New South Wales: Pawnbrokers and Second-hand Dealers Act 1996 (NSW)

Pawnbrokers and Second-hand Dealers Act 1996 No 13 An Act to provide for the licensing and regulation of pawnbrokers and dealers in certain classes of second-hand goods; to repeal the Pawnbrokers Act 1902, the Second-hand Dealers and Collectors Act 1906 and the Hawkers Act 1974; to amend certain Acts consequentially; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Pawnbrokers and Second-hand Dealers Act 1996. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— authorised officer means— (a) a police officer, or (b) the Secretary, or (c) an investigator appointed under section 18 of the Fair Trading Act 1987, or (d) a person authorised in writing by the Secretary. criminal intelligence means information classified by the Commissioner of Police as criminal intelligence within the meaning of the Crimes (Criminal Organisations Control) Act 2012, or declared by the Supreme Court under that Act to be criminal intelligence. disqualified person has the meaning given by section 8A. executive officer of a corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth. Note— Section 9 of the Commonwealth Act contained the following definition when the Bill inserting the definition in this Act was introduced— executive officer of a body corporate means a person who is concerned in, or takes part in, the management of the body (regardless of the person's designation and whether or not the person is a director of the body). fees and charges in respect of the sale of pawned goods—see section 30A. licence means a licence in force under this Act. licensed business means a business authorised by a licence. market does not include an annual event such as a school fete, or any activity of a kind prescribed by the regulations. pawn agreement means an agreement by which goods are pawned. pawn ticket means a copy of a record referred to in section 28(5). pawnbroker—see section 3A. promoter of a market means a person to whom vendors of goods or services offered at the market pay any fee, commission or rent in consideration of being allowed to sell there. record means— (a) a documentary record, or (b) a record made by an electronic, electromagnetic, photographic or optical process, or (c) any other kind of record. redemption period, in relation to pawned goods, means the period during which the goods may be redeemed under section 29(1). second-hand goods means any goods of a class or description prescribed that have been used or that are represented by a vendor of the goods to be goods purchased (otherwise than by the vendor) previously but unused. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. sell includes any of the following— (a) sell by tender, (b) barter or exchange, (c) any of the following— (i) consign or deliver for sale, (ii) advertise for sale, (iii) offer for sale, (iv) have in possession for sale, (v) agree to sell, (d) sell or do any of the above— (i) as an agent or broker, or (ii) by an agent or broker, (e) cause a sale to take place or cause any of the above to be done. In paragraph (c), the expressions sale and sell are capable of having the extended meaning given by paragraph (a) or (b) or both. surplus proceeds, in relation to a sale of pawned goods, means the proceeds of the sale less— (a) the principal and interest that was due at the time of the sale, and (b) any unpaid fees and charges that would have been paid by the person who pawned the goods to redeem the goods, and (c) any fees and charges that are deductible in respect of the sale of the goods, so long as— (i) they were disclosed in a statement in accordance with section 28(5A)(b), and (ii) they do not exceed the amounts of the fees and charges so disclosed or the amounts determined in accordance with the manner of determining them as so disclosed. Tribunal means the Civil and Administrative Tribunal. (2) Notes included in this Act do not form part of this Act. 3A Definition of "pawnbroker" (1) In this Act, pawnbroker means a person who carries on a business of lending money on the security of pawned goods. (2) For the purposes of this Act, goods are pawned if the goods are taken into the possession of a lender of money for the purpose of the lender relying on possession of the goods as security for the repayment of the loan. (3) In determining for the purposes of this Act whether goods are pawned and whether money is lent on the security of pawned goods, the following principles are to apply— (a) regard is to be had to the substance of the loan transaction rather than its form or other legal technicalities, (b) particular regard is to be had to the ordinary understanding of the borrower as to the nature of the loan transaction and the reason or basis on which possession of goods is given to the lender, (c) it does not matter that the terms of the loan transaction provide that the lender has taken possession of the goods at the request of or on behalf of the borrower or otherwise so as to give the appearance that the lender does not rely on possession of the goods as security for the repayment of the loan, (d) goods can be considered pawned and money can be considered lent on the security of pawned goods even if the loan also gives rise to a mortgage of the goods. (4) The regulations may specify cases or circumstances in which, for the purposes of this Act— (a) the taking of goods into the possession of a lender of money in connection with the loan is a pawning of the goods (whether or not that taking into possession is for the purpose of the lender relying on possession of the goods as security for the repayment of the loan), or (b) the taking of goods into the possession of a lender of money in connection with the loan is not a pawning of the goods (despite that taking into possession being for the purpose of the lender relying on possession of the goods as security for the repayment of the loan), or (c) the taking of goods into the possession of a person acting on behalf of a lender or associated with a lender is taken to be the taking of goods into the possession of the lender. 4 Restrictions on operation of this Act (1) This Act does not apply so as to affect any activities conducted in accordance with a licence, permit or other authority under another Act (for example the Property and Stock Agents Act 2002, the Firearms Act 1996, or the Motor Dealers and Repairers Act 2013). In particular, this Act does not require a person to obtain a licence under this Act to carry on a business or any activity that is authorised by a licence, permit or other authority issued to that person under any other Act. (2) This Act does not apply— (a) to dealing in second-hand goods in the course of a fundraising appeal authorised under the Charitable Fundraising Act 1991, or (b) to the business of an auctioneer, or (c) to the extent provided by the regulations, in relation to such persons and circumstances as the regulations may prescribe. (3) In subsection (2)— business of an auctioneer does not include the business of selling goods by tender. 