Mr Speaker sir, the Environmental Public Health (Amendment) Bill seeks to make several changes. One group of changes affects the licensing of cleaning businesses and the roll-out of the Progressive Wage Model for this sector. Another group of changes relates to the dumping of waste from vehicles and another extends the time period for which an offence can be determined.
Sir, I do not oppose the Bill, as the measures are, taken as a whole, a step in the right direction for evolving the cleaning sector and regulating the penalty regime for littering and dumping.
However, I will raise several points of clarification on areas where there are risks associated with the provisions in the Bill, where I hope the government can provide some assurances and consider appropriate provisions in subsidiary legislation. My clarifications and suggestions centre on Clause 5 of this Amendment Bill which amends Section 17 of the original Bill.
Overview of what is at stake
To be clear, littering from residential flats is a serious problem. It poses public health challenges and lessens quality of life.
High-rise littering cases are on the increase, as is NEA’s deployment of cameras and enforcement actions in respect of high-rise littering.
In spite of the number of cameras and enforcement actions, the level of deterrence embodied in the law and enforcement mechanisms will need stepping up to address the fact that more flats, which are taller and denser, are being built across the island; and the fact that more people are working from home all of the time or some of the time.
How the new presumption of guilt operates
In this Bill, the new Clause 17A holds the owner or tenant to be responsible for litter emanating from any flat that lands in a “public place.” It then holds every owner or every tenant of the flat equally liable.
The Ministry’s press release states:
“The presumption can be rebutted by the owner/tenant by proving that he/she was not present in the flat at the time of the offence, by proving that he/she could not have been the offender, or by providing the identity of a person reasonably believed to be the offender to NEA within 14 days of being required to do so.”Press Release
The effect of the presumption is that unless rebutted, it presumes that the owner/tenant is the offender and thus makes the owner/tenant liable for the acts of the offender (if the owner and offender are different people). In cases where the offence may have been the result of someone else – say a visitor or workers working in the flat – in such cases, the burden of proof will be on the owners or tenants to prove their innocence in the face of a default assumption of their guilt.
I have the following clarifications to make. Going forward, when I refer to the owner. I will mean either the owner or tenant depending on what is relevant in each case of an offence.
Burden of proof
Firstly, what is the standard of proof that needs to be met by the owner or tenant to rebut the presumption of guilt?Must the owner or tenant prove this beyond a reasonable doubt or can they prove this based on a balance of probabilities?
For example, if there was some other culprit – say a team of workers doing renovation work in the apartment – would the owner need to prove beyond a reasonable doubt that they were not at home at the time of the offence in addition to demonstrating that the works were being done at the time?
Also, can the government share some examples of what such proof would look like? Some information from an IT system that shows the location of one’s mobile phone and/or computer at the time, for example? Or the testimony of an eyewitness who is not conflicted, who could place the person somewhere else?
Another scenario – if there are joint owners, would the authorities remove liability from one of the owners if he or she demonstrates that he or she was not present in the flat at the time of the offence, leaving the other owner to bear 100% of the fine?
One observation I will make here is that if the burden of proof falls on the owner in all cases, this may result in unintended consequences and I will return to that later.
I have another clarification here to put to the government. S17A(5) provides that the presumption of guilt is rebuttable by proving any of these (a) contravention committed by person other than presumed offender (b) presumed offender not in flat at time of offence (c) presumed offender reasonably believes someone else is the actual offender, and provides the identity of that person.
My question is on part ©. What constitutes a reasonable belief? Is it the legal standard meaning that some evidence must be adduced; or merely a belief accompanied by a reason?
Differences between HDB flats and private apartments
Next, HDB flat owners have a greater likelihood of being caught for high-rise littering vis-a-vis private apartment owners. This is because the new Section 17A will only apply to private apartments if the litter lands in “a public place.”
This is similar to how the existing prohibition against littering under the Environmental Public Health Act applies only to publicly accessible places, rather than private estates like executive condominiums and strata-titled condominiums.
In Parliament in 2018, the government said that private estates such as executive condominiums and private strata-titled condominiums are not regarded as such public places in law, as access to these places are restricted. However, the management committee of such estates generally have by-laws to deal with high-rise littering, and may turn to the courts when dealing with errant residents.
My clarification here is that would the government work with MSCTs of private apartment developments to make available its learnings in terms of enforcing these laws and regulations in HDB estates, so that those who wish to pursue a more rigorous approach to anti-littering enforcement are able to draw on this experience?
Next, I would like to ask the government to elaborate on how care will be taken when deciding whether or not to prosecute vulnerable groups of possible offenders.
In the NEA’s FAQ on the new Bill, it was stated:
“5. Will the new legislation be applicable to homeowners/tenants who are elderly or mentally/physically disabled?
NEA will be sensitive and enforce judiciously against offenders from such groups. NEA has in place an existing enforcement framework for the elderly and physically/mentally disabled offenders. The offender or his/her family members/relatives may write to NEA and provide relevant supporting documents. NEA will then fully review and consider the relevant circumstances of each case before taking any appropriate action against the owner(s)/tenant(s), which may include the issuance of a warning.”https://www.nea.gov.sg/media/news/news/index/nea-introduces-a-presumption-clause-for-littering-from-residential-flats
I would like to ask if a possible offender does not have the ability to write in to the NEA; and hence does not respond to the notice of a fine in time; and does not have relatives to assist; how would the case be handled, so as to give that person a fair hearing as regards to possible evidence of innocence that they might be able to share?
In the same vein, owners who may not understand written English and may not be able to read any written notices sent by the NEA may be disadvantaged. And lower-income owners may not have the time or resources to submit evidence to prove that they were not responsible for the high-rise littering.
Will sufficient consideration be given to such factors if such individuals seek to appeal against a fine by providing evidence against the presumption of guilt but have missed the deadline?
Lastly, I would like to discuss possible unintended consequences arising from this new presumption of guilt embodied in the new clause 17A.
What if owners require tenants to lock windows as a result of fear of fines? Or what if owners use this law as a reason to install CCTV cameras to make sure they have evidence to rebut the presumption of guilt vis-à-vis tenants or domestic workers, which raises privacy issues? Or what if the new law fuels tension between joint tenants or joint owners who may wish to push the blame to the other? To be sure, if these scenarios materialise, the individuals affected may have other resources in law.
But I raise this point because the new law may to some degree have unintended consequences for the dynamics of relationships between and amongst the owners, other residents, tenants and workers living and working in flats.
I hope the government and other stakeholders will keep an eye on this to be ready to implement changes to the law or to how the law is enforced to address these and other possible unintended consequences.
Delivered in Parliament on 6 February 2023