Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

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LITTER AMENDMENT BILL 2009 (No. 1)

Second Reading

[3.54 p.m.]

Ms O'BYRNE (Bass - Minister for Environment, Parks, Heritage and the Arts - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

The purpose of this bill is to amend the Litter Act, to remove legal doubt about certain provisions in the act. The Solicitor-General's Office has advised that infringement notices issued to registered operators of motor vehicles for littering offences involving vehicles could be open to challenge in court.

The Litter Act has been in full operation since January last year, and there is every indication that it will achieve the objective of reducing the amount of litter in our community. Reports to the Litter Hotline are currently running at around 70 per month, and about 240 infringement notices had been issued up to 3 March 2009. The issuing of infringement notices is not an end in itself. The notices and the penalties attached to them show litterers and would-be litters that the community is serious about achieving an improvement.

Litter spoils the visual amenity of our urban and natural environments and can have adverse ecological effects on our waterways, bushland and animals. As well as improving and protecting our environment, we need to ensure that littering does not detract from our reputation as 'clean and green' and from the attractiveness of our tourism destinations. When the litter legislation was debated in this place in 2007, it received support from all parties. Some questions were raised about practical aspects of enforcement, and these are being addressed as time goes by. The present amendments are unrelated to the questions raised.

The Litter Act contains provisions that deem the registered operator of a motor vehicle to be liable for littering from the vehicle where the identity of the person committing the offence is unknown. The bill before the House will remove a section from the act that deals with infringement notices issued to the registered operators of vehicles. This section has doubtful validity. Another section that deals with infringement notices generally will be replaced by a comprehensive new section that includes new provisions on registered operator onus.

The bill contains a retrospective provision to ensure the validity of all actions taken in respect of infringement notices since commencement of the act. Exceptions are provided where a court has made a finding in respect of the validity of an infringement notice or where the validity of an infringement notice is an issue in proceedings before a court that are already under way. The exceptions are effective only until 26 February 2009, the date of introduction of the bill to Parliament.

Minor amendments will be made under the bill to the Litter (Infringement Notices) Regulations, consequential to the changes to the act. These regulations specify the penalties payable under infringement notices. I commend the Litter Amendment Bill to the House.

[3.58 p.m.]

Mrs NAPIER (Bass) - This side of the House will be supporting the bill. However, we think the Litter Amendment Bill 2009 is somewhat misnamed. It should really be called the Litter Amendment (Doubts Removal) Bill, because that is essentially what it proposes to do. I note that when the principal act, the Litter Act of 2007, was debated back in April 2007 the Leader of the Opposition, who was then shadow minister for the environment, raised in his contribution to the second reading debate specific questions about the power of authorised persons, how the persons were to be authorised, and general enforcement issues. The then minister, Ms Wriedt, responded to some of those issues, but it appears that the bill could have been better drafted because it has been found to be flawed in the courts. Initially we had some discussions on whether or not we would reject clause 9, which is the principal part of the bill that deals with retrospectivity, given that retrospective law in itself is bad law. However, given that the retrospective changes that are incorporated therein are such to ensure that the original intent of the legislation is in fact what will now be provided - in other words, we are making it absolutely clear what the intent of Parliament was in the first place - it was decided that we would not object to a move to make this retrospective.

There is a good maxim for legislators to follow - that retrospective law is bad law and it is a principle that we should adhere to except in exceptional circumstances. A good example is where there is a tax loophole to be closed or when it is important that persons cannot take financial advantage of a government announcement. But the second kind of case is one the House is now considering where the bill is introduced by the Government and is found to be flawed. Questions were asked by the Opposition but it was passed and even though we in the Liberal Party are philosophically opposed to retrospectivity, it is important that the intent of parliament in passing this in 2007 is reinforced.

I note that where a court has already found an infringement notice invalid or where the court proceedings in such a case are currently afoot, there will be no retrospective application. I think your notes say that will only apply from 29 February. I think that is important. We should not be going back on any of those cases.