4A Exemptions (1) The Secretary may, by notice in writing given to a person, exempt the person from the operation of this Act or specified provisions of this Act. (2) An exemption under this section— (a) takes effect on the day the notice is given to the person or a later day specified in the notice, and (b) if the notice provides for the expiry of the exemption, expires in accordance with the notice, and (c) is subject to the conditions (if any) specified in the notice, and (d) may be amended, varied or revoked by the Secretary by further notice in writing to the person. (3) As soon as practicable after giving a person an exemption under this section, the Secretary must make details of the exemption publicly available on a NSW Government website or by other appropriate electronic means. 5 Buy-back contracts regarded as pledge and loan If a person receives goods under a contract of sale where the seller has the right to buy back the goods, then for the purposes of this Act— (a) the person receiving the goods is taken to be lending money on the security of the goods as pawned goods, and (b) the price at which the goods are to be sold under the contract is taken to be the amount lent, and (c) the difference between the amount lent and the price at which the goods may be bought back is taken to be the interest payable. Part 2 Licensing of pawnbrokers and second-hand dealers 6 Pawnbrokers to be licensed A person must not carry on a business of lending money on the security of pawned goods except in accordance with a licence held by the person. Maximum penalty—100 penalty units. 7 Dealers in second-hand goods to be licensed A person must not carry on a business of buying or selling second-hand goods except in accordance with a licence held by the person. Maximum penalty—100 penalty units. 8 Eligibility for licence (1) An individual is eligible to hold a licence only if the Secretary is satisfied that— (a) he or she is at least 18 years of age, and (b) he or she is a fit and proper person to hold a licence and each person with whom he or she is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) he or she is not a disqualified person, and (d) he or she is not a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012. Note— Controlled members are prohibited from applying for licences—see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (2) A corporation is eligible to hold a licence only if the Secretary is satisfied that— (a) the corporation is a fit and proper person to hold a licence, and (b) each director of the corporation is a fit and proper person to hold a licence, and (c) the corporation is not a disqualified person. (3) If an applicant for a licence has been charged with an offence involving dishonesty, the Secretary may await the outcome of proceedings on the charge before determining the application. 8A Disqualified persons (1) A person is a disqualified person for the purposes of this Act if— (a) the person is disqualified under subsection (2), (2A) or (3) from holding a licence, or (b) the person is precluded from being granted a licence under Part 5, or (c) the person is the holder of a licence that is suspended under this Act, or of a licence, permit or other authority that is suspended under the Fair Trading Act 1987, or (d) the person is disqualified from holding a licence, certificate of registration or other authority under a corresponding law or is the holder of such a licence, certificate of registration or other authority that is suspended, or (e) the person is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach. (2) An individual is disqualified from holding a licence if— (a) he or she has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (4) that the offence should be ignored, or (b) he or she is an undischarged bankrupt, unless the Secretary has determined under subsection (5) that this factor should be ignored, or (c) he or she, at any time in the 3 years preceding the application for the licence, was an undischarged bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, unless the Secretary has determined under subsection (5) that this factor should be ignored, or (d) he or she is an executive officer of a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, unless the Secretary has determined under subsection (5) that this factor should be ignored, or (e) he or she, at any time in the 3 years preceding the application for the licence, was an executive officer of a corporation when the corporation was the subject of a winding up order or when a controller or administrator was appointed, unless the Secretary has determined under subsection (5) that this factor should be ignored in relation to the individual, or (f) he or she is an executive officer of a corporation that is a disqualified person, or (g) he or she is a mentally incapacitated person, or (h) he or she is in partnership in connection with the business concerned with a person who is a disqualified person. (2A) An individual is disqualified from holding a licence if the Secretary has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the individual that— (a) the individual is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and (b) the nature and circumstances of the individual's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the individual is not disqualified from holding a licence. (3) A corporation is disqualified from holding a licence if— (a) it has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (4) that the offence should be ignored, or (b) it is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, unless the Secretary has determined under subsection (5) that this factor should be ignored, or (c) any of its executive officers is a disqualified person. (4) Where subsection (2) or (3) provides that a determination may be made under this subsection in relation to an offence committed by a person, the Secretary may determine that the offence should be ignored for the purposes of this section on one or more of the following grounds— (a) the triviality of the acts or omissions giving rise to the offence, (b) the time that has passed since the offence was committed, (c) the offence was committed by the offender as a minor, (d) the subsequent good behaviour of the offender, (e) any other ground prescribed by the regulations. (5) Where subsections (2) and (3)(b) provide that a determination may be made under this subsection that a factor should be ignored, the Secretary may determine that the factor should be ignored for the purposes of this section in relation to the individual concerned if, on the basis of information provided to the Secretary by the individual, the Secretary considers it is appropriate to do so. (6) In this section— administrator and controller have the same meanings as in the Corporations Act 2001 of the Commonwealth. corresponding law means a law of another Australian jurisdiction that is declared by the Minister from time to time by order published in the Gazette to be a law that corresponds to this Act. 9 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant the following licences for the purposes of this Act— (a) pawnbrokers' licences, (b) second-hand dealers' licences, (c) combined pawnbrokers' and second-hand dealers' licences. (2) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence, subject to the modifications and limitations prescribed by or under this Act. (3) A licence may be amended under the applied Act. (4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act. (5) Nothing in Part 2 of the applied Act requires the Secretary to give any reasons for refusing an application for a licence because of section 8A(2A) to the extent that the giving of those reasons would disclose any criminal intelligence. 