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New South Wales
Pawnbrokers and Second-hand
Dealers Amendment Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Pawnbrokers and Second-hand Dealers
Act 1996 No 13 2
4 Amendment of Pawnbrokers and Second-hand Dealers
Regulation 1997 2
Schedules
1 Amendment of Pawnbrokers and Second-hand Dealers
Act 1996 3
2 Amendment of Pawnbrokers and Second-hand Dealers
Regulation 1997 41
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Pawnbrokers and Second-hand
Dealers Amendment Bill 2002
Act No , 2002
An Act to amend the Pawnbrokers and Second-hand Dealers Act 1996 and the
Pawnbrokers and Second-hand Dealers Regulation 1997 in relation to the
application and operation of the Act, the licensing of pawnbrokers and second-hand
dealers, the regulation of the businesses of pawnbroking and second-hand dealing,
and the regulation of markets; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Pawnbrokers and Second-hand Dealers Amendment Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Pawnbrokers and Second-hand Dealers Amendment
Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Pawnbrokers and Second-hand Dealers Act 1996 No 13
The Pawnbrokers and Second-hand Dealers Act 1996 is amended as
set out in Schedule 1.
4 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
The Pawnbrokers and Second-hand Dealers Regulation 1997 is
amended as set out in Schedule 2.
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
Schedule 1 Amendment of Pawnbrokers and
Second-hand Dealers Act 1996
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
disqualified person has the meaning given by section 8A.
executive officer of a corporation has the same meaning as in
the Corporations Act 2001 of the Commonwealth.
Note. Section 9 of the Commonwealth Act contained the following
definition when the Bill inserting the definition in this Act was introduced:
executive officer of a body corporate means a person who is
concerned in, or takes part in, the management of the body
(regardless of the person's designation and whether or not the
person is a director of the body).
fees and charges in respect of the sale of pawned goods--see
section 30A.
pawn agreement means an agreement by which goods are
pawned.
pawn ticket means a copy of a record referred to in
section 28 (5).
redemption period, in relation to pawned goods, means the
period during which the goods may be redeemed under
section 29 (1).
sell includes any of the following:
(a) sell by tender,
(b) barter or exchange,
(c) any of the following:
(i) consign or deliver for sale,
(ii) advertise for sale,
(iii) offer for sale,
(iv) have in possession for sale,
(v) agree to sell,
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Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
(d) sell or do any of the above:
(i) as an agent or broker, or
(ii) by an agent or broker,
(e) cause a sale to take place or cause any of the above to
be done.
In paragraph (c), the expressions sale and sell are capable of
having the extended meaning given by paragraph (a) or (b) or
both.
surplus proceeds, in relation to a sale of pawned goods, means
the proceeds of the sale less:
(a) the principal and interest that was due at the time of the
sale, and
(b) any unpaid fees and charges that would have been paid
by the person who pawned the goods to redeem the
goods, and
(c) any fees and charges that are deductible in respect of the
sale of the goods, so long as:
(i) they were disclosed in a statement in accordance
with section 28 (5A) (b), and
(ii) they do not exceed the amounts of the fees and
charges so disclosed or the amounts determined
in accordance with the manner of determining
them as so disclosed.
[2] Section 3 (2)
Insert at the end of section 3:
(2) Notes included in this Act do not form part of this Act.
[3] Section 4 Restrictions on operation of this Act
Insert after section 4 (2):
(3) In subsection (2):
business of an auctioneer does not include the business of
selling goods by tender.
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
[4] Sections 8 and 8A
Omit section 8. Insert instead:
8 Eligibility for licence
(1) An individual is eligible to hold a licence only if the Director-
General is satisfied that:
(a) he or she is at least 18 years of age, and
(b) he or she is a fit and proper person to hold a licence and
each person with whom he or she is in partnership in
connection with the business concerned is a fit and
proper person to hold a licence, and
(c) he or she is not a disqualified person.
(2) A corporation is eligible to hold a licence only if the Director-
General is satisfied that:
(a) the corporation is a fit and proper person to hold a
licence, and
(b) each director of the corporation is a fit and proper
person to hold a licence, and
(c) the corporation is not a disqualified person.
(3) If an applicant for a licence has been charged with an offence
involving dishonesty, the Director-General may await the
outcome of proceedings on the charge before determining the
application.
8A Disqualified persons
(1) A person is a disqualified person for the purposes of this Act
if:
(a) the person is disqualified under subsection (2) or (3)
from holding a licence, or
(b) the person is precluded from being granted a licence
under Part 5, or
(c) the person is the holder of a licence that is suspended
under this Act, or of a licence, permit or other authority
that is suspended under the Fair Trading Act 1987, or
(d) the person is disqualified from holding a licence,
certificate of registration or other authority under a
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Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
corresponding law or is the holder of such a licence,
certificate of registration or other authority that is
suspended, or
(e) the person is in breach of any provision of this Act or
the regulations that is prescribed by the regulations as a
disqualifying breach.
(2) An individual is disqualified from holding a licence if:
(a) he or she has a conviction in New South Wales or
elsewhere for an offence involving dishonesty that was
recorded in the last 10 years, unless the Director-
General has determined under subsection (4) that the
offence should be ignored, or
(b) he or she is an undischarged bankrupt, unless the
Director-General has determined under subsection (5)
that this factor should be ignored, or
(c) he or she, at any time in the 3 years preceding the
application for the licence, was an undischarged
bankrupt, applied to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounded
with his or her creditors or made an assignment of his or
her remuneration for their benefit, unless the Director-
General has determined under subsection (5) that this
factor should be ignored, or
(d) he or she is an executive officer of a corporation that is
the subject of a winding up order or for which a
controller or administrator has been appointed, or
(e) he or she, at any time in the 3 years preceding the
application for the licence, was an executive officer of
a corporation when the corporation was the subject of a
winding up order or when a controller or administrator
was appointed, unless the Director-General has
determined under subsection (5) that this factor should
be ignored in relation to the individual, or
(f) he or she is an executive officer of a corporation that is
a disqualified person, or
(g) he or she is a mentally incapacitated person, or
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
(h) he or she is in partnership in connection with the
business concerned with a person who is a disqualified
person.
(3) A corporation is disqualified from holding a licence if:
(a) it has a conviction in New South Wales or elsewhere for
an offence involving dishonesty that was recorded in the
last 10 years, unless the Director-General has
determined under subsection (4) that the offence should
be ignored, or
(b) it is a corporation that is the subject of a winding up
order or for which a controller or administrator has been
appointed, or
(c) any of its executive officers is a disqualified person.
(4) Where subsection (2) or (3) provides that a determination may
be made under this subsection in relation to an offence
committed by a person, the Director-General may determine
that the offence should be ignored for the purposes of this
section on one or more of the following grounds:
(a) the triviality of the acts or omissions giving rise to the
offence,
(b) the time that has passed since the offence was
committed,
(c) the offence was committed by the offender as a minor,
(d) the subsequent good behaviour of the offender,
(e) any other ground prescribed by the regulations.
(5) Where subsection (2) provides that a determination may be
made under this subsection that a factor should be ignored, the
Director-General may determine that the factor should be
ignored for the purposes of this section in relation to the
individual concerned if, on the basis of information and
evidence provided to the Director-General by the individual,
the Director-General considers it is appropriate to do so.
(6) In this section:
administrator and controller have the same meanings as in the
Corporations Act 2001 of the Commonwealth.
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
corresponding law means a law of another Australian
jurisdiction that is declared by the Minister from time to time
by order published in the Gazette to be a law that corresponds
to this Act.
