litter enforcement manual

Transcription

2014 Victoria litter enforcement
toolkit
Toolkit
Publication number 1142.2, December 2014. This replaces publication 1142.1 issued August, 2010.
Authorised and published by Environment Protection Authority Victoria.
200 Victoria Street, Carlton, 3053.
Acknowledgements
EPA Victoria would like to acknowledge Donna Shiel, Victorian Litter Action Alliance (VLAA) Litter Champion, who led the
update of this toolkit. Other people who contributed to the revision are Travis Finlayson of Manningham City Council, Chris
Kentley of Wyndham City Council, Wayne Lugg of City of Greater Geelong, Mark Parker of Greater Shepparton City Council,
Russell Gladigau of Darebin City Council, Dylan Weeks of City of Melton, Leanne Edwards of Bass Coast Shire Council, Peter
Shelton of City of Greater Dandenong, Lisa Gwyn of Hume City Council, the North East Authorised Council Officers
Association and other local government officers.
Disclaimer
The material in this toolkit has been prepared to assist litter enforcement officers and agencies to develop and implement
strategies to tackle littering issues and to assist in the implementation of the Environment Protection Act 1970 Part VIIA.
While EPA Victoria and the VLAA have worked hard to ensure the contents are as accurate and useful as possible, it does not
guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore
disclaims all liability for error, loss or other consequences which may arise from your reliance on any information in this
publication.
Table of Contents
Acknowledgements ..................................................................................................................................................................................... 1
Disclaimer ..................................................................................................................................................................................................... 1
Foreword ...................................................................................................................................................................................................... 5
Introduction................................................................................................................................................................................................. 6
Using this toolkit ............................................................................................................................................................................................. 6
Key litter stakeholders .............................................................................................................................................................................. 7
Department of Environment and Primary Industries .............................................................................................................................. 7
EPA Victoria .................................................................................................................................................................................................... 7
Sustainability Victoria ................................................................................................................................................................................... 7
Victorian Litter Action Alliance ................................................................................................................................................................... 7
Waste and Resource Recovery Groups ...................................................................................................................................................... 7
Local government ........................................................................................................................................................................................... 7
Other land managers...................................................................................................................................................................................... 7
Community ....................................................................................................................................................................................................... 7
Littering and illegal dumping in Victoria ................................................................................................................................................ 8
Other inappropriate waste disposal ............................................................................................................................................................ 8
Asbestos waste ............................................................................................................................................................................................... 8
Enforcement in Victoria ............................................................................................................................................................................ 9
When is someone considered to be littering?........................................................................................................................................... 9
Reporting of offences (Section 45ZK) ....................................................................................................................................................... 9
Reporting by members of the public .......................................................................................................................................................... 9
Reporting by litter enforcement officers .................................................................................................................................................. 9
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2014 Victoria litter enforcement toolkit
Powers of litter enforcement officers ..................................................................................................................................................... 9
Who can enforce the EP Act (Section 4)................................................................................................................................................... 9
Powers ............................................................................................................................................................................................................. 10
Delegations ..................................................................................................................................................................................................... 10
Face-to-face enforcement .......................................................................................................................................................................10
Infringement notices.................................................................................................................................................................................10
Penalty units ..............................................................................................................................................................................................10
Dealing with offenders ..............................................................................................................................................................................10
Be courteous................................................................................................................................................................................................... 10
Identify yourself ............................................................................................................................................................................................. 10
Explain the offence......................................................................................................................................................................................... 11
Serve a notice or warn the offender ........................................................................................................................................................... 11
Ask the offender for their name and address ........................................................................................................................................... 11
Hand the notice to the offender .................................................................................................................................................................. 11
Alert the offender of their right to seek review ....................................................................................................................................... 11
Record details of unidentified offenders ................................................................................................................................................... 11
Listen to a person who denies or disputes an offence ........................................................................................................................... 11
Keep the discussion short............................................................................................................................................................................. 11
Fill out a report ............................................................................................................................................................................................... 11
Investigation techniques ...........................................................................................................................................................................11
Investigation .................................................................................................................................................................................................... 11
What are elements of offences? .................................................................................................................................................................. 11
The elements of litter offences created under the EP Act –
a guide for litter enforcement officers implementing the EP Act. ....................................................................................................... 11
45E Deposit of Litter Generally .................................................................................................................................................................. 12
45F Aggravated Littering ............................................................................................................................................................................ 12
Identity – who or what is ‘a person’? ......................................................................................................................................................... 12
Investigation techniques .............................................................................................................................................................................. 12
What constitutes evidence? ........................................................................................................................................................................ 12
Identifying physical evidence ...................................................................................................................................................................... 13
Continuity ........................................................................................................................................................................................................ 13
Note taking...................................................................................................................................................................................................... 13
The purpose of notes .................................................................................................................................................................................... 13
Affidavits ......................................................................................................................................................................................................... 14
Method for taking an affidavit from a witness ........................................................................................................................................ 14
Briefs of evidence .......................................................................................................................................................................................... 14
Court proceedings .....................................................................................................................................................................................14
Prosecution of offenders ............................................................................................................................................................................. 14
When may prosecution be initiated? ......................................................................................................................................................... 14
Initiating proceedings ................................................................................................................................................................................... 14
Investigation process ...............................................................................................................................................................................15
Definitions ..................................................................................................................................................................................................16
EP Act .............................................................................................................................................................................................................. 16
Interpretation of Legislation Act 1984 ...................................................................................................................................................... 17
Information Privacy Act 2000 .................................................................................................................................................................... 17
Environment Protection Act 1970 – part VIIA .....................................................................................................................................18
45A. Object of Part ....................................................................................................................................................................................... 18
Division 2 — Littering Offences ................................................................................................................................................................... 18
SECTION 45E.................................................................................................................................................................................................. 18
2
45E.
Deposit of litter generally ................................................................................................................................................... 18
SECTION 45F .................................................................................................................................................................................................. 18
45F.
Aggravated littering ............................................................................................................................................................. 18
Case Study 1 – Section 45F Aggravated littering at Manningham City Council ............................................................................... 18
SECTION 45G ................................................................................................................................................................................................. 19
45G.
Owners, drivers etc. of vehicles from which litter deposited liable for littering ..................................................... 19
Case Study 2 –Section 45G Litter from a vehicle in Wyndham City Council .................................................................................... 19
SECTION 45J.................................................................................................................................................................................................. 19
45J.
Notice to accompany charges using section 45G ......................................................................................................... 19
Division 3 – Offences Concerning Material That May Become Litter ................................................................................................. 19
SECTION 45K, 45L & 45M........................................................................................................................................................................... 19
45K.
Unsolicited Documents........................................................................................................................................................ 19
SECTION 45N ................................................................................................................................................................................................ 20
SECTIONS 45O, 45P, 45Q & 45R ............................................................................................................................................................. 20
45O.
Bill posting not to occur without consent ...................................................................................................................... 20
45P.
Advertiser must disclose name of distributor ............................................................................................................... 20
45Q.
Distributor must disclose name of depositor ................................................................................................................ 20
45R.
Person who commissions document must ensure that it does not become litter ................................................. 20
Case Study 4 – Section 45O Selling houses in Wyndham City ........................................................................................................... 20
Division 4 – Other Offences ......................................................................................................................................................................... 21
SECTION 45S.................................................................................................................................................................................................. 21
45S.
Offence to ask person to commit offence ....................................................................................................................... 21
SECTION 45T.................................................................................................................................................................................................. 21
45T.
Offence to deface or set fire to public litter receptacles............................................................................................. 21
SECTION 45U ................................................................................................................................................................................................. 21
45U.
Offences concerning the loading of vehicles .................................................................................................................. 21
Case Study 5 – Section 45U Unsecured load in Melton ........................................................................................................................ 21
Division 5 – Removal of Litter and Disorderly Things ............................................................................................................................ 21
SECTION 45V ................................................................................................................................................................................................. 21
45V.
Litterer must remove litter if asked ................................................................................................................................. 21
Case Study 6 – 45V Cemetery dumping in Kilcunda .............................................................................................................................. 21
SECTION 45W................................................................................................................................................................................................ 22
45W.
Court may order removal of litter .................................................................................................................................... 22
SECTION 45X ................................................................................................................................................................................................ 22
45X.
Person may be directed to remove litter ....................................................................................................................... 22
SECTION 45Y ................................................................................................................................................................................................ 22
45Y.
Person may be directed to remove disorderly etc. objects or things ...................................................................... 22
Case Study 7 – Section 45Y City of Greater Geelong orders the clean-up of litter and disorderly things. .............................. 23
SECTION 45Z ................................................................................................................................................................................................ 23
45Z.
Authority may remove litter or object or thing if direction not complied with. ..................................................... 23
SECTION 45ZA.............................................................................................................................................................................................. 23
45ZA.
Occupier may recover cost of removing litter from litterer....................................................................................... 23
Division 6—Prevention of Litter ................................................................................................................................................................. 23
SECTION 45ZB .............................................................................................................................................................................................. 23
45ZB.
Litter abatement notice ..................................................................................................................................................... 23
45ZC.
Period for which notice remains in force ........................................................................................................................ 24
45ZD.
Form of notice ...................................................................................................................................................................... 24
Case Study 8 – Section 45ZB Shepparton building site compliance ................................................................................................. 24
45ZE.
Amendment or revocation of notice ................................................................................................................................ 24
Division 7—Particular Litter Enforcement Powers................................................................................................................................. 24
SECTION 45ZF .............................................................................................................................................................................................. 24
3
45ZF.
Powers of entry of litter enforcement officers ............................................................................................................. 24
SECTION 45ZG .............................................................................................................................................................................................. 24
45ZG.
Requirement to give name and address ......................................................................................................................... 24
Case Study 9 – Section 45ZG Uncooperative cigarette butt littering offender ............................................................................. 24
SECTION 45ZH.............................................................................................................................................................................................. 25
45ZH.
Officers must identify themselves ................................................................................................................................... 25
SECTION 45ZI ............................................................................................................................................................................................... 25
45ZI.
Litter enforcement officer may require certain people to give information .......................................................... 25
Tip .................................................................................................................................................................................................................... 25
Case study 10 – Illegal dumping in Thornbury, Darebin City Council ................................................................................................. 25
SECTION 45ZJ .............................................................................................................................................................................................. 26
45ZJ.
Officer may require information to be in writing .......................................................................................................... 26
SECTION 45ZK .............................................................................................................................................................................................. 26
45ZK.
Reports of offences............................................................................................................................................................. 26
Part X General ............................................................................................................................................................................................... 26
57B.
Certificate concerning ownership of vehicle ................................................................................................................. 26
57C.
Certificate concerning litter offences ............................................................................................................................. 26
57D.
Certificate concerning presence of junk mail sign ....................................................................................................... 26
36AA.