10 Duration of licence (1) An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew a licence for the nominated term or a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a licence does not affect the term of the licence. (6) This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 10A Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. 11 Conditions of licences (1) A licence is subject to any conditions that the Secretary sees fit, in the public interest, to attach to it— (a) on grant or renewal, or (b) at any time by order under subsection (1A), or (c) pursuant to section 36 or 36A. (1A) The Secretary may, by order served on the holder of a licence, attach conditions to the licence at any time during its currency. (1B) The Secretary may, by order served on the holder of a licence, vary or revoke any conditions referred to in subsection (1). (2) The regulations may make provision for or with respect to the imposition of conditions on the grant or renewal of a licence or at some later time. 12 Business and storage premises: second-hand dealers (1) An applicant for a licence to carry on the business of a second-hand dealer only, or an applicant for the renewal of such a licence, must nominate in the application any premises that the applicant intends to make regular use of, whether as business premises or storage premises, for the purposes of carrying on the licensed business. (2) A licensee who for any reason ceases to carry on business or to store goods at the premises nominated under this section, or who commences to carry on business or to store goods at other premises and intends to make regular use of those other premises, must notify the Secretary in writing of that fact and of the address of the other premises within 14 days of doing so. Maximum penalty (subsection (2)): 50 penalty units. 12A Business and storage premises: pawnbrokers (1) An applicant for a licence to carry on the business of a pawnbroker, or of a pawnbroker and a second-hand dealer, or an applicant for the renewal of such a licence, must nominate in the application all premises that the applicant will make use of, whether as business premises or storage premises, for the purposes of carrying on the licensed business. (2) A licensee who for any reason ceases to carry on business or to store goods at the premises nominated under this section, or who commences to carry on business or to store goods at other premises, must notify the Secretary in writing of that fact and of the address of the other premises within 14 days of doing so. Maximum penalty—50 penalty units. (3) It is a condition of a licence to carry on the business of a pawnbroker, or of a pawnbroker and a second-hand dealer, that the licensee carries on the business only from the premises nominated in the application for the licence, or later notified to the Secretary under subsection (2). (4) It is not a breach of such a condition for the licensee to carry on the business from other premises for a period of up to 14 days if the licensee notifies the Secretary of that fact within 14 days of commencing to use those premises. 12B Goods to be kept at approved business or storage premises: pawnbrokers (1) Definition In this section— approved premises, in relation to a licensee carrying on the business of a pawnbroker, or of a pawnbroker and a second-hand dealer, means— (a) business premises or storage premises nominated in the application for the relevant licence, or (b) business premises or storage premises later notified by the licensee to the Secretary under section 12A(2), or (c) other business premises or storage premises in respect of which the licensee is not yet in breach of section 12A(2), but does not include premises that are for the time being the subject of a declaration under subsection (4), or a direction under subsection (5), that is applicable to the goods concerned. (2) Unredeemed pawned goods to be kept at approved premises A licensee carrying on the business of a pawnbroker, or of a pawnbroker and a second-hand dealer, must ensure that any goods that are pawned to the licensee are at all times kept at approved premises, until— (a) the goods are redeemed, or (b) the goods are purchased, or (c) the goods are consigned for auction, or (d) the goods are removed in accordance with a requirement imposed, or an authorisation given, by or under this Act or the regulations. Maximum penalty—50 penalty units. (3) It is a condition of a licence to carry on the business of a pawnbroker, or of a pawnbroker and a second-hand dealer, that all goods pawned to the licensee are at all times kept at approved premises as required by subsection (2). (4) Exclusion of premises from being approved premises The regulations may declare that premises of a specified class are excluded from this section, in relation to all pawned goods or to pawned goods of a specified class. (5) The Secretary may, by notice given to a licensee, direct that specified premises or premises of a specified class are excluded from this section, in relation to all pawned goods, or to specified pawned goods or to pawned goods of a specified class. The Secretary may, in the same manner, amend or revoke such a direction. (6) Defence It is a defence to a charge for an offence based on the fact that goods were not kept at approved premises (or to an allegation of a failure to comply with a condition based on that fact) if the licensee establishes that at the relevant time— (a) the goods were located on premises that have within the past 3 days ceased to be approved premises, or (b) the goods were in the process of being transported to approved premises from— (i) other approved premises, or (ii) premises that have within the past 3 days ceased to be approved premises. (7) Other requirements not affected Nothing in this section affects any requirement of or imposed under any other provision of this Act or the regulations. 