Impounding Act 1993 (NSW)

IMPOUNDING ACT 1993 No. 31 NEW SOUTH WALES TABLE OF PROVISIONS PART 1—PRELIMINARY 1. Short title 2. Commencement 3. The objects of this Act 4. Definitions PART 2—IMPOUNDING OF ANIMALS AND ARTICLES Division 1—General provisions concerning impounding Who can impound and what can be impounded Areas in which impounding officers can impound Dogs can be impounded in certain areas only When is something "impounded"? PANY Division 2—Impounding officers can impound abandoned, unattended and trespassing animals 9. Animals abandoned or unattended in public places can be impounded 10. Trespassing animals can be impounded 11. Impounded animals to be delivered to pound Division 3—Impounding of animals by occupiers of private land 12. Occupier of private land can impound trespassing animal 13. Action to be taken when identity of owner known 14. Action to be taken when identity of owner not known Division 4—Impounding of articles 15. Abandoned and unattended articles can be impounded 16. Special procedures for impounding of motor vehicles il Impounding Act 1993 No. 31 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 45. 46. 47. 48. 49. 50. 51. 52. 53. Impounded article to be delivered to pound Impounded motor vehicles worth less than $500 may be destroyed Police to be informed of action concerning motor vehicle PART 3—HOW IMPOUNDED ITEMS ARE TO BE DEALT WITH Impounding authority to notify owner Care of impounded animals Injured, diseased or distressed animals can be destroyed Owner can obtain release of impounded item Impounded item to be sold if not claimed Proceeds of sale of impounded item Impounding fees and charges General right to recover impounding fees and charges and damages PART 4—ESTABLISHING POUNDS Impounding authority can establish public or private pounds Arrangements between authorities for use of pounds Records to be kept by impounding authority Public may inspect records PART 5—OFFENCES Offence of abandoning animal or article in a public place Offence of causing or permitting animal to trespass Offence of unlawfully recovering impounded item Offence of obstructing impounding officer Penalty notices Proceedings are to be heard by Local Court PART 6—APPEALS Owner of impounded item can appeal Time limit for appeals Result of appeal PART 7—MISCELLANEOUS Special power to destroy animals Impounding officers must have written authorisation Police required to provide assistance on request Destruction of animals to be carried out humanely Protections from liability Permit not required to deliver stock to pound Enforcement of court orders Recovery of debts arising under this Act Method of giving notice Act binds the Crown Regulations Repeals Amendment of Crown Lands Act 1989 No. 6 lll Impounding Act 1993 No. 31 54. Amendment of Justices Act 1902 No. 27 55. Savings and transitional provisions 56. Notes in the text SCHEDULE I—SAVINGS AND TRANSITIONAL PROVISIONS DICTIONARY OF EXPRESSIONS USED IN THIS ACT IMPOUNDING ACT 1993 No. 31 NEW SOUTH WALES cE) S180 Vy "aN G a Act No. 31, 1993 An Act to provide for the impounding of certain animals, motor vehicles and other things; to provide for their release or disposal; to provide for related matters; and to repeal the Impounding Act 1898 and certain other enactments. [Assented to 8 June 1993] Impounding Act 1993 No. 31 The Legislature of New South Wales enacts: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Impounding Act 1993. Commencement 2. This Act commences on a day or days to be appointed by proclamation. The objects of this Act 3. The objects of this Act are: (a) to empower authorised persons to impound and deal with animals and articles in public places and places owned or under the control of certain public authorities if they have been abandoned or left unattended or, in the case of animals, are trespassing; and (b) to empower occupiers of private land to impound and deal with animals trespassing on their land; and (c) to provide for the release of impounded animals and articles that are claimed by their owners; and (d) to provide for the disposal of impounded animals and articles that are not claimed by their owners and, if they are disposed of by sale, to provide for the disposal of the proceeds of sale. Definitions 4. Expressions used in this Act (or in a particular provision of this Act) which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary. PART 2—IMPOUNDING OF ANIMALS AND ARTICLES Division 1—General provisions concerning impounding Who can impound and what can be impounded 5. (1) Impounding officers can impound certain animals and articles, as provided by this Act. The power to impound conferred by this Act on an impounding officer of the Roads and Traffic Authority is limited to the impounding of motor vehicles, unless the regulations otherwise provide. Impounding Act 1993 No. 31 (2) Occupiers of private land can impound certain animals, as provided by this Act. (3) A police officer has and may exercise the powers of any impounding officer (as if he or she had been appointed as an impounding officer by each impounding authority). This does not make a police officer subject to the direction or control of an impounding authority. NOTE: Impounding officers are persons appointed as impounding officers by impounding authorities. See the definitions