Reviews in respect of section 45Y directions and litter abatement notices.......................................................... 26
Schedule of on-the-spot fines ................................................................................................................................................................27
Schedule of offence codes.......................................................................................................................................................................27
Tools & tips for litter enforcement....................................................................................................................................................... 28
EPA contacts ............................................................................................................................................................................................29
EPA Victoria – General enquiries (24 hours) .......................................................................................................................................... 29
EPA Victoria – Head Office ......................................................................................................................................................................... 29
Regional offices............................................................................................................................................................................................. 29
EPA North West ............................................................................................................................................................................................ 29
EPA South West ............................................................................................................................................................................................ 29
EPA North East ............................................................................................................................................................................................. 29
EPA Gippsland ............................................................................................................................................................................................... 29
EPA Southern Metro .................................................................................................................................................................................... 29
Other useful contacts ..............................................................................................................................................................................30
Victorian Legislation and Parliamentary Documents ........................................................................................................................... 30
Victorian Government Gazette .................................................................................................................................................................. 30
Infringements Court and Sheriff's Office................................................................................................................................................. 30
4
Foreword
Littering and illegal dumping is a highly visible problem, impacting the environment, as well as the community. The efforts to
reduce the inappropriate disposal of waste in Victoria have produced promising results. The National Litter Index report of
2013/14 1 has shown that littering and illegal dumping in Victoria is the lowest per item per person in Australia.
The joint efforts of Victorian organisations achieved an overall improvement of littering behaviour by leading litter reduction
and waste management programs as well as enforcing the Environment Protection Act 1970 (the EP Act).
The application of Victoria’s best practice litter prevention model of education, infrastructure and enforcement is proving
successful.
Enforcement should not be seen as remote from other litter prevention activities. Applying other programs in combination
with enforcement of the litter provisions of the EP Act have proven to be effective in reducing the prevalence and impact of
littering.
Responsibility for enforcement of the litter provisions of the EP Act is shared between a range of agencies, including local
government, EPA Victoria, Victoria Police and public land management authorities. All of these agencies have a vital
contribution to make in reducing litter.
Organisations that have been successful in dealing with dumped waste and litter indicate that reduction of the problem
should be a priority for all persons within an organisation, and that this needs to be driven at all levels: from elected
representatives to CEOs, managers, supervisors and staff working in the field.
This toolkit has been reviewed and updated to help your organisation maximise the effectiveness of its litter enforcement
capabilities.
We hope it suits your needs and would welcome any feedback you may have.
Cheryl Batagol
Chairman, Environment Protection Authority Victoria
1
Keep Australia Beautiful National Litter Index Annual Report Summary 2013/14
5
Introduction
In April 2013 the Victorian Government released Getting
Full Value: the Victorian Waste and Resource Recovery
Policy (GFV). GFV sets a 30-year vision for waste and
resource recovery in Victoria with policy priorities that
will guide actions over the next ten years.
Chapter 8 of GFV acknowledges the persistence of litter
and illegal dumping and states the goal to reduce these
with an emphasis on the importance of working together
and sharing resources to increase the likelihood of
catching and apprehending those responsible for littering
offences.
Prior to the release of GFV, the Victorian Litter Strategy
2012-14 (VLS) was developed by Sustainability Victoria
(SV) for the Victorian Government to deliver programs for
litter prevention, increase public place recycling and
address the growing concern of illegal dumping.
EPA Victoria implemented the Local Government Litter
Prevention Officer Program (LGLPOP) as an action under
the VLS, funding nine councils to employ Litter Prevention
Officers (LPOs) to focus on litter and illegal dumping
education and enforcement within their municipalities.
Consultation with the officers engaged in the LGLPOP, as
well as with other litter enforcement officers, prompted
this revision of the EPA Victoria Litter Enforcement
Toolkit to address current issues and to share recent
successes.
Using this toolkit
This toolkit is a resource to assist litter enforcement
officers in the course of their duties. The toolkit
introduces key litter stakeholders, peak bodies and their
relationship with littering issues, and offers an
introduction to general enforcement procedures.
The toolkit also provides a breakdown of the components
of the EP Act, Part VIIA – (‘Litter And Material That May
Become Litter’), with supporting case studies.
It should be noted that the term ‘illegal dumping’ is used
in this document solely to refer to offences under Part
VIIA of the EP Act (‘Litter And Material That May Become
Litter’) which involve greater quantities of waste than can
be deposited simply by hand. ‘Illegal dumping’ in this
document does not refer to offences under section 27A(2)
and section 45 or other Parts of the Act, which do not
constitute littering offences, but more serious
environmental offences.
In determining the appropriate course of action to be
taken (and by whom) when confronted with littering and
illegal dumping it is sometimes necessary to consider
whether other provisions of the EP Act, whose
administration is reserved to EPA Victoria, are more
appropriate for the particular circumstances.
There is no black and white distinction on whose
responsibility it is to manage incidents of littering or
illegal dumping however Figure 1 (below) provides current
guidance. Litter enforcement officers are encouraged to
contact EPA Victoria’s Illegal Dumping Strikeforce for
assistance with major incidents of illegal dumping.
Figure 1 Acts of illegal waste disposal Diagram: Department of Environment and Primary Industries
6
Key litter stakeholders
community organisations that help reduce litter in the
community.
Department of Environment and Primary
Industries
In May 2002, VLAA appointed a Litter Champion to drive
major improvements in the coordination and integration
of best practice litter prevention across Victoria and to
raise the profile of litter within the Victorian community.
As the title suggests, the Litter Champion has a strong
advocacy and capacity-building role for VLAA members as
well as litter managers, particularly local government,
beyond the Alliance.
The Department of Environment and Primary Industries
(DEPI) leads the Victorian Government’s efforts to
sustainably manage water resources and catchments,
aspects of climate change, bushfires, parks and other
public land, forests, biodiversity and ecosystem
conservation.
DEPI directs environmental policy development for
Victoria and coordinates the environment portfolio with
EPA Victoria and Sustainability Victoria’s support and
input. The Department supports the Victorian
Government’s priorities in environmental sustainability
and facilitates local government and industry to deliver
key services that balance the interests of communities.
www.depi.vic.gov.au
EPA Victoria
The Environment Protection Authority Victoria (EPA
Victoria) is part of the environment portfolio and is
charged with protecting the Victorian environment. EPA
Victoria is an administrative office of DEPI and its sole
role is to regulate pollution.
EPA Victoria has independent authority to make
regulatory decisions under the EP Act. By effectively
regulating pollution in Victoria, EPA Victoria aims to
deliver clean air, healthy waterways, safe land and
minimal disturbances from noise and odour for Victorians.
EPA Victoria also manages a public reporting system that
can be used by the Victorian community to report
incidents of pollution, environmental hazard or other
activities potentially harmful to the environment,
including litter from vehicles.
www.epa.vic.gov.au
Sustainability Victoria
Sustainability Victoria (SV) is a Victorian Government
statutory authority delivering programs on integrated
waste management and resource efficiency. Established
under the Sustainability Victoria Act 2005, SV has
obligations under the EP Act for state-wide waste
management strategy and planning, as well as managing
the Sustainability Fund.
SV supports and complements the work of its portfolio
partners – DEPI, EPA Victoria and the Waste and
Resource Recovery Groups.
Since 2002 SV has been responsible for coordinating the
Victorian Litter Action Alliance and managing the VLAA
Litter Champion program.
www.sustainability.vic.gov.au
Victorian Litter Action Alliance
The Victorian Litter Action Alliance (VLAA) is the peak
body for litter management and prevention in Victoria.
Coordinated by SV, it provides a collaborative approach to
preventing litter across state and local government,
industry and community sectors. VLAA’s members
represent a diverse range of government, industry and
VLAA has a number of Litter Prevention Kits addressing
key littering issues as well as other resources on their
website to assist litter managers develop programs and
interventions.
www.litter.vic.gov.au
Waste and Resource Recovery Groups
Waste and Resource Recovery Groups (WRRGs) are
Victorian Government statutory authorities that work in
partnership with regional member councils to plan for
waste management and resource recovery facilities and
services in their regions and to undertake individual and
collective efforts on waste minimisation, resource
recovery and litter prevention.
WRRGs work with DEPI, EPA Victoria, SV, local
government, the private sector and the community to
achieve sustained reductions in waste.
Local government
Local government has the role of providing waste and
recycling services to households, and waste management
and recycling education to the community. Some councils
also provide public place and/or business recycling
services.
Local government has a regulatory role in enforcing
requirements for waste management activities in their
jurisdictions and in litter prevention, education and
enforcement.
Many councils have a municipal litter strategy or are part
of a regional strategy under the guidance of the WRRGs
within their region.
www.dpcd.vic.gov.au/localgovernment
Other land managers
Land managers such as Parks Victoria, VicRoads, rail
authorities and water authorities provide a range of
services to Victorians as well as having the responsibility
of managing litter and illegal dumping on their land. Each
agency places a different level of priority on this issue
depending on their capacity and need to deliver core
duties.
Community
The community is made up of a variety of stakeholders
including individuals, groups, businesses, traders, food
and product producers, land managers, residents, visitors
and organisations. They have a mutual responsibility to
contribute to preventing and managing litter to live, work
and operate in a safe environment.
7
The community mainly seeks direction on litter from local
and State government and expects them to provide a
framework conducive to waste reduction and resource
recovery.
Littering and illegal dumping in
Victoria
The litter provisions of the EP Act do not apply to
situations which would constitute an offence under other
Parts of the Act. However littering may take many forms;
from shop owners disposing of their commercial waste
into street bins, householders placing their unwanted
goods out on the nature strip, the dumping of garden
and/or hard waste in lanes, parks or roadside stops, to
day trippers and campers discarding litter into bushland
or roadside stops.
Combating littering and illegal dumping requires a
concerted effort by all enforcement agencies, businesses
and communities who need to cooperate and
communicate to ensure resources are utilised effectively.
Some examples of this are: council officers liaising with
EPA Victoria officers to determine the appropriate course
of action for specific dumping, and agencies implementing
litter strategies that have been successfully used by other
authorities. These could include installing cost effective
infrastructure like bollards or fencing, and media releases
(especially to raise the profile of successful prosecutions).
The following is a simple guide that may help you to
determine the appropriate course of action or the
appropriate authority to take action:
1.
2.
3.
4.
The nature of the litter: Can it be dealt with
effectively by the local authority using Part VIIA
of the EP Act (by issuing a penalty infringement
notice/prosecuting), or is it more appropriate for
EPA to investigate and institute proceedings for
larger environmental penalties?
The quantity/volume: Is the litter of such quantity
or volume that it is inappropriate for a local
authority to issue a litter PIN?. For example the
dumping of a large skip full of commercial waste
as opposed to a trailer (volume).
The impact or potential environmental impact: Is
the effect of the material such that it may cause
significant harm to the environment, and is it
more appropriate to utilise EPA Victoria’s skills
and enforcement powers?
The behaviour of the offender: Is the offender
repeatedly and deliberately engaging in this
behaviour and/or action? Has the offender
rectified the situation or taken measures to
prevent this action occurring again.
If uncertain whether the situation is a littering offence or
a pollution offence, contact EPA Victoria and discuss the
situation. This could also provide the opportunity for a
collaborative approach to resolving the offence.
Note that EPA Victoria does not generally have the
responsibility of removing dumped litter/waste. If
evidence is not available against an offender,
responsibility for clean-up rests with the land owner or
authority managing the land where the offence has
occurred.
8
Other inappropriate waste disposal
Inappropriate waste disposal not constituting litter is
waste dumping that constitutes the pollution of land and
may create an environmental hazard.
The dumping of certain wastes and large quantities of
waste is a serious issue and litter enforcement officers
should refer the matter to an agency which is capable of
conducting further investigations and, potentially,
initiating further proceedings rather than issuing an on
the spot fine for littering. Such dumping may include:
animal carcasses and remains left in creek
beds/parklands, and commercial operators dumping waste
in secluded spots despite having been paid to take it to an
approved landfill.
