The Act empowers prescribed authorities, their authorised officers and certain occupiers to take possession of unattended animals and items in public places (and limitedly on private land), store, move, sell or dispose of them, and recover fees from the defined “responsible persons.” It shifts practical and financial burden onto owners and scheme operators, creates offences and appeal routes, and leaves many operational details to regulation.
The Public Spaces (Unattended Property) Act 2021 establishes a statutory framework for identifying, taking possession of, dealing with and recovering costs for property left unattended in public places and for certain animals unattended on private land. The Act creates powers for prescribed public authorities to appoint authorised officers (s 44) and for those authorised officers, and police officers exercising equivalent functions (s 48(1)), to take possession of animals (Pt 3 Div 1, s 18) and items (Pt 3 Div 3, s 25) where specified conditions are met. Possession under the Act begins when an authorised officer or an occupier of private land takes the property and continues until the property is returned or disposed of under the Act (s 12).
Mechanically the Act does the following things. It defines three classes of items for treatment: class 1 (small/medium items collectable by 1-2 persons without machinery) (s 6), class 2 (items made available for public use, such as share‑bikes and shopping trolleys) (s 7), and class 3 (motor vehicles) (s 8). It gives authorised officers the discretion to take possession where they reasonably believe property is unattended and certain harms or circumstances exist (s 18, s 25). Once in possession the authority must take steps to identify and notify owners (s 29), may return property on payment of fees (s 30), may destroy low‑value items immediately subject to identification and notice rules (s 31), and must dispose of unclaimed property after statutory notice periods by sale, giving away or other disposal (s 32). The Act sets a system for recovering fees and costs from the responsible person (s 52), including joint and several liability where there are multiple responsible persons (s 54). It creates a suite of offences for leaving items or animals unattended (Pt 6, s 37-42) with differing maximum penalties depending on class and culpability (s 37-38). Authorities must keep records of property dealt with (s 33) and have processes for administrative review in the Civil and Administrative Tribunal on limited grounds (Pt 5, s 34-36). The Governor may make regulations to prescribe detail in many areas (s 61). The Act repeals the Impounding Act 1993 and contains transitional savings (s 62; Sch 1).
Current sections
Direct links to the current provisions in Public Spaces (Unattended Property) Act 2021.
This Act commences on a day or days to be appointed by proclamation.
3
Objects of Act
3 Objects of Act
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
Part 2 Interpretation and application of Act
Part 2 Interpretation and application of Act
Division 1
Definitions
Division 1 Definitions
Division 1 Definitions
4
Definitions
4 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
Division 2 Key concepts
Division 2 Key concepts
5
Meaning of “animal”
5 Meaning of “animal”
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”
6 Meaning of “class 1 item”
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”
7 Meaning of “class 2 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”
8 Meaning of “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”
9 Meaning of “items”
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”
10 Meaning of “place of care”
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”
11 Meaning of “place of storage”
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
12 When authorised officers have “possession” of property
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.
s 12: Am 2022 No 59, Sch 2.38[1] [2].
13
Meaning of “property”
13 Meaning of “property”
13 Meaning of “property”
In this Act, property means—
(a) an animal, or
(b) an item.
14
Meaning of “public place”
14 Meaning of “public place”
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
15 Meaning of “responsible persons” for property
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—
(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”
16 Meaning of “unattended”
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
Division 3 Application of Act
Division 3 Application of Act
17
Act to bind Crown
17 Act to bind Crown
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
Part 3 Dealing with unattended property
Part 3 Dealing with unattended property
18
Authorised officers may take possession of unattended animals
18 Authorised officers may take possession of 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.
s 18: Am 2022 No 59, Sch 2.38[3].
19
Special arrangements for stock animals in emergencies
19 Special arrangements for stock animals in emergencies
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
20 Authorised officers may take possession of dogs only in certain areas
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
21 Authorised officers to ensure animals taken to place of care
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
22 Authorised officers may destroy animals taken into possession in certain circumstances
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.
Occupier of private land may take possession of unattended animal on land
23 Occupier of private land may take possession of unattended animal on 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
24 Action to be taken after occupier of private land takes possession of animal
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.
25
Authorised officers may take possession of items
25 Authorised officers may take possession of 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
26 Powers of authorised officers in relation to items taken into possession
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
27 Powers of authorised officers in relation to items not taken into possession
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
Division 4 Miscellaneous
Division 4 Miscellaneous
28
Authorised officers may give directions to responsible persons
28 Authorised officers may give directions to responsible persons
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
Part 4 Dealing with property taken into possession
Part 4 Dealing with property taken into possession
29
Authority to take reasonable steps to identify and notify owners of property
29 Authority to take reasonable steps to identify and notify owners of property
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
30 Owner can obtain return of property taken possession of
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
31 Items worth less than certain amount may be destroyed
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
32 Property taken possession of may be sold or otherwise disposed of if not claimed
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
33 Records
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
Part 5 Applications to Civil and Administrative Tribunal
Part 5 Applications to Civil and Administrative Tribunal
34
Responsible persons for property may apply to Civil and Administrative Tribunal for administrative review
34 Responsible persons for property may apply to Civil and Administrative Tribunal for administrative review
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
35 Time limit for applications
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
36 Result of application to Civil and Administrative Tribunal
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
Part 6 Offences
Part 6 Offences
37
Offence of leaving item unattended in public place
37 Offence of leaving item unattended in public place
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, animals or the environment, or
(c) in a way that causes the item to interfere with public amenity, or
(d) so that it is in the same or substantially the same place for—
(i) the period prescribed by the regulations, or
(ii) if no period is prescribed by the regulations—7 days or more, or
(e) in another circumstance prescribed by the regulations including, for example, in contravention of—
(i) a code of practice prescribed by the regulations that applies to items of that class, or
(ii) a standard prescribed by the regulations.
Maximum penalty—
(a) for an individual—
(i) for a class 3 item for which notice has been given under section 29—25 penalty units for each day, or part of a day, the item is not removed after notice is given but not more than a maximum of 75 penalty units, or
(ii) for a class 2 item—
(A) for the first item—25 penalty units, and
(B) for each additional item in the same public place or circumstance—5 penalty units, but not more than a maximum of 50 penalty units, or
(iii) otherwise—25 penalty units, or
(b) for a body corporate—125 penalty units.
(2) A person must not leave an animal unattended in a public place.
Maximum penalty—
(a) for the first animal—25 penalty units, or
(b) for each additional animal in the same public place—5 penalty units, but not more than a maximum of 50 penalty units.
(3) Subsection (2) does not apply if the person establishes the person took all reasonable precautions to prevent the animal from being left unattended.
(4) A person is not to be regarded as having left property unattended in a public place—
(a) if the property is in the public place in response to an invitation contained in a notice published by the public authority that owns or controls the place and in accordance with conditions stated in the notice, or
(b) if the property is in the public place with the consent of the public authority that owns or controls the place, or
(c) if the presence of the property in the public place is 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) for an animal—in circumstances prescribed by the regulations for this section.
(5) A court that convicts a person of an offence under this section may order the person to pay to an authority the fees payable in relation to taking possession of, holding and disposing of the property, whether or not the court imposes a penalty for the offence.
38
Offence of recklessly or negligently leaving item unattended in certain circumstances
38 Offence of recklessly or negligently leaving item unattended in certain circumstances
38 Offence of recklessly or negligently leaving item unattended in certain circumstances
A person commits an offence if the person recklessly or negligently leaves 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, animals or the environment, or
(c) in a way that causes the item to interfere with public amenity, or
(d) so that it is in the same or substantially the same place for—
(i) the period prescribed by the regulations, or
(ii) if no period is prescribed by the regulations—7 days or more, or
(e) in another circumstance prescribed by the regulations including, for example, in contravention of—
(i) a code of practice prescribed by the regulations that applies to items of that class, or
(ii) a standard prescribed by the regulations.
Maximum penalty—
(a) for an individual—
(i) for a class 3 item for which notice has been given under section 29—50 penalty units for each day, or part of a day, the item is not removed after notice is given but not more than a maximum of 150 penalty units, or
(ii) for a class 2 item—
(A) for the first item—50 penalty units, and
(B) for each additional item in the same public place or circumstance—10 penalty units, but not more than a maximum of 100 penalty units, or
(iii) otherwise—50 penalty units, or
(b) for a body corporate—250 penalty units.