[5] Section 10 Determination of applications
Omit "subject to sections 8 and 36" from section 10 (1).
Insert instead "subject to section 8 and Part 5".
[6] Section 10A Renewal of licences
Omit "subject to sections 8 and 36" from section 10A (4).
Insert instead "subject to section 8 and Part 5".
[7] Section 10A (7) and (8)
Omit "subject to section 36" wherever occurring.
Insert instead "subject to Part 5".
[8] Section 11 Conditions of licences
Omit section 11 (1). Insert instead:
(1) A licence is subject to any conditions that the Director-General
sees fit, in the public interest, to attach to it:
(a) on grant or renewal, or
(b) at any time by order under subsection (1A), or
(c) pursuant to section 36 or 36A.
[9] Section 11 (1A) and (1B)
Insert after section 11 (1):
(1A) The Director-General may, by order served on the holder of a
licence, attach conditions to the licence at any time during its
currency.
(1B) The Director-General may, by order served on the holder of a
licence, vary or revoke any conditions referred to in subsection
(1).
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
[10] Section 12A Business and storage premises: pawnbrokers
Omit "(subsection (2))" from section 12A (2).
[11] Section 12A (3)
Omit ", or stores the goods of the business only at,".
[12] Section 12A (4)
Omit ", or store goods at,".
[13] Section 12B
Insert after section 12A:
12B Goods to be kept at approved business or storage premises:
pawnbrokers
(1) Definition
In this section:
approved premises, in relation to a licensee carrying on the
business of a pawnbroker, or of a pawnbroker and a second-
hand dealer, means:
(a) business premises or storage premises nominated in the
application for the relevant licence, or
(b) business premises or storage premises later notified by
the licensee to the Director-General under
section 12A (2), or
(c) other business premises or storage premises in respect
of which the licensee is not yet in breach of
section 12A (2),
but does not include premises that are for the time being the
subject of a declaration under subsection (4), or a direction
under subsection (5), that is applicable to the goods concerned.
(2) Unredeemed pawned goods to be kept at approved premises
A licensee carrying on the business of a pawnbroker, or of a
pawnbroker and a second-hand dealer, must ensure that any
goods that are pawned to the licensee are at all times kept at
approved premises, until:
(a) the goods are redeemed, or
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
(b) the goods are purchased, or
(c) the goods are consigned for auction, or
(d) the goods are removed in accordance with a requirement
imposed, or an authorisation given, by or under this Act
or the regulations.
Maximum penalty: 50 penalty units.
(3) It is a condition of a licence to carry on the business of a
pawnbroker, or of a pawnbroker and a second-hand dealer, that
all goods pawned to the licensee are at all times kept at
approved premises as required by subsection (2).
(4) Exclusion of premises from being approved premises
The regulations may declare that premises of a specified class
are excluded from this section, in relation to all pawned goods
or to pawned goods of a specified class.
(5) The Director-General may, by notice given to a licensee, direct
that specified premises or premises of a specified class are
excluded from this section, in relation to all pawned goods, or
to specified pawned goods or to pawned goods of a specified
class. The Director-General may, in the same manner, amend
or revoke such a direction.
(6) Defence
It is a defence to a charge for an offence based on the fact that
goods were not kept at approved premises (or to an allegation
of a failure to comply with a condition based on that fact) if the
licensee establishes that at the relevant time:
(a) the goods were located on premises that have within the
past 3 days ceased to be approved premises, or
(b) the goods were in the process of being transported to
approved premises from:
(i) other approved premises, or
(ii) premises that have within the past 3 days ceased
to be approved premises.
(7) Other requirements not affected
Nothing in this section affects any requirement of or imposed
under any other provision of this Act or the regulations.
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
[14] Section 15A
Insert after section 15:
15A Evidence of identity of vendors at markets
(1) Before permitting a person to sell second-hand goods at a
market, the promoter of the market must obtain evidence of the
person's identity on each occasion a market is or is to be
conducted.
(2) The evidence must include the same kind of evidence that is
required to be obtained by a licensee under section 15 before
accepting goods for sale.
(3) However, in the case of a person licensed to carry on the
business of a second-hand dealer or the business of a
pawnbroker and a second-hand dealer, subsection (1) is
satisfied by production to the promoter of documentary
evidence indicating that the person is so licensed.
(4) A promoter of a market may impose a reasonable requirement
on a person seeking to sell goods at the market to furnish
information to the promoter for the purposes of the promoter's
compliance with this section.
Maximum penalty: 50 penalty units.
Note. Section 24 makes it an offence for a person, in purported
compliance with a requirement under the Act for the furnishing of
information, to make or furnish any statement that the person knows is
false or misleading.
[15] Section 21 Retention of goods
Insert after section 21 (1):
(1A) The period of 14 days commences with the day on which the
purchase or receipt was recorded by the licensee.
[16] Section 22 Goods alleged to be stolen to be retained
Omit the section.
[17] Section 23 Direction for restoration of goods
Omit the section.
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Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
[18] Section 28 Pawnbroker's record of pledges
Omit section 28 (2) (a). Insert instead:
(a) a fair and reasonable description of the goods (including
a fair and reasonable description of any detached or
detachable components of the goods), which must
include:
(i) each serial number, each other identifying
number and each hallmark, inscription and
engraving appearing on the goods (including any
such components), and
(ii) any other matters prescribed by the regulations
for the purposes of this paragraph, and
[19] Section 28 (3)
Insert "and unless the document at the time of being signed contained all the
particulars required by or under this Act to be included in it" after "of the
record".
[20] Section 28 (5)(5B)
Omit section 28 (5). Insert instead:
(5) An accurate and legible copy (a pawn ticket) of any such
record must be given to the person who pawned the goods at
the time the record is made.
(5A) A pawn ticket must incorporate or be accompanied by:
(a) a notice in the form prescribed by the regulations setting
out rights and obligations of the person who pawned the
goods, and
(b) a statement, in itemised form, of:
(i) the types of fees and charges that are or may
become payable, including those that are or may
become deductible from the proceeds of the sale
of the goods concerned, and
(ii) so far as they are known or ascertainable--the
amounts of the fees and charges, and
(iii) so far as they are not known or
ascertainable--the manner of calculating the
amounts of the fees and charges, and
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(c) a statement of the method or methods by which the
goods may be sold if the goods are not redeemed, and
(d) a notice disclosing such other particulars or information
as may be prescribed by the regulations.
(5B) A pawn ticket must not contain any statement or claim, or be
accompanied by any material that contains any statement or
claim, that purports to exclude or modify or misrepresents any
rights that a person has under this Act or the regulations, or
under any other legislation, or under the common law.
[21] Section 28 (5C)
Renumber section 28 (5A) (as in force before the commencement of item
[20]) as subsection (5C).
[22] Section 28 (6)
Insert before section 28 (7):
(6) In this section:
component of goods includes an attachment to the goods
(including, for example, a battery).
[23] Section 29 Redemption of pawned goods
Omit "to be sold by auction" from section 29 (2).
Insert instead "consigned for auction".
[24] Section 29
Omit "Maximum penalty: 50 penalty units." wherever occurring.
[25] Section 29
Insert at the end of the section:
Maximum penalty: 50 penalty units.
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Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
[26] Sections 29A29C
Insert after section 29:
29A Agreement to extend redemption period
(1) This section applies to an agreement (in this section called an
extending agreement) for the purposes of section 29 (1) (b) to
vary a pawn agreement (in this section called an original
agreement) by extending the redemption period for the goods
concerned.