I asked the Minister when closing the debate if she would take the opportunity to assure the House that infringement notices would not be issued to anyone unless the intent to litter could be reasonably established. In looking at the bill I was trying to work out whether you have to demonstrate that an intent to litter has been reasonably established because it seems to me that you may not have intended to cause litter but in fact that litter may have occurred. An example is where someone is distributing flyers, as they often do outside Parliament House. They put them under the windscreen wipers of cars. Their intent is not to litter but, as a consequence of wind, rain or anything else, littering occurs and sometimes these flyers blow off and the motorists do not see them. Is it reasonable for the registered owner of the car to receive an infringement notice in that case? I raise it as an example.

Overall, the intent of the Litter Act was to get much tougher on litter in Tasmania. None of us appreciate seeing cans or bottles, particularly on the sides of roads. I always seem to come back to this issue and I know that South Australia has raised the amount that is paid to someone who returns a can or a bottle to 10 cents per unit. That is quite an attraction for people to go out there and help clean up that part of the litter. It does not solve the problem of paper and plastic and other items that you see at the side of the road. It is quite disappointing, particularly when I am driving on roads that I know tourists will be travelling on, when I see litter on the sides of the road. The very worst offenders are those who take their rubbish and dump it in our national parks, reserves and other areas. The tougher the fine for those people the better because it is a practice that should be frowned upon by any member of the community. Part of this issue is to change the community's attitudes to littering right from dropping a cigarette butt to making sure there are appropriate, adequate receptacles for people to put litter in. Also we frown upon anyone who might be throwing or dropping a piece of paper or whatever it might be.

That is why I asked for your clarification, Minister, as to whether intent to litter is required to be demonstrated as part of being found guilty under the premises of this bill or whether that is not necessary and therefore inadvertent action that might cause littering might similarly be dealt with. I do notice there is quite a debate on confetti. I suppose you might say this issue could be related to that issue. I think the response of Ms Wriedt was to say she could not imagine police racing up to a wedding party and saying, 'You are littering, I am going to hit you with a fine. I know you were not intending to litter but that is against the law'. Do you need to demonstrate intent or not and how would police interpret that before they decide upon the point of reasonableness? And this is not just police; it could be national parks officers or anyone else who is an authorised officer who must decide whether they hit someone with an offence notice. I ask for clarification on that matter.

It is unfortunate that the legislation has been found wanting - the lawyers seem to have found it to be so. If you can add more to that then that is fine but beyond that we would support the bill.

[4.06 p.m.]

Ms O'CONNOR (Denison) - I would like to say at the outset to the minister that the Greens will be supporting this bill. It is clear, though, that we are in this situation now as a result of sloppy drafting and a degree of incompetence in putting together the original bill. It would not be the first time of course, as we know, in this place. I do understand that the purpose of this bill is to amend the Litter Act to remove legal doubt about certain provisions in the act and that advice has come from the Solicitor-General to suggest that there are holes in the act. I think the question here is how you slap an infringement notice on an 'alleged' litterer. Who determines whether an offence has been committed? I understand that the Litter Act - which I was not in this place to debate or vote on - has been in operation since last January and of course it remains to be seen whether it will achieve the objective of reducing the amount of litter in our community.

We must do that because litter is a blight on our environment and a sad indictment of our society. The minister mentioned that reports to the litter hotline are currently running at around 70 per month and about 240 infringement notices had been issued up to the end of last year. This is one instance where every member of the public has a responsibility, if they see an offence, to report litterers to that hotline. I submit that those reports to the hotline are only the tip of the iceberg because by the Environment department's own figures each one of us in here and every Tasmanian produces about a tonne of litter a year. That comes about as a result of our consumer society. This is what we have become. We consume more, we throw away more. It is a very sad indictment of our consumer society.