The EP Act provides for maximum penalties of 2400
penalty units under section 45 (Pollution of Land) and of
5000 penalty units under section 27A (Offences relating
to Industrial Waste). These provisions allow EPA Victoria
to investigate and prosecute persons or organisations
involved in activities causing the pollution of land, such as
operating illegal landfills, tipping and the dumping of toxic
materials or chemicals.
Penalties under these sections of the EP Act are far
higher than those provided for in the litter provisions,
reflecting the seriousness of these offences. The EP Act
also allows EPA Victoria to take action to ensure littering
offenders and landowners clean up litter. EPA Victoria
may direct a person who deposited waste illegally to
remove it, or direct the owner or occupier of a premise to
remove the waste if the person who deposited it cannot
be found. Sometimes an effective Clean Up Notice can
result in a substantially higher financial cost for an
offender than the relevant fine.
If you think that a case of waste dumping may be serious
enough to justify the use of these provisions contact your
local regional EPA office, page 46, before taking action.
Asbestos waste
The three main types of asbestos are white, blue and
brown, used mainly before 1980 in the production of
cement sheeting and piping. Asbestos was also used in
the manufacture of vinyl floor tiles, electrical components,
brake linings and disc pads.
Due to the potential public health risks of asbestos
containing materials the disposal of waste asbestos,
whether from a workplace or household, is controlled by
EPA Victoria. In addition, EPA Victoria controls the
transportation of waste asbestos when undertaken by a
commercial contractor.
Identification, management, handling and removal of
asbestos in a workplace are regulated by the Victorian
WorkCover Authority.
Further information on asbestos, including a list of
premises licensed to accept waste asbestos, is available
at www.asbestos.vic.gov.au, a website which contains
collective advice from the Victorian WorkCover Authority,
EPA Victoria and the Department of Health to help
homeowners, tenants, employers and workers understand
the risks of asbestos, how to comply with their duties, and
resources for managing and removing asbestos in homes
and workplaces.
If you would like to have a sample of material tested for
asbestos, contact the National Association of Testing
Authorities (NATA) on 1800 621 666.
If small amounts of dumped/residential asbestos are
detected contact your councils Environmental Health
Department. For larger quantities which appear to be part
of industrial or commercial dumping contact EPA Victoria.
Enforcement in Victoria
The objective of the litter provisions contained within Part
VIIA of the EP Act is to prohibit and regulate the deposit
of litter in the environment, regulate the distribution of
materials that may become litter and to enable the
removal of detrimental or disorderly objects and other
items.
>
When the incident occurred
o
Date
o
Time (including am or pm)
>
Type of litter
>
Description of the person who littered (if
possible) – male/female, brown hair, olive skin
etc.
In relation to littering from a vehicle, the EPA
recommends that the following information also be
supplied:
Vehicle registration number
>
Vehicle description including:
o Make
When is someone considered to be littering?
o
Body type (sedan, utility, van etc.)
A person may be deemed to be littering if he or she
deposits litter in a place that is not provided for the
deposit of litter and is inappropriate for litter of that size,
shape, nature or volume.
o
Colour
o
Model (if possible)
Alternatively, if a person deposits litter in a place so that
it is able to leave that place without human assistance
(and the person does not own or control or is in
possession of the place or is not acting with the express
consent of the owner or the person in control of
possession of the place), a person may be deemed to be
littering.
If the deposit of litter occurs accidentally and the person
does everything that is reasonably possible to retrieve the
litter or the deposit is an unavoidable consequence of a
lawful activity or the person is authorised to deposit litter
by an Act then the person may not be deemed to be
littering.
Reporting of offences (Section 45ZK)
The EP Act allows EPA Victoria or an authorised
enforcement agency to take action as a result of a signed
written report being lodged by any person. Most litter
fines issued in Victoria originate as reports lodged by
members of the public and relate to littering from motor
vehicles.
The EP Act is unique in this respect and it also provides
for more conventional enforcement by properly
authorised litter enforcement officers of public
authorities.
Reporting by members of the public
A litter report form can be downloaded from EPA
Victoria’s website or refer to Publications on EPA
Victoria’s website for penalty infringement notice
template www.epa.vic.gov.au.
Once a report is received, proceedings can be initiated by
an authorised litter enforcement officer.
This form of enforcement is far more cost effective than
face-to-face activity by litter enforcement officers and it
empowers members of the community who want to take
action against litterers.
Public reporters should be encouraged to keep original
details of the report (such as any notes made at the time
of the offence) in case the matter proceeds to court (litter
enforcement officers undertaking face-to-face
enforcement should also always keep original notes as
part of any enforcement action).
Reporting by litter enforcement officers
Litter enforcement officers may also take action on the
basis of their own observations. The sections following
provide guidance on the best means for effective face-toface enforcement of the EP Act.
It is important to note that there is more to enforcement
than knowledge of a specific Act. It is recommended that
training be undertaken by enforcement officers to
enhance skills and become familiar with new techniques in
investigation and enforcement by accredited agencies or
institutions.
Any agency that is serious about enforcing the EP Act
should consider means of encouraging notification by the
public, perhaps by including a copy of a report form on
their website for residents to download and fill out or fill
in online. See Manningham City Council, City of Melton or
City of Greater Dandenong for examples.
Find courses by visiting www.training.gov.au.
There is no approved format for a litter report, however,
section 45ZK of the EP Act does require certain
information to be supplied. This information includes:
Who can enforce the EP Act (Section 4)
>
Where the incident occurred
o
Road, suburb or town
Powers of litter enforcement
officers
EPA Victoria or Victoria Police
Any Victoria Police officer or an officer of EPA Victoria
authorised under the EP Act.
9
Local council
An officer of a council authorised under the EP Act, in
relation to any land or waters in a municipal district.
Procedures for authorising officers vary from council to
council, depending on council policy.
Other litter authorities
An officer of a litter authority (as defined in section 4 of
the EP Act) appointed as a litter enforcement officer, in
relation to any land or waters under the control or
management of the litter authority.
An officer of a litter authority appointed as a litter
enforcement officer, in relation to any vehicle used for a
public purpose (that owns or manages the vehicle).
Powers
All persons, other than children under the age of 18 years
and persons who lack the capacity to control or
understand the consequences of their conduct, can be
held liable for a litter offence under the EP Act.
Except for EPA Victoria officers and Victoria Police who
have wider powers, all other officers can only act within
their area of control, for example: land or waters in a
municipal district, land under the control of Parks
Victoria, Water Catchment Authorities.
Litter enforcement officers exercising power under the
litter provisions of the EP Act must produce proof of
identity on demand (section 45ZH). If an officer requires a
person’s name and address or other information they
must inform that person of the reasons why they require
such information.
A litter enforcement officer can generally enforce the
litter provisions of the EP Act.
Infringement notices
A litter enforcement officer can issue and serve an
infringement notice (section 63B) and take proceedings
(section 59(5)) under the litter provisions of the EP Act.
Infringement notices may be served by a litter
enforcement officer on a person believed to have
committed a litter offence referred to in Schedule A to the
EP Act. It is not required that the infringement notice be
in a format that is approved by EPA Victoria however the
notice must include the information outlined in the
Infringements Act 2006 and relevant regulations.
Litter enforcement officers can in certain circumstances
require alleged offenders to state their name and address.
It is an offence for any person to refuse to give their name
and address when requested to do so, unless he or she
has a reasonable excuse for not doing so (section 45ZG).
In addition, litter enforcement officers can in certain
circumstances seek information and issue notices (for
example a notice under section 45ZI).
Delegations
Appointment as a litter enforcement officer does not
automatically provide authority to officers to issue
notices under section 45X or 45Y of the EP Act. Officers
need to be formally delegated the specific powers to do
this.
The City of Greater Dandenong’s Better Practice Manual –
Dealing with Litter and Illegal Dumped Rubbish provides
an example of the delegation process applicable to it.
This manual may be helpful to other councils and is
available on the VLAA website www.litter.vic.gov.au.
Face-to-face enforcement
Litter enforcement officers need to be thorough when
investigating possible breaches of the EP Act and
accurate when recording information relating to an
offence. For maximum effectiveness, enforcement officers
may need to work flexible hours (including evenings and
weekends).
For safety reasons, litter enforcement officers should
take care when working after hours or conducting specific
litter operations. They may need to arrange for Victoria
Police to be in attendance, particularly when a litter blitz
or similar task is being conducted. Officers should wear
uniforms unless working covertly.
Relevant media liaison should also be organised in
conjunction with a litter enforcement blitz or similar
operation to ensure maximum public awareness of the
actions being taken to combat littering.
10
Penalty units
The value of a Penalty Unit for a financial year is fixed by
the Treasurer under section 5(3) of the Monetary Units
Act 2004 and the value of a Penalty Unit is adjusted
annually on 1 July, in line with CPI increases. Multiples of
Penalty Units are calculated to the nearest dollar.
Current Penalty Unit values can be found on the
Department of Treasury and Finance website:
www.dtf.vic.gov.au.
Dealing with offenders
The following material about dealing with offenders is
intended only as a guide, and does not purport to provide
definitive or exclusive examples of behaviour or
comments that litter enforcement officers may choose to
use. Each agency may have its own suggestions or
training for individual officers and the following
information is intended as a guide only.
Be courteous
Litter enforcement officers should behave in a courteous
manner towards possible offenders and should endeavour
to not be overbearing or become involved in an argument.
Be politely assertive and remember that antagonism and
arrogance may incite aggressive behaviour.
Identify yourself
Having witnessed an offence or if there are reasonable
grounds to believe that a person has committed an
offence, the enforcement officer may choose to approach
the offender by showing identification and saying:
‘My name is .......................I am a litter enforcement officer
for ..................Council (or other body).’
Explain the offence
The enforcement officer may choose to say something
similar to the following:
‘I have just seen you leave/drop/throw/place etc. a
.................... (specify the litter) on the road / footpath /
ground etc.’
‘It is an offence to deposit litter/waste in that manner.’
Serve a notice or warn the offender
You may choose to serve a notice immediately after
observing an offence being committed or you may choose
to give the offender a verbal warning.
If the person fails to take immediate steps to remove the
litter or dumped rubbish, the officer should serve a notice
or, if appropriate, complete a report for the purpose of
court proceedings.
Ask the offender for their name and address
As soon as a litter enforcement officer has decided to
serve an infringement notice he or she can request the
offender’s name and address.
If an offender gives his/her name and address, the officer
should record this information on an infringement notice
and ask the offender if he or she can produce any
evidence to prove their name and address.
choose to say so. For example, words similar to the
following may be appropriate:
‘I have heard your version of what happened but I saw you
throw the (bottle, cigarette butt etc.) I am, therefore,
required to serve an infringement notice on you.’
Keep the discussion short
After following the above procedure try not to engage in
further discussion or argument with the offender.
Fill out a report
Litter enforcement officers should complete reports on all
littering offences and infringements that they observe.
These reports can normally be made in the ‘remarks’
section of the penalty infringement notice. Longer
reports, if necessary, should be made in the manner
approved by the relevant organisation.
As reports form the basis for prosecutions of littering
offences in court, they should be written as soon as
practicable after offences have been observed and while
the circumstances of the offences and details of any
conversations between the officer and the offender/s are
fresh in the officer’s mind.