of "impounding officer" and "¢mpounding authority" in the dictionary. See the definition of "animal" in the dictionary for the types of animals to which this Act applies. Areas in which impounding officers can impound 6. (1) An impounding officer may impound something under this Act only in the area of operations of the impounding officer. (2) This Act does not confer power on an impounding officer to enter a place that the officer could not otherwise lawfully enter. (3) Nothing in this Act prevents an impounding officer from entering private land at the invitation of the occupier, so long as it is within his or her "area of operations". NOTE: See the definition of "area of operations" in the Dictionary for the areas in which impounding officers can impound. Dogs can be impounded in certain areas only 7. A dog cannot be impounded under this Act unless it is in a national park, historic site, nature reserve, state game reserve, karst conservation reserve or Aboriginal area (as defined in the National Parks and Wildlife Act 1974). NOTE: A dog be able to be impounded in other areas under another law, such as the Act 1966. When is something "impounded"? 8. (1) Something is impounded as soon as an impounding officer or an occupier of private land takes possession of it under a power conferred by this Act. It continues to be impounded until it is released or disposed of in accordance with this Act. Impounding Act 1993 No. 31 (2) An item does not have to be taken to a pound for it to be "impounded" for the purposes of this Act. Division 2—Impounding officers can impound abandoned, unattended and trespassing animals Animals abandoned or unattended in public places can be impounded 9. (1) An impounding officer may impound an animal that the officer finds in a public place in the area of operations of the officer if the officer believes on reasonable grounds that the animal has been abandoned or left unattended. (2) An animal is not to be treated as having been abandoned or left unattended in a public place in either of the following cases: (a) if the animal is owned by the occupier of land that adjoins or is bisected by the place, and a boundary or dividing fence that exists or existed between the land and the place has ceased to be animal proof because of fire, flood or other natural disaster beyond the control of the occupier and the occupier has not had a reasonable opportunity to restore or repair the fence effectively; (b) if there exist any other circumstances prescribed by the regulations as not constituting abandonment. (3) The regulations may prescribe circumstances in which the provisions or a provision of subsection (2) (a) does not apply. Trespassing animals can be impounded 10. An impounding officer may impound an animal that the officer believes on reasonable grounds to be trespassing in a place in the area of operations of the officer (other than a public place). Impounded animals to be delivered to pound 11. (1) An impounding officer must have an impounded animal delivered to a pound as soon as practicable after the animal is impounded. (2) An impounding officer of a council may detain an animal liable to be impounded without impounding it. The detained animal may be placed on any land on agistment or on any land owned by or under the control of the council. It must not be detained for longer than 7 days before being impounded. Impounding Act 1993 No. 31 (3) The pound to which an impounded animal is to be delivered is the nearest convenient pound (if impounded by a police officer) or (if impounded by an impounding officer of an impounding authority) the nearest pound operated or used by that authority. (4) The impounding officer may instead destroy the animal immediately (without having it delivered to a pound) if of the opinion that: (a) the animal is seriously injured, diseased or starved or is otherwise in a distressed state; or (b) the animal is worth less than the cost of delivering it to the pound. (5) The impounding authority may recover as a debt from the owner of an animal the cost of destroying the animal and disposing of its carcass. Division 3—Impounding of animals by occupiers of private land Occupier of private land can impound trespassing animal 12. An occupier of private land may impound any animal that the occupier finds trespassing on the land. Action to be taken when identity of owner known 13. (1) An occupier of private land who impounds an animal and knows or can easily find out the owner's identity must inform the owner of the animal's whereabouts within 24 hours of impounding the animal and must then either: (a) immediately have the animal delivered to the nearest convenient public pound; or (b) keep the animal on the land for a period of not more than 4 days and then (if the animal has not been claimed by its owner) have the animal delivered to the nearest convenient public pound. (2) The occupier must ensure that any animal kept on the land after it is impounded: (a) is provided with adequate food, water and veterinary care; and (b) is kept in a place that is well drained and maintained in a clean condition; and (c) is provided with adequate shade for the climatic conditions; and Impounding Aa 1993 No. 31 (d) is kept secure; and (e) is separated from other animals that are diseased or, if the animal is or