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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to regulate second-hand dealers, pawnbrokers, auctioneers of
second-hand goods and second-hand markets; to repeal the Second-hand Dealers
and Pawnbrokers Act 1996; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Application of
Act
5 Non-derogation
6 Commissioner to be responsible for administration
of Act
7 Criminal intelligence
Part 2—Licences and approvals
8 Requirement
to be licensed
9 Requirement to be approved
10 Application for licence or
approval
11 Applications to be furnished to Commissioner of
Police
12 Entitlement to be licensed or approved
13 Factors to be taken
into account in deciding whether to grant licence or
approval
14 Conditions
15 Appeals
16 Power of Commissioner to require
photograph and information
17 Identification to be carried
18 Duration of
licence or approval
19 Change of particulars relating to licence or
approval
20 Commissioner may require surrender of licence or approval
etc
Part 3—Regulation of licensees
Division 1—Provisions applicable to licensees
generally
21 Prescribed transactions involving second-hand
goods
22 Labelling of prescribed goods
23 Retention of prescribed goods
before sale
24 Staffing records
25 Power of Commissioner of Police to
prohibit employee or agent from working for licensee
Division 2—Additional provisions applicable to
pawnbrokers
26 Preliminary
27 Information to be provided to person
pawning goods
28 Replacement of pawn ticket
29 Redemption
30 Extension
of redemption period
31 Sale of pawned goods at end of redemption
period
32 Fees and charges in respect of sale of pawned
goods
33 Pawnbroker not to purchase pawned goods
Part 4—Regulation of
auctioneers
34 Consignment of prescribed goods for auction to be
supervised
35 Records relating to prescribed goods consigned for
auction
Part 5—Regulation of markets
36 Market to be
supervised
37 Sale of prescribed goods at market
38 Records relating to
prescribed goods sold at market
Part 6—Special powers to suspend or cancel licence or
approval
39 Suspension or cancellation of licence or
approval—prescribed offences
40 Suspension of licence or approval in
urgent circumstances
Part
7—Discipline
41 Interpretation
42 Cause for disciplinary
action
43 Complaints
44 Hearing by Court
45 Procedure on hearing of
complaint
46 Disciplinary action
47 Contravention of orders
48 Joinder
of Commissioner and Commissioner of Police as parties
Part 8—Enforcement
49 Exercise of powers
under Fair Trading Act 1987
50 Powers of entry and
inspection
Part 9—Barring
orders
51 Interpretation
52 Barring orders
53 Issue of barring
order in absence of respondent
54 Service
55 Variation or revocation of
barring order
56 Burden of proof
Part 10—Miscellaneous
57 Where goods
suspected of being stolen
58 Offence to deal with child or intoxicated
person
59 No contracting out
60 False or misleading
information
61 Statutory declaration
62 Investigations
63 Register of
licensees and approved persons
64 General defence
65 Liability for act or
default of officer, employee or agent
66 Offences by directors of bodies
corporate
67 Service of documents
68 Prosecutions
69 Evidentiary
provision
70 Annual report
71 Regulations
Schedule 1—Repeal and transitional
provisions
Part 1—Repeal
1 Repeal
Part 2—Transitional provisions
2 Act applies
to transactions occurring after commencement
3 Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Second-hand Goods
Act 2009.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
approval means an approval under Part 2;
approved person means a person granted an approval;
auctioneer means a person who carries on a business that
consists of, or includes, the sale of second-hand goods on behalf of other
persons only by 1 or both of the following methods:
(a) auction of the goods;
(b) negotiation immediately after an auction of the goods;
authorised officer means—
(a) the Commissioner; or
(b) an authorised officer under the Fair Trading Act 1987;
or
(c) a police officer;
Commissioner means the Commissioner for Consumer
Affairs;
Court means the Administrative and Disciplinary Division of
the District Court;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
director of a body corporate includes—
(a) a person occupying or acting in the position of director or member of
the governing body of the body corporate, by whatever name called and whether or
not validly appointed to occupy or duly authorised to act in the position;
and
(b) any person in accordance with whose directions or instructions the
directors or members of the governing body of the body corporate are accustomed
to act;
goods means any form of personal property other
than—
(a) intangible property; or
(b) perishable food items; or
(c) live animals or plants; or
(d) property of a kind prescribed by regulation;
licence means a licence under Part 2;
market operator means a person who operates a second-hand
market;
pawn agreement means an agreement by which goods are
pawned;
pawnbroker means a person who carries on a business that
consists of, or includes, lending money on the security of pawned
goods;
prescribed goods means second-hand goods of a kind prescribed
by regulation for the purposes of this definition;
prescribed transaction means—
(a) entering into a pawn agreement in relation to goods; or
(b) taking possession of prescribed goods; or
(c) agreeing to buy, take on consignment or act as agent for the sale of
prescribed goods;
resale, in relation to second-hand goods,
includes—
(a) sale of the goods in an altered form or condition; or
(b) sale of goods that incorporate the goods; or
(c) sale of goods manufactured or produced from the goods;
second-hand dealer means a person who carries on a business
that consists of, or includes—
(a) buying second-hand goods for the purpose of resale; or
(b) taking second-hand goods on consignment for the purpose of resale;
or
(c) acting as an agent for the resale of second-hand goods,
but does not include a pawnbroker or an auctioneer;
second-hand goods means goods—
(a) that have been used for a purpose not connected with their manufacture
or sale; or
(b) that have come into a person's possession other than as a
manufacturer, or wholesale seller, of the goods or a retailer who has purchased
the goods by wholesale,
and includes—
(a) the goods in an altered form or condition; or
(b) goods that incorporate the goods; or
(c) goods manufactured or produced from the goods;
second-hand market means a market at which second-hand goods
are sold (whether or not any other goods are also sold there);
sell includes—
(a) auction, barter or exchange; or
(b) offer, or expose, for sale, auction, barter or exchange; or
(c) cause or permit to be offered, or exposed, for sale, auction, barter
or exchange;
stolen goods includes goods obtained by any unlawful
means.
(2) For the purposes of this Act, goods will be regarded as being in the
possession of a person when they are at any premises or place that is occupied
by, or is under the control of, the person, or an employee or agent of the
person, or when they are in any vehicle that is under the control of the person,
or an employee or agent of the person.
(3) For the purposes of this Act, the premises at which a person carries
on business will be taken to include premises at which goods are stored for the
purposes of the business.
(1) Nothing in this Act applies in relation to an activity undertaken in
accordance with a licence issued under another Act.
(2) The Governor may, by regulation, modify or exclude the application of
this Act in relation to persons, goods or transactions of a specified
class.
(3) The Minister may, by notice in writing to a person—
(a) exempt the person from the application of this Act or a specified
provision of this Act (either unconditionally or subject to conditions);
or
(b) vary or revoke a notice under this section.
(1) The provisions of this Act are in addition to, and do not derogate
from, the provisions of any other Act.
(2) The provisions of this Act do not limit, or derogate from, any civil
remedy at law or in equity.
6—Commissioner to
be responsible for administration of Act
The Commissioner is responsible, subject to the control and directions of
the Minister, for the administration of this Act.