Refer to Publications on EPA Victoria’s website for
penalty infringement notice template www.epa.vic.gov.au.
Hand the notice to the offender
Investigation techniques
After filling out and signing the infringement notice, the
litter enforcement officer can hand the notice to the
offender and may choose to say:
Investigation
‘If you do not wish to have this matter dealt with by a
court you must pay the fine specified in this notice within
28 days.’
Alert the offender of their right to seek review
After handing the notice to the offender, the enforcement
officer should inform the offender of their right to seek
review of the infringement notice, and may choose to say:
‘You have a right to seek review of this notice – details of
how to do this are contained in the notice.’
Record details of unidentified offenders
If an offender remains silent or refuses to give his or her
name and address, the enforcement officer can choose to
say:
‘If you do not give me your name and address you may be
liable for a fine of up 20 penalty units.’
If the offender does not then give his or her name or
address, the enforcement officer should note the
identifying features of the offender and any other details
such as vehicle type and registration.
Listen to a person who denies or disputes an
offence
If a person denies or disputes committing the offence
alleged by an enforcement officer, the officer should
endeavour to listen to the person’s version of the facts. If
the officer does not accept this explanation, he or she can
This section describes the elements of an effective
investigation.
What are elements of offences?
To issue a Warning Letter, Penalty Infringement Notice or
prosecute, it is not sufficient to merely consider that an
offence has been committed and locate the offender. In
order to proceed with enforcement measures (including
issuing a Warning Letter), you must obtain sufficient
evidence to support any charge against that offender.
Remember, the allegations that give rise to an
infringement notice can result in court proceedings if the
infringement notice is not paid or if the alleged offender
decides to contest the matter.Part of the process for
collecting this evidence is called establishing the elements
of the offence.
The elements of the offence must be established on all
occasions when it is suspected that a breach of an Act has
occurred.
The elements of litter offences created under the
EP Act – a guide for litter enforcement officers
implementing the EP Act.
The following paragraphs provide some examples of the
elements of some sections of the EP Act. Each element of
a relevant section must be substantiated (i.e. a litter
enforcement officer must have evidence for each of the
elements) in order to successfully issue an infringement
notice or commence prosecution. This is because of a
fundamental requirement of the criminal law that the
prosecution must prove each element of the alleged
offence (beyond a reasonable doubt) before a Court can
11
find the offence proven. Each section in the EP Act
generally can be broken down to its constituent elements
as shown by the following examples:
45E Deposit of Litter Generally
>
>
>
>
Person (see ‘identity’ below)
Deposits
Litter
And either of the following:
o in a place not provided for the deposit of
litter
or
o
in a place provided for deposit of litter
that is inappropriate for litter of that
size, shape, nature or volume
OR
>
in such a manner that the litter may leave that
place without human assistance (e.g. windblown), even if:
o they own/control/possess the place
>
Be precise with identification of the entity.
Make sure you correctly identify the legal person you are
dealing with so as to ensure that there will be no
opportunity to create uncertainty at some later stage.
Gather as much information as possible to ensure that
you make positive identification of the entity at the outset
of your inquiries.
In the case of an individual always endeavour to obtain:
>
>
>
>
>
they are acting with the express consent
of the person who
owns/controls/possesses the place
UNLESS
o
they are authorised to deposit the litter
under legislation
>
>
they deposit the litter as an unavoidable
consequence of a lawful activity
or
o
the deposit is accidental and the person
did everything that is reasonably
possible to retrieve the litter.
45F Aggravated Littering
>
>
>
Person
Convicted under 45E for the offence under
investigation
Court satisfied convicted offence involved:
o intentional deposit of
glass/metal/earthenware/crockery
or
o
intentional deposit of litter that was a
danger to any person/animal or to any
land/waters/vehicle
or
o
intentional deposit of litter
on/from/towards any vehicle.
Identity – who or what is ‘a person’?
A person must be a 'Legal Person’, i.e., recognised by the
law. Generally speaking, there are 3 types of legal
persons:>
>
12
Natural person
Companies/commercial entities
Distinguish ‘ABC Pty Ltd’ (a proprietary or
private company) from ‘ABC Ltd’ (a public
company)
Distinguish ‘XYZ (Australia) Pty Ltd’ from ‘XYZ
(Aust.) Pty Ltd’.
A business name is not a legal entity. It is merely a name
under which legal entities can trade, for example:
>
or
o
Full name
Current address (and length of time there)
Previous address (if appropriate)
Date of birth
Occupation.
The proper identification of a corporate body where
necessary is also essential. This is particularly so when
dealing with large organisations where many companies
with similar names may exist, for example
or
o
Statutory corporations/organisations.
‘Fly-by-Night Enterprises’ may be the trading
name of ABC Waste Services Pty. Ltd., something
very different to Fly-by-Night Enterprises Pty.
Ltd.
A business name does not exist in the eyes of the law and
it cannot have obligations imposed on it. Consequently
you must determine the legal entity that owns the
business name (i.e., a person or company).
To do this a Company Search with the Australian
Securities and Investment Commission (ASIC) may need
to be lodged. Company Search documents will provide you
with the name and address of each Director, plus the
registered company address to which enforcement
documents should be served. See www.asic.gov.au for
more information.
Investigation techniques
The outcome of an investigation is dependent on the
strength of the evidence presented to the determining
authority.
The laws of evidence consist of technical rules that
determine what potential evidence is admissible in court
to assist in determining the truth of disputed questions of
fact.
What constitutes evidence?
Evidence is anything that tends to prove or disprove an
element, or elements, of an offence.
Evidence can be presented to a court in the following
forms:
>
Oral evidence (word of mouth, by the witness to
the Court)
>
>
Documentary evidence (a fact brought to the
knowledge of the Court by inspection of a
document produced to the Court)
Real evidence (evidence supplied as material
objects produced for the inspection of the Court).
Items of documentary and real evidence presented to
Courts are referred to as exhibits. It is the responsibility
of the investigator who locates and takes possession of
any exhibits to ensure that the integrity of those exhibits
is maintained (eg they are not lost, interfered with, the
chain of custody is preserved, etc.
Identifying physical evidence
During the course of most investigations, officers may
need to identify items of physical evidence. These items
may range from material goods to documents.
Litter enforcement officers must be aware of the need to
preserve potential evidence and the importance of
ensuring that there is no interference with exhibits or the
area where the item is located and/or stored. The
evidentiary value of the item must be properly assessed
(and, if necessary, recorded) before it is moved or
interfered with. Movement or interference by untrained
personnel may destroy or contaminate an item’s
evidentiary worth.
The person locating the item should consider the following
matters:
>
>
>
Is there a need to capture an image of the scene
prior to disturbing anything? This can be done by
means of a photograph, video or even notes or a
drawing detailing the layout of the scene and
items of interest.
What is the best method of collecting that item of
evidence? Are gloves required (for safety and/or
to avoid fingerprint contamination)? How can the
item be best identified and recorded?
Have all potential witnesses relevant to this
event been identified?
Continuity
In order to preserve the evidential value of an exhibit as it
passes from one person to another, the chain of
possession must be clearly established. This ‘chain’ is
referred to as ‘continuity’.
>
>
Persons suspected of breaching that Act
Other law enforcement agencies
>
Persons who are connected to a particular
investigation case.
or
In a prosecution, the oral evidence of an officer, who is a
witness in the case, is vital to the success of the
prosecution. With the possibility that several cases may
be current at the same time and because of delays that
commonly occur before cases are heard, officers may be
unlikely to fully recall all the relevant details of a
particular case. For this reason, officers must rely heavily
on their notes.
The truth is most likely to be served when officers who
are testifying are permitted to refer to their notes. These
notes must have been made contemporaneously, that is,
made at the time or shortly thereafter whilst the events
are still fresh in the mind of the note maker. These notes
must be available for scrutiny by the defendant and they
may be required to be produced for inspection by the
Court.
If it is worthwhile making a mental note of something, it is
worthwhile making a written note.
The purpose of notes
>
>
>
>
>
>
>
Two main problems that frequently occur in court are
that:
>
Note taking
In general, notebooks are to be maintained by an officer
involved in enforcement or the upholding of a law, who in
the course of his or her official duty, interacts with:
>
>
The general public
Members of his/her own agency
The notes were taken at a time too remote from
the event (sometimes days or weeks afterwards)
and/or
>
Once it has been determined that an item will be seized as
an exhibit, logical and systematic procedures must be
followed to ensure that continuity of the item can be
proven. Proper records of, and adherence to these
procedures, should be maintained by enforcement
officers.
It is the responsibility of the investigating officer to
ensure that he/she can swear that the exhibit has not
been altered, tampered with, or had its identifying label
changed while it was in his/her possession.
To record anything of significance
To record incidents that arise during an
investigation
To record matters that may be difficult to
remember
To provide a reference source when interviewing
suspects and witnesses
To form the basis of your statements
To refresh your memory when giving evidence
To provide a permanent written record of
material that is the subject of the notes.
The original notes are unavailable. If notes are
recorded either on loose paper or in a notebook
and at a later time a typed statement is prepared,
the original notes must be available for
examination by the court. If the original notes are
unavailable, the investigator may be refused
permission to refer to the statement.
Remember:
1.
2.
3.
Statements and affidavits must be based on the
factual content of an officer’s notes.
Officers may be cross-examined on their
notes/statement.
The notebook may have to be tendered as
evidence, and relevant pages should be identified.
Notebooks may serve to refute allegations that the
defence might raise against the officer or the
investigation in general.
13
Affidavits
>
Affidavits are usually the main means by which
information gathered during an investigation is converted
into admissible evidence.
>
>
>
An affidavit is essentially the written form of what a
witness knows and can say about a matter of interest to
the enforcement officer. It is usually a chronological
account of the observations and experiences of the
witness.
An affidavit is a statement that has been attested to by
oath or affirmation and carries a penalty for untruths.
Method for taking an affidavit from a witness
An affidavit from a witness preferably should be a typed
document obtained and sworn/affirmed as near as
possible in time to the events it relates to. Your
organisation may have further information about how to
prepare an affidavit, and what format is most appropriate
for your organisation to use for enforcement.
The Evidence Act 2008 outlines the categories of persons
who may witness statutory declarations and affidavits.
Briefs of evidence
If an investigation proceeds to court, a litter enforcement
officer may be required to compile the gathered
information into a concise and structured format. This
consolidated package is then forwarded to the relevant
prosecuting body. This package of information is
commonly referred to as a brief of evidence.
The brief of evidence should detail:
>
>
>
>
>
All the known facts
The probable offence/s
The identity of the alleged offender
All available (admissible) evidence
o Witness statements
o Exhibits
o Photos
The method used to commit the offence.
An enforcement officer may be responsible for assembling
or building the brief of evidence. The format of (and
process for assembling) a brief may vary according to the
requirements of the prosecuting authority and the nature
of the matter. The litter enforcement officer should
consult their own agency and prosecutors, or local
council, at the start of the brief preparation process for
advice and help on the format and structure of the brief.
Although the precise format and style of each brief of
evidence may differ according to a particular case, the
basic components will remain essentially the same. This is
true regardless of the relative complexity or size of a
particular prosecution.
These components are likely to include all or some of the
following:
>
>
>
>
>
>
>
14
Index/table of contents
Brief cover
Summary
Copy of charges
List of witnesses and exhibits
Prior convictions
Summary of costs
Affidavits (of investigators, witnesses, expert
etc.)
