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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-03 Daily Xml
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LOCAL GOVERNMENT (ADVERTISING MATERIAL) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 November 2007. Page 1831.)

The Hon. J.M. RANKINE (Wright—Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Volunteers, Minister for Consumer Affairs, Minister Assisting in Early Childhood Development) (11:11): I rise to respond, on behalf of the government, to the member for Mitchell's private member's bill seeking to amend the Local Government Act 1999 to prohibit the distribution of advertising material except in specified circumstances.

At the outset, I point out that the Local Government Association was not consulted during the preparation of the member for Mitchell's bill and, having had its attention drawn to the bill, the Local Government Association, I understand, is firmly opposed to it. I will let their correspondence to the member for Mitchell speak for itself. I think they have very clearly articulated their position.

From the government's perspective, I consider that there are six main policy objections to his bill. First, the member for Mitchell has prepared no data about the extent of the mischief towards which the bill is directed. The member has not produced any research on how many householders actually use 'No junk mail' signs, or indicated the extent to which these signs may be effective. The member has advised that the bill has arisen directly from representations he has received from constituents.

It may be that these constituents have 'No junk mail' notices on their letterboxes which may not be totally effective in excluding all leaflets, but I would point out that one person's junk mail is another person's important information. Nor has the member for Mitchell advised the parliament of any contact he has had with the sector of the direct advertising industry.

The bill does not define advertising material, other than to give examples of what is included within the term. There is arguably no consistent community opinion about what constitutes 'junk mail'. It is far from agreed that advertising material and junk mail should be considered as interchangeable items. No trader with a special offer on goods or services thinks his or her advertising is 'junk'. A child who has lost a pet might distribute copies of a lost notice in the neighbourhood. This might be considered by some residents to be advertising material and, hence, reportable.

Neighbourhood Watch newsletters, or a community notice paper, might be funded partially by advertisements within the notice. If so, that would be sufficient to fit within the ambit of advertising material, unless the publication was prescribed in regulations. On the other hand, the bill proposes to exempt all advertising material of a political, religious or charitable nature from the definition. Many of those who object to junk mail might object to such exemptions as well. They might even object to getting a newsletter from the member for Mitchell.

Thirdly, although unwanted advertising leaflets can be annoying or irritating to some recipients, the government is not convinced that creating a new criminal offence would be an appropriate or proportionate response to such an annoyance. There is already an offence of depositing rubbish, which covers leaflets on a public road, including a footpath or any public place. However, private letterboxes are a different matter altogether. Letterboxes exist to receive correspondence. Many traders using direct mail advertising are paying Australian Post to deliver their leaflets. The member for Mitchell might not wish to have Australian Post workers prosecuted for delivering junk mail, but there is no reason in principle to distinguish between advertising material distributed by a postman and advertising material delivered into the same letterbox by other means.

Many people welcome advertising material and use it to search for bargains; others may discard or recycle most of the advertising material they receive, regarding it only as a minor inconvenience. However, these same people might still take an interest in an occasional item and so, not wishing to avoid the entire range of advertising material, they do not display 'no junk mail' notices. The bill would have no relevance to either of these groups of people. The bill would be relevant only to those people who would choose, if they could, to receive no advertising material at all. The bill would criminalise the delivery of advertising material to these people alone.

Most criminal offences have been made so that the behaviour they prohibit (assault, stealing, etc.) is deemed unacceptable or unsafe—something worse than a mere nuisance. Behaviour that amounts to annoyance or inconvenience to a section of the population is either generally tolerated or else is influenced or controlled by other less drastic measures, such as education, cooperation, incentives and information campaigns.

Fourthly, there is no clear reason to burden local government—in fact, ratepayers—with responsibility for private letterboxes. The bill proposes to amend the Local Government Act by inserting two new sections. The bill would not prevent police from acting to enforce its provisions, but it is clear that the member for Mitchell regards restricting the distribution of advertising material as a matter that prima facie should be within local government's sphere of responsibilities.

The member for Mitchell appears to be unaware of the provisions of the State Local Government Relations Agreement, under which the two spheres of government have agreed to foster more consistent approaches to the framing of policies and legislation that affect the other party. As I have said, clearly there was no consultation with local government about this issue. Policing the content of private letterboxes has not historically been regarded as one of the responsibilities of local government.

Enforcement of these provisions would be likely to be time consuming and problematic for local government for reasons that I will come to, but it is plainly foreseeable that most local government would give a very low priority to enforcing these proposed offences, having more pressing concerns for the use of its ratepayers' dollars. The bill grants special status to newspapers that are prescribed by regulations. If a newspaper were to be so prescribed it could then be delivered without reproach even to houses with 'no junk mail' signs on a letterbox. However, a newspaper that was not prescribed by regulations would be required to be inserted into a receptacle, and only a receptacle that was not marked 'no junk mail'.

If The Advertiser, Sunday Mail, Messenger newspaper or any local newspaper were not able to obtain the status of 'prescribed newspaper', then those delivering it would not be able to throw it onto the driveway or front yard but would have to search for a letterbox and examine the letterbox carefully to determine whether they were committing an offence by just inserting the newspaper into the letterbox.

This draconian provision therefore would significantly hinder any community group or entrepreneur from establishing a new outlet for opinions and news without first obtaining the consent of the government to be a prescribed newspaper, tying up public service resources to assess all prospective publications to determine whether to recommend to a minister whether or not the publication should be prescribed for the purpose of the regulations. A future government could use this provision effectively to target or harass a newspaper that had offended the government.

The bill, in effect, would create the requirement for a new Public Service office for the assessment of newspapers and other publications. The bill proposes an innovative but ultimately impractical means of enforcement. It proposes that a report by a member of the public to a council may constitute grounds for the council to issue an expiation notice. The member for Mitchell appears to be unaware of the nature of an expiation notice. An expiation notice is an allegation that an offence has been committed and invites the alleged offender to expiate the offence without admitting guilt, rather than contest the charge.

Nevertheless, under the Expiation of Offences Act 1996, any person who receives an expiation notice may elect to contest the charge in a court. If an alleged offender elected to contest the charge, the council, as the issuing authority for the expiation notice, would need to decide whether to pursue a prosecution. Of course, a prosecution would require at least one witness for the prosecution. Under the scheme of proposed new section 235B, no council officer would need to be such a witness.

The council officers could prosecute the alleged offender only if the member of the public who made the original report was prepared to swear or affirm an affidavit and appear in a court (if necessary) to be examined and cross-examined as a witness for the prosecution. It is unlikely that any members of the public would wish to do so, and therefore the issue of an expiation notice would, in most circumstances, be unenforceable if it were contested. For all the reasons I have given, the government opposes the bill.

Debate adjourned on motion of Mr Pengilly.

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