to prevent or minimise litter—person carrying on business

Proposed section 21A requires a person who carries on a business to take all reasonable and practicable measures to prevent or minimise litter that is caused by, or related to, the carrying on of the business. Failure to comply with this duty is not an offence. However—

compliance with the duty may be enforced by the issuing of a litter abatement notice; and

failure to comply with the duty will be taken to be a contravention of the Act for the purposes of section 48 (Recovery of administrative and technical costs associated with contraventions).

10—Amendment of section 22—Disposing of litter

This clause substitutes new expiation fees in section 22. In addition, wherever a penalty provision refers to a 'natural person' , the reference is changed to 'individual' for consistency with the Legislation Interpretation Act 2021. Definitions that have been moved to section 3 are deleted from section 22.

11—Insertion of section 22A

This clause inserts a new section.

22A—Recovery of costs of urgent clean up of litter from public place

Proposed section 22A provides that a council that takes urgent action to clean up litter from a public place in circumstances where the litter is a hazard and the identity of the person who disposed of the litter is unknown may, if the litterer is later identified, require the person to pay the reasonable costs and expenses incurred by the council.

12—Amendment of section 23—Bill posting

It is an offence under section 23 for a person to post a bill on property without the consent of the owner or occupier of the property. This clause inserts an expiation fee into section 23(2) and updates a reference to 'natural person' to 'individual' for consistency with the Legislation Interpretation Act 2021. In addition, a definition of property is inserted to clarify that the term includes, in the case of a vehicle (other than a vessel), the land on which the vehicle is located.

13—Amendment of section 24—Litterer must remove litter if asked

This clause substitutes a new expiation fee so that a higher fee applies where the offence of failing to remove litter on request of an authorised officer is committed by a body corporate.

14—Insertion of sections 24A and 24B

This clause inserts two new sections.

24A—Identification of shopping trolleys

Proposed section 24A requires a person who provides shopping trolleys for the use of customers in the course of a business carried on by the person to ensure that the shopping trolleys are marked with, or have securely attached to them, the following information:

the trading name of the business carried on by the person;

a contact telephone number, email address or QR code that may be used for the reporting of trolleys left in a place outside the business premises of the business;

any other information prescribed by regulation.

24B—Collection of shopping trolleys

Proposed section 24B applies to a person who provides shopping trolleys for the use of customers in the course of a business carried on by the person. If the person is notified by the Minister or a council, or they otherwise become aware, that a trolley they have provided is located at a place outside the business premises in circumstances where the trolley is, or may cause, a hazard, they are required to ensure that the trolley is immediately collected following that notification or after the person otherwise becoming aware. It is also an offence if the person is notified or otherwise becomes aware that a trolley they have provided has been left at a place outside their business premises (where there is no hazard) and it is not collected within 3 days of that notification or becoming aware of the location of the trolley.

15—Amendment of section 30—Nuisance and litter abatement notices

Section 30(2) sets out the requirements that may be imposed under a nuisance abatement notice or litter abatement notice. A litter abatement notice may impose a requirement that a person prepare a plan of action for the purposes of preventing the escape of litter or keeping a specified area around business premises free from litter. The section as amended by this clause will provide—

that a specified area must not exceed 1 km in the case of shopping trolleys or 100 metres in the case of any other litter; and

that a plan of action may require a person to address the management of shopping trolleys in relation to business premises.

Section 30 as amended will also specify matters that may be required to be included in a plan of action. For example, if a business provides more than 20 shopping trolleys at its business premises, there may be a requirement for the plan of action to include certain requirements in relation to management of the trolleys. These requirements are referred to as the shopping trolley management requirements.

16—Insertion of section 30A

This clause inserts a new section.

30A—Registration of nuisance abatement notice in relation to land

Proposed section 30A applies where a nuisance abatement notice has been issued in relation to an activity carried out on land or requiring a person to take action on or in relation to land. Under the proposed section, the authority that issued the notice may apply to the Registrar-General for registration of the notice in relation to the land. A notice registered under the section is binding on each owner and occupier from time to time of the land.

17—Amendment of section 31—Action on non-compliance with notice

Section 31 sets out action that can be taken if the requirements of a nuisance abatement notice or litter abatement notice are not complied with. The section as amended by this clause will provide that if litter or a substance, material or thing is removed from premises in taking action under this section, the Minister or the council may sell or dispose of it as the Minister or council thinks appropriate. The section as amended will also specify how proceeds of any sale of litter, a substance, material or a thing are to be applied.

18—Amendment of Schedule 1—Meaning of local nuisance (section 17)

This clause makes some adjustments to the interpretation provision of Schedule 1. These adjustments are consequential on the movement of some definitions to section 3 of the Act.

This clause also deletes clause 4(f), relating to the installation of fixed machines on domestic premises. This provision is no longer required in Schedule 1 because of the insertion of section 19A (see clause 7).

Part 3 of the Schedule is also amended by this clause so that noise or behaviour in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of the Liquor Licensing Act 1997 will not constitute local nuisance for the purposes of section 17 of the Local Nuisance and Litter Control Act 2016.

Schedule 1—Related amendments

Part 1—Amendment of Liquor Licensing Act 1997

1—Amendment of section 106—Complaint about noise etc emanating from licensed premises

This clause amends section 106 of the Liquor Licensing Act 1997 so that the section applies to noise or behaviour emanating from persons at licensed premises, or behaviour of persons making their way to or from licensed premises, but no longer applies to other activities on licensed premises that are not directly related to the licence. This is related to the amendment made to Part 3 of Schedule 1 of the Local Nuisance and Litter Control Act 2016 by clause 18, the effect of which is that noise or behaviour in respect of which a complaint may be lodged with the Liquor Licensing Commissioner under section 106 of the Liquor Licensing Act 1997 does not constitute local nuisance for the purposes of section 17 of the Local Nuisance and Litter Control Act 2016.

Debate adjourned on motion of Hon. L.A. Henderson.