Exhibits
Photographs
Transcript of interview (if interview conducted).
Legal proceedings under the litter section of the EP Act
may be commenced within twelve months after the
commission of the alleged offence or a further period of
one year after the day on which the enforcement agency
first obtained evidence of the commission of the alleged
offence. For further detail see the Criminal Procedure Act
2009.
The compilation of any Brief of Evidence reflects on your
professionalism. Ensure where possible that all relevant
documentation and evidence has been supplied.
Court proceedings
Prosecution of offenders
Litter offences under the EP Act are ‘summary offences’
that carry lesser penalties than other types of criminal
offences.
When may prosecution be initiated?
Prosecution proceedings may be undertaken in the
following circumstances:
>
If an offence is too serious to be dealt with by
way of an infringement notice
>
If an offender has failed to pay a penalty within
the time specified in an infringement notice
>
The accused can elect to have the matter
referred directly to the Magistrates’ Court for
determination.
or
or
Initiating proceedings
Offenders will be prosecuted in accordance with
procedures established by the council or agency
concerned. This may involve use of the Civic Compliance
(formerly PERIN) computerised system for the issue of
notices or an alternative system.
Investigation process
Each agency manages the investigation of litter and illegal dumping incidents slightly differently however a generally
accepted model for this can be viewed in Figure 2.
Figure 2 Litter and illegal dumping investigation flowchart Diagram: Victorian Litter Action Alliance
15
Definitions
‘litter enforcement officer’ means —
a)
b)
EP Act
‘Authority’ means the Environment Protection Authority
constituted under this Act.
‘authorized’ means authorised in writing by the Authority
either generally or specially.
c)
‘authorized officer’ means a person appointed under this
Act as an authorised officer for the purposes of this Act.
or
‘delegated agency’ means any protection agency to which
any power or function of the Authority is delegated under
Section 68.
‘deposit’, in relation to litter, means the act of parting
with the possession of the litter.
ii.
d)
e)
‘highway’ means —
any street, road, lane, bridge, thoroughfare or
other place open to or used by members of the
public for passage by motor vehicles;
and
b)
any public car park.
‘industrial waste’ means —
a)
any waste arising from commercial, industrial or
trade activities or from laboratories;
or
b)
any waste containing substances or materials
which are potentially harmful to human beings or
equipment.
‘land’ means any land, whether publicly or privately
owned, and includes any buildings or other structures
permanently affixed to the land.
‘litter’ includes any solid or liquid domestic or commercial
waste, refuse, debris or rubbish and, without limiting the
generality of the above, includes any waste glass, metal,
plastic, paper, fabric, wood, food, soil, sand, concrete or
rocks, abandoned vehicles, abandoned vehicle parts and
garden remnants and clippings, but does not include any
gases, dust or smoke or any waste that is produced or
emitted during, or as a result of, any of the normal
operations of the mining, building or manufacturing
industry or of any primary industry.
16
the Authority
any other body created by or under an Act
any government department
any municipal council
any protection agency
any body declared by Order of the Governor in
Council under section 45C to be a litter authority.
a member of the police force
in relation to any bus, tram, watercraft, rail
vehicle or aircraft that is being used for a public
purpose, a person appointed as a litter
enforcement officer by the litter authority that
owns or manages that vehicle.
‘motor vehicle’ has the same meaning as in the Road
Safety Act 1986.
‘occupier’ in relation to any premises includes a person
who is in occupation or control of the premises whether or
not that person is the owner of the premises and in
relation to premises different parts of which are occupied
by different persons means the respective persons in
occupation or control of each part.
‘place’ includes a receptacle, a vehicle and any waters.
‘pollute’ includes causing or permitting pollution.
‘premises’ includes messuages, buildings, lands, and
hereditaments of every tenure and any machinery, plant,
appliance, or vehicle used in connexion with any trade
carried on at any premises and includes a ship.
‘protection agency’ means any person or body, whether
corporate or unincorporate, having powers or duties
under any other Act with respect to the environment or
any segment of the environment in any part or parts of
Victoria.
‘registered owner’ means —
a)
in relation to a motor vehicle – the person who is
registered under the Road Safety Act 1986 as the
registered operator of the motor vehicle
b)
in relation to a motor boat – the person who is
registered under the Marine Act 1988 as the
registered owner of the motor boat
in relation to any other vehicle – the person who
owns the vehicle (whether the vehicle is
registered in any way or not).
and
‘litter authority’ includes —
a)
b)
c)
d)
e)
f)
any offence that may result in litter
appearing on any such land or waters
(regardless of where the offence occurs)
an officer of the litter authority appointed by it as a litter
enforcement officer
‘environment’ means the physical factors of the
surroundings of human beings including the land, waters,
atmosphere, climate, sound, odours, tastes, the biological
factors of animals and plants and the social factor of
aesthetics.
a)
an authorised officer
in relation to any land or waters in a council's
municipal district, an officer of the council
appointed by the council as a litter enforcement
officer;
in relation to —
i.
land or waters under the control or
management of a litter authority
c)
‘regulation’ means regulation made under this Act.
‘Tribunal’ means Victorian Civil and Administrative
Tribunal established by the Victorian Civil and
Administrative Tribunal Act 1998.
‘vehicle’ means —
a)
anything that is capable of transporting a person,
including an aeroplane, boat, bicycle, bus, car,
horse, train or tram
b)
any trailer that is attached to any such thing.
or
‘waste’ includes —
a)
b)
c)
d)
any matter whether solid, liquid, gaseous or
radio-active which is discharged, emitted or
deposited in the environment in such volume,
constituency or manner as to cause an alteration
in the environment
any discarded, rejected, unwanted, surplus or
abandoned matter
any otherwise discarded, rejected, abandoned,
unwanted or surplus matter intended for —
i.
recycling, reprocessing, recovery or
purification by a separate operation from
that which produced the matter
or
ii.
sale
and
any matter prescribed to be waste.
Interpretation of Legislation Act 1984
‘land’ includes buildings and other structures permanently
affixed to land, land covered with water, and any estate,
interest, easement, servitude, privilege or right in or over
land.
‘person’ includes a body politic or corporate as well as an
individual.
Information Privacy Act 2000
‘law enforcement agency’ means —
a)
an agency responsible for the performance of
functions or activities directed to —
i.
the prevention, detection, investigation,
prosecution or punishment of criminal
offences or breaches of a law imposing a
penalty or sanction for a breach.
A litter enforcement officer performing duties on behalf of
a Litter Authority who requests certain information from
any organisation or body in relation to the investigation of
an offence under the EP Act is not breaching the
Information Privacy Act.
17
Environment Protection Act 1970 –
part VIIA
The following pages provide details of the sections of the
EP Act (in Part VIIA) that are enforced by authorised litter
enforcement officers.
Sections which have been noted as key enforcement tools
are listed in their entirety, with comments, and in some
cases, case studies added to assist enforcement officers
in their use of the provisions.
For further information refer to the EP Act at Victorian
Legislation online or contact EPA Victoria.
Definitions in relation to the Act and other selected acts
can be found on page 19 & 20.
The schedule of on-the-spot fines and offence codes can
be found on page 33.
45A.
or
e)
Penalty: 40 penalty units.
2. For the purposes of sub-section 1d, a consequence is
unavoidable if there is no reasonably practicable way of
avoiding it.
45E creates the general offence of littering.
SECTION 45F
45F.
Object of Part
to prohibit and regulate the deposit of litter in the
environment
a)
the intentional deposit of glass, metal,
earthenware or crockery
b)
the intentional deposit of litter that was a danger
to any person or animal or to any land, waters or
vehicle
c)
the intentional deposit of litter on, from or
towards any vehicle.
or
and
b)
to regulate the distribution of materials that may
become litter
and
c)
to enable the removal of detrimental or disorderly
objects and other things.
45A defines the purpose of the littering provisions of the
EP Act.
Division 2 — Littering Offences
SECTION 45E
45E.
a)
the person deposits the litter in a place—
i.
that is provided for the deposit of litter
and
ii.
b)
that is appropriate for litter of that size,
shape, nature or volume; or
the person deposits the litter in or on a place in
such a way that it cannot leave the place without
human assistance and the person—
i.
owns, controls or is in possession of the
place
or
ii.
c)
is acting with the express consent of the
person who owns, controls or is in
possession of the place; or
the person is authorised to deposit the litter by or
under an Act or a Commonwealth Act
or
d)
18
or
Penalty: In addition to, or instead of, any penalty under
section 45E, 60 penalty units or imprisonment for 1
month or both.
45F creates the offence of aggravated littering.
Some examples of aggravated littering are:
>
Deposit of litter generally
1. A person must not deposit any litter unless—
the deposit of the litter is an unavoidable
consequence of a lawful activity
Aggravated littering
A person convicted of an offence under section 45E is
guilty of the offence of aggravated littering if the court
which convicts the person is satisfied that the offence
involved—
The object of this Part is—
a)
the deposit is accidental and the person does
everything that is reasonably possible to retrieve
the litter.
>
>
The intentional depositing of a significant amount
(e.g., trailer load) of commercial or residential
waste in a location not designated for waste
disposal;
The act of deliberately throwing a lit cigarette
from a vehicle in the countryside on a day of total
fire ban and;
Incidents involving asbestos as a threat to the
health and safety of individuals exists.
Penalties for aggravated littering are 60 penalty units, or
imprisonment for up to one month or both these penalties
can be imposed instead of the usual penalties under
section 45E or in addition to penalties under section 45E.
Case Study 1 – Section 45F Aggravated littering at
Manningham City Council
At 5pm on 25 March 2013 a passer-by witnessed the
illegal dumping of approximately two cubic meters of roof
sheeting, believed to contain asbestos, on a road reserve
in Donvale, Figure 3.
The witness stopped at a safe distance, took photos using
a mobile device, then reported the incident to
Manningham City Council's Litterwatch Hotline (1800 NO
LITTER) providing details of the incident.
Manningham City Council’s environmental services team
were called to assess the material and, upon positively
identifying asbestos, arranged to have a licenced
removalist attend to remove it.
Manningham City Council’s Litter Prevention Officer,
Travis Finlayson, was notified of the incident and began an
investigation.
Using the information supplied by the witness Travis
requested and received vehicle owner information from
VicRoads and was able to contact the owner of the
vehicle, explain the allegation and invite him in for an
interview, which was accepted. The witness also made a
statement.
Following this, a brief of evidence was compiled with the
informant’s statement and the case proceeded to the
Magistrates’ Court of Victoria.
The offender was convicted of aggravated littering and
was ordered to pay a total of $7,612. This included a
$5,000 fine for aggravated littering and full
reimbursement of the council's clean up, administrative
and legal costs.
Using the information provided by the witness and the
developer, as well as evidence found in the waste during
manual investigation, the offenders were identified and
attended the council offices for an interview. They denied
dumping the waste.
Wyndham City’s Litter Prevention Officer, Chris Kentley,
had enough evidence to prosecute the case, and the pair
were summonsed to appear in the Magistrates’ Court of
Victoria.
The Magistrate found the offenders guilty (ex-parte) fining
them each $4,000 as well as ordering them to pay
council’s legal fees of $633.70, and $900 compensation
to the developer for their clean-up costs. Accordingly,
each offender was effectively ordered to pay $5,533.70 in
fines and costs.
