Posted on October 28, 2022 by Katie Mortimer and Stuart Simington 10

Commencement of the Public Spaces (Unattended Property) Act 2021 and Repeal of the Impounding Act 1993

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.

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).

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

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:

 

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

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.

Temporary Exemption from Offences 

Clause 24 of the Regulation sets out specified offence provisions that people are exempt from until 1 May 2023. Materials published by the Office of Local Government state that this is to provide a grace period to provide time for the public and businesses to become familiar with the legislation.

You can access the new legislation here:

• Public Spaces (Unattended Property) Act 2021
• Public Spaces (Unattended Property) Regulation 2022

Infographics and fact sheets that support the new legislation are available on DPE’s website here.

You can read our earlier post on the PSUP Act here.