13 Register of licences (1) The Secretary must cause a register of licences to be maintained, in which are to be recorded the names, business premises and storage premises and other particulars relating to licensees and required by the regulations to be recorded. (2) On payment of a fee prescribed by the regulations, a person is entitled on request to be given a certificate by the Secretary containing information extracted from the register. (3) (Repealed) Part 3 Regulation of licensed businesses 14 Display of licence details (1) A licensee must conspicuously display, on all premises used for the conduct of a licensed business, the particulars required by the regulations to be displayed in relation to the licence. (2) A licensee who is conducting a licensed business as an itinerant must, at all times while so conducting the business, display in the prescribed manner any particulars required by the regulations to be displayed in relation to the licence. Maximum penalty—10 penalty units. 15 Evidence of identity and title of supplier of goods (1) On each occasion before accepting any goods offered for sale or pawn, a licensee must obtain evidence of the identity of the person by whom the goods are being offered. (1A) The evidence must include documentary evidence that shows the person's name and address, being evidence of a kind prescribed by the regulations, and must also include other evidence of any further particulars relating to the identity of the person that are required by the regulations. (1B) The regulations may provide for that additional evidence to be in oral or documentary form and may prescribe the kind of evidence required. (2) A licensee must not accept any goods offered for sale or pawn if the licensee has reasonable grounds to believe that the goods concerned are not the property of the person by whom they are offered or of any person for whom that person is authorised to make the offer. (3) A licensee must not accept any goods offered for sale or pawn without first complying with any requirements of the regulations relating to ascertaining the title to the goods. (4) A person must not, in purported compliance with any requirement reasonably made of the person by a licensee for the purposes of the licensee's compliance with this section, furnish information or make any statement knowing that it is false in a material particular. Maximum penalty—50 penalty units. 15A Evidence of identity of vendors at markets (1) Before permitting a person to sell second-hand goods at a market, the promoter of the market must obtain evidence of the person's identity on each occasion a market is or is to be conducted. (2) The evidence must include the same kind of evidence that is required to be obtained by a licensee under section 15 before accepting goods for sale. (3) However, in the case of a person licensed to carry on the business of a second-hand dealer or the business of a pawnbroker and a second-hand dealer, subsection (1) is satisfied by production to the promoter of documentary evidence indicating that the person is so licensed. (4) A promoter of a market may impose a reasonable requirement on a person seeking to sell goods at the market to furnish information to the promoter for the purposes of the promoter's compliance with this section. Maximum penalty—50 penalty units. Note— Section 24 makes it an offence for a person, in purported compliance with a requirement under the Act for the furnishing of information, to make or furnish any statement that the person knows is false or misleading. 16 Records (1) A licensee must keep records, in the manner and containing the particulars prescribed by the regulations, of all transactions— (a) for the acquisition or disposal of second-hand goods, or (b) for the redemption of any pawned goods, or the disposal of any forfeit pledge, and of such other matters pertaining to the business of a licensee as the regulations may prescribe. (2) A licensee must keep records, in the manner and containing the particulars prescribed by the regulations, of all persons employed in the licensed business. (3) The promoter of any market must keep records, in the manner and containing the particulars prescribed by the regulations, of all vendors selling second-hand goods at the market on any day, and of the kinds of goods sold by them and any other prescribed particulars. (4) A requirement under this Act to keep a record is a requirement to keep it— (a) so that it is readily able to be produced to an authorised officer if an authorised officer should require its production, and (b) in English. (5) A person required by this section to keep a record must retain the record for a period of 3 years after it is made. (5A) A licensee must, if required to do so by the regulations, furnish to the Commissioner of Police, within the prescribed time after it is made, particulars of any record required to be kept by the licensee by or under this Act. (6) If the regulations require a record kept under this section to be signed by a person making any entry in it or by a person who is the owner or consignor of goods to which the record relates, that person must sign it. (7) Without affecting the generality of subsections (1) and (2) or the power of the Secretary under section 11, the regulations may make provision for or with respect to requiring the use by licensees of electronic methods of creation and storage of records that licensees are required under this section to keep. Maximum penalty—50 penalty units. 17 Production of records (1) An authorised officer who has lawfully entered any premises where a licensed business is being carried on may require any person apparently in charge of the premises to do immediately any of the following— (a) to produce for inspection any record required to be kept by the licensee under this Act, (b) to identify and locate records kept by the licensee that correspond to particular goods kept by the licensee, (c) to identify and locate goods kept by the licensee that correspond to particular records kept by the licensee, (d) to reveal the whereabouts of any goods or records referred to in paragraph (b) or (c), (e) to produce the licence. (2) An authorised officer may require a person carrying on a licensed business from a market stall or other place occupied intermittently for the purposes of a licensed business to do any of the following— (a) to produce for inspection at the nearest police station within 24 hours any record required to be kept by the licensee under this Act, (b) to identify, locate and produce for inspection at the nearest police station within 24 hours any records kept by the licensee that correspond to particular goods kept by the licensee, (c) to identify, locate and produce for inspection at the nearest police station within 24 hours any goods kept by the licensee that correspond to particular records kept by the licensee, (d) to reveal immediately the whereabouts of any goods or records referred to in paragraph (b) or (c), (e) to produce the licence for inspection at the nearest police station within 24 hours. (3) An authorised officer may require the promoter of a market— (a) to produce for inspection at the nearest police station within 24 hours any record required to be kept by the promoter under this Act, or (b) to reveal the whereabouts of any such records. (4) An authorised officer who is not a police officer may, instead of requiring under this section that any goods or records be produced at a police station, require— (a) the production of the goods or records at a place specified by the authorised officer, or (b) that a copy of the records be sent to an address specified by the authorised officer. (5) In the case of a record that is electronically stored, a provision of this section conferring power on an authorised officer to compel production of the record for inspection empowers the officer, for the purpose of exercising that power— (a) to view the record and to copy or take extracts from it by electronic means, or (b) to require that it be reproduced in hard copy, or copied electronically or reduced to a portable form suitable for removal and capable of reproducing the record for viewing. (6) A person must comply with a requirement made of the person under this section. Maximum penalty—50 penalty units. 