(1) No information provided by the Commissioner of Police to the
Commissioner may be disclosed to any person (except to the Minister, the
Minister responsible for the administration of the Fair Trading
Act 1987, a court or a person to whom the Commissioner of Police
authorises its disclosure) if the information is classified by the Commissioner
of Police as criminal intelligence.
(2) If the Commissioner—
(a) refuses an application for a licence or approval; and
(b) the decision to do so is made because of information that is
classified by the Commissioner of Police as criminal intelligence,
the Commissioner is not required to provide any grounds or reasons for the
decision other than that to grant the application would be contrary to the
public interest.
(3) If the Commissioner of Police lodges an objection to an application
under section 11 because of information that is classified by the
Commissioner of Police as criminal intelligence—
(a) the Commissioner of Police is not required to serve a copy of the
notice of objection on the applicant; and
(b) the Commissioner must, before making a decision in relation to the
application, advise the applicant in writing that the Commissioner of Police has
objected to the application on the ground that to grant the application would be
contrary to the public interest.
(4) If the Commissioner of Police makes a decision to issue a notice under
section 25 because of information that is classified by the Commissioner of
Police as criminal intelligence, the only reason required to be given is that
the decision was made on public interest grounds.
(5) If an authorised officer lodges a complaint under Part 7 in respect of
a person because of information that is classified by the Commissioner of Police
as criminal intelligence, the complaint need only state that it would be
contrary to the public interest if the person were to be, or continue to be,
licensed or approved.
(6) In any proceedings under this Act, the court determining the
proceedings—
(a) must, on the application of the Commissioner of Police, take steps to
maintain the confidentiality of information classified by the Commissioner of
Police as criminal intelligence, including steps to receive evidence and hear
argument about the information in private in the absence of the parties to the
proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner of Police by way of affidavit.
(7) The Commissioner of Police may not delegate the function of
classifying information as criminal intelligence for the purposes of this Act
except to a Deputy Commissioner or Assistant Commissioner of Police.
(1) A person must not—
(a) act as; or
(b) advertise or otherwise hold himself or herself out as,
a second-hand dealer or pawnbroker unless licensed under this
Part.
Maximum penalty: $20 000.
(2) Subsection (1) does not apply to a second-hand
dealer—
(a) who does not act as a second-hand dealer in relation to prescribed
goods; or
(b) who only acts as a second-hand dealer in relation to prescribed goods
that have been received by way of trade-in.
(3) Goods will only be taken to be received by way of trade-in for the
purposes of this section if the goods are received as payment (in whole or in
part) for other goods.
A person must not act as, or advertise or otherwise hold himself or herself
out as, an approved person unless approved under this Part.
Maximum penalty: $20 000.
10—Application
for licence or approval
(1) An application for a licence or for an approval must—
(a) be made to the Commissioner in the manner and form approved by the
Commissioner; and
(b) be accompanied by the fee fixed by regulation.
(2) An application for an approval may only be made by a natural
person.
(3) An applicant for a licence or approval must provide the Commissioner
with such evidence as the Commissioner thinks appropriate as to the identity,
date of birth and address of—
(a) in the case of an applicant for a licence that is a body
corporate—each director of the body corporate; or
(b) in any other case—the applicant,
and any other information required by the Commissioner for the purposes of
determining the application (including, in the case of a licence, information
relating to the premises at which, and business name under which, the licensee
intends to carry on business in accordance with the licence).
(4) An identity card issued to a natural person who is the holder of a
licence or approval will include a photograph of the holder of the licence or
approval; consequently, an applicant who is a natural person may be required by
the Commissioner—
(a) to attend at a specified place for the purpose of having the
applicant's photograph taken; or
(b) to supply the Commissioner with 1 or more photographs of the applicant
as specified by the Commissioner.
(5) If an applicant has previously failed to pay a fee or penalty that
became payable under this Act, the Commissioner may require the applicant to pay
the whole or a specified part of the fee or penalty.
(6) The Commissioner may, by notice in writing, require an applicant,
within a time fixed by the notice (which may not be less than 28 days after
service of the notice), to comply with any requirement under this section to the
Commissioner's satisfaction.
(7) If the applicant fails to comply with the notice under
subsection (6), the Commissioner may, without further notice, refuse the
application but keep the fee that accompanied the application.
11—Applications
to be furnished to Commissioner of Police
(1) The Commissioner must, in relation to each application for a licence
or approval—
(a) give the Commissioner of Police a copy of the application;
or
(b) notify the Commissioner of Police of the identity of the applicant or,
if the applicant is a body corporate, the identity of each director of the body
corporate.
(2) As soon as reasonably practicable following receipt of an application,
or information in respect of an application, under subsection (1), the
Commissioner of Police—
(a) must make available to the Commissioner information about criminal
history; and
(b) may make available to the Commissioner other information to which the
Commissioner of Police has access,
relevant to whether the application should be granted.
(3) The Commissioner of Police may, following receipt of an application,
or information in respect of an application, under subsection (1), object
to the application by notice in writing provided to the Commissioner within the
prescribed period.
(4) A notice of objection under subsection (3) must state grounds for
the objection.
(5) Subject to section 7, a copy of the notice of objection must be
served by the Commissioner on the applicant as soon as reasonably practicable
after the notice is received by the Commissioner.
(6) The Commissioner must, before deciding whether to grant or refuse the
application, give the applicant a reasonable opportunity to respond to the
notice of objection.
12—Entitlement to
be licensed or approved
(1) A natural person is entitled to be licensed or approved if the
person—
(a) is of or above the age of 18 years; and
(b) has not been convicted of an offence of a class prescribed by the
regulations for the purposes of this section; and
(c) is not suspended or disqualified from practising or carrying on a
similar occupation, trade or business under a law of this State, the
Commonwealth, another State or a Territory of the Commonwealth; and
(d) in the case of an applicant for a licence—
(i) is not an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; and
(ii) has not, during the period of 5 years preceding the application,
been a director of a body corporate wound up for the benefit of
creditors—
(A) when the body was being so wound up; or
(B) within the period of 6 months preceding the commencement of the
winding up; and
(e) is a fit and proper person to be the holder of a licence or
approval.
(2) A body corporate is entitled to be licensed if—
(a) the body corporate—
(i) is not suspended or disqualified from practising or carrying on an
occupation, trade or business under a law of this State, the Commonwealth,
another State or a Territory of the Commonwealth; and
(ii) is not being wound up and is not under official management or in
receivership; and
(b) no director of the body—
(i) has been convicted of an offence of a class prescribed by the
regulations; or
(ii) is suspended or disqualified from practising or carrying on an
occupation, trade or business under a law of this State, the Commonwealth,
another State or a Territory of the Commonwealth; or
(iii) has, during the period of 5 years preceding the application for
the licence, been a director of a body corporate wound up for the benefit of
creditors—
(A) when the body was being so wound up; or
(B) within the period of 6 months preceding the commencement of the
winding up; and
(c) each director of the body is a fit and proper person to be the
director of a body that is the holder of a licence.
