Pawnbrokers and Second-hand Dealers Act 1996

This Act is the Pawnbrokers and Second-hand Dealers Act 1996.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

authorised officer means—

a police officer, or

the Secretary, or

an investigator appointed under section 18 of the Fair Trading Act 1987, or

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 documentary record, or

a record made by an electronic, electromagnetic, photographic or optical process, or

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—

the Commissioner for Fair Trading, Department of Customer Service, or

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—

sell by tender,

barter or exchange,

any of the following—

consign or deliver for sale,

advertise for sale,

offer for sale,

have in possession for sale,

agree to sell,

sell or do any of the above—

as an agent or broker, or

by an agent or broker,

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—

the principal and interest that was due at the time of the sale, and

any unpaid fees and charges that would have been paid by the person who pawned the goods to redeem the goods, and

any fees and charges that are deductible in respect of the sale of the goods, so long as—

they were disclosed in a statement in accordance with section 28(5A)(b), and

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.

Notes included in this Act do not form part of this Act.

In this Act, pawnbroker means a person who carries on a business of lending money on the security of pawned goods.

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.

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—

regard is to be had to the substance of the loan transaction rather than its form or other legal technicalities,

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,

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,

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.

The regulations may specify cases or circumstances in which, for the purposes of this Act—

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

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

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.

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.

This Act does not apply—

to dealing in second-hand goods in the course of a fundraising appeal authorised under the Charitable Fundraising Act 1991, or

to the business of an auctioneer, or

to the extent provided by the regulations, in relation to such persons and circumstances as the regulations may prescribe.

In subsection (2)—

business of an auctioneer does not include the business of selling goods by tender.

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.

An exemption under this section—

takes effect on the day the notice is given to the person or a later day specified in the notice, and

if the notice provides for the expiry of the exemption, expires in accordance with the notice, and

is subject to the conditions (if any) specified in the notice, and

may be amended, varied or revoked by the Secretary by further notice in writing to the person.

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.

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—

the person receiving the goods is taken to be lending money on the security of the goods as pawned goods, and

the price at which the goods are to be sold under the contract is taken to be the amount lent, and

the difference between the amount lent and the price at which the goods may be bought back is taken to be the interest payable.

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.

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.

An individual is eligible to hold a licence only if the Secretary is satisfied that—

he or she is at least 18 years of age, and

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

he or she is not a disqualified person, and

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.

A corporation is eligible to hold a licence only if the Secretary is satisfied that—

the corporation is a fit and proper person to hold a licence, and

each director of the corporation is a fit and proper person to hold a licence, and

the corporation is not a disqualified person.

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.

A person is a disqualified person for the purposes of this Act if—

the person is disqualified under subsection (2), (2A) or (3) from holding a licence, or

the person is precluded from being granted a licence under Part 5, or

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

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

the person is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach.

An individual is disqualified from holding a licence if—

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

he or she is an undischarged bankrupt, unless the Secretary has determined under subsection (5) that this factor should be ignored, or

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

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

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

he or she is an executive officer of a corporation that is a disqualified person, or

he or she is a mentally incapacitated person, or

he or she is in partnership in connection with the business concerned with a person who is a disqualified person.

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—

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

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.

A corporation is disqualified from holding a licence if—

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

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

any of its executive officers is a disqualified person.

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—

the triviality of the acts or omissions giving rise to the offence,

the time that has passed since the offence was committed,

the offence was committed by the offender as a minor,

the subsequent good behaviour of the offender,

any other ground prescribed by the regulations.

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.

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.

The Secretary may grant the following licences for the purposes of this Act—

pawnbrokers’ licences,

second-hand dealers’ licences,

combined pawnbrokers’ and second-hand dealers’ licences.

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.

A licence may be amended under the applied Act.

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.

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.