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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 and pawnbrokers; to repeal the Second-hand
Dealers and Pawnbrokers Act 1996; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Application of Act
5Non-derogation
6Commissioner to be responsible for
administration of Act
7Criminal
intelligence
Part 2—Licences
and approvals—class 1 goods
8Requirement to be
licensed
9Requirement to be
approved
10Application for licence
or approval
11Applications to be
furnished to Commissioner of Police
12Applicant for approval
taken to be approved
13Entitlement to be licensed
or approved
14Factors to be taken into
account in deciding whether to grant licence or approval
15Conditions
16Appeals
17Power of
Commissioner to require photograph and information
18Identification to be
carried
19Duration of licence or
approval
20Annual fee and return
21Change of particulars
relating to licence or approval
22Commissioner may require
surrender of licence or approval etc
Part 3—Registration—class 2
goods
23 Requirement to be
registered
24Annual returns etc.
25Change of particulars
relating to registration
Part 4—Regulation
of licensees and registered second-hand dealers
Division 1—Provisions applicable to
licensees and registered second-hand dealers generally
26Class 1 and 2
transactions
27Labelling of
goods
28Retention of goods before sale
29Staffing
records
Division 2—Additional
provisions applicable to pawnbrokers
30Preliminary
31Information to
be provided to person pawning goods
32Replacement of pawn ticket
33Redemption
34Extension of redemption
period
35Sale of pawned goods at end of redemption
period
36Fees and charges in respect
of unredeemed pawned goods
37Pawnbroker not to purchase pawned
goods
Part 5—Special powers relating to
licences and approvals
38Suspension or cancellation
of licence or approval—prescribed offences
39Suspension of
licence or approval in urgent circumstances
40Power of
Commissioner of Police to prohibit employee or agent from working for
licensee
41Appeal
Part 6—Discipline
42Interpretation
43Cause for disciplinary
action
44Complaints
45Hearing by
Court
46Procedure on hearing of complaint
47Disciplinary
action
48Contravention of
orders
49Joinder of Commissioner and Commissioner of
Police as parties
Part 7—Regulation of
markets
50Market operator to be
registered
51Annual returns etc.
52Change of
particulars relating to registration
53Market to be supervised
54Sale of goods at
market
55Records
Part 8—Enforcement
56Powers of entry and
inspection
Part 9—Barring
orders
57Interpretation
58Barring
orders
59Issue of barring order in
absence of respondent
60Service
61Variation or revocation of barring
order
62Burden of proof
63Information relating to barring
order
Part 10—Miscellaneous
64Where goods suspected of
being stolen
65Offence to deal with child or intoxicated
person
66No contracting out
67False or
misleading information
68Statutory declaration
69Investigations
70Information to be provided to
Commissioner of Police
71Register of persons licensed, approved or
registered
72General defence
73Liability for act or default of
officer, employee or agent
74Service of
documents
75Prosecutions
76Evidentiary provision
77Annual
report
78Regulations
Schedule 1—Consequential amendment,
repeal and transitional provisions
Part 1—Amendment of
Magistrates Court Act 1991
1Amendment of section
3—Interpretation
Part 2—Repeal
2Repeal
Part 3—Transitional
provisions
3Act applies to transactions occurring after
commencement
4Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Second-hand Goods
Act 2012.
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 approved under
Part 2;
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;
class 1 goods means second-hand goods of a kind prescribed by
regulation for the purposes of this definition;
class 2 goods means second-hand goods of a kind prescribed by
regulation for the purposes of this definition;
class 1 transaction means—
(a) entering into a pawn agreement in relation to any goods; or
(b) taking possession of class 1 goods; or
(c) agreeing to buy, take on consignment or act as agent for the sale of
class 1 goods;
class 2 transaction means—
(a) taking possession of class 2 goods; or
(b) agreeing to buy, take on consignment or act as agent for the sale of
class 2 goods;
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;
registered market operator means a person registered under
section 50;
registered second-hand dealer means a person registered under
section 23;
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—
(c) the goods in an altered form or condition; or
(d) goods that incorporate the goods; or
(e) 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) If a person—
(a) takes possession of goods other than in the course of his or her
business; and
(b) subsequently deals with the goods in the course of his or her
business,
the person will be taken, for the purposes of this Act, to have taken
possession of the goods at the time he or she first deals with the goods in the
course of his or her business.
(4) 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.
(5) For the purposes of this Act, a person acts as a second-hand dealer in
relation to a particular class of second-hand goods if the person carries on a
business that consists of, or includes any of the activities specified in
paragraphs (a),
(b) or
(c) of the definition of
second-hand dealer in
subsection (1) in
relation to goods of that class.