(2) An extending agreement may be entered into with a
pawnbroker by a person who is entitled to redeem the goods
concerned.
(3) A pawnbroker must not enter into an extending agreement with
another person without:
(a) taking such steps in relation to ascertaining the identity
of the other person as:
(i) would be required by the regulations in relation
to ascertaining the identity of a person seeking to
redeem the goods, or
(ii) are prescribed instead by the regulations for the
purposes of this paragraph, and
(b) complying with such other requirements as:
(i) would be applicable under the regulations in
relation to the redemption of those goods, or
(ii) are prescribed instead by the regulations for the
purposes of this paragraph.
(4) At the time an extending agreement is entered into, a record of
the extending agreement must be made that complies with this
section.
(5) The record of an extending agreement must:
(a) be incorporated in or attached to the original record of
the original agreement, and
(b) include an identifying reference to or description of the
original agreement, and
(c) specify the new redemption period, and
(d) specify any new or varied rates, fees or charges that are
or may be payable as a result of the extension, and
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(e) specify the date on which the extending agreement is
entered into, and
(f) include any other particulars required by the regulations
to be included.
(6) An extending agreement is not validly made unless:
(a) the person who enters the extending agreement with the
pawnbroker concerned signs the original record created
under this section or, if the original record created under
this section is kept in electronic form, signs a hard copy
of the record, and
(b) the document at the time of being signed contained all
the particulars required by or under this Act to be
included in it.
(7) An accurate and legible copy of the original of any such record
must be given to the person who pawned the goods at the time
the record is made.
(8) Without affecting the generality of subsection (4), the
regulations may make provision for or with respect to requiring
the use by pawnbrokers of electronic methods of creation and
storage of records that pawnbrokers are required to keep under
this section.
(9) A record of an extending agreement under this section must be
retained for the period for which the record of the original
agreement concerned is required to be kept under section 28.
(10) A redemption period may be extended even though the period
has already expired.
(11) If this section is contravened in relation to any transaction, the
pawnbroker by or on whose behalf the transaction was
undertaken is guilty of an offence.
Maximum penalty: 50 penalty units.
29B Pawn agreement not to be varied
(1) A pawn agreement may not be varied (whether by alteration of
the agreement or by a further agreement) except:
(a) in accordance with section 29A or any other Act, or
(b) as permitted by the regulations.
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(2) If a pawn agreement is varied in contravention of
subsection (1), the pawnbroker by or on whose behalf the
agreement was entered into is guilty of an offence.
Maximum penalty: 50 penalty units.
(3) However, a pawnbroker is not liable to be punished twice in
respect of the same variation (that is, under this section and also
under section 29A or any other Act).
29C Simultaneous discharge of pawn agreement and re-pawning of
goods
(1) Nothing in this Part prevents the parties to a pawn agreement
in relation to any goods from agreeing to discharge the pawn
agreement and simultaneously to enter into a new pawn
agreement in relation to the same goods or any of the goods.
(2) If a new pawn agreement is entered into as referred to in
subsection (1):
(a) the goods are regarded as having been redeemed under
the discharged agreement, and
(b) the pawnbroker is regarded as having again taken
possession of the goods (in so far as they are covered by
the new agreement) under the new agreement when it is
entered into.
[27] Sections 30 and 30A
Omit section 30. Insert instead:
30 Sale of unredeemed goods
(1) If pawned goods have not been redeemed at the end of the
redemption period and the principal lent on the goods was
greater than the amount prescribed by the regulations, the
pawnbroker must, as soon as reasonably practicable, sell the
goods in a manner conducive to securing the best price
reasonably obtainable, either:
(a) by sale by auction at any premises, or
(b) by sale by auction or otherwise at business premises of
the pawnbroker.
Maximum penalty: 50 penalty units.
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(2) If the goods are sold at auction and the person to whom the
goods are sold does not pay the whole of the purchase price for
those goods in accordance with the contract governing the sale
at auction, the sale is taken to be void and the title to the goods
is taken not to have passed.
(3) If subsection (2) applies, the pawnbroker must, as soon as
reasonably practicable, sell the goods in a manner conducive to
securing the best price reasonably obtainable, either:
(a) by sale by auction at any premises, or
(b) by sale at business premises of the pawnbroker.
Maximum penalty: 50 penalty units.
(4) If in proceedings a question arises as to whether the
pawnbroker has complied with subsection (1) or (3), the onus
of proving compliance is on the pawnbroker.
(5) Nothing in this section prevents redemption of the goods under
section 29 after expiry of the redemption period, and the
pawnbroker is not guilty of an offence under this section if the
goods are so redeemed.
30A Fees and charges in respect of sale of unredeemed goods
(1) References in this Act to fees and charges in respect of the sale
of pawned goods include references to fees and charges that
may be deducted from the proceeds of the sale of the goods.
(2) 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:
(a) the costs of or reasonably incidental to the sale, and
(b) any receipted expenses actually incurred for the repair
of the goods for the purposes of their sale,
but exclude:
(c) any fees or charges relating to the repair of the goods for
the purposes of their sale, apart from receipted expenses
actually incurred, and
(d) such kinds of fees or charges as are prescribed by the
regulations as being excluded from this subsection.
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Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
[28] Sections 31 and 31A
Omit section 31. Insert instead:
31 Application of proceeds of sale
(1) If any pawned goods are sold for more than the full amount of
the principal and interest that was due at the time of the sale,
the surplus proceeds of the sale must, if claimed within the
period of 12 months commencing with the date of the sale, be
paid on demand (orally or in writing at the business premises
of the pawnbroker, or elsewhere in any manner as agreed) to:
(a) the person by or for whom the goods were pawned, or
(b) any person claiming for or under that person, or
(c) that person's executor or administrator in the case of his
or her death.
(2) If subsection (1) is contravened, the pawnbroker to whom the
goods were pawned is guilty of an offence.
Maximum penalty: 50 penalty units.
Note. The expression "surplus proceeds" is defined in section 3.
31A Notice as to proceeds of sale
(1) Subject to subsection (2), a pawnbroker who sells pawned
goods must, before the end of the period of 21 days
commencing with the date of the sale, send by registered mail
to the last known address of the person who pawned the goods
a notice informing the person:
(a) of any amount that may be claimed by the person as
surplus proceeds of the sale, and
(b) that the person is entitled to receive that amount from
the pawnbroker at the business premises of the
pawnbroker or in another manner as agreed, within 12
months after the sale.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply where:
(a) the person who pawned the goods has requested the
pawnbroker in writing not to send the notice under that
subsection, or
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(b) the amount that may be claimed is less than $50 or such
other amount as may be prescribed instead.
Note. The expression "surplus proceeds" is defined in section 3.
[29] Sections 32A32C
Insert after section 32:
32A Interest charges
(1) If interest charges are able to be debited under a pawn
agreement:
(a) at the end of the redemption period (where that period
exceeds one month), or
(b) at intervals that exceed one month,
the agreement must:
(c) provide an option for payment of interest charges at
monthly intervals, and
(d) specify the amount payable in respect of each month or
(if that amount is not known or ascertainable) the
manner of calculating that amount.
(2) Payment of an interest charge in respect of a period (whether of
one month or any other duration) may be made, by or on behalf
of the person who pawned the goods, at any time during
business hours during that period.
(3) A pawnbroker is guilty of an offence if the agreement by which
goods are pawned contains a provision or condition that is
inconsistent with subsection (1) or (2).
(4) A pawnbroker is guilty of an offence if the pawnbroker refuses
to accept or retain payment of interest charges as permitted by
subsection (2).
