2021
2021
2022-11-02
act
government
publicgeneral
act.reprint
act-1987-015
partuncommenced
2021-11-10
2021-11-10
0
act-2021-038
52db8d2e-716a-48fe-949d-e06fe43881f9
7f0e1d24-b141-4ceb-a71e-1735922953ff
2021
none
Does not include amendments
by—
Statute Law (Miscellaneous
Provisions) Act (No 2) 2022 No 59 (not commenced —
to commence on 13.1.2023)
An Act to encourage persons responsible for
property to mitigate risks to access, safety and amenity that may arise from
property being left unattended and to ensure public spaces can continue to be
used, shared and enjoyed by the community by providing a scheme for dealing
with unattended property; and to repeal the Impounding Act
1993.
Part 1Preliminary
1Name of Act
This Act is the Public Spaces
(Unattended Property) Act 2021.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Objects of Act
The objects of this Act are—
(a)
to encourage persons responsible for property to
act quickly and responsibly to mitigate risks to access, safety and amenity
that may arise from the property being left unattended,
and
(b)
to ensure public spaces can continue to be used,
shared and enjoyed by the community as a whole by—
(i)
empowering authorities to move and otherwise deal
with property left unattended in public areas in the authority’s area of
control, and to take regulatory and enforcement action for offences,
and
(ii)
providing for the appropriate and efficient
temporary and longer-term storage or care of unattended property,
and
(iii)
providing for the recovery of costs from
responsible persons of dealing with unattended property, including costs
involved in collecting and storing unattended property when responsible
persons do not adequately resolve issues, and
(iv)
ensuring animals dealt with under the Act are
cared for in a way that is consistent with community expectations and animal
welfare laws, and
(c)
to empower occupiers of private land to take
possession of stray animals on the land.
Part 2Interpretation and application of Act
Division 1Definitions
4Definitions
The Dictionary in Schedule 3 defines terms used
in this Act.
Note—
The Interpretation Act
1987 also contains definitions and other provisions that
affect the interpretation and application of this Act.
Division 2Key
concepts
5Meaning of “animal”
(1)
In this Act, an animal includes—
(a)
aquatic animals, and
(b)
terrestrial animals.
(2)
An animal does not include—
(a)
companion animals within the meaning of the
Companion Animals Act 1998, other than
dogs in national parks, and
Note—
The operation of this paragraph means this Act
does not apply to—
(a)
dogs, unless a dog is in a national park,
or
(b)
cats.
(b)
other animals prescribed by the regulations as
being animals to which this Act does not apply.
6Meaning of “class 1 item”
(1)
In this Act, a class 1 item means a small
or medium-sized thing capable of ownership, except a living creature, that can
ordinarily be collected by 1 or 2 persons without the need for machinery to
lift, tow or otherwise move the thing.
(2)
Without limiting subsection (1), the following
are class 1 items—
(a)
baggage,
(b)
personal recreation equipment that is not
available for hire,
Examples of personal recreation
equipment—
bikes, surfboards
(c)
other personal items.
Note—
See section 9(2) for what applies if a thing may
be a class 1 item and a class 2 item or class 3 item.
7Meaning of “class 2 item”
(1)
In this Act, a class 2 item means a thing
that is—
(a)
capable of ownership, except a living creature,
and
(b)
made available for the use of the public at
large, whether or not on payment of a fee or other benefit, including as part
of a sharing service.
(2)
Without limiting subsection (1), the following
are class 2 items—
(a)
share-bikes,
(b)
shopping trolleys.
Note—
See section 9(2) for what applies if a thing may
be a class 2 item and a class 1 item or class 3 item.
8Meaning of “class 3 item”
(1)
In this Act, a class 3 item means a motor
vehicle.
(2)
Without limiting subsection (1), hire-cars are
class 3 items.
Note—
See section 9(2) for what applies if a thing may
be a class 3 item and a class 1 item or class 2 item.
9Meaning of “items”
(1)
In this Act, the following things are items—
(a)
class 1 items,
(b)
class 2 items,
(c)
class 3 items,
(d)
another thing prescribed by the regulations to be
an item for this Act.
(2)
If a thing is within 1 or more of the classes of
items referred to in subsection (1), the regulations may prescribe which class
of items the thing belongs to for this Act.
10Meaning of “place of care”
In this Act, a place
of care, for an animal, means a place appropriate for the
keeping of the animal while the animal is in the possession of an authority,
having regard to—
(a)
the animal’s needs, and
(b)
the period of time the animal has been, or is
likely to be, kept at the place.
11Meaning of “place of
storage”
In this Act, a place of storage, for an item,
means a place appropriate for the storage of the item while the item is in the
possession of an authority.
12When authorised officers have “possession” of
property
(1)
For this Act, an authorised officer or an
occupier of private land has possession of
property—
(a)
as soon as the officer or occupier takes
possession of the property under this Act, and
(b)
continues to have possession of the property
until the property is returned or disposed of under this
Act.
(2)
Property does not have to be taken to a place of
care or place of storage for it to be taken possession of for the purposes of
this Act.
13Meaning of “property”
In this Act, property means—
(a)
an animal, or
(b)
an item.
14Meaning of “public place”
(1)
In this Act, a public place means a place
that is open to or frequented by the public—
(a)
whether or not payment for admission to the place
is required, and
(b)
whether or not the place is usually open to or
frequented by the public.
(2)
Without limiting subsection (1), a public place
includes—
(a)
a place dedicated or reserved for a public
purpose, and
(b)
a place that, although privately owned, is a
place—
(i)
to which members of the public are permitted to
have access for the purposes of business or leisure, or
(ii)
that members of the public are permitted to use
as a thoroughfare.
(3)
A public place does not include a place declared
by the regulations not to be a public place.