13—Factors
to be taken into account in deciding whether to grant licence or
approval
(1) In deciding whether a person is a fit and proper person to hold a
licence or approval, or to be the director of a body corporate that is the
holder of a licence, the Commissioner must take into
consideration—
(a) the reputation, honesty and integrity of the person; and
(b) the reputation, honesty and integrity of people with whom the person
associates or has associated.
(2) If the Commissioner of Police has objected to an application for a
licence or approval under section 11(3), the Commissioner must take into
consideration the grounds for the objection when assessing the
application.
(3) An application for a licence or approval can only be granted if the
Commissioner is satisfied that to grant the application would not be contrary to
the public interest.
(1) Conditions may be imposed by the Commissioner on the grant of a
licence or approval and may be varied or revoked by the Commissioner at any time
on application by the holder of the licence or approval.
(2) The holder of a licence or approval must not contravene, or fail to
comply with, a condition of the licence or approval.
Maximum penalty: $20 000.
(1) An applicant for a licence or approval may appeal to the Court against
a decision of the Commissioner refusing the application or imposing a condition
on the licence or approval.
(2) A licensee or approved person may appeal against a decision of the
Commissioner refusing to vary or revoke a condition of a licence or
approval.
(3) Subject to subsection (4)(b), an appeal must be instituted within
1 month of the making of the decision appealed against.
(4) Subject to section 7—
(a) the Commissioner must, if so required by the appellant, state in
writing the reasons for the Commissioner's decision; and
(b) if the reasons of the Commissioner are not given in writing at the
time of making the decision and the appellant (within 1 month of the making
of the decision) requires the Commissioner to state the reasons in writing, the
time for instituting an appeal runs from the time at which the appellant
receives the written statement of those reasons.
16—Power
of Commissioner to require photograph and information
The Commissioner may, by notice in writing, require a licensee or an
approved person, within a time fixed by the notice (which may not be less than
28 days after service of the notice)—
(a) to—
(i) attend at a specified place for the purpose of having a photograph of
the licensee or approved person taken or, in the case of a licensee that is a
body corporate, ensure that any specified director of the body corporate attends
at a specified place for the purpose of having a photograph of the director
taken; or
(ii) supply the Commissioner with 1 or more photographs of the
licensee, approved person or director as specified by the Commissioner;
or
(b) to provide the Commissioner with such evidence as the Commissioner
thinks appropriate as to the identity and residential address of the licensee,
approved person or director and information about any other specified
matters.
17—Identification
to be carried
(1) The Commissioner must issue each licensee who is a natural person and
each approved person with an identity card in a form approved by the
Commissioner.
(2) A natural person who is a licensee or an approved person must, at all
times when performing functions as a licensee or approved person, carry his or
her identity card and produce it forthwith if requested to do so
by—
(a) an authorised officer; or
(b) a person with whom the licensee or approved person has dealings as a
licensee or approved person.
Maximum penalty: $1 250.
Expiation fee: $160.
18—Duration
of licence or approval
(1) A licence or approval remains in force (except for any period for
which it is suspended) until—
(a) the licence or approval is surrendered or cancelled; or
(b) the licensee or approved person dies or, in the case of a licensed
body corporate, is dissolved.
(2) A licensee or approved person must, each year not later than the date
fixed by regulation—
(a) pay to the Commissioner the fee fixed by regulation; and
(b) lodge with the Commissioner a return in the manner and form required
by the Commissioner.
(3) If a licensee or approved person fails to pay the annual fee or lodge
the annual return in accordance with subsection (2) or to comply with a
notice under section 16, the Commissioner may, by notice in writing,
require the licensee or approved person to make good the default and, in
addition, to pay to the Commissioner the amount fixed by regulation as a penalty
for default.
(4) If the licensee or approved person fails to comply with the notice
within 28 days after service of the notice, the licensee's licence or the
approved person's approval is cancelled.
(5) The Commissioner must notify the licensee or approved person in
writing of the cancellation.
(6) A licensee or approved person may surrender the licence or
approval.
(7) In this section—
approved person includes an approved person whose approval
has been suspended;
licensee includes a licensee whose licence has been
suspended.
19—Change of
particulars relating to licence or approval
(1) A licensee or approved person must, within 14 days after a change
to any of the particulars that were required by the Commissioner in determining
the person's application for a licence or approval under section 10
(including, in the case of a licensee, information relating to the premises at
which, and business name under which, the licensee carries on business in
accordance with the licence), provide written notice of the change to the
Commissioner.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) The Commissioner must provide a copy of each notice received under
this section to the Commissioner of Police.
20—Commissioner
may require surrender of licence or approval etc
(1) If a licence or approval is suspended or cancelled under this Act, the
Commissioner may, by notice in writing to the licensee or approved person,
require the licensee or approved person to surrender, within a period specified
in the notice, the licence or approval and any identity card issued to the
person under this Act.
(2) A person who, without reasonable excuse, fails to surrender a licence,
approval or identity card in accordance with a requirement under this section is
guilty of an offence.
Maximum penalty: $1 250.
Part
3—Regulation of licensees
Division
1—Provisions applicable to licensees generally
21—Prescribed
transactions involving second-hand goods
(1) A licensee must ensure that each prescribed transaction that occurs in
the course of, or for the purposes of, the licensee's business is conducted or
supervised by a natural person, being the licensee or an approved
person.
Maximum penalty: $20 000.
(2) A licensee must make and retain records in relation to prescribed
transactions in accordance with the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) A licensee must transfer to the Commissioner of Police, in accordance
with the regulations, prescribed particulars of each record required to be made
and retained under this section that relates to prescribed goods.
Maximum penalty: $10 000.
(4) The regulations may require the electronic transfer of
information.
22—Labelling
of prescribed goods
(1) A licensee must ensure that, if the licensee takes possession of any
prescribed goods in the course of, or for the purposes of, the licensee's
business, the goods are marked or labelled with a unique identification code in
accordance with the requirements prescribed by the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) If the prescribed goods consist of a set of goods intended for use
together and kept in a container or bundled together, the identification code
need only be applied to the container or bundle.
23—Retention of
prescribed goods before sale
(1) If a licensee takes possession of prescribed goods in the course of,
or for the purposes of, the licensee's business, the licensee—
(a) must not alter the form of the goods or part with possession of the
goods until at least 14 days after the day on which the licensee
transferred the prescribed particulars of the record relating to the goods to
the Commissioner of Police in accordance with section 21(3); and
(b) must ensure that, during the period referred to in
paragraph (a)—
(i) the goods are kept at the premises at which the goods were received or
premises notified to the Commissioner for the purposes of this section;
and
(ii) the goods are not moved to any other place.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) This section does not apply to—
(a) goods temporarily returned to the licensee for the purposes of repair
or maintenance; or
(b) goods that the licensee takes possession of pursuant to a pawn
agreement.
A licensee must make and retain records in relation to the persons working
in, or for the purposes of, the licensee's business in accordance with the
regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
25—Power
of Commissioner of Police to prohibit employee or agent from working for
licensee
(1) If a person is found guilty of an offence of a kind prescribed by the
regulations for the purposes of this section, the Commissioner of Police may, by
notice in writing to the person, prohibit the person from working as an employee
or agent of a licensee either permanently or for a specified period.
