Posted on July 22, 2022 by Ming Gu and Lindsay Taylor
OLG seeks consultation to finalise new laws on unattended property
On 13 July 2022, the Office of Local Government (‘OLG‘) issued Circular No. 22-19 to commence the consultation process on preferred options for regulations to support the new Public Spaces (Unattended Property) Act 2021 (NSW) (‘PSUP Act‘), which are contained in the published Regulatory Impact Statement (‘RIS‘). The consultation process will end on 3 August 2022.
The NSW Parliament passed the PSUP Act on 29 November 2021, which will come into effect on a later date to be appointed by proclamation following the completion of the consultation process and the finalisation of the supporting regulations under the Act (‘PSUP Reg‘).
Upon coming into effect, the PSUP Act will repeal and replace the Impounding Act 1993 (NSW) to become the source of regulatory powers for local councils to take possession of unattended or abandoned items and animals (other than dogs and cats) found in public spaces (see Divisions 1 and 3 of Part 3). The PSUP Act will further provide powers to an occupier of private land to take possession of unattended animals that are found on their land without permission (see Division 2 of Part 3).
The PSUP Act also provides that unattended items taken into possession must be dealt with by an authorised officer in one of the specified ways (see s26), including to store them at any appropriate place of storage (see 11) or otherwise to deal with them as prescribed by the PSUP Reg. Further, an authorised officer or an occupier of private land who takes possession of an unattended animal must ensure the animal be taken to an appropriate place of care or returned to its responsible person (see ss 10, 21 and 24).
Under the PSUP Act, ‘property’ is defined to mean an animal or an item (see s13). The Act defines an animal to include an animal other than a companion animal within the meaning of the Companion Animals Act 1998 (except for dogs in national parks), and any other animal prescribed by the PSUP Reg (see s5).
The Act creates the following three classes of ‘item’:
- class 1 item: personal items of a small or medium size that can ordinarily be collected by 1 or 2 people without the need for machinery (see s6), e.g. bikes, surfboards,
- class 2 item: sharing service items made available for the use of the public whether or not for a fee or other benefit (see s7), e.g. share bikes, shopping trolleys,
- class 3 item: motor vehicles (see s8), including hire-cars, or trailers and caravans (whether or not attached to a motor vehicle).
In addition, the PSUP Reg may further prescribe other things to be an item and which class it belongs to for the purposes of the PSUP Act.
The OLG has invited submissions to comment on the following:
- any inclusions, exclusions and or qualifications to be prescribed by the PSUP Reg to the above definitions and classifications of an animal or item in the PSUP Act,
- the proposed risk-based timeframes after which an authorised officer may take regulatory actions in relation to unattended property in public spaces,
- the proposed reasonable steps to identify and notify a responsible person for unattended property taken into possession,
- the proposed mandatory notice period to allow responsible persons to attend to or collect unattended property taken into possession,
- the relevant periods in which authorities must attempt to sell or give way unattended property taken into possession,
- the monetary thresholds under which unclaimed property may be disposed of by authorities,
- the penalty infringement notice amounts for offences under the PSUP Act,
- the proposed Mandatory Code of Practice for class 2 items, which set out the minimum requirements and exemptions for operators of sharing services.
A copy of the PSUP Act can be found via this link.
A copy of the Circular can be found via this link.
A copy of the RIS can be found via this link.
If you want to discuss the issues raised in this post, please contact Dr Lindsay Taylor or Ming Gu.