15Meaning of “responsible persons” for
property
(1)
The responsible
persons for property are—
(a)
the person who owns or is otherwise responsible
for the property, and
(b)
a person engaged to collect or manage the
property on behalf of the property’s owner, and
(c)
another person who is in control or possession,
or entitled to possession, of the property, and
(d)
a person who caused, or engaged in conduct that
was reasonably likely to result in, the property being unattended.
Examples—
1
a person who opens a gate that releases an
animal
2
a person who leaves a shopping trolley
unattended
(2)
The responsible person for property
includes—
(a)
for property that is a class 1 item—a hirer
or lessor of the property, and
(b)
for property that is a class 2 item—the
following persons—
(i)
a person using the property,
(ii)
a hirer or lessor of the
property,
(iii)
a scheme operator, and
(c)
for property that is a class 3 item—the
following persons—
(i)
the registered operator of the
vehicle,
(ii)
a person who hires or leases the
vehicle,
(iii)
a scheme operator.
(3)
The regulations may prescribe additional persons
to be responsible persons for property or a class of
property.
16Meaning of “unattended”
In this Act, unattended, in relation to
property, means the property is not under the direct control or supervision of
the responsible person.
Division 3Application
of Act
17Act to bind Crown
This Act binds—
(a)
the Crown in right of New South Wales,
and
(b)
in so far as the legislative power of the
Parliament of New South Wales permits, the Crown in all its other
capacities.
Part 3Dealing with unattended property
Division 1Unattended
animals
18Authorised officers may take possession of unattended
animals
(1)
An authorised officer may take possession of an
animal if the officer reasonably believes—
(a)
the animal is unattended, and
(b)
the animal is—
(i)
in a public place, or
(ii)
on private land without the permission of the
occupier of the land.
(2)
For subsection (1), an animal is not
unattended—
(a)
if the animal is in a public place—
(i)
in response to an invitation contained in a
notice published by the public authority that owns or controls the public
place, and
(ii)
in accordance with any conditions stated in the
notice, or
(b)
if the animal is in a public place with the
consent of the public authority that owns or controls the public place,
or
(c)
if the animal is in a public place as required or
permitted by an Act or another law, or
(d)
for an animal that is stock—if the animal
is unattended on a road or travelling stock reserve in circumstances set out
in the Local Land Services Act
2013, section 115, or
(e)
in other circumstances prescribed by the
regulations for this section.
(3)
The regulations may provide for additional
matters in relation to authorised officers taking possession of animals
including—
(a)
the matters to be considered by authorised
officers in forming a reasonable belief animals are unattended including, for
example, having regard to guidelines prescribed by the regulations,
and
(b)
other conditions that must be satisfied before
authorised officers may take possession of animals generally or a class of
items.
19Special arrangements for stock animals in
emergencies
(1)
This section applies if, in an emergency, an
authorised officer reasonably believes—
(a)
an animal that is stock is unattended,
and
(b)
appropriate arrangements cannot be made for the
officer to take possession of the animal, and
(c)
failure to move the animal poses an unacceptable
risk to the health or safety of persons.
(2)
The authorised officer may, without taking
possession of the animal, arrange for the animal to be kept on any practicable
premises in the vicinity of the place at which the animal was left
unattended.
(3)
The authorised officer may arrange for the animal
to be kept on private land only if the officer has made reasonable attempts
to—
(a)
obtain the consent of the owner or occupier of
the private land, and
(b)
comply with the reasonable requests of the owner
or occupier of the private land in relation to the keeping of the animal on
the land until the animal is removed.
(4)
The authorised officer must arrange for the
animal to be removed from the private land as soon as reasonably practicable
after the emergency ends unless the owner or occupier of the land agrees to
the animal remaining on the land.
(5)
The regulations may provide for additional
matters in relation to the arrangements made in emergencies for animals that
are stock.
(6)
To the extent of any inconsistency between this
section and the Biosecurity Act
2015—
(a)
if the inconsistency is between this section and
an emergency order under the Biosecurity Act
2015—the emergency order prevails,
and
(b)
otherwise—this section
prevails.
20Authorised officers may take possession of dogs only in
certain areas
An authorised officer may take possession of a
dog under this Act only if the dog is in any of the following areas under the
National Parks and Wildlife Act
1974—
(a)
a national park,
(b)
a nature reserve,
(c)
a karst conservation reserve,
(d)
an Aboriginal area.
21Authorised officers to ensure animals taken to place of
care
(1)
If an authorised officer takes possession of an
animal the officer must ensure the animal is—
(a)
taken to a place of care, or
(b)
returned to the responsible person for the
animal.
(2)
To avoid doubt, an animal taken to a place of
care continues to be the possession of the authority that appointed the
authorised officer while the animal is at the place of
care.
(3)
An authority may nominate a place of care as the
place of care to which an authorised officer appointed by the authority may
take an animal the officer takes possession of.
22Authorised officers may destroy animals taken into
possession in certain circumstances
(1)
This section applies if, after taking possession
of an animal under this Division, an authorised officer reasonably
believes—
(a)
the animal is so severely diseased or injured, or
in so poor a physical or psychological condition, that it is cruel to keep the
animal alive, or
(b)
there is no alternative to the immediate
destruction of the animal because the animal is a threat to the health or
safety of persons, other animals or the
environment.
(2)
The authorised officer may destroy the animal, in
a way that causes the animal to die quickly and without unnecessary pain,
if—
(a)
a veterinary practitioner is not available,
or
(b)
the authorised officer reasonably believes
waiting for a veterinary practitioner would be cruel or otherwise
inappropriate.
(3)
In this section—
veterinary
practitioner has the same meaning as in the Veterinary Practice Act
2003.
Division 2Unattended
animals on private land
23Occupier of private land may take possession of unattended
animal on land
An occupier of private land may take possession
of an animal that is unattended on the land without the occupier’s
permission.
