Penalty notices

Penalties

On-the-spot fines
(also called penalty notices or penalty infringement notices)

Different on-the-spot fines apply depending on the litter involved and the circumstances of the case:

  • littering with a small item — $60
  • littering with unlit cigarette or extinguished cigarette butt (excluding littering from a vehicle) – $60
  • littering with lit cigarette butt (excluding littering from a vehicle)— $200
  • littering from vehicle (any type of litter) — $200 individuals/$400 corporations
  • general littering (excluding cigarettes and littering from a vehicle) — $200 individuals/$400 corporations
  • aggravated littering — $375 individuals/$750 corporations
  • depositing advertising material in place or on vehicle — $200 individuals/$400 corporations
  • causing or asking person to deposit advertising material contrary to Act — $200 individuals/$400 corporations.

Court hearings

The maximum penalties if proceedings are taken in court are:

  • littering (including littering from vehicles) — $1100 individuals or corporations
  • aggravated littering — $3,300 individuals/$5,500 corporations
  • depositing advertising material illegally — $550 individuals or corporations;
  • causing someone to deposit advertising material illegally — $770 individuals/$3300 corporations.

Who can give out fines for littering?

Many government agencies have powers to enforce the litter laws and issue litter fines:

  • all 174 local councils
  • National Parks and Wildlife Service
  • Olympic Coordination Authority
  • Waterways Authority
  • Ports Corporations
  • NSW Police Force
  • Darling Harbour Authority & Sydney Harbour Foreshore Authority
  • Centennial & Moore Park Trust
  • Bicentennial Park Trust
  • Sydney Catchment Authority
  • Parramatta Stadium Trust
  • Royal Botanic Gardens
  • Marine Park Authority
  • Department of Fisheries
  • NSW Environment Protection Authority
  • Forestry Commission
  • Universities
  • Western Lands Commission
  • Lord Howe Island Board

When should penalty notices be issued

Minor one-off breaches

Penalty notices are issued for minor breaches. They allow the person served with the notice to pay a fine rather than have the alleged offence dealt with in court.

Penalty notices primarily deal with one-off breaches that can be remedied easily. They are not appropriate in ongoing situations, where further investigation is needed to determine the nature of the problem and to develop a long-term solution.

Multiple breaches

It not appropriate to issue simultaneous or successive penalty notices for multiple breaches of the litter laws. In these cases there is obviously a continuing environmental or compliance problem, even though each breach in itself may be comparatively minor. These problems need to be dealt with by issuing an appropriate notice, or through court proceedings. This should ensure that the appropriate directions or orders can be made and enforced.

No more than two penalty notices should be issued simultaneously or successively, unless the matter has been approved by a senior officer of the regulatory authority.

Time frame

There is no specific time frame set out in the POEO Act within which penalty notices have to be issued. However, since the penalty notice may be the first notice that a person receives about the alleged breach, they should receive it soon enough to allow them to recall the events, so they can make an informed decision about whether to defend the matter in court. To be fair the penalty notice should be issued within 14 days of the alleged breach.

Other authorities involved

It would be inappropriate for a regulatory authority to issue a penalty notice in a situation where another authority was already involved in the matter.

Summary: when is it appropriate to issue a penalty notice?

Penalty notices are appropriate when:

  • the breach is minor
  • the facts appear obvious
  • the breach is a one-off situation that can be remedied easily
  • issuing a penalty notice is likely to be a viable deterrent.

Summary: when is it not appropriate to issue a penalty notice?

It is not appropriate to issue a penalty notice when:

  • the breach is ongoing and not within the alleged offender’s capacity to remedy quickly
  • the penalty prescribed on the notice would be inadequate for the severity of the offence committed
  • the extent of harm to the environment cannot be assessed immediately
  • the evidence is controversial or insufficient, so that if a court heard the matter it would be unlikely to convict
  • a period of substantially more than 14 days has elapsed since the alleged breach
  • the EPA is already involved in the matter, and is attempting in another way to resolve the problem
  • multiple breaches have occurred and several penalty notices have already been issued.

Evidence required for penalty notices

It is important to remember that a person issued with a penalty notice has the right to elect to have the alleged offence dealt with by a court. Therefore, before issuing the penalty notice, you need to be sure of the facts and collect evidence. As a bare minimum you must know the answers to the following questions, and should keep written notes about them, before issuing a penalty notice:

  • What particular offence was committed?
  • Who committed the offence?
  • What is the person’s address? (If it is littering from a vehicle, record the registration number, model and colour of the car, and find out who is the registered owner.)
  • Where did the offence take place?
  • When did the offence take place?
  • Have I collected enough evidence to prove the elements of the offence?