39
Responsible person liable for offences involving property
39 Responsible person liable for offences involving property
39 Responsible person liable for offences involving property
(1) The responsible person for property in relation to which an offence under section 37 is committed is guilty of the offence as if the person were the actual offender, unless—
(a) if the offence is dealt with by way of penalty notice—the responsible person satisfies a person specified in the notice that the property was, at the relevant time, stolen property or otherwise illegally taken or used, or
(b) otherwise—the court is satisfied the property was, at the relevant time, stolen property or otherwise illegally taken or used.
(2) This section does not affect the liability of an actual offender for the offence but, if a penalty has been imposed on, or recovered from, a person for the offence, no further penalty may be imposed on or recovered from another person for the offence.
(3) The responsible person for property is not, under this section, guilty of the offence if, for an offence dealt with by way of penalty notice—
(a) within 21 days after service on the responsible person of the penalty notice for the offence, the responsible person gives a person specified in the notice an approved nomination notice containing the name and address of the person who was at all relevant times in control of the property, or
(b) the responsible person satisfies a person specified in the notice the responsible person did not know, and could not with reasonable diligence have ascertained, the name and address.
(4) The responsible person for property is not, under this section, guilty of the offence if—
(a) within 21 days after service on the responsible person of a court attendance notice for the offence, the responsible person gives the informant an approved nomination notice containing the name and address of the person who was at all relevant times in control of the property, or
(b) the responsible person satisfies the court the responsible person did not know, and could not with reasonable diligence have ascertained, that name and address.
(5) Despite any other provision of this Act, an approved nomination notice may be provided by the responsible person for property served with a penalty notice within 90 days of the notice being served on the owner if the approved nomination notice is provided in the circumstances specified in the Fines Act 1996, section 23AA or 23AB.
(6) If the responsible person for property gives an approved nomination notice to a person or an informant for the purposes of this section, the person or informant may, by written notice served on the responsible person, require the responsible person to supply a statutory declaration for use in court proceedings that verifies the nomination contained in the approved nomination notice.
(7) If a statutory declaration supplying the name and address of a person for this section is produced in proceedings against the person for the offence to which the declaration relates, the declaration is evidence the person was, at all relevant times for the offence, in control of the property involved in the offence.
(8) An approved nomination notice or a statutory declaration that relates to more than one offence is taken not to be an approved nomination notice or a statutory declaration supplying a name and address for this section.
(9) This section does not limit another provision of this Act or another Act.
(10) In this section—
approved nomination notice has the same meaning as in the Fines Act 1996, section 38.
40
Offence of causing or permitting animal to trespass
40 Offence of causing or permitting animal to trespass
40 Offence of causing or permitting animal to trespass
(1) A person must not allow an animal under the person’s control to be on private land without the permission of the occupier of the land.
Maximum penalty—
(a) for the first animal—25 penalty units, and
(b) for each additional animal—5 penalty units, but not more than a maximum of 50 penalty units.
(2) A court that convicts a person of an offence under this section may order the person to pay to an authority the amount payable under section 55 in relation to taking possession of, keeping and disposing of the animal, whether or not the court imposes a penalty for the offence.
41
Offence of unlawfully recovering property
41 Offence of unlawfully recovering property
41 Offence of unlawfully recovering property
(1) A person must not, without lawful authority—
(a) recover or attempt to recover property the person knows has been taken into the possession of an authority under this Act, or
(b) incite or assist another person to recover property the person knows has been taken into the possession of an authority under this Act.
Maximum penalty—50 penalty units.
(2) A court that finds a person guilty of an offence under this section may order the person to pay to the authority the fees that would have been payable to the authority for the return of the item had it not been recovered, whether or not the court imposes a penalty for the offence.
42
Offence of failing to recover property as required
42 Offence of failing to recover property as required
42 Offence of failing to recover property as required
(1) If property is in the possession of an authority, the authority may, by written notice given to the responsible person for property, require the person to collect the property by—
(a) the day stated in the notice, or
(b) the later day agreed between the authority and the responsible person.
(2) The day stated in the notice must not be less than 14 days from the day the notice is given to the responsible person.
(3) The responsible person must collect the property within the period required under the notice.
Maximum penalty—
(a) for an individual—25 penalty units, or
(b) for a body corporate—125 penalty units.
43
Offence of obstructing authorised officer
43 Offence of obstructing authorised officer
43 Offence of obstructing authorised officer
A person must not, without reasonable excuse, obstruct an authorised officer exercising or attempting to exercise a function under this Act.
Maximum penalty—100 penalty units.
Part 7
Enforcement and legal proceedings
Part 7 Enforcement and legal proceedings
Part 7 Enforcement and legal proceedings
44
Appointment
44 Appointment
44 Appointment
An authority may appoint persons to be authorised officers for this Act.
45
Identification document
45 Identification document
45 Identification document
(1) An authority must issue each authorised officer appointed by the authority with an identification document.
(2) To avoid doubt, an identification document may be an electronic document displayed on a device.
(3) An identification document must—
(a) state that it is issued under this Act, and
(b) give the name of the person to whom it is issued, and
(c) be signed by the chief executive, however described, of the authority, and
(d) include additional matters prescribed by the regulations.
(4) In exercising functions under this Act, an authorised officer must, if asked by a person affected by the exercise of a function, produce the officer’s identification document to the person.
46
Functions
46 Functions
46 Functions
An authorised officer has the functions conferred by—
(a) this Act, or
(b) the regulations.
47
Areas in which authorised officers can exercise functions
47 Areas in which authorised officers can exercise functions
47 Areas in which authorised officers can exercise functions
(1) Subject to subsection (2), an authorised officer may exercise functions under this Act only in the officer’s area of operations.
(2) An authorised officer may exercise functions outside the officer’s area of operations if—
(a) the functions are exercised under an arrangement between—
(i) the authority that appointed the authorised officer, and
(ii) the authority for the area in which the officer is exercising functions, or
(b) the authorised officer reasonably believes it is necessary to exercise the functions outside the officer’s area of operations in the interests of public health or safety, or
(c) the exercise of functions is in accordance with the regulations.
Note—
See section 49, which does not permit an authorised officer to issue a penalty notice outside the officer’s area of operation.
(3) This Act does not confer power on an authorised officer to enter a place the officer could not otherwise lawfully enter.
(4) To avoid doubt, nothing in this Act prevents an authorised officer from entering private land at the invitation of the occupier if the land is within the authorised officer’s area of operations.
48
Police officers
48 Police officers
48 Police officers
(1) A police officer has and may exercise the functions of an authorised officer in the same way as if the police officer had been appointed by each authority.
(2) Subsection (1) does not make a police officer subject to the direction or control of an authority.
49
Penalty notices
49 Penalty notices
49 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence in the authorised officer’s area of operations.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations, not exceeding the maximum amount of penalty that could be imposed for the offence by a court.
(5) This section does not limit the operation of another provision of this Act or another Act relating to proceedings that may be taken in relation to offences.
50
Proceedings are to be heard by Local Court
50 Proceedings are to be heard by Local Court
50 Proceedings are to be heard by Local Court
Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court.
51
Enforcement of court orders
51 Enforcement of court orders
51 Enforcement of court orders
An order of a court under this Act for the payment of money operates and is enforceable as a judgment made under the Civil Procedure Act 2005.
52
General right to recover amount
52 General right to recover amount
52 General right to recover amount
(1) An authority may recover as a debt from the person responsible for property an amount payable under section 55 for property taken possession of by an authorised officer appointed by the authority.
(2) The Commissioner of Police may recover as a debt from the person responsible for property taken possession of by a police officer the amount payable under section 55 in relation to the property.
(3) The person responsible for property is taken for this section to be the owner of the property unless the owner, within 21 days after being required to do so by the authority—
(a) gives the authority, in the approved form, the name and address of the adult who was in control or had supervision of the property immediately before it was left unattended, or
(b) satisfies the authority the owner did not know and could not with reasonable diligence ascertain the name and address.
(4) If the owner supplies the name and address of the person who was in control or had supervision of the property immediately before it was left unattended, the person named is the person responsible for the property for the purposes of this section.
(5) Amounts recoverable under this section in relation to property may be recovered only if they have not already been paid or deducted from the proceeds of sale of the property.
(6) An authority must pay an amount recovered by the authority under this section for loss or damage attributable to an animal being on private land without the permission of the occupier of the land to the person who suffered the loss or damage.
