Litter Act 2007 (Tas)

Litter Act 2007 An Act to make provision with respect to the control and prevention of litter, to amend the Crown Lands Act 1976 , to repeal the Litter Act 1973 and for other purposes [Royal Assent 24 October 2007] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Litter Act 2007 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – approved means approved by the Director; authorised officer means – (a) a person who, under section 7 or 8 , is appointed as an authorised officer; or (b) a person who, under section 8A , is an authorised officer by virtue of his or her office; corresponding law means a law of another State or a Territory of Australia dealing with either or both of the following subjects: (a) the driving of motor vehicles on roads; (b) the use of motor vehicles and trailers on roads; deposit, in respect of litter, includes – (a) drop or throw litter in, on or into a place; and (b) leave litter in or on a place; and (c) put litter in such a location that it falls, descends, blows, is washed, percolates or otherwise escapes or is likely to fall, descend, blow, be washed, percolate or otherwise escape into or from a place; and (d) cause, permit or allow litter to fall, descend, blow, be washed, percolate or otherwise escape into or from a place; Director means the Director, Environment Protection Authority appointed under section 18 of the Environmental Management and Pollution Control Act 1994 ; document means any record of information and includes – (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph; escape includes fall, descend and percolate, and be blown or washed, into, on or from any place; Fund means the Litter Management Fund continued under section 48 ; general manager means the general manager of a council appointed under the Local Government Act 1993 ; infringement notice means an infringement notice served in accordance with Division 3 of Part 3 ; land means any land, whether publicly or privately owned, and includes any buildings or other structures permanently affixed to the land; litter includes – (a) any solid or liquid domestic or commercial refuse, debris or rubbish and, without limitation, includes any glass, metal, plastic, cigarette butts, paper, fabric, wood, food, abandoned vehicles, abandoned vehicle parts, abandoned vessel parts and equipment, construction or demolition material, garden remnants and clippings, soil, sand and rocks; and (b) any other material, substance or thing deposited in or on a place if its size, shape, nature or volume makes the place where it is deposited disorderly or detrimentally affects the proper use of that place – whether or not the litter has any value when or after being deposited in or on the place; litter abatement notice means a litter abatement notice served under section 35 ; motor vehicle has the meaning given by the Vehicle and Traffic Act 1999 ; open private place means a private place that is situated – (a) in or on land and that is not within a building on the land; or (b) in or on waters; place includes – (a) a receptacle; and (b) any State waters; registered operator of a motor vehicle or trailer has the meaning assigned to that expression under the Vehicle and Traffic Act 1999 and includes – (a) the registered operator of the motor vehicle or trailer within the meaning of a corresponding law; and (b) in the case of a motor vehicle or trailer to which a trade plate or similar device is affixed under the Vehicle and Traffic Act 1999 or under a corresponding law, the person to whom the trade plate or device has been issued; and (c) in the case of a motor vehicle or trailer for which a short term unregistered vehicle permit or similar permit has been issued under the Vehicle and Traffic Act 1999 or under a corresponding law, the person to whom the permit has been issued; registered owner, of a vessel, means – (a) in the case of a vessel registered in Tasmania, the person who, under the Marine and Safety Authority Act 1997 , is registered or recorded as its owner under the by-laws governing the registration of vessels of its particular kind; or (b) in the case of a vessel registered, licensed or surveyed in another jurisdiction, the person who is registered or recorded as its owner under the law of that jurisdiction; reserved land has the same meaning as in the Nature Conservation Act 2002 ; small passenger vehicle means a motor vehicle with a seating capacity of less than 13 adults, including the driver, that is designed and constructed primarily for the carriage of passengers; State waters means – (a) any waters of the territorial sea of Australia that are – (i) within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and (ii) adjacent to the State; and (b) any marine or tidal waters that are on the landward side of that baseline and are adjacent to the State; and (c) any inland waters of the State, inclusive of those in artificial water storages and artificial water courses; statutory defence means a defence provided by section 24(2) or section 24A(2) ; trailer has the meaning given by the Vehicle and Traffic Act 1999 ; use includes – (a) in relation to a motor vehicle, the driving, idling, leaving, loading, parking, standing and unloading of the motor vehicle; and (b) in relation to a trailer, the leaving, loading, parking, standing, towing and unloading of the trailer; and (c) in relation to a vessel, the use of the vessel even when – (i) riding at anchor; or (ii) tied to a mooring; or (iii) tied up to a jetty, wharf or breakwater; or (iv) berthed in a marina; or (v) secured to another vessel to which subparagraph (i) , (ii) , (iii) or (iv) applies; or (vi) connected up to something such as a crane, slipway cradle or trailer winch in order to be put into or taken out of the water; vehicle means anything capable of transporting people, objects or materials by road, rail or air, regardless of how the thing is moved or propelled; vessel means any kind of vessel other than – (a) a vessel under the control of the Australian Defence Force; or (b) a warship, naval auxiliary or other vessel operating exclusively in the non-commercial government service of a foreign country; warrant means a warrant under the Search Warrants Act 1997 . 