(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 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 40 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 6
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 of a police
officer of or above the rank of superintendent.
(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.
Part 2—Licences
and approvals—class 1 goods
(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 class 1
goods; or
(b) who only acts as a second-hand dealer in relation to class 1
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 or in return for a credit to be used subsequently as such
payment.
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 and, 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) provide the Commissioner of Police with a copy of the application;
or
(b) notify the Commissioner of Police of the identity, date of birth and
address of the applicant or, if the applicant is a body corporate, the identity,
date of birth and address 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—Applicant
for approval taken to be approved
A person who—
(a) has applied for approval in accordance with
section 10;
and
(b) has not previously been refused approval under
section 10 or had
his or her approval revoked; and
(c) is entitled to be approved under
section 13(1),
will be taken, for the purposes of this Act, to be approved under this
Part, until the day on which the Commissioner determines the person's
application.
13—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—is not an insolvent
under administration within the meaning of the Corporations Act 2001
of the Commonwealth; 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 a
similar 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 a similar
occupation, trade or business under a law of this State, the Commonwealth,
another State or a Territory of the Commonwealth; or
(iii) is an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; 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.
14—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 to the Court 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.
(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.
17—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
(ii) supply the Commissioner with 1 or more photographs of the
licensee or approved person 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—
(i) the licensee or approved person; and
(ii) in the case of a licensee that is a body corporate—any
specified director of the body corporate,
and information about any other specified matters.
18—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.
(3) This section does not apply to a person who is, in accordance with
section 12, taken to
be approved under this Part.
19—Duration
of licence or approval
A licence or approval granted by the Commissioner under this Part 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.
(1) 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.
(2) If a licensee
or approved person fails to pay the annual fee or lodge the annual return in
accordance with
subsection (1)
or to comply with a notice under
section 17, 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.
(3) 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.
(4) The Commissioner must notify the licensee or approved person in
writing of the cancellation.
(5) A licensee or approved person may surrender the licence or
approval.
(6) In this section—
approved person includes an approved person whose approval
has been suspended;
licensee includes a licensee whose licence has been
suspended.
21—Change
of particulars relating to licence or approval
A licensee or approved person must, within 14 days after a change to
any prescribed particulars, provide written notice of the change to the
Commissioner (in a manner determined by the Commissioner).
Maximum penalty: $2 500.
Expiation fee: $210.
22—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.
Expiation fee: $160.
Part 3—Registration—class 2
goods
23—
Requirement to be registered
(a) act as; or
(b) advertise or otherwise hold himself or herself out as,
a second-hand dealer unless registered under this Part.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not apply to a second-hand dealer—
(a) who does not act as a second-hand dealer in relation to class 2
goods; or
(b) who only acts as a second-hand dealer in relation to class 2
goods that have been received by way of trade-in; or
(c) who is a licensee.
(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 or in return for a credit to be used subsequently as such
payment.
(4) An application for registration 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.
(5) An applicant
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 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 information relating to the premises at
which, and business name under which, the applicant intends to carry on business
in accordance with the registration).
(6) 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.
(7) 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.
(8) If the applicant fails to comply with the notice under
subsection (7),
the Commissioner may, without further notice, refuse the application but keep
the fee that accompanied the application.
(1) A registered
second-hand dealer 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.
(2) If a registered
second-hand dealer fails to pay the annual fee or lodge the annual return in
accordance with
subsection (1)
the Commissioner may, by notice in writing, require the dealer to make good the
default and, in addition, to pay to the Commissioner the amount fixed by
regulation as a penalty for default.
(3) If the registered second-hand dealer fails to comply with the notice
within 28 days after service of the notice, the dealer's registration is
cancelled.
(4) The Commissioner must notify the dealer in writing of the
cancellation.
25—Change
of particulars relating to registration
A registered second-hand dealer must, within 14 days after a change to
any prescribed particulars, provide written notice of the change to the
Commissioner (in a manner determined by the Commissioner).
Maximum penalty: $2 500.
Expiation fee: $210.
Part 4—Regulation
of licensees and registered second-hand dealers
Division 1—Provisions
applicable to licensees and registered second-hand dealers
generally
(1) A licensee must ensure that each class 1 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 a licensee or an approved person, in
accordance with any requirements prescribed by regulation.
Maximum penalty: $10 000.
(2) A licensee or registered second-hand dealer must ensure that each
class 2 transaction that occurs in the course of, or for the purposes of,
his or her business is conducted or supervised by a natural person in accordance
with any requirements prescribed by regulation.