One offender later applied for a re-hearing and pleaded
not guilty however the resident who reported the incident
appeared in court as a witnesss and identified the
offender as the driver of the vehicle. The guilty verdict
was upheld.
SECTION 45J
45J.
Notice to accompany charges using section 45G
1. A person who issues an infringement notice, or files a
charge, against a person who is deemed guilty under
section 45G(1) must ensure that the infringement notice,
or the charge, is accompanied by a notice under this
section.
The notice must—
a)
Figure 3 Asbestos waste illegally dumped in Donvale
road reserve Photo: Manningham City Council
SECTION 45G
45G.
Owners, drivers etc. of vehicles from which litter
deposited liable for littering
Section 45G(1) provides that the owner or driver or
person in charge of a vehicle is deemed guilty of an
offence under section 45E (owner-onus) unless the person
who committed the offence can be identified.
Section 45G(2) provides that the owner of a vehicle is
guilty if an offender is seen arriving at or leaving the area
where litter was deposited, in a vehicle.
Case Study 2 –Section 45G Litter from a vehicle in
Wyndham City Council
In February 2012 two residents vacating a property in
Point Cook dumped their excess waste onto three vacant
properties nearby.
A resident witnessed the illegal dumping incident and
made a Crime Stoppers report identifying the offender’s
rental truck and registration. Further to this the property
developer for the estate found the waste and notified
Wyndham City Council.
contain a copy of sections 45E, 45G, 45H and
45I;
and
b)
name the person giving the notice;
and
c)
contain that person's business address.
Enforcement officers must remember to include
information required by section 45J when issuing
penalties under section 45G.
Refer to Publications on EPA Victoria’s website for notice
Division 3 – Offences Concerning Material That
May Become Litter
SECTION 45K, 45L & 45M
45K.
Unsolicited Documents
Sections 45K, 45L and 45M are designed to regulate the
delivery of advertising material. These sections define
unsolicited documents, proscribe the depositing of
unsolicited or unwanted documents in certain
circumstances and create offences relating to advertising
material.
>
Unsolicited mail is commonly referred to as ‘junk
mail’. This category does not include newspapers
but if residents have issues with local
19
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>
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newspapers they should contact their local
Newspaper Editor.
There are a number of exemptions relating to
some types of documents, for example:
documents distributed by government agencies,
power, gas and water suppliers and the like.
Residents receiving unwanted junk mail should
attach a ‘No Junk Mail’ sign on their mail box. The
Distribution Standards Board (DSB) can provide,
free of charge, a ‘No Advertising Material’ sticker,
on receipt of a stamped addressed envelope to
DSB Sticker, Suite 6, 151 Barkly Avenue,
Richmond, Victoria 3121. The DSB maintains a
database of all known addresses that carry a
restrictive sign on the letterbox and if the
problem continues, council or the resident should
contact the Distribution Standards Board
directly.
Consumers can call the DSB Hotline 1800 676
136 to report illegal or irresponsible distribution
practices. If the offence still continues,
abatement notices and penalties may be issued
to achieve compliance.
SECTION 45N
45N.
Leaflets etc placed on vehicles.
clean it up rather than have council staff perform the
clean-up at ratepayers’ expense.
SECTIONS 45O, 45P, 45Q & 45R
45O.
Bill posting not to occur without consent
45P.
Advertiser must disclose name of distributor
45Q.
Distributor must disclose name of depositor
45R.
Person who commissions document must ensure
that it does not become litter
Bill Posting is dealt with in a variety of ways by litter
authorities, a number of which have experienced great
success and significantly reduced the clean-up costs that
they had previously been incurring.
Some examples are:
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It is an offence to deposit documents (advertising
flyers/leaflets or similar material) on vehicles without the
express consent of the owner.
>
Note that parking infringement notices placed on vehicles
are exempted from this provision.
Note that because there are no circumstances where the
placing of advertising materials on vehicles is acceptable
without the express consent of the owner, the DSB has no
role to play and should not be contacted about this form
of littering.
Case Study 3 – Section 45N ‘Monster Truck’ flyers on
vehicles in Shepparton
In March 2014 promoters for the Monster Truck
Spectacular in Shepparton placed flyers advertising the
event on vehicles within the municipality without permits
or permission.
Greater Shepparton City Council was alerted to this by a
disgruntled ratepayer who received a flyer on their car.
Litter Enforcement Officer, Mark Parker, visited the area
where flyers had been distributed, collected some, and
contacted the promotion company responsible. The
company was instructed to remove them as soon as
possible as their placement contravened section 45N of
the EP Act.
The promotion company arranged to have the people who
placed leaflets on vehicles to remove as many as possible
as soon as possible. The majority of leaflets were
collected and total compliance was achieved. Information
is to be supplied for all future promotions.
In this case a penalty notice was not issued, however
council benefited by making use of its powers under the
EP Act to make the persons responsible for the litter
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Utilising 45ZI to determine who was responsible
for bill posting on property not under the control
of the advertiser with a view to issuing penalties
or prosecuting. Note that there is a significant
penalty for non-response to a notice issued by
Section 45ZI, which is equivalent to the penalty
for the offence being investigated.
Issuing a 45Y direction to the venue/promoter to
remove all posters.
Utilising 45R to prosecute the firm whose
products are being promoted (this is particularly
effective when the firm is well established and
easy to locate).
Placing stickers with ‘Cancelled’ over posters
promoting concerts have also been used by a
number of municipalities with success.
The Summary Offences Act 1996 and the Road
Management Act 2004 also have provisions pertaining to
bill posting offences.
Case Study 4 – Section 45O Selling houses in
Wyndham City
Over a three year period from 2010 to 2012 hundreds of
advertising signs were placed on traffic and power poles
across Wyndham City.
Signs were pulled down by Wyndham City’s Litter
Prevention Officer, Chris Kentley, and the phone number
was traced back to the offender who was issued with a
notice under section 45ZI of the EP Act. There was no
response to the notice.
The offender was summonsed to appear in the
Magistrates’ Court to answer to the offence under section
45O of the EP Act – Bill posting not to occur without
consent.
The defendant appeared in court, pleaded guilty, and each
legal person (company and Director) was fined $1000 and
ordered to pay costs $652.20 (Council Legal fees) = Total
$1652.20 each, $3304.40 in total.
‘Unsecured load’ and can result in an on the spot fine of 2
Penalty units.
Case Study 5 – Section 45U Unsecured load in
Melton
In April 2012 City of Melton Litter Education and
Prevention Officer, Dylan Weeks, came across a pile of
household rubbish, plastic bags and clothes during a
routine patrol of a litter hotspot.
Figure 4 Illegally placed signage on Wyndham traffic pole
Photo: Wyndham City Council
Division 4 – Other Offences
SECTION 45S
45S.
Offence to ask person to commit offence
Dylan manually inspected the material and found various
sources of identification. After gathering the evidence
Dylan sent a notice under section 45ZI of the EP Act to
the address found on identification. A response was
received explaining that the rubbish had fallen from a Ute
when moving house. A notice under section 45U of the EP
Act was then sent for the unsecured load and this
infringement was paid by the offender.
Council’s waste services contractors removed the dumped
material during their routine collection.
Division 5 – Removal of Litter and Disorderly
Things
An example includes the following: instructing an
employee to deposit a trailer load of waste in a location
not designated for waste disposal such as parklands,
roadsides, vacant industrial land or any other land which
is not a licensed landfill or transfer station.
SECTION 45V
SECTION 45T
45T.
Offence to deface or set fire to public litter
receptacles
This direction can be verbal or written and only used when
section 45E of the EP Act ‘Deposit of litter generally’ is
satisfied.
A person/s may be prosecuted for defacing or setting
alight public litter receptacles.
If a number of receptacles are vandalised or destroyed,
laying a charge of criminal damage may be a course of
action to consider.
SECTION 45U
45U.
Offences concerning the loading of vehicles
1. A person must not require another person to move a
vehicle carrying a load unless he or she supplies the other
person with sufficient means to secure the load in such a
way that litter cannot leave the vehicle without human
assistance.
2. A person who is in control of a moving vehicle must
ensure that it is loaded in such a way that litter cannot
leave the vehicle without human assistance.
45V.
Litterer must remove litter if asked
A person must remove any litter deposited by that person
if asked to do so by a litter enforcement officer.
Case Study 6 – 45V Cemetery dumping in Kilcunda
In July 2013 approximately three cubic metres of
household waste, including furniture and clothing, was
dumped in the car park of a rural foreshore cemetery in
the small town of Kilcunda on Victoria’s picturesque
southern coastline. The cemetery and car park are Crown
Land, managed by DEPI.
Local residents many of whom had lived in the area for
generations and have relatives or ancestors buried in the
cemetery, were understandably offended at the
particularly sensitive dumping site of choice for this
offender.
The incident was reported to Council by a community
member and was then inspected by Bass Coast Shire
Ranger, George Antal.
Incidents occurring on Crown Land have, in the past, been
referred to Parks Victoria or DEPI for action however
Councils have begun investigating certain cases within
their jurisdiction where resources allow.
3. It is a defence to a charge under sub-section (2) if the
person was required to move the vehicle by a person who
was in breach of sub-section (1).
George found identifying items for a local resident from a
nearby town and used his formal power under section 45V
of the EP Act to instruct her to remove the litter.
Note that ‘vehicle’ is broadly defined and includes ‘trailer’,
see Definitions, page 19 & 20.
The offender admitted to the offence and removed the
litter quickly. The offender was issued with a penalty
infringement notice carrying two penalty units for the
offence. Local newspaper and independent media
reported on this case and were complimentary of Bass
Coast Shire’s efforts to identify and reprimand the
A penalty infringement notice may be issued to the driver
for failing to secure the load properly. The offence is
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litterer: http://www.basscoastpost.com/the-case-of-thekilcunda-dumper.html.
to remove or dispose of the litter within the time specified
in the notice.
5. An occupier who receives such a direction must comply
with it, unless he, she or it has reasonable cause not to do
so.
6. The Authority may exercise its powers as a litter
authority under this section in respect of any litter in
Victoria to which, in the opinion of the Authority, subsection (1)(a), (1)(b) or (1)(c) applies.
Figure 5 Illegal dumping at Kilcunda Cemetary
SECTION 45W
45W.
Court may order removal of litter
If a court convicts a person of an offence under the EP
Act, the court may order the person to clear away and
remove the litter or in addition to any possible penalty,
the court may order the person to pay compensation to
the person or the body who has control of the land for any
expenses they may have incurred in the removal of the
litter.
The court may also order that a person who contravenes
either of the above orders to pay a fine of not more than
40 penalty units.
Section 45X of the EP Act enables a litter authority to
direct a person to remove litter if it is, or is likely to
become a threat to health, the environment, or if it is
unduly offensive to the senses of humans. If the person
who has deposited the litter cannot be found, the litter
authority may by written notice direct the occupier of the
premises to remove the litter.
Note that: the power to use section 45X rests with the
litter authority and is acquired by delegation, not by
authorisation as a litter enforcement officer. Litter
enforcement officers or other staff of a litter enforcement
authority must acquire specific delegation in order to
utilise section 45X of the EP Act. This can be done at the
same time that an officer is authorised as a litter
enforcement officer.
SECTION 45X
45X.