appears to be diseased, is kept separate from other animals. (3) If the owner of the animal claims the animal, the occupier must do one of the following: (a) release or send the animal to its owner on payment in full of the appropriate charge; (b) if the animal's owner declines to pay the appropriate charge —have the animal delivered to the nearest convenient public pound; (c) release or send the animal to its owner without payment in full of the appropriate charge. (4) Ifthe occupier releases or sends the animal to its owner without the appropriate charge having been paid in full and the owner does not within 7 days pay the occupier the appropriate charge in full and any costs of transporting the animal to its owner, the occupier may recover the charge and costs fromthe owner as a debt. (5) The "appropriate charge" is an amount not exceeding: (a) the expenses actually incurred in providing the animal with food, water and veterinary care; and (b) the cost of rectifying any loss or damage attributable to the trespassing of the animal. (6) An occupier of private land who fails to comply with a requirement of this section is guilty of an offence. Maximum penalty: 5 penalty units. NOTE: At present, a penalty unit equals $100. Action to be taken when identity of owner not known 14. An occupier of private land who impounds an animal and does not know and cannot easily find out the identity of the owner of the animal must have it delivered to the nearest convenient public pound within 48 hours of the impounding. Maximum penalty: 5 penalty units. Impounding Act 1993 No. 31 Division 4—Impounding of articles Abandoned and unattended articles can be impounded 15. An impounding officer may impound an article found in the officer's area of operations if the officer believes on reasonable grounds that the article has been abandoned or left unattended. Section 16 affects this if the article is a motor vehicle. NOTE: The Local Government Act 1993 gives a council power to order the removal of an object or matter that is causing or likely to cause a obstruction. Special procedures for impounding of motor vehicles 16. (1) An impounding officer must make all reasonable inquiries in an effort to find out the name and address of the owner of a motor vehicle before the officer impounds the vehicle. (2) If the impounding officer's inquiries fail to reveal the name and address of the owner, the officer may proceed to impound the vehicle. (3) If the impounding officer's inquiries do reveal the name and address of the owner, the officer is not to impound the vehicle until notice of the proposed impounding has been given to the owner and the period specified in the notice has elapsed. (4) The notice to the owner must be in writing addressed to the owner and must indicate that the vehicle may be impounded unless it is removed within a specified period (not less than 3 days) and may be destroyed if its value is less than $500 (or such other amount as may be prescribed under section 18). (5) A motor vehicle may be impounded immediately (without following the procedures in this section) if the vehicle is in a public place and the impounding officer is satisfied on reasonable grounds that its immediate removal is justified because it is causing an obstruction to traffic (vehicular or pedestrian) or is or is likely to be a danger to the public. NOTE: Section 43 provides for police assistance in finding, out who the owner of a motor vehicle is. See section 49 for the ways in which notice can be given to the owner of a vehicle. Impounding Act 1993 No. 31 Impounded article to be delivered to pound 17. (1) An impounding officer must have an impounded article delivered to a pound as soon as practicable after it is impounded. The pound to be used is the nearest convenient pound (if it is impounded by a police officer) or (if it is impounded by an impounding officer of an impounding authority) the nearest pound operated or used by the authority. (2) However, an impounded article need not be delivered to a pound if the size, quantity or nature of the article concerned makes its delivery to or storage at a pound impracticable, unreasonably costly or more costly than the value of the article. In such a case, the impounded article may be left where it is impounded. (3) An impounded motor vehicle need not be taken to a pound if section 18 authorises it to be destroyed or otherwise disposed of. Impounded motor vehicles worth less than $500 may be destroyed 18. (1) An impounding officer may cause an impounded motor vehicle to be destroyed or otherwise disposed of as soon as it is impounded if the impounding officer believes on reasonable grounds that the value of the vehicle is less than $500 (or such other amount as may be prescribed). (2) However, a motor vehicle impounded without inquiries having been made as to its owner (on the grounds that it was causing an obstruction to traffic or was or was likely to be a danger to the public) is not to be destroyed or otherwise disposed of under this section until: (a) the impounding officer has made all reasonable inquiries in an effort to find out the name and address of the owner of the vehicle; and (b) (if those inquiries reveal the name and address of the owner) notice of the impounding has been given to the owner and the period