Maximum penalty: $5 000.
(3) A licensee or
registered second-hand dealer must ensure that, in relation to each class 1
or class 2 transaction that occurs in the course of, or for the purposes
of, the business of the licensee or dealer, the identity of the person entering
into the transaction with the licensee or dealer is verified in accordance with
the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) A licensee or
registered second-hand dealer must make and retain records in relation to
class 1 and class 2 transactions in accordance with the
regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(5) A licensee or
registered second-hand dealer must transfer particulars of records required to
be made and retained under this section to the Commissioner of Police in
accordance with the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(6) The regulations may require the electronic transfer of
information.
(1) A licensee or
registered second-hand dealer must ensure that, if the licensee or dealer takes
possession of any class 1 or class 2 goods in the course of, or for
the purposes of, his or her 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 any goods to which
subsection (1)
applies 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.
28—Retention
of goods before sale
(1) If—
(a) a licensee takes possession of class 1 goods; or
(b) a registered second-hand dealer takes possession of class 2
goods,
in the course of, or for the purposes of, his or her business, the licensee
or dealer—
(c) must not alter
the form of the goods or part with possession of the goods until at least
14 days after the prescribed day; and
(d) must ensure that, during the period referred to in
paragraph (c)—
(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 or registered second-hand
dealer for the purposes of repair or maintenance; or
(b) goods taken possession of pursuant to a pawn agreement.
(3) In this section—
prescribed day, in relation to goods, means—
(a) if regulations made under
section 26(5)
require particulars of a record relating to the goods to be transferred to the
Commissioner of Police—the day on which the licensee or dealer transferred
the particulars to the Commissioner of Police; or
(b) in any other case—the day on which the licensee or dealer took
possession of the goods.
A licensee or registered second-hand dealer must make and retain records in
relation to the persons working in, or for the purposes of, his or her business
in accordance with the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
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 34 to
extend the redemption period in respect of pawned goods;
pawn ticket—see
section 31(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 principal
specified in the agreement, interest and any applicable fees and
charges).
31—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 pawn agreement is invalid if this section is not complied
with.
(4) A person who fails to comply with this section is guilty of an
offence.
Maximum penalty: $5 000.
Expiation fee: $315.
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 place.
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 or fees and charges (other than
fees and charges of a kind referred to in
section 36) in
respect of any period after the end of the redemption period in relation to
pawned goods.
Maximum penalty: $2 500.
Expiation fee: $210.
34—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.
(3) A pawnbroker must record, against the entry relating to the pawn
agreement in the records made under
section 26(4),
details of the extension agreement as required by the regulations.
(4) A pawnbroker must give the entitled person a copy of the extension
agreement without charge.
(5) A redemption period may be extended under this section even if the
period has expired.
(6) A redemption period may not be extended otherwise than under this
section.
(7) A person who fails to comply with this section is guilty of an
offence.
Maximum penalty: $5 000.
Expiation fee: $315.
35—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 26(4),
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.
36—Fees
and charges in respect of unredeemed pawned goods
The fees and charges that may be imposed in respect of unredeemed goods, or
may be deducted from the proceeds of the sale of such goods,
are—
(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;
and
(e) any other fee or charge of a kind prescribed by regulation.
37—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 5—Special
powers relating to licences and approvals
38—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, discontinued or stayed (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) A licensee that is a body corporate will, for the purposes of this
section, be taken—
(a) to have been charged with a prescribed offence if the body corporate
or any director of the body corporate is charged with a prescribed offence;
or
(b) to have been found guilty of a prescribed offence if the body
corporate or any director of the body corporate is found guilty of a prescribed
offence.
(4) The Commissioner may, at any time, on his or her own initiative, or on
application by a person given a notice under this section, vary or revoke the
notice.
(5) In this section—
prescribed offence means an offence of a class prescribed by
regulation for the purposes of this section.
39—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 6;
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 in writing given to the licensee or
approved person, suspend the licence or approval for a specified period (which
may not exceed 6 months).
(2) The Commissioner may, at any time, on his or her own initiative, or on
application by a person given a notice under this section, vary or revoke the
notice.
40—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
given 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) The Commissioner of Police may, at any time, on his or her own
initiative, or on application by a person given a notice under this section,
vary or revoke the notice.
(1) A person given a notice under this Part may appeal to the Court
against the decision to issue the notice.
(2) Subject to
subsection (4),
an appeal must be instituted within 1 month of the making of the decision
appealed against.