SECTION 45Y
Person may be directed to remove litter
1. This section applies if, in the opinion of a litter authority,
any litter that is on or in any land or waters under the
control or management of the litter authority is, or is likely
to become—
a)
detrimental to the health, safety or welfare of
members of the public;
45Y.
Person may be directed to remove disorderly
etc. objects or things
1. This section applies if any object or thing is deposited on
or in any place under the control or management of the
litter authority and—
a)
or
b)
unduly offensive to the senses of human beings;
c)
a hazard to the environment.
or
in the opinion of the litter authority—
i.
the object or thing is detrimental to the
health, safety or welfare of members of
the public while it remains in that place;
or
2. The litter authority may, by written notice, direct any
person who deposited the litter to do one or more of the
following—
a)
b)
c)
to remove or dispose of the litter;
to restore any place affected by the litter to a
state as close as practicable to the state it was in
immediately before the litter was deposited;
to take any other action in relation to the litter
that is specified in the notice—
4. If the person who deposited the litter cannot be found,
the litter authority may, by written notice, direct the
occupier of any premises on which the litter was deposited
22
the object or thing is unduly offensive to
the senses of human beings while it
remains in that place;
iii.
the object or thing is a hazard to the
environment while it remains in that
place;
or
or
b)
within the time specified in the notice.
3. A person who receives such a direction must comply
with it.
ii.
the size, shape, nature or volume of the object or
thing makes the place where it is deposited
disorderly, or detrimentally affects the proper use
of that place.
2. The litter authority may, by written notice, direct any
person who deposited the object or thing to do one or
more of the following—
a)
b)
to remove or dispose of the object or thing;
to restore any place affected by the object or
thing to a state as close as practicable to the
c)
state it was in immediately before the object or
thing was deposited;
to take any other action in relation to the object
or thing that is specified in the notice—
The total cost of the clean-up will remain as a recoverable
debt, attached to the property, to be paid when the owner
sells the land.
3. A person who receives such a direction must comply
with it.
4. If the person who deposited the object or thing cannot
be found, the litter authority may, by written notice, direct
the occupier of any premises on which the object or thing
was deposited to remove or dispose of the object or thing
5. An occupier who receives such a direction must comply
with it, unless he, she or it has reasonable cause not to do
so.
Section 45Y of the EP Act enables a litter authority to
direct a person to remove any disorderly object or thing
from any place under the control of the authority, if the
disorderly object or thing is, or is likely to become a threat
to health, the environment, or if it is unduly offensive to
the senses of humans. If the person who deposited the
object or thing cannot be found, the litter authority may
by written notice direct the occupier of the premises to
remove the object or thing.
Note that: the power to use section 45Y rests with the
litter authority and is acquired by delegation, not by
authorisation as a litter enforcement officer. Litter
enforcement officers or other staff of a litter enforcement
authority must acquire specific delegation in order to
utilise section 45Y of the EP Act. This can be done at the
same time that an officer is authorised as a litter
enforcement officer.
Case Study 7 – Section 45Y City of Greater
Geelong orders the clean-up of litter and disorderly
things.
During 2012 the City of Greater Geelong received a
number of calls from residents, neighbours and motorists
regarding an unsightly property visible from the Geelong
Ring Road.
Figure 6 Illegal dumping on property in Geelong Photo:
Geelong City Council
SECTION 45Z
45Z.
Authority may remove litter or object or thing if
direction not complied with.
This section allows the litter authority to remove the litter
if the person fails to comply with 45X or 45Y direction
and enables the litter authority to recoup the reasonable
costs incurred for the removal of the litter.
SECTION 45ZA
45ZA. Occupier may recover cost of removing litter
from litterer
This section provides for the occupier of premises to
recoup the costs incurred by complying with section 45X
or 45Y from the person who deposited the litter.
Division 6—Prevention of Litter
SECTION 45ZB
45ZB. Litter abatement notice
1. If —
a)
a person carries out any activity that has caused,
or is likely to cause, the deposit of litter contrary
to section 45E;
b)
a person is the occupier of premises from which
litter has, or is likely to, escape —
Team Leader – Health and Amenity Standard, Local Laws,
Wayne Lugg, attended the property, using powers of entry
granted under the Local Government Act, to inspect.
Wayne found that the vacant block was being used as a
dumping ground for car bodies and other waste.
or
A number of photos were taken to document the situation
and the property owner, once established, was sent an
order to clean up under section 45Y of the EP Act.
a litter enforcement officer may serve a litter abatement
notice on the person.
The property owner did not comply with the order within
the set timeframe so Council proceeded to clean up the
offending property using front-end loaders and dump
trucks.
2. A litter abatement notice may require the person to do
one or more of the following —
a)
b)
to not deposit litter contrary to section 45E;
to ensure that no litter escapes from any
premises occupied by the person;
23
c)
to do, or not do, specified things to ensure that
the person does not breach this Part.
3. A person who has been served with a litter abatement
notice must comply with the notice.
Case Study 8 – Section 45ZB Shepparton building
site compliance
Greater Shepparton City Council has a number of housing
developments underway and as such mud and debris on
roads from building sites is often an issue.
4. A litter abatement notice may specify a period of time
within which any requirement it imposes must be complied
with.
In June 2014 mud and debris from a building site was
found to be covering pedestrian and vehicle access to an
area and this was reported to the council by a resident.
45ZC.
The Litter Enforcement Officer attended the site and
inspected it, took photos and contacted the building
company, speaking with the site supervisor to request a
clean-up. The building company scraped the mud and
debris from the footpath and roadway and washed
remaining debris back onto the site.
Period for which notice remains in force
1. A litter abatement notice remains in force for the period
specified in the notice.
2. A period of up to 3 years may be specified in the notice.
45ZD. Form of notice
A litter abatement notice must—
a)
contain a copy of sections 36AA, 45ZB, 45ZC
and 45ZE
and
b)
specify the period for which it remains in force;
c)
be signed by the person giving the notice.
and
Litter abatement notices are a valuable tool that can be
used in varying circumstances. The following examples
are just a few to consider:
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Ensuring that café proprietors with footway
dining facilities provide for appropriate cigarette
disposal devices and/or maintain the area in a
litter-free manner for the duration of operation.
(An alternative approach could be to vary the
conditions of a council permit allowing for the
operation of footpath dining facilities).
Limit sediment movement from building sites
including subdivisions.
Limit sediment movement from horticultural
industries such as potato farms and market
gardens.
Controlling residents or businesses that persist in
placing derelict/abandoned vehicles on roadways.
Ensuring that parked vehicles leaking oil onto a
roadway are either moved onto private property
or that measures are taken to prevent oil leaking
onto the roadway and oil residue is cleaned from
roadway.
Controlling litter from commercial premises by
stipulating the location of their litter receptacles;
or ensuring the business appropriately
confines/deals with onsite litter.
Note that the on the spot fine/penalty infringement
notice for non-compliance with a Litter Abatement
Notice is 8 Penalty Units.
The duration of the Notice period, up to 3 years, plus
potential for ongoing infringements, is significant
motivation for business operators to comply with their
obligations.
24
In this case the verbal caution was adequate and obtained
total compliance from the building company. Residents
were very complimentary towards Council for speed of
action to address this issue.
Had there not have been compliance from the building
company a notice under 45ZB of the EP Act (litter
abatement notice) would have been issued to gain
compliance.
45ZE.
Amendment or revocation of notice
This section provides for amending or the revocation of an
abatement notice and the required notification of the
changes to the person whom the notice applies to.
Division 7—Particular Litter Enforcement Powers
SECTION 45ZF
45ZF.
Powers of entry of litter enforcement officers
This section empowers the officer with the right of entry
onto non-residential property at a reasonable time if the
officer believes an offence against section 45E has
occurred or if the officer believes there is a likelihood of
an offence being committed.
SECTION 45ZG
45ZG. Requirement to give name and address
If a litter enforcement officer believes on reasonable
grounds that any person/s has committed an offence
under this part, the officer may request certain
information, such as name, private or business address.
Case Study 9 – Section 45ZG Uncooperative
cigarette butt littering offender
In January 2013 Bass Coast Shire Council Litter
Enforcement Officer, Leanne Edwards, was conducting a
litter count within the beach car park at popular Shack
Bay, Crown land, when she observed a male driver litter
an extinguished cigarette butt near his vehicle.
Leanne formally identified herself and advised the
offender that his actions constituted a littering offence
and of the applicable infringement notice penalty (1
Penalty Unit, $141, at the time).
The offender was formally requested to remove his litter
and was informed that he would be guilty of a separate
offence (against section 45V) if he failed to do so.
The offender complied with the request and was then
advised of his obligation to supply his name and address
for the purposes of issuing the penalty notice and was
also advised it was an offence not to do so.
The offender refused to provide his name or address,
despite being provided with multiple opportunities to do
so and was reminded of the applicable penalty each time.
Leanne noted the offender’s vehicle registration and he
was issued with a penalty infringement notice for the
littering offence, and also for the offence against section
45ZG, totalling $423. The offender exercised his right to
request Council to review the infringement notices.
Upon consideration, the council withdrew the penalty
notice for ‘littering a small item’ as it was confident that
the educational information provided by the Litter
Prevention Officer at the time of the offence plus the
resulting enforcement action would achieve the desired
positive behavioural change into the future.
The infringement for the section 45ZG offence ($282)
was upheld, not because the infringement had a greater
monetary value, but to help ensure that the offender and
wider community understand the obligation to comply
with lawful requests from authorised officers in the
course of enforcement duties. The offender paid the $282
penalty notice by an agreed date and avoided prosecution.
b)
was responsible for commissioning the production
of, for producing or for distributing, material that
became particular litter.
2. The officer may require the person to give the officer
within 14 days, or any longer time that the officer
specifies, information concerning the litter.
3. A reference to litter in this section includes a reference
to any substance that constitutes the litter, regardless of
whether that substance was litter at the time it was in the
person's possession.
4. A requirement must be set out in a written notice.
5. The notice must —
i.
ii.
iii.
iv.
v.
set out the information the officer seeks from the
person
specify the date by when the information is
required
contain a copy of this section and section 45ZJ
be signed by the officer
contain the officer's business address.
6. The information an officer may require from a person
may include —
a)
b)
c)
how, when and where the litter came into or left
the person's possession
the name and address of anyone who had
possession of the litter after the litter left the
person's possession
the name and address of anyone else involved in
the commissioning of the material that became
the litter.
7. If required to do so by a notice, a person must give the
officer within the time specified in the notice all the
information sought in the notice that is within the person's
knowledge or in the person's possession.
Figure 7 Uncooperative cigarette butt litterer in beach
car park Photo: Bass Coast Shire Council
SECTION 45ZH
45ZH. Officers must identify themselves
If exercising the power under this Part an officer must
provide proof of identity and official status if requested to
do so.
Whilst conducting investigations the officer should always
introduce him/herself and state the organisation he/she is
representing.
SECTION 45ZI
45ZI. Litter enforcement officer may require certain
people to give information
1. This section only applies to a person who a litter
enforcement officer believes on reasonable grounds —
a)
or
had possession of particular litter at some time in
the past
8. However, any information given by a person in response
to a notice under this section is not admissible in any
prosecution against the person if, before giving the
information, the person objected to giving the information
on the ground that it might tend to incriminate him or her.
This doesn't apply if the information was false or
misleading.