(7) For subsection (6), an authority is entitled to treat the owner of the land as the person who suffered the loss or damage unless satisfied the loss or damage was suffered by another person.
(8) A person who gives the authority a statutory declaration containing the particulars required by the approved form is taken to have given the particulars in the approved form.
53
Recovery of debts arising under this Act
53 Recovery of debts arising under this Act
53 Recovery of debts arising under this Act
An amount that this Act provides may be recovered as a debt is recoverable in a court of competent jurisdiction.
54
Joint responsible persons
54 Joint responsible persons
54 Joint responsible persons
If there is more than one responsible person for property, each of the responsible persons is jointly and severally—
(a) responsible for the property under this Act, and
(b) liable for an amount that may be recovered as a debt under this Act in relation to the property.
Part 8
Miscellaneous
Part 8 Miscellaneous
Part 8 Miscellaneous
55
Fees payable in relation to exercise of functions under this Act
55 Fees payable in relation to exercise of functions under this Act
55 Fees payable in relation to exercise of functions under this Act
(1) This section applies if a provision of this Act provides that a person is entitled to be paid an amount for exercising a function under this Act in relation to property.
(2) The amount that is to be paid in relation to an authorised officer exercising functions under this Act is the total of the fees—
(a) for a function exercised by an authorised officer other than a police officer—that may be charged under subsection (4) and decided, in writing, by the authority that appointed the authorised officer, and
(b) for a function exercised by a police officer—that may be charged under subsection (4) and decided, in writing, by the Commissioner of Police.
(3) The amount that is to be paid in relation to an occupier of private land exercising functions under this Act in relation to an animal is—
(a) the total of the fees that may be charged under subsection (4) in relation to the animal, and
(b) stated in a notice given by the occupier to the animal’s owner.
(4) The fees that may be charged in relation to property are as follows—
(a) a fee for walking or transporting an animal to—
(i) a place of care or to the address of the responsible person for the animal, or
(ii) a market or sale yard for sale,
(b) a fee for providing an animal taken into possession with food, water or veterinary care,
(c) a fee for loss or damage attributable to an animal taken into possession while it was unattended, including on private land without the permission of the occupier of the land,
(d) a fee for transporting an item to a place of care or a place of storage,
(e) a fee for storing an item at a place of storage,
(f) a fee to cover the cost of serving a notice notifying the owner of property that the property has been taken to a place of care.
(5) Different fees may be decided for different classes of property.
(6) A fee fixed under this section—
(a) must not exceed the maximum fee, if any, prescribed by the regulations, and
(b) that exceeds a maximum prescribed under paragraph (a) is reduced to the maximum.
(7) An authority must pay to the Commissioner of Police an amount paid to or deducted or recovered by the authority that was payable in relation to property taken possession of by a police officer.
(8) An authority may waive payment of an amount, or part of an amount, in relation to taking possession of an animal in a public place that had strayed because a gate or fence had ceased to be animal proof due to fire, flood or other natural disaster.
(9) The regulations may provide for matters in relation to the amounts to be paid in relation to property taken possession of under this Act.
56
NSW Police required to provide assistance if asked
56 NSW Police required to provide assistance if asked
56 NSW Police required to provide assistance if asked
(1) NSW Police must, if asked by an authorised officer or authority—
(a) make enquiries about the name and address of the owner of a motor vehicle, and
(b) within 24 hours after the request is made, give the officer or authority a written statement about the results of the inquiry.
(2) If the motor vehicle is or has been registered within the meaning of the Road Transport Act 2013, the statement may consist of particulars of the name and address of the last registered operator of the vehicle according to the records kept by Transport for NSW.
57
Personal liability
57 Personal liability
57 Personal liability
(1) A protected person is not personally subject to liability for anything done—
(a) in good faith, and
(b) for the purpose of exercising a function under this Act.
(2) The liability instead attaches to the authority on whose behalf the protected person was exercising the function.
(3) In this section—
done includes omitted to be done.
liability—
(a) means civil liability, and
(b) includes action, claim or demand.
protected person means—
(a) an authorised officer, or
(b) a person acting under the direction of an authorised officer.
58
Effect of sale or disposal of property
58 Effect of sale or disposal of property
58 Effect of sale or disposal of property
If property is sold or otherwise disposed of under this Act—
(a) the person to whom the property is sold or otherwise disposed obtains ownership of the property, and
(b) the property is discharged from any right, interest, trust or obligation to which it was subject immediately before the sale or other disposal, and
(c) the person who was the owner of the property immediately before the sale or other disposal ceases to have a claim in relation to the property or a right of action in relation to the sale or disposal.
59
Permit not required to deliver stock to place of care
59 Permit not required to deliver stock to place of care
59 Permit not required to deliver stock to place of care
It is not necessary for a stock permit to be in force under the Local Land Services Act 2013 for the purpose of having stock delivered to a place of care under this Act.
60
Service of documents
60 Service of documents
60 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served on a person may be served by the following methods—
(a) for an individual—by personal delivery to the person,
(b) by post to the address specified by the person for the service of documents of that kind,
(c) for an individual who has not specified an address under paragraph (b)—by post to the residential or business address of the person last known to the person serving the document,
(d) for a corporation—by post to the registered office or another office of the corporation or by leaving it at the registered office or other office with a person apparently over the age of 16 years,
(e) by email to an email address specified by the person for the service of documents of that kind,
(f) by another method authorised by the regulations for the service of documents of that kind.
(2) This section does not affect the operation of a provision of another law or of the rules of a court authorising a document to be served on a person by another method.
(3) In this section—
serve includes give and send.
61
Regulations
61 Regulations
61 Regulations
(1) The Governor may make regulations about a matter that is—
(a) required or permitted by this Act to be prescribed, or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may provide for—
(a) matters relating to authorised officers, and
(b) the giving of notices under this Act.
(3) A regulation may apply, adopt or incorporate a document as in force—
(a) at a particular time, or
(b) from time to time.
(4) The regulations may exempt—
(a) a person or class of persons from the application of a provision of this Act or the regulations, or
(b) an item or class of items from the application of a provision of this Act or the regulations.
(5) The regulations may create offences punishable by a maximum penalty of 50 penalty units.
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 2
Schedule 2
Schedule 2 (Repealed)
sch 2: Rep 1987 No 15, sec 30C.
Schedule 3
Dictionary
Schedule 3 Dictionary
Schedule 3 Dictionary
section 4
animal—see section 5.
area of operations, for an authorised officer or authority, means the area prescribed by the regulations for the authorised officer or authority.
authorised officer means a person appointed by an authority to exercise the functions of an authorised officer.
Note—
Under section 48, all police officers have the powers of authorised officers. Police officers are not expected to exercise a primary role under this Act. Primary responsibility under this Act rests with the appropriate authority.
authority means a public authority or local authority prescribed by the regulations as an authority for a particular place or class of places.
(a) a motor vehicle within the meaning of the Road Transport Act 2013 and includes a caravan, boat trailer or other trailer, whether or not attached to a motor vehicle, and
(b) the remains of a vehicle, and
(c) property, including parts and accessories, secured to or in a vehicle at the time it is taken possession of.
occupier, of land, includes—
(a) a person who is managing the land on behalf of its owner or occupier, and
(b) a person who is responsible for caring for or controlling the land.
owner, of property, means a person who alone or jointly is entitled, whether at law or in equity, to possession of the property.
place includes—
(a) premises, and
(b) an area of water, and
(c) a means of transport.
place of care—see section 10.
place of storage—see section 11.
private land means—
(a) all land, except Crown land (including Crown managed land) as defined in the Crown Land Management Act 2016 for which there is no Crown land manager under that Act, and
(b) Crown land (as defined in that Act) that is the subject of a holding (as defined in that Act).
Note—
Land held under a lease from the Crown is treated as private land.
property—see section 13.
public place—see section 14.
responsible person—see section 15.
sharing service means an arrangement, including a written arrangement or an arrangement established through a smartphone application or other electronic means, under which—
(a) items are provided for hire, and
(b) the items are self-locking or access to the items is otherwise able to be limited, including remotely, and
(c) the items are not required to be returned to—
(i) a person, or
(ii) the premises from which the items are picked up, or
This Act is the Public Spaces (Unattended Property) Act 2021.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
3 Objects of Act
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
Part 2 Interpretation and application of Act
Part 2 Interpretation and application of Act
Division 1 Definitions
Division 1 Definitions
Division 1 Definitions
4 Definitions
4 Definitions
4 Definitions
The Dictionary in Schedule 3 defines terms used in this Act.
