Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001 (Vic)
Second-Hand Dealers and Pawnbrokers
(Amendment) Act 2001
Act No. 93/2001
TABLE OF PROVISIONS
Section Page
1. Purposes 1 2. Commencement 2 3. Principal Act 2 4. Amendment to purposes of Act 3 5. Definitions 3 6. Insertion of Division heading 4 Division 1—General 4 7. Second-hand dealers authorised to carry on business as pawnbrokers 4 8. Eligibility for registration or endorsement 4 9. Registration application 6 10. New section 7A inserted 6
7A. Application for endorsement 6
11. Investigation of application 6 12. Consideration of application 7 13. New sections 8B and 8C inserted 7
8B. Authority may impose conditions 7 8C. Notation of condition on certificate of registration 8
14. Registration 8 15. New section 9AA inserted 9 9AA. Endorsement 9 16. Notice of decision 9 17. Application for review 10 18. Change in associates after registration 10 19. New section 11AA inserted 11 11AA. Annual endorsement fee 11 20. Failure to comply with section 11 or 11AA 11 21. Substitution of section 11B 12
11B. Return of certificates of registration 12
22. New section 11C inserted 12
11C. Surrender of registration or endorsement 12
23. Notification of changes 13 24. New section 12A inserted 13
i
Section Page
12A. Address for notices 13
25. The register 13 26. Correction of register 14 27. New sections 17 and 18 inserted 14
17. Display of current registration certificate 14 18. Death, disability etc. of registered person 14
28. Division 2 of Part 2 inserted 16 Division 2—Disciplinary Action 16
18A. Disciplinary action 16 18B. Determination of disciplinary measures by Tribunal 18 18C. Effect of suspension 21 18D. Suspended and cancelled certificates of registration must be returned 21
29. Identification of persons selling or pawning goods 21 30. Contracts for pawning goods 21 31. New section 23A inserted 22
23A. Return of residual equity in unredeemed goods that
are sold 22
32. Disputes as to possession of goods 25 33. Increased penalty for contravention of notice requirement 25 34. Police powers 25 35. Division heading inserted 25 Division 1—General 25 36. New Division 2 inserted in Part 5 25 Division 2—Enforcement—Pawnbrokers 25
26A. Definition 25 26B. Production of identity card 26 26C. Documents available for inspection 26 26D. Specified persons to produce documents and answer questions 27 26E. Third parties to produce documents and answer questions relating to endorsed pawnbroker's business 28 26F. Department Heads, police and public authorities to produce information to inspectors 28 26G. Certain other specified persons or bodies to produce information 29 26H. Powers on production of documents 30 26I. Order requiring supply of information and answers to questions 31 26J. Entry or search with consent 32 26K. Entry without consent or warrant 34 26L. Search warrants 35 26M. Announcement before entry 37
ii
Section Page
26N. Details of warrant to be given to occupier 37 26O. Seizure of things not mentioned in the warrant 38 26P. Embargo notice 38 26Q. Copies of seized documents 39 26R. Retention and return of seized documents or things 40 26S. Magistrates' Court may extend 3 month period 40 26T. Requirement to assist inspector during entry 41 26U. Refusal or failure to comply with requirement 42 26V. Rule against self-incrimination does not apply 42 26W. Offence to give false or misleading information 42 26X. Application of provisions relating to inspections 43 26Y. Service of documents 43 26Z. Confidentiality 43
37. New Division 3 inserted in Part 5 44 Division 3—Infringement Notices 44 26ZA. Definition 44
26ZB. Power to serve a notice 45
26ZC. Form of notice 45 26ZD. Late payment of penalty 46 26ZE. Withdrawal of notice 46
26ZF. Further proceedings concerning infringement notices 47
38. Service 48 39. New sections 28A to 28D inserted 48
28A. Production of information to Authority 48 28B. Rule against self-incrimination does not apply 49 28C. Verification of details supplied to the Authority 49 28D. Extended time for prosecutions 49
40. Evidence 49 41. Regulations 50 42. New section 36 substituted 50
36. Transitional provisions (2001 amendments) 50
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ENDNOTES 52
iii
Victoria
No. 93 of 2001
Second-Hand Dealers and Pawnbrokers
(Amendment) Act 2001†
[Assented to 11 December 2001]
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Second- provide for—
(a)
separate regulation of pawnbrokers by means of endorsement on their registration as second-hand dealers;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 2 | Act No. 93/2001 |
(b) improved enforcement by means of inspectors' powers;
(c)
the payment of residual equity in pawned goods that are subsequently sold by a pawnbroker;
(d) a prohibition on the pawning of motor cars;
(e)
miscellaneous amendments to improve the administration of the Act.