(5) Nothing in this section prevents the extension of a redemption
period under section 29A.
Maximum penalty: 50 penalty units.
32B Interest charges and other charges after redemption period
(1) Interest is not chargeable in respect of any period after the end
of the redemption period in relation to any pawned goods.
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(2) No special fee or charge is payable for the redemption of
pawned goods after the end of the redemption period, and fees
and charges in respect of the safekeeping of the pawned goods
must not be at a higher rate after the end of the redemption
period than before.
(3) A pawnbroker is guilty of an offence if the agreement by which
goods are pawned contains a provision or condition for the
charging of interest in contravention of subsection (1) or (2).
(4) A pawnbroker is guilty of an offence if the pawnbroker charges
interest in contravention of subsection (1) or accepts payment
of any such interest.
(5) A pawnbroker is guilty of an offence if the pawnbroker
imposes a special fee or charge, or a fee or charge at a higher
rate, in contravention of subsection (2) or accepts payment of
any such fee or charge.
Maximum penalty: 50 penalty units.
32C Signage to be displayed
A licensee must cause a notice specifying the rate or rates of
interest charged and any other fees and charges, in such form
and of such appearance as may be prescribed by the
regulations, to be displayed in a prominent position in each of
the business premises of the licensee to which the public has
access so that the notice is clearly visible to the public.
Maximum penalty: 50 penalty units.
[30] Section 32D
Insert at the end of Part 4:
32D Sale or transfer of business
(1) If a pawnbroker sells or transfers the pawnbroker's business to
a person (in this section called the purchaser), the rights and
obligations of the pawnbroker in relation to each agreement by
which goods are pawned to the pawnbroker are transferred to
the purchaser.
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(2) The pawnbroker must notify (in accordance with
subsection (5) (a)) each person who has pawned goods to the
pawnbroker under a current agreement of the transfer to the
purchaser of the rights and obligations of the pawnbroker in
relation to the agreement, unless the purchaser agrees in writing
to give the notice.
Maximum penalty: 50 penalty units.
(3) If the purchaser agrees to give notice as referred to in
subsection (2), the purchaser must notify (in accordance with
subsection (5) (b)) each person who has pawned goods to the
pawnbroker under a current agreement of the transfer to the
purchaser of the rights and obligations of the pawnbroker in
relation to the agreement.
Maximum penalty: 50 penalty units.
(4) For the purposes of this section:
(a) an agreement relating to pawned goods is current if:
(i) the goods are still able to be redeemed, or
(ii) the goods are in the process of being sold, or
(iii) any surplus proceeds of the sale of the goods are
still claimable under this Act, and
(b) a reference to a pawnbroker includes a reference to a
former pawnbroker.
(5) Notice under:
(a) subsection (2) must be given within the period of 14
days commencing with the date of the transfer or within
such other period as may be prescribed by the
regulations instead, and
(b) subsection (3) must be given within the period of 14
days commencing with the date the purchaser agrees
under that subsection or within such other period as may
be prescribed by the regulations instead.
Note. The expression "surplus proceeds" is defined in section 3.
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[31] Part 4A
Insert after Part 4:
Part 4A Disputes as to ownership of goods and
restoration of goods
32E Definitions
(1) In this Part:
claimant means a claimant referred to in section 32F.
licensee includes a former licensee.
restoration notice means a restoration notice referred to in
section 32F.
Tribunal means the Consumer, Trader and Tenancy Tribunal
established by the Consumer, Trader and Tenancy Tribunal
Act 2001.
(2) For the purposes of this Part, criminal proceedings are
commenced by the laying or filing of an information, complaint
or charge, or the issuing and filing of a court attendance notice,
in relation to the offence concerned, or in such other manner as
is referred to in the regulations.
32F Notice of entitlement to goods
(1) Application of section
This section applies where:
(a) a person (in this Part called the claimant) alleges, in a
written statement signed by the person and given to a
police officer, that any goods in the possession of a
licensee and obtained by the licensee in the course of
the conduct of a licensed business:
(i) are the property of the claimant, and
(ii) have been stolen or otherwise unlawfully
obtained from the claimant or have been pawned
or sold to the licensee without the claimant's
authority, and
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(b) the theft or other activity referred to in paragraph (a) (ii)
has been reported to a police officer on an earlier
occasion, and
(c) the claimant produces to a police officer written
documentary evidence, or a statutory declaration made
by the claimant, that appears to the officer to contain
evidence or statements acceptable to the officer for the
purpose of substantiating the claimant's title to the
goods, and
(d) the police officer to whom the evidence or statutory
declaration is produced has no reason to suspect that
any of the evidence or statements is false or misleading
in a material particular.
(2) Restoration notice
A police officer may serve on the licensee a notice (in this Part
called a restoration notice) stating that the goods must be
delivered to the claimant within the required period unless
within that period the licensee commences proceedings under
section 32G or other civil or criminal proceedings have been
commenced and are pending in relation to the goods.
(3) The restoration notice must contain such particulars and
information, and be accompanied by such material, as may be
prescribed by the regulations.
(4) Duty of licensee
The licensee must, within the required period:
(a) deliver the goods to the person specified in the
restoration notice or, if the licensee is unable to do so
because the licensee cannot locate the person or for any
other reason, to an authorised officer, or
(b) make an application under section 32G in relation to the
goods,
unless other civil or criminal proceedings have been
commenced and are pending in relation to the goods.
Maximum penalty: 50 penalty units.
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(5) If:
(a) a licensee does not comply with subsection (4) in
relation to the goods because other proceedings are
pending in relation to the goods, and
(b) the other proceedings are discontinued before judgment
is given,
subsection (4) applies to the goods as from the date on which
the proceedings are discontinued.
(6) Restoration notice ceasing to be operative
Subsection (4) ceases to apply to goods if the restoration notice
ceases to be operative.
(7) The regulations may make provision for or with respect to
prescribing circumstances in which a restoration notice ceases
to be operative or prescribing procedures compliance with
which renders a restoration notice inoperative.
(8) Definition
In this section:
required period means whichever of the following is relevant:
(a) the period of 28 days starting with the day on which a
restoration notice is served on a licensee, or
(b) the period of 28 days starting with the day on which the
other proceedings referred to in subsection (5) are
discontinued.
32G Proceedings before Tribunal for recovery of goods
(1) Application to Tribunal
A licensee may apply to the Tribunal for an order under this
section where a restoration notice has been served on the
licensee in relation to any goods in the possession of the
licensee.
Note. Section 24 of the Consumer, Trader and Tenancy Tribunal Act 2001
makes provision for applications to the Tribunal.
(2) Production of goods and appearance of interested persons
The Tribunal may make an order requiring production of the
goods and the appearance before the Tribunal of any person
who appears to the Tribunal to have a claim of ownership of,
or rights in respect of, the goods.
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(3) Order of Tribunal
The Tribunal may:
(a) make an order for the delivery of the goods to the
person who appears to be the rightful owner of the
goods, or
(b) if the rightful owner cannot be ascertained or
located--make any order with respect to the goods the
Tribunal thinks fit, or
(c) if the goods appear to have been pawned to the licensee
by the rightful owner or with the rightful owner's
authority--make an order for the delivery of the goods
to the licensee.
(4) Alternative order
Instead of making an order under subsection (3) (a), the
Tribunal may:
(a) make an order for the delivery of the goods to the
person who appears to be the rightful owner of the
goods, but giving the licensee the option of retaining the
goods and paying that person the value of the goods, as
assessed by the Tribunal, or
(b) make an order for payment to the person who appears
to be the rightful owner of the value of the goods, as
assessed by the Tribunal.