The Act’s objects are stated in s 3: to encourage responsible persons to act quickly to mitigate risks from unattended property, to enable authorities to preserve access, safety and amenity by dealing with unattended property, to provide for storage and care, to enable cost recovery from responsible persons, to ensure animals are cared for consistent with community expectations and animal welfare laws, and to empower occupiers of private land to take possession of stray animals (s 3(a)-(c)). Those purpose claims are embedded in the Act’s mechanics: powers to move/take possession (s 18, s 25), cost recovery (s 52, s 55), standards and exclusions to align with animal welfare and other laws (s 5, s 19(6)), and private occupier powers for animals on private land (s 23-24).
In practical effect the Act reallocates decision‑making power to authorities and their authorised officers about when unattended property may be moved, stored, destroyed or sold, delegates fee‑setting to authorities subject to regulatory caps (s 55(2)-(6)), and makes the responsible person financially liable for dealing and enforcement costs (s 52). Many operational specifics are left to regulations and authority practices (s 18(3), s 25(3), s 61), so the Act sets a framework and default timelines while delegating implementation detail. The next sections unpick the key concepts, who bears costs and duties, enforcement mechanics, interactions with other laws, transitional effects and practical compliance steps, with the Act cited throughout.
Main concepts
The Act organises around a small set of core legal concepts: property, unattended, responsible person, authorised officer, public place, classes of items, possession, place of care and place of storage. Each concept triggers particular powers, duties and timeframes.
Property is defined to include animals and items (s 13). The term item is a composite category that covers the three statutory classes (class 1, 2 and 3) and any additional things prescribed by regulation (s 9(1)(a)-(d)). Class 1 items are small or medium things capable of ownership, other than living creatures, that 1-2 persons can ordinarily collect without machinery; examples include baggage and personal recreation equipment (s 6). Class 2 items are things made available for public use, whether on payment or by sharing services; share‑bikes and shopping trolleys are explicitly listed (s 7). Class 3 items are motor vehicles, with hire‑cars included by example (s 8). If something could fit multiple classes, regulations may prescribe which class applies (s 9(2)). That regulatory power can have practical importance for operators of sharing services or hire fleets because class designation affects disposal thresholds, penalties and processes.
Unattended means the property is not under the direct control or supervision of the responsible person (s 16). The responsible person concept is broad: it captures owners, persons engaged to collect or manage property, persons in control or entitled to possession, and persons who caused or engaged in conduct likely to result in the property being unattended (s 15(1)). The responsible person list is fleshed out by class: hirers or lessors for class 1 (s 15(2)(a)), users, hirers, lessors and scheme operators for class 2 (s 15(2)(b)), and registered operators, hirers/lessees and scheme operators for class 3 (s 15(2)(c)). The regulations can add further responsible persons (s 15(3)). Those definitions allocate financial and criminal responsibility to both owners and commercial intermediaries such as scheme operators.
Possession under the Act attaches to authorised officers or occupiers of private land once they take possession under the Act and continues until return or disposal (s 12). Possession does not require the item be stored at a place of care or storage (s 12(2)). Place of care for an animal must be appropriate to the animal’s needs and likely period of keeping (s 10). Place of storage for an item is similarly to be appropriate for storage while the item is in the authority’s possession (s 11). Authorities may nominate places of care (s 21(3)).
Authorised officers are persons appointed by an authority (s 44). Police officers automatically have the functions of an authorised officer (s 48(1)), but they are not subject to the direction or control of an authority (s 48(2)). Authorised officers must carry identification (s 45) and may act only in their area of operations except where arrangements or emergencies justify acting outside it (s 47). The Act repeatedly conditions powers on the authorised officer having a reasonable belief that the property is unattended and that specified harms or circumstances apply (see s 18(1), s 25(1)).
The Act deploys a set of procedural safeguards and temporal rules. Authorities must take reasonable steps to identify owners and notify them before destroying or disposing of property (s 29). There are statutory deadlines for claiming property: for animals, seven days from notice or from completion of steps to identify the owner (s 32(7)(a)); for other property, 28 days from notice or as otherwise prescribed (s 32(7)(b)). Low‑value items may be destroyed immediately upon possession if the authorised officer reasonably believes the value is below prescribed amounts or, absent regulation, $200 for class 1/2 and $1,500 for class 3, but only after reasonable steps to identify and notify an owner (s 31). The authority has discretion to sell, give away or otherwise dispose of property unclaimed after the deadline (s 32).
The Act regulates enforcement techniques and sanctions. Leaving an item or an animal unattended in prescribed circumstances is an offence (s 37), with enhanced penalties for reckless or negligent leaving (s 38). Responsible persons may be treated as the offender for an offence (s 39) subject to nomination procedures (s 39(3)-(4)). Penalty notices may be issued under a regimen that depends on regulations (s 49), and proceedings for offences are to be dealt with summarily in the Local Court (s 50). Authorities may recover fees and costs as debts (s 52), and the Act defines the fees payable and the mechanism for an authority or occupier to decide those fees, subject to regulatory caps (s 55).
Finally, the Act places large detail authority in the regulations. Regulations can prescribe excluded animals (s 5(2)(b)), thresholds and classes, matters an authorised officer must consider in forming a reasonable belief (s 18(3), s 25(3)), notice requirements, maximum fees (s 55(6)), penalty notice offences and amounts (s 49(2), (4)), public place exclusions (s 14(3)), and the power to exempt persons or items from provisions (s 61(4)). This means many operational definitions and compliance obligations will depend on instruments made under s 61.
Who it affects
The Act affects a set of identifiable groups differently: authorities and their authorised officers, NSW Police, owners and operators of items and animals, hirers and scheme operators, occupiers of private land, members of the public who use or leave property in public places, and third parties who store, care for or buy disposed property.
Authorities and authorised officers. Public or local authorities prescribed by regulation may appoint authorised officers to exercise functions under the Act (s 44; Sch 3 definition of authority). These authorities decide in writing the fees that may be charged for functions exercised by their authorised officers (s 55(2)(a)), and they must maintain records of property taken into possession (s 33). Authorities bear operational costs of exercising powers but can recover sums from responsible persons (s 52) and may decide to waive charges in limited disaster circumstances for animals (s 55(8)). Authorities also control disposition decisions (s 31-32) and the nomination of places of care (s 21(3)). The Governor’s regulations can prescribe which public authorities are “authorities” for particular places (Sch 3).
Police. Police officers have the same functions as an authorised officer (s 48(1)). The Commissioner of Police has a specific recovery function: amounts payable for property taken by police may be recovered by the Commissioner as a debt (s 52(2)). Police must provide assistance if asked by an authorised officer or authority to obtain the name and address of a motor vehicle owner (s 56(1)), producing a written statement within 24 hours where available (s 56(1)-(2)). Police are not subject to direction or control by an authority (s 48(2)).
Owners, responsible persons and operators. The Act places legal and financial obligations on the responsible person for property, a broadly defined category including owners, managers, hirers, lessors, scheme operators and persons who negligently cause property to be left unattended (s 15). Responsible persons are the primary payers of fees payable for taking, holding and disposing of property (s 52), and they may be criminally liable under the offences in Pt 6 as if they were the actual offender (s 39), subject to nomination procedures (s 39(3)-(4)). For commercial schemes (class 2), scheme operators are explicitly responsive for items (s 15(2)(b)(iii)). The regulations can add to the list of responsible persons (s 15(3)), so compliance obligations may extend to additional actors once regulations are made.
Occupiers of private land. Occupiers may take possession of an unattended animal on their land without permission (s 23), but must follow defined steps after doing so: contact the responsible person within 24 hours if identity is known and return the animal within 4 days (s 24(1)(a)); where identity is unknown, keep the animal no more than 4 days and either return it to a person identified as the responsible person or contact an authority to arrange transfer to a place of care (s 24(1)(b)); or contact an authority if the occupier does not wish to return the animal (s 24(1)(c)). Occupiers are entitled to recover fees under s 55 for the period they kept the animal, and may recover unpaid amounts as a debt (s 24(2)-(3)).
Third parties and purchasers. Members of the public who acquire property via authorised disposal obtain good title: sale or disposal under the Act transfers ownership and discharges prior rights and claims (s 58). Persons who illegally recover property taken into possession can be fined and ordered to pay the authority the fees that would otherwise have been payable (s 41).
