second-hand dealers and pawnbrokers act 1989file/89-54… · web view · 2015-04-22page. part...

Version No. 072

Second-Hand Dealers and Pawnbrokers Act 1989

No. 54 of 1989

Version incorporating amendments as at1 July 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 13 Definitions 24 Application 8

PART 2—REGISTRATION 9

Division 1—General 9

5 Second-hand dealers and pawnbrokers to be registered 96 Eligibility for registration 107 Application for registration 127A Application for endorsement 138 Investigation of application 148A Consideration of application 158B Authority may impose conditions 168C Notation of condition on certificate of registration 169 Registration 179AA Endorsement 179A Notice of decision 189B Application for review 1810 Automatic cancellation of registration 1910A Permission to be registered or to continue to be registered 2110B Conditions on permission 2311 Annual registration fee and statement 2311AA Annual endorsement fee 2411A Failure to comply with section 11 2411B Return of certificates of registration 2511C Surrender of registration or endorsement 2512 Notification of changes 2612A Address for notices 26

1

13 Register 2714 Correction of the register 2716 Offences 2817 Display of current registration certificate 2918 Death, disability etc. of registered person 29

Division 2—Disciplinary action 31

18A Disciplinary action 3118B Determination of disciplinary measures by Tribunal 3218C Effect of suspension 3518D Suspended and cancelled certificates of registration must be

returned 35

PART 3—CONDUCT OF BUSINESS 36

19 Identifying persons selling or pawning goods 3620 Recording transactions 3721 Retention of goods for seven days 3721A Recording storage location of goods 3722 Co-operation with police 3723 Contracts for pawning goods 3823A Return of residual equity in unredeemed goods that are sold 40

PART 4—DISPUTES AS TO THE OWNERSHIP OF GOODS 43

24 Magistrates' Courts to determine disputes 4324A Offence of failing to comply with court order 4524B Sign to be displayed 45

PART 5—ENFORCEMENT 46

Division 1—General 46

25 Police powers generally 4626 Notice to stop dealings in goods suspected of having been

stolen 47

Division 2—Enforcement—pawnbrokers 48

26A Definition 4826B Production of identity card 4826C Documents available for inspection 4826D Specified persons to produce documents and answer questions 4926E Third parties to produce documents and answer questions

relating to endorsed pawnbroker's business 5026F Department Heads, police and public authorities to produce

information to inspectors 5126G Certain other specified persons or bodies to produce

information 51

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26H Powers on production of documents 5226I Order requiring supply of information and answers to

questions 5326J Entry or search with consent 5426K Entry without consent or warrant 5626L Search warrants 5726M Announcement before entry 5826N Details of warrant to be given to occupier 5926O Seizure of things not mentioned in the warrant 5926P Embargo notice 6026Q Copies of seized documents 6126R Retention and return of seized documents or things 6126S Magistrates' Court may extend 3 month period 6226T Requirement to assist inspector during entry 6226U Refusal or failure to comply with requirement 6326V Rule against self-incrimination does not apply 6326W Offence to give false or misleading information 6326WA Powers of court if requirement to produce information not

complied with 6426X Application of provisions relating to inspections 6426Y Service of documents 6526Z Confidentiality 65

Division 3—Infringement notices 66

26ZA Definition 6626ZB Power to serve a notice 6626ZC Form of notice 6726ZF Further proceedings concerning infringement notices 67

PART 6—GENERAL 68

27 Service 6828 Delegation by Director 6928A Production of information to Authority 6928B Rule against self-incrimination does not apply 7028C Verification of details supplied to the Authority 7028D Extended time for prosecutions 7028E Who may bring proceedings for offences? 7029 Evidentiary provisions 7130 Application of Australian Consumer Law and Fair

Trading Act 2012 7231 Regulations 73

__________________

SCHEDULE 76

═══════════════

3

ENDNOTES 77

1. General Information 77

2. Table of Amendments 78

3. Explanatory Details 83

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Version No. 072

Second-Hand Dealers and Pawnbrokers Act 1989

No. 54 of 1989

Version incorporating amendments as at1 July 2014

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are—

(a) to provide for the regulation of second-hand dealers and pawnbrokers; and

(b) to facilitate and expedite the recovery of stolen goods from second-hand dealers and pawnbrokers; and

(c) to enhance protection of consumers dealing with second-hand dealers and pawnbrokers.

2 Commencement

(1) This Act (apart from section 35(6) and (7)) comes into operation on a day to be proclaimed.

(2) Section 35(6) and (7) comes into operation at the same time as Part 2 of the Magistrates' Court Act 1989.

1

S. 1(a) amended by No. 93/2001 s. 4(a).

S. 1(b) amended by No. 93/2001 s. 4(b).

S. 1(c) inserted by No. 93/2001 s. 4(c).

3 Definitions

(1) In this Act—

associate, in relation to a person, means—

(a) a spouse or domestic partner of the person, other than a spouse or domestic partner—

(i) who is not, and has never been, involved in the person's business as a second-hand dealer or pawnbroker; or

(ii) who will not be involved in the person's proposed business as a second-hand dealer or pawnbroker; or

(b) a business partner of the person; or

(c) a participant in a business arrangement or relationship with the person in respect of a second-hand dealing or pawnbroking business;

auctioneer means any person—

(a) who sells or attempts to sell or offer for sale or resale any goods by way of auction; or

(b) who acquires any goods for sale by auction.

Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;

computer means a machine that is capable of recording or storing information electronically;

2

s. 3

S. 3(1) def. of associate inserted by No. 44/1997s. 36(1)(a), amended by Nos 101/1998 s. 12(a) 27/2001 s. 8(Sch. 6 item 7.1(b)).

S. 3(1) def. of auctioneer inserted by No. 84/2001 s. 12(1).

S. 3(1) def. of Authority inserted by No. 52/1998 s. 249(1).

S. 3(1) def. of computer inserted by No. 82/2008 s. 20.

Consumer Act has the same meaning as it has in the Australian Consumer Law and Fair Trading Act 2012;

Council means a municipal council, and includes the Council of the City of Melbourne and the Council of the City of Geelong;

Director means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;

disqualifying offence means an offence involving fraud, dishonesty, violence or drug trafficking punishable on conviction by—

(a) in the case of a natural person, imprisonment for 3 months or more (whether or not in addition to a fine); or

(b) in the case of a body corporate, a fine of 100 penalty units or more;

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of

3

S. 3(1) def. of Consumer Act inserted by No. 93/2001 s. 5, amended by No. 21/2012 s. 239(Sch. 6 item 41.1).

S. 3(1) def. of Director inserted by No. 52/1998 s. 249(1), substituted by No. 17/1999 s. 46, amended by No. 21/2012 s. 239(Sch. 6 item 41.2).

S. 3(1) def. of disqualifying offence inserted by No. 44/1997s. 36(1)(a).

s. 3

S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 7.1(a)), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 55.1).

a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

endorsed pawnbroker means a person whose registration is endorsed under Part 2;

endorsement means endorsement under Part 2 to carry on business as a pawnbroker;

externally-administered body corporate has the same meaning as in the Corporations Act;

4

S. 3(1) def. of endorsed pawnbroker inserted by No. 93/2001 s. 5.

S. 3(1) def. of endorsement inserted by No. 93/2001 s. 5.

S. 3(1) def. of externally-administered corporation inserted by No. 44/1997s. 36(1)(a), substituted as externally-administered body corporate by No. 101/1998 s. 12(b), amended by No. 44/2001 s. 3(Sch. item 101.1).

s. 3

financial institution means—

(a) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; or

(b) a body approved by the Governor in Council by order published in the Government Gazette;

* * * * *

inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;

occupier, in relation to premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;

pawnbroker means a person who carries on the business of advancing money on the security of pledged goods;

police officer has the same meaning as in the Victoria Police Act 2013;

5

S. 3(1) def. of financial institution inserted by No. 93/2001 s. 5.

S. 3(1) def. of insolvent under administration inserted by No. 44/1997s. 36(1)(a), substituted by No. 101/1998 s. 12(c), repealed by No. 4/2008 s. 32(Sch. item 30).

S. 3(1) def. of inspector inserted by No. 93/2001 s. 5, amended by No. 21/2012 s. 239(Sch. 6 item 41.3).

s. 3

S. 3(1) def. of occupier inserted by No. 93/2001 s. 5.

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 150.1).

registered second-hand dealer means a person registered under Part 2;

Registrar means the Registrar of the Authority appointed under the Business Licensing Authority Act 1998;

registration means registration under Part 2 to carry on business as a second-hand dealer;

second-hand dealer means a person who carries on the business of buying, selling, exchanging or otherwise dealing in second-hand goods, whether or not he or she deals in other goods and regardless of where goods are bought;

second-hand goods means any goods which have been worn or otherwise used;

* * * * *

spouse of a person means a person to whom the person is married;

6

S. 3(1) def. of registered second-hand dealer inserted by No. 93/2001 s. 5.

S. 3(1) def. of Registrar inserted by No. 52/1998 s. 249(1).

S. 3(1) def. of registration inserted by No. 93/2001 s. 5.

S. 3(1) def. of second-hand dealer amended by No. 44/1997s. 36(1)(b).

s. 3

S. 3(1) def. of Secretary inserted by No. 44/1997s. 36(1)(a), repealed by No. 52/1998 s. 249(2).

S. 3(1) def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 7.1(a)).

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.

(2) For the purposes of this Act—

(a) a person shall be deemed to have advanced money on the security of pledged goods, and to have received the goods in pawn, if he or she receives them under a contract for their sale under or in conjunction with which he or she gives the vendor the right to repurchase the goods (commonly known as a "buy back"); and

(b) in such a case, the price at which the goods are sold shall be deemed to be the principal sum advanced and the difference between that amount and the price at which the goods may be repurchased shall be deemed to be the total amount of interest payable.

(3) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

7

S. 3(1) def. of Tribunal inserted by No. 52/1998 s. 249(1).

s. 4

S. 3(2)(a) amended by No. 44/1997s. 36(2).

S. 3(3) inserted by No. 27/2001 s. 8(Sch. 6 item 7.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 55.2).

4 Application

Nothing in this Act applies to—

(a) an auctioneer acting in his or her capacity as auctioneer; or

(aa) any goods acquired by an auctioneer for the purpose of auction for so long as they are in his or her possession in his or her capacity as auctioneer; or

(b) a licensed firearms dealer or a firearm within the meaning of the Firearms Act 1996; or

(c) a person conducting a fundraising appeal within the meaning of and as permitted by the Fundraising Act 1998; or

(d) goods subject to a hire-purchase agreement or a bailment; or

(e) persons or goods exempted under the regulations from the application of the whole or any provision of this Act or the regulations; or

(f) a licensed motor car trader under the Motor Car Traders Act 1986 in buying, selling, exchanging or otherwise dealing in a motor car (within the meaning of that Act) in accordance with that Act.

