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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Tuesday, 3 August 2004) . . Page.. 3370 ..

MS TUCKER (5.21): I move amendment No 1 circulated in my name which inserts new clauses 13A to 13E [see schedule 3 at page 3381].

These amendments are based on my Litter Amendment Bill 2002 and address the issues raised in scrutiny report 23. The committee had concerns about who carried the burden of proof in the original legislation. In this amendment the prosecution would be required to prove that the defendant failed to take all reasonable steps to prevent the offence. The defendant will only have to discharge an evidential burden in relation to the exceptions mentioned. This clarifies who will carry the burden of proof as mentioned by the scrutiny committee. It also reduces the burden in proposed section 13D (3) to an evidential burden and would appear to resolve the committee’s concern.

But I will just briefly recap on the bill that these amendments have come from. Essentially, the bill was to address the large amount of unsolicited advertising material, commonly known as junk mail, placed in letterboxes every day. There are a couple of types of junk mail. The first is addressed by unsolicited material delivered by Australia Post containing advertising material from companies. This sort of mail is out of the Assembly’s control as the Commonwealth has jurisdiction over postal services. The other type of junk mail is unaddressed advertising material, usually catalogues and fliers, distributed by private direct-marketing companies or even directly by the advertiser. This sort of junk mail the Assembly can do something about.

In my tabling speech in 2002 I spoke about some of the pitfalls of self-regulated industry and I would refer members to that speech for more detail. Basically, the bill set up a new offence if a person deposits unsolicited advertising material in a mail receptacle where there is an easily read sign to the effect that unsolicited advertising material is not to be deposited there—for example a sign that says “No junk mail”. The penalty is similar to the penalties applying to littering offences. The company that employs a person to deliver junk mail would also be liable if it were demonstrated that they failed to take all reasonable steps to prevent the offence—for example, by having a clear company policy that junk mail is not to be distributed in “No junk mail” letterboxes.

The amendments include definitions of junk mail and provide exclusions such as public notices from government agencies, charities and community associations and election campaign material. I have actually amended my own amendment. For members’ interest, in 13B (3) (c) I have removed the word “incorporated” before community associations because the Democrats were concerned that that could mean that community associations that were not incorporated would somehow fall through.

Mrs Cross: So you’re amending that amendment?

MS TUCKER: So I have amended that, yes. It has not been circulated but I have amended it and signed it. The amendments also include provisions so that the junk mail cannot just be left on a doorstep or in a driveway.

On the question of balloons, I have also prepared amendments. Clause 13E creates an offence if a person intentionally releases or causes the release of a mass number of balloons at the same time. This offence is a strict liability offence. This legislation matches the New South Wales legislation. I and the Chief Minister have received a letter

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