24Action to be taken after occupier of private land takes
possession of animal
(1)
If an occupier of private land takes possession
of an animal, the occupier must—
(a)
if the occupier knows the identity of the
responsible person for the animal and wishes to return the animal to the
responsible person—
(i)
contact the responsible person for the animal
within 24 hours of taking possession of the animal, and
(ii)
return the animal to the responsible person
within 4 days of taking possession of the animal or the longer period agreed
with the responsible person, or
(b)
if the occupier does not know the identity of the
responsible person for the animal but is taking reasonable steps to identify
the responsible person—
(i)
keep the animal for a period of no more than 4
days from the time of taking possession of the animal, and
(ii)
by the end of the period—
(A)
return the animal to a person the occupier is
satisfied is the responsible person for the animal, or
(B)
contact an authority, whose area of operations
includes the land, to make arrangements for the animal to be taken to a place
of care, or
(c)
if the occupier does not wish to return the
animal to the responsible person for the animal or is unwilling to take
reasonable steps to identify the responsible person—contact an
authority, whose area of operations includes the land, to make arrangements
for the animal to be taken to a place of care.
Maximum penalty—25 penalty
units.
(2)
The responsible person for the animal must pay to
the occupier of the private land the amount payable under section 55 for the
period during which the animal was in the occupier’s
possession.
(3)
If the responsible person for the animal does not
pay the occupier an amount due under subsection (2), the occupier of the
private land may recover the amount from the responsible person for the animal
as a debt.
Division 3Items
25Authorised officers may take possession of
items
(1)
An authorised officer may take possession of an
item if the officer reasonably believes—
(a)
the item is unattended, and
(b)
the item—
(i)
is obstructing access to or within a public
place, or
(ii)
poses a risk to persons, animals or the
environment, or
(iii)
is interfering with public amenity,
or
(iv)
has been in the same or substantially the same
place for—
(A)
the period prescribed by the regulations,
or
(B)
if no period is prescribed by the
regulations—7 days or more, or
(v)
is unattended in another circumstance prescribed
by the regulations including, for example—
(A)
the item is in a public place in contravention of
a code of practice prescribed by the regulations that applies to items of that
class, or
(B)
the item does not comply with a standard
prescribed by the regulations.
(2)
If the unattended item referred to in subsection
(1) is a motor vehicle, the authorised officer may, without or before taking
possession of the vehicle, enter the vehicle for the purpose of identifying
the responsible person for the vehicle.
(3)
The regulations may provide for additional
matters in relation to authorised officers taking possession of items,
including—
(a)
the matters to be considered by authorised
officers in forming a reasonable belief items are unattended, including, for
example, having regard to guidelines prescribed by the regulations,
and
(b)
other conditions that must be satisfied before
authorised officers may take possession of items generally or a class of
items, and
(c)
matters about giving notices in relation to
taking possession of items.
26Powers of authorised officers in relation to items taken
into possession
(1)
If an authorised officer takes possession of an
item under this Division, the authorised officer must—
(a)
move the item to a place in the same general area
in which it was left unattended so the item is no longer—
(i)
obstructing access to or within a public place,
or
(ii)
posing a risk to persons, animals or the
environment, or
(iii)
interfering with public amenity,
or
(b)
move the item to a place of storage,
or
(c)
deal with the item as prescribed by the
regulations.
(2)
The regulations may provide for additional
matters relating to the functions of authorised officers in relation to items
the officers have taken into possession, including—
(a)
action that may be taken in relation to items in
the possession of authorised officers, including preventing owners of, or
responsible persons for, the items removing or otherwise interfering with the
items, and
(b)
requirements for action to be taken after items
are in the possession of authorised officers, and
(c)
creating offences for removing or otherwise
interfering with items that have been taken into possession by authorised
officers, including removal or other interference by owners of, or responsible
persons for, items.
27Powers of authorised officers in relation to items not taken
into possession
(1)
This section applies if an authorised officer
reasonably believes an item is unattended but it is not necessary to take
possession of the item.
(2)
The authorised officer may—
(a)
move the item to another place in the same
general area so that the item does not—
(i)
obstruct access to or within a public place,
or
(ii)
pose a risk to persons, animals or the
environment, or
(iii)
interfere with public amenity,
or
(b)
return the item to the owner of the
item.
(3)
The regulations may provide for additional
matters relating to dealing with items that are not taken into the possession
of authorised officers, including requirements about notices to be given to
owners of, and other responsible persons for, the item.
Division 4Miscellaneous
28Authorised officers may give directions to responsible
persons
(1)
This section applies if—
(a)
an authorised officer becomes aware of unattended
property, and
(b)
the officer is able to identify the responsible
person for the property.
(2)
The authorised officer may give the responsible
person a written notice directing the person to—
(a)
remove the unattended property,
or
(b)
prevent the property becoming unattended
again.
(3)
To avoid doubt, subsection (2) applies whether or
not the responsible person is committing an offence under this Act by leaving
the property unattended.
(4)
The responsible person for property must comply
with a written notice given to the person under this section.
Maximum penalty—
(a)
for an individual—50 penalty units,
or
(b)
for a body corporate—125 penalty
units.
(5)
The regulations may provide for additional
matters relating to notices under this section, including—
(a)
the types of action responsible persons may be
required to take under notices, including limiting the types of action that
may be required, and
(b)
the periods within which actions must be taken
under notices.
Part 4Dealing with property taken into
possession
29Authority to take reasonable steps to identify and notify
owners of property
(1)
An authority must, as soon as practicable after
taking possession of property under this Act and before destroying or
otherwise disposing of the property, take reasonable steps to—
(a)
identify the property’s owner,
and
(b)
if the authority identifies the owner—give
the owner notice, as required by the regulations, that the property is in the
authority’s possession.
(2)
The regulations may provide for additional
matters in relation to an authority’s obligation to identify and notify
owners of property in the possession of the authority, including what
constitutes reasonable steps to identify and notify property
owners.
30Owner can obtain return of property taken possession
of
(1)
A person may apply to an authority for the return
of property taken into possession by an authorised officer appointed by the
authority.
(2)
An application may be made at any time before the
property is sold or otherwise disposed of.