(5) Provisions relating to orders
Relief under subsection (3) (a) is at the discretion of the
Tribunal, but the designated rightful owner may choose
between the forms of relief under subsection (4).
(6) If the Tribunal makes an order under subsection (4) (a), the
Tribunal may, on the application of the designated rightful
owner, subsequently make an order for the delivery of the
goods to the designated rightful owner without giving the
licensee the option of retaining the goods and paying their
assessed value.
(7) Order for payment of money
The Tribunal may make an order for the payment (as
compensation or otherwise) to or by the licensee of an amount
of money as determined by the Tribunal at or by the time stated
in the order.
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(8) Without limiting subsection (7), the Tribunal may make an
order under that subsection for the payment to the licensee, by
the person by or on whose behalf the goods were pawned, of
the whole or a part of the amount of money determined by the
Tribunal to be payable to the licensee had the goods been
redeemed at a particular time.
(9) Claimant is party to proceedings
The claimant is the respondent in proceedings for an order
applied for under this section. This subsection does not affect
any power of the Tribunal to direct that a person be joined as
an applicant or respondent in relation to the proceedings.
(10) Enforcement of orders
Regulations under the Consumer, Trader and Tenancy
Tribunal Act 2001 may make provision for or with respect to
the manner in which an order under this section may be
enforced or satisfied. This subsection does not affect any power
of enforcement conferred by or under that Act and does not
affect any power to make regulations under that Act.
(11) Definition
In this section:
designated rightful owner means the person who appears to
the Tribunal to be the rightful owner.
32H Retention of goods covered by restoration notice
(1) If a restoration notice is served on a licensee in possession of
the goods to which the notice relates, the licensee must not:
(a) alter the form of the goods, sell them or grant any rights
over them, or
(b) cause or allow them to be altered, sold or have any
rights granted over them, or
(c) cause or allow them to be redeemed or removed,
except:
(d) with the consent of the claimant, or
(e) in accordance with the regulations.
Maximum penalty: 50 penalty units.
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(2) Subsection (1) ceases to have effect in relation to the goods
concerned:
(a) when the goods are delivered to the claimant, or
(b) when the restoration notice ceases to be operative, or
(c) when the Tribunal or a court makes an order relating to
the delivery of the goods or the ownership or
entitlement to possession of the goods or an order
declaring that the goods are not the property of the
claimant.
(3) This section does not affect the operation of section 21.
32I Role of courts
(1) Local Courts do not have jurisdiction to determine an action
referred to in section 28A of the Local Courts (Civil Claims)
Act 1970 brought by a claimant in connection with goods that
are in the possession of a licensee and to which a restoration
notice relates, unless:
(a) the regulations otherwise provide, or
(b) the Tribunal does not have jurisdiction to hear and
determine an application for an order under section 32G
in relation to the goods, or
(c) the Tribunal has directed that proceedings to hear and
determine such an application be stayed on the ground
that the Tribunal does not have jurisdiction to make an
order as sought because of monetary limits on the
jurisdiction of the Tribunal.
(2) If proceedings for the recovery of pawned goods are
commenced in any other court, that other court may, without
affecting any power vested in it, hear and determine the
proceedings in accordance with that section.
32J Role of authorised officers
(1) An authorised officer may act on behalf of a claimant for the
purposes of this Part.
(2) It is the duty of an authorised officer (other than a police
officer) to whom a claimant resorts for assistance in pursuance
of the claimant's rights under this Part or otherwise in
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connection with any goods in the possession of a licensee to
assist the claimant to the greatest practicable extent by acting
on his or her behalf as permitted by this Part and by the
exercise, in pursuit of the claimant's rights, of any other powers
conferred on the officer by or under this Act.
(3) The regulations may make provision for or with respect to the
handling and disposition of goods delivered to an authorised
officer under section 32F (4).
32K False or misleading allegation or evidence
(1) A person must not make an allegation to a police officer for the
purposes of section 32F knowing that, or being reckless as to
whether or not, the allegation is false or misleading in a
material particular.
(2) A person must not produce to a police officer any evidence for
the purposes of section 32F that the person knows is false or
misleading in a material particular.
Maximum penalty: 50 penalty units.
32L Signage to be displayed
A licensee must cause a notice relating to the operation of this
Part in the form and of the appearance prescribed by the
regulations to be displayed in a prominent position in each of
the business premises of the licensee to which the public has
access so that the notice is clearly visible to the public.
Maximum penalty: 20 penalty units.
32M Directions by court for restoration of goods
(1) A court that, in any criminal proceedings:
(a) finds that any goods have been stolen or that possession
of any goods has been taken unlawfully, and
(b) believes that the goods are in the possession of a
licensee,
must, unless it is satisfied in a particular case that there is good
reason why such a direction should not be given, by order
direct the Commissioner of Police or a police officer specified
in the direction to take the goods into police custody.
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(2) It is the duty of the Commissioner of Police or police officer
concerned to comply with the direction without delay.
(3) Part 6 of the Criminal Procedure Act 1986 applies to the goods
of which possession is taken in compliance with the direction
of a court under this section.
(4) The power conferred on a court by this section is in addition to
any other power or discretion vested in it.
Note. Section 126 of the Criminal Procedure Act 1986 also empowers
courts to order restoration of property in criminal proceedings.
[32] Section 33A
Insert after section 33:
33A Duty of licensee to report certain offences
(1) If a licensee is convicted in New South Wales or elsewhere of
an offence involving dishonesty, the licensee must notify the
Director-General in writing of the conviction within the period
of 28 days commencing with the date of the conviction.
(2) If an employee of a licensee is convicted of an offence
involving dishonesty, the licensee must notify the Director-
General in writing of the conviction within the period of 28
days commencing with the date on which the licensee became
aware of the conviction.
(3) It is a defence if the licensee establishes that the licensee
believed on reasonable grounds that the Director-General was
already aware of the details of the conviction.
Maximum penalty: 50 penalty units.
[33] Section 34 Notices to show cause why licence should not be revoked
Omit section 34 (1) (c). Insert instead:
(c) who, or one of whose employees, has contravened a
provision of this Act or any other Act administered by
the Minister, or the regulations under any such Act,
whether or not the licensee or employee has been
prosecuted for or convicted of an offence in respect of
the contravention, or
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(c1) who, or one of whose employees, has been convicted of
an offence involving dishonesty that was recorded since
the licensee's licence was issued or last renewed
(whichever is the later), or
[34] Section 34 (1) (j)
Omit the paragraph. Insert instead:
(j) who in any other manner has become a disqualified
person,
[35] Section 34 (2)
Insert "(c1)," after "(c),".
[36] Section 36 Disciplinary action by Director-General
Omit section 36 (4).
[37] Section 36A
Insert after section 36:
36A Disciplinary action against former licensees
(1) Service of show cause notices on former licensees (application
of section 34)
The provisions of section 34 apply to a former licensee in the
same way as they apply to a licensee, but not in respect of
matters that occurred or came into being after the person ceased
to be a licensee.
(2) However, a notice may only be served under section 34 (as
applied by this section) on a person who has held a licence
within the period of 12 months ending with the date of service
of the notice.
(3) Former licensee may adduce evidence (application of section 35)
The provisions of section 35 apply to a former licensee on
whom:
(a) a notice has been served under section 34 when the
person was a licensee, or
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(b) a notice has been served under section 34 (as applied by
this section) after the person ceased to be a licensee,
in the same way as they apply to a licensee.