4. Application of Act (1) The application of this Act extends to – (a) all Crown land; and (b) all State waters. (2) Subsection (1)(a) has effect notwithstanding section 35 of the National Parks and Reserves Management Act 2002 . (3) Subject to subsection (2) , this Act does not derogate from the provisions of any other Act. 5. Objects of Act The objects of this Act are – (a) to prohibit the deposit of litter in the environment; and (b) to regulate the distribution of materials that may become litter; and (c) to facilitate the removal of litter; and (d) generally to protect and enhance the quality of the Tasmanian environment. 6. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Authorised Officers 7. Power of Director to appoint authorised officers (1) The Director may appoint – (a) State Service officers and State Service employees appointed or employed in the Department; or (b) with the consent of the Head of another Agency, State Service officers and State Service employees appointed or employed in that Agency – as authorised officers for the purposes of this Act, and those persons may exercise the powers and perform the functions of an authorised officer in conjunction with State Service employment. (2) . . . . . . . . (3) The Director may, with the consent of any person, appoint that person or an employee of that person as an authorised officer. (4) An appointment as an authorised officer may be made on such terms and conditions as the Director determines and, in particular, the instrument of appointment may provide that all or any of the powers conferred on an authorised officer by this Act may be exercised exclusively in respect of reserved lands or exclusively in respect of lands other than reserved lands. 8. Power of councils to appoint employees as authorised officers The general manager of a council may appoint an employee of the council to be an authorised officer for the purposes of this Act. 8A. Ex-officio authorised officers Each of the following persons is an authorised officer by virtue of his or her office: (a) the Director; (b) a general manager; (c) a police officer. PART 3 - Prohibition of Littering Division 1 - Littering 9. Littering offences (1) A person must not deposit litter in any public place except in a receptacle that the owner or controller of the public place has provided for litter. Penalty: Fine not exceeding – (a) if the litter consists only of a single item of personal litter, 2 penalty units; or (b) if paragraph (a) of this penalty does not apply but the litter does not exceed 55 litres in volume, 20 penalty units; or (c) if the litter exceeds 55 litres, but does not exceed 2 cubic metres, in volume, 50 penalty units; or (d) if the litter exceeds 2 cubic metres, but does not exceed 10 cubic metres, in volume – (i) 100 penalty units in the case of an individual; or (ii) 200 penalty units in the case of a body corporate; or (e) if the litter exceeds 10 cubic metres in volume – (i) 200 penalty units in the case of an individual; or (ii) 500 penalty units in the case of a body corporate. (2) A person must not, in a public place, deposit litter in any receptacle provided for litter if it is, or reasonably ought to be, evident to the person that – (a) from markings on the receptacle or elsewhere at the public place, the receptacle is not a suitable receptacle for litter of that nature; or (b) from the nature of the litter or receptacle, the receptacle is not a suitable receptacle for the litter; or (c) the receptacle is already full; or (d) the receptacle has insufficient space, or remaining space, to hold the litter; or (e) the receptacle is undergoing repairs or maintenance, is sealed or is otherwise temporarily unavailable for use as a receptacle for litter. Penalty: Fine not exceeding – (a) if the litter consists only of a single item of personal litter, 2 penalty units; or (b) if paragraph (a) of this penalty does not apply but the litter does not exceed 55 litres in volume, 20 penalty units; or (c) if the litter exceeds 55 litres, but does not exceed 2 cubic metres, in volume, 50 penalty units; or (d) if the litter exceeds 2 cubic metres, but does not exceed 10 cubic metres, in volume – (i) 100 penalty units in the case of an individual; or (ii) 200 penalty units in the case of a body corporate; or (e) if the litter exceeds 10 cubic metres in volume – (i) 200 penalty units in the case of an individual; or (ii) 500 penalty units in the case of a body corporate. (3) A person must not, in a public place, deposit litter in any receptacle provided for litter if – (a) it is, or reasonably ought to be, evident to the person from the nature of the litter that the litter is of household or commercial origin; and (b) there are no markings on the receptacle to indicate that it is for litter of household or commercial origin. Penalty: Fine not exceeding – (a) if the litter does not exceed 55 litres in volume, 20 penalty units; or (b) if the litter exceeds 55 litres, but does not exceed 2 cubic