Members of the public who leave property. The Act creates criminal and civil exposure for individuals who leave items or animals unattended in public places (Pt 6, s 37-40). The penalties are tiered by item class and culpability, and courts may order convicted persons to repay fees incurred by authorities in dealing with the property (s 37(5), s 40(2)). The Act also creates practical obligations on the public to respond to written directions from authorised officers to remove or prevent items from becoming unattended (s 28), with fines for non‑compliance (s 28(4)). The public also interacts with the owner notification and retrieval process (s 29-33).
Businesses and sharing services. Operators of sharing services are within the class 2 definition (s 7 and Sch 3 sharing service definition) and are specifically identified as responsible persons (s 15(2)(b)(iii)). This affects ride‑share/hire fleets and micromobility providers: they are exposed to fees, potential penalties and the need to comply with any code or standard prescribed by regulation (s 25(1)(b)(v)). The Act also allows regulations to specify codes of practice or standards that can make particular conduct an unattended circumstance (s 25(1)(b)(v), s 37(1)(e)).
Regulatory and administrative actors. The Governor, via regulations, will determine many operational aspects (s 61). The Civil and Administrative Tribunal has a limited administrative review role for responsible persons or directed persons to challenge whether taking possession or issuing a direction was unlawful, and to review fees only on specified grounds (s 34). Local Courts hear prosecutions summarily (s 50), and recovery of money orders is enforceable as Civil Procedure Act judgments (s 51).
Overall, financial burdens fall primarily on responsible persons (s 52), operational decision‑making on authorities and authorised officers (s 44-47), and criminal/regulatory enforcement on people who leave property unattended. The Act’s regulatory architecture therefore affects local government, police, commercial providers of shared items, private occupiers of land, and individual members of the public who use public spaces.
Key duties and rights
The Act creates a set of statutory duties for authorised officers, authorities, occupiers of private land, responsible persons and courts, and corresponding statutory rights for owners and applicants. These are concrete, time‑bound duties and rights anchored to sections throughout the Act.
Duties of authorised officers and authorities. Authorised officers may take possession of animals (s 18) and items (s 25) where conditions are met. When they take possession of an animal they must ensure it is taken to a place of care or returned to the responsible person (s 21(1)). When they take possession of an item they must move it so it ceases to obstruct, pose risk or interfere with amenity, take it to a place of storage, or otherwise deal with it as regulations prescribe (s 26(1)). Authorities must, as soon as practicable after taking possession and before destroying or disposing of property, take reasonable steps to identify the owner and, if identified, give notice in the form required by regulations that the property is in the authority’s possession (s 29(1)). Authorities must also keep records of all property taken into possession including descriptions, dates and places, and make those records available for public inspection in accordance with regulations (s 33(1)-(3)). For animals, authorities must not destroy an animal under s 32(4) unless all reasonable efforts to sell, give away or rehome have failed.
Duties of occupiers of private land taking possession of animals. Occupiers are permitted to take possession of an unattended animal on their land (s 23), but they incur duties: if they know the responsible person and wish to return the animal they must contact that person within 24 hours and return the animal within 4 days unless extended by agreement (s 24(1)(a)); if they do not know the responsible person but are taking reasonable steps to identify them they may keep the animal up to 4 days and must by the end of that period return the animal to someone they are satisfied is the responsible person or contact an authority to arrange transfer to a place of care (s 24(1)(b)); if they do not wish to return the animal or to seek the responsible person they must contact an authority to arrange for the animal to be taken to a place of care (s 24(1)(c)). Failure to comply with s 24 carries a maximum penalty of 25 penalty units.
Duties of responsible persons. Responsible persons must comply with a written direction from an authorised officer directing removal of unattended property or actions to prevent the property becoming unattended (s 28(2), (4)). Responsible persons must pay amounts payable under s 55 for the period an occupier kept an animal (s 24(2)), and are liable for fees and costs incurred by authorities in dealing with property taken into possession (s 52(1)). Where more than one responsible person exists, each is jointly and severally liable (s 54).
Rights of owners and applicants. An owner or other person entitled to possession may apply to an authority for return of property at any time before the property is sold or otherwise disposed of (s 30(1)-(2)). The authority must return the property if it is satisfied the applicant is the owner or otherwise entitled to possession, an amount payable under s 55 is paid, and the applicant signs a receipt (s 30(3)). Owners have a right to be identified and notified under s 29(1). Where property is sold or disposed of under the Act, the buyer obtains unencumbered title and prior claims are discharged (s 58).
Administrative review rights. Responsible persons and persons issued directions have a right to apply to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 (s 34). Grounds for review are narrow: decisions to take possession or to issue directions may be reviewed only on the ground they were unlawful; amounts charged for return may be reviewed only on the grounds that they were improperly charged, incorrectly calculated, or excessive (s 34(1)-(2)). Applicants must give written notice of intent to apply before lodging an application (s 34(3)), and if such notice is given the authority or occupier must not sell or dispose of the property while the Tribunal application period remains open or until any application is finally determined (s 34(4)). If an application succeeds on unlawful taking, the authority must return the property free of all fees and at the authority’s expense (s 36(2)(a)-(b)).
Duties of courts. Courts that convict for offences under the Act may order payment to an authority of fees payable in relation to taking possession, holding and disposing of property, whether or not they impose a penalty (s 37(5); s 40(2)). Orders for the payment of money under the Act operate and are enforceable as judgments under the Civil Procedure Act 2005 (s 51).
Fee‑setting duties. Authorities decide, in writing, the fees for functions exercised by their authorised officers (s 55(2)(a)), police fees are decided by the Commissioner of Police (s 55(2)(b)), and occupiers of private land must state amounts payable in a notice to the animal’s owner if they exercised functions under the Act (s 55(3)). Different fees may be set for different classes of property (s 55(5)), but fees must not exceed maximums prescribed by regulation (s 55(6)).
Safety and animal welfare duties. The Act cross‑references and preserves the operation of other laws to ensure animal treatment aligns with animal welfare and biosecurity regimes. For example, authorised officers may destroy animals in possession if severely diseased or injured and a vet is unavailable or waiting would be cruel, with veterinary practitioner defined by the Veterinary Practice Act 2003 (s 22). Section 19 deals with emergency arrangements for stock animals, and expressly sets how the Act interacts with emergency orders under the Biosecurity Act 2015 (s 19(6)).
Liability protection. A protected person (an authorised officer or person acting under the direction of an authorised officer) is not personally liable for acts or omissions done in good faith for the purpose of exercising a function under the Act; liability attaches instead to the authority (s 57). This shields individuals from personal civil liability where they act in good faith.
Finally, the Act grants powers to issue penalty notices (s 49) and to create offences by regulation up to 50 penalty units (s 61(5)), so the regulations will supplement the statutory duties and rights with further procedural and substantive obligations.
Penalties and enforcement
The Act creates a layered enforcement regime combining administrative seizure and disposal powers, criminal offences with statutory penalties, penalty notices under the Fines Act framework, debt recovery and Civil and Administrative Tribunal review. Enforcement responsibility is shared among appointed authorities, NSW Police and the courts.
Statutory offences and penalties. Leaving an item unattended in a public place in ways that obstruct access, pose risk, interfere with amenity, or remain substantially in the same place for the prescribed period (default 7 days), is an offence (s 37(1)). The maximum penalties vary by class and circumstance. For individuals: class 3 items subject to notice may attract 25 penalty units per day up to 75 units (s 37(1)(a)(i)); class 2 items have a scale,25 units for the first item, 5 units for each additional item up to a maximum of 50 units (s 37(1)(a)(ii)); other circumstances carry 25 units (s 37(1)(a)(iii)). For bodies corporate the maximum is 125 units (s 37(1)(b)).
Leaving an animal unattended in a public place is also an offence (s 37(2)) with a maximum of 25 penalty units for the first animal and 5 units for each additional animal up to 50 units. Subsection 37(3) provides a defence where the person establishes they took all reasonable precautions to prevent the animal being left unattended.
Reckless or negligent conduct carries higher maximums (s 38). For individuals: class 3 items subject to notice attract up to 50 penalty units per day up to 150 units (s 38(a)(i)); class 2 items attract 50 units for the first item and 10 units for additional items up to 100 units (s 38(a)(ii)); otherwise up to 50 units (s 38(a)(iii)); bodies corporate up to 250 units (s 38(b)). The Act thereby distinguishes fault elements and scales penalties accordingly.