Tip
If the person cannot provide relevant information the
investigation may cease if no other evidence is available.
Clean-up cost will unfortunately be at the expense of the
respective land manager.
If the person fails to provide information, the enforcement
officer may choose to issue a penalty infringement notice
or proceed with court action.
If information provided is not plausible or dubious the
enforcement officer may choose to issue a penalty
infringement notice and a direction under 45X or 45Y or
request that the person participates in an interview.
If the person declines to be interviewed, prosecution may
still be possible if sufficient evidence is available.
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Case study 10 – Illegal dumping in Thornbury,
Darebin City Council
In May 2014 Darebin City Council’s Litter Prevention
Officer, Russell Gladigau, attended and investigated an
illegal dumping incident in Thornbury. The dumped waste
consisted of personal documents from the Commonwealth
Bank, furniture, household items and other materials.
The identity of suspected offender was established from
details obtained in the personal documents present and
he was sent a Notice under Section 45ZI of the EP Act to
give him the opportunity to state:
1.
2.
3.
4.
5.
How the litter left his possession;
When the litter left his possession;
Where the litter left his possession;
Why the litter left his possession;
The name and address of anyone who had
possession of the litter after the litter left his
possession.
The offender responded with an admission and the matter
was referred to the Magistrates’ Court of Victoria, result
pending. Section 45ZI of the EP Act gives the suspect the
opportunity to admit to the offence, state that someone
else is the offender or deny the offence. In the case of a
denial the investigation can either continue or cease
based on other evidence.
Upon admission the authorised officer can proceed with
issuing a reprimand, infringement or instigating court
proceedings. If the alleged offender names someone else
a notice under 45ZI of the EP Act can be issued to this
person offering them the same opportunity to admit, state
another offender or deny.
SECTION 45ZJ
45ZJ.
Officer may require information to be in writing
1. If asked to do so by the litter enforcement officer, a
person required to give the officer information under
section 45ZI must give the information to the officer in
writing.
2. If information sought by a notice under section 45ZI is
not within a person's knowledge or in the person's
possession, the person must state this fact in writing if
asked to do so by the officer.
3. A failure by a person to comply with sub-section (1) or
(2) is a failure to comply with section 45ZI(7).
4. A person must not include any false or misleading
information in a written statement made under this
section.
5. Subject to section 45ZI(8), a statement made under
this section is admissible in evidence in any proceedings.
Section 45ZI of the EP Act provides for a litter
enforcement officer to seek information from a person/s
regarding an offence the officer believes the person/s
may have committed and the information is provided in
writing (45ZJ).
26
SECTION 45ZK
45ZK. Reports of offences
This section provides for the reporting of littering
offences witnessed by another person to the authority or
governing council. The report must be in writing, contain
specific information regarding the alleged offence and be
signed by the witness.
Refer to Publications on EPA Victoria’s website for report
Part X General
57B.
Certificate concerning ownership of vehicle
In proceedings against the registered owner of a vehicle, a
certificate from the Roads Corporation or the Director of
Marine Safety, or from a corresponding person or body in
another State or in a Territory of the Commonwealth,
stating that a person was the owner of a vehicle on a
specified date is evidence that that person was the
registered owner of the vehicle on that date.
57C.
Certificate concerning litter offences
1. In proceedings under Part VIIA, a certificate given by a
litter authority stating —
a)
b)
that a specified person is, or was on a specified
date, a litter enforcement officer appointed by the
authority; or
that any land is, or was on a specified date, or
that any waters are, or were on a specified date,
under the control or management of the authority
—
is evidence of that fact.
2. All courts and persons acting judicially —
c)
d)
57D.
must take judicial notice of the signature or seal
of any litter authority affixed to the certificate;
and
must, until the contrary is proved, presume that
the signature or seal was properly affixed.
Certificate concerning presence of junk mail sign
This section relates to a specific document required when
legal action is to be undertaken for the depositing of junk
mail where a sign ‘No Junk Mail’ has been installed.
A statutory declaration signed by a person stating he/she
is the owner or is in control of the premises, that a
receptacle is in place for the depositing of mail and
newspapers and that the sign was clearly visible and the
landholder on the specific date found the material
deposited in the receptacle is to be taken as evidence of
those matters by a Court.
Refer to Publications on EPA Victoria’s website for
statutory declaration template www.epa.vic.gov.au.
36AA. Reviews in respect of section 45Y directions
and litter abatement notices
1) A person who is served with —
(a) a direction under section 45Y(2) or (4); or
(b) a litter abatement notice under section 45Z —
may apply to the Tribunal for a review of any provision of
the direction or notice that the person believes is
oppressive, unjust or unreasonable.
(2) The person must lodge the application within 28 days
after receiving notice of the provision.
(3) If a person lodges an application, the person need not
comply with the direction or notice until the application is
withdrawn or dismissed, or the direction or notice is
confirmed or varied by the Tribunal.
Schedule of on-the-spot fines
Offence
Penalty $
An offence under section 45E involving litter that is burning when it is deposited
(including a cigarette butt)
4 Penalty Units
An offence under section 45E involving an extinguished cigarette butt, a ring pull or any
other small item
2 Penalty Unit
Any other offence under section 45E
2 Penalty Units
An offence under section 45L, 45M, 45N, 45O, 45P, 45Q, 45T, 45U, 45V, 45ZG or
45ZI(7)
2 Penalty Units
An offence under section 45S
10 Penalty Units
An offence under section 45X(2) or 45Y(2)
12 Penalty Units
An offence under section 45ZB(3)
8 Penalty Units
Schedule of offence codes
Offence
Code
Brief Description
Act and Section
Penalty Unit(s)
2761
Fail to remove litter on request
8056, s. 45V
2
2762
Deface receptacle for litter
8056, s. 45T(1)
2
2763
Set fire to receptacle for litter
8056, s. 45T(2)
2
2764
Have unsecured load on vehicle
8056, s. 45U(2)
2
2765
Deposit small item of litter
8056, s. 45E(1) / Schl
2
2766
Deposit litter
8056, s. 45E(1) / Schl
2
2767
Deposit burning litter
8056 s. 45E(1) / Schl
4
2769
Deposit advertising material in/on any
vehicle
8056 s. 45N(1)
2
2770
Require person to deposit advertising
material
8056 s.45S
10
2771
Fail to disclose name of distributor
8056 s. 45P(3)
2
2772
Fail to disclose name of depositor
8056 s. 45Q(2)
2
2774
Fail to comply with litter abatement notice
8056 s. 45ZB(3)
8
2775
Fail to supply information
8056 s. 45ZI(7)
2
2776
Require another to convey unsecured load
8056 s. 45U(1)
2
5595
Incorrectly deposit unsolicited material
8056 s. 45L(1)
2
5596
Deposit unwanted advertising material
8056 s. 45M(2)
2
5597
Affix document without consent
8056 s. 45O
2
27
Tools & tips for litter enforcement
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28
Moneys from penalties issued by litter
enforcement officers go directly to the issuing
authority and can be used to fund litter
prevention activities.
The use of tools, such as illegal dumping tape or
litter alert cards, has been shown to be effective
by a number of Victorian councils, Figure 8. The
strategy has shown to prevent further dumping
on site, highlight to the community that action is
being taken and it has led to a high removal rate
of the tagged rubbish.
Collection of litter and illegal dumping data is
crucial for identifying hotspots, tracking
investigations and measuring trends and changes
over time. The VLAA Local Litter Measurement
Toolkit (LLMT) has been developed to assist litter
managers inform management of litter and illegal
dumping, more efficiently evaluate litter and
illegal dumping in their local area and to conduct
cost benefit analysis to improve their local litter
prevention projects. The LLMT, as well as a
number of other litter prevention toolkits, can be
downloaded from the VLAA website
www.litter.vic.gov.au.
Advertising the penalties that can be issued for
littering, and the results of successful
prosecutions, may be a useful tool in highlighting
that littering is not acceptable and offenders will
be caught.
Contact the VLAA Litter Champion for
information on litter programs, resources or
upcoming grant opportunities.
Collaborate internally in your organisation to
form a Litter Taskforce. Include representation
from local laws, cleansing, parks,
communications, engineering, environmental
health, waste education and urban planning. Such
a forum can help with program planning, and in
most cases will be essential partners for
implementation. Wyndham City’s ‘Dumping is
Damaging’ campaign was a huge success for the
Wyndham City Litter Taskforce in 2011/12, the
case study can be viewed on the VLAA website
www.litter.vic.gov.au > Case Studies > Dumping is
Damaging.
Collaborate with real estate agents and develop
an information pack for non-owner-occupiers.
More often than not they are unaware of council’s
services and do not know whether any waste
service schemes are available to them, such as
transfer station passes or hard waste collections.
Develop signage relating to hard waste and other
litter, which Body Corporate / Real Estate Agents
or owners of multi-unit dwellings are able to place
at bin storage areas.
For locations with high seasonal occupation such
as coastal and bush areas or major events,
consider providing free tip passes or charge a
smaller fee for small bags of waste.
Mobile video surveillance can be an effective tool
for monitoring illegal dumping hotspots.
Limiting access to known hotspots using bollards,
gates and fencing can be very effective in
preventing dumping in many areas such as
>
>
>
parklands, utility areas (railway land) and
industrial areas.
Constructing corrals to confine bin, skips and
other waste receptacles in rear laneways at
shopping precincts can be effective in minimising
littering, dumping or vandalism.
Normal operations relating to a building
site/works can be interpreted as ‘works confined
within the perimeter of the site’. Therefore
should potential windborne litter be left
unconfined on site and a litter enforcement
officer believes that the litter will escape, a litter
abatement notice may be issued to remove the
litter and to provide an appropriate litter
receptacle on site.
Should sediment/slurry or washout be allowed to
leave the site it is prudent to interview the
builder prior to issuing a penalty. A direction to
remove/clean pursuant to section 45X may be
issued to the responsible person (person whose
name is on the building permit assumes
responsibility for the site).
Figure 8 Illegal dumping tape and litter alert cards
>
If materials such as sand, soil, and any other
building materials and equipment are being
stored on the nature-strip/roadway, a notice to
remove the material pursuant to section 45Y
may be issued to the responsible person (person
whose name is on the building permit assumes
responsibility for the site).
EPA contacts
EPA Victoria – General enquiries (24 hours)
T: 1300 372 842 (1300 EPA VIC)
W: www.epa.vic.gov.au
E: [email protected]
EPA Victoria – Head Office
200 Victoria Street, Carlton, Victoria 3053
GPO Box 4395, Melbourne, Victoria 3001
1300 372 842
Regional offices
EPA North West (Bendigo)
1300 372 842
EPA South West (Geelong)
1300 372 842
EPA North East (Wangaratta)
1300 372 842
EPA Gippsland (Traralgon)
1300 372 842
EPA Southern Metro (Dandenong)
1300 372 842
29
Other useful contacts
Victorian Legislation and Parliamentary Documents
To view Acts online in their entirety visit http://www.legislation.vic.gov.au/ open link ‘Victorian Law Today’.
Victorian Government Gazette
To view current penalty unit values online visit www.gazette.vic.gov.au
Infringements Court and Sheriff's Office
To view contact details for local Sheriff’s Offices visit www.vic.gov.au
Victorian Litter Action Alliance (VLAA)
To view contact details for VLAA visit www.litter.vic.gov.au
30

litter enforcement manual

Transcription

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