(4) Disciplinary action by Director-General against former licensee
(provisions corresponding to section 36)
The Director-General may undertake such inquiry and
investigation in relation to the matters to which any such notice
relates, and any submissions made and evidence adduced by or
on behalf of the former licensee in relation to those matters, as
the Director-General thinks fit.
(5) If, after such inquiry and investigation, the Director-General is
satisfied on the balance of probabilities that the ground of any
such notice has been substantiated against the former licensee,
the Director-General may make either or both of the following
determinations:
(a) a determination that a licence is not to be granted to the
former licensee for a specified period,
(b) a determination that a licence is not to be granted to the
former licensee, or that a licence held by the former
licensee is not to be renewed, in future unless one or
more specified conditions are attached to it.
(6) A determination under subsection (5) (a) precludes the grant of
a licence to the former licensee for the specified period.
(7) Continuation under this section if person ceases to be licensed
If:
(a) a notice has been served under section 34 on a person
who was a licensee when the notice was served, and
(b) the person ceases to be licensed before the matters
raised by the notice are finalised,
the matters may continue to be dealt with under this Part, as if
anything done or omitted to be done under sections 3436 in
relation to the person as a licensee had been done or omitted to
be done under this section in relation to the person as a former
licensee.
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[38] Section 36B
Insert before section 37:
36B Decision to take no further action
The Director-General may, at any stage of a matter that is the
subject of consideration by the Director-General under this Part,
determine to take no further action in respect of the matter,
whether or not the matter is the subject of a notice under
section 34 (or that section as applied by section 36A) and
whether or not the Director-General determines that the ground
of any such notice has been substantiated.
[39] Section 38 Dealings that give rise to presumption of carrying on
business
Omit "more than 12 days in any period of 12 months" from section 38 (1).
Insert instead "more than 6 days in any period of 12 months".
[40] Section 38A
Insert after section 38:
38A Redemption of pawned goods if licence revoked, suspended,
surrendered or not renewed
(1) If a licence is:
(a) revoked or suspended by the Director-General, or
(b) surrendered or not renewed,
the Director-General may, where the licensed business
concerned consisted of or included pawnbroking, make such
order as the Director-General thinks fit in relation to the
redemption of the goods held in the course of that business.
(2) Without limiting subsection (1), an order under this section may
require a specified person to cause possession of goods to be
given to a person entitled to redeem them at specified premises.
(3) The specified person is, by force of this section, empowered:
(a) to comply with the order even though the person is not
or is no longer authorised to conduct a business
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consisting of or including pawnbroking at the specified
premises, or
(b) to comply with the order even though the person is not
or is no longer authorised to conduct a business
consisting of or including pawnbroking anywhere in the
State.
(4) An order under this section has effect despite any other
provision of this Act or the regulations.
(5) A person must not, without reasonable excuse, fail to comply
with an order made under this section.
Maximum penalty: 50 penalty units.
[41] Section 39 Review of decisions of Director-General
Insert after section 39 (1):
(1A) On an application under subsection (1) for a review of a
decision of the Director-General refusing to grant a licence to
a person because the person is disqualified under section 8A (2)
(a) or (3) (a):
(a) the Administrative Decisions Tribunal may determine
that the fact that the person committed the offence
concerned should be ignored on one or more of the
grounds referred to in section 8A (4), and
(b) the licence may be granted accordingly.
[42] Section 40A
Insert after section 40:
40A Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each executive officer
of the corporation is taken to have contravened the same
provision if the person knowingly authorised or permitted the
act or omission constituting the offence.
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(2) A person may be proceeded against and convicted under a
provision pursuant to subsection (1) whether or not the
corporation has been proceeded against or convicted under that
provision.
(3) Nothing in subsection (1) prejudices or affects any liability
imposed by a provision of this Act or the regulations on any
corporation by which an offence against the provision is
actually committed.
[43] Section 43 Regulations
Insert after section 43 (1) (c):
(c1) the carrying on of a business as a second-hand dealer or
pawnbroker or both,
[44] Section 43 (1) (i)
Insert after section 43 (1) (h):
(i) exemptions from the operation of this Act or specified
provisions of this Act, either unconditionally or subject
to conditions.
[45] Section 43 (3)
Insert after section 43 (2):
(3) The regulations may specify monetary limits on the jurisdiction
of the Consumer, Trader and Tenancy Tribunal to hear and
determine applications under section 32G or on the jurisdiction
of the Tribunal to make orders under that section, whether or
not by reference to:
(a) the value of the goods concerned (as assessed in
accordance with the regulations), or
(b) in the case of pawned goods--the amount of the
principal lent on the goods, or
(c) an amount that is the subject of a proposed order of the
Tribunal.
Any such limits have effect despite anything in any other Act
or regulation under any other Act.
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[46] Section 43 (4)
Insert at the end of section 43:
(4) Section 4 (2) does not limit the power to make regulations
under subsection (1) (i) of this section.
[47] Section 44
Insert after section 43:
44 Disclosure or use of personal information by licensees and
others
(1) A person who is or was involved in the management of a
licensed business must not disclose any information, about a
person or a person's affairs, obtained under this Act or the
regulations in the course of conducting the licensed business,
unless that disclosure is made:
(a) with the consent of the person from or about whom the
information was obtained, or
(b) to any other person involved in the management of the
licensed business, or
(c) in connection with the administration or execution of
this Act, or
(d) to a regulatory officer or law enforcement officer, for
the purpose of assisting the officer in the exercise of the
officer's functions, or
(e) for the purposes of any legal proceedings, or
(f) as authorised by regulations made for the purposes of
this subsection, or
(g) as otherwise authorised by or under this Act, or
(h) with other lawful excuse.
(2) This section is in addition to, and does not affect, any other law
relating to the confidentiality or disclosure of information.
(3) For the purposes of this section, a person is or was involved in
the management of a licensed business if the person is or was:
(a) the licensee in respect of the licensed business, or
(b) an employee of the licensee, or
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(c) in the case of a corporate licensee--an executive officer
of the corporation, or
(d) a person of a class or description prescribed by the
regulations.
(4) In this section:
law enforcement officer means:
(a) a member of NSW Police, the Australian Federal Police
or the police or police force of another State or
Territory, or
(b) the Director of Public Prosecutions, or a Crown
Prosecutor, of the State, the Commonwealth or another
State or Territory, or
(c) any other person, or officer of an authority, responsible
for the investigation or prosecution of offences under
laws of the State, the Commonwealth or another State
or Territory.
regulatory officer means an officer or employee of a
government agency (including the government of a jurisdiction
within or outside Australia) exercising functions under:
(a) an enactment with respect to fair trading, or
(b) an enactment that provides for the issue of licences or
other authorities in connection with the undertaking of
an activity regulated under the enactment.
Maximum penalty: 50 penalty units.
[48] Sections 44A and 44B
Insert before section 45:
44A No contracting out of Act
(1) A provision in or condition of an agreement or arrangement is
of no effect to the extent that it would operate to exclude,
modify or restrict the operation of this Act or any provision of
this Act.
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(2) A licensee must not enter into an agreement or arrangement if
a provision in or condition of the agreement or arrangement
would (but for subsection (1)) operate to exclude, modify or
restrict the operation of this Act or any provision of this Act.
Maximum penalty: 50 penalty units.
44B No contracting out of liability for loss or damage
A provision in or condition of an agreement or arrangement
(entered into in the course of a licensed business) in relation to
the liability of the licensee for the loss of, or damage to, goods
in the possession of but not owned by the licensee is of no
effect if it is less favourable to the owner of the goods than the
common law.