(2) A notice given by the Commissioner of Police under subsection (1)
has effect from a date specified in the notice.
(3) A person given a notice under this section may appeal to the Court
against the decision to issue the notice.
(4) Subject to subsection (5)(b), an appeal must be instituted within
1 month of the day on which the notice was given to the person.
(5) Subject to section 7—
(a) the Commissioner of Police must, if so required by the appellant,
state in writing the reasons for the Commissioner's decision; and
(b) if the reasons of the Commissioner are not given in writing at the
time of making the decision and the appellant (within 1 month of the making
of the decision) requires the Commissioner to state the reasons in writing, the
time for instituting an appeal runs from the time at which the appellant
receives the written statement of those reasons.
Division
2—Additional provisions applicable to pawnbrokers
In this Division—
entitled person, in relation to pawned goods,
means—
(a) the person who pawned the goods; or
(b) an executor or administrator of the estate of that person;
or
(c) a person who is otherwise lawfully authorised to deal with the
property of that person;
extension agreement means an agreement under section 30
to extend the redemption period in respect of pawned goods;
pawn ticket—see section 27(1);
redemption period, in relation to pawned goods,
means—
(a) the period of 1 month commencing on the day the goods were
pawned; or
(b) such longer period as may be agreed under an extension
agreement;
surplus proceeds, in relation to the sale of pawned goods,
means any amount realised from the sale of pawned goods after deduction of the
amount owing to the pawnbroker under the pawn agreement (being the principle
specified in the agreement, interest and any applicable fees and
charges).
27—Information
to be provided to person pawning goods
(1) A pawnbroker must give a person who pawns goods a document (a
pawn ticket) which includes a signed copy of the pawn agreement
setting out—
(a) the interest and the fees and charges that are or may be payable
including, as far as they are known or ascertainable—
(i) the amounts of the interest, fees and charges; and
(ii) the manner of calculating the amounts of the interest, fees and
charges; and
(b) the rights and obligations (as prescribed in the regulations) of the
parties to the agreement; and
(c) such other information as may be prescribed by the
regulations.
(2) No charge may be made for provision of the pawn ticket.
(3) A person who fails to comply with this section is guilty of an
offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) A pawn agreement is invalid if this section is not complied
with.
A pawnbroker must replace (without charge) a pawn ticket alleged by a
person to have been lost, stolen or destroyed if the person requesting the
replacement ticket is an entitled person and verifies his or her identity in
accordance with the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(1) Pawned goods may be redeemed by an entitled person—
(a) during the redemption period; or
(b) if the redemption period has expired, before the goods are sold or
consigned for auction.
(2) A pawnbroker must, when permitting pawned goods to be redeemed, comply
with any requirements prescribed by the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) A pawnbroker must, during the redemption period, keep the pawned goods
at the premises at which the goods were received, or premises notified to the
Commissioner for the purposes of this section, and must not move the goods to
any other premises.
Maximum penalty: $2 500.
Expiation fee: $210.
(4) A pawnbroker must not sell any pawned goods during the redemption
period.
Maximum penalty: $5 000.
Expiation fee: $315.
(5) A pawnbroker must not alter the form of pawned goods during the
redemption period.
Maximum penalty: $2 500.
Expiation fee: $210.
(6) A pawnbroker must not charge interest in respect of any period after
the end of the redemption period in relation to pawned goods.
Maximum penalty: $2 500.
Expiation fee: $210.
30—Extension
of redemption period
(1) A pawnbroker may enter into an extension agreement with an entitled
person.
(2) A pawnbroker must, when entering into an extension agreement with a
person, comply with any requirements prescribed by the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) A pawnbroker must record, against the entry relating to the pawn
agreement in the records made under section 21(2), details of the extension
agreement as required by the regulations.
(4) A pawnbroker must ensure that the original version of the extension
agreement is signed by both the pawnbroker and the entitled person entering into
the agreement, and an extension agreement is invalid if this subsection is not
complied with.
(5) A pawnbroker must give the entitled person a signed copy of the
extension agreement without charge.
(6) A redemption period may be extended under this section even if the
period has expired.
(7) A redemption period may not be extended otherwise than under this
section.
(8) A person who fails to comply with this section is guilty of an
offence.
Maximum penalty: $5 000.
Expiation fee: $315.
31—Sale of pawned
goods at end of redemption period
(1) If at the end of a redemption period pawned goods have not been
redeemed, the pawnbroker must, within a reasonable time, sell the goods in a
manner conducive to securing the best price reasonably obtainable.
Maximum penalty: $5 000.
(2) If in proceedings a question arises as to whether a pawnbroker has
complied with subsection (1), the onus of proving compliance is on the
pawnbroker.
(3) A pawnbroker must record, against the entry relating to the pawn
agreement in the records made under section 21(2), details of the sale of
the goods as required by the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(4) The pawnbroker must, at the request of an entitled person, allow the
person to inspect the record relating to the sale.
Maximum penalty: $2 500.
Expiation fee: $210.
(5) Any surplus proceeds arising from the sale of pawned goods must be
paid, on request, to an entitled person (provided the request is made before the
end of the prescribed period).
Maximum penalty: $2 500.
Expiation fee: $210.
32—Fees and
charges in respect of sale of pawned goods
(1) The fees and charges in respect of the sale of pawned goods that may
be deducted from the proceeds of the sale of the goods include fees and charges
relating to—
(a) the reasonable costs of storing the goods; and
(b) administrative costs incurred in relation to the goods; and
(c) the costs of, or reasonably incidental to, the sale; and
(d) if expenses are incurred repairing the goods for the purposes of sale
and the pawnbroker holds a receipt for the expenses—those
expenses.
(2) The regulations may prescribe kinds or classes of fees or charges that
may or may not be included as fees or charges in respect of the sale of pawned
goods.
33—Pawnbroker not
to purchase pawned goods
(1) A pawnbroker, or a person acting on behalf of a pawnbroker, must not
buy goods that have been pawned to and are being sold by, or on behalf of, the
pawnbroker.
(2) In the case of a partnership or body corporate carrying on business as
a pawnbroker, a person who is—
(a) in the case of a partnership—a partner; or
(b) in the case of a body corporate—
(i) the body corporate; or
(ii) an officer or director of the body corporate; or
(c) in either case—acting on behalf of a person referred to in
paragraph (a) or (b),
must not buy goods that have been pawned to and are being sold by, or on
behalf of, the pawnbroker.
(3) A sale of goods in contravention of this section is void and of no
effect.
(4) A person who fails to comply with this section is guilty of an
offence.
Maximum penalty: $2 500.
Expiation fee: $210.
Part 4—Regulation
of auctioneers
34—Consignment of
prescribed goods for auction to be supervised
(1) An auctioneer must ensure that any consignment of prescribed goods for
auction in the course of the auctioneer's business is conducted or supervised by
an approved person.
Maximum penalty: $20 000.
