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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Pawnbrokers and Second-hand Dealers
Amendment Bill 2005
CONTENTS
1. Short title 2
2. Commencement 2
3. The Act amended 2
4. Section 3 amended 2
5. Section 3A inserted 2
3A. Meaning of "pawnbroker" 2
6. Section 5 replaced 4
5. Buy-back contracts regarded as lending
money on security of pawned goods 4
7. Section 8A inserted 5
8A. Premises in respect of which licences
apply 5
8. Section 23 amended 5
9. Section 24 amended 5
10. Section 28 amended 6
11. Section 37 amended 6
12. Section 37A inserted 6
37A. Advertisements 6
13. Section 39 amended 7
14. Section 41 amended 7
15. Section 42 amended 7
16. Section 43 amended 7
17. Section 44 amended 8
18. Section 47 amended 8
19. Section 61 amended 8
20. Section 89 amended 9
21. Section 90 amended 10
22. Section 98 amended 10
23. Consequential amendment to Credit
(Administration) Act 1984 10
096--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Pawnbrokers and Second-hand Dealers
Amendment Bill 2005
A Bill for
An Act to amend the Pawnbrokers and Second-hand Dealers
Act 1994, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 1
1. Short title
This is the Pawnbrokers and Second-hand Dealers Amendment
Act 2005.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
3. The Act amended
Except as stated in section 23, the amendments in this Act are to
the Pawnbrokers and Second-hand Dealers Act 1994*.
[* Reprinted as at 6 December 2002.
10 For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 327.]
4. Section 3 amended
Section 3(1) is amended by deleting the definition of
"pawnbroker" and inserting instead --
15 "
"pawnbroker" has the meaning given by section 3A;
".
5. Section 3A inserted
After section 3 the following section is inserted --
20 "
3A. Meaning of "pawnbroker"
(1) In this Act --
"pawnbroker" means a person conducting the
business of lending money on the security of
25 pawned goods.
(2) For the purposes of this Act, goods are "pawned" if
the goods are taken into the possession of a lender of
money for the purpose of the lender relying on
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Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 5
possession of the goods as security for the repayment
of the loan.
(3) To determine for the purposes of this Act whether
goods are pawned and whether money is lent on the
5 security of pawned goods --
(a) regard is to be had to the substance of the loan
transaction rather than its form or other legal
technicalities;
(b) particular regard is to be had to the ordinary
10 understanding of the borrower as to the nature
of the loan transaction and the reason or basis
on which possession of goods is given to the
lender;
(c) it does not matter that the terms of the loan
15 transaction provide that the lender has taken
possession of the goods at the request of, or on
behalf of, the borrower or otherwise so as to
give the appearance that the lender does not
rely on possession of the goods as security for
20 the repayment of the loan; and
(d) goods can be considered pawned and money
can be considered lent on the security of
pawned goods even if the loan also gives rise to
a mortgage of the goods.
25 (4) The regulations may prescribe cases or circumstances
in which, for the purposes of this Act --
(a) the taking of goods into the possession of a
lender of money in connection with the loan is
the pawning of the goods (whether or not that
30 taking into possession is for the purpose of the
lender relying on possession of the goods as
security for the repayment of the loan);
(b) the taking of goods into the possession of a
lender of money in connection with the loan is
page 3
Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 6
not the pawning of the goods (despite that
taking into possession being for the purpose of
the lender relying on possession of the goods as
security for the repayment of the loan); or
5 (c) the taking of goods into the possession of a
person acting on behalf of, or associated with, a
lender of money is taken to be the taking of
goods into the possession of the lender.
".
10 6. Section 5 replaced
Section 5 is repealed and the following section is inserted
instead --
"
5. Buy-back contracts regarded as lending money on
15 security of pawned goods
If a person receives goods under a contract of sale
where the seller has a right to buy back the goods, then
for the purposes of this Act --
(a) the person receiving the goods is taken to be
20 lending money on the security of the goods as
pawned goods;
(b) the price at which the goods are to be sold
under the contract is taken to be the amount
lent;
25 (c) the difference between the amount lent and the
price at which the goods may be bought back is
taken to be the interest payable; and
(d) the right to buy back the goods is taken to be
the right to redeem the goods.
30 ".
page 4
Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 7
7. Section 8A inserted
After section 8 the following section is inserted --
"
8A. Premises in respect of which licences apply
5 (1) Unless the Commissioner otherwise determines in a
particular case, a licence can only apply in respect of
one location where the business premises to which the
licence applies are operated, as specified in the licence.
(2) A licence may apply in respect of one or more
10 locations where storage premises are operated for the
purposes of the business premises to which the licence
applies, as specified in the licence.
".
8. Section 23 amended
15 Section 23(1) is amended by deleting "each" and inserting
instead --
" the ".