(3)
The authority must return the property to the
applicant if—
(a)
the authority is satisfied on reasonable grounds
the applicant is—
(i)
the owner of the property, or
(ii)
authorised to claim the property on the
owner’s behalf, or
(iii)
otherwise entitled to lawful possession of the
property, and
(b)
an amount payable under section 55 in relation to
the property is paid to the authority, and
(c)
the applicant signs a receipt for the return of
the property.
31Items worth less than certain amount may be
destroyed
(1)
If an authorised officer takes possession of an
item, the officer may arrange for the item to be destroyed or otherwise
disposed of as soon as the officer takes possession of the item if the officer
reasonably believes the value of the item is less than—
(a)
the amount prescribed by the regulations,
or
(b)
if an amount is not prescribed by the
regulations—
(i)
for a class 1 item or class 2 item—$200,
or
(ii)
for a class 3
item—$1,500.
(2)
However, an authorised officer must not arrange
for an item to be destroyed or otherwise disposed of until the authorised
officer has taken all reasonable steps to—
(a)
identify the item’s owner,
and
(b)
if the owner is identified notify the owner under
subsection (3) that—
(i)
the item is in the possession of the authority,
and
(ii)
the period stated in the notice has ended without
an application being made for the item to be
released.
(3)
The notice to the owner must—
(a)
be in writing, and
(b)
state the item is in the authority’s
possession, and
(c)
state that the item may be destroyed
if—
(i)
its value is less than the amount referred to in
subsection (1), and
(ii)
the owner does not apply for the return of the
item within the period, ending not less than 3 days after the notice is given,
stated in the notice.
(4)
The destruction or other disposal of an item
under this section is to be carried out as directed by the
authority.
32Property taken possession of may be sold or otherwise
disposed of if not claimed
(1)
An authority must arrange for property taken
possession of by an authorised officer appointed by the authority to be
disposed of if the property is not returned before the deadline for
return.
(2)
Property may be disposed of as
follows—
(a)
by selling the property,
(b)
if the property is offered for sale and does not
sell—by giving the property away free of charge,
(c)
if the property does not sell and the authority
is unable to give the property away within the relevant period after the
deadline for return—by making appropriate arrangements for recycling,
rehoming, destroying or otherwise disposing of the
property.
(3)
Despite subsection (2)(a), an authority is not
required to offer the property for sale if, in the authority’s opinion,
the value of the property is less than the cost of offering the property for
sale.
(4)
An animal may be destroyed under this section
only if, despite all reasonable efforts made by the authority, the animal is
unable to be sold, given away or rehomed.
(5)
This section does not apply to property destroyed
or otherwise disposed of under section 31 or another provision of this
Act.
(6)
The regulations may provide for additional
matters relating to the sale or disposal of property taken into possession
under this Act, including how the proceeds of the sale of property are to be
dealt with.
(7)
In this section—
deadline for return,
of property taken into possession, means—
(a)
for an animal—
(i)
7 days from the day on which notice was given to
the owner of the animal under section 29, or
(ii)
if reasonable steps taken by the authority have
failed to identify the name and address of the owner—7 days from the day
on which the steps were completed, or
(b)
otherwise—
(i)
28 days from the day on which notice was given to
the owner of the item under section 29, or
(ii)
if reasonable steps have failed to the find the
name and address of the owner—28 days from the later of the day on
which
(A)
the steps were completed, or
(B)
the property was taken into
possession.
relevant period
means—
(a)
the period prescribed by the regulations,
or
(b)
if no period is prescribed by the
regulations—14 days.
33Records
(1)
An authority must keep a record of all property
that is taken possession of by authorised officers appointed by the
authority.
(2)
A record of property taken possession of must
include—
(a)
a description of the property,
and
(b)
the date the property was taken possession of by
an authorised officer, and
(c)
the location at which the property was taken
possession of, and
(d)
if the property was taken to a place of care or
storage—details about the place of care or storage,
and
(e)
the date the property was returned or otherwise
disposed of, and
(f)
other information prescribed by the
regulations.
(3)
Records of property taken possession of by
authorised officers must be available for inspection by members of the public
in accordance with the regulations.
Part 5Applications to Civil and Administrative
Tribunal
34Responsible persons for property may apply to Civil and
Administrative Tribunal for administrative review
(1)
The responsible person for property that has been
taken possession of under this Act, or a person issued with a direction under
this Act, may apply to the Civil and Administrative Tribunal for an
administrative review under the Administrative Decisions
Review Act 1997 of the decision to—
(a)
take possession of the property, but only on the
ground that taking possession of the property was unlawful,
or
(b)
issue the direction, but only on the ground that
issuing the direction was unlawful.
(2)
The responsible person for property that has been
taken possession of under this Act may apply to the Civil and Administrative
Tribunal for an administrative review under the Administrative
Decisions Review Act 1997 of an amount required to be paid
for the return of the property, whether to an authority or an occupier of
private land, but only on the ground the amount—
(a)
has been improperly charged or incorrectly
calculated, or
(b)
is excessive.
(3)
An application may not be made under this section
until the responsible person for the property has given the authority or
occupier written notice the responsible person intends to apply to the Civil
and Administrative Tribunal.
(4)
If notice of intention to apply to the Civil and
Administrative Tribunal is given, the authority or occupier must not sell or
otherwise dispose of the property until—
(a)
the time limit for an application has expired and
an application has not been made, or
(b)
if an application is made—
(i)
the application has been finally determined,
or
(ii)
the application has been refused or
withdrawn.
(5)
Subsection (4) does not affect the operation of
section 22.
(6)
An authority or occupier may return property in
the authority’s or occupier’s possession pending the determination
of an application.
(7)
The return of property under subsection (6) does
not affect a right of recovery the authority or occupier may have under this
Act.
35Time limit for applications
(1)
The time limit for making an application for an
administrative review of a decision to take possession of property is 28 days
from the date on which the responsible person for the property was notified
possession had been taken.
