Public Spaces (Unattended Property) Act 2021 (NSW)

Public Spaces (Unattended Property) Act 2021 No 38 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 1 Preliminary 1 Name of Act This Act is the Public Spaces (Unattended Property) Act 2021. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects 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 2 Interpretation and application of Act Division 1 Definitions 4 Definitions 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 2 Key concepts 5 Meaning 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. 6 Meaning 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. 7 Meaning 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. 8 Meaning 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. 9 Meaning 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. 10 Meaning 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. 11 Meaning 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. 12 When authorised officers have "possession" of property (1) For this Act, an authorised officer or an occupier of private land— (a) has possession of property 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. 13 Meaning of "property" In this Act, property means— (a) an animal, or (b) an item. 14 Meaning 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. 15 Meaning 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. 16 Meaning 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 3 Application of Act 17 Act 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 3 Dealing with unattended property Division 1 Unattended animals 18 Authorised 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 animals. 19 Special 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. 20 Authorised 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. 21 Authorised 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. 22 Authorised 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 2 Unattended animals on private land 23 Occupier 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. 24 Action 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 3 Items 25 Authorised 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. 26 Powers 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. 27 Powers 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 4 Miscellaneous 28 Authorised 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 4 Dealing with property taken into possession 29 Authority 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. 30 Owner 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. 31 Items 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. 32 Property 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. 33 Records (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 5 Applications to Civil and Administrative Tribunal 34 Responsible 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. 35 Time 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. 36 Result 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 6 Offences 37 Offence 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,