2. Commencement
(1) Section 1 and this section come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 December 2002,
it comes into operation on that day.
3. Principal Act
See:
| Act No. | In this Act, the Second-Hand Dealers and |
| 54/1989. | Pawnbrokers Act 1989 is called the Principal |
| Reprint No. 4 | |
| as at | Act. |
| 10 February 2000 and amending Act Nos 35/2000, 27/2001 and 44/2001. LawToday: dpc.vic. gov. au |
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 4
4. Amendment to purposes of Act
In section 1 of the Principal Act—
(a) in paragraph (a), omit "licensing and";
(b)
in paragraph (b), for "pawnbrokers." substitute "pawnbrokers; and";
(c)
after paragraph (b) insert— "(c) to enhance protection of consumers
dealing with second-hand dealers and
pawnbrokers.".
5. Definitions
In section 3(1) of the Principal Act, insert the
following definitions—' "Consumer Act" has the same meaning as it has
in the Fair Trading Act 1999;
"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;
"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 Fair Trading Act 1999;
"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;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 6 | Act No. 93/2001 |
"registered second-hand dealer" means a person registered under Part 2;
"registration" means registration under Part 2 to
carry on business as a second-hand dealer;'.
6. Insertion of Division heading
In Part 2 of the Principal Act, before section 5 insert—
"Division 1—General".
7. Second-hand dealers authorised to carry on business as pawnbrokers
(1) In section 5(1) of the Principal Act, omit "or a pawnbroker".
(2) In section 5 of the Principal Act, after sub-
section (1) insert—
"(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) business as a pawnbroker by
the person is authorised to carry on this Part.
Penalty: 100 penalty units.".
8. Eligibility for registration or endorsement
(1) In section 6(1) of the Principal Act, after
"registered" insert "or for an endorsement of the
registration".
(2) In section 6(2) of the Principal Act—
(a)
after "registered" insert "or for an endorsement of the registration";
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 8
(b)
after paragraph (a) insert— "(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 disqualifyingoffence was committed; or";
(c)
after paragraph (b) insert— "(ba) a body corporate has carried on any
occupation, profession or business that another State or a Territory of Australia and under that enactment—
is regulated under any enactment of
(i) the body corporate's licence,
registration or permission to carry
on that occupation, profession or
business is suspended; or(ii) registration or permission to carry
on that occupation, profession orthe body corporate's licence, 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".
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 9 | Act No. 93/2001 |
9. Registration application
In section 7(2)(d) of the Principal Act—
(a) in sub-paragraph (i) omit "or pawnbroker";
(b) sub-paragraph (ii) is repealed.
10. New section 7A inserted
After section 7 of the Principal Act insert—
"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 apawnbroker.
(2) An application under sub-section (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.Penalty: 10 penalty units.".
11. Investigation of application
In section 8(1) of the Principal Act, after "dealer" insert "or an application for endorsement as a pawnbroker".
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 12
12. Consideration of application
(1) In section 8A(1) of the Principal Act, after "registration" insert "or endorsement".
(2) In section 8A of the Principal Act, for sub-sections (3) and (4) substitute— "(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—
(a)
to register an applicant or refuse to register an applicant; or
(b)
to endorse a registration or refuse to endorse a registration.".
13. New sections 8B and 8C inserted
After section 8A of the Principal Act insert—
"8B. Authority may impose conditions
(1) The Authority may—
(a) complied with before it registers, or
impose conditions that must be 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;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 14 | Act No. 93/2001 |
(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.