(2)
However, if the responsible person for the
property is not notified possession of the property has been taken, there is
no time limit for making an application for an administrative review of the
decision to take possession of the property.
(3)
The time limit for making an application for an
administrative review of an amount required to be paid for the return of
property is 28 days from the date on which application was made for the return
of the property.
(4)
Subject to section 34(4), this section does not
affect the operation of section 32.
36Result of application to Civil and Administrative
Tribunal
(1)
If an application for an administrative review of
a decision to take possession of property is dismissed, the applicant is
liable for additional fees incurred up to the time the authority is notified
of the decision on the application.
(2)
If an application for an administrative review of
a decision to take possession of property results in the decision being set
aside, the authority must—
(a)
return the property free of all fees,
and
(b)
return the property to the applicant at the
expense of the authority.
Part 6Offences
37Offence of leaving item unattended in public
place
(1)
A person must not leave an item unattended in a
public place—
(a)
in a way that causes the item to obstruct access
to or within a public place, or
(b)
in a way that causes the item to pose a risk to
persons, animals or the environment, or
(c)
in a way that causes the item to interfere with
public amenity, or
(d)
so that it is in the same or substantially the
same place for—
(i)
the period prescribed by the regulations,
or
(ii)
if no period is prescribed by the
regulations—7 days or more, or
(e)
in another circumstance prescribed by the
regulations including, for example, in contravention of—
(i)
a code of practice prescribed by the regulations
that applies to items of that class, or
(ii)
a standard prescribed by the
regulations.
Maximum penalty—
(a)
for an individual—
(i)
for a class 3 item for which notice has been
given under section 29—25 penalty units for each day, or part of a day,
the item is not removed after notice is given but not more than a maximum of
75 penalty units, or
(ii)
for a class 2 item—
(A)
for the first item—25 penalty units,
and
(B)
for each additional item in the same public place
or circumstance—5 penalty units, but not more than a maximum of 50
penalty units, or
(iii)
otherwise—25 penalty units,
or
(b)
for a body corporate—125 penalty
units.
(2)
A person must not leave an animal unattended in a
public place.
Maximum penalty—
(a)
for the first animal—25 penalty units,
or
(b)
for each additional animal in the same public
place—5 penalty units, but not more than a maximum of 50 penalty
units.
(3)
Subsection (2) does not apply if the person
establishes the person took all reasonable precautions to prevent the animal
from being left unattended.
(4)
A person is not to be regarded as having left
property unattended in a public place—
(a)
if the property is in the public place in
response to an invitation contained in a notice published by the public
authority that owns or controls the place and in accordance with conditions
stated in the notice, or
(b)
if the property is in the public place with the
consent of the public authority that owns or controls the place,
or
(c)
if the presence of the property in the public
place is required or permitted by an Act or another law,
or
(d)
for an animal that is stock—if the animal
is unattended on a road or travelling stock reserve in circumstances set out
in the Local Land Services Act
2013, section 115, or
(e)
for an animal—in circumstances prescribed
by the regulations for this section.
(5)
A court that convicts a person of an offence
under this section may order the person to pay to an authority the fees
payable in relation to taking possession of, holding and disposing of the
property, whether or not the court imposes a penalty for the
offence.
38Offence of recklessly or negligently leaving item unattended
in certain circumstances
A person commits an offence if the person
recklessly or negligently leaves an item unattended in a public
place—
(a)
in a way that causes the item to obstruct access
to or within a public place, or
(b)
in a way that causes the item to pose a risk to
persons, animals or the environment, or
(c)
in a way that causes the item to interfere with
public amenity, or
(d)
so that it is in the same or substantially the
same place for—
(i)
the period prescribed by the regulations,
or
(ii)
if no period is prescribed by the
regulations—7 days or more, or
(e)
in another circumstance prescribed by the
regulations including, for example, in contravention of—
(i)
a code of practice prescribed by the regulations
that applies to items of that class, or
(ii)
a standard prescribed by the
regulations.
Maximum penalty—
(a)
for an individual—
(i)
for a class 3 item for which notice has been
given under section 29—50 penalty units for each day, or part of a day,
the item is not removed after notice is given but not more than a maximum of
150 penalty units, or
(ii)
for a class 2 item—
(A)
for the first item—50 penalty units,
and
(B)
for each additional item in the same public place
or circumstance—10 penalty units, but not more than a maximum of 100
penalty units, or
(iii)
otherwise—50 penalty units,
or
(b)
for a body corporate—250 penalty
units.
39Responsible person liable for offences involving
property
(1)
The responsible person for property in relation
to which an offence under section 37 is committed is guilty of the offence as
if the person were the actual offender, unless—
(a)
if the offence is dealt with by way of penalty
notice—the responsible person satisfies a person specified in the notice
that the property was, at the relevant time, stolen property or otherwise
illegally taken or used, or
(b)
otherwise—the court is satisfied the
property was, at the relevant time, stolen property or otherwise illegally
taken or used.
(2)
This section does not affect the liability of an
actual offender for the offence but, if a penalty has been imposed on, or
recovered from, a person for the offence, no further penalty may be imposed on
or recovered from another person for the offence.
(3)
The responsible person for property is not, under
this section, guilty of the offence if, for an offence dealt with by way of
penalty notice—
(a)
within 21 days after service on the responsible
person of the penalty notice for the offence, the responsible person gives a
person specified in the notice an approved nomination notice containing the
name and address of the person who was at all relevant times in control of the
property, or
(b)
the responsible person satisfies a person
specified in the notice the responsible person did not know, and could not
with reasonable diligence have ascertained, the name and
address.
(4)
The responsible person for property is not, under
this section, guilty of the offence if—
(a)
within 21 days after service on the responsible
person of a court attendance notice for the offence, the responsible person
gives the informant an approved nomination notice containing the name and
address of the person who was at all relevant times in control of the
property, or
(b)
the responsible person satisfies the court the
responsible person did not know, and could not with reasonable diligence have
ascertained, that name and address.