_______________

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s. 4

S. 4(a) substituted by No. 84/2001 s. 12(2).

S. 4(aa) inserted by No. 84/2001 s. 12(2).

S. 4(b) substituted by No. 66/1996 s. 206.

S. 4(c) amended by Nos 78/1998 s. 73(2), 2/2009 s. 24.

S. 4(e) amended by Nos 74/1996 s. 54(1), 44/1997 s. 37.

S. 4(f)inserted by No. 74/1996 s. 54(1).

s. 4

PART 2—REGISTRATION

Division 1—General

5 Second-hand dealers and pawnbrokers to be registered

(1) Subject to this Act, a person must not, either alone or in partnership, carry on business as a second-hand dealer unless the person is registered as a second-hand dealer under this Part.

Penalty:100 penalty units.

(1A) Subject to this Act, a person must not, either alone or in partnership, carry on business as a pawnbroker unless—

(a) the person is registered as a second-hand dealer under this Part; and

(b) the person is authorised to carry on business as a pawnbroker by endorsement of their registration under this Part.


Pt 2 (Heading and ss 5–18) amended by No. 74/1996 s. 54(2), substituted as Pt 2 (Heading and ss 5–16) by No. 44/1997s. 38.

Pt 2 Div. 1 (Heading) inserted by No. 93/2001 s. 6.

S. 5 substituted by No. 44/1997s. 38.

s. 5

S. 5(1) amended by No. 93/2001 s. 7(1).

S. 5(1A) inserted by No. 93/2001 s. 7(2).

Part 3—Conduct of Business

Second-Hand Dealers and Pawnbrokers Act 1989No. 54 of 1989

9

(2) Despite subsection (1), a person who holds a motor car trader's licence under the Motor Car Traders Act 1986 may buy, sell, exchange or otherwise deal in second-hand goods that are motor car parts without being registered under this Part, but must in all other respects comply with this Act.

6 Eligibility for registration

(1) A person is not eligible to be registered or for an endorsement of the registration under this Part if—

(a) the person or, if the person is a body corporate, a director of the person, is a represented person within the meaning of the Guardianship and Administration Act 1986; or

(b) the person is an insolvent under administration or an externally-administered body corporate.

(2) Unless a person obtains the Authority's permission under section 10A, the person is not eligible to be registered or for an endorsement of the registration under this Part if—

(a) the person or an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person has,

S. 6 substituted by No. 44/1997s. 38, amended by No. 52/1998 s. 250, substituted by No. 101/1998 s. 13.

s. 6

S. 6(1) amended by No. 93/2001 s. 8(1).

S. 6(2) amended by No. 93/2001 s. 8(2)(a).



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within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; or

(ab) a body corporate has, within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence and the person was a director of the body corporate at the time the disqualifying offence was committed; or

(b) the person or an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person has carried on any occupation, profession or business that is regulated under any enactment of Victoria or of the Commonwealth or of another State or a Territory of Australia and under that enactment—

(i) the person's licence, registration or permission to carry on that occupation, profession or business is suspended; or

(ii) the person's licence, registration or permission to carry on that occupation, profession or business has been cancelled at any time in the preceding 5 years; or

(iii) the person is disqualified from carrying on that occupation, profession or business or has been so disqualified at any time in the preceding 5 years; or

(ba) a body corporate has carried on any occupation, profession or business that is regulated under any enactment of Victoria or of the Commonwealth or of another State or a Territory of Australia and under that enactment—

S. 6(2)(ab) inserted by No. 93/2001 s. 8(2)(b).

s. 6

S. 6(2)(ba) inserted by No. 93/2001 s. 8(2)(c).



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(i) the body corporate's licence, registration or permission to carry on that occupation, profession or business is suspended; or

(ii) the body corporate's licence, registration or permission to carry on that occupation, profession or business has been cancelled at any time in the preceding 5 years; or

(iii) the body corporate is disqualified from carrying on that occupation, profession or business or has been so disqualified at any time in the preceding 5 years—

and the person was a director of the body corporate at the time of the conduct which resulted in the suspension, cancellation or disqualification; or

(c) an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person is an insolvent under administration or an externally-administered body corporate.

7 Application for registration

(1) An application for registration as a second-hand dealer may be made to the Authority.

(2) An application must be—


s. 7

S. 7(1) amended by No. 52/1998 s. 251(1).



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(a) in writing in or to the effect of the form approved by the Authority and must be verified by statutory declaration; and

(b) accompanied by evidence as to the identity of—

(i) the applicant; or

(ii) if the applicant is a body corporate, the directors of the applicant—

by means of a birth certificate, passport (if the passport is current or expired for not more than 2 years), driver licence or any other document in one of the prescribed categories; and

(c) accompanied by the prescribed fee; and

(d) lodged with the Authority not less than 1 month before the day on which the applicant proposes to commence business as a second-hand dealer.

(3) If before an application is determined the applicant becomes aware of a change that has occurred in the information provided at any time by the applicant in, or in relation to, the application, the applicant must within 7 days after becoming so aware give particulars of the change to the Authority.


7A Application for endorsement

(1) A registered second-hand dealer or an applicant for registration as a second-hand dealer may apply to the Authority for an endorsement of the registration authorising the holder to carry on business as a pawnbroker.

S. 7(2)(a) amended by No. 52/1998 s. 251(1).

S. 7(2)(d) amended by Nos 52/1998 s. 251(1), 93/2001 s. 9, substituted by No. 106/2003 s. 28(1).

s. 7A

S. 7(3) inserted by No. 52/1998 s. 251(2).

S. 7A inserted by No. 93/2001 s. 10.



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(2) An application under subsection (1)—

(a) must be in writing in or to the effect of the form approved by the Authority; and

(b) may be made in conjunction with an application for registration or at any other time.

(3) If, before an application is determined, the applicant becomes aware of a change that has occurred in the information provided at any time by the applicant in, or in relation to, the application, the applicant must, within 7 days after becoming so aware, give particulars of the change to the Authority.


8 Investigation of application

(1) On receiving an application for registration as a second hand dealer or an application for endorsement as a pawnbroker, the Authority, except in the prescribed circumstances, must refer any details of the application that the Authority considers relevant to the Director and the Chief Commissioner of Police.

(1A) The Director may inquire into and report to the Authority on the application.

(2) The Chief Commissioner of Police must, not more than 14 days after receipt of details of the application by the Commissioner, enquire into and report to the Authority on the criminal record, if any, of—

(a) the applicant;


s. 8

S. 8(1) substituted by No. 52/1998 s. 252(1), amended by No. 93/2001 s. 11.


S. 8(2) amended by No. 52/1998 s. 252(2)(a)(b).



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(b) if the applicant is a body corporate, the directors of the applicant;

(c) the associates, if any, of the applicant.

(3) A report may include recommendations.

8A Consideration of application

(1) In considering an application for registration or endorsement, the Authority may—

(a) conduct any inquiries it thinks fit;

(b) require an applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

(c) seek advice and information on the application from any other person or body as it thinks fit.

(2) The Authority may engage or appoint any person to assist it in considering an application.

(3) The Authority may refuse—

(a) to register an applicant; or

(b) to endorse a registration—

if the applicant for registration or endorsement, as the case may be, does not provide the further information required within a reasonable time of the requirement being made.

(4) The Authority is not required to conduct a hearing to determine whether—

S. 8(3) inserted by No. 52/1998 s. 252(3).


s. 8A

S. 8A(1) amended by No. 93/2001 s. 12(1).

S. 8A(3) substituted by No. 93/2001 s. 12(2).

S. 8A(4) substituted by No. 93/2001 s. 12(2).



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(a) to register an applicant or refuse to register an applicant; or

(b) to endorse a registration or refuse to endorse a registration.

8B Authority may impose conditions

(1) The Authority may—

(a) impose conditions that must be complied with before it registers, or endorses the registration of, an applicant;

(b) on registering, or endorsing the registration of, an applicant or at any other time, impose conditions in respect of the registration, or endorsement of the registration, of a person;

(c) at any time on the application of any person or of its own motion, vary or revoke any conditions previously imposed.

(2) A person registered under this Part must comply with any conditions imposed in respect of the registration or endorsement of the registration.


(3) An application under subsection (1)(c), other than an application by the Director or the Chief Commissioner of Police, must be accompanied by the prescribed fee or, if no fee is prescribed, 15 fee units.

8C Notation of condition on certificate of registration

(1) If a condition in respect of the registration, or endorsement of the registration, of a person registered under this Part is imposed, varied or revoked under section 8B or 18B(1)(f), the Authority may require the person to produce the certificate of registration for notation of the condition or the variation or revocation of the condition.

S. 8B inserted by No. 93/2001 s. 13.

s. 8B

S. 8B(3) amended by Nos 106/2003 s. 28(2), 10/2004 s. 15(Sch. 1 item 26.1).

S. 8C inserted by No. 93/2001 s. 13.



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(2) A person registered under this Part must comply with the requirement under subsection (1).


9 Registration

(1) The Authority must register an applicant as a second-hand dealer unless the applicant—

(a) is not eligible under section 6 to be so registered; or

(b) has not complied with any conditions imposed under section 8B(1)(a).

(2) A registration remains in force until it is cancelled or surrendered.

* * * * *

9AA Endorsement

(1) The Authority must, on application, endorse a registration authorising the applicant to carry on business as a pawnbroker if satisfied that—

(a) the applicant is not ineligible under section 6 for an endorsement of the registration; and

(b) the applicant has complied with any conditions imposed under section 8B(1)(a); and


S. 9(1) amended by No. 52/1998 s. 254(1), substituted by No. 93/2001 s. 14.

S. 9(3) amended by No. 52/1998 s. 254(1), repealed by No. 52/1998 s. 254(2).

S. 9AA inserted by No. 93/2001 s. 15.

s. 9Part 3—Conduct of Business


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(c) the initial endorsement fee has been paid to the Authority.

(2) For the purposes of subsection (1)(c), the initial endorsement fee is the amount of the annual endorsement fee provided for under section 11AA calculated pro rata from the date of endorsement to the date on which the annual registration fee is payable under section 11(1).