specified in the notice has elapsed without an application for its release being made. (3) Notice to the owner must be in writing addressed to the owner and must indicate that the vehicle has been impounded and may be destroyed if its value is less than $500 (or such other amount as may be prescribed under this section), unless its release is applied for within the period specified in the notice (not less than 3 days). (4) The destruction or other disposal of a motor vehicle under this section is to be carried out in accordance with the directions of the impounding authority concerned. Impounding Aa 1993 No. 31 Police to be informed of action concerning motor vehicle 19. An impounding officer who impounds a motor vehicle or causes a motor vehicle to be destroyed or otherwise disposed of must ensure that the officer in charge of the nearest police station is informed of that action as soon as practicable after the motor vehicle is delivered to a pound, destroyed or otherwise disposed of. PART 3—HOW IMPOUNDED ITEMS ARE TO BE DEALT WITH Impounding authority to notify owner 20. (1) An impounding authority must make all reasonable inquiries in- an effort to find out the name and address of the owner of an impounded item and, in the case of an impounded motor vehicle, must also make a search of the Register under the Registration of Interests in Goods Act 1986 for registrable interests in the vehicle. (2) The inquiries and search must be made as soon as practicable after the item is delivered to the authority's pound or (in the case of an article that is impounded without being delivered to a pound) as soon as practicable after the article is impounded. (3) If the impounding authority knows or finds out the name and address of the owner, the authority must cause notice of the impounding to be given to the owner of an impounded item. (4) If the impounding authority's search of the Register reveals a registrable interest in the motor vehicle, the authority must also cause notice of the impounding to be given to the person who claims the interest. (5) A notice under this section must be in writing addressed to the person to be given the notice. It must clearly indicate that the item has been impounded and will be sold or otherwise disposed of if not claimed within a stated period (not less than 7 days in the case of an animal and not less than 28 days in the case of an article). (6) Inquiries as to the owner of a motor vehicle need not be made under this section if those inquiries have already been made under another provision of this Act. (7) This section does not apply to a motor vehicle that has been destroyed or otherwise disposed of under section 18 (Impounded motor vehicles worth less than $500 may be destroyed). NOTE: See section 49 for the ways in which notice can be given. Impounding Act 1993 No. 31 Care of impounded animals 21. (1) An impounding authority has a duty to ensure that every impounded animal held at its pound: (a) is provided with adequate food, water and veterinary care; and (b) is kept in a place that is well drained and maintained in a clean condition; and (c) is provided with adequate shade for the climatic conditions; and (d) is kept secure; and (e) is separated from other animals that are diseased or, if the animal is or appears to be diseased,.is kept separate from other animals. (2) This duty is subject to any power or duty to destroy an animal under this or any other Act. Injured, diseased or distressed animals can be destroyed 22. (4) An impounding authority may destroy an impounded animal held at its pound if of the opinion that the animal is seriously injured, diseased or starved or is otherwise in a distressed state. (2) If the impounding authority knows the identity of the owner of the animal, it must not destroy the animal unless it has informed the owner that it is proposed to destroy the animal and has given the owner a reasonable opportunity to obtain its release. (3) The impounding authority may recover as a debt from the owner of an animal the cost of destroying the animal and disposing of its carcass. Owner can obtain release of impounded item 23. (1) Application may be made to an impounding authority for the release of an impounded item held by it or impounded by one of its impounding officers. The application may be made at any time before the item is sold or disposed of. (2) The impounding authority must release the item to the applicant if: (a) the authority is satisfied on reasonable grounds that the applicant is the owner of the item, is authorised to claim the item on the owner's behalf or is otherwise entitled to lawful possession of the item; and (b) all fees and charges payable in respect of the impounding, holding and disposing of the item are paid to the impounding authority; and (c) the authority is satisfied that all penalties imposed in connection with the event that gave rise to the impounding have been paid; and (d) the applicant signs a receipt for the release of the item. Impounding Act 1993 No. 31 Impounded item to be sold if not claimed 24. (1) An impounding authority must cause an impounded item to be offered for sale if the item is not released before the deadline for release (subsection (5)). The sale is to be by public auction or public tender. (2) The item may be disposed of otherwise