(5)
Despite any other provision of this Act, an
approved nomination notice may be provided by the responsible person for
property served with a penalty notice within 90 days of the notice being
served on the owner if the approved nomination notice is provided in the
circumstances specified in the Fines Act
1996, section 23AA or 23AB.
(6)
If the responsible person for property gives an
approved nomination notice to a person or an informant for the purposes of
this section, the person or informant may, by written notice served on the
responsible person, require the responsible person to supply a statutory
declaration for use in court proceedings that verifies the nomination
contained in the approved nomination notice.
(7)
If a statutory declaration supplying the name and
address of a person for this section is produced in proceedings against the
person for the offence to which the declaration relates, the declaration is
evidence the person was, at all relevant times for the offence, in control of
the property involved in the offence.
(8)
An approved nomination notice or a statutory
declaration that relates to more than one offence is taken not to be an
approved nomination notice or a statutory declaration supplying a name and
address for this section.
(9)
This section does not limit another provision of
this Act or another Act.
(10)
In this section—
approved nomination
notice has the same meaning as in the Fines Act 1996, section
38.
40Offence of causing or permitting animal to
trespass
(1)
A person must not allow an animal under the
person’s control to be on private land without the permission of the
occupier of the land.
Maximum penalty—
(a)
for the first animal—25 penalty units,
and
(b)
for each additional animal—5 penalty units,
but not more than a maximum of 50 penalty units.
(2)
A court that convicts a person of an offence
under this section may order the person to pay to an authority the amount
payable under section 55 in relation to taking possession of, keeping and
disposing of the animal, whether or not the court imposes a penalty for the
offence.
41Offence of unlawfully recovering
property
(1)
A person must not, without lawful
authority—
(a)
recover or attempt to recover property the person
knows has been taken into the possession of an authority under this Act,
or
(b)
incite or assist another person to recover
property the person knows has been taken into the possession of an authority
under this Act.
Maximum penalty—50 penalty
units.
(2)
A court that finds a person guilty of an offence
under this section may order the person to pay to the authority the fees that
would have been payable to the authority for the return of the item had it not
been recovered, whether or not the court imposes a penalty for the
offence.
42Offence of failing to recover property as
required
(1)
If property is in the possession of an authority,
the authority may, by written notice given to the responsible person for
property, require the person to collect the property by—
(a)
the day stated in the notice,
or
(b)
the later day agreed between the authority and
the responsible person.
(2)
The day stated in the notice must not be less
than 14 days from the day the notice is given to the responsible
person.
(3)
The responsible person must collect the property
within the period required under the notice.
Maximum penalty—
(a)
for an individual—25 penalty units,
or
(b)
for a body corporate—125 penalty
units.
43Offence of obstructing authorised
officer
A person must not, without reasonable excuse,
obstruct an authorised officer exercising or attempting to exercise a function
under this Act.
Maximum penalty—100 penalty
units.
Part 7Enforcement and legal proceedings
Division 1Authorised
officers
44Appointment
An authority may appoint persons to be authorised
officers for this Act.
45Identification document
(1)
An authority must issue each authorised officer
appointed by the authority with an identification
document.
(2)
To avoid doubt, an identification document may be
an electronic document displayed on a device.
(3)
An identification document must—
(a)
state that it is issued under this Act,
and
(b)
give the name of the person to whom it is issued,
and
(c)
be signed by the chief executive, however
described, of the authority, and
(d)
include additional matters prescribed by the
regulations.
(4)
In exercising functions under this Act, an
authorised officer must, if asked by a person affected by the exercise of a
function, produce the officer’s identification document to the
person.
46Functions
An authorised officer has the functions conferred
by—
(a)
this Act, or
(b)
the regulations.
47Areas in which authorised officers can exercise
functions
(1)
Subject to subsection (2), an authorised officer
may exercise functions under this Act only in the officer’s area of
operations.
(2)
An authorised officer may exercise functions
outside the officer’s area of operations if—
(a)
the functions are exercised under an arrangement
between—
(i)
the authority that appointed the authorised
officer, and
(ii)
the authority for the area in which the officer
is exercising functions, or
(b)
the authorised officer reasonably believes it is
necessary to exercise the functions outside the officer’s area of
operations in the interests of public health or safety, or
(c)
the exercise of functions is in accordance with
the regulations.
Note—
See section 49, which does not permit an
authorised officer to issue a penalty notice outside the officer’s area
of operation.
(3)
This Act does not confer power on an authorised
officer to enter a place the officer could not otherwise lawfully
enter.
(4)
To avoid doubt, nothing in this Act prevents an
authorised officer from entering private land at the invitation of the
occupier if the land is within the authorised officer’s area of
operations.
48Police officers
(1)
A police officer has and may exercise the
functions of an authorised officer in the same way as if the police officer
had been appointed by each authority.
(2)
Subsection (1) does not make a police officer
subject to the direction or control of an authority.
Division 2Legal
proceedings
49Penalty notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence in the authorised officer’s area of
operations.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations, not exceeding the maximum amount of penalty that could be imposed
for the offence by a court.
(5)
This section does not limit the operation of
another provision of this Act or another Act relating to proceedings that may
be taken in relation to offences.
50Proceedings are to be heard by Local
Court
Proceedings for an offence against this Act or
the regulations are to be dealt with summarily before the Local
Court.
51Enforcement of court orders
An order of a court under this Act for the
payment of money operates and is enforceable as a judgment made under the
Civil Procedure Act
2005.
52General right to recover amount
(1)
An authority may recover as a debt from the
person responsible for property an amount payable under section 55 for
property taken possession of by an authorised officer appointed by the
authority.
(2)
The Commissioner of Police may recover as a debt
from the person responsible for property taken possession of by a police
officer the amount payable under section 55 in relation to the
property.