Discretion — what penalty notice, if any, should be issued?

Littering offences can overlap with the more serious offences of water pollution and waste dumping. The maximum penalties for these offences are much higher. Regulatory agencies must choose which offence to enforce, based on the particular circumstances. Examples:

A trailer load of junk from a domestic clean-up is left in a bush reserve. Waste dumping, rather than littering, would probably be the more appropriate offence to enforce.

Used oil from a vehicle engine is emptied into a drain. Water pollution, rather than littering, would probably be the more appropriate offence to enforce, not littering. This is because oil dumping is not just an aesthetic and social issue, but poses a clear threat to water quality and aquatic life.

A food wrapping is thrown into a waterway. Littering, rather than water pollution, would probably be the appropriate offence to enforce, taking into account the relatively minor nature of the mischief, and the lower penalty for littering.

What level of fine is appropriate?

As indicated in the ‘Penalties’ section of chapter 5 of this manual, different penalties apply to different types of litter or Acts of littering. The enforcement officer may need to select which level of littering fine is appropriate in the circumstances. For example, the officer may need to decide:

  • whether the litterer of a drink container and a paper bag should be issued with a penalty notice for a small item in respect of either the container or the bag ($60 penalty), or two such notices (one for the container, and an additional one for the bag, making a total fine of $120) or a penalty notice for general littering ($200 penalty for individuals)
  • whether, in relation to littering a small item (usually a $60 penalty) the particular circumstances warrant issuing the penalty notice for general littering ($200 individuals or $400 corporations) or even aggravated littering ($375 penalty for individuals)
  • whether a particular Act, such as littering a glass bottle, should be dealt with by way of a penalty notice for a small item ($60 penalty), or for general littering ($200 penalty) or for aggravated littering ($375 penalty for individuals).

Small items

The legislation provides the following examples of small items, attracting the $60 fine (provided they are not ejected from a vehicle):

  • confectionery wrapper
  • cigarette packet
  • ATM statement
  • bus ticket
  • train ticket.

Cigarettes

  • cigarette packet — $60
  • unlit or extinguished cigarettes — $60
  • lit cigarettes in dangerous circumstances (e.g. in dry bush) — $375 (individuals) or $750 (corporations)
  • any cigarette item (unlit, lit, packet etc.) deposited from a motor vehicle — $200 (individuals) or $400 (corporations)
  • lit cigarette not covered by points above — $200

 

Other small items

If an item is relatively small, but not one of the small items listed above, the enforcement officer has to take into account all the circumstances of the case. They need to consider:

  • the nature of the item
  • the likelihood of it causing harm to persons or the environment
  • where and how it was deposited.

A common sense approach is required. If in doubt, choose the lower penalty offence (small item rather than general littering).

Littering by persons under 18

Before issuing a penalty notice for littering to a person aged under 18 years, carefully consider if this is appropriate. In most cases a warning will be preferable.

Penalty notices cannot be issued to children who are under 10 years at the time the alleged offence was committed (s 53 Fines Act 1996).

Children between 10 and 14 yrs are presumed to not be capable of committing criminal Acts and in any prosecution issued where a penalty notice was court elected the prosecutor would need to prove, in addition to the elements of the offence, that the child knew what they were doing was wrong.

Court elected proceedings relating to offences committed by children who were under 18 years at the time of the alleged offence would be commenced in the Children’s Court, a specialist jurisdiction of the Local Court (s 28 Children (Criminal Proceedings) Act 1987).

The maximum fine which can be imposed by the Children’s Court is $1100 or the maximum penalty set down in the relevant Act where this amount is less than $1100 (s 33(1)(c) Children (Criminal Proceedings) Act 1987).

The Young Offenders Act 1997, which provides an alternative to court proceedings, only applies to police officers issuing penalty notices.

The person responsible for a child should be present throughout any questioning in order for answers to be admissible in criminal proceedings against the child. However a child’s name and address, and answers to questions, can still be demanded under sections 203 and 204 of the POEO Act, if the warning is given under section 212, without the presence an adult. (See s 13 Children (Criminal Proceedings) Act 1987 for further details).

Summary of discretionary factors

In deciding whether to issue a penalty notice for littering, water pollution or waste dumping, and in deciding what level of littering fine to impose, enforcement officers have to:

  • weigh up all the circumstances of the case
  • identify the offence or penalty level that reflects the nature and seriousness of the behaviour, and that could be prosecuted successfully in court.

Habitual or simultaneous littering

In the case of habitual litterers, or the simultaneous littering of several small items, no more than two penalty notices should be issued simultaneously or successively unless the matter has been approved in accordance with your organization’s procedures.