[49] Schedule 2 Savings and transitional provisions
Insert at the end of clause 2 (1):
the Pawnbrokers and Second-hand Dealers Amendment Act
2002
[50] Schedule 2, Part 4
Insert after Part 3:
Part 4 Provisions consequent on enactment of
Pawnbrokers and Second-hand Dealers
Amendment Act 2002
13 Definition
In this Part:
amending Act means the Pawnbrokers and Second-hand
Dealers Amendment Act 2002.
14 Licences
Except as otherwise provided by the regulations, an amendment
made by the amending Act does not affect any licence in force
immediately before the commencement of the amendment, but
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the licence and the licensee are subject to this Act as amended
by the amending Act.
15 Pawn agreements
Except as otherwise provided by this Part or the regulations, an
amendment made by the amending Act does not apply to or in
respect of a pawn agreement entered into before the
commencement of the amendment.
16 Second-hand goods
Except as otherwise provided by this Part or the regulations, an
amendment made by the amending Act does not apply to or in
respect of goods purchased by a licensee before the
commencement of the amendment.
17 Disputes as to ownership of goods (section 22 and Part 4A)
(1) Section 22, as in force before the date of its repeal by the
amending Act, continues to apply to goods in respect of which
a complaint was made under that section before that date, and
so applies as if that section had not been repealed. However,
that section does not apply in relation to a complaint made on
or after that date.
(2) Part 4A, as inserted by the amending Act, extends to goods
obtained by a licensee before the date of repeal of section 22 by
the amending Act, but not if that section applies to them
because of subclause (1).
18 Dealings that give rise to presumption of carrying on business
(amendment of section 38)
(1) In this clause:
transition date means the date on which the amendment to
section 38 made by the amending Act commenced.
(2) Section 38, as in force before the transition date, applies to any
period of 12 months commencing before the transition date.
(3) Section 38, as in force on and after the transition date, applies
to any period of 12 months commencing on or after the
transition date.
Page 38
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Act 1996 Schedule 1
Note. Section 38 provides that a person who, on more than a particular
number of days in any period of 12 months, sold any second-hand goods
is presumed to be carrying on a business of buying or selling second-hand
goods. The effect of clause 18 of this Schedule is that the number of days
remains at 12 for any period of 12 months commencing before the
transition date, and decreases to 6 for any period of 12 months
commencing on or after the transition date.
19 Duty of licensee to report certain offences (section 33A)
Section 33A as inserted by the amending Act does not apply to
convictions recorded before the commencement of that section.
20 Disciplinary action (sections 3436B)
(1) Disciplinary action may continue in relation to existing show
cause notices
Except as otherwise provided by this Part or the regulations,
where a notice under section 34 was served before the
commencement of an amendment to that section made by the
amending Act:
(a) the amendment does not affect disciplinary action being
taken in respect of a matter to which the notice relates,
and
(b) disciplinary action may accordingly continue despite the
amendment.
(2) New show cause notices
Section 34 (1) (c), (c1) or (j) as inserted by the amending Act
applies only to matters that occur or come into being after the
commencement of the paragraph concerned, but extends to
matters to which section 34 (1) (c) or (j) applied before that
commencement.
(3) Former licensees
Section 36A as inserted by the amending Act does not apply to
matters that occurred or came into being before the
commencement of that section, except where that section
applies by the operation of section 36A (7).
(4) Decision to take no further action
Section 36B as inserted by the amending Act extends to a
matter in respect of which a notice under section 34 was served
before the commencement of section 36B.
Page 39
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 1 Amendment of Pawnbrokers and Second-hand Dealers Act 1996
21 Reference to section 23 of this Act in Justices Legislation Repeal
and Amendment Act 2001
(1) The reference in Schedule 2.162 [1] to the Justices Legislation
Repeal and Amendment Act 2001 to section 23 of this Act is to
be read as a reference to section 32M as inserted by the
amending Act.
(2) If Schedule 2.162 [1] to the Justices Legislation Repeal and
Amendment Act 2001 commences before the commencement
of section 32M, then section 32M (3) is amended by omitting
"Part 6" and inserting instead "Part 2 of Chapter 7".
Page 40
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997 Schedule 2
Schedule 2 Amendment of Pawnbrokers and
Second-hand Dealers Regulation 1997
(Section 4)
[1] Clause 5 Meaning of "market"
Omit "more than 12 days in the period of 12 months" from clause 5 (b) (ii).
Insert instead "more than 6 days in the period of 12 months".
[2] Clause 6 Meaning of "second-hand goods"
Omit clause 6 (1) (d). Insert instead:
(d) musical instruments (but not including pianos other than
electric or electronic pianos),
[3] Clause 6 (1) (h) and (h1)
Omit clause 6 (1) (h). Insert instead:
(h) computer hardware and interactive game consoles,
(h1) computer software and interactive game software,
[4] Clause 6 (1) (i)
Omit the paragraph. Insert instead:
(i) compact (laser-read) discs (including compact discs,
digital video discs and mini discs), and similar items
that are used or designed for use with electric or
electronic audio, visual or audio-visual systems,
Page 41
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 2 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
[5] Clause 6 (3)
Insert after clause 6 (2):
(3) In this clause:
interactive game console means equipment for the playing of
a game:
(a) that involves a display on a computer monitor,
television screen, liquid crystal display or similar
medium, and
(b) where the way in which the game proceeds and the
result achieved at various stages of the game is
determined in response to the decisions, inputs and
direct involvement of the player.
interactive game software includes software (whether in a disc
or cartridge or otherwise) that comprises a game and that is
used or designed for use with an interactive game console.
[6] Clause 6A Act does not apply to local government recycling programs
Omit "a local government council or any employee of a local government
council".
Insert instead "an approved person".
[7] Clause 6A (2)
Insert at the end of clause 6A:
(2) A person is an approved person for the purposes of this clause
if the person is:
(a) a local government council or an employee of a local
government council, or
(b) a contractor, or an employee of a contractor, when
acting on behalf of a local government council under a
contract relating to the recycling program concerned
(but only if tenders were invited for the contract and the
contractor was the successful tenderer).
Page 42
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997 Schedule 2
[8] Clause 13 Records generally
Omit ", and that number must be reproduced on a tag, label or other
attachment to the item" from clause 13 (5).
[9] Clause 14 Records of goods pawned, purchased or sold
Omit clause 14 (1) (a). Insert instead:
(a) if the pledgor is:
(i) an individual--the name, residential address,
date of birth and signature of the individual, or
(ii) a corporation--the name, business address and
Australian Business Number of the corporation,
and a statement signed by an executive officer of
the corporation consenting to the transaction,
(a1) if the transaction is conducted by an individual acting as
agent of the pledgor--the name, residential address, date
of birth and signature of the agent,
[10] Clause 14 (1) (d1)
Insert after clause 14 (1) (d):
(d1) the name and address of the purchaser of any forfeited
item sold, except in cases where:
(i) the principal lent on the goods did not exceed
$50, or
(ii) the goods were sold by auction conducted away
from business premises of the pawnbroker,
[11] Clause 14 (2) (a) and (a1)
Omit clause 14 (2) (a). Insert instead:
(a) if the vendor or consignor is:
(i) an individual--the name, residential address and
date of birth of the individual, or
(ii) a corporation--the name, business address and
Australian Business Number of the corporation,
(a1) if the transaction is conducted by an individual acting as
agent of the vendor or consignor--the name, residential
address and date of birth of the agent,
Page 43
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 2 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
[12] Clause 14 (2) (d)
Omit "(otherwise than at a market)".