(3)
The person responsible for property is taken for
this section to be the owner of the property unless the owner, within 21 days
after being required to do so by the authority—
(a)
gives the authority, in the approved form, the
name and address of the adult who was in control or had supervision of the
property immediately before it was left unattended, or
(b)
satisfies the authority the owner did not know
and could not with reasonable diligence ascertain the name and
address.
(4)
If the owner supplies the name and address of the
person who was in control or had supervision of the property immediately
before it was left unattended, the person named is the person responsible for
the property for the purposes of this section.
(5)
Amounts recoverable under this section in
relation to property may be recovered only if they have not already been paid
or deducted from the proceeds of sale of the property.
(6)
An authority must pay an amount recovered by the
authority under this section for loss or damage attributable to an animal
being on private land without the permission of the occupier of the land to
the person who suffered the loss or damage.
(7)
For subsection (6), an authority is entitled to
treat the owner of the land as the person who suffered the loss or damage
unless satisfied the loss or damage was suffered by another
person.
(8)
A person who gives the authority a statutory
declaration containing the particulars required by the approved form is taken
to have given the particulars in the approved form.
53Recovery of debts arising under this
Act
An amount that this Act provides may be recovered
as a debt is recoverable in a court of competent
jurisdiction.
54Joint responsible persons
If there is more than one responsible person for
property, each of the responsible persons is jointly and
severally—
(a)
responsible for the property under this Act,
and
(b)
liable for an amount that may be recovered as a
debt under this Act in relation to the property.
Part 8Miscellaneous
55Fees payable in relation to exercise of functions under this
Act
(1)
This section applies if a provision of this Act
provides that a person is entitled to be paid an amount for exercising a
function under this Act in relation to property.
(2)
The amount that is to be paid in relation to an
authorised officer exercising functions under this Act is the total of the
fees—
(a)
for a function exercised by an authorised officer
other than a police officer—that may be charged under subsection (4) and
decided, in writing, by the authority that appointed the authorised officer,
and
(b)
for a function exercised by a police
officer—that may be charged under subsection (4) and decided, in
writing, by the Commissioner of Police.
(3)
The amount that is to be paid in relation to an
occupier of private land exercising functions under this Act in relation to an
animal is—
(a)
the total of the fees that may be charged under
subsection (4) in relation to the animal, and
(b)
stated in a notice given by the occupier to the
animal’s owner.
(4)
The fees that may be charged in relation to
property are as follows—
(a)
a fee for walking or transporting an animal
to—
(i)
a place of care or to the address of the
responsible person for the animal, or
(ii)
a market or sale yard for
sale,
(b)
a fee for providing an animal taken into
possession with food, water or veterinary care,
(c)
a fee for loss or damage attributable to an
animal taken into possession while it was unattended, including on private
land without the permission of the occupier of the land,
(d)
a fee for transporting an item to a place of care
or a place of storage,
(e)
a fee for storing an item at a place of
storage,
(f)
a fee to cover the cost of serving a notice
notifying the owner of property that the property has been taken to a place of
care.
(5)
Different fees may be decided for different
classes of property.
(6)
A fee fixed under this section—
(a)
must not exceed the maximum fee, if any,
prescribed by the regulations, and
(b)
that exceeds a maximum prescribed under paragraph
(a) is reduced to the maximum.
(7)
An authority must pay to the Commissioner of
Police an amount paid to or deducted or recovered by the authority that was
payable in relation to property taken possession of by a police
officer.
(8)
An authority may waive payment of an amount, or
part of an amount, in relation to taking possession of an animal in a public
place that had strayed because a gate or fence had ceased to be animal proof
due to fire, flood or other natural disaster.
(9)
The regulations may provide for matters in
relation to the amounts to be paid in relation to property taken possession of
under this Act.
56NSW Police required to provide assistance if
asked
(1)
NSW Police must, if asked by an authorised
officer or authority—
(a)
make enquiries about the name and address of the
owner of a motor vehicle, and
(b)
within 24 hours after the request is made, give
the officer or authority a written statement about the results of the
inquiry.
(2)
If the motor vehicle is or has been registered
within the meaning of the Road Transport Act
2013, the statement may consist of particulars of the name
and address of the last registered operator of the vehicle according to the
records kept by Transport for NSW.
57Personal liability
(1)
A protected person is not personally subject to
liability for anything done—
(a)
in good faith, and
(b)
for the purpose of exercising a function under
this Act.
(2)
The liability instead attaches to the authority
on whose behalf the protected person was exercising the
function.
(3)
In this section—
done includes omitted to be
done.
liability—
(a)
means civil liability, and
(b)
includes action, claim or
demand.
protected person
means—
(a)
an authorised officer, or
(b)
a person acting under the direction of an
authorised officer.
58Effect of sale or disposal of property
If property is sold or otherwise disposed of
under this Act—
(a)
the person to whom the property is sold or
otherwise disposed obtains ownership of the property, and
(b)
the property is discharged from any right,
interest, trust or obligation to which it was subject immediately before the
sale or other disposal, and
(c)
the person who was the owner of the property
immediately before the sale or other disposal ceases to have a claim in
relation to the property or a right of action in relation to the sale or
disposal.
59Permit not required to deliver stock to place of
care
It is not necessary for a stock permit to be in
force under the Local Land Services Act
2013 for the purpose of having stock delivered to a place
of care under this Act.
60Service of documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on a person may be served by the following
methods—
(a)
for an individual—by personal delivery to
the person,
(b)
by post to the address specified by the person
for the service of documents of that kind,
(c)
for an individual who has not specified an
address under paragraph (b)—by post to the residential or business
address of the person last known to the person serving the
document,
(d)
for a corporation—by post to the registered
office or another office of the corporation or by leaving it at the registered
office or other office with a person apparently over the age of 16
years,
(e)
by email to an email address specified by the
person for the service of documents of that kind,
(f)
by another method authorised by the regulations
for the service of documents of that kind.