than by sale if the impounding authority believes on reasonable grounds that the item has no monetary value or that the proceeds of sale would be unlikely to exceed the costs of sale. (3) If an impounded item offered for sale is not sold, the impounding authority may dispose of the item otherwise than by sale. (4) An impounding authority that has offered an impounded animal for sale may destroy the animal if it is not sold within 7 days after being offered for sale. (5) The "deadline for release" for an impounded item is: (a) in the case of an impounded animal—7 days from the day on which notice was given to the ownerof the animal under section 20 or, if reasonable inquiries by the impounding authority concerned have failed to reveal the name and address of the owner, 7 days from the day on which those inquiries were completed; or (b) in the case of an impounded article—28 days from the day on which notice was given to the owner of the item under section 20 or, if reasonable inquiries have failed to reveal the name and address of the owner, 28 days from the day on which those inquiries were completed or the date on which the article was impounded (whichever is the later). (6) This section does not apply to a motor vehicle destroyed or otherwise disposed of under another provision of this Act. NOTE: Section 45 provides protection for people who buy impounded items. Proceeds of sale of impounded item 25. (1) An impounding authority holds the net proceeds of sale of an impounded item for the person who was the owner of the item immediately before its sale. The "net proceeds of sale" are the proceeds (if any) remaining after deduction of the expenses of sale and the fees and charges payable in respect of the impounding, holding and disposing of the item. Impounding Act 1993 No. 31 (2) An application for payment of the net proceeds of sale may be made to the impounding authority at any time within 12 months after the item was sold. (3) The authority must pay the net proceeds of sale to the applicant if satisfied that the applicant is entitled to the proceeds. home The applicant need not be the owner. (4) If no application is made within that 12 month period, the impounding authority may transfer the net proceeds of sale to such of its funds as it considers appropriate. The money then becomes the property of the authority. Impounding fees and charges 26. (1) An impounding authority may fix the fees and charges that are to be paid in respect of the impounding, holding and disposing of an item by the authority and its impounding officers. The Commissioner of Police may by order in writing fix the fees and charges that are to be paid in respect ofthe impounding of an item by a police officer. (2) The fees and charges that may be fixed are as follows: « a fee for walking or transporting an impounded animal to the pound or to the address of its owner and to a market or saleyard for sale; « acharge for providing an impounded animal with food, water and veterinary care; - a charge for loss or damage attributable to the abandoning or trespassing of an impounded animal; « a fee for conveying an impounded article to a pound; - a fee for storing an impounded article at the pound; ¢ a fee to cover the cost of serving a notice notifying the owner of an impounded item that the item may be or has been impounded. (3) Fees and charges may be fixed so as to differ according to the kinds of animals or articles impounded. (4) A fee or charge must not exceed the corresponding maximum fee or charge (if any) prescribed by the regulations, and any amount that is fixed so as to exceed the maximum is reduced to the maximum. (5) Fees and charges fixed under this section are the fees and charges payable in respect of the impounding, holding and disposing of an item under this Act. Impounding Act 1993 No. 31 (6) An impounding authority must remit to the Commissioner of Police any fee or charge paid to or deducted or recovered by the authority that was payable in respect of the impounding of an item by a police officer. General right to recover impounding fees and charges and damages 27. (1) An impounding authority may recover the following amounts as a debt from the person responsible for an impounded item: ° the fees and charges payable in respect of the impounding, holding and disposing of the item; ¢ in the case of an animal impounded because it was trespassing —the cost of rectifying any loss or damage attributable to the trespassing of the animal. (2) The Commissioner of Police may recover as a debt from the owner of an impounded item the fees and charges payable in respect of the impounding of an item by a police officer. (3) The person responsible for an impounded item for the purposes of this section is the owner of the item unless the owner, within 21 days after being required to do so by the impounding authority by notice in writing: (a) supplies by statutory declaration to the impounding authority the name and address of the person (being a person who is at least 18 years of age) who was in charge of the item immediately before it was abandoned, left unattended or permitted to trespass; or (b) satisfies the impounding authority that he or she did not know and could not with reasonable diligence have ascertained that name and address. (4) If the owner supplies