(3) The Commissioner or the Commissioner of Police (as the case may be)
must, if so required by the person given the notice, state, in writing, the
reasons for the decision to issue the notice.
(4) If reasons are
not given, in writing, to the person at the time of making the decision and the
person (within 1 month of the making of the decision) requires the
Commissioner or the Commissioner of Police (as the case may be) 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.
(5) The 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 pawnbroker or as
a second-hand dealer.
43—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.
46—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 imprisonment for 6 months.
(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.
49—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.
50—Market
operator to be registered
(a) act as; or
(b) advertise or otherwise hold himself or herself out as,
a market operator unless registered under this section.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not apply if a market operator takes reasonable measures to ensure that no
class 1 or class 2 goods are sold at any second-hand market operated
by the market operator.
(3) An application for registration 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.
(4) An applicant
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 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 information relating to the premises or
place at which, and business name under which, the applicant intends to operate
a market in accordance with the registration).
(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.
(8) If an unincorporated group of people (the group)
intend to operate a second-hand market—
(a) 1 member of the group may, by notice in writing to the
Commissioner, nominate himself or herself as the person to be registered under
this section on behalf of the group; and
(b) the person so nominated is taken to be the market operator for the
purposes of this Act (and the other members of the group are taken not to be
acting as, advertising or otherwise holding themselves out as market operators
for the purposes of this Act).
(1) A registered
market operator 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.
(2) If a registered
market operator fails to pay the annual fee or lodge the annual return in
accordance with
subsection (1)
the Commissioner may, by notice in writing, require the operator to make good
the default and, in addition, to pay to the Commissioner the amount fixed by
regulation as a penalty for default.
(3) If the registered market operator fails to comply with the notice
within 28 days after service of the notice, the operator's registration is
cancelled.
(4) The Commissioner must notify the operator in writing of the
cancellation.
52—Change
of particulars relating to registration
A registered market operator must, within 14 days after a change to
any prescribed particulars, provide written notice of the change to the
Commissioner (in a manner determined by the Commissioner).
Maximum penalty: $2 500.
Expiation fee: $210.
(1) A market operator must ensure that a natural person acts as
supervisor, for the purposes of this Part, of a second-hand market operated by
the market operator.
Maximum penalty: $5 000.
(2) This section does not apply if the market operator establishes that he
or she has taken reasonable measures to ensure that no class 1 or
class 2 goods are sold at the second-hand market.
(1) A person must not sell class 1 or class 2 goods at a
second-hand market without the permission of the person acting as supervisor of
the market.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) When permitting a person to sell class 1 or class 2 goods at
a market, the person acting as supervisor of the market must ensure that the
identity of the seller is verified in accordance with the regulations.
Maximum penalty: $2 500.
Expiation fee: $210.
(1) The market
operator of a second-hand market at which any class 1 or class 2 goods
are sold must make and retain the following records in accordance with the
regulations:
(a) records relating to the sale of the class 1 or class 2
goods;
(b) a record of the name and address of the person acting as supervisor of
the market.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A market operator must transfer particulars of records required to be
made and retained under this section to the Commissioner of Police in accordance
with the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) The regulations may require the electronic transfer of
information.
56—Powers
of entry and inspection
(1) For the purposes of this Act, a police 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; and
(c) inspect any goods apparently in the possession or under the control of
a person who is—
(i) attending such premises, place or vehicle to sell or otherwise part
with the possession of goods; or
(ii) leaving such premises, place or vehicle after attending it to sell or
otherwise part with the possession of goods; and
(d) require any such person to state his or her full name and address and
date of birth; and
(e) 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); and
(f) 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; and
(g) 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.
(2) A police 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 and the entry is at a reasonable
time.
(3) 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.
(4) A police officer may, in exercising a power under this section, be
accompanied by such assistants as may reasonably be required in the
circumstances.
(5) A person who—
(a) hinders a police 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: $5 000.
Note—
See also the powers of authorised officers under the Fair
Trading Act 1987.
In this Part—
barring offence means an offence of a class prescribed by
regulation for the purposes of this definition;
barring order see
section 58(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.
59—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).
61—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 any 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.
63—Information
relating to barring order
The Commissioner of Police may cause information relating to a barring
order to be provided to second-hand dealers, pawnbrokers, auctioneers, market
operators or such other persons as the Commissioner of Police thinks
fit.
64—Where
goods suspected of being stolen
(1) The Commissioner
of Police may issue a second-hand dealer, pawnbroker or auctioneer a written
notice describing goods suspected of being stolen goods.
(2) After a notice
under
subsection (1) has
been issued to a second-hand dealer, pawnbroker or auctioneer, 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.