(2)
This section does not affect the operation of a
provision of another law or of the rules of a court authorising a document to
be served on a person by another method.
(3)
In this section—
serve includes give and
send.
61Regulations
(1)
The Governor may make regulations about a matter
that is—
(a)
required or permitted by this Act to be
prescribed, or
(b)
necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2)
Without limiting subsection (1), the regulations
may provide for—
(a)
matters relating to authorised officers,
and
(b)
the giving of notices under this
Act.
(3)
A regulation may apply, adopt or incorporate a
document as in force—
(a)
at a particular time, or
(b)
from time to time.
(4)
The regulations may exempt—
(a)
a person or class of persons from the application
of a provision of this Act or the regulations, or
(b)
an item or class of items from the application of
a provision of this Act or the regulations.
(5)
The regulations may create offences punishable by
a maximum penalty of 50 penalty units.
62Repeal
The Impounding Act
1993 No 31 is repealed.
Schedule 1Savings,
transitional and other provisions
Part 1General
1Transitional regulation-making
power
(1)
The regulations may contain provisions of a
savings or transitional nature (a savings or
transitional provision) consequent on the commencement
of—
(a)
a provision of this Act, or
(b)
a provision amending this
Act.
(2)
A savings or transitional provision consequent on
the commencement of a provision must not be made more than 2 years after the
commencement.
(3)
A savings or transitional provision made
consequent on the commencement of a provision is repealed 2 years after the
commencement.
(4)
A savings or transitional provision made
consequent on the commencement of a provision may take effect before the
commencement but not before—
(a)
for a provision of this Act—the date of
assent to this Act, or
(b)
for a provision amending this Act—the date
of assent to the amending Act.
(5)
A savings or transitional provision taking effect
before its publication on the NSW legislation website does not, before its
publication—
(a)
affect the rights of a person in a way
prejudicial to the person, or
(b)
impose liabilities on a person for anything done
or omitted to be done.
(6)
In this section—
person does not
include—
(a)
the State, or
(b)
an authority of the
State.
Part 2Provisions consequent on enactment of this
Act
2Definitions
In this Part—
commencement means the
commencement of this Part.
item has the same meaning as in
the repealed Act.
repealed Act means the
Impounding Act 1993 as in force before
the commencement.
3Unattended property
(1)
This section applies to an item
that—
(a)
before the commencement, had been abandoned or
left unattended for the purposes of the repealed Act but not yet impounded
under the repealed Act, and
(b)
on the commencement, is property to which this
Act applies.
(2)
From the commencement, the property may be dealt
with as unattended property under this Act as if it had been left unattended
on the commencement.
4Property impounded before
commencement
(1)
This section applies to an item
that—
(a)
had been impounded under the repealed Act,
but
(b)
immediately before the commencement, had not
been—
(i)
returned to the item’s owner,
or
(ii)
destroyed or otherwise disposed of under the
repealed Act.
(2)
The repealed Act continues to apply to the item
until the item is returned to the item’s owner or destroyed or otherwise
disposed of under the repealed Act.
Schedule 2
sch 2: Rep 1987 No
15, sec 30C.
Schedule 3Dictionary
section 4
animal—see section
5.
area of operations, for an
authorised officer or authority, means the area prescribed by the regulations
for the authorised officer or authority.
authorised officer means a
person appointed by an authority to exercise the functions of an authorised
officer.
Note—
Under section 48, all police officers have the
powers of authorised officers. Police officers are not expected to exercise a
primary role under this Act. Primary responsibility under this Act rests with
the appropriate authority.
authority means a public authority
or local authority prescribed by the regulations as an authority for a
particular place or class of places.
class 1
item—see section 6.
class 2
item—see section 7.
class 3
item—see section 8.
council means a council under the
Local Government Act
1993.
exercise a function includes perform
a duty.
function includes a power, authority
or duty.
items—see section
9
motor
vehicle means—
(a)
a motor vehicle within the meaning of the Road Transport Act 2013 and includes a
caravan, boat trailer or other trailer, whether or not attached to a motor
vehicle, and
(b)
the remains of a vehicle, and
(c)
property, including parts and accessories,
secured to or in a vehicle at the time it is taken possession
of.
occupier, of land,
includes—
(a)
a person who is managing the land on behalf of
its owner or occupier, and
(b)
a person who is responsible for caring for or
controlling the land.
owner, of property, means a person who
alone or jointly is entitled, whether at law or in equity, to possession of
the property.
place includes—
(a)
premises, and
(b)
an area of water, and
(c)
a means of transport.
place of care—see
section 10.
place of
storage—see section 11.
private land means—
(a)
all land, except Crown land (including Crown
managed land) as defined in the Crown Land Management Act
2016 for which there is no Crown land manager under that
Act, and
(b)
Crown land (as defined in that Act) that is the
subject of a holding (as defined in that Act).
Note—
Land held under a lease from the Crown is treated
as private land.
property—see section
13.
public
place—see section 14.
responsible
person—see section 15.
sharing service means an
arrangement, including a written arrangement or an arrangement established
through a smartphone application or other electronic means, under
which—
(a)
items are provided for hire,
and
(b)
the items are self-locking or access to the items
is otherwise able to be limited, including remotely, and
(c)
the items are not required to be returned
to—
(i)
a person, or
(ii)
the premises from which the items are picked up,
or
(iii)
a fixed docking station, or
(iv)
other specific
premises.
stock has the same meaning as in the
Local Land Services Act 2013, Part
8.
unattended—see section
16.
unattended property means
property that is unattended.
vehicle has the same meaning as in
the Road Transport Act
2013.
Historical notes
Table of amending instruments
Public Spaces (Unattended
Property) Act 2021 No 38. Assented to 29.11.2021. Date of
commencement, except sec 19, 1.11.2022, sec 2 and 2022 (635) LW 28.10.2022;
date of commencement of sec 19: not in force.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of amendments
Sch 2
Rep 1987 No 15, sec
30C.