such a statutory declaration, the person named in it is the person responsible for the impounded item for the purposes of this section. (5) Amounts recoverable under this section can be recovered only if they have not already been paid, or deducted from proceeds of sale. PART 4—ESTABLISHING POUNDS Impounding authority can establish public or private pounds 28. (1) An impounding authority may establish one or more pounds on land in its area of operations or under its control, and may close any such pound. A pound may be established as a public pound or as a private pound. Impounding Act 1993 No. 31 (2) A public pound is for the use of the impounding authority that established it, members of the public and other impounding authorities (in accordance with arrangements under section 29). A private pound is for the use only of the impounding authority that established it. (3) An impounding authority is responsible for the management and operation of a pound that it establishes. Arrangements between authorities for use of pounds 29. An impounding authority may make use of a public pound established by another impounding authority if there are arrangements in place between the two authorities that authorise that use. Records to be kept by impounding authority 30. (1) An impounding authority must keep a record of each impounded item received at a pound that it operates. (2) The record for each item must describe the item, show when it was received and contain details of its release or disposal. (3) The regulations may prescribe the form and contents of the record and require other records to be kept by an impounding authority. Public may inspect records 31. A member of the public is entitled to inspect free of charge any record kept by an impounding authority under this Act, whenever the authority is open for public business. PART 5—OFFENCES Offence of abandoning animal or article in a public place 32. (I) A person who abandons an animal or article in a public place is guilty of an offence. Maximum penalty: 5 penalty units. (2) A person who leaves an animal unattended in a public place is guilty of an offence. Maximum penalty: 5 penalty units. (3) A person is not to be regarded as having abandoned an animal or an article in a place, or as having left an animal unattended in a place, in any of the following circumstances: Impounding Act 1993 No. 31 (a) if the person has left the animal or article in that place in response to an invitation contained in a notice published by the relevant public authority and in accordance with any conditions specified in the notice; (b) if the person has left the animal or article in that place with the consent of the relevant public authority; (c) if the person has left the animal or article in that place in accordance with an authority conferred by or under an Act. (4) A court that convicts a person of m offence under this section may order the person to pay to an impounding authority the fees and charges payable in respect of the impounding, holding,and disposing of the item concemed (whether or not the court imposes a penalty for the offence). Offence of causing or permitting animal to trespass 33. (1) A person who causes or permits an animal under his or her control to trespass in a place (other than a public place) is guilty of an offence. Maximum penalty: 5 penalty units. (2) A court that convicts a person of an offence under this section may order the person to pay to an impounding authority the fees and charges payable in respect of the impounding, holding and disposing of the animal concerned (whether or not the court imposes a penalty for the offence). Offence of unlawfully recovering impounded item 34. (1) A person who, without lawful authority, recovers or attempts to recover or incites or assists another person to recover an item that he or she knows is impounded is guilty of an offence. Maximum penalty: 50 penalty units. (2) A court that finds a person guilty of such an offence may order the person to pay to the impounding authority concerned the fees and charges that would have been payable to the authority for the release of the item had it not been recovered (whether or not the court imposes a penalty for the offence). Offence of obstructing impounding officer 35. A person who, without reasonable excuse, obstructs an impounding officer exercising or attempting to exercise a power under this Act is guilty of an offence. Maximum penalty: 20 penalty units. Impounding Act 1993 No. 31 Penalty notices 36. (1) An impounding officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act stated by the regulations to be an offence to which this section applies. (2) A penalty notice is a notice to the effect that, ifthe person served does not wish to have the matter determined by a court the person may pay within a time, and to a person, specified in the notice the amount of penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice may be served personally or by post. (4) If the amount of penalty prescribed for the purposes of this section for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (5) Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil proceeding: arising out of the same occurrence. (6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence; and (b) prescribe the amount of penalty paya