(3) An endorsement remains in force until it is cancelled or surrendered.

9A Notice of decision

(1) If the Authority refuses to register an applicant or refuses to endorse the registration of an applicant, the Authority must notify the applicant in writing of the refusal within 14 days after that refusal.

(2) If the Authority registers an applicant or endorses the registration of an applicant, the Authority must as soon as practicable notify the applicant in writing of that decision.

9B Application for review

(1) A person whose interests are affected by a decision of the Authority—

(a) in respect of an application for registration under this Part; or

(ab) in respect of an application for endorsement of a registration under this Part; or


S. 9A(1) amended by No. 93/2001 s. 16(1).

S. 9A(2) amended by No. 93/2001 s. 16(2).


s. 9A

S. 9B(1) substituted by No. 101/1998 s. 14.

S. 9B(1)(ab) inserted by No. 93/2001 s. 17(1).



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(ac) to impose, vary or revoke a condition in respect of registration or endorsement under this Part; or

(b) in respect of an application for permission under section 10A; or

(c) to impose, vary or revoke a condition of a permission; or

(d) in respect of an application for permission under section 18 or any limitation on or condition of such a permission—

may apply to the Tribunal for review of the decision.

(2) An application for review must be made within 28 days after the later of—

(a) the day on which the decision is made; or

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

10 Automatic cancellation of registration

(1) A person's registration under this Part is automatically cancelled if—

(a) the person or, if the person is a body corporate, a director of the person, becomes a represented person within the meaning of the Guardianship and Administration Act 1986; or

S. 9B(1)(ac) inserted by No. 93/2001 s. 17(1).

S. 9B(1)(c) amended by No. 93/2001 s. 17(2)(a).

S. 9B(1)(d) inserted by No. 93/2001 s. 17(2)(b).

S. 10 substituted by No. 44/1997s. 38, amended by No. 52/1998 s. 256, substituted by No. 101/1998 s. 15.



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(b) the person becomes an insolvent under administration or an externally-administered body corporate.

(2) Subject to subsection (4), a person's registration under this Part is automatically cancelled 30 days after—

(a) the person or an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person is convicted or found guilty of a disqualifying offence; or

(b) the person or an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person—

(i) carries on any occupation, profession or business that is regulated under any enactment of Victoria or of the Commonwealth or of another State or a Territory of Australia; and

(ii) under that enactment has a licence, registration or permission to carry on that occupation, profession or business suspended or cancelled or is otherwise disqualified from carrying on that profession, occupation or business; or

(c) an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person becomes an insolvent under administration or an externally-administered body corporate; or

s. 10S. 10(2)(d) inserted by No. 93/2001 s. 18(b).

S. 10(2)(c) amended by No. 93/2001 s. 18(a).



20

(d) the person is notified in writing by the Authority that an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person would, if the associate or director were to apply for registration under this Part, be ineligible to be so registered.

(3) For the purposes of subsection (2)(a), a conviction or finding of guilt takes effect at the conclusion of the proceedings, whether on appeal or otherwise, or at the end of any appeal period, whichever is the later.

(4) If a person whose registration would otherwise be cancelled by subsection (2) applies for permission under section 10A within the 30 day period referred to in that subsection, the person's registration is only automatically cancelled if the application is withdrawn or refused by the Authority.

10A Permission to be registered or to continue to be registered

(1) A person who would otherwise be ineligible to be registered because of section 6(2) may apply to the Authority for permission to be registered.

(2) A person whose registration would otherwise be cancelled by section 10(2) may apply to the Authority for permission to continue to be registered.

(3) An application for permission must be—

(a) in a form approved by the Authority; and

(b) accompanied by the prescribed fee or, if no fee is prescribed, 15 fee units.


s. 10A

S. 10A(3)(b) amended by Nos 106/2003 s. 28(3), 10/2004 s. 15(Sch. 1 item 26.2).



21

(4) The Authority may give its permission if it is satisfied—

(a) that it is not contrary to the public interest for it to do so; and

(b) if the person is ineligible for registration, or would have their registration cancelled, by reason of a suspension, cancellation or disqualification in respect of an occupation, profession or business, that special circumstances led to the suspension, cancellation or disqualification; and

(c) if the person is ineligible for registration, or would have their registration cancelled, by reason of a conviction or finding of guilt of a disqualifying offence, that—

(i) the offence was not related to conduct carried out by the person—

(A) while engaging in the business of a second-hand dealer or pawnbroker; or

(B) as a director of a body corporate that engages in the business of a second-hand dealer or pawnbroker; and

(ii) special circumstances led to the offence.

(5) In considering an application under this section, the Authority may—

(a) conduct any inquiries it thinks fit;

(b) require the applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

s. 10APart 3—Conduct of Business


22

(c) seek advice and information on the application from any other person or body as it thinks fit.

(6) The Authority may refuse to give permission if the applicant does not provide the further information required within a reasonable time of the requirement being made.

(7) The Authority is not required to conduct a hearing to determine whether or not to give permission.

10B Conditions on permission

(1) In giving permission under section 10A, the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest.

(2) The Authority may at any time impose conditions in respect of the permission or vary or revoke any conditions previously imposed.

(3) A person to whom permission has been given must comply with any conditions imposed in respect of the permission.


11 Annual registration fee and statement

(1) A person registered under this Part must pay to the Authority the prescribed annual registration fee on the anniversary of the date that person was first registered under this Part.

(2) An annual registration fee may be paid at any time in the 6 weeks before it falls due.

(3) The payment must be accompanied by a statement in respect of the year up to the date the payment is made that is in a form approved by the Authority and that is signed by the person registered under this Part.


s. 10B

S. 11 substituted by Nos 44/1997s. 38, 52/1998 s. 257.



23

(4) The statement must contain any information and be accompanied by any documents required by the Authority.

11AA Annual endorsement fee

(1) A person whose registration is endorsed under this Part must pay to the Authority the prescribed annual endorsement fee or, if no fee is prescribed, an annual endorsement fee of 40 fee units.

(1A) The annual endorsement fee must be paid on the same date as the annual registration fee is payable under section 11(1).

(2) An annual endorsement fee may be paid at any time in the 6 weeks before it falls due.

11A Failure to comply with section 11

(1) If a person fails to comply with section 11 or 11AA, the Authority must give the person a written notice stating that unless the person complies with that section and also pays to the Authority the late payment or lodgement fee by the date specified in the notice, the person's registration or endorsement, as the case may be, will be cancelled.

S. 11AA inserted by No. 93/2001 s. 19.

s. 11AA

S. 11AA(1) substituted by No. 106/2003 s. 28(4), amended by No. 10/2004 s. 15(Sch. 1 item 26.3).S. 11AA(1A) inserted by No. 106/2003 s. 28(4).


S. 11A(1) amended by No. 93/2001 s. 20(1)(a)–(c).



24

(2) The date specified in the notice must be at least 14 days after the date on which the notice is given to the person.

(3) If the person has not complied with section 11 or 11AA and paid the late payment or lodgement fee by the date specified in the notice, the registration or endorsement, as the case may be, is automatically cancelled.

(4) The fee for late payment or lodgement is the prescribed fee or, if no fee is prescribed, 2 fee units.

11B Return of certificates of registration

Subject to section 18D, a person registered, or whose registration is endorsed, under this Part must return the certificate of registration to the Authority within 7 days of—

(a) becoming aware of the cancellation of the registration; or

(b) becoming aware of the cancellation of an endorsement of the registration; or

(c) ceasing to carry on business as a second-hand dealer or pawnbroker.


11C Surrender of registration or endorsement

(1) Subject to subsection (3), a person registered under this Part may at any time by notice in writing to the Authority, surrender the registration.

S. 11A(3) amended by No. 93/2001 s. 20(2)(a)(b).

S. 11A(4) inserted by No. 93/2001 s. 20(3), substituted by No. 106/2003 s. 28(5), amended by No. 10/2004 s. 15(Sch. 1 item 26.4).

S. 11B inserted by No. 52/1998 s. 257, substituted by No. 93/2001 s. 21.

s. 11B




25

(2) Subject to subsection (3), a person whose registration is endorsed under this Part may at any time by notice in writing to the Authority, surrender the endorsement.

(3) If an application has been made to the Tribunal under section 18A for an inquiry in relation to the registration of a person, the person may not, without leave of the Tribunal, surrender the registration unless the Tribunal has determined to take action under section 18B or has determined not to take any such action.

(4) A person who surrenders a registration or an endorsement of a registration must return the certificate of registration to the Authority within 14 days of surrender.


12 Notification of changes

If a person registered, or whose registration is endorsed, under this Part—

(a) changes business premises; or

(b) in the case of a body corporate, changes directors; or

(c) changes associates; or

(d) ceases business as a second-hand dealer or pawnbroker—

the person must give notice in writing to the Authority within 7 days after the change or cessation.


S. 12 substituted by No. 44/1997s. 38, amended by Nos 52/1998 s. 258, 93/2001 s. 23.



26

12A Address for notices

(1) A person registered, or whose registration is endorsed, under this Part must give written notice to the Authority of an address to which all communications and notices from the Authority may be sent to the person.

(2) Any change in the address must be promptly notified in writing to the Authority.

(3) This section does not derogate from section 27.

13 Register

(1) The Registrar must cause a register to be kept of all persons registered under this Part containing particulars of endorsements, if any, under this Part and the prescribed particulars.

(2) The register may be inspected at the office of the Authority by any person during ordinary office hours without charge.

(3) A person may obtain—

(a) a copy of the register; or

(b) a copy of an entry in the register; or

(c) a copy of a page in the register—

on payment of the fee prescribed for that type of copy.

14 Correction of the register



s. 13

S.13(1) amended by Nos 52/1998 s. 259(1)(a), 93/2001 s. 25(1).

S. 13(2) amended by No. 52/1998 s. 259(1)(b).

S. 13(3) substituted by No. 93/2001 s. 25(2).




27

(1) The Registrar may correct an error or omission in the register by—

(a) inserting an entry; or

(b) amending an entry; or

(c) omitting an entry—

if the Registrar is satisfied that the register contains an error.

(2) The Registrar may make the correction on his or her initiative or on the application of any person.

(3) The Registrar must notify the person registered of any correction made under this section that affects the registration or endorsement of the registration.

(4) A person may apply to the Tribunal for review of the Registrar's decision concerning correction of the register.

