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Toolkit

2014 Victoria litter enforcement

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

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2014 Victoria litter enforcement toolkit

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

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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

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2014 Victoria litter enforcement toolkit

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 2013/141 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

1Keep Australia Beautiful National Litter Index Annual Report Summary 2013/14

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2014 Victoria litter enforcement toolkit

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

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Key litter stakeholders Department of Environment and Primary Industries

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

community organisations that help reduce litter in the community.

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.

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.

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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. 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?

2. 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).

3. 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?

4. 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.

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.

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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 is someone considered to be littering?

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.

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

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.

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:

> Where the incident occurred

o Road, suburb or town

> 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

o Body type (sedan, utility, van etc.)

o Colour

o Model (if possible)

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-to-face 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.

Find courses by visiting www.training.gov.au.

Powers of litter enforcement officers Who can enforce the EP Act (Section 4)

EPA Victoria or Victoria Police

Any Victoria Police officer or an officer of EPA Victoria authorised under the EP Act.

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2014 Victoria litter enforcement toolkit

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

A litter enforcement officer can generally enforce the litter provisions of the EP Act.

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.

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.

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.

Infringement notices 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.

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).’

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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.

Hand the notice to the offender

After filling out and signing the infringement notice, the litter enforcement officer can hand the notice to the offender and may choose to say:

‘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

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.

Investigation techniques Investigation

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

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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. wind-blown), even if:

o they own/control/possess the place

or

o 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

or

o 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:-

> Natural person > Companies/commercial entities

> Statutory corporations/organisations.

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:

> 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

> 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:

> ‘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)

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> 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’.

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.

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

> Persons suspected of breaching that Act > Other law enforcement agencies

or

> Persons who are connected to a particular investigation case.

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

> 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.

Two main problems that frequently occur in court are that:

> The notes were taken at a time too remote from the event (sometimes days or weeks afterwards)

and/or

> 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. Statements and affidavits must be based on the factual content of an officer’s notes.

2. Officers may be cross-examined on their notes/statement.

3. 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.

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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:

> 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

or

> If an offender has failed to pay a penalty within the time specified in an infringement notice

or

> The accused can elect to have the matter referred directly to the Magistrates’ Court for determination.

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.

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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

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Definitions EP Act

‘Authority’ means the Environment Protection Authority constituted under this Act.

‘authorized’ means authorised in writing by the Authority either generally or specially.

‘authorized officer’ means a person appointed under this Act as an authorised officer for the purposes of this Act.

‘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.

‘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.

‘highway’ means —

a) 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.

‘litter authority’ includes —

a) the Authority b) any other body created by or under an Act c) any government department d) any municipal council e) any protection agency f) any body declared by Order of the Governor in

Council under section 45C to be a litter authority.

‘litter enforcement officer’ means —

a) an authorised officer b) 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;

c) in relation to — i. land or waters under the control or

management of a litter authority

or

ii. 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

d) a member of the police force e) 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

and

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

c) in relation to any other vehicle – the person who owns the vehicle (whether the vehicle is registered in any way or not).

‘regulation’ means regulation made under this Act.

‘Tribunal’ means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.

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‘vehicle’ means —

a) anything that is capable of transporting a person, including an aeroplane, boat, bicycle, bus, car, horse, train or tram

or

b) any trailer that is attached to any such thing.

‘waste’ includes —

a) 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

b) any discarded, rejected, unwanted, surplus or abandoned matter

c) 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 d) 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.

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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. Object of Part

The object of this Part is—

a) to prohibit and regulate the deposit of litter in the environment

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. Deposit of litter generally

1. A person must not deposit any litter unless—

a) the person deposits the litter in a place— i. that is provided for the deposit of litter

and

ii. that is appropriate for litter of that size, shape, nature or volume; or

b) 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. is acting with the express consent of the person who owns, controls or is in possession of the place; or

c) the person is authorised to deposit the litter by or under an Act or a Commonwealth Act

or

d) the deposit of the litter is an unavoidable consequence of a lawful activity

or

e) the deposit is accidental and the person does everything that is reasonably possible to retrieve the litter.

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. 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—

a) the intentional deposit of glass, metal, earthenware or crockery

or

b) the intentional deposit of litter that was a danger to any person or animal or to any land, waters or vehicle

or

c) the intentional deposit of litter on, from or towards any vehicle.

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:

> 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

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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.

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.

Penalty: 40 penalty units.

