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