(5) The Registrar must make any correction to the register that is necessary to implement the decision of the Tribunal.

* * * * *

16 Offences

(1) A person must not knowingly or recklessly make a false or misleading statement in or in connection with an application, statement or notice under this Part.


S. 14(1) amended by No. 52/1998 s. 259(2)(a).

S. 14(2) amended by No. 52/1998 s. 259(2)(a).

S. 14(3) amended by Nos 52/1998 s. 259(2)(a), 93/2001 s. 26.

S. 14(4) amended by No. 52/1998 s. 259(2)(b)(c).

S. 14(5) amended by No. 52/1998 s. 259(2)(a)(d).

S. 15 substituted by No. 44/1997 s. 38, repealed by No. 52/1998 s. 260(1).




28

(2) An applicant for registration must not submit false evidence of identity.


17 Display of current registration certificate

(1) A person who is carrying on business as a second-hand dealer or pawnbroker must display the current certificate of registration or a copy of it in a prominent position at each place at which business is carried on pursuant to the registration or endorsement.


(2) A person who is carrying on business as a second-hand dealer or pawnbroker must not display a certificate of registration or a copy of that certificate if the registration or endorsement is not in force.


18 Death, disability etc. of registered person

(1) The following persons may carry on the second-hand dealing or pawnbroking business of a person who was registered under this Part for 30 days after the person ceases to be registered—

(a) if the person dies, the executor named in the person's will or the administrator of the person's estate or any person who intends applying for letters of administration in relation to the person's estate;

S. 17 repealed by No. 44/1997 s. 38, new s. 17 inserted by No. 93/2001 s. 27.

S. 18 repealed by No. 44/1997 s. 38, new s. 18 inserted by No. 93/2001 s. 27.



29

(b) if the person becomes an insolvent under administration, the assignee, trustee or receiver of the person;

(c) if the person becomes a represented person within the meaning of the Guardianship and Administration Act 1986, the guardian or administrator of the person or any person nominated by the guardian or administrator;

(d) if the person becomes an externally-administered body corporate, the liquidator, official manager, receiver, receiver and manager or other external administrator.

(2) If a person authorised to carry on a business applies to the Authority within the 30 day period for permission to carry on the business for a longer period, the person may continue to carry on the business until the Authority makes a decision on the application.

(3) The Authority may grant an application if it is satisfied that it is not contrary to the public interest to do so.

(4) In granting its permission, the Authority may limit it in any way it thinks appropriate and may impose any conditions it thinks appropriate to ensure the ongoing protection of the public interest.

(5) The Authority may at any time withdraw any permission it has granted under this section or limit, or impose, revoke or vary conditions on, any such permission.

(6) A person who has been granted permission under this section must comply with any limitation or condition that applies to the permission.




30

(7) A person who carries on a second-hand dealing business under this section is deemed, for the purposes of this Act, to be a registered second-hand dealer on the same terms and conditions as applied to the person who has ceased to be registered.

(8) A person who carries on a pawnbroking business under this section is deemed, for the purposes of this Act to be an endorsed pawnbroker on the same terms and conditions as applied to the person who has ceased to be registered.

Division 2—Disciplinary action

18A Disciplinary action

(1) The Chief Commissioner of Police may apply at any time to the Tribunal to conduct an inquiry to determine whether there are grounds for taking action under section 18B against a registered second-hand dealer.

(2) The Director or the Chief Commissioner of Police may apply at any time to the Tribunal to conduct an inquiry to determine whether there are grounds for taking action under section 18B against an endorsed pawnbroker.

(3) There are grounds for taking action under section 18B against a person who is a registered second-hand dealer or an endorsed pawnbroker if—

(a) the person improperly obtained or is improperly holding registration or endorsement under this Part; or

Pt 2 Div. 2 (Heading and ss 18A–18D) inserted by No. 93/2001 s. 28.




31

(b) the person has contravened or failed to comply with this Act or the regulations; or

(c) the person has been convicted or found guilty of an offence against this Act or the regulations; or

(d) the person's second-hand dealing or pawnbroking business is being carried on in a dishonest or unfair manner; or

(e) the person or a partner, director or officer of the person has engaged in discreditable conduct; or

(f) the effective control of the business to which the registration relates is not, or is unlikely to remain, with the person; or

(g) there has been a breach of a condition imposed by the Authority on the person's registration or endorsement.

(4) If an application for an inquiry is lodged under subsection (1) or (2), the principal registrar of the Tribunal must—

(a) send a copy of the application to the registered second-hand dealer or the endorsed pawnbroker; and

(b) advise the registered second-hand dealer or the endorsed pawnbroker and the person making the application in writing of when and where the inquiry will be held.

(5) An inquiry must not start within 30 days of the date the application for the inquiry is lodged unless—

(a) the person who lodged the application, or the registered second-hand dealer or the endorsed pawnbroker, applies to the Tribunal for the inquiry to be started within that time; and



32

(b) the Tribunal is satisfied that there are exceptional circumstances.

18B Determination of disciplinary measures by Tribunal

(1) After conducting an inquiry, if the Tribunal is satisfied that there are grounds for taking action under this section against a person who is a registered second-hand dealer or an endorsed pawnbroker, the Tribunal may do one or more of the following—

(a) reprimand the person;

(b) order the person to pay into the Consolidated Fund a penalty not exceeding an amount that is 50 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004;

(c) require the person to comply within, or for, a specified time with a requirement specified by the Tribunal;

(d) suspend for a specified period not exceeding 1 year—

(i) the registration of the person; or

(ii) the endorsement of the person;

(e) require the person to enter into an undertaking to perform, or not to perform, certain tasks to be specified in the undertaking;

(f) impose a condition on the registration or endorsement of the person;

(g) if the ground for taking action under this section involved one or more people losing money, order the person to pay compensation to one or more of those people, but not so that the total amount the


s. 18B

S. 18B(1)(b) amended by No. 10/2004 s. 15(Sch. 1 item 26.5).

s. 18BPart 3—Conduct of Business


33

person must pay under this paragraph is more than $5000.

(2) As an alternative to taking action under one or more of subsections (1)(a), (b), (c), (d) and (f), the Tribunal may—

(a) cancel the registration of the registered second-hand dealer or endorsed pawnbroker; or

(b) cancel the endorsement of the endorsed pawnbroker—

and disqualify the second-hand dealer or pawnbroker (and any partner or director of the second-hand dealer or pawnbroker) from being registered or endorsed, as the case may be, either permanently or for a specified period.

(3) If the Tribunal orders the payment of an amount under subsection (1)(b) or (g)—

(a) it may order that the amount be paid by a specified date; and

(b) if the amount is not paid by that date, it may suspend the registration or the endorsement, as the case may be, until the amount is paid and set a final payment date; and

(c) if the amount has not been paid by that final payment date, it may cancel the registration or the endorsement, as the case may be; and

(d) it may extend any period of time it sets under paragraph (a) or (b) at any time.

(4) The Tribunal may suspend or cancel—

(a) the registration of a second-hand dealer or pawnbroker; or

s. 18BPart 3—Conduct of Business


34

(b) the endorsement of a pawnbroker—

under subsection (3) without giving the second-hand dealer or pawnbroker an opportunity to be heard.

(5) If the Tribunal suspends or cancels—

(a) the registration of a second-hand dealer or pawnbroker; or

(b) the endorsement of a pawnbroker—

the suspension or cancellation takes effect on and from the date determined by the Tribunal.

(6) If under subsection (1)(c), the Tribunal requires a registered second-hand dealer or an endorsed pawnbroker to comply with a requirement specified by it, the registered second-hand dealer or endorsed pawnbroker must comply with the requirement within or for the time specified by the Tribunal under that paragraph.

18C Effect of suspension

(1) A second-hand dealer or pawnbroker whose registration has been suspended is to be treated as unregistered during the period of suspension, except for the purposes of sections 11, 11A, 11C and 28A.

(2) A pawnbroker whose endorsement has been suspended is to be treated as unendorsed during the period of suspension, except for the purposes of sections 11AA, 11A, 11C, Division 2 of Part 5 and 28A.

18D Suspended and cancelled certificates of registration must be returned

If the Tribunal suspends or cancels the registration or endorsement of a person, the person must return the certificate of registration to the


s. 18C

S. 18D inserted by No. 93/2001 s. 28.



35

Authority within the period specified by the Tribunal by notice in writing given to the person.


_______________



36

PART 3—CONDUCT OF BUSINESS

19 Identifying persons selling or pawning goods

(1) A second-hand dealer or pawnbroker must require every person attempting to sell or pawn second-hand goods to the second-hand dealer or pawnbroker to produce evidence as to the person's identity—

(a) by means of—

(i) a passport; or

(ii) a driver licence; or

(iii) a document issued by a statutory authority; or

(iv) any other document in one of the prescribed categories—

bearing a photograph of the person; or

(b) by means of 2 documents in the prescribed categories but each in a different category.


(2) If a person attempting to sell or pawn second-hand goods is, on request, unable to produce the required evidence of identity, the second-hand dealer or pawnbroker must refuse to accept the goods.


(3) A person attempting to sell or pawn second-hand goods to a second-hand dealer or pawnbroker must not produce false evidence of identity.


20 Recording transactions


s. 19

S. 19(1)(a) substituted by No. 93/2001 s. 29.

S. 20 amended by No. 44/1997s. 40.



37

A second-hand dealer or pawnbroker must keep, in the form and containing the information required by the regulations, accurate and complete records of every transaction, whether conducted on the business premises or elsewhere, by which the dealer or pawnbroker receives second-hand goods.


21 Retention of goods for seven days

(1) For 7 days after receiving second-hand goods a second-hand dealer or pawnbroker must keep the goods in the form in which they were received and without disposing of them in any way.


(2) Subsection (1) does not derogate from any obligation a second-hand dealer or pawnbroker might otherwise have to keep goods for a period longer than 7 days after receipt.

21A Recording storage location of goods

A second-hand dealer or pawnbroker must keep accurate and complete records of the place of storage of each item of second-hand goods in the possession or under the control of the dealer or pawnbroker.


22 Co-operation with police

(1) A second-hand dealer or pawnbroker must check second-hand goods in his or her possession and second-hand goods which he or she receives against any notice describing stolen goods served on him or her by a police officer.

(2) A second-hand dealer or pawnbroker who suspects for any reason that goods in his or her

s. 20

S. 21A inserted by No. 44/1997s. 41.

S. 22(1) amended by No. 37/2014 s. 10(Sch. item 150.2).




38

possession or which he or she receives may have been stolen must immediately inform a police officer.