I do not believe it is enough to slap a ticket on litterers. There must be a range of penalties, and I note that there are provisions for these penalties in the act. Littering is a very serious matter. It is often treated quite lightly but it is a very serious environmental and social matter and I am sure there is an economic cost too. It is depressing to look at litter. It reflects very poorly on our custodianship of our island and as human beings who are custodians of this planet. It also fouls up our urban environments and our natural environment. As all those good volunteers who were out there on 1 March taking part in Clean Up Australia Day will testify, it fouls up our waterways. Across the country each year thousands and thousands of tonnes of rubbish are collected as part of Clean Up Australia Day. That is the work of volunteers going out there to clean up other people's mess. Really, every single day should be Clean Up Australia Day. I live down at South Arm and quite often I will go to the beach and there will be some plastic container or a can or a plastic bag. My children have been trained to treat each day that they are out there as a small Clean Up Australia Day. They are quite well trained to pick up plastic bags.

Now the minister said that as well as improving and protecting our environment we need to ensure that littering does not detract from our reputation as clean and green, and from the attractiveness of our tourism destinations. I put it to you, Minister, that litter comes in many forms. We have plastics, hard and soft, paper and cans, but if you are talking about protecting our clean and green brand it is going to take a lot more than slapping infringements and fines on those people who dump litter into our environment, because littering is an act of defilement, just as clear-felling and burning native forests or supporting the construction of a canal estate in a conservation area are acts of defilement. It does worry me that this Government wheels out the clean and green brand when it is convenient, when it speaks of it in an economic sense, but it does not in practice have any real policy commitment to upholding the virtues and value of that clean and green brand. Smashing a loop road, for example, through the Savage River rainforest will do nothing to enhance our clean and green brand - as you well know, Minister - and driving threatened species closer to extinction will only deliver to Tasmania a worse national reputation than we already have for trashing and burning our forests.

When the litter legislation was debated in this place in 2007 it received support from all parties, including the Greens. We will support this bill just as we strongly support and have long advocated the introduction of a container deposit scheme in Tasmania.

Mrs Napier - The major argument against container deposit legislation is that it would undermine the recycling programs that councils run. They say they would not be viable.

Ms O'CONNOR - Mrs Napier, I submit that there has to be room for both, just as there is in South Australia.

Mrs Napier - That is not commercial argument.

Ms O'CONNOR - No, but the argument you are putting is the argument that has been put forward by the beverage industry over and over again to prevent the introduction of a container deposit scheme in Tasmania. It worries me that that is the philosophy of this Government, which has gone through the motions, making noises about introducing a container deposit scheme in Tasmania, but goes and appoints a known advocate of the status quo, Mr Russ Martin, to head up our CDS review in Tasmania. We still have not had adequate explanation from the minister as to why you would appoint a known advocate or employee of the beverage industry. There must be across this country and internationally any number of people who are qualified to help the Tasmanian Government undertake an assessment of the viability of a container deposit scheme who have not made a profession out of blocking the introduction of such a scheme in Tasmania.

Ms O'Byrne interjecting.

Ms O'CONNOR - Minister, are you committed to the introduction of a container deposit scheme in Tasmania?

Mr Llewellyn and Ms O'Byrne interjecting.

Mr DEPUTY SPEAKER - Order. The minister will get a turn to summarise, and I would ask the Leader for Government Business not to be so rude. I am asking you to calm down or have a walk outside.

Ms O'CONNOR - In South Australia, which has a container deposit scheme, the recycling rates are around 85 per cent, while Tasmania recycles less than 10 per cent of its plastic drink containers. That is a sad indictment of our society and we really ought to be doing something about it.

I know that this bill contains a retrospective provision to ensure the validity of all actions taken in respect of infringement notices since commencement of the act. Normally I would always argue that retrospective law is bad law but I think in this case you do not really have any choice but to do that.

I just want to divert for a minute to a personal experience I had as a young journalist.

Mr Llewellyn - A young, half-baked journalist.

Ms O'CONNOR - A young, half-baked journalist, in the minister for threatening species' estimation. One day I will give you my CV, Minister, and then you can tell me how half-baked I have been, because I would suggest you are not even a partly-baked minister and you are the minister for threatening species in Tasmania.

I remember as a young journalist -

Mr McKim - He hasn't even made it into the oven yet, I reckon.

Ms O'CONNOR - No, that is right; he is never going to rise.

I remember as a young journalist driving down the Brooker Highway and seeing someone hurl a piece of rubbish out of their car.