Penalty: 100 penalty units.
(3) An application under sub-section (1)(c),
other than an application by the Director or the Chief Commissioner of Police, must be accompanied by a fee of $150 or any other fee that is prescribed.
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.
(2) A person registered under this Part must comply with the requirement under sub- section (1).
Penalty: 10 penalty units.".
14. Registration
In section 9 of the Principal Act, for sub-
section (1) substitute—"(1) The Authority must register an applicant as a
second-hand dealer unless the applicant—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 15
(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).".
15. New section 9AA inserted
After section 9 of the Principal Act insert—
"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 8B(1)(a); and
(c)
the initial endorsement fee has been paid to the Authority.
(2) For the purposes of sub-section (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.".
16. Notice of decision
(1) In section 9A(1) of the Principal Act, after
"applicant" (where first occurring) insert "or
refuses to endorse the registration of an
applicant".
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 17 | Act No. 93/2001 |
(2) In section 9A(2) of the Principal Act, after
"applicant" (where first occurring) insert "or
endorses the registration of an applicant".
17. Application for review
(1) In section 9B(1) of the Principal Act, after
paragraph (a) insert—
"(ab) in respect of an application for endorsement
of a registration under this Part; or
(ac) to impose, vary or revoke a condition in
respect of registration or endorsement under
this Part; or".
(2) In section 9B(1) of the Principal Act—
(a) in paragraph (c), for "permission—" substitute "permission; or"; (b) after paragraph (c) insert— "(d) in respect of an application for permission under section 18 or any limitation on or condition of such a permission—".
18. Change in associates after registration
In section 10(2) of the Principal Act—
(a) in paragraph (c), for "corporate." substitute "corporate; or"; (b) after paragraph (c) insert— "(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.".
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 19
19. New section 11AA inserted
After section 11 of the Principal Act insert—
"11AA. Annual endorsement fee
(1) A person whose registration is endorsed
under this Part must pay to the Authority an
annual endorsement fee of—
(a) $400; or
(b) any other fee that is prescribed—
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.".
20. Failure to comply with section 11 or 11AA
(1) In section 11A(1) of the Principal Act—
(a) after "11" insert "or 11AA";
(b) omit "prescribed";
(c)
after "registration" insert "or endorsement, as the case may be,".
(2) In section 11A(3) of the Principal Act—
(a) after "11" insert "or 11AA";
(b) after "registration" insert "or endorsement, as the case may be,". (3) In section 11A of the Principal Act, after sub-
section (3) insert—
"(4) The fee for late payment or lodgement is $20
or any other fee that is prescribed.".
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 21 | Act No. 93/2001 |
21. Substitution of section 11B
For section 11B of the Principal Act substitute—
"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.
Penalty: 25 penalty units.".
22. New section 11C inserted
After section 11B of the Principal Act insert—
"11C. Surrender of registration or endorsement
(1) Subject to sub-section (3), a person
registered under this Part may at any time by notice in writing to the Authority, surrender the registration.
(2) Subject to sub-section (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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 23 (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. Penalty: 10 penalty units.".
23. Notification of changes
In section 12 of the Principal Act, after
"registered" insert ", or whose registration isendorsed,".
24. New section 12A inserted
After section 12 of the Principal Act insert—
"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.".
25. The register
(1) In section 13(1) of the Principal Act, after
"containing" insert "particulars of endorsements,
if any, under this Part and".
(2) In section 13 of the Principal Act, for sub-
section (3) substitute—
"(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—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 26 | Act No. 93/2001 |
on payment of the fee prescribed for that
type of copy.".
26. Correction of register
In section 14(3) of the Principal Act, after
"registration" insert "or endorsement of theregistration".
27. New sections 17 and 18 inserted
After section 16 of the Principal Act insert—
"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.
Penalty: 60 penalty units.
(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. Penalty: 60 penalty units.