Penalty applying to this subsection: 20 penalty units.

23 Contracts for pawning goods

(1) A pawnbroker must not receive second-hand goods in pawn from a person under 16 years of age.


(1A) A pawnbroker must not receive a motor car from a person as goods in pawn.

Penalty:in the case of a natural person, 60 penalty units;

in the case of a body corporate, 300 penalty units.

(1B) In subsection (1A), motor car has the same meaning as it has in the Motor Car Traders Act 1986.

(2) A pawnbroker must cause a notice—

(a) in or to the effect of a form approved by the Authority ; and

(b) showing the maximum amount charged weekly and monthly, or any other period

s. 23


S. 23(1B) inserted by No. 93/2001 s. 30(1).

S. 23(2) amended by No. 41/1995 s. 62(Sch. 1 item 6), substituted by No. 44/1997s. 42, amended by No. 93/2001 s. 30(2).

S. 23(2)(a) amended by No. 52/1998 s. 260(2).



39

normally used, by the pawnbroker on pawn transactions; and

(c) stating that in special circumstances a higher amount may be charged by the pawnbroker—

to be displayed in a prominent place in or outside each business premises of the pawnbroker to which the public has access so that the notice is clearly visible to the public from outside the premises.


(3) A pawnbroker who advances money on the security of goods received in pawn must give to the owner of the goods—

(a) a pawn ticket containing the prescribed particulars; and

(b) a notice in the prescribed form concerning the rights and responsibilities of the parties to the transaction; and

(c) written notice of the charge that will be imposed on the transaction.


(4) Subject to subsection (5), a pawnbroker must not charge on a pawn transaction an amount more than an amount calculated in accordance with the amount displayed on a notice under subsection (2)(b).


S. 23(3) amended by No. 54/1989 s. 35(6), substituted byNos 44/1997s. 42, 93/2001 s. 30(3).

s. 23

S. 23(4) substituted by No. 44/1997s. 42.



40

(5) A pawnbroker may charge an amount more than an amount calculated in accordance with the amount displayed under subsection (2)(b) if—

(a) it is reasonable to do so because the pawnbroker is likely to incur additional storage costs in relation to the goods being pawned; or

(b) it is reasonable to do so because the agreement provides for amounts to be paid less frequently than is specified in the notice under subsection (2); or

(c) the regulations so provide—

and—

(d) the notice referred to in subsection (3) specifies the reason why the higher charge is made; and

(e) the owner of the goods agrees in writing to the higher charge; and

(f) the pawnbroker serves on the owner of the goods a copy of the agreement referred to in paragraph (e).

23A Return of residual equity in unredeemed goods that are sold

(1) In this section—

loan means the amount of money advanced by a pawnbroker on the security of pledged goods;

loan period means the period for which the pawnbroker has agreed to keep pawned goods as security for a loan;

outstanding amount of the loan means the sum of the loan and the accrued interest less the sum of all payments made;

S. 23(5) inserted by No. 44/1997s. 42.




41

pawned goods means pledged goods received by a pawnbroker in pawn;

reasonable costs of sale does not include any prescribed costs;

residual equity means the amount of the difference, if any, between the amount obtained on the sale of pawned goods, and the total of the outstanding amount of the loan and the reasonable costs of sale.

(2) If a pawnbroker sells unredeemed pawned goods after the expiry of the loan period, the person who pawned the goods is entitled, for a period of 12 months after the sale, to claim from the pawnbroker the residual equity, if any, in respect of the goods.

(3) If—

(a) a pawnbroker sells unredeemed pawned goods after the expiry of the loan period; and

(b) the residual equity in respect of the goods is $10, or if another amount is prescribed that amount, or more—

the pawnbroker must, within 14 days after the sale, send to the person who pawned the goods a notice in the prescribed form advising the person that the pawned goods have been sold and that the person is entitled to claim the residual equity from the pawnbroker within the period of 12 months after the sale.


(4) If—

(a) unredeemed pawned goods are sold by a pawnbroker after the expiry of the loan period; and



42

(b) within the period of 12 months after the sale, the person who pawned the goods demands payment of the residual equity in respect of the goods from the pawnbroker—

the residual equity is a debt due and may be recovered in a court of competent jurisdiction.

(5) A pawnbroker must pay, on demand, the residual equity, if any, in respect of pawned goods to the person who pawned the goods, if the person so requests within the period of 12 months after the sale of the goods.


(6) Section 86 of the Sentencing Act 1991 applies to an offence under subsection (5) as if non-payment of the value of the residual equity were a loss of property as a result of the offence.

_______________



43

PART 4—DISPUTES AS TO THE OWNERSHIP OF GOODS

24 Magistrates' Courts to determine disputess. 24

S. 24(1) amended by No. 54/1989 s. 35(7)(a).

(1) A person claiming to be entitled to the possession of goods in the possession or under the control of a second-hand dealer or pawnbroker, being second-hand goods or goods in pawn, may apply to the Magistrates' Court for an order for delivery of the goods.

(2) An application—

(a) may be made without notice to any other person; and

(b) must be supported by evidence on oath or by affidavit.

(3) If satisfied by the supporting evidence that the applicant may be entitled to possession of the goods, the Court constituted by a Registrar of the Court may make both of the following orders—

(a) an order directing the second-hand dealer or pawn broker to deliver the goods to the applicant;

(b) an order directing the second-hand dealer or pawnbroker to refrain from altering the form of the goods and from disposing of them in any way except in accordance with an order under paragraph (a).

(4) Subject to this section, an order under subsection (3)(b) takes effect on service, and an order under subsection (3)(a) takes effect 21 days after service.

S. 24(3) amended by Nos 54/1989 s. 35(7)(b), 52/1998 s. 261.



44

(5) The orders under subsection (3) must be served on the second-hand dealer or pawnbroker in the same way as a summons to answer to a charge, and service may be proved in the same way as service of a summons to answer to a charge.

* * * * *

(7) If within 21 days after service of an order under subsection (3)(a) the second-hand dealer or pawnbroker lodges an objection with the Court—

(a) the order lapses and is and will be of no effect; and

(b) the matter of who is entitled to possession of the goods must be determined by the Court constituted by a magistrate.

(8) The Court—

(a) may make an order directing the second-hand dealer or pawnbroker to deliver the goods to the applicant; or

(b) may make an order directing the second-hand dealer or pawnbroker to pay the applicant the value of the goods as assessed by the Court; or

(c) may dismiss the matter and rescind the order under subsection (3)(b).

(9) An order made under subsection (3)(b) lapses on—

(a) the expiry of 6 months after the day on which it was made; or

(b) the making of an order under subsection (8)—

S. 24(5) amended by No. 54/1989 s. 35(7)(c).

S. 24(6) repealed by No. 54/1989 s. 35(7)(d).

S. 24(7)(b) amended by No. 54/1989 s. 35(7)(e).

s. 24

S. 24(9) inserted by No. 93/2001 s. 32.



45

whichever is earlier.

24A Offence of failing to comply with court order

A person to whom an order of the Magistrates' Court under section 24 is directed must comply with the order.


24B Sign to be displayed

A second-hand dealer or pawnbroker must cause a notice in the form in the Schedule, in legible letters not less than 15 millimetres in height and of a colour that contrasts with the background colour of the notice, to be displayed in a prominent place in each business premises of the dealer or pawnbroker to which the public has access so that the notice is clearly visible to the public.


_______________

S. 24A inserted by No. 44/1997s. 43.

s. 24A

S. 24B inserted by No. 44/1997s. 43, amended by No. 93/2001 s. 33.



46

PART 5—ENFORCEMENT

Division 1—General

25 Police powers generallys. 25

S. 25(1) substituted by No. 44/1997s. 44, amended by No. 37/2014 s. 10(Sch. item 150.2).

(1) A police officer may, without warrant, enter business premises or storage premises occupied by or under the control of a second-hand dealer or pawnbroker at any time when the business premises are open and may inspect the premises or any goods at the premises.

(2) A police officer may require a second-hand dealer or pawnbroker to produce—

(a) any goods in the possession or under the control of the second-hand dealer or pawnbroker; or

(b) his or her certificate of registration under this Act; or

(c) any records kept by the second-hand dealer or pawnbroker pursuant to this Act.

(2A) Without limiting subsection (2), if a document required to be produced under subsection (2)(c) is or is part of a transaction record kept under section 20 in an electronically readable form, a police officer may require the document to be provided in a readily accessible form—

(a) electronically; or

(b) in a paper form produced from a computer.

Pt 5 Div. 1 (Heading) inserted by No. 93/2001 s. 35.


S. 25(2)(b) amended by No. 93/2001 s. 34.

S. 25(2A) inserted by No. 82/2008 s. 21(1), amended by No. 37/2014 s. 10(Sch. item 150.2).



47

(2B) If a person produces a document referred to in subsection (2A), the person must also provide the police officer with a prescribed statement verifying that the document provided is a true record of the transaction record at the date of the statement.

(3) A second-hand dealer or pawnbroker must not refuse or fail to comply with such a requirement.



premises includes a stall or storage area at a market.

26 Notice to stop dealings in goods suspected of having been stolen

s. 26S. 26(1) amended by No. 37/2014 s. 10(Sch. item 150.3).

(1) Any police officer may serve notice under this section on a second-hand dealer or pawnbroker if the police officer reasonably believes that goods in the possession or under the control of the dealer or pawnbroker may have been stolen.

(2) A notice—

(a) must be in the form approved by the Minister; and

(b) must specify the goods suspected of having been stolen; and

(c) prohibits the second-hand dealer or pawnbroker altering the form of the goods or disposing of them in any way for 21 days from service.

S. 25(2B) inserted by No. 82/2008 s. 21(1), amended by No. 37/2014 s. 10(Sch. item 150.2).

S. 25(3) amended by No. 82/2008 s. 21(2).



48

(3) A notice under this section may be reissued once for a further period of 21 days commencing immediately after the first period ends.

(4) A second-hand dealer or pawnbroker must comply with a notice served on him or her under this section.


Division 2—Enforcement—pawnbrokers

26A Definition

In this Division, endorsed pawnbroker includes—

(a) a person whose endorsement has been surrendered or cancelled within the last 3 years; and

(b) a person whose endorsement is suspended.

26B Production of identity card

An inspector must produce his or her identity card for inspection—

(a) before exercising a power under this Division other than a requirement made by post; and

(b) at any time during the exercise of a power under this Division, if asked to do so.