(2) When conducting or supervising a consignment of prescribed goods for
auction, an approved person must ensure that the identity of the consigner of
the goods is verified in accordance with the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
35—Records
relating to prescribed goods consigned for auction
(1) An auctioneer must make and retain records in relation to prescribed
goods consigned for auction in accordance with the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) An auctioneer must transfer to the Commissioner of Police, in
accordance with the regulations, prescribed particulars of each record required
to be made and retained under this section.
Maximum penalty: $10 000.
(3) The regulations may require the electronic transfer of
information.
(1) A market operator must ensure that a second-hand market operated by
the market operator is supervised by an approved person at all times during
which the market is open to purchasers.
Maximum penalty: $20 000.
(2) This section does not apply if the market operator establishes that he
or she has taken reasonable measures to ensure that prescribed goods are not
sold at the second-hand market.
37—Sale of
prescribed goods at market
(1) A person must not sell prescribed goods at a second-hand market
without the permission of the approved person responsible for supervising the
market at which the goods are to be sold.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) When permitting a person to sell prescribed goods at a market, the
approved person must ensure that the identity of the seller is verified in
accordance with the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
38—Records
relating to prescribed goods sold at market
(1) A market operator must make and retain records in relation to the sale
of prescribed goods at a second-hand market in accordance with the
regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A market operator must transfer to the Commissioner of Police, in
accordance with the regulations, prescribed particulars of each record required
to be made and retained under this section.
Maximum penalty: $10 000.
(3) The regulations may require the electronic transfer of
information.
Part 6—Special
powers to suspend or cancel licence or approval
39—Suspension or
cancellation of licence or approval—prescribed
offences
(1) If a licensee or approved person is charged with a prescribed offence,
the Commissioner may, by notice in writing given to the licensee or approved
person—
(a) suspend the licence or approval from a date specified in the notice;
or
(b) impose such conditions on the licence or approval as the Commissioner
thinks fit,
until proceedings for the offence are determined by a court or are
withdrawn (or for any shorter period specified in the notice).
(2) If a licensee or approved person is found guilty of a prescribed
offence, the Commissioner may, by notice in writing given to the licensee or
approved person—
(a) cancel the licence or approval from a date specified in the notice;
and
(b) impose any conditions the Commissioner thinks fit as to the conduct of
the person or the person's business until the cancellation takes
effect.
(3) In this section—
prescribed offence means an offence of a class prescribed by
regulation for the purposes of this section.
40—Suspension
of licence or approval in urgent circumstances
(1) If the Commissioner is of the opinion that—
(a) there are reasonable grounds to believe that a licensee or approved
person has engaged or is engaging in conduct that constitutes grounds for
disciplinary action under Part 7; and
(b) it is likely that the licensee or approved person will continue to
engage in that conduct; and
(c) there is a danger that a person or persons may suffer harm, or loss or
damage, as a result of the conduct of the licensee or approved person unless
action is taken urgently,
the Commissioner may, by notice served on the licensee or approved person,
suspend the licence or approval for a specified period (which may not exceed
6 months).
(2) If, during the suspension of a licence or approval under this section,
the Commissioner is satisfied that the facts and circumstances that gave rise to
the suspension have so altered that the suspension should be terminated, the
Commissioner must, by further notice specifying the date of termination,
terminate the suspension without delay and restore the licence or approval to
the person.
(3) A person whose licence or approval has been suspended under this
section may appeal to the District Court against the decision of the
Commissioner to suspend the licence or approval.
(4) Subject to subsection (6), an appeal must be instituted within
1 month of the making of the decision appealed against.
(5) The Commissioner must, if so required by the person whose licence or
approval has been suspended, state in writing the reasons for the Commissioner's
decision to suspend the licence or approval.
(6) If the reasons of the Commissioner are not given in writing at the
time of making the decision and the person (within 1 month of the making of
the decision) requires the Commissioner to state the reasons in writing, the
time for instituting an appeal runs from the time at which the person receives
the written statement of those reasons.
(7) The District Court must hear and determine an appeal under this
section as expeditiously as possible.
In this Part—
approved person includes a former approved person;
director of a body corporate includes a former director of
the body corporate;
licensee includes—
(a) —
(i) a second-hand dealer or former second-hand dealer; or
(ii) a pawnbroker or former pawnbroker,
required, or previously required, to be licensed under this Act (whether or
not currently or previously licensed); and
(b) a licensee (whether or not carrying on business as a second-hand
dealer or as a pawnbroker).
42—Cause for
disciplinary action
(1) There is proper cause for disciplinary action against a licensee or
approved person if—
(a) the licensee or approved person has acted contrary to an assurance
accepted by the Commissioner under the Fair Trading Act 1987;
or
(b) the licensee or approved person has acted contrary to this Act or
otherwise unlawfully, or improperly, negligently or unfairly, in the course of
performing functions as a licensee or approved person; or
(c) in the case of a licensee—the licensee, or any other person
employed or otherwise engaged in the business to which the licence relates, has
acted contrary to this Act or otherwise unlawfully, or improperly, negligently
or unfairly, in the course of carrying on, or being employed or otherwise
engaged in, that business; or
(d) the licence or approval of the licensee or approved person was
improperly obtained; or
(e) events have occurred such that the licensee or approved person would
not be entitled to be granted the licence or approval if he or she were to apply
for it; or
(f) in the case of a licensee who is a natural person, or an approved
person—
(i) the person is not a fit and proper person; or
(ii) it would be contrary to the public interest if the person were to be
or continue to be licensed or approved; or
(g) in the case of a licensee that is a body corporate—
(i) a director of the body corporate is not a fit and proper person;
or
(ii) it would be contrary to the public interest if the body corporate
were to be or continue to be licensed.
(2) Disciplinary action may be taken against each director of a body
corporate that is a licensee if there is proper cause for disciplinary action
against the body corporate.
(3) Disciplinary action may not be taken against a person in relation to
the act or default of another if that person could not reasonably be expected to
have prevented the act or default.
(4) This section applies in relation to conduct occurring before or after
the commencement of this Act.
An authorised officer may lodge with the Court a complaint setting out,
subject to section 7, matters that are alleged to constitute grounds for
disciplinary action under this Part.
(1) On the lodging of a complaint, the Court may conduct a hearing for the
purpose of determining whether the matters alleged in the complaint constitute
grounds for disciplinary action under this Part.
(2) Without limiting the usual powers of the Court, the Court may during
the hearing—
(a) allow an adjournment to enable the Commissioner to investigate or
further investigate matters to which the complaint relates; and
(b) allow the modification of the complaint or additional allegations to
be included in the complaint subject to any conditions as to adjournment and
notice to parties and other conditions that the Court may think fit to
impose.
45—Procedure on
hearing of complaint
(1) On the hearing of a complaint against a licensee or approved person,
the Court—
(a) is not bound by the rules of evidence but may inform itself as it
thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
(2) In determining whether there is proper cause for disciplinary action
against a licensee or approved person, regard may be had to such evidence of the
conduct (no matter when the conduct is alleged to have occurred) of the person
or persons with whom the licensee or approved person associates (or has
associated at any relevant time) as the Court considers relevant, including
information that existed at the time the licence or approval was granted,
regardless of whether that information was known or could have been made known
to the Commissioner at that time.