metres, in volume, 50 penalty units; or (c) if the litter exceeds 2 cubic metres, but does not exceed 10 cubic metres, in volume – (i) 100 penalty units in the case of an individual; or (ii) 200 penalty units in the case of a body corporate; or (d) if the litter exceeds 10 cubic metres in volume – (i) 200 penalty units in the case of an individual; or (ii) 500 penalty units in the case of a body corporate. (4) A person must not deposit litter in any open private place if the person – (a) is not the owner or occupier of the open private place; and (b) does not have the consent of the owner or occupier of the open private place to deposit the litter in the open private place. Penalty: Fine not exceeding – (a) if the litter consists only of a single item of personal litter, 2 penalty units; or (b) if paragraph (a) of this penalty does not apply but the litter does not exceed 55 litres in volume, 20 penalty units; or (c) if the litter exceeds 55 litres, but does not exceed 2 cubic metres, in volume, 50 penalty units; or (d) if the litter exceeds 2 cubic metres, but does not exceed 10 cubic metres, in volume – (i) 100 penalty units in the case of an individual; or (ii) 200 penalty units in the case of a body corporate; or (e) if the litter exceeds 10 cubic metres in volume – (i) 200 penalty units in the case of an individual; or (ii) 500 penalty units in the case of a body corporate. (5) A person must not deposit litter in any open private place in such a way that – (a) the litter or any part of the litter escapes into a public place or another private place; or (b) the litter or any part of the litter is likely to escape into a public place or another private place. Penalty: Fine not exceeding – (a) if the litter consists only of a single item of personal litter, 5 penalty units; or (b) if paragraph (a) of this penalty does not apply but the litter does not exceed 55 litres in volume, 20 penalty units; or (c) if the litter exceeds 55 litres, but does not exceed 2 cubic metres, in volume, 50 penalty units; or (d) if the litter exceeds 2 cubic metres, but does not exceed 10 cubic metres, in volume – (i) 100 penalty units in the case of an individual; or (ii) 200 penalty units in the case of a body corporate; or (e) if the litter exceeds 10 cubic metres in volume – (i) 200 penalty units in the case of an individual; or (ii) 500 penalty units in the case of a body corporate. (6) Subject to subsections (7) and (8) , every offence under this section is an offence of strict liability. (7) It is a defence in proceedings for a minor offence under this section if the defendant establishes that the deposition of the relevant litter was accidental and the defendant took reasonable steps to retrieve it. (8) It is a defence in proceedings for an offence under this section, other than a minor offence, if the defendant establishes that – (a) the deposition of the relevant litter was accidental and the defendant took reasonable steps to retrieve it; or (b) the deposition of the relevant litter was done in good faith in urgent response to a civil or other emergency in order to prevent or minimise a genuine risk to the safety of persons or property; or (c) the deposition of the relevant litter was an unavoidable consequence of a lawful activity. (9) For the purposes of subsection (8)(c) , a consequence is taken to be unavoidable if at the relevant time there was no reasonably practicable way of avoiding it. (10) Nothing in this section applies to, or prevents – (a) the deposition of litter in accordance with any authority lawfully given by or on behalf of the State Crown; or (b) the deposition of litter in a municipal area in accordance with any authority lawfully given by or on behalf of its council; or (c) the deposition of litter in any place if there is lawful authority to do so; or (d) the placement in a public place of a council-supplied receptacle, containing litter from a private property adjacent to or near that public place, for the litter to be removed by and in accordance with the publicised protocols of a council's routine garbage collection or recycling service; or (e) the placement in a public place of green waste, from a private property adjacent to or near that public place, for removal by and in accordance with the publicised protocols of a council's green-waste collection service; or (f) the placement of unwanted household items, from a private residence adjacent to or near that public place, for removal by and in accordance with the publicised protocols of a council's periodic clean-up or recycling service. (11) In this section – markings includes words and signs; minor offence means an offence involving only a single item of personal litter; nature, of litter, means its nature having regard to – (a) its composition; and (b) its size, shape and volume; and (c) its odour, viscosity, combustibility and perishability; and (d) its potentialities to cause, in either its instant or a transformed state, a safety, health or environmental hazard; personal litter means litter consisting of, or like, any of the following: (a) a bus, movie or parking ticket; (b) an automatic bank teller docket or sales receipt; (c) a cigarette butt or piece of chewing gum; (d) a lolly wrapper, crisp packet, sandwich container or food sachet; (e) a drinking straw or soft drink bottle; (f) the core or skin of a piece of fruit; (g) a fried potato chip; suitable includes safe. 9A. Offence relating to recording camera (1) A person must not destroy, damage, remove or in any other way interfere with the operation of a relevant recording camera. Penalty: Fine not exceeding – (a) 50 penalty units in the case of an individual; or (b) 100 penalty units in the case of a body corporate. (2) Subsection (1) does not apply to an authorised officer acting in his or her capacity as an authorised officer or another person acting under the instruction or direction of such an authorised officer. (3) In this section – relevant recording camera means a device – (a) that is capable of taking photographs or of making a video recording or audio-video recording; and (b) that is set up by an authorised officer under section 41(1)(d) for a purpose related to the detection and investigation of unauthorised or unlawful depositing of litter. 