26C Documents available for inspection

Pt 5 Div. 2 (Heading and ss 26A–26Z) inserted by No. 93/2001 s. 36.



s. 26A




49

(1) An endorsed pawnbroker must at all reasonable times at each premises at which that endorsed pawnbroker carries on business as a pawnbroker keep all documents relating to the business carried on at those premises available for inspection by an inspector in a form in which they can be readily and expeditiously inspected by an inspector.


(2) If the endorsement of an endorsed pawnbroker has been surrendered or cancelled in the last 3 years, the endorsed pawnbroker must make all documents relating to the former business available for inspection by an inspector in a form and at a place where they can be readily and expeditiously inspected by an inspector.


(3) If the endorsement of an endorsed pawnbroker has been suspended, the endorsed pawnbroker must during the period of the suspension, make all documents relating to the business of the pawnbroker available for inspection by an inspector in a form and at a place where they can be readily and expeditiously inspected by an inspector.


26D Specified persons to produce documents and answer questions

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may require an endorsed pawnbroker or a specified person at a time and place specified by the inspector—

(a) to answer, orally or in writing, any questions put by the inspector relating to the endorsed pawnbroker's business as a pawnbroker; or


s. 26DPart 3—Conduct of Business


50

(b) to supply, orally or in writing, information required by the inspector relating to that business; or

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.


specified person, in relation to the business of an endorsed pawnbroker, means—

(a) a person who is a director or officer of a corporation which is an endorsed pawnbroker; or

(b) if the endorsement of a corporation has been surrendered, or cancelled within the last 3 years, a person who was a director or officer of the corporation at the time the endorsement was surrendered or cancelled.

26E Third parties to produce documents and answer questions relating to endorsed pawnbroker's business

For the purpose of monitoring compliance with this Act or the regulations, an inspector may require any person who has possession, custody or control of documents relating to an endorsed pawnbroker's business as a pawnbroker—

(a) to answer, orally or in writing, any questions put by the inspector relating to the endorsed pawnbroker's business as a pawnbroker;

(b) to supply, orally or in writing, information required by the inspector relating to that business;

S. 26E inserted by No. 93/2001 s. 36.

s. 26EPart 3—Conduct of Business


51

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.

26F Department Heads, police and public authorities to produce information to inspectors

(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may request a specified public body within a time specified by the Director or inspector—

(a) to answer, orally or in writing, any questions put by the inspector relating to an endorsed pawnbroker's business as a pawnbroker;

(b) to supply, orally or in writing, information required by the inspector relating to that business.

(2) An inspector can only make a request under subsection (1) with the written consent of the Director.

(3) A specified public body must comply with a request under subsection (1).

(4) In this section specified public body means—

(a) a Department Head within the meaning of the Public Administration Act 2004; or

(b) a public statutory authority; or

(c) a municipal council; or

(d) the Chief Commissioner of Police.

S. 26F inserted by No. 93/2001 s. 36.

S. 26F(4)(a) amended by No. 108/2004 s. 117(1) (Sch. 3 item 180).



52

26G Certain other specified persons or bodies to produce information

(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector—

(a) to answer, orally or in writing, any questions put by the inspector relating to an endorsed pawnbroker's business as a pawnbroker;

(b) to supply, orally or in writing, information required by the inspector relating to that business.

(2) An inspector can only make a requirement under subsection (1) with the written consent of the Director.

(3) In this section specified person or body means—

(a) a person who is a publisher of a publication; or

(b) a person who is the owner or operator of a broadcasting service; or

(c) a person who is the owner or operator of a telecommunications service; or

(d) a person who is the owner or operator of a postal service; or

(e) a financial institution.

26H Powers on production of documents

(1) If any documents are produced to an inspector under section 26D or 26E, the inspector may—

(a) inspect the documents or authorise a person to inspect the documents;

(b) make copies of or take extracts from the documents;

S. 26G inserted by No. 93/2001 s. 36.

s. 26F

S. 26H inserted by No. 93/2001 s. 36.

s. 26HPart 3—Conduct of Business


53

(c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under this Act or the regulations;

(d) seize the documents if the inspector—

(i) considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under any Consumer Act; and

(ii) believes on reasonable grounds, that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act;

(e) secure any seized documents against interference;

(f) retain possession of the documents in accordance with this Division.

(2) An inspector must not require a person to produce a document at a place other than the person's place of business or an office of the Director without the consent of the person.

26I Order requiring supply of information and answers to questions

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring any person at a time and place specified by an inspector—

(a) to answer, orally or in writing, any questions put by an inspector relating to an endorsed pawnbroker's business as a pawnbroker; or

S. 26I inserted by No. 93/2001 s. 36.

s. 26IPart 3—Conduct of Business


54

(b) to supply, orally or in writing, information required by an inspector in relation to an endorsed pawnbroker's business as a pawnbroker.

(2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought.

(3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect.

(4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.

26J Entry or search with consent

(1) For the purpose of monitoring compliance with this Act or the regulations in relation to pawnbrokers, an inspector, with the consent of the occupier of the premises, may—

(a) enter and search any premises;

(b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations in relation to pawnbrokers;

(c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations in relation to pawnbrokers;

(d) inspect and make copies of, or take extracts from, any document found on the premises.

S. 26J inserted by No. 93/2001 s. 36.

s. 26JPart 3—Conduct of Business


55

(2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has—

(a) produced his or her identity card for inspection; and

(b) informed the occupier—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and

(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and

(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.

(3) If an occupier consents to an entry and search, the inspector who requested consent must, before entering the premises, ask the occupier to sign an acknowledgment stating—

(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and

(b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and

s. 26J

S. 26J(3) amended by No. 106/2003 s. 28(6).

S. 26J(3)(b) amended by No. 106/2003 s. 28(7).



56

(c) that the occupier has consented to such an entry and search; and

(d) the date and time that the occupier consented.

(4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating—

(a) that the occupier has consented to the seizure or taking of the thing; and

(b) the date and time that the occupier consented.

(5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises.

(6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or taking of the thing.

26K Entry without consent or warrant

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may (with the assistance, if necessary, of another inspector or a police officer) do all or any of the following—

(a) enter and search any premises at which an endorsed pawnbroker is carrying on business at any time that the premises are open for business or between the hours of 9 a.m. and 5 p.m.;

S. 26K inserted by No. 93/2001 s. 36.

s. 26K

S. 26K(1) amended by No. 37/2014 s. 10(Sch. item 150.4).



57

(b) seize or secure against interference anything that the Director or inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations that is found on or in the premises;

(c) inspect and make copies of or take extracts from any document kept on the premises.

(2) An inspector must not enter or search any premises under subsection (1) unless, before that entry, the inspector has produced his or her identity card for inspection by the occupier of the premises.

26L Search warrants

(1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations in relation to pawnbrokers.

(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations in relation to pawnbrokers, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989, authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—

(a) to enter the premises specified in the warrant, if necessary by force; and

(b) to do all or any of the following—

(i) search for;

(ii) seize;

S. 26L inserted by No. 93/2001 s. 36.



58

(iii) secure against interference;

(iv) examine and inspect;

(v) make copies of or take extracts from—

a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations in relation to pawnbrokers.

(3) A search warrant issued under this section must state—

(a) the purpose for which the search is required; and

(b) any conditions to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.

26M Announcement before entry

(1) On executing a search warrant, the inspector executing the warrant—

(a) must announce that he or she is authorised by the warrant to enter the premises; and

s. 26L

S. 26M inserted by No. 93/2001 s. 36.

s. 26MPart 3—Conduct of Business


59

(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

26N Details of warrant to be given to occupier

(1) If the occupier is present at premises where a search warrant is being executed, the inspector must—

(a) identify himself or herself to the occupier; and

(b) give to the occupier a copy of the warrant.

(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—

(a) identify himself or herself to a person (if any) at the premises; and

(b) give to the person a copy of the warrant.

26O Seizure of things not mentioned in the warrant

A search warrant under section 26L authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if—

S. 26N inserted by No. 93/2001 s. 36.

S. 26O inserted by No. 93/2001 s. 36.

s. 26NPart 3—Conduct of Business


60

(a) the inspector believes, on reasonable grounds, that the thing—

(i) is of a kind which could have been included in a search warrant issued under this Division; or

(ii) will afford evidence about the contravention of any Consumer Act; and

(b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act.

26P Embargo notice

(1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form—

(a) by causing a copy of the notice to be served on the occupier; or

(b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position.

(2) A person who knows that an embargo notice relates to a thing and who—

(a) sells; or

(b) leases; or

(c) without the written consent of the inspector who issued the embargo notice, moves; or

(d) transfers; or

S. 26P inserted by No. 93/2001 s. 36.

s. 26PPart 3—Conduct of Business


61

(e) otherwise deals with—

the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 50 penalty units.

(3) It is a defence to a prosecution for an offence against subsection (2) to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it.

(4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.

26Q Copies of seized documents

(1) If an inspector retains possession of a document taken or seized from a person under this Division, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector.

(2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original.

26R Retention and return of seized documents or things

(1) If an inspector seizes a document or other thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

S. 26P(3) amended by No. 68/2009 s. 97(Sch. item 108).

S. 26Q inserted by No. 93/2001 s. 36.

s. 26Q

S. 26R inserted by No. 93/2001 s. 36.



62

(b) the Magistrates' Court makes an order under section 26S extending the period during which the document or thing may be retained.

26S Magistrates' Court may extend 3 month period

(1) An inspector may apply to the Magistrates' Court—

(a) within 3 months after seizing a document or other thing under this Division; or

(b) if an extension has been granted under this section, before the end of the period of the extension—

for an extension not exceeding 3 months of the period for which the inspector may retain the document or thing but so that the total period of retention does not exceed 12 months.

(2) The Magistrates' Court may order such an extension if it is satisfied that the total period of retention does not exceed 12 months and retention of the document or other thing is necessary—

(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or

(b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act.

(3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.

26T Requirement to assist inspector during entry

To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Division who produces his or her

S. 26S inserted by No. 93/2001 s. 36.

S. 26T inserted by No. 93/2001 s. 36.

s. 26SPart 3—Conduct of Business


63

identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person—

(a) to give information to the inspector, orally or in writing; and

(b) to produce documents to the inspector; and

(c) to give reasonable assistance to the inspector.

26U Refusal or failure to comply with requirement

A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division.