(1) On the hearing of a complaint, the Court may, if it is satisfied on
the balance of probabilities that there is proper cause for taking disciplinary
action against the person to whom the complaint relates, by order do 1 or
more of the following:
(a) reprimand the person;
(b) impose a fine not exceeding $20 000 on the person;
(c) suspend any licence or approval held by the person for a specified
period or until the fulfilment of stipulated conditions or until further
order;
(d) cancel any licence or approval held by the person;
(e) impose conditions or further conditions on any licence or approval
held by the person;
(f) disqualify the person from being licensed or approved under this
Act;
(g) prohibit the person from being employed or otherwise engaged in the
business of a licensee;
(h) prohibit the person from being a director of, or having an interest
in, a body corporate that is a licensee.
(2) The Court may—
(a) stipulate that a disqualification or prohibition is to
apply—
(i) permanently; or
(ii) for a specified period; or
(iii) until the fulfilment of stipulated conditions; or
(iv) until further order;
(b) stipulate that an order relating to a person is to have effect at a
specified future time and impose conditions as to the conduct of the person or
the person's business until that time.
(3) If—
(a) a person has been found guilty of an offence; and
(b) the circumstances of the offence form, in whole or in part, the
subject matter of the complaint,
the person is not liable to a fine under this section in respect of conduct
giving rise to the offence.
(1) If a person contravenes an order of the Court, the person is guilty of
an offence.
Maximum penalty: $35 000 or 6 months imprisonment.
(2) If a person—
(a) is employed or otherwise engaged in the business of a licensee;
or
(b) becomes a director of a body corporate that is a licensee,
in contravention of an order of the Court, that person and the licensee are
each guilty of an offence.
Maximum penalty: $35 000 or 6 months imprisonment.
48—Joinder of
Commissioner and Commissioner of Police as parties
(1) The Commissioner and the Commissioner of Police are each entitled to
be joined as a party to any proceedings of the Court under this Act.
(2) The Commissioner or the Commissioner of Police may appear personally
in any such proceedings or may be represented at the proceedings by
counsel.
49—Exercise of
powers under Fair Trading
Act 1987
(1) The powers of authorised officers under sections 77 and 78 of the
Fair Trading Act 1987 may be exercised by police officers for the
enforcement of this Act (in addition to any powers under this Part), and those
sections apply for that purpose as if police officers were authorised officers
under that Act.
(2) However, section 78(4) of the Fair Trading Act 1987
does not apply to a police officer in uniform.
50—Powers
of entry and inspection
(1) An authorised officer may—
(a) enter and remain on any premises, place or vehicle, that the officer
reasonably suspects is used by a person for, or in connection with carrying on
business as a second-hand dealer, pawnbroker, auctioneer or market operator
(and, if entry is refused, may employ such force as is reasonably necessary to
gain entry); and
(b) inspect any goods in such premises, place or vehicle.
(2) An authorised officer may—
(a) inspect any records kept by a second-hand dealer, pawnbroker,
auctioneer or market operator and, for that purpose, require the second-hand
dealer, pawnbroker, auctioneer or market operator, or an employee or agent of
the second-hand dealer, pawnbroker, auctioneer or market operator, to produce
the records (including a written record that reproduces in an understandable
form information stored by computer or other process);
(b) examine, copy or take extracts from records kept by a second-hand
dealer, pawnbroker, auctioneer or market operator, or require the second-hand
dealer, pawnbroker, auctioneer or market operator, or an employee or agent of
the second-hand dealer, pawnbroker, auctioneer or market operator, to provide a
copy of the records;
(c) remove and retain records kept by a second-hand dealer, pawnbroker,
auctioneer or market operator for so long as is reasonably necessary for the
purpose of making a copy of the record.
(3) An authorised officer may not exercise the power of entry conferred by
this section in relation to residential premises except—
(a) with the consent of the occupier of the premises; or
(b) on the authority of a warrant issued by a magistrate under this
section; or
(c) if there are reasonable grounds to suspect that the premises are used
on a continuing or regular basis as a place of business of a second-hand dealer,
pawnbroker, auctioneer or market operator.
(4) A magistrate may issue a warrant for the purposes of this section if
satisfied, by information given on oath, that the warrant is reasonably required
in the circumstances.
(5) An authorised officer may, in exercising a power under this section,
be accompanied by such assistants as may reasonably be required in the
circumstances.
(6) A person who—
(a) hinders an authorised officer in the exercise of powers under this
section; or
(b) refuses or fails to comply with a requirement made under this
section,
is guilty of an offence.
Maximum penalty: $5000.
In this Part—
barring offence means an offence of a class prescribed by
regulation for the purposes of this definition;
barring order see section 52(1);
Court means the Magistrates Court;
respondent means a person against whom a barring order is
sought.
(1) On a complaint made by a police officer, the Court may make an order
(a barring order) barring a person who has been charged with, or
found guilty of a barring offence from disposing of second-hand
goods—
(a) to, or through the agency of, a second-hand dealer, pawnbroker or
auctioneer; or
(b) at a second-hand market,
(either in general or in circumstances specified in the order).
(2) The Court may make a barring order if satisfied that it is in the
public interest to do so.
(3) A barring order may operate for a period specified in the order or
until further order.
(4) A person who contravenes or fails to comply with a barring order is
guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
53—Issue
of barring order in absence of respondent
(1) A barring order may be made in the absence of the respondent if the
respondent was required by summons or conditions of bail to appear at the
hearing of the complaint and failed to appear in obedience to the summons or
conditions.
(2) A barring order may be made in the absence of the respondent and
despite the fact that the respondent was not summoned or otherwise required to
appear at the hearing of the complaint, but in that case, the Court must summon
the respondent to appear before the Court to show cause why the order should not
be confirmed.
(3) The Court may make an order under subsection (2) on the basis of
evidence received in the form of an affidavit but, in that case—
(a) the deponent must, if the respondent so requires, appear personally at
the proceedings for confirmation of the order to give oral evidence of the
matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in
pursuance of such a requirement, the Court may not rely on the evidence
contained in the affidavit for the purpose of confirming the order.
(4) The Court may, from time to time without requiring the attendance of
any party, adjourn the hearing to which a respondent is summoned under
subsection (2) to a later date if satisfied that the summons has not been
served or that there is other adequate reason for the adjournment.
(5) The date fixed in the first instance for the hearing to which a
respondent is summoned under subsection (2) must be within 7 days of
the date of the order, and the date fixed under subsection (4) for an
adjourned hearing must be within 7 days of the date on which the
adjournment is ordered, unless the Court is satisfied—
(a) that a later date is required to enable the summons to be served;
or
(b) that there is other adequate reason for fixing a later date.
(6) A barring order made under subsection (2)—
(a) continues in force until the conclusion of the hearing to which the
respondent is summoned or, if the hearing is adjourned, until the conclusion of
the adjourned hearing; but
(b) will not be effective after the conclusion of the hearing to which the
respondent is summoned, or the adjourned hearing, unless the Court confirms the
order—
(i) on failure of the respondent to appear at the hearing in obedience to
the summons; or
(ii) having considered any evidence given by or on behalf of the
respondent; or
(iii) with the consent of the respondent.