Mr Gutwein - That was David Llewellyn.

Ms O'CONNOR - It may have been Mr Llewellyn, because he is a particularly -

Ms O'Byrne - Oh! You should withdraw that remark.

Ms O'CONNOR - Yes, I should withdraw that remark. Anyway, I saw someone hurl a can out of their car and felt so personally offended as a decent citizen and a Tasmanian that I flew into one my early acts of road rage. I actually chased him down the Brooker Highway because it was just such an offensive thing for him to do.

Mr Llewellyn - Well, it was not me.

Ms O'CONNOR - I may or may not have gesticulated and swore at this driver. I cannot recall; it was a long time ago.

Ms O'Byrne - But you do admit to a pattern of road rage.

Ms O'CONNOR - No, I do not admit to a pattern of road rage. I do admit to having a very strong personal environmental ethic and that is what prompted that act. I am not saying that I am alone in this, of course. There are at least four people in this place who have a strong environmental ethic.

Ms Giddings - And you are offended by people throwing rubbish out of cars.

Ms O'CONNOR - Well, aren't you?

Ms Giddings - I am. Yes, we all are.

Ms O'CONNOR - Sure, but by the same token, Minister, and with all respect, you are part of a government that the Auditor-General today has condemned for sending our threatened species closer to extinction. Of course I believe that you are offended by people throwing litter out of cars but you ought to be offended by what your colleague, the minister for threatening species in Tasmania, is doing to our rare and endangered species.

I will just wind up by saying that of course the Greens will be supporting this amendment which has come about as a result of sloppy drafting. Reducing litter in our society is the responsibility of us all. It is an environmental matter but it is also a social matter. It is a matter of civic pride and care and we need to make sure that we have the laws in place that crack down on litterers so that we can look after our beautiful Tasmanian environment. But I put to you, Mr Deputy Speaker, that this Government has a long way to go before it is going to be taken anywhere near seriously on environmental matters in Tasmania.

[4.18 p.m.]

Ms O'BYRNE (Bass - Minister for Environment, Parks, Heritage and the Arts) - Mr Deputy Speaker, I would like to thank Mrs Napier and Ms O'Connor, the respective members of Bass and Denison, for their contributions on this bill. The issue of litter is more than just one of sight. It is one very much of the way in which we approach our environment and the way in which we approach our community. I know that I was brought up to think that one should not leave one's litter lying around when one leaves and I hope this enables us to create a broader feel within the community that we all have a responsibility, not only to take care of the mess that we make ourselves but that which we might see made by others. It is very much the intent of this legislation to show that litter is not just a minor issue or something that we can say looks bad but has nothing to do with us. Litter is in fact a serious issue for us to deal with as a community and I appreciate the support of members for this amendment bill.

I need to point out that the identification of the deficiency we are resolving today has not shown up in court but certainly has in discussions with the Solicitor-General about other matters that we wish to work with on this bill and that have been canvassed in the House already. Previously I identified that this might be an issue. It has yet to be tested in a court. But the Solicitor-General's view is that that would be a significant issue. I thank members for understanding that.

Mrs Napier - How many cases pending are there?

Ms O'BYRNE - To 3 March, the total number of reports to the hotline were 940. That includes reports where the complainant might not have actually gone onto the next step and submitted a written report. The current average number of reports received monthly is 70 but I need to point out that they have actually started off much smaller than that and they have ramped up, particularly over the last few months. We are seeing a greater take-up in understanding of this. The total number of written reports submitted is 601. The total number of infringement notices issued is 340. Quite often the cases did not proceed, either because the infringement notice was withdrawn by the division because we could not establish enough of a position to be able to take it or because the alleged perpetrator relented and just paid the notice.

The total number of infringement notices that have been paid is 118. The number of infringement notices for which a court hearing has been elected is eight. The number that did not proceed is seven, and that is once again that issue about whether or not they had been withdrawn or they were paid before they got to court. The number of court cases pending is one. That should cover most of that. Whilst we say the average is 70, there has been a significant ramp-up over the last few months. So we are seeing evidence that the information that came in the education campaign is changing behaviours in terms of reporting. What we really want to see at the end of this is a change in behaviour of those who litter. Mrs Napier also established -

Mrs Napier - So it is not true to say that there are not any sitting in court or ready for court? There is one.