18 Seizure of records (1) An authorised officer may take temporary possession of any record produced to the officer under this Act for the purpose of making copies or notes of some or all of it. (2) When possession of a record is taken under this section, a receipt is to be issued for it at the time it is taken and, as soon as practicable thereafter, the record or a copy of it must be returned to the person from whom it was taken. 19 Duty to report suspicious goods (1) A licensee, and any employee of a licensee, who suspects for any reason that goods in the custody of the licensee or employee in the course of the licensee's business, or goods that are offered to the licensee or employee for sale or pawn, may have been stolen or otherwise unlawfully obtained must without delay inform an authorised officer of the cause of that suspicion. Maximum penalty—50 penalty units. (2) If the licensee or employee is aware that the unique identifier of the goods has been removed, obliterated, defaced or altered, the licensee or employee is presumed (for the purposes of this section) to suspect that the goods may have been stolen. (3) In this section, unique identifier of goods means any numbers, letters or symbols that are marked on or attached to the goods as a permanent record so as to enable the goods to be distinguished from similar goods. 20 Inspection of goods (1) An authorised officer may, at any reasonable time, enter any premises where a licensed business is conducted and inspect goods kept at the premises. (2) An authorised officer may, at any reasonable time, enter any storage premises used in connection with a licensed business and inspect any goods there, and for that purpose may require a person apparently in charge of the storage premises to open them. (2A) For the purpose of inspecting goods kept at any premises referred to in subsection (1) or (2), an authorised officer may open any unlocked cupboard, drawer, container or other form of storage found at the premises, and may require a person apparently in charge of the premises to open any form of storage (including a safe) that is locked. (3) In exercise of the power conferred by this section, the authorised officer may enter the premises concerned in company with a person claiming to be the true owner of any goods believed to be kept on the premises, or with any technical expert, and may take photographs of any goods found there and tender them for inspection by the person accompanying the officer. (4) A person must not fail to comply with a requirement under this section. Maximum penalty—50 penalty units. 21 Retention of goods (1) A licensee— (a) must keep all second-hand goods purchased or received in the course of the licensed business for a period of 14 days on premises nominated or otherwise notified under section 12 or 12A as business premises or at such other places as may be determined by or in accordance with the regulations, and (b) must not alter the form of the goods or dispose of them in any way, or allow them to be redeemed or part with possession of them, during that period. This subsection does not apply to such goods, or in such circumstances, as the regulations may prescribe. (1A) The period of 14 days commences with the day on which the purchase or receipt was recorded by the licensee. (2) An authorised officer who has reasonable grounds to suspect that goods in the possession of a licensee have been stolen or otherwise unlawfully obtained may, by a notice specifying the goods, prohibit the licensee from altering the form of the goods or disposing of them in any way, or allowing them to be redeemed, or parting with possession of them, for a period of 56 days after service of the notice. (3) A notice under subsection (2) may be reissued once for a further period of 56 days commencing on the expiry of the first notice. (4) A licensee must comply with this section and with any notice under this section, and must see to it that no employee of the business does what this section or such a notice prohibits the licensee from doing. Maximum penalty—50 penalty units. 22, 23 (Repealed) 24 False or misleading information A person must not, in purported compliance with a requirement under this Act to furnish information, make or furnish any statement that the person knows is false or misleading. Maximum penalty—50 penalty units. 25 Obstructing authorised officer A person must not delay, obstruct or otherwise hinder an authorised officer in the performance of the officer's functions under this Act. Maximum penalty—50 penalty units. 26 Penalty notices (1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence. (2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence. (3) The Fines Act 1996 applies to a penalty notice issued under this section. Note— The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence. (4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court). (5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. 