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 personceases to be registered—
(a) if the person dies, the executor named of the person's estate or any person who intends applying for letters of
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 27 administration in relation to the
person's estate;
(b) if the person becomes an insolvent under administration, the assignee, trustee or receiver of the person; (c) person within the meaning of the
Guardianship and Administrationif the person becomes a represented of the person or any person nominated by the guardian or administrator;
(d) administered body corporate, the
liquidator, official manager, receiver,if the person becomes an externally- administrator.
(2) If a person authorised to carry on a business
period for permission to carry on the
business for a longer period, the person may
continue to carry on the business until theapplies to the Authority within the 30 day 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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 28 | Act No. 93/2001 |
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.
Penalty: 50 penalty units.
(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 personwho 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 hasceased to be registered.".
28. Division 2 of Part 2 inserted
Before Part 3 of the Principal Act insert—
"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 18Bagainst 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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 28 (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 endorsement under this Part; or
(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 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 sub-section (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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 28 | Act No. 93/2001 |
| 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
(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 doone or more of the following—
(a) reprimand the person;
(b)
order the person to pay into the Consolidated Fund a penalty not exceeding $5000;
(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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 28 (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 person must pay under this paragraph is more than $5000. (2) As an alternative to taking action under one
or more of sub-sections (1)(a), (b), (c), (d)
and (f), the Tribunal may—
(a) cancel the registration of the registered 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 specifiedperiod.
(3) If the Tribunal orders the payment of an
amount under sub-section (1)(b) or (g)—
(a)
it may order that the amount be paid by a specified date; and
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 28 | Act No. 93/2001 |
(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
(b) the endorsement of a pawnbroker— under sub-section (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 theTribunal.
(6) If under sub-section (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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 29 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 Authority within the
period specified by the Tribunal by notice in
writing given to the person.Penalty: 25 penalty units.".
29. Identification of persons selling or pawning goods
In section 19(1) of the Principal Act, for
paragraph (a) substitute—"(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".
30. Contracts for pawning goods
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 30 | Act No. 93/2001 |
(1) In section 23 of the Principal Act, after sub-
section (1) insert—
'(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 sub-section (1A), "motor car" has the same meaning as it has in the Motor Car Traders Act 1986.'.
(2) At the foot of section 23(2) of the Principal Act,
for "10 penalty units" substitute "20 penalty
units".
(3) In section 23 of the Principal Act, for sub-section
(3) substitute—
"(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) concerning the rights and
a notice in the prescribed form transaction; and
(c)
written notice of the charge that will be imposed on the transaction.
Penalty: 20 penalty units.".
31. New section 23A inserted
After section 23 of the Principal Act insert—
'23A. Return of residual equity in unredeemed
goods that are sold
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 31 (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;
"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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 31 | Act No. 93/2001 |
(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.Penalty: 20 penalty units.
(4) If—
(a) unredeemed pawned goods are sold by a pawnbroker after the expiry of the loan period; and (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 competentjurisdiction.
(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.
Penalty: 20 penalty units.
(6) Section 86 of the Sentencing Act 1991
applies to an offence under sub-section (5) as
if non-payment of the value of the residual
equity were a loss of property as a result of
the offence.'.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 32
32. Disputes as to possession of goods
In section 24 of the Principal Act, after sub-
section (8) insert—"(9) An order made under sub-section (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 sub- section (8)—
whichever is earlier.".
33. Increased penalty for contravention of notice requirement
At the foot of section 24B of the Principal Act, for
"10 penalty units" substitute "20 penalty units".
34. Police powers
In section 25(2)(b) of the Principal Act, for
"licence" substitute "certificate of registration".
35. Division heading inserted
In Part 5 of the Principal Act, before section 25 insert—
"Division 1—General".
36. New Division 2 inserted in Part 5
In Part 5 of the Principal Act, after section 26 insert—
'Division 2—Enforcement—Pawnbrokers 26A. Definition
In this Division, "endorsed pawnbroker" includes—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(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.
Penalty: 10 penalty units.
26C. Documents available for inspection
(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.Penalty: 50 penalty units.