Related offences include causing or permitting animals to trespass on private land without occupier permission (s 40), unlawfully recovering property taken into possession (s 41; max 50 units and potential order to pay fees), failing to recover property when required by notice (s 42; max 25 units individual, 125 units corporate), and obstructing an authorised officer (s 43; max 100 units). Courts may order convicted persons to pay fees for taking possession, holding and disposing of property (see s 37(5), s 40(2), s 41(2)).
Penalty notices and summary proceedings. Authorised officers may issue penalty notices for offences that are prescribed as penalty notice offences in regulations (s 49(1)-(2)). The Fines Act 1996 regime applies to penalty notices (s 49(3)), and the amount payable is as prescribed by regulation, not exceeding the court maximum (s 49(4)). The Act provides that proceedings for offences are to be dealt with summarily before the Local Court (s 50).
Recovery of fees and debts. Authorities and the Commissioner of Police may recover as a debt the amount payable under s 55 from the person responsible for the property (s 52(1)-(2)). The person responsible is taken to be the owner unless they supply the authority, within 21 days of being required, with the name and address of the adult who was in control immediately before the property was left unattended or otherwise satisfy the authority they could not with reasonable diligence ascertain that person (s 52(3)). Recoverable amounts are only those not already paid or deducted from sale proceeds (s 52(5)). Recovery as a debt may be pursued in a court of competent jurisdiction (s 53).
Court enforcement. Money orders under the Act operate and are enforceable as judgments under the Civil Procedure Act 2005 (s 51). The Local Court is the venue for summary disposal of offences (s 50). If an application to the Tribunal challenging taking of possession is dismissed, the applicant is liable for additional fees incurred up to the time the authority is notified of the Tribunal decision (s 36(1)). If the Tribunal sets aside the taking of possession the authority must return the property free of fees and at the authority’s expense (s 36(2)).
Operational enforcement mechanics. Authorised officers must carry identification (s 45) and may only act in their area of operations unless acting under formal arrangements, in the interests of public health or safety, or per the regulations (s 47(1)-(2)). Police have equivalent functions but remain independent of authority control (s 48). Authorities must keep records and follow notice and deadline processes before disposing of property (s 29, s 31-32). Immediate destruction of low‑value items is allowed when the authorised officer reasonably believes value is below set amounts, provided reasonable attempts to identify and notify owners have been made (s 31(1)-(3)).
Discretion and regulation. The Act repeatedly conditions action on an authorised officer’s reasonable belief and gives the regulations power to specify matters to be considered in forming that belief, to set periods, to prescribe excluded animals or items, to provide for notice and code of practice conditions, and to create penalty notice offences (see s 18(3), s 25(3), s 31(1)(a), s 61). Enforcement outcomes will thus depend substantially on the content of rules made under s 61 and on authorities’ operational choices about exercising discretion.
Liability shielding. Protected persons acting in good faith for the purpose of exercising functions under the Act are not personally liable; liability attaches to the authority (s 57). That affects enforcement behaviour incentives for officers and for authorities’ insurance/indemnity exposures.
In sum, the Act mixes administrative seizure and disposal powers with criminal sanctions, civil debt recovery and an administrative review pathway. The effectiveness of enforcement will depend on the regulations (s 61), authorities’ resource allocation for identification/notification and storage (s 29, s 33, s 55), and on the way fault and value‑threshold rules are applied by authorised officers.
How it interacts with other laws
The Act explicitly cross‑references several existing statutes and preserves or adjusts their operation in specific circumstances. These interactions determine the scope of the Act and where other legal regimes displace or complement its powers.
Companion Animals Act and animal exclusions. The definition of animal in s 5 excludes companion animals as defined in the Companion Animals Act 1998, other than dogs in national parks (s 5(2)(a) and accompanying note). This means common domestic dogs and cats are, generally, outside the Act’s animal regime unless the dog is in a national park. Regulations may prescribe other animals to which the Act does not apply (s 5(2)(b)). The exclusion aligns the Act with the Companion Animals Act except where a national park context applies.
Local Land Services Act and stock. Section 19 provides special arrangements for stock animals in emergencies and draws on the Local Land Services Act 2013 s 115 for circumstances in which stock unattended on roads or travelling stock reserves are excluded from being treated as unattended under s 18(2)(d) and s 37(4)(d). Section 19(6) sets out a priority rule where emergency orders under the Biosecurity Act 2015 prevail over this section to the extent of inconsistency, while for other inconsistencies this section prevails. This creates a deliberate hierarchy where declared biosecurity emergencies trump the Act’s emergency stock powers, but the Act takes precedence in ordinary non‑biosecurity inconsistencies.
Biosecurity Act. The Act acknowledges the Biosecurity Act 2015 in s 19(6) and provides that an emergency order under that Act prevails over s 19’s special arrangements for stock animals. That linkage preserves the state’s biosecurity emergency powers and ensures animal movement or containment directed by biosecurity emergency orders cannot be circumvented by this Act.
Veterinary Practice Act and euthanasia. Section 22 references the Veterinary Practice Act 2003 for the definition of veterinary practitioner. The authorised officer may destroy an animal taken into possession where the animal is so diseased or injured that it is cruel to keep it alive or poses immediate threat, but only where a veterinary practitioner is not available or waiting would be cruel (s 22(1)-(2)). This cross‑reference grounds the euthanasia power in recognised veterinary standards by importing that Act’s definition.
Road Transport Act and motor vehicles. The definitions of motor vehicle and vehicle reference the Road Transport Act 2013 (Sch 3 motor vehicle and vehicle definitions). Class 3 items are motor vehicles (s 8). Section 56 imposes a duty on NSW Police to assist authorised officers and authorities to obtain owner particulars for motor vehicles, and it refers to registration records kept by Transport for NSW under the Road Transport Act 2013 (s 56(2)). Thus the motor vehicle regulatory infrastructure is leveraged for owner identification and enforcement.
Fines Act and penalty notices. The Act imports the Fines Act 1996 regime for penalty notices issued under s 49(3). It also makes specific cross‑references to the Fines Act approved nomination notice procedure in s 39(5)-(6), adopting that Act’s mechanics for shifting liability via nomination. This ensures consistent penalty notice and nomination procedures across regulatory regimes.
Civil Procedure Act and enforcement. An order for payment of money under the Act is enforceable as a Civil Procedure Act judgment (s 51). That cross‑reference provides authorities with standard court enforcement tools for recovering debts and money orders.
Impounding Act repeal and transitional continuity. The Act repeals the Impounding Act 1993 (s 62). Schedule 1 Part 2 contains transitional provisions applying to items abandoned or impounded under the repealed Act immediately before commencement, allowing such items to be dealt with under the new Act or for the old Act to continue to apply to items impounded before commencement (Sch 1, Pt 2, ss 3-4). That avoids disruption for property already impounded.
Administrative Decisions Review Act and Tribunal review. Section 34 gives responsible persons and persons issued with directions the right to apply to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 but limits review grounds to legality questions for taking possession and issuing directions, and to incorrect/improper/excessive fees for return (s 34(1)-(2)). This links the Act’s administrative review path into the existing administrative law framework with defined scope.
Regulations and delegated law. The Governor’s regulation‑making power in s 61 is broad. Regulations may prescribe excluded animals and items, set codes of practice and standards that create offences, set maximum fees, prescribe penalty notice offences, provide for authorised officers, and exempt persons or items from provisions (s 61(2), (4), (5)). The Act therefore delegates much operational detail to subordinate instruments and indicates possible interactions or overlaps with other laws will often be managed by regulatory design.
Other statutes preserved by specific references. The Act notes the Interpretation Act 1987 provides definitions and other interpretative provisions affecting this Act (s 4 note), and makes express reference to other statutes for meaning and application (Companion Animals Act 1998, Veterinary Practice Act 2003, Local Land Services Act 2013, Biosecurity Act 2015, Road Transport Act 2013, Fines Act 1996, Civil Procedure Act 2005, Administrative Decisions Review Act 1997). These cross‑references mean practitioners must consider both this Act and those statutes when advising clients: euthanasia, stock movement, vehicle registration information, penalty notice mechanisms, and administrative review will all be governed both by the Act and the referenced laws.