Under 18-year olds

In many cases it will be more appropriate to issue a warning, not a penalty notice, to a person aged under 18. Special procedures apply when interviewing or taking court action against a person under 18.

How will people know they have been fined?

Most people will know they have been fined when they receive a penalty notice from an authorised officer. Penalty notices can be issued on the spot or sent by mail. Samples of penalty notices are included in Appendix 1.

In the case of litter from a vehicle, the owner of the vehicle receives the notice and must pay the fine. The exception to this is where the owner was not in the vehicle at the relevant time, and:

  • provides the name and address of the person in charge of the vehicle at that time, or
  • satisfies the enforcement officer that they did not know (or could not with reasonable diligence have determined) the name and address of the person in charge of the vehicle at the time of the incident.

Getting names and addresses

Obtaining the name and address of a litterer is often the most difficult aspect of enforcement. Wearing a uniform and showing your card helps, identifying you as an environmental enforcement officer.

Particular powers of some agencies

This section relates to the power to demand the name and address of a litterer, but it only applies to authorised officers from the EPA, local councils and the Marine Parks Authority.

These authorised officers can demand the full name and residential address of a person suspected on reasonable grounds to have committed any littering offence under the POEO Act. It is an offence for a litterer not to give their name and address if the officer makes the demands and issues a warning to the following effect (sections 204 and 212 of the POEO Act):

‘I am an authorised officer of (agency name) and require you to answer the following questions:

  • What is your full name?
  • What is your residential address?

I warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence against the Protection of the Environment Operations Act. It is also an offence to knowingly answer these questions falsely. You may, however, object to answering the questions but the answer is not admissible in evidence against you personally.

Do you understand that?’

Officers should record any response, providing evidence of the person’s level of understanding.

It is unwise for officers from other agencies, or members of the public, to attempt to obtain the name and address of a person littering. However, on occasions a litterer may be willing to provide this information voluntarily. In order for the evidence to be admissible under the Evidence Act 1995, an enforcement officer seeking to obtain information voluntarily should caution the litterer that they need not answer if the answer may incriminate them.

In practice, it is preferable to leave such tasks to officers who can require a person to provide their name and address and answer other questions under the POEO Act, and who also have the necessary support to follow up instances of non-compliance.

In practice, resources may be lacking to follow-up litterers who refuse to give their name and address. While this can be frustrating for the authorised officers concerned, remember that littering is a diffuse problem in which a percentage approach to education and enforcement can still give good results.

What happens to the fines?

Under the provisions of the Local Government Act and the POEO Act, all fines imposed by local councils can be kept by that council.

What happens if a person elects to have a penalty notice dealt with in court?

In most cases a person issued with a penalty notice will simply pay the fine. Often this is because the person knows that they have committed the offence and realises that it is cheaper to pay the fine than go to court.

However, if the person elects to defend the penalty notice or refuses to pay it, the matter will be dealt with in the Local Court (usually the Local Court that is closest to where the alleged offence occurred).

The steps for taking the case to court are:

1 Review the evidence, and if your organisation decides it is appropriate to enforce the penalty notice, you will need to start court proceedings. If by this time you have not already spoken with your organization’s legal staff, now is the time to do so.

Starting court proceedings involves preparing two court documents: an ‘information’ and a ‘summons’.

  • The ‘information’ sets out to the court the type of offence and the brief facts.
  • The ‘summons’ also covers these matters and must be served on the alleged offender (the ‘defendant’).

The summons is a legal document that requires the individual (or, if the offender is a corporation, the authorised representative of a corporation) to attend court at the time and place specified in it.

2 Your organization’s legal representative will attend the court on the day listed on the summons (the first ‘return date’ for the summons) and advise you of what to do next. You may be required to attend court as a witness.

What happens if the person does not pay the fine?

Source: NSW Infringement Processing Bureau

The Infringement Processing Bureau will automatically deal with unpaid penalty notices. The government has the power to recoup outstanding fines by:

  • suspending and/or cancelling a driver’s licence and/or vehicle registration
  • seizing assets
  • deducting money from wages, or
  • ordering community service.

The government also retains the power to imprison people who breach community service orders.

If someone has been fined by a court, they will have been told about the fine by the court at the time that a decision was handed down.

The fine enforcement system applies when a fine is issued — either as a court fine or as a penalty notice.

If a person does not pay the fine, the following steps are taken:

1 If payment is not received by the Infringement Processing Bureau within the required time, the matter is referred to the State Debt Recovery Office for enforcement.

2 The State Debt Recovery Office then makes an Enforcement Order, which will give the defaulter 28 days to either pay the fine or enter into a ‘Time to Pay’ arrangement. An enforcement fee will be added to the amount of the fine.