(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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
Penalty: 50 penalty units.
(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.
Penalty: 50 penalty units.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 (b) to supply, orally or in writing, relating to that business; or
(c)
to produce to the inspector specified documents or documents of a specified class relating to that business.
(2) In this section—
"specified person", in relation to the
business of an endorsed pawnbroker,
means—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(a) a person who is a director or officer of a corporation which is an endorsed pawnbroker; or (b) corporation has been surrendered,
if the endorsement of a 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, relating to that business;
(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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
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, relating to that business.
(2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a request under sub-section (1).
(4) In this section "specified public body"
means—
(a)
a Department Head within the meaning of the Public Sector Management and Employment Act 1998; or
(b) a public statutory authority; or
(c) a municipal council; or
(d) the Chief Commissioner of Police.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;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(b) to supply, orally or in writing, relating to that business.
(2) An inspector can only make a requirement
under sub-section (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; (c) considers the documents necessary for
seize the documents if the inspector the purpose of any proceedings under this Act or the regulations;
(d) seize the documents if the inspector—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36 (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
(b)
to supply, orally or in writing, information required by an inspector in
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
| 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;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
(d) inspect and make copies of, or take extracts from, any document found on the premises. (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) give consent to the entry and
search or to the seizure ofthat the occupier may refuse to 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 in theprescribed form stating—
(a)
that the occupier has been informed of the purpose of the search and that
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
| 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; and
(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 anacknowledgment 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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36 another inspector or a member of the police
force) 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.;(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 sub-section (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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
1989, authorising an inspector named in the
warrant, together with any other person or
persons named or otherwise identified in thewarrant 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;
(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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36 (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 (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 sub-
section (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—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(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—
(a)
the inspector believes, on reasonable grounds, that the thing—
(i) is of a kind which could have been issued under this Division; or
(ii) will afford evidence about the 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—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
(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
(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 sub-section (2) to prove that the
defendant 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.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(2) A copy of a document certified under sub-
section (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) the document or thing was retained
have commenced within that 3 month
period and those proceedingsproceedings for the purpose for which completed; or
(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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
(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 identity card for inspection by the
occupier of the premises or an agent or
employee of the occupier may require thatperson—
(a)
to give information to the inspector, orally or in writing; and
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
(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.Penalty: 50 penalty units.
26V. Rule against self-incrimination does not
apply
(1) A person is not excused from answering a
question or producing a document under this 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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 36
(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.
Penalty: 50 penalty units.
26X. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 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 10 of thatAct were a reference to this Division.
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
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 36 | Act No. 93/2001 |
functions under this Division, give to any
other person, whether directly or indirectly,
any information acquired by the inspector in
carrying out those functions.
Penalty: 50 penalty units.(2) Sub-section (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 Licensing Authority Act 1998; or
(e)
with the written authority of the Director; or
(f)
with the written authority of the person to whom the information relates.'.
37. New Division 3 inserted in Part 5
At the end of Part 5 of the Principal Act insert—
'Division 3—Infringement Notices
26ZA. Definition
In this Division, "authorised officer" means—
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 37 (a)
an inspector under the Fair Trading Act 1999;
(b) a member of the police force;
(c)
a person authorised in writing by the Director.
26ZB. Power to serve a notice
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.
26ZC. Form of notice
An infringement notice must be in a form approved by the Director and must set out—
(a) the date of the notice;
(b)
the provision of this Act or the regulations that creates the offence;
(c) the date, time and place of the offence;
(d) the nature of the offence and a brief description of the offence; (e) the prescribed infringement penalty for the offence; (f) how the infringement penalty may be paid; (g) the time (being not less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 37 | Act No. 93/2001 |
(h)
that if the infringement penalty is paid before the end of that time, the matter will not be brought before the
Magistrates' Court unless the
infringement notice is withdrawn
within 28 days after the date on which
it was served;(i) the prescribed details, if any.
26ZD. Late payment of penalty
If a charge has not been filed, and a courtesy letter has not been served, under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence, the authorised officer may accept payment of the infringement penalty even if the time specified in the infringement notice as the time within which the penalty may be paid has expired.