In short, the Act is designed to sit alongside and to defer to or adopt provisions of several specialist regimes. The precise practical overlaps and precedence will depend on the content of regulations and on how authorities coordinate with police and other statutory agencies under existing regimes, particularly in biosecurity emergencies, animal welfare scenarios and vehicle owner identification.
Amendment history
The text provided contains a limited number of explicit amendment annotations. The Act as presented includes one amendment notation and transitional repeal references relevant to implementation; otherwise, further amendment history must be established from external legislative records beyond the supplied text. The Act incorporates certain amending entries as follows.
Amendment annotations. Section 12 contains an annotation: "s 12: Am 2022 No 59, Sch 2.38[1] [2]." Similarly, section 18 carries an annotation: "s 18: Am 2022 No 59, Sch 2.38[3]." These annotations indicate that sections 12 and 18 were amended by a 2022 amending Act (No 59) at Schedule 2.38 in the legislative database. The provided text does not reproduce the earlier or later versions, but the annotations show the Act has been subject to at least one statutory amendment addressing the possession concept and authorised officers taking possession criteria. Practitioners should consult the consolidated statute and Schedule of amendments for precise amendment texts and effective dates.
Commencement. Section 2 states the Act "commences on a day or days to be appointed by proclamation." This means that the statute’s provisions may come into force in staged proclamations, affecting how transitional provisions operate. Schedule 1(1)-(5) provides a time window for transitional regulations to be made within two years after commencement and includes savings for rights and liabilities and constraints on retrospective prejudice (Sch 1 Pt 1 ss 1(2)-(5)). The Act therefore contemplates a staged commencement and a transitional regulatory implementation period.
Repeal of prior statute. Section 62 repeals the Impounding Act 1993. Schedule 1 Part 2 contains transitional provisions dealing with items that, immediately before commencement, had been abandoned or impounded under the repealed Impounding Act 1993 but not yet impounded, and those impounded but not returned or disposed. Specifically, Sch 1 Pt 2 s 3 provides that items abandoned but not impounded under the repealed Act may from commencement be dealt with as unattended property under the new Act; s 4 preserves the continued application of the repealed Act to items already impounded until they are returned or otherwise disposed under the repealed Act. These transitional measures smooth the legislative transition from the Impounding Act to the new regime.
Regulation‑making transitional power. Schedule 1(1) authorises the regulations to contain savings or transitional provisions consequential on commencement or amendments. Such provisions must be made within two years and are repealed automatically after two years (Sch 1 Pt 1 ss 1(1)-(3)). Transitional regulations may operate from assent (Sch 1 Pt 1 s 1(4)) but cannot affect persons prejudicially before publication (Sch 1 Pt 1 s 1(5)). The presence of these provisions indicates the legislature expected some practical detail to be loaded into regulations during the early implementation window.
Prescribed matters and deferred detail. The Act intentionally leaves substantial detail to the regulations (s 61). As a consequence, the full operational form and any further amendments enacted by regulation (including classification nuances, fee maxima, codes of practice, notice forms and penalty notice prescriptions) will materially affect how the Act functions in practice. This is an important structural feature: future regulatory instruments will in effect be the principal vehicles for many of the Act’s working rules in the near term, and any changes to those instruments will appear in the subordinate legislation rather than primary‑Act amendments.
Given the limited amendment annotations in the supplied text, this section does not attempt to recreate a comprehensive amendment chronology. Practitioners should check the consolidated statute and the legislative history in official NSW parliamentary and statute databases for full amendment records, dates of proclamation and any regulation‑level changes made pursuant to s 61. The Act’s repeal of the Impounding Act 1993 and the transitional provisions in Schedule 1 are the principal recorded structural changes captured in the supplied text.
Litigation history
The supplied statute text does not record decisions of courts or tribunal determinations applying the Act. It includes the grant of rights to seek administrative review in the Civil and Administrative Tribunal (s 34-36) and indicates proceedings for offences are to be heard in the Local Court (s 50), but it names no cases and provides no judicial interpretations. Therefore, any litigation history, substantive judicial glosses, contested constitutional challenges, or reported appeals must be sourced outside the provided text.
What the Act does provide that shapes litigation risk and possible future litigation themes is as follows. The Act confines Tribunal review to narrow grounds: legality of taking possession or issuing directions, and the correctness/excessiveness of fees (s 34(1)-(2)). This restricted review scope may channel most disputes into administrative law principles about reasonableness and lawfulness of the exercise of power. Section 35 sets a regime of time limits for Tribunal applications (generally 28 days from notification), with an exception where the responsible person was not notified (s 35(2)), which will produce disputes about what constitutes effective notice and the timing of appeals.
The Act provides for protections for authorised officers and people acting under their direction from personal liability if acting in good faith (s 57). Litigation could involve claims of lack of good faith or allegations that an officer exceeded statutory powers or did not take reasonable steps required by s 29 when disposing of property. The protected person shield directs any civil liability to the appointing authority, which could create claims against public authorities rather than individuals.
Several provisions create fertile ground for litigation over statutory interpretation. Examples include:
The meaning of "reasonable belief" that property is unattended (s 18(1), s 25(1)), including what matters may be considered and whether regulated guidelines must be followed (s 18(3), s 25(3)).
The scope of "public place" (s 14) and regulatory power to declare exclusions (s 14(3)), affecting whether property was lawfully seized or an offence committed.
The interfaces with other regimes, especially s 19(6) prioritising biosecurity emergency orders and s 22’s euthanasia powers when veterinary practitioners are unavailable or waiting would be cruel.
The adequacy of identification and notification steps required before disposal or destruction (s 29, s 31(2)), and the content and sufficiency of notices (s 31(3)).
The Act also creates criminal offences that turn on proof of fault (recklessness or negligence under s 38), which raises evidentiary and mens rea issues for prosecutions. The nomination and approved nomination notice mechanics borrowed from the Fines Act (s 39(5)-(6)) will spawn procedural litigation about timeliness and sufficiency of nominations, statutory declarations and the evidentiary status of those documents in prosecutions (s 39(7)).
Finally, the Act’s delegation of operational detail to regulations (s 61) means much litigation may involve challenges to the validity or application of regulations or to whether an authority correctly applied a code of practice or standard when seizing property (s 25(1)(b)(v), s 37(1)(e)). Absent cases in the supplied text, these are the predictable litigation vectors that practitioners should expect and monitor.
Given the absence of reported decisions in the Act text, counsel and advisers should search NSW tribunal and court databases for any proceedings under the Act, and review regulatory instruments made under s 61, to understand how courts and tribunals have interpreted the Act’s key terms and procedures in practice.
Gotchas
The Act contains several practical pitfalls where statutory wording, delegation to regulations, time limits and the allocation of liability can produce surprises for owners, operators and authorities. The following items flag those issues and cite the relevant provisions.
Broad and contestable “reasonable belief” standard. Authorised officers may act only on a "reasonable belief" that property is unattended and that specified conditions exist (s 18(1), s 25(1)). The regulations may prescribe matters to be considered when forming that belief (s 18(3), s 25(3)). Until regulations and any guidance exist, what constitutes reasonable belief is fact‑specific; poor documentation of reasons by an officer can weaken the authority’s position in Tribunal or court review (s 34).
Class overlap and regulatory designation. A thing may fall within multiple classes of items; regulations can prescribe which class applies (s 9(2)). Operators of sharing services, lessors or hirers should note that reclassification by regulation can change disposal thresholds, penalties and fees that apply. Relying on an assumed class without checking current regulations risks exposure.
Wide definition of "responsible person." The responsible person definition reaches owners, managers, hirers, scheme operators and those who caused or engaged in conduct likely to result in property becoming unattended (s 15). For corporate owners this means multiple parties may be jointly and severally liable for fees and penalties (s 54). Commercial scheme operators should beware that liability can attach irrespective of actual physical control at the moment an item is seized.
Regulations will determine key obligations. The Act delegates many details to regulations: excluded animals, periods for items being unattended, codes of practice that can create offences, maximum fees, and penalty notice offences (s 5(2)(b), s 25(1)(b)(v), s 31(1)(a), s 55(6), s 49(2), s 61). Until those regulations are in force, obligations may be unclear and practice inconsistent between authorities.