(3) If a person
claims to a second-hand dealer, pawnbroker or auctioneer that goods in the
possession of the second-hand dealer, pawnbroker or auctioneer are stolen goods
and that the person is entitled to possession of the goods, the second-hand
dealer, pawnbroker or auctioneer must—
(a) immediately give the claimant a notice in the form determined by the
Commissioner of Police to record the making of the claim; and
(b) if the claimant completes and signs the notice—
(i) immediately on such completion and signing—
(A) give the claimant a copy of the notice; and
(B) notify the Commissioner of Police of the claim in accordance with any
instructions specified in the notice; and
(ii) keep a copy of the notice at the place at which the goods are
kept.
Maximum penalty: $2 500.
Expiation fee: $210.
(4) 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 transaction involving goods 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 transaction.
Maximum penalty: $20 000.
(5) 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.
(6) 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.
(7) The Commissioner
of Police—
(a) may give a second-hand dealer, pawnbroker or auctioneer a notice
requiring the second-hand dealer, pawnbroker or auctioneer 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, pawnbroker or auctioneer.
(8) A second-hand
dealer, pawnbroker or auctioneer must comply with a notice under
subsection (7).
Maximum penalty: $20 000.
(9) 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, pawnbroker or
auctioneer (and that have not otherwise been returned to the entitled person)
order—
(a) that the goods be returned to the person; or
(b) if the second-hand dealer, pawnbroker or auctioneer has sold or parted
with possession of the goods in contravention of
subsection (6) or
a notice under
subsection (7)—that
the second-hand dealer, pawnbroker or auctioneer pay to the person the value of
the goods.
(10) On an application under
subsection (9),
the Court may make such other orders as to compensation for damage to the goods
or otherwise as it thinks fit.
65—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.
67—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.
70—Information
to be provided to Commissioner of Police
The Commissioner must advise the Commissioner of Police of a change in any
prescribed particulars of persons licensed, approved or registered under this
Act.
71—Register
of persons licensed, approved or registered
(1) The Commissioner must keep a register of persons licensed, approved or
registered under this Act.
(2) The Commissioner must record on the register the particulars
prescribed by regulation.
(3) 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.
73—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 or ostensible authority.
(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 licensed, approved or registered under this
Act—at the person's address for service; or
(c) if the person is licensed, approved or registered under this
Act—be left for the person at the person's address for service with
someone apparently over the age of 16 years; or
(d) be transmitted 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; or
(e) if the person is licensed or registered under this Act—be
published on a website, or in some other electronic manner, if the Commissioner
has previously notified the licensee or registered person that such notices or
documents will be published on that website or in that manner.
(2) The address for
service of a person who is licensed, approved or registered under this Act is
the address of which the Commissioner has been last notified in writing by the
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; or
(c) was or was not a registered second-hand dealer on a specified date;
or
(d) was or was not a registered market operator 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 a licensee or registered second-hand dealer engaged in a class 1 or
class 2 transaction, it will be presumed, in the absence of proof to the
contrary, that the transaction occurred in the course of, or for the purposes
of, the licensee's or dealer'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) impose requirements on second-hand dealers, pawnbrokers, auctioneers
and market operators including (without limitation) requirements relating to the
display of signs or other material, advertising, the conduct of transactions,
record keeping and the transfer of information (including by electronic means)
to the Commissioner of Police;
(b) 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;
(c) fix fees to be paid in respect of any matter under this Act and
regulate the recovery, refund, waiver or reduction of such fees;
(d) impose a penalty, not exceeding a fine of $10 000, for
contravention of, or non-compliance with, a regulation;
(e) 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 Minister, the
Minister responsible for the administration of the Fair
Trading Act 1987, the Commissioner or the Commissioner of
Police.
Schedule 1—Consequential
amendment, repeal and transitional provisions
Part 1—Amendment of Magistrates Court
Act 1991
1—Amendment
of section 3—Interpretation
Section 3(1), definition of minor statutory proceeding,
paragraph (bb)—delete "section 11(8) of the
Second-hand
Dealers and Pawnbrokers Act 1996" and substitute:
section 64(9) of the Second-hand
Goods Act 2012
Part 2—Repeal
The Second-hand
Dealers and Pawnbrokers Act 1996 is repealed.
Part 3—Transitional
provisions
3—Act
applies to transactions occurring after commencement
Subject to any regulations made under
clause 4, this Act
applies in relation to—
(a) second-hand goods bought, taken on consignment, or agreed to be
resold; or
(b) goods pawned; or
(c) 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.