9B. Additional penalties for certain offences under section 9 If a person is found guilty of an offence under section 9(1) , (2) , (3) , (4) or (5) in relation to the depositing of litter that exceeds 2 cubic metres in volume, the court, in addition to or in substitution for any other penalty it may impose, may do one or both of the following: (a) order the forfeiture of any vehicle, vessel and trailer used in, or for the purposes of, the commission of the offence; (b) order the defendant to pay a special penalty of an amount that the court is satisfied is equal to any monetary benefit obtained by, or accrued or accruing to, the defendant as a result of committing the offence. Division 2 - Unsolicited documents and advertising material 10. Meaning of "unsolicited document" For the purposes of this Division, a document is taken to be unsolicited if it is deposited at any premises without being addressed by name to a person who owns or occupies the premises. 11. Unsolicited documents must be put in mailboxes, &c. (1) A person delivering an unsolicited document to any premises must not deposit the document in any place on the premises unless the person places the document securely – (a) in a receptacle, slot or other place that is used for the deposit of mail at the premises; or (b) in a receptacle or slot that is used for the deposit of newspapers at the premises; or (c) under the door of the premises; or (d) in a place that is in a building and is suitable for the deposit of the document. Penalty: Fine not exceeding 20 penalty units. (2) Subsection (1) does not apply to – (a) any newspaper, or any material folded or inserted into a newspaper; or (b) any document issued or distributed under, in accordance with, or for the purposes of, any Act of Tasmania or the Commonwealth; or (c) any document that is given personally to a person at the premises; or (d) any document that is of such a size, shape or volume that it is not possible or appropriate for it to be deposited in accordance with subsection (1) . 12. Leaflets, &c., not to be placed on vehicles or vessels (1) A person must not deposit any document on a motor vehicle, or trailer, that is – (a) in any public place; or (b) in any designated car park. Penalty: Fine not exceeding 20 penalty units. (2) A person must not deposit any document on a vessel. Penalty: Fine not exceeding 20 penalty units. (3) Subsections (1) and (2) do not apply to a person if the person – (a) is exercising a power given to the person by or under any law; or (b) has the consent of the person apparently in charge of the relevant motor vehicle, trailer or vessel; or (c) has the consent of the registered owner or, as the case may be, registered operator of the relevant motor vehicle, trailer or vessel. (4) The conditions of an express or implied contract relating to the parking of motor vehicles in a designated car park do not constitute a lawful power for the purposes of subsection (3)(a) , except in respect of documents relating specifically to the management of parking in that designated car park. (5) For the purposes of subsection (3)(b) , a person is entitled to assume that – (a) an adult seated in the driver's seat of a motor vehicle is in charge of that motor vehicle; and (b) an adult seated in the driver's seat of a motor vehicle to which a trailer is connected is in charge of that trailer; and (c) an adult seated or standing at the helm of a vessel is in charge of that vessel; and (d) a person who is driving a motor vehicle alone is an adult. (6) In this section – adult means a person who is, or who could reasonably be taken from his or her appearance to be, 17 years of age or older; contract includes a permit; designated car park means – (a) a building or open area in which members of the public may park motor vehicles for a fee, and includes any car park of that kind run by government; or (b) an area within, next to or near a government office and in which motor vehicles may be parked (with or without fee) by persons who work at, service or have dealings with that government office; or (c) an area within, next to or near premises used for a business or professional practice and in which motor vehicles may be parked (with or without fee) by persons who work at, service or are customers or clients of that business or practice; or (d) an area within, next to or near a health or educational facility and in which motor vehicles may be parked (with or without fee) by persons who work at, service, attend or visit that facility; or (e) an area within, next to or near a cultural, sporting or recreational venue and in which motor vehicles may be parked (with or without fee) by persons who work at, service or patronise that venue; government means any council, the State Crown or any agency or instrumentality of the State Crown. 