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Public Spaces (Unattended Property) Act 2021

Circular 22/31 – Commencement of the Public Spaces (Unattended Property) Act 2021 and Repeal of the Impounding Act 1993.

Attachment 1 – Circular 22-31

On 1 November 2022, the Public Spaces (Unattended Property) Act 2021 (PSUP Act) commences (other than section 19) and will repeal the Impounding Act 1993.

Attachment 2 – Public_spaces_unattended_act_2021

The introduction of the PSUP Act follows a comprehensive review of the Impounding Act 1993 in 2020. The PSUP Act is supported by the Public Spaces (Unattended Property) Regulation 2022 (Regulation).

Attachment 3 – PSUP_Reg

This report sets out some key changes that will be introduced by the PSUP Act.

The new Public Spaces Unattended Property laws repeal and replace the outdated Impounding Act 1993 to create stronger incentives for people to take responsibility for their property in public – such as stock animals, vehicles, shopping trolleys, bikes and kayaks.

Owners and others responsible must attend to their things within reasonable, timeframes or face regulatory action.

Key benefits of the PSUP laws for councils and other public land authorities include:

  • stronger regulatory and enforcement powers to deal with property left unattended in public
  • higher penalties for offences
  • greater ability to recover regulatory costs from those responsible
  • greater flexibility to temporarily store or care for unattended items and animals
  • reduced costs for compliance and storage
  • easier way to work with other authorities across jurisdictional boundaries
  • better way to deal with stock animals in emergencies*

*commencing at a later date pending the development of guidance.

Guidelines have been prepared to support councils and other public land authorities to undertake their functions under the Act.

Attachment 4 – Public_Spaces__Unattended_Property__Act_-_Guidelines

Firstly, the key concept of “impounding” is no longer referred to. The PSUP Act refers to “taking possession”. Animals captured by the PSUP Act – The meaning of ‘animal’ in the Impounding Act 1993 was confined to select species, and only those particular species could be impounded. The PSUP Act has changed that position, with an “animal” now defined to include “aquatic animals” and “terrestrial animals”. The definition of animal does not include companion animals within the meaning of the Companion Animals Act 1998 (other than dogs in national parks) or other animals prescribed by the Regulation. All animals (as defined) are now subject to the PSUP Act, unless excluded.

The Regulation excludes feral animals and native animals (if they are not ordinarily held in captivity or farmed) from the definition of “animal”. Interestingly, the Regulation gives the example that wild emus and kangaroos are not captured by the PSUP Act, but farmed emus and kangaroos are captured. We expect that it will be challenging in practice for officers exercising power to have certainty in relation to the distinction.

The effect of the new definition of “animal” is that a wider range of animals may now be impounded by authorised officers.

Classes of Items – The PSUP Act introduces classes of items. These are:

Class 1 item:

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.

The PSUP Act specifies the following to be class 1 items: baggage, personal recreation equipment that is not available for hire such as bikes and surfboards, and other personal items.

Class 2 item:

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. The PSUP Act specifies the following to be class 2 items: share-bikes and shopping trolleys.

Class 3 item:

Motor vehicles – The PSUP Act and Regulation have some differing requirements depending on an item’s class. Changes to when Items may be Taken into Possession. Previously, the Impounding Act 1993 allowed an impounding officer to impound an article if that officer believed on reasonable grounds that the article had been ‘abandoned’ or ‘left unattended’. That evidently required an impounding officer to exercise their judgment, and introduced subjectivity. The PSUP Act has changed the circumstances for when an item can be ‘taken into possession’.
An authorised officer may now take possession of an item pursuant to section 25, if the officer reasonably believes the item is unattended, and 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.

If a class 1 or 2 item is in the same place for 7 days or more and unattended, it can be taken into possession.

The Regulation specifies different timing requirements for class 3 items, depending on whether a motor vehicle is unregistered, registered but unable to be legally driven due to its physical condition, or another registered vehicle (that is a registered vehicle that can be driven).

Whilst an item still needs to be ‘unattended’ to be taken into possession, in our view the new requirements of the PSUP Act introduce more objective tests and provide greater clarity as to when authorised officers may exercise their powers. These matters are subject to notice requirements and other conditions.

Minimum Notice Periods before Taking Possession of Items

Clause 9 of the Regulation creates a detailed scheme for the giving of written notice and other conditions that must be satisfied before an authorised officer may take possession of an item. Authorised officers will need to familiarise themselves with these new requirements.

Increase in Penalties –  Attachment 5 – Table_of_offences_referencing_Public_Spaces__Unattended_Property__Act_against_former_Impounding_Act

The PSUP Act significantly increases the penalty amounts that apply for breaches of the Act.

For example, the Impounding Regulation 2013 previously prescribed a penalty notice amount of $330 for an offence of a person causing or permitting an animal to be unattended in a public place.

The Regulation now prescribes a penalty notice amount of $660 for the offence of leaving an animal unattended in a public place (for a single animal animal).

Areas where Functions can be Exercised

The PSUP Act allows authorised officers to exercise functions outside of their “area of operations”, if there is an arrangement as defined in section 47(2) of the PSUP Act with the authority for the relevant area, or the authorised officer reasonably believes it is necessary to exercise the functions outside their area of operations in the interests of public health or safety.

Four factsheets on the PSUP Act have been provided by the Office of Local Government  Attachment 6 – Factsheets PSUP

  • New rules for vehicles
  • New rules for small or medium sized personal items
  • New rules for animals
  • New rules for shopping trolleys and share bikes

To report unattended property please phone CGRC on 1300 459 689