9. Section 24 amended
After section 24(3) the following subsections are inserted --
20 "
(4) Unless it is otherwise provided in the licence, a licence
is subject to any condition or restriction prescribed by
the regulations for the purposes of this subsection.
(5) A pawnbroker or second-hand dealer must not
25 contravene or fail to comply with a condition or
restriction to which the licence is subject.
Penalty for an individual: $5 000.
Penalty for a body corporate: $20 000.
".
page 5
Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 10
10. Section 28 amended
Section 28(1)(c) is amended by deleting "business" and
inserting instead --
" the business premises and storage ".
5 11. Section 37 amended
Section 37(1)(b) is amended after "photograph" by inserting --
" or digital image ".
12. Section 37A inserted
After section 37 the following section is inserted in Part 2 --
10 "
37A. Advertisements
(1) Subject to subsections (2) and (3), a pawnbroker or
second-hand dealer must not cause or permit an
advertisement relating to the business conducted under
15 the licence to be published or displayed unless the
advertisement legibly specifies the number of the
licence.
Penalty: $2 000.
(2) If the advertisement relates to pawnbroking conducted
20 under 2 or more licences held by the same licensee, the
advertisement may specify the number of only one of
those licences.
(3) If the advertisement relates to second-hand dealing
conducted under 2 or more licences held by the same
25 licensee, the advertisement may specify the number of
only one of those licences.
".
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Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 13
13. Section 39 amended
Section 39(b) is deleted and the following paragraph is inserted
instead --
"
5 (b) has verified the person's identity by reference
to a means of identification prescribed by the
regulations.
".
14. Section 41 amended
10 Section 41(a) is amended by deleting "contract;" and inserting
instead --
"
contract, which is to be the next number in a
consecutive sequence;
15 ".
15. Section 42 amended
(1) Section 42(1) is amended at the foot of the subsection by
inserting --
" Penalty: $2 000. ".
20 (2) Section 42(3) is amended at the foot of the subsection by
deleting the penalty provision.
16. Section 43 amended
Section 43(a) is amended by deleting "contract;" and inserting
instead --
25 "
contract, which is to be the next number in a
consecutive sequence;
".
page 7
Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 17
17. Section 44 amended
(1) Section 44(1) is amended at the foot of the subsection by
inserting --
" Penalty: $2 000. ".
5 (2) Section 44(2) is amended at the foot of the subsection by
deleting the penalty provision.
18. Section 47 amended
Section 47(1) is repealed and the following subsection is
inserted instead --
10 "
(1) A pawnbroker must ensure --
(a) that all pawned goods are marked or labelled
with the distinguishing number of the contract
under which the goods were pawned; and
15 (b) in the case of pawned goods received under a
contract for sale where the seller has a right to
buy back the goods -- that the goods are
marked or labelled in a manner that identifies
them as goods that are subject to that right.
20 ".
19. Section 61 amended
Section 61 is amended by deleting "goods." and inserting
instead --
"
25 goods except by marking or labelling them as required
by section 47(2).
".
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Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 20
20. Section 89 amended
(1) Section 89(1) is repealed and the following subsections are
inserted instead --
"
5 (1) Where --
(a) a licence is held on behalf of a partnership; and
(b) a partner (whether or not the licensee) or an
employee or agent of the partnership commits
an offence against this Act,
10 subject to subsection (2), each of the partners is to be
treated as having committed an offence and is liable to
the penalty prescribed for the offence committed by the
partner or employee or agent of the partnership.
(1a) Where --
15 (a) a licence is held on behalf of a body corporate;
and
(b) the licensee or an employee or agent of the
body corporate commits an offence against
this Act,
20 the body corporate is to be treated as having committed
an offence and is liable to the penalty prescribed for the
offence committed by the licensee or employee or
agent of the body corporate.
".
25 (2) After section 89(2) the following subsection is inserted --
"
(2a) Where --
(a) it is an offence against this Act for a
pawnbroker or second-hand dealer to do or
30 omit to do any particular thing; and
(b) a partner (whether or not the licensee) of a
partnership on behalf of which, as the case
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Pawnbrokers and Second-hand Dealers Amendment Bill 2005
s. 21
requires, a pawnbroker's licence or
second-hand dealer's licence is held does or
omits to do the thing in the course of the
business conducted under the licence,
5 the partner is to be treated as having committed the
offence.
".
21. Section 90 amended
Section 90(2) is amended by deleting "21 days" and inserting
10 instead --
" 90 days ".
22. Section 98 amended
Section 98(2) is repealed.
23. Consequential amendment to Credit (Administration)
15 Act 1984
(1) The amendment in this section is to the Credit (Administration)
Act 1984*.
[* Reprint 2 as at 6 August 2004.
For subsequent amendments see 2004 Index to Legislation of
20 Western Australia, Table 1, p. 103.]
(2) Section 7(1)(f) is amended after "business" by inserting --
" as a pawnbroker ".
page 10
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