13. Bill-posting without consent A person must not affix any document on to any fixed structure without the express consent of the owner, occupier or manager of the structure or unless the person affixing the document is exercising a power given to the person under any law. Penalty: Fine not exceeding 20 penalty units. 14. Advertiser must disclose name of distributor A person who authorises or arranges for the distribution of an unsolicited document must, within 7 days after receiving a written request for the information from an authorised officer, give to the authorised officer the name and address of the person who is responsible for distributing the document in any area. Penalty: Fine not exceeding 20 penalty units. 15. Distributor must disclose name of depositor A person who engages another person (whether as an employee or as an agent) to deposit unsolicited documents at premises within an area must, within 7 days after receiving a written request for the information from an authorised officer, give the authorised officer the name and address of that other person. Penalty: Fine not exceeding 20 penalty units. 16. Duty of person authorising or arranging for unsolicited document (1) A person who authorises or arranges for the distribution of an unsolicited document must ensure that the document is distributed in a way that prevents it from becoming litter. Penalty: Fine not exceeding 20 penalty units. (2) It is a defence in proceedings for an offence under this section if the defendant establishes that the defendant took reasonable steps to comply with this section. Division 3 - Infringement notices 17. Infringement notice (1) In this section – infringement offence means an offence against this Act or regulations made under this Act that is prescribed by such regulations to be an infringement offence. (2) An authorised officer may issue and serve an infringement notice on a person if he or she reasonably believes that an infringement offence has been committed. (3) An infringement notice may be – (a) served on the person who the authorised officer reasonably believes committed the relevant infringement offence; or (b) served on the registered operator of a motor vehicle or trailer if the relevant infringement offence relates to the use of the motor vehicle or trailer and the authorised officer does not have a reasonable belief as to the identity of the person who committed the infringement offence; or (c) served on the registered owner of a vessel if the relevant infringement offence relates to the use of the vessel and the authorised officer does not have a reasonable belief as to the identity of the person who committed the infringement offence. (4) An infringement notice may not be served on a natural person who has not attained the age of 16 years. (5) An infringement notice – (a) is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ; and (b) is not to relate to 4 or more offences. (6) In addition to any other manner of service – (a) an infringement notice may be served on the registered operator of a motor vehicle or trailer by leaving it in or on, or attaching it to, the motor vehicle or trailer in a prominent place; and (b) an infringement notice may be served on the registered owner of a vessel by leaving it in or on, or attaching it to, the vessel in a prominent place. (7) Within 28 days after being served with an infringement notice under subsection (3)(b) , the registered operator of a motor vehicle or trailer may give the authorised officer, or other person or entity, specified in the infringement notice a statutory declaration stating – (a) the name and address, so far as known to the registered operator, of the person who the registered operator believes committed the relevant infringement offence; or (b) the name and address, so far as known to the registered operator, of the person who the registered operator believes was in charge of the motor vehicle or trailer when the relevant infringement offence allegedly occurred; or (c) that the motor vehicle or trailer was being driven or used without the knowledge or consent of the registered operator when the relevant infringement offence allegedly occurred; or (d) that the registered operator had no right or interest in the motor vehicle or trailer when the relevant infringement offence allegedly occurred. (7A) Within 28 days after being served with an infringement notice under subsection (3)(c) , the registered owner of a vessel may give the authorised officer, or other person or entity, specified in the infringement notice a statutory declaration stating – (a) the name and address, so far as known to the registered owner, of the person who the registered owner believes committed the relevant infringement offence; or (b) the name and address, so far as known to the registered owner, of the person who the registered owner believes was in charge of the vessel when the relevant infringement offence allegedly occurred; or (c) that the vessel was being used without the knowledge or consent of the registered owner when the relevant infringement offence allegedly occurred; or (d) that the registered owner had no right or interest in the vessel when the relevant infringement offence allegedly occurred. (7B) Within 28 days after being served with an infringement notice under subsection (3) , a person named in a statutory declaration pursuant to subsection (7)(a) or (b) or subsection (7A)(a) or (b) ("nominated offender") may give the authorised officer, or other person or entity, specified in the infringement notice a statutory declaration stating – (a) the name and address, so far as known to the nominated offender, of the person who the nominated offender believes committed the relevant infringeme