26ZE. Withdrawal of notice
(1) The Director may withdraw an infringement notice within 28 days after it was served by serving on the person on whom the
infringement notice was served a withdrawal
notice in or to the effect of the form
approved by the Director.(2) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the Director must refund the amount of the penalty on withdrawing the
notice.
(3) Proceedings for the offence in respect of
which an infringement notice has been served may still be taken or continued despite the withdrawal of the notice.
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 37
26ZF. Further proceedings concerning
infringement notices
(1) Subject to section 26ZE, if the penalty
sought in an infringement notice is paid
within the time specified in the notice or if
the authorised officer accepts the payment of
the penalty under section 26ZD, then—
(a) no further proceedings concerning the offence may be taken against the person on whom the notice was served; and (b) no conviction is to be recorded against that person for the offence. (2) If proceedings are taken against a person in
respect of an offence for which an
infringement notice was served on the person
and a court finds the person guilty of the
offence, the finding is not to be taken as a
conviction for any purpose except—
(a) the making of the finding itself; and
(b)
any later proceedings that may be taken in respect of the finding itself (including proceedings by way of appeal or review).
(3) Sub-section (2) does not apply to
proceedings taken after the withdrawal of an
infringement notice.
(4) The payment of a penalty sought by an
infringement notice is not and must not be
taken to be—
(a)
an admission of guilt in relation to the offence in respect of which the notice was issued; or
(b)
an admission of liability for the purpose of any civil claim or proceeding arising
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 38 | Act No. 93/2001 |
| out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. |
(5) Nothing in this section 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.'.
38. Service
In section 27(1) of the Principal Act, for
"section 24" substitute "sections 24 and 26Y".
39. New sections 28A to 28D inserted
After section 28 of the Principal Act insert—
'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.
Penalty: 50 penalty units.
(3) In this section—
"endorsed pawnbroker" includes a person whose endorsement is suspended;
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 39 "registered second-hand dealer" includes
a person whose registration is
suspended.
28B. Rule against self-incrimination does not
apply
(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.'.
40. Evidence
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| s. 40 | Act No. 93/2001 |
In section 29(b)(i) of the Principal Act, after
"registered" insert "or endorsed".
41. Regulations
(1) In section 31(1) of the Principal Act, after
paragraph (d) insert—
"(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".
(2) In section 31 of the Principal Act, after sub- section (2) insert—
"(2A) Regulations made under sub-section
(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.".
42. New section 36 substituted
For section 36 of the Principal Act substitute—
'36. Transitional provisions (2001 amendments)(1) In this section, "appointed day" means the
day on which section 7(2) of the Second-
Hand Dealers and Pawnbrokers
Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
Act No. 93/2001 s. 42 (Amendment) Act 2001 comes into
operation.
(2) A person who, immediately before the
appointed day, was registered under Part 2 is
deemed, on and from that day, to be an
endorsed pawnbroker.(3) Sub-section (2) ceases to apply to a person
on the expiry of the period of 3 months
commencing on the appointed day unless the
person has during that period applied under
section 7A for an endorsement in which case
sub-section (2) ceases to apply when the
application is finally determined, whether on
appeal or otherwise, or at the end of any
appeal period, whichever is the later.
(4) If sub-section (3) applies then, despite
section 9AA(1)(c), the initial endorsement fee for the endorsement is to be paid to the Authority within 6 weeks after the date of endorsement but if not paid within that
period, the endorsement is cancelled.(5) This Act as in force immediately before the
appointed day continues to apply to any
prosecution for an offence under this Act or
an application for review under section 9B
that is not finally determined before that
day.'.
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Second-Hand Dealers and Pawnbrokers (Amendment) Act 2001
| Endnotes | Act No. 93/2001 |
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 1 November 2001
Legislative Council: 29 November 2001
The long title for the Bill for this Act was "to amend the Second-Hand
Dealers and Pawnbrokers Act 1989 and for other purposes."
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