26V Rule against self-incrimination does not apply

(1) A person is not excused from answering a question or producing a document under this Division on the ground that the answer or document might tend to incriminate the person.

(2) If the person claims, before answering a question, that the answer might tend to incriminate them, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

26W Offence to give false or misleading information

A person must not—

(a) give information to an inspector under this Division that the person believes to be false or misleading in any material particular; or

(b) produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

S. 26U inserted by No. 93/2001 s. 36.

S. 26V inserted by No. 93/2001 s. 36.

S. 26W inserted by No. 93/2001 s. 36.

s. 26UPart 3—Conduct of Business


64


26WA Powers of court if requirement to produce information not complied with

(1) If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 26G, the Director may certify that failure to a court.

(2) Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 26D, 26E, 26G or 26T, the inspector may certify that failure to a court.

(3) The inspector cannot certify a failure to a court under subsection (2) if the person to whom the failure relates has been charged with an offence against section 26U.

(4) If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.

(5) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 26U in respect of that failure.

26X Application of provisions relating to inspections

Sections 144, 152, 155, 170, 172, 173, 176, 178 and 179 of the Australian Consumer Law and Fair Trading Act 2012 apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under this Division as if any reference in those sections to Part 6.4 of that Act were a reference to this Division.

S. 26WA inserted by No. 2/2008 s. 60(Sch. item 13.1).

S. 26X inserted by No. 93/2001 s. 36, amended by Nos 79/2006 s. 83, 21/2012 s. 239(Sch. 6 items 41.4, 41.5).

s. 26WAPart 3—Conduct of Business


65

26Y Service of documents

(1) A written requirement by an inspector under this Division may be given personally or by registered post to a person—

(a) at the last known place of business, employment or residence of the person; or

(b) in the case of a body corporate, at the registered office of the body corporate.

(2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post.

26Z Confidentiality

(1) An inspector must not, except to the extent necessary to carry out the inspector's functions under this Division, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions.


(2) Subsection (1) does not apply to the giving of information—

(a) to a court or tribunal in the course of legal proceedings; or

(b) pursuant to an order of a court or tribunal; or

(c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or

(d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or

S. 26Y inserted by No. 93/2001 s. 36.

S. 26Z inserted by No. 93/2001 s. 36.

s. 26YPart 3—Conduct of Business


66

(e) with the written authority of the Director; or

(f) with the written authority of the person to whom the information relates.

Division 3—Infringement notices

26ZA Definition

In this Division, authorised officer means—

(a) an inspector under the Australian Consumer Law and Fair Trading Act 2012;

(b) a police officer;

(c) a person authorised in writing by the Director.

26ZB Power to serve a notice

(1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against section 20, 21(1), 21A, 23(2), 23(3), 23A(3) or 24B or an offence specified by the regulations as an offence in respect of which an infringement notice may be issued.

(2) An offence referred to in subsection (1) for which an infringement notice may be served is an

Pt 5 Div. 3 (Heading and ss 26ZA–26ZF) inserted by No. 93/2001 s. 37.

S. 26ZA inserted by No. 93/2001 s. 37.

S. 26ZA(a) amended by No. 21/2012 s. 239(Sch. 6 item 41.6).

S. 26ZA(b) amended by No. 37/2014 s. 10(Sch. item 150.4).

S. 26ZB inserted by No. 93/2001 s. 37, amended by No. 32/2006 s. 94(Sch. item 44(1)) (ILA s. 39B(1)).

s. 26ZA

S. 26ZB(2) inserted by No. 32/2006 s. 94(Sch. item 44(1)).



67

infringement offence within the meaning of the Infringements Act 2006.

26ZC Form of notice

For the purposes of section 26ZB, an infringement notice must be in the form required by the Infringements Act 2006 and may contain any additional information approved by the Director.

* * * * *

26ZF Further proceedings concerning infringement notices

* * * * *

(5) Nothing in Division 5 of Part 2 of the Infringements Act 2006 prevents the Tribunal from conducting an inquiry under section 18A and taking disciplinary action under section 18B against a person for any act or omission for which an infringement notice was issued.

_______________

S. 26ZC inserted by No. 93/2001 s. 37, substituted by No. 32/2006 s. 94(Sch. item 44(2)).

Ss 26ZD, 26ZE inserted by No. 93/2001 s. 37, repealed by No. 32/2006 s. 94(Sch. item 44(3)).

S. 26ZF inserted by No. 93/2001 s. 37.

S. 26ZF(1)–(4) repealed by No. 32/2006 s. 94(Sch. item 44(4)(a)).

S. 26ZF(5) amended by No. 32/2006 s. 94(Sch. item 44(4)(b)).

s. 26ZCPart 3—Conduct of Business


68

PART 6—GENERAL

27 Services. 27

S. 27(1) amended by No. 93/2001 s. 38.

(1) Subject to this section and sections 24 and 26Y, a notice or other document authorised or required by this Act to be served on a person shall be deemed to have been duly served on the person—

(a) if it is delivered to him or her personally; or

(b) if it is left at his or her last known residence or business premises with a person apparently over 16 years of age and apparently residing or employed there; or

(c) if it is sent to him or her by post.

(2) Subsection (1) is in addition to and does not derogate from the provisions of the Corporations Act with respect to service.

* * * * *

(4) A notice or other document authorised or required by this Act to be served on a police officer shall be deemed to have been duly served on the police officer—

(a) if it is delivered to him or her personally; or

(b) if it is left with another police officer at the police station of which the police officer is for the time being in charge or at which he or she is for the time being stationed; or

(c) if it is sent by post to that police station.

28 Delegation by Director

S. 27(2) amended by Nos 44/1997s. 45, 44/2001 s. 3(Sch. item 101.2).

S. 27(3) repealed by No. 44/1997s. 50(1).


S. 27(4)(b) amended by No. 37/2014 s. 10(Sch. item 150.5).

S. 28 substituted by No. 44/1997s. 46, amended by No. 46/1998s. 7(Sch. 1), substituted by No. 52/1998 s. 262.



69

The Director may, by instrument, delegate to—

(a) any person engaged or appointed under section 7(2) or 15 of the Business Licensing Authority Act 1998; or

(b) any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act—

any function or power of the Director under this Act other than this power of delegation.

28A Production of information to Authority

(1) The Authority may require a registered second-hand dealer or an endorsed pawnbroker to answer any question or provide information relating to the business of the registered second-hand dealer or endorsed pawnbroker that the Authority reasonably requires to carry out its functions in relation to that registered second-hand dealer or endorsed pawnbroker.

(2) A person must not refuse or fail, without reasonable excuse, to comply with a requirement made by the Authority under this section.



endorsed pawnbroker includes a person whose endorsement is suspended;

registered second-hand dealer includes a person whose registration is suspended.

28B Rule against self-incrimination does not apply

s. 28

S. 28(b) substituted by No. 35/2000 s. 51, amended by No. 108/2004 s. 117(1) (Sch. 3 item 180).





70

(1) A person is not excused from answering a question or providing information under section 28A on the ground that the answer or the information might tend to incriminate the person.

(2) If the person claims, before answering a question, that the answer might tend to incriminate the person, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

28C Verification of details supplied to the Authority

The Authority may specify how any information supplied to it under this Act is to be verified, and without limiting the scope of this power, may require that the information be supplied in the form of, or be verified by, a statutory declaration.

28D Extended time for prosecutions

Despite anything to the contrary in any Act, a proceeding for an offence against this Act may be commenced within 3 years after the date on which the offence is alleged to have been committed.

28E Who may bring proceedings for offences?

(1) Proceedings for an offence against this Act may only be brought by—

(a) the Director; or

(b) a person authorised by the Director for the purposes of this section; or

(c) a police officer.

(2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the

s. 28B



S. 28E inserted by No. 103/2004 s. 72.

S. 28E(1)(c) substituted by No. 37/2014 s. 10(Sch. item 150.6).



71

proceedings was authorised to bring the proceedings.

(3) Subsection (1) does not apply to proceedings for an indictable offence.

29 Evidentiary provisions

In proceedings under this Act—

(a) goods shall be deemed to be in the possession or under the control of a second-hand dealer or pawnbroker when they are in any premises, place or vehicle that is occupied by or under the control of the dealer or pawnbroker; and

(b) in the absence of proof to the contrary—

(i) a certificate issued by the Registrar stating that at a particular time a person was or was not registered or endorsed under this Act is proof of that fact; and

(ii) proof is not required that such a certificate purporting to be issued by the Registrar was so issued.

* * * * *

30 Application of Australian Consumer Law and Fair Trading Act 2012

(1) Sections 195 and 196 and Part 8.2 (except sections 209 and 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in

s. 29

S. 29(b)(i) substituted by No. 44/1997s. 47, amended by Nos 52/1998 s. 263, 93/2001 s. 40.

S. 29(b)(ii) substituted by No. 44/1997s. 47, amended by No. 52/1998 s. 263.

S. 29(b)(iii) repealed by No. 44/1997s. 47.

S. 30 amended by No. 44/1997 s. 48, substituted by No. 103/2004 s. 73, amended by Nos 17/2007 s. 36(Sch. item 14), 2/2008 s. 60(Sch. item 13.2), 72/2010 s. 48(Sch. item 22), substituted by No. 21/2012 s. 239(Sch. 6 item 41.7).



72

those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

(2) For the purposes of subsection (1)—

(a) section 210 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to Part 3.1 or Part 6.3 of the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act;

(b) section 212 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference to prescribed proceedings were a reference to—

(i) proceedings for an offence against a provision of this Act (except Divisions 1 and 2 of Part 5 and section 28A(2)); or

(ii) proceedings on an application for an injunction under section 201, 202, 203, 205 or 206 of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (1)) against a person alleged to have contravened a provision of this Act (except Divisions 1 and 2 of Part 5 and section 28A(2)); or

(iii) proceedings on an application for an order under section 216, or for damages under section 217, of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (1)).