(7) The Court may confirm a barring order in an amended form.
(8) If a hearing is adjourned under this section, the Court need not be
constituted at the adjourned hearing of the same judicial officer as ordered the
adjournment.
(1) A barring order must be served on the respondent personally and is not
binding on the respondent until it has been so served.
(2) If a barring order is confirmed in an amended form or is varied before
being confirmed or at any other time, the order in its amended form must be
served on the respondent personally and until so served—
(a) the variation is not binding on the respondent; but
(b) the order as in force prior to the variation continues to be binding
on the respondent.
(3) If a police officer has reason to believe that a person is subject to
a barring order that has not been served on the person, the member
may—
(a) require the person to remain at a particular place
for—
(i) so long as may be necessary for the order, and, if the order is
subject to confirmation, the summons to appear before the Court to show cause
why the order should not be confirmed, to be served on the person; or
(ii) 2 hours,
whichever is the lesser; and
(b) if the person refuses or fails to comply with the requirement or the
member has reasonable grounds to believe that the requirement will not be
complied with, arrest and detain the person in custody (without warrant) for the
period referred to in paragraph (a).
55—Variation or
revocation of barring order
(1) The Court may vary or revoke a barring order on
application—
(a) by a police officer; or
(b) by the respondent.
(2) An application for variation or revocation of a barring order may only
be made by the respondent with the permission of the Court and permission is
only to be granted if the Court is satisfied there has been a substantial change
in the relevant circumstances since the order was made or last varied.
(3) The Court must, before varying or revoking a barring order under this
section allow all parties a reasonable opportunity to be heard on the
matter.
In proceedings under this Part other than for an offence, the Court is to
decide questions of fact on the balance of probabilities.
57—Where
goods suspected of being stolen
(1) The Commissioner of Police may issue a second-hand dealer or
pawnbroker a written notice describing goods suspected of being stolen
goods.
(2) A notice referred to in subsection (1) will be taken to have been
issued to a licensee if the Commissioner of Police—
(a) has published the notice on a website; and
(b) has previously notified the licensee that such notices will be
published on that website.
(3) After a notice under subsection (1) has been issued to a
second-hand dealer or pawnbroker, he or she must—
(a) make such checks as are reasonably required to determine whether goods
that have been, or are being, dealt with in the course of his or her business
appear to be goods described in the notice; and
(b) if he or she suspects that any goods that have been, or are being,
dealt with in the course of his or her business are goods described in the
notice—notify the Commissioner of Police as soon as is reasonably
practicable in the manner specified in the notice.
Maximum penalty: $2 500.
(4) If a person claims to a second-hand dealer or pawnbroker that goods in
the possession of the second-hand dealer or pawnbroker are stolen goods and that
the person is entitled to possession of the goods, the second-hand dealer or
pawnbroker must—
(a) immediately give the claimant a notice in the form determined by the
Commissioner of Police to record the making of the claim (which notice must be
completed and signed by the claimant and the second-hand dealer or pawnbroker);
and
(b) immediately on completion and signing of the notice—
(i) give the claimant a copy of the notice; and
(ii) notify the Commissioner of Police of the claim in accordance with any
instructions specified in the notice; and
(c) keep a copy of the notice at the place at which the goods are
kept.
Maximum penalty: $2 500.
Expiation fee: $210.
(5) A second-hand dealer, pawnbroker or auctioneer must not, in the course
of, or for the purposes of, his or her business, engage in a prescribed
transaction with a person if he or she has reasonable grounds to believe that
the person is not legally entitled to deal with the goods the subject of the
prescribed transaction.
Maximum penalty: $20 000.
(6) A second-hand dealer, pawnbroker, auctioneer or market operator who
suspects for any reason that goods that have been, or are being, dealt
with—
(a) in the case of a market operator—at a market operated by the
market operator; or
(b) in any other case—in the course of the business of the
second-hand dealer, pawnbroker or auctioneer,
are stolen goods must immediately notify the Commissioner of
Police.
Maximum penalty: $5 000.
(7) A person must not, without the authorisation of the Commissioner of
Police, sell or part with possession of any goods in respect of which the person
is required to notify the Commissioner of Police under this section.
Maximum penalty: $20 000.
(8) The Commissioner of Police—
(a) may give a second-hand dealer or pawnbroker a notice in writing
requiring the second-hand dealer or pawnbroker not to sell or part with
possession of specified goods (being goods suspected of being stolen) during a
period specified in the notice; and
(b) may vary or revoke such a notice by subsequent notice given to the
second-hand dealer or pawnbroker.
(9) A second-hand dealer or pawnbroker must comply with a notice under
subsection (8).
Maximum penalty: $20 000.
(10) The Magistrates Court may, on application by a person entitled to the
possession of stolen goods that are or have been in the possession of a
second-hand dealer or pawnbroker, order—
(a) that the goods be returned to the person; or
(b) if the second-hand dealer or pawnbroker has sold or parted with
possession of the goods in contravention of subsection (7) or a notice
under subsection (8)—that the second-hand dealer or pawnbroker pay to
the person the value of the goods.
(11) On an application under subsection (10), the Court may make such
other orders as to compensation for damage to the goods or otherwise as it
thinks fit.
58—Offence to deal
with child or intoxicated person
(1) A person must not, in the course of a business—
(a) buy second-hand goods from a child or an intoxicated person;
or
(b) take second-hand goods on consignment from a child or an intoxicated
person; or
(c) agree with a child or an intoxicated person to act as an agent for the
resale of second-hand goods.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) A person must not enter into a pawn agreement with a child or an
intoxicated person.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) In this section—
child means a person under the age of 16;
intoxicated person means a person who is apparently affected
by alcohol or a drug.
An agreement or arrangement that is inconsistent with a provision of this
Act or purports to exclude, modify or restrict the operation of this Act is to
that extent void and of no effect.
60—False or
misleading information
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in any information provided, or record made, under this
Act.
Maximum penalty:
(a) if the person made the statement knowing that it was false or
misleading—$10 000;
(b) in any other case—$2 500.
If a person is required to provide information to the Commissioner or the
Commissioner of Police under this Act, the Commissioner or the Commissioner of
Police may require the information to be verified by statutory declaration and,
in that event, the person will not be taken to have provided the information as
required unless it has been verified in accordance with the requirements of the
Commissioner or the Commissioner of Police (as the case may be).
(1) The Commissioner of Police must, at the request of the Commissioner,
investigate and report on any matter relevant to—
(a) the determination of an application under this Act; or
(b) a matter that might constitute proper cause for disciplinary action
under this Act.
(2) The Commissioner of Police must, as soon as reasonably practicable
after becoming aware of information relevant to a matter that might constitute
proper cause for disciplinary action under this Act, make the information
available to the Commissioner.
63—Register of
licensees and approved persons
(1) The Commissioner must keep a register of persons licensed or approved
under this Act.