Ms O'BYRNE - Yes, we have one that is pending.

Mrs Napier - One? Okay.

Ms O'BYRNE - The other issue you raised was in relation to proving intent: section 9(12) of the legislation says that -

In a prosecution for an offence against the section, it is a defence if the litterer can show -

(a) that the deposit of the litter was accidental or that he or she took all reasonable steps to retrieve the litter; or

(b) that the deposit of the litter was an unavoidable consequence of a lawful activity.

So if you are walking along and you have a bundle of papers in your hand and they are blown out, no-one is going to expect you to be charged for littering because clearly that is a weather issue as opposed to an intent issue. But putting notices under windscreens is in fact illegal. You are not supposed to do that. That is one of the issues that was flagged I think in this House and certainly in the upper House. Particularly we are looking at an exemption -

Mr Gutwein - There are a lot of people that make that mistake.

Ms O'BYRNE - Indeed.

Mr Whiteley - Even members of Parliament.

Ms O'BYRNE - Do you, Mr Whiteley?

Mr Whiteley - I do not. I said even members of Parliament have been known to put them under windscreens.

Ms O'BYRNE - One of the amendments that we have flagged that does need to be worked on and that we do wish to bring back to the House would be an amendment to insert a provision to enable the secretary to exempt a person from a provision of the act subject to conditions the secretary may pose. The main driver for that is the police saying that they would like to place leaflets for their 'lock it or lose it' education campaign. They would like to put them on cars because they say that is how they are going to get the biggest impact. Someone has come back to their car and it is unlocked and there is a note from the policeman: 'You goose, you really should lock your car'. That currently would be an offence under the act. If the proposed amendment is made then the secretary could grant an exemption and that is something that will come back for debate in this House. There are a few other issues that were raised and I am happy to speak to members about what they are, prior to bringing it back.

The issue of retrospectivity included in the bill is to ensure the validity of any actions taken in respect to infringement notices since the commencement of the act. Exceptions are provided where a court has made a finding with respect to the validity of an infringement notice or where the validity of an infringement notice is an issue in proceedings before a court that are already underway. Exceptions are effective only until 26 February 2009, which is the date of the introduction of the bill to Parliament. If this cut-off date were not specified in the bill then recipients of infringement notices may take advantage of the exception whilst the bill is being considered by Parliament. There is obviously a delay before it gets to the other House and any publicity about the bill will alert the public to the legal doubts about the registered owner onus provisions. I think that covers Mrs Napier's comments.

Ms O'Connor, I have given the number of reports that you were referring to. They are getting more reports so that indicates we are making headway in terms of people being able to make those decisions so they do not have to chase somebody down the Brooker Highway. They may or may not gesticulate when they do that, but certainly they do have an option then to take that person's details and ring the Litter Hotline. For members' notification, the Litter Hotline is 1300 135513. We did try to get 1300 LITTER but we were not successful, so we have gone for as easy a number as we could.

I would also like to add my recognition, support and gratitude to those people who on a day-to-day basis regularly make it their business to take responsibility for cleaning up our environment, particularly all of those who take the opportunity on Clean Up Australia Day to go out and make that public statement, as well as that public commitment, about their desire to make sure that the community they live in is clean. I commend those communities that have driven very successful Tidy Town programs where they have been able to see great results in their own communities. I commend a new project - the Penguin Litter Project - which has been developed in conjunction with Central Coast Council for March-April. The project has an integrated community-based social marketing approach to changing community littering behaviours. They have support from us and the Packaging Stewardship Forum. That will allow them to start getting a really good picture about the perceptions and the views that drive the behaviour of people who choose to litter in our community. I really hope we get some great feedback about that, which will allow us to further work towards changing behaviours, which is clearly one of the driving forces of this legislation.

Mr Deputy Speaker, I commend the bill to the House.

Bill read the second time and taken through the remaining stages.