Second-Hand Dealers and Pawnbrokers Regulations · PDF fileAuthorised by the Chief Parliamentary Counsel 1 Authorised Version No. 003 Second-Hand Dealers and Pawnbrokers Regulations

Authorised by the Chief Parliamentary Counsel

i

Authorised Version No. 003

Second-Hand Dealers and Pawnbrokers Regulations 2008

S.R. No. 140/2008 Authorised Version incorporating amendments as at

3 July 2012

TABLE OF PROVISIONS Regulation Page

PART 1—PRELIMINARY 1

1 Objective 1 2 Commencement 1 3 Authorising provision 1 4 Revocation 2 5 Definition 2

PART 2—REGISTRATION 3

6 Fees 3 7 Register 3

PART 3—CONDUCT OF BUSINESS 5

8 Prescribed categories of evidence as to identity—persons selling or pawning goods 5

9 Recording transactions 6 10 Identifying mark or number 10 11 Pawn ticket and notice 10 12 Lost pawn ticket 11 13 Period of loan 11 14 Redemption of goods 11 15 Sale of unredeemed goods 12

PART 4—ENFORCEMENT 13

16 Embargo notice 13 17 Infringement offences and infringement penalties 13 18 Verifying statement 15

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Regulation Page

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SCHEDULES 16

SCHEDULE 1—Revoked Regulations 16

SCHEDULE 2—Pawn Ticket 17

SCHEDULE 3—What are My Rights when I Pawn Goods? 18

SCHEDULE 4—Notice of Sale of Pawned Goods 21

SCHEDULE 5—Embargo Notice 23

SCHEDULE 6—Verifying Statement under section 25(2B) of the Act 25 ═══════════════

ENDNOTES 26

1. General Information 26

2. Table of Amendments 27

3. Explanatory Details 28


1

Authorised Version No. 003

Second-Hand Dealers and Pawnbrokers Regulations 2008

S.R. No. 140/2008 Authorised Version incorporating amendments as at

3 July 2012

PART 1—PRELIMINARY

1 Objective The objective of these Regulations is to provide for—

(a) fees payable under the Act;

(b) the particulars to be recorded in the register of second-hand dealers;

(c) categories of documents as to identity;

(d) record-keeping requirements;

(e) forms;

(f) the manner of disposal by pawnbrokers of unredeemed goods;

(g) offences in respect of which an infringement notice may be issued.

2 Commencement

These Regulations come into operation on 21 December 2008.

3 Authorising provision These Regulations are made under section 31 of the Second-Hand Dealers and Pawnbrokers Act 1989.


Part 1—Preliminary

Second-Hand Dealers and Pawnbrokers Regulations 2008 S.R. No. 140/2008

2

4 Revocation The Regulations referred to in Schedule 1 are revoked.

5 Definition In these Regulations, the Act means the Second-Hand Dealers and Pawnbrokers Act 1989.

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Part 2—Registration


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PART 2—REGISTRATION

6 Fees (1) For the purposes of section 7(2)(c) of the Act, the

fee that must accompany an application for registration as a second-hand dealer is 9 fee units.

(2) For the purposes of section 8B(3) of the Act, the fee for an application by a person to vary or revoke any conditions imposed on registration is 3 fee units.

(3) For the purposes of section 10A(3)(b) of the Act, the fee to accompany a permission application is 59 fee units.

(4) For the purposes of section 11 of the Act, the annual registration fee is 3 fee units.

(5) For the purposes of section 11AA of the Act, the annual endorsement fee is nil.

(6) For the purposes of section 11A(4) of the Act, the fee for late payment or lodgement is 1 fee unit.

(7) For the purposes of section 13(3) of the Act, the fee for a copy of the register is $5.