(2) The Commissioner must record on the register—
(a) the name in which a licensee carries on business as a second-hand
dealer or pawnbroker; and
(b) the address for service of a licensee or approved person (within the
meaning of section 67(2)); and
(c) any conditions to which a licence or approval is subject;
and
(d) disciplinary action taken against a person under this Act;
and
(e) a note of an assurance accepted by the Commissioner under the Fair
Trading Act 1987 in relation to a licensee or approved
person.
(3) If any of the following events occur in relation to a person who is
registered as being licensed or approved under this Act, or is a director of a
body corporate that is licensed under this Act, the Commissioner may record a
note of the event on the register:
(a) the person is convicted of an offence of a kind prescribed by
regulation;
(b) the person is suspended or disqualified from practising or carrying on
a similar occupation, trade or business under a law of this State, the
Commonwealth, another State or a Territory of the Commonwealth;
(c) the person becomes an insolvent under administration within the
meaning of the Corporations Act 2001 of the Commonwealth;
(d) a body corporate is wound up for the benefit of creditors and the
person was a director of the body corporate—
(i) when the body corporate was being so wound up; or
(ii) within the period of 6 months preceding the commencement of the
winding up;
(e) the person, being a body corporate, is being wound up or is under
official management or in receivership.
(4) A person may inspect the register on payment of the fee fixed by
regulation.
It is a defence to a charge of an offence against this Act if the defendant
proves that the offence was not committed intentionally and did not result from
any failure on the part of the defendant to take reasonable care to avoid the
commission of the offence.
65—Liability for
act or default of officer, employee or agent
For the purposes of this Act, an act or default of an officer, employee or
agent of a person carrying on a business will be taken to be an act or default
of that person unless it is proved that the officer, employee or agent acted
outside the scope of his or her actual, usual and ostensible
authority.
66—Offences by
directors of bodies corporate
If a body corporate is guilty of an offence against this Act each of its
directors is guilty of an offence and is liable to the same penalty as is
prescribed for the principal offence unless it is proved that the director could
not, by the exercise of reasonable diligence, have prevented the commission of
the offence by the body corporate.
(1) Subject to this Act, a notice or document required or authorised by
this Act to be given to or served on a person may—
(a) be served on the person personally; or
(b) be posted in an envelope addressed to the person—
(i) at the person's last known address; or
(ii) if the person is a licensee or approved person—at the person's
address for service; or
(c) if the person is a licensee or approved person—be left for the
person at the person's address for service with someone apparently over the age
of 16 years; or
(d) by transmitting it to the person by fax transmission or email to the
fax number or email address last provided to the Commissioner by the person for
that purpose.
(2) The address for service of a licensee or approved person is the
address of which the Commissioner has been last notified in writing by the
licensee or approved person as his or her address for service.
(1) Proceedings for an offence against this Act must be
commenced—
(a) in the case of an expiable offence—within the time limits
prescribed for expiable offences by the Summary Procedure
Act 1921;
(b) in any other case—within 2 years of the date on which the
offence is alleged to have been committed or, with the authorisation of the
Minister, at a later time within 5 years of that date.
(2) A prosecution for an offence against this Act cannot be commenced
except by an authorised officer or a person who has the consent of the Minister
to commence the prosecution.
(3) In any proceedings, an apparently genuine document purporting to be a
certificate of the Minister certifying authorisation of, or consent to, a
prosecution for an offence against this Act will be accepted, in the absence of
proof to the contrary, as proof of the authorisation or consent.
(1) In any proceedings, an apparently genuine document purporting to be a
certificate of the Commissioner certifying that a person—
(a) did or did not hold a specified licence on a specified date;
or
(b) was or was not an approved person on a specified date,
constitutes proof of the matters so certified in the absence of proof to
the contrary.
(2) If, in proceedings for an offence against this Act, it is established
that, within the period of 12 months immediately preceding the date of the
alleged offence, the defendant, on not less than 6 days, bought or took on
consignment different second-hand goods (not being second-hand vehicles) for the
purposes of resale or acted as an agent for the resale of different second-hand
goods (not being second-hand vehicles) or advertised to undertake any such
activities it will be presumed, in the absence of proof to the contrary, that
the defendant was carrying on business as a second-hand dealer on the date of
the alleged offence.
(3) If, in proceedings for an offence against this Act, it is established
that, within the period of 12 months immediately preceding the date of the
alleged offence, the defendant, on not less than 6 days, sold different
second-hand goods (not being second-hand vehicles) by auction or by negotiation
immediately after an auction, or advertised to undertake any such activities it
will be presumed, in the absence of proof to the contrary, that the defendant
was carrying on business as an auctioneer on the date of the alleged
offence.
(4) If, in proceedings for an offence against this Act, it is established
that a licensee engaged in a prescribed transaction, it will be presumed, in the
absence of proof to the contrary, that the prescribed transaction occurred in
the course of, or for the purposes of, the licensee's business.
(1) The Commissioner must, on or before 31 October in each year,
submit to the Minister a report on the administration of this Act during the
period of 12 months ending on the preceding 30 June.
(2) The Minister must, within 6 sitting days after receipt of the
report, cause a copy of the report to be laid before each House of
Parliament.
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
(2) Without limiting the generality of subsection (1), the
regulations may—
(a) require second-hand dealers, pawnbrokers, auctioneers and market
operators to display certain signs or material in accordance with the
regulations;
(b) impose requirements in relation to advertising by second-hand dealers,
pawnbrokers, auctioneers and market operators;
(c) make provision in relation to the electronic transfer of information
for the purposes of this Act, including specifying—
(i) technical or operational requirements relating to such transfer;
or
(ii) a particular application, software or device, or a particular class
of application, software or device, to be used for that purpose;
(d) fix fees to be paid in respect of any matter under this Act and
regulate the recovery, refund, waiver or reduction of such fees;
(e) impose a penalty, not exceeding a fine of $10 000, for
contravention of, or non-compliance with, a regulation;
(f) fix expiation fees, not exceeding $315, for alleged offences against
the regulations.
(3) Regulations under this Act—
(a) may be of general application or limited application;
(b) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(c) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Commissioner, the
Commissioner of Police or the Minister.
Schedule 1—Repeal
and transitional provisions
Part 1—Repeal
The Second-hand Dealers and Pawnbrokers Act 1996 is
repealed.
Part 2—Transitional provisions
2—Act applies to
transactions occurring after commencement
Subject to any regulations made under clause 3, this Act only applies
in relation to—
(a) goods pawned; or
(b) second-hand goods bought, taken on consignment, or agreed to be
resold; or
(c) goods consigned for auction; or
(d) second-hand markets held,
after the commencement of this clause.
(1) The regulations may make provisions of a savings or transitional
nature consequent on the enactment of this Act.
(2) Without limiting subclause (1), the regulations may, for
transitional purposes—
(a) provide that this Act, or specified provisions of this Act, will not
apply in relation to a person or class of persons or an activity or class of
activities, until a specified day; or
(b) modify the application of this Act, or provisions of this Act, in
relation to a person or class of persons, or an activity or class of activities,
until a specified day.