31 Regulations



73

(1) The Governor in Council may make regulations for or with respect to—

(a) prescribing categories of documents as to identity; and

(ab) prescribing particulars to be recorded in the register; and

(b) carrying on business as a second-hand dealer or as a pawnbroker; and

(c) prescribing forms; and

(d) fees; and

(da) prescribing costs, or a class of costs, that may not be included in the reasonable costs of sale of pawned goods; and

(db) prescribing, for the purposes of Division 3 of Part 5—

(i) offences under this Act or the regulations in respect of which an infringement notice may be issued; and

(ii) the penalties that apply if offences are dealt with by an infringement notice; and

(e) exempting persons or goods from the application of the whole or any provision of this Act or the regulations, subject to conditions or unconditionally; and

(f) generally prescribing any other matter or thing required or permitted by this Act to be

s. 31

S. 31(1)(a) substituted by No. 44/1997s. 49(a).

S. 31(1)(ab) inserted by No. 44/1997s. 49(a).

S. 31(1)(d) substituted by No. 44/1997s. 49(b).

S. 31(1)(da) inserted by No. 93/2001 s. 41(1).

S. 31(1)(db) inserted by No. 93/2001 s. 41(1).

S. 31(1)(e) amended by No. 44/1997s. 49(c).



74

prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations may—

(a) be of general or limited application; and

(b) differ according to differences in time, place or circumstance; and

(c) leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a council; and

(d) impose penalties not exceeding 20 penalty units for a contravention of the regulations.

(2A) Regulations made under subsection (1)(db)(ii) must not specify a penalty in respect of an offence by a person that is more than one-tenth of the maximum penalty to which the person would be liable under the Act or the regulations for committing that offence for the first time.

(3) Regulations made under this Act may be disallowed, in whole or in part, by resolution of either House of Parliament.

s. 31S. 31(4) repealed by No. 78/2010 s. 24(Sch. item 26.2).

* * * * *

* * * * *

__________________



S. 32 repealed by No. 44/1997s. 50(2).



75

* * * * *

Pt 7 (Heading and ss 33–36) amended by Nos 34/1990 s. 7(7), 44/1997 s. 51, 52/1998 s. 264, 93/2001 s. 42, repealed by No. 1/2010 s. 100.



76

SCHEDULE

Section 24B

ANY PERSON WHO BELIEVES THAT GOODS STOLEN FROM THEM ARE AVAILABLE FOR SALE ON THESE PREMISES IS NOT OBLIGED TO BUY THEM BUT MAY—

(a) REQUEST VICTORIA POLICE TO SERVE A NOTICE PROHIBITING THE ALTERATION OR DISPOSAL OF THE GOODS FOR 21 DAYS; AND

(b) SEEK AN ORDER FROM THE MAGISTRATES' COURT FOR DELIVERY OF THE GOODS.

SEE SECTIONS 24 AND 26 OF THE SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989.

═══════════════

Sch. inserted by No. 44/1997s. 52, amended by No. 37/2014 s. 10(Sch. item 150.7).

Sch. Part 3—Conduct of Business


77

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 20 April 1989

Legislative Council: 24 May 1989

The long title for the Bill for this Act was "A Bill to provide for the licensing and regulation of second-hand dealers and pawnbrokers and to facilitate and expedite the recovery of stolen goods from second-hand dealers and pawnbrokers; to repeal the Second-hand Dealers Act 1958, the Pawnbrokers Act 1958 and the Marine Stores and Old Metals Act 1958; to amend the Goods Act 1958; to make other consequential amendments and repeals; and for other purposes.".

The Second-Hand Dealers and Pawnbrokers Act 1989 was assented to on 14 June 1989 and came into operation as follows:

Section 35(6)(7) on 1 September 1990: section 2(2); rest of Act on 10 September 1990: Government Gazette 5 September 1990 page 2680.

EndnotesPart 3—Conduct of Business


78

2. Table of AmendmentsThis Version incorporates amendments made to the Second-Hand Dealers and Pawnbrokers Act 1989 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Courts (Children's and Magistrates') Act 1990, No. 34/1990Assent Date: 13.6.90Commencement Date: Ss 3–6, 7(1) on 1.9.90: Government Gazette 25.7.90

p. 2216; s. 7(2) on 16.5.89: s. 2(b); s. 7(4)(5) on 6.6.89: s. 2(c); s. 7(6)(7) on 14.6.89: s. 2(d); rest of Act on 13.6.90: s. 2(e)

Current State: All of Act in operation

Consumer Credit (Victoria) Act 1995, No. 41/1995Assent Date: 14.6.95Commencement Date: S. 62(Sch. 1 item 6) on 1.11.96: Government Gazette

29.8.96 p. 2274Current State: This information relates only to the provision/s

amending the Second-Hand Dealers and Pawnbrokers Act 1989

Firearms Act 1996, No. 66/1996Assent Date: 17.12.96Commencement Date: S. 206 on 29.4.97: Government Gazette 24.4.97 p. 921Current State: This information relates only to the provision/s


Motor Car Traders (Amendment) Act 1996, No. 74/1996Assent Date: 17.12.96Commencement Date: S. 54 on 1.3.97: Government Gazette 20.2.97 p. 374Current State: This information relates only to the provision/s


Law and Justice Legislation Amendment Act 1997, No. 44/1997Assent Date: 11.6.97Commencement Date: Ss 36–52 on 1.1.98: s. 2(5)Current State: This information relates only to the provision/s

amending the Second-hand Dealers and Pawnbrokers Act 1989

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s




79

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date: 2.6.98Commencement Date: Ss 248–264 on 1.7.98: Government Gazette 18.6.98

p. 1512Current State: This information relates only to the provision/s


Fundraising Appeals Act 1998, No. 78/1998Assent Date: 10.11.98Commencement Date: S. 73(2) on 1.7.99: s. 2(3)Current State: This information relates only to the provision/s


Licensing and Tribunal (Amendment) Act 1998, No. 101/1998Assent Date: 1.12.98Commencement Date: Pt 6 (ss 12–15) on 1.2.99: Government Gazette



Fair Trading (Inspectors Powers and Other Amendments) Act 1999, No. 17/1999Assent Date: 18.5.99Commencement Date: S. 46 on 1.9.99: Government Gazette 19.8.99 p. 1901Current State: This information relates only to the provision/s


Business Registration Acts (Amendment) Act 2000, No. 35/2000Assent Date: 6.6.00Commencement Date: S. 51 on 19.6.00: Government Gazette 15.6.00 p. 1248Current State: This information relates only to the provision/s


Statute Law Amendment (Relationships) Act 2001, No. 27/2001Assent Date: 12.6.01Commencement Date: S. 8(Sch. 6 item 7) on 28.6.01: Government Gazette



Corporations (Consequential Amendments) Act 2001, No. 44/2001Assent Date: 27.6.01Commencement Date: S. 3(Sch. item 101) on 15.7.01: s. 2Current State: This information relates only to the provision/s




80

Auction Sales (Repeal) Act 2001, No. 84/2001Assent Date: 11.12.01Commencement Date: S. 12 on 1.1.03: s. 2(4)Current State: This information relates only to the provision/s


Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001, No. 93/2001Assent Date: 11.12.01Commencement Date: Ss 4–30(2), 32–35, 39–42 on 8.4.02: Government

Gazette 28.3.02 p. 552; ss 30(3), 31, 36–38 on 1.9.02: Government Gazette 18.7.02 p. 1658

Current State: This information relates only to the provision/s amending the Second-Hand Dealers and Pawnbrokers Act 1989

Fair Trading (Further Amendment) Act 2003, No. 106/2003Assent Date: 9.12.03Commencement Date: S. 28 on 10.12.03: s. 2(1)Current State: This information relates only to the provision/s


Monetary Units Act 2004, No. 10/2004Assent Date: 11.5.04Commencement Date: S. 15(Sch. 1 item 26) on 1.7.04: s. 2(2)Current State: This information relates only to the provision/s


Fair Trading (Enhanced Compliance) Act 2004, No. 103/2004Assent Date: 21.12.04Commencement Date: Ss 72, 73 on 22.12.04: s. 2(1)Current State: This information relates only to the provision/s


Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 180) on 5.4.05: Government

Gazette 31.3.05 p. 602Current State: This information relates only to the provision/s


Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006Assent Date: 13.6.06Commencement Date: S. 94(Sch. item 44) on 1.7.06: Government Gazette





81

Justice Legislation (Further Amendment) Act 2006, No. 79/2006Assent Date: 10.10.06Commencement Date: S. 83 on 11.10.06: s. 2(1)Current State: This information relates only to the provision/s


Fair Trading and Consumer Acts Amendment Act 2007, No. 17/2007Assent Date: 29.5.07Commencement Date: S. 36(Sch. item 14) on 30.5.07: s. 2(1)Current State: This information relates only to the provision/s


Fair Trading and Consumer Acts Further Amendment Act 2008, No. 2/2008Assent Date: 11.2.08Commencement Date: S. 60(Sch. item 13) on 12.2.08: s. 2(1)Current State: This information relates only to the provision/s


Motor Car Traders Amendment Act 2008, No. 4/2008Assent Date: 4.3.08Commencement Date: S. 32(Sch. item 30) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Relationships Act 2008, No. 12/2008Assent Date: 15.4.08Commencement Date: S. 73(1)(Sch. 1 item 55) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Prostitution Control and Other Matters Amendment Act 2008, No. 82/2008Assent Date: 11.12.08Commencement Date: Ss 20, 21 on 12.12.08: s. 2(1)Current State: This information relates only to the provision/s


Fundraising Appeals and Consumer Acts Amendment Act 2009, No. 2/2009Assent Date: 10.2.09Commencement Date: S. 24 on 11.2.09: s. 2(1)Current State: This information relates only to the provision/s




82

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09Commencement Date: S. 97(Sch. item 108) on 1.1.10: Government Gazette



Consumer Affairs Legislation Amendment Act 2010, No. 1/2010Assent Date: 9.2.10Commencement Date: S. 100 on 1.8.10: Government Gazette 22.7.10 p. 1628Current State: This information relates only to the provision/s


Fair Trading Amendment (Australian Consumer Law) Act 2010, No. 72/2010Assent Date: 19.10.10Commencement Date: S. 48(Sch. item 22) on 1.1.11: Special Gazette

(No. 502) 20.12.10 p. 1Current State: This information relates only to the provision/s


Subordinate Legislation Amendment Act 2010, No. 78/2010Assent Date: 19.10.10Commencement Date: S. 24(Sch. item 26) on 1.1.11: s. 2(1)Current State: This information relates only to the provision/s


Australian Consumer Law and Fair Trading Act 2012, No. 21/2012Assent Date: 8.5.12Commencement Date: S. 239(Sch. 6 item 41) on 1.7.12: Special Gazette



Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date: 3.6.14Commencement Date: S. 10(Sch. item 150) on 1.7.14: Special Gazette



–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



83

3. Explanatory DetailsNo entries at date of publication.



84