27 Demerit points scheme (1) If a licensee or any employee of a licensee— (a) has been convicted of any offence prescribed by the regulations for the purposes of this section, or (b) has paid a penalty pursuant to section 26 in respect of any such offence, or (c) is a person against whom an order has been made under Division 4 of Part 3 of the Fines Act 1996 in respect of such an offence, the Secretary may endorse, on a record kept in relation to the licensee, particulars of the offence, the penalty, the number of demerit points allocated to the offence and the date on which the offence is alleged to have been committed. (2) The number of demerit points to be allocated to an offence is the number prescribed by the regulations in relation to the offence. (3) In addition to any other grounds on which the Secretary may serve a notice under section 34, such a notice may be issued if the licensee incurs a total of 12 or more demerit points within any period of 3 years. (4) For the purposes of this section, any demerit points incurred in respect of an offence are to be taken to have been incurred on the date on which the offence was allegedly committed. (5) If the Secretary serves a notice under section 34 in accordance with this section, the demerit points on which that notice was grounded may not be considered as grounds for a further notice under that section. (6) A certificate that purports to be signed by the Secretary and that certifies the number of demerit points accruing to a particular licensee in a particular period is evidence, in any proceedings, of the particulars certified in it. Part 4 Special provisions relating to pawnbrokers 28 Pawnbroker's record of pledges (1) At the time possession of goods is taken under an agreement by which the goods are pawned, a record of the agreement must be made that complies with this section. (2) The record must include— (a) a fair and reasonable description of the goods (including a fair and reasonable description of any detached or detachable components of the goods), which must include— (i) each serial number, each other identifying number and each hallmark, inscription and engraving appearing on the goods (including any such components), and (ii) any other matters prescribed by the regulations for the purposes of this paragraph, and (b) the total amount lent on the goods, together with the rate of interest charged by week, month, or other period, as the case may be, and any other charges, and (c) an equivalent annual interest rate, calculated in accordance with the regulations, and (d) the name and residential address of the owner of the goods and of any agent through whom they are pawned, and (e) the date of the pledge, and (f) any other particulars required by the regulations to be included. (3) A pledge is not validly made unless— (a) the person pawning the goods signs the record, including by, if the record is kept in electronic form, signing a hard copy or attaching an electronic signature, and (b) at the time of signing, the record contained all the particulars required by or under this Act to be included in the record. (4) The record signed under subsection (3) must be retained for a period of 3 years after it was made. (5) An accurate and legible copy (a pawn ticket) of any such record must be given to the person who pawned the goods at the time the record is made. (5A) A pawn ticket must incorporate or be accompanied by— (a) a notice in the form approved by the Secretary setting out rights and obligations of the person who pawned the goods, and complying with the requirements of the regulations (if any), and (b) a statement, in itemised form, of— (i) the types of fees and charges that are or may become payable, including those that are or may become deductible from the proceeds of the sale of the goods concerned, and (ii) so far as they are known or ascertainable—the amounts of the fees and charges, and (iii) so far as they are not known or ascertainable—the manner of calculating the amounts of the fees and charges, and (c) a statement of the method or methods by which the goods may be sold if the goods are not redeemed. (d) (Repealed) (5B) A pawn ticket must not contain any statement or claim, or be accompanied by any material that contains any statement or claim, that purports to exclude or modify or misrepresents any rights that a person has under this Act or the regulations, or under any other legislation, or under the common law. (5C) Without affecting the generality of subsection (1), the regulations may make provision for or with respect to requiring the use by pawnbrokers of electronic methods of creation and storage of records that pawnbrokers are required to keep under this section. (6) In this section— component of goods includes an attachment to the goods (including, for example, a battery). (7) If this section is contravened in relation to any transaction, the pawnbroker by or on whose behalf the transaction was undertaken is guilty of an offence. Maximum penalty—50 penalty units. 29 Redemption of pawned goods (1) Pawned goods may be redeemed at any time— (a) during the period of 3 months commencing on the date they were pawned, or (b) during such longer period, commencing on that date, as may be agreed. (2) When the redemption period has expired, pawned goods may still be redeemed at any time before they are sold (or, in the case of goods consigned for auction, at any time before they are consigned for auction). (3) A provision in or condition of any agreement that purports to limit the period of 3 months referred to in subsection (1)(a), or that purports to limit or restrict the operation of subsection (2), is of no effect. (4) An agreement for the purposes of subsection (1)(b) may be made at any time before the pawned goods are sold. (5) A pawnbroker must not sell any goods before the redemption period has expired. (6) A pawnbroker must not permit any goods to be redeemed without taking such steps as the regulations may require in relation to ascertaining the identity of the person redeeming them or without complying with any other requirement prescribed by the regulations in relation to the redemption of those goods. Maximum penalty—50 penalty units. 29A Agreement to extend redemption period (1) This section applies to an agreement (in this section called an extending agreement) for the purposes of section 29(1)(b) to vary a pawn agreement (in this section called an original agreement) by extending the redemption period for the goods concerned. (2) An extending agreement may be entered into with a pawnbroker by a person who is entitled to redeem the goods concerned. (3) A pawnbroker must not enter into an extending agreement with another person without— (a) taking such steps in relation to ascertaining the identity of the other person as— (i) would be required by the regulations in relation to ascertaining the identity of a person seeking to redeem the goods, or (ii) are prescribed instead by the regulations for the purposes of this paragraph, and (b) complying with such other requirements as— (i) would be applicable under the regulations in relation to the redemption of those goods, or (ii) are prescribed instead by the regulations for the purposes of this paragraph. (4) At the time an extending agreement is entered into, a record of the extending agreement must be made that complies with this section. (5) The record of an extending agreement must— (a) be incorporated in or attached to the record of the original agreement, and (b) include an identifying reference to or description of the original agreement, and (c) specify the new redemption period, and (d) specify any new or varied rates, fees or charges that are or may be payable as a result of the extension, and (e) specify the date on which the extending agreement is entered into, and (f) include any other particulars required by the regulations to be included. (6) An extending agreement is not validly made unless— (a) the person entering the extending