[13] Clause 14 (2) (f)
Omit the paragraph. Insert instead:
(f) the price paid by the licensee for any goods purchased
by the licensee,
[14] Clause 14 (4)(7)
Insert after clause 14 (3):
(4) For the purposes of section 16 (1) of the Act, a record required
to be kept regarding the acquisition of second-hand goods by
the holder of a licence to carry on the business of a second-
hand dealer must be made:
(a) by close of business on the day on which the goods
were acquired by the licensee, or
(b) as soon as possible after the acquisition of the goods, if
they were received by the licensee at premises other
than those nominated in the licensee's application for a
licence or afterwards notified to the Director-General.
(5) For the purposes of section 16 (1) of the Act, a record required
to be kept regarding the disposal of second-hand goods by the
holder of a licence to carry on the business of a second-hand
dealer must be made by close of business on the day on which
the goods were disposed of by the licensee.
(6) Nothing in subclause (4) or (5) affects any other obligation
imposed on a licensee.
(7) In this clause:
business address of a corporation means the address of the
corporation's registered office.
[15] Clause 18 Evidence of identity and title of supplier of goods
Omit "either" from clause 18 (1).
Page 44
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997 Schedule 2
[16] Clause 18 (1) (b), (c) and (d)
Insert at the end of clause 18 (1) (b):
, or
(c) a card or document (including, for example, a foreign
passport) that:
(i) on the face of it, appears to be issued by the
government or a government authority of a
foreign country, and includes the information
and features described in paragraph (a) (i) and
(iii) (including the customer's permanent or
temporary residential address in Australia), and
(ii) does not, on the face of it, bear any indications
of forgery or tampering, or
(d) a combination of cards or documents (including, for
example, a foreign passport):
(i) one of which, on the face of it, appears to be
issued by the government or a government
authority of a foreign country, and includes the
information and features described in paragraph
(a) (i) and (iii) (but not including the customer's
permanent or temporary residential address in
Australia), and
(ii) one of which, on the face of it, appears to be
issued by the government or a statutory authority
of New South Wales or the Commonwealth or
a State or Territory of the Commonwealth and
that includes the customer's permanent or
temporary residential address in Australia, and
(iii) none of which bears, on the face of it, any
indications of forgery or tampering.
[17] Clause 18 (2)
Insert "if the person is an individual," before "the person's date of birth"
where firstly occurring.
Page 45
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 2 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
[18] Clause 18 (2A)
Insert after clause 18 (2):
(2A) For the purposes of section 15 (1B) of the Act, if the person is
a corporation, the corporation's Australian Business Number is
prescribed as a particular relating to the identity of the person.
Evidence of the Australian Business Number must be given in
documentary form.
[19] Clause 18 (4)
Insert after clause 18 (3):
(4) In this clause:
foreign country means a country other than Australia, and
includes a state, province or other part of such a country.
[20] Clause 18A
Insert after clause 18:
18A Contract or stock number to be reproduced on tag, label or other
attachment
(1) A licensee must ensure that:
(a) the contract number, or
(b) a stock number,
for each item taken in trade or pawn during the course of the
licensee's business is reproduced on a tag, label or other
attachment to the item.
(2) In this clause:
contract number for an item is the number referred to in clause
14 (1) (b) or (2) (b) in relation to the item.
stock number for an item is a number that:
(a) is uniquely assigned by the licensee to distinguish the
item from any other item held by the licensee in the
course of the licensee's business, and
(b) is the same as or different from the contract number for
the item, and
(c) is recorded electronically and in paper form, and
Page 46
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997 Schedule 2
(d) is linked to the contract number for the item in the
electronic and paper record.
Maximum penalty: 20 penalty units.
[21] Clause 19 Retention of goods by licensee
Insert at the end of clause 19 (1) (c):
, or
(d) goods purchased by tender or auction from:
(i) a Government Department, or
(ii) a State owned corporation, or
(iii) a statutory authority constituted by or under an
Act for a public purpose.
[22] Clause 20 Goods alleged to be stolen in possession of licensee
Omit the clause.
[23] Clause 22A
Omit the clause. Insert instead:
22A Pawnbroker's record of pledges
(1) For the purposes of section 28 (2) (a) of the Act:
(a) a fair and reasonable description of a compact (laser-
read) disc or similar item (as referred to in clause
6 (1) (i)) must include:
(i) the title of the disc or item or of any film
recorded on it, and
(ii) the name of any one or more of any artists or
groups whose performance is or performances
are recorded on it, and
(b) a fair and reasonable description of a mobile phone
must include its International Mobile Equipment
Identity (IMEI) number, and
Page 47
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 2 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
(c) a fair and reasonable description of goods that are
marked with a bar code must include the machine-
readable number designated by the bar code or the
human-readable number shown in the bar code marking.
(2) For the purposes of section 28 (2) (f) of the Act:
(a) particulars of:
(i) the date of birth of the owner of the goods, if the
owner is an individual, or
(ii) the Australian Business Number of the owner of
the goods, if the owner is a corporation, and
(b) if the goods are pawned by an individual as agent of the
owner of the goods--particulars of the date of birth of
the agent,
are prescribed as particulars required to be included in the
record of an agreement by which goods are pawned.
[24] Clause 23
Insert before clause 24:
23 Additional particulars or information to be disclosed in or to
accompany pawn ticket
For the purposes of section 28 (5A) (d) of the Act, the
following particulars or information are to be disclosed in a
notice incorporated in or accompanying a pawn ticket:
(a) a statement of the frequency with which interest charges
are to be debited and of the times at which interest
charges are payable, and
(b) a statement to the effect that, if provision is made for
interest charges to be payable at intervals of greater than
one month, the interest charges may instead be paid at
monthly intervals at the option of the person who
pawned the goods, and
(c) particulars of the address of the premises where the
goods will be located during the redemption period, and
Page 48
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997 Schedule 2
(d) if the goods consist of more than one item--a statement
as to whether or not the goods may be separately
redeemed, and
(e) the date on which the redemption period ends.
[25] Clause 24 Redemption of pawned goods
Omit "either" from clause 24 (2).
[26] Clause 24 (2) (b), (c) and (d)
Insert at the end of clause 24 (2) (b):
, or
(c) a card or document (including, for example, a foreign
passport) that:
(i) on the face of it, appears to be issued by the
government or a government authority of a
foreign country, and includes the information
and features described in paragraph (a) (i) and
(iii) (including the customer's permanent or
temporary residential address in Australia), and
(ii) does not, on the face of it, bear any indications
of forgery or tampering, or
(d) a combination of cards or documents (including, for
example, a foreign passport):
(i) one of which, on the face of it, appears to be
issued by the government or a government
authority of a foreign country, and includes the
information and features described in paragraph
(a) (i) and (iii) (but not including the customer's
permanent or temporary residential address in
Australia), and
(ii) one of which, on the face of it, appears to be
issued by the government or a statutory authority
of New South Wales or the Commonwealth or
a State or Territory of the Commonwealth and
that includes the customer's permanent or
temporary residential address in Australia, and
(iii) none of which bears, on the face of it, any
indications of forgery or tampering.
Page 49
Pawnbrokers and Second-hand Dealers Amendment Bill 2002
Schedule 2 Amendment of Pawnbrokers and Second-hand Dealers Regulation 1997
[27] Clause 24 (4)
Insert after clause 24 (3):
(4) In this clause:
foreign country means a country other than Australia, and
includes a state, province or other part of such a country.
[28] Schedule 1 Forms
Omit Form 1.
Page 50
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