  • A ‘Time to Pay’ arrangement is an agreement reached between the defaulter and the State Debt Recovery Office to pay the fine over a specified period.
  • These arrangements can be made if the defaulter is in financial difficulty and cannot pay the fine within 28 days.

3 If the defaulter does not pay the fine or enter into a payment arrangement, the State Debt Recovery Office directs the Roads and Traffic Authority (RTA) to suspend the defaulter’s licence or cancel the defaulter’s motor vehicle registration. An additional enforcement fee will be added to the fine.

  • Once a RTA sanction is in place, it is only lifted after full payment of the fine and enforcement costs to the State Debt Recovery Office.

4 If the defaulter does not have a NSW driver’s licence or a motor vehicle registered in their name, or if the fine is still unpaid six months after a RTA sanction has been imposed, the State Debt Recovery Office can:

  • contact the Sheriff’s Office of NSW. The Sheriff’s Office has the power to seize property, including furniture, cars, televisions and other belongings to the value of the fine
  • arrange automatic deduction from the defaulters wages or salary, or
  • place a charge on any land owned by the defaulter.

A further enforcement fee will be added to the fine.

5 If the State Debt Recovery Office determines that the defaulters does not have the income or assets to pay the fine, they can issue a Community Service Order.

  • This order requires the defaulters to participate in community service activities for a period of time which equates to the value of the money owed, plus enforcement costs.

6 If the defaulters does not comply with the Community Service Order, the State Debt Recovery Office will issue a Warrant of Commitment. This means that the defaulters will be liable to be arrested and imprisoned for a period of time which equates to the value of the money owed, plus enforcement costs.

The defaulters can pay the fine, including any enforcement costs, at any stage of this process.

Ten golden rules for issuing penalty notices

Adapted from NSW Infringement Processing Bureau

  1. Ensure you have all the proof necessary for the offence.
  2. Be presentable, in full uniform with name badge (where appropriate).
  3. Be alert, active and prepared (i.e. carry a tape measure, black ballpoint pen, camera, etc).
  4. Be fair, equitable, courteous and cooperative.
  5. Be firm and self confident but not over-officious.
  6. Be consistent.
  7. Be accurate, ensure your writing is legible and that the notice is complete.
  8. Be tactful whilst maintaining a respectful and pleasant attitude.
  9. Use discretion and approach each situation on its merits.
  10. If you can’t resolve any doubts through discussion with a senior officer or lawyer, don’t issue a notice.

Case studies

$60 fine

A drink container is left underneath a park bench by an office worker who has had lunch in the park. The enforcement officer determines that a penalty notice, not just a warning, is appropriate. Drink containers are not listed as examples of ‘small items’ in the legislation. The listed items are

  • confectionary wrapper
  • cigarette packet (not cigarettes or cigarette butts)
  • ATM statement
  • bus ticket
  • train ticket.

The enforcement officer weighs up all the circumstances of the case, ensures that evidence to prove the offence has been collected and believes the penalty level that reflects the nature and seriousness of the behaviour is the ‘small item’ ($60) fine.
 
$200 fine

A drink container is thrown into a stormwater drain, making it difficult to retrieve. It is very likely that the item will find its way into a waterway. The enforcement officer identifies herself as such, points out the likelihood of water pollution from the litter, and asks the litterer to retrieve their rubbish. The litterer points to another piece of litter on the ground and says ‘Why don’t you get the person who dropped that one to pick that one up too?’.

The enforcement officer weighs up all the circumstances of the case, and believes the offence that reflects the nature and seriousness of the behaviour, and that could be prosecuted successfully if court-elected, is the less serious offence of littering, rather than water pollution (which attracts a penalty notice of $750).

The enforcement officer notes that drink containers are not listed as an example of ‘small litter’ ($60 fine) in the legislation. Because of the likelihood that the drink container will end up in a waterway, and because of the unwillingness of the litterer to attempt to retrieve their litter, the officer issues a notice for ‘general littering’ ($200).
 
$375 fine

A man drops a glass drink container. It breaks and he leaves it on the footpath near a children’s play area in a park. The enforcement officer weighs all the circumstances, including the appreciable danger or harm to children, and to the individual that smashed the bottle, issues a penalty notice for ‘deposit litter in circumstances of aggravation’ ($375).

A single littering offence may potentially fall within a number of different penalty notice offences. For example, a lit cigarette butt has its own specific fine, but could also be appropriately dealt with as aggravated littering, depending on the circumstances of the offence.

Sample infringement notices for various littering offences
(PDF format)

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