agreement with the pawnbroker signs the record, including by, if the record is kept in electronic form, signing a hard copy or attaching an electronic signature, and (b) at the time of signing, the document contained all the particulars required by or under this Act to be included in the document. (7) An accurate and legible copy of the record must be given to the person who pawned the goods at the time the record is made. (8) Without affecting the generality of subsection (4), the regulations may make provision for or with respect to requiring the use by pawnbrokers of electronic methods of creation and storage of records that pawnbrokers are required to keep under this section. (9) A record of an extending agreement under this section must be retained for the period for which the record of the original agreement concerned is required to be kept under section 28. (10) A redemption period may be extended even though the period has already expired. (11) If this section is contravened in relation to any transaction, the pawnbroker by or on whose behalf the transaction was undertaken is guilty of an offence. Maximum penalty—50 penalty units. 29B Pawn agreement not to be varied (1) A pawn agreement may not be varied (whether by alteration of the agreement or by a further agreement) except— (a) in accordance with section 29A or any other Act, or (b) as permitted by the regulations. (2) If a pawn agreement is varied in contravention of subsection (1), the pawnbroker by or on whose behalf the agreement was entered into is guilty of an offence. Maximum penalty—50 penalty units. (3) However, a pawnbroker is not liable to be punished twice in respect of the same variation (that is, under this section and also under section 29A or any other Act). 29C Simultaneous discharge of pawn agreement and re-pawning of goods (1) Nothing in this Part prevents the parties to a pawn agreement in relation to any goods from agreeing to discharge the pawn agreement and simultaneously to enter into a new pawn agreement in relation to the same goods or any of the goods. (2) If a new pawn agreement is entered into as referred to in subsection (1)— (a) the goods are regarded as having been redeemed under the discharged agreement, and (b) the pawnbroker is regarded as having again taken possession of the goods (in so far as they are covered by the new agreement) under the new agreement when it is entered into. 30 Sale of unredeemed goods (1) If pawned goods have not been redeemed at the end of the redemption period and the principal lent on the goods was greater than the amount prescribed by the regulations, the pawnbroker must, as soon as reasonably practicable, sell the goods in a manner conducive to securing the best price reasonably obtainable, either— (a) by sale by auction at any premises, or (b) by sale by auction or otherwise at business premises of the pawnbroker. Maximum penalty—50 penalty units. (2) If the goods are sold at auction and the person to whom the goods are sold does not pay the whole of the purchase price for those goods in accordance with the contract governing the sale at auction, the sale is taken to be void and the title to the goods is taken not to have passed. (3) If subsection (2) applies, the pawnbroker must, as soon as reasonably practicable, sell the goods in a manner conducive to securing the best price reasonably obtainable, either— (a) by sale by auction at any premises, or (b) by sale at business premises of the pawnbroker. Maximum penalty—50 penalty units. (4) If in proceedings a question arises as to whether the pawnbroker has complied with subsection (1) or (3), the onus of proving compliance is on the pawnbroker. (5) Nothing in this section prevents redemption of the goods under section 29 after expiry of the redemption period, and the pawnbroker is not guilty of an offence under this section if the goods are so redeemed. 30A Fees and charges in respect of sale of unredeemed goods (1) References in this Act to fees and charges in respect of the sale of pawned goods include references to fees and charges that may be deducted from the proceeds of the sale of the goods. (2) The fees and charges in respect of the sale of pawned goods that may be deducted from the proceeds of the sale of the goods include— (a) the costs of or reasonably incidental to the sale, and (b) any receipted expenses actually incurred for the repair of the goods for the purposes of their sale, but exclude— (c) any fees or charges relating to the repair of the goods for the purposes of their sale, apart from receipted expenses actually incurred, and (d) such kinds of fees or charges as are prescribed by the regulations as being excluded from this subsection. 31 Application of proceeds of sale (1) If any pawned goods are sold for more than the full amount of the principal and interest that was due at the time of the sale, the surplus proceeds of the sale must, if claimed within the period of 12 months commencing with the date of the sale, be paid on demand (orally or in writing at the business premises of the pawnbroker, or elsewhere in any manner as agreed) to— (a) the person by or for whom the goods were pawned, or (b) any person claiming for or under that person, or (c) that person's executor or administrator in the case of his or her death. (2) If subsection (1) is contravened, the pawnbroker to whom the goods were pawned is guilty of an offence. Maximum penalty—50 penalty units. Note— The expression "surplus proceeds" is defined in section 3. 31A Notice as to proceeds of sale (1) Subject to subsection (2), a pawnbroker who sells pawned goods must, before the end of the period of 21 days commencing with the date of the sale, give the person who pawned the goods a notice informing the person— (a) of any amount that may be claimed by the person as surplus proceeds of the sale, and (b) that the person is entitled to receive that amount from the pawnbroker at the business premises of the pawnbroker or in another manner as agreed, within 12 months after the sale. Maximum penalty—50 penalty units. (2) Subsection (1) does not apply where— (a) the person who pawned the goods has requested the pawnbroker in writing not to send the notice under that subsection, or (b) the amount that may be claimed is less than $50 or such other amount as may be prescribed instead. Note— The expression "surplus proceeds" is defined in section 3. 32 Pawnbroker not to purchase pawned goods (1) Neither a pawnbroker nor an employee or person acting on behalf of a pawnbroker is permitted to buy goods that have been pawned to and are being sold by the pawnbroker. (2) In the case of a corporate pawnbroker, subsection (1) extends to apply to every director of the pawnbroker, as well as to the pawnbroker, its employees and persons acting on its behalf. (3) The title conveyed by a sale in contravention of this section is not valid against the owner of the article. (4) If a person purports to purchase an article in contravention of this section, the pawnbroker to whom the goods were pledged, and that person, are each guilty of an offence. Maximum penalty—50 penalty units. 