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.

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) 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 template www.epa.vic.gov.au.

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.

Penalty: 10 penalty units.

> Unsolicited mail is commonly referred to as ‘junk mail’. This category does not include newspapers but if residents have issues with local

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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.

Penalty: 10 penalty units.

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

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:

> 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.

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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

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 45T

45T. Offence to deface or set fire to public litter receptacles

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.

Penalty: 10 penalty units.

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.

Penalty: 10 penalty units.

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.

Penalty: 10 penalty units.

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).

Note that ‘vehicle’ is broadly defined and includes ‘trailer’, see Definitions, page 19 & 20.

A penalty infringement notice may be issued to the driver for failing to secure the load properly. The offence is

‘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.

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

SECTION 45V

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.

Penalty: 10 penalty units.

This direction can be verbal or written and only used when section 45E of the EP Act ‘Deposit of litter generally’ is satisfied.

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.

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.

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

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litterer: http://www.basscoastpost.com/the-case-of-the-kilcunda-dumper.html.

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

45X. 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;

or

b) unduly offensive to the senses of human beings;

or

c) a hazard to the environment.

2. The litter authority may, by written notice, direct any person who deposited the litter to do one or more of the following—

a) to remove or dispose of the litter; b) 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;

c) to take any other action in relation to the litter that is specified in the notice—

within the time specified in the notice.

3. A person who receives such a direction must comply with it.

Penalty: 40 penalty units.

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

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.

Penalty: 40 penalty units.

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, sub-section (1)(a), (1)(b) or (1)(c) applies.

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.

Refer to Publications on EPA Victoria’s website for notice template www.epa.vic.gov.au.

SECTION 45Y

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) 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

ii. the object or thing is unduly offensive to the senses of human beings while it remains in that place;

or

iii. the object or thing is a hazard to the environment while it remains in that place;

or

b) 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) to remove or dispose of the object or thing; b) to restore any place affected by the object or

thing to a state as close as practicable to the

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state it was in immediately before the object or thing was deposited;

c) to take any other action in relation to the object or thing that is specified in the notice—

within the time specified in the notice.

3. A person who receives such a direction must comply with it.

Penalty: 40 penalty units.

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 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.

Penalty: 40 penalty units.

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.

Refer to Publications on EPA Victoria’s website for notice template www.epa.vic.gov.au.

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.

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.

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.

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.

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.

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;

or

b) a person is the occupier of premises from which litter has, or is likely to, escape —

a litter enforcement officer may serve a litter abatement notice on the person.

2. A litter abatement notice may require the person to do one or more of the following —

a) to not deposit litter contrary to section 45E; b) to ensure that no litter escapes from any

premises occupied by the person;

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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.

Penalty: 20 penalty units.

4. A litter abatement notice may specify a period of time within which any requirement it imposes must be complied with.

45ZC. 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;

and

c) be signed by the person giving the notice.

Litter abatement notices are a valuable tool that can be used in varying circumstances. The following examples are just a few to consider:

> 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.

Refer to Publications on EPA Victoria’s website for notice template www.epa.vic.gov.au.

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.

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.

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.

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.

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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.

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) had possession of particular litter at some time in the past

or

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. set out the information the officer seeks from the person

ii. specify the date by when the information is required

iii. contain a copy of this section and section 45ZJ iv. be signed by the officer v. contain the officer's business address.

6. The information an officer may require from a person may include —

a) how, when and where the litter came into or left the person's possession

b) the name and address of anyone who had possession of the litter after the litter left the person's possession

c) 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.

Penalty: 10 penalty units.

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. How the litter left his possession; 2. When the litter left his possession; 3. Where the litter left his possession; 4. Why the litter left his possession; 5. 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.

Penalty: 20 penalty units.

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).

Refer to Publications on EPA Victoria’s website for notice template www.epa.vic.gov.au.

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 template www.epa.vic.gov.au.

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) that a specified person is, or was on a specified date, a litter enforcement officer appointed by the authority; or

b) 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) must take judicial notice of the signature or seal of any litter authority affixed to the certificate; and

d) must, until the contrary is proved, presume that the signature or seal was properly affixed.

57D. 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 —

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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

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Tools & tips for litter enforcement > 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).

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EPA contacts EPA Victoria – General enquiries (24 hours)

T: 1300 372 842 (1300 EPA VIC)

W: www.epa.vic.gov.au

E: contact@epa.vic.gov.au

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

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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