Immediate destruction thresholds subject to identification attempts. Authorised officers may destroy low‑value items immediately if they reasonably believe the value is below prescribed amounts or default thresholds (s 31(1)), but they must first take all reasonable steps to identify the owner and notify them (s 31(2)). Failure to take those steps properly can lead to having destroyed property wrongfully and being required to return nothing when the owner expected reclamation rights, but could expose the authority to claims under other laws despite s 57.
Notice and deadline mechanics create traps. The deadline for animals is 7 days from notice or completion of identification steps, and for other items 28 days (s 32(7)). Authorities must correctly calculate the starting point for these periods and ensure notices meet the regulatory form. Owners who are not effectively notified have open rights to Tribunal review beyond 28 days (s 35(2)). Authorities that sell property while notice or Tribunal timeframes are live risk later obligations to return property.
Occupiers who take animals acquire duties and rights. Occupiers of private land can take possession of stray animals (s 23), but if they do not follow the s 24 steps they face a penalty unit exposure and must still account for potential recovery obligations under s 24(2) and s 55. Occupiers who feed, house or provide care must accurately calculate and notify fees, or risk disputes.
Nomination mechanics and shifting liability require procedural care. The responsible person can avoid direct liability under s 39 by providing an approved nomination notice under the Fines Act processes within 21 days of penalty or attendance notice service (s 39(3)-(4)). Failure to comply with Fines Act timing or form requirements can leave the owner exposed. Authorities can require statutory declarations to verify nominations (s 39(6)). This interaction with the Fines Act often trips up owners unfamiliar with nomination procedures.
Disposal frees later claims. Once property is sold or otherwise disposed under this Act, the buyer obtains ownership and prior rights are extinguished (s 58). Owners who do not monitor notices risk losing property permanently; however, sale price proceeds may be available to satisfy recoverable fees only if not already deducted per s 52(5).
Fee setting delegated to authorities with regulatory caps. Authorities decide in writing the fees their authorised officers may charge (s 55(2)(a)), but those fees must not exceed regulations’ maximums (s 55(6)). Businesses and individuals should monitor local authority fee schedules and applicable regulation caps because fees can differ between authorities and may be decided administratively rather than by a uniform statutory tariff.
Police assistance timing. Police must provide a written statement about motor vehicle owner inquiries within 24 hours if asked (s 56(1)). Delays in obtaining owner details from police can extend time authorities hold property and incur storage or care costs recoverable as debts, but police are independent of authorities (s 48(2)) and authorities should build in procedural time for such inquiries.
Protected person limitation. The “good faith” shield for protected persons (s 57) removes personal liability for authorised officers acting in good faith, but it does not cover acts not in good faith. Authorities therefore remain the principal target for civil claims.
Transitional and repeal issues. The repeal of the Impounding Act 1993 (s 62) and the transitional provisions in Schedule 1 may create transitional uncertainty for items impounded or abandoned around commencement. Practitioners should check whether items were impounded before or after commencement to understand whether the old or new regime applies (Sch 1 Pt 2 ss 3-4).
Public place scope and exclusions. The definition of public place is broad and includes privately owned places open to the public (s 14(1)-(2)), but the regulations may declare places not to be public places (s 14(3)). This could affect whether property on a particular property is actionable under the Act.
Practitioners dealing with property, scheme operators and authorities should pay close attention to the regulations when they are made, maintain documentary proof of notifications, preserve evidence of the steps taken to identify owners, and ensure fee schedules and notice forms conform to regulatory prescriptions. Administrative and evidentiary lapses in these areas are the main sources of operational and litigation risk.
How to comply
Compliance under the Act requires both procedural and substantive practices by authorities, authorised officers, occupiers of private land, scheme operators and responsible persons. The Act sets time limits, notice and record‑keeping obligations, and fee recovery mechanisms; meeting those requires clear internal protocols.
For authorities and authorised officers:
Appoint authorised officers in writing and issue identification documents that meet s 45(3) requirements, ensuring electronic ID options are operational (s 44-45). Train officers to produce identification when requested (s 45(4)).
Develop standard operating procedures (SOPs) for forming a reasonable belief that property is unattended, and document reasons contemporaneously. The Act conditions takings on reasonable belief (s 18(1), s 25(1)), and regulations may specify matters to be considered (s 18(3), s 25(3)). SOPs minimise challenge risk in review or court proceedings.
Create a formal area of operations map and inter‑authority arrangement protocol for actions outside an officer’s area (s 47(1)-(2)). Record invitations to enter private land where occupiers invite officers (s 47(4)).
Establish procedures for immediate care or storage of animals and items after seizure, including nominating places of care and storage (s 21(3), s 11). Ensure places meet the definition of 'appropriate' given the animal’s needs and likely period of retention (s 10).
Implement owner identification and notification workflows. Authorities must take reasonable steps to identify owners and notify them before destroying or disposing of property (s 29). Notices must comply with regulatory form requirements (s 29(1)(b); s 31(3)).
Maintain robust records as required by s 33: descriptions of property, dates and locations of seizure, details of places of care/storage, returns or disposals, and other prescribed information. Ensure records are available for public inspection per regulations (s 33(3)).
Publish a fees schedule decided in writing under s 55(2), ensure fees do not exceed maximums prescribed by regulation (s 55(6)), and maintain invoices and recovery documentation to support debt recovery under s 52.
Where property is of low value and may be destroyed under s 31, ensure officers have made "all reasonable steps" to identify owners and given the required written notice allowing at least 3 days for application before destruction (s 31(2)-(3)).
For class 3 motor vehicles, coordinate promptly with NSW Police under s 56 to obtain owner particulars and incorporate police response times into holding and notice timelines.
For occupiers of private land:
If taking possession of an unattended animal, follow s 24 closely: contact the responsible person within 24 hours if identity is known and return within 4 days; if unknown, keep up to 4 days while taking reasonable steps to identify and then either return or contact an authority; or contact an authority immediately if you do not wish to return the animal (s 23-24). Document attempted contacts and steps taken to identify the owner.
If charging fees to the animal’s owner, ensure the amount is the total of fees permitted under s 55 and provide a notice stating the fees (s 55(3)). Recover unpaid fees as a debt or via court order if necessary (s 24(2)-(3), s 52).
For responsible persons, hirers, scheme operators and businesses:
Implement operational controls to prevent items being left unattended, especially in public places: maintain redistribution and collection logistics for share bikes and other class 2 items, define user terms that allocate responsibility, monitor fleets and respond to authorised officer directions under s 28, and keep insurance and financial reserves available for potential s 52 debts and fines.
Prepare procedures for dealing with penalty notices and the Fines Act nomination mechanics, including a process for approved nomination notices within 21 or 90 days where applicable (s 39(3)-(5)). Keep records evidencing inability to identify the person in control with reasonable diligence where that defence is to be used (s 39(3)(b), s 39(4)(b)).
The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act.
Division 2 Key concepts
Division 2 Key concepts
Division 2 Key concepts
5 Meaning of “animal”
5 Meaning of “animal”
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”
6 Meaning of “class 1 item”
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”
7 Meaning of “class 2 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”
8 Meaning of “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”
9 Meaning of “items”
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”
10 Meaning of “place of care”
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”
11 Meaning of “place of storage”
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
12 When authorised officers have “possession” of property
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.
s 12: Am 2022 No 59, Sch 2.38[1] [2].
13 Meaning of “property”
13 Meaning of “property”
13 Meaning of “property”
In this Act, property means—
(a) an animal, or
(b) an item.
14 Meaning of “public place”
14 Meaning of “public place”
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
15 Meaning of “responsible persons” for property
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—
(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.
15
1
a person who opens a gate that releases an animal
15
2
a person who leaves a shopping trolley unattended
16 Meaning of “unattended”
16 Meaning of “unattended”
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
Division 3 Application of Act
Division 3 Application of Act
17 Act to bind Crown
17 Act to bind Crown
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
Part 3 Dealing with unattended property
Part 3 Dealing with unattended property
Division 1 Unattended animals
Division 1 Unattended animals
Division 1 Unattended animals
18 Authorised officers may take possession of unattended animals
18 Authorised officers may take possession of 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.
s 18: Am 2022 No 59, Sch 2.38[3].
19 Special arrangements for stock animals in emergencies
19 Special arrangements for stock animals in emergencies
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
20 Authorised officers may take possession of dogs only in certain areas
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
21 Authorised officers to ensure animals taken to place of care
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
22 Authorised officers may destroy animals taken into possession in certain circumstances
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 anima
This is an opening excerpt, not the complete document.