Norman Waterhouse
   
Norman Waterhouse



'Litter and Nuisance' reforms: comprehensive, overdue ... problematic

Among the various other regulatory reforms presently being mooted within South Australia, the State Government (by its instrumentality the Environment Protection Authority (EPA)) has recently developed a Draft Local Nuisance and Litter Control Bill 2015 (the Draft Bill).

The EPA is presently holding public consultation meetings upon the Draft Bill at various locations throughout the State, and will accept written submissions up to 31 August 2015. A copy of the Draft Bill and an explanatory report from the EPA, and the consultation timetable, can be viewed here.

In short, the Draft Bill seeks to:

  • Codify nuisance and litter laws into a single legislative framework, including by repealing and replicating (with various modifications) relevant parts of the Local Government Act 1999 (LG Act);
  • Confer various enforcement functions upon councils; and
  • Introduce new enforcement mechanisms, such as negotiation of civil penalties as an alternative to prosecution, multi-tiered offence structures, public reporting of littering, and numerous other matters.

A reform such as this would carry with it various benefits, including clarity of the roles of councils in nuisance and litter management, improved flexibility and adaptability of regulatory responses, and, ultimately, a corresponding improvement in the management of nuisances and littering.

However, the way in which the Draft Bill has been formulated presents a number of complex issues, some of which fundamentally complicate the local government regulatory domain.

A conspicuous example of such an issue is the Draft Bill’s conferral of external administrative and judicial functions upon the Environment, Resources and Development Court (ERD Court). This contradicts the general shift of external administrative review functions to the South Australian Civil and Administrative Tribunal. It is also has the result that prosecutions for various offences presently in the LG Act will, should those offences be in effect transferred into the new legislation as provided by the Draft Bill, occur in the ERD Court rather than in the Magistrates Court.

Further, this would create a new regulatory framework in parallel with but quite fundamentally different to the frameworks which apply to those regulatory provisions which remain in the LG Act and to the enforcement of by-laws. It is inevitable that circumstances will arise which will enliven numerous jurisdictional approaches, meaning councils will need to make complex choices between substantially different regulatory frameworks which have competing benefits and detriments in terms of simplicity, efficiency, and cost (including cost of potential legal proceedings).

We have also noted various other ambiguities and issues in the Draft Bill which undermine the utility of the reforms as they are presently formulated. These include practical difficulties in identifying offences, potential new bases upon which persons can seek compensation against a council, and payment of ERD Court-ordered civil penalties to the Minister, not the council.

While the objects of the Draft Bill are worthy of pursuit, we consider that the scheme proposed by the Draft Bill requires revision in many regards and generally sits uneasily with other regulatory frameworks currently committed to local government. We would be happy to respond to any queries you may have regarding the Draft Bill.

Norman Waterhouse has extensive experience in advising and representing local government authorities under all applicable regulatory frameworks and in all relevant jurisdictions. Regardless of the final shape which these reforms take, we look forward to assisting councils navigate any new legislative scheme.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au, or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au.


 
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Paul Kelly
08 8210 1248
pkelly@normans.com.au
Dale Mazzachi
08 8210 1221
dmazzachi@normans.com.au





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