1Purposes

The purposes of this Act are—

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

(a)

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

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

(b)

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

S. 1(c) inserted by No. 93/2001 s. 4(c), amended by No. 45/2017 s. 20(1).

(c)

to enhance protection of consumers dealing with second-hand dealers and pawnbrokers; and

S. 1(d) inserted by No. 45/2017 s. 20(2).

(d)

to prevent and disrupt criminal activity in the dealing of scrap metal.

2Commencement

(1)

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

(2)

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

3Definitions

(1)

In this Act—

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

associate, in relation to a person, means—

(a)

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

(i)

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

(ii)

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

(b)

a business partner of the person; or

(c)

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

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

auctioneer means any person—

(a)

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

(b)

who acquires any goods for sale by auction.

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

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

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

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

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

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

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

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

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

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

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

(a)

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

(b)

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

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

domestic partner of a person means—

(a)

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

(b)

an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)

for fee or reward; or

(ii)

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

S. 3(1) def. of e-currency inserted by No. 45/2017 s. 21(a).

e-currency has the same meaning as in the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 of the Commonwealth;

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

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

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

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

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

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

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

financial institution means—

(a)

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

(b)

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

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

* * * * *

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

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

S. 3(1) def. of interim closure notice inserted by No. 3/2019 s. 23.

interim closure notice means a notice issued under section 26ZT(1);

S. 3(1) def. of long-term closure order inserted by No. 3/2019 s. 23.

long-term closure order means an order made under section 26ZU(4);

S. 3(1) def. of motor vehicle inserted by No. 45/2017 s. 21(a).

motor vehicle means—

(a)

a motor vehicle within the meaning of the Road Safety Act 1986, whether or not in working condition or complete; or

(b)

the body, engine or chassis of a motor vehicle;

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

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

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

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

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

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

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

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

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

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

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

S. 3(1) def. of scrap metal inserted by No. 45/2017 s. 21(a).

scrap metal means any thing of commercial value that—

(a) is made from or contains metal; and

(b)

is sold or obtained as scrap for recycling or reprocessing of the metal—

but does not include any thing prescribed not to be scrap metal;

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

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

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

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

* * * * *

S. 3(1) def. of serious criminal offence inserted by No. 3/2019 s. 23.

serious criminal offence means an offence committed in Victoria that is punishable by a term of imprisonment of 2 years or more;

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

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

S. 3(1) def. of Tribunal inserted by No. 52/1998 s. 249(1), amended by No. 45/2017 s. 21(b).

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

S. 3(1) def. of vehicle identifier inserted by No. 45/2017 s. 21(a).

vehicle identifier has the same meaning as in the Road Safety Act 1986.

(2)

For the purposes of this Act—

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

(a)

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

(b)

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

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

(3)

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

(a)

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

(b)

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

(c)

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

4Application

Nothing in this Act applies to—

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

(a)

an auctioneer acting in his or her capacity as auctioneer; or

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

(aa)

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

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

(b)

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

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

(c)

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

(d)

goods subject to a hire-purchase agreement or a bailment; or

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

(e)

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

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

(f)

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

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

5Second-hand dealers and pawnbrokers to be registered

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

(1)

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

100 penalty units.

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

(1A)

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

(a)

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

(b)

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

100 penalty units.

(2)

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

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

6Eligibility for registration

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

(1)

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

S. 6(1)(a) amended by No. 13/2019 s. 221(Sch. 1 item 45).

(a)

the person or, if the person is a body corporate, a director of the person, is a represented person within the meaning of the Guardianship and Administration Act 2019; or

(b)

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

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

(2)

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

(a)

the person or an associate of the person or, if the person is a body corporate, a director or an associate of a director of the person has, within the preceding 5 years in Australia or elsewhere, been convicted or found guilty of a disqualifying offence; or

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

(ab)

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

(b)

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

(i)

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

(ii)

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

(iii)

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

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

(ba)

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

(i)

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

(ii)

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

(iii)

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

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

(c)

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

S. 7 substituted by No. 44/1997 s. 38.

7Application for registration

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

(1)

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

(2)

An application must be—

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

(a)

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

(b)

accompanied by evidence as to the identity of—

(i)

the applicant; or

(ii)

if the applicant is a body corporate, the directors of the applicant—

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

(c)

accompanied by the prescribed fee; and

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

(d)

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

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

(3)

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

10 penalty units.

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

7AApplication for endorsement

(1)

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

(2)

An application under subsection (1)—

(a)

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

(b)

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

(3)

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

10 penalty units.

S. 8 substituted by No. 44/1997 s. 38.

8Investigation of application

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

(1)

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

S. 8(1A) inserted by No. 52/1998 s. 252(1).

(1A)

The Director may inquire into and report to the Authority on the application.

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

(2)

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

(a)

the applicant;

(b)

if the applicant is a body corporate, the directors of the applicant;

(c)

the associates, if any, of the applicant.

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

(3)

A report may include recommendations.

S. 8A inserted by No. 52/1998 s. 253.

8AConsideration of application

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

(1)

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

(a)

conduct any inquiries it thinks fit;

(b)

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

(c)

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

(2)

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

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

(3)

The Authority may refuse—

(a)

to register an applicant; or

(b)

to endorse a registration—

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

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

(4)

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

(a)

to register an applicant or refuse to register an applicant; or

(b)

to endorse a registration or refuse to endorse a registration.

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

Second-Hand Dealers and Pawnbrokers Act 1989

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