32A Interest charges (1) If interest charges are able to be debited under a pawn agreement— (a) at the end of the redemption period (where that period exceeds one month), or (b) at intervals that exceed one month, the agreement must— (c) provide an option for payment of interest charges at monthly intervals, and (d) specify the amount payable in respect of each month or (if that amount is not known or ascertainable) the manner of calculating that amount. (2) Payment of an interest charge in respect of a period (whether of one month or any other duration) may be made, by or on behalf of the person who pawned the goods, at any time during business hours during that period. (3) A pawnbroker is guilty of an offence if the agreement by which goods are pawned contains a provision or condition that is inconsistent with subsection (1) or (2). (4) A pawnbroker is guilty of an offence if the pawnbroker refuses to accept or retain payment of interest charges as permitted by subsection (2). (5) Nothing in this section prevents the extension of a redemption period under section 29A. Maximum penalty—50 penalty units. 32B Interest charges and other charges after redemption period (1) Interest is not chargeable in respect of any period after the end of the redemption period in relation to any pawned goods. (2) No special fee or charge is payable for the redemption of pawned goods after the end of the redemption period, and fees and charges in respect of the safekeeping of the pawned goods must not be at a higher rate after the end of the redemption period than before. (3) A pawnbroker is guilty of an offence if the agreement by which goods are pawned contains a provision or condition for the charging of interest, or the payment of a special fee or charge, in contravention of subsection (1) or (2). (4) A pawnbroker is guilty of an offence if the pawnbroker charges interest in contravention of subsection (1) or accepts payment of any such interest. (5) A pawnbroker is guilty of an offence if the pawnbroker imposes a special fee or charge, or a fee or charge at a higher rate, in contravention of subsection (2) or accepts payment of any such fee or charge. Maximum penalty—50 penalty units. 32C Signage to be displayed A licensee must cause a notice specifying the rate or rates of interest charged and any other fees and charges, in such form and of such appearance as may be prescribed by the regulations, to be displayed in a prominent position in each of the business premises of the licensee to which the public has access so that the notice is clearly visible to the public. Maximum penalty—50 penalty units. 32D Sale or transfer of business (1) If a pawnbroker sells or transfers the pawnbroker's business to a person (in this section called the purchaser), the rights and obligations of the pawnbroker in relation to each agreement by which goods are pawned to the pawnbroker are transferred to the purchaser. (2) The pawnbroker must notify (in accordance with subsection (5)(a)) each person who has pawned goods to the pawnbroker under a current agreement of the transfer to the purchaser of the rights and obligations of the pawnbroker in relation to the agreement, unless the purchaser agrees in writing to give the notice. Maximum penalty—50 penalty units. (3) If the purchaser agrees to give notice as referred to in subsection (2), the purchaser must notify (in accordance with subsection (5)(b)) each person who has pawned goods to the pawnbroker under a current agreement of the transfer to the purchaser of the rights and obligations of the pawnbroker in relation to the agreement. Maximum penalty—50 penalty units. (4) For the purposes of this section— (a) an agreement relating to pawned goods is current if— (i) the goods are still able to be redeemed, or (ii) the goods are in the process of being sold, or (iii) any surplus proceeds of the sale of the goods are still claimable under this Act, and (b) a reference to a pawnbroker includes a reference to a former pawnbroker. (5) Notice under— (a) subsection (2) must be given within the period of 14 days commencing with the date of the transfer or within such other period as may be prescribed by the regulations instead, and (b) subsection (3) must be given within the period of 14 days commencing with the date the purchaser agrees under that subsection or within such other period as may be prescribed by the regulations instead. Note— The expression "surplus proceeds" is defined in section 3. Part 4A Disputes as to ownership of goods and restoration of goods 32E Definitions (1) In this Part— claimant means a claimant referred to in section 32F. licensee includes a former licensee. restoration notice means a restoration notice referred to in section 32F. (2) For the purposes of this Part, criminal proceedings are commenced by the laying or filing of an information, complaint or charge, or the issuing and filing of a court attendance notice, in relation to the offence concerned, or in such other manner as is referred to in the regulations. 32F Notice of entitlement to goods (1) Application of section This section applies where— (a) a person (in this Part called the claimant) alleges, in a written statement signed by the person and given to a police officer, that any goods in the possession of a licensee and obtained by the licensee in the course of the conduct of a licensed business— (i) are the property of the claimant, and (ii) have been stolen or otherwise unlawfully obtained from the claimant or have been pawned or sold to the licensee without the claimant's authority, and (b) the theft or other activity referred to in paragraph (a)(ii) has been reported to a police officer on an earlier occasion, and (c) the claimant produces to a police officer written documentary evidence, or a statutory declaration made by the claimant, that appears to the officer to contain evidence or statements acceptable to the officer for the purpose of substantiating the claimant's title to the goods, and (d) the police officer to whom the evidence or statutory declaration is produced has no reason to suspect that any of the evidence or statements is false or misleading in a material particular. (2) Restoration notice A police officer may serve on the licensee a notice (in this Part called a restoration notice) stating that the goods must be delivered to the claimant within the required period unless within that period the licensee commences proceedings under section 32G or other civil or criminal proceedings have been commenced and are pending in relation to the goods. (3) The restoration notice must contain such particulars and information, and be accompanied by such material, as may be prescribed by the regulations. (4) Duty of licensee The licensee must, within the required period— (a) deliver the goods to the person specified in the restoration notice or, if the licensee is unable t