7 Register

For the purposes of section 13(1) of the Act, the following are the particulars to be contained in the register in respect of each person registered under Part 2 of the Act—

(a) registration number issued by the Authority;

(b) name and business name of the person;

(c) the date of the grant of the registration or the date of any suspension of the registration;

(d) registration conditions;

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Part 2—Registration


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(e) address and telephone number of each premises from which the person carries on business;

(f) if the person is a registered corporation—

(i) the name of each director;

(ii) the date of appointment of each director;

(iii) the date of cessation of appointment of each director;

(g) an Australian Business Number (if any) held by the person;

(h) the address of any internet site maintained by the person for the purposes of carrying on a business as a second-hand dealer or pawnbroker.

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Part 3—Conduct of Business


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PART 3—CONDUCT OF BUSINESS

8 Prescribed categories of evidence as to identity—persons selling or pawning goods

In addition to the documents referred to in section 19(1) of the Act, the following categories of documents are prescribed categories—

(a) in the case of a natural person—

(i) a full birth certificate or an extract of birth;

(ii) a certificate of Australian citizenship;

(iii) a marriage certificate;

(iv) the following cards issued by or on behalf of the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs or the Commonwealth Department of Health and Ageing—

(A) Commonwealth seniors health cards;

(B) health care cards;

(C) pensioner concession cards;

(v) any other card issued by or on behalf of the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs, the Commonwealth Department of Health and Ageing or the Commonwealth Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions;

(vi) an identification card issued by a tertiary educational institution;

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(vii) a licence issued under the Firearms Act 1996;

(b) in the case of a body corporate, a certificate of registration or incorporation.

9 Recording transactions (1) For the purposes of section 20 of the Act, a

second-hand dealer or pawnbroker must keep records of transactions in—

(a) a bound record book; or

(b) a computerised record-keeping system.

(2) A second-hand dealer must record in the bound record book or computerised record-keeping system, during or immediately after every transaction in which the second-hand dealer receives second-hand goods, the following information—

(a) an accurate description of the goods received, including a description of any identifying mark or label on the goods;

(b) the identifying mark or number assigned by the second-hand dealer to the goods;

(c) the full name and address of the person from whom the goods were received;

(d) details of identification provided by that person;

(e) the date and time the goods were received;

(f) the price, if any, paid for the goods;

(g) if applicable, the name of the person acting on behalf of the second-hand dealer in the transaction.

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(3) A pawnbroker must record in the bound record book or the computerised record-keeping system, during or immediately after every transaction, the following information in respect of each transaction—

(a) the number of the transaction (corresponding with the number of the pawn ticket issued);

(b) an accurate description of the second-hand goods pawned, including a description of any identifying mark or label on the goods;

(c) the full name and address of the person from whom the goods were received;

(d) details of identification provided by that person;

(e) the address to which notices to the person from whom the goods are received are to be sent;

(f) if the person from whom the goods are received requests an alternative address for the service of notices, that address;

(g) the date on which the goods are pawned;

(h) the amount of any money advanced on the security of goods received in pawn;

(i) the charge imposed on the pawn transaction;

(j) the amount and date of every payment to the pawnbroker as part or full payment of a loan;

(k) the period of any loan made by the pawnbroker;

(l) if the pawned goods are redeemed, the date of the redemption;

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(m) if the pawned goods are not redeemed—

(i) the date of any sale of the goods, the price paid and the reasonable costs of sale; or

(ii) if the goods are not sold, the manner in which the goods are disposed of.

(4) If a second-hand dealer buys or exchanges second-hand goods—

(a) in a lot or parcel at the same time; and

(b) the value of each item in the lot or parcel is less than $50—

subregulation (2) is satisfied if the lot or parcel is described in one entry in the record book or the computerised record-keeping system.

(5) If a second-hand dealer buys or exchanges second-hand goods—

(a) in a lot or parcel at the same time; and

(b) the value of an item in the lot or parcel is $50 or more; and

(c) the item valued at $50 or more has an identifying mark or label—

the second-hand dealer must enter a record of that item in the record book or onto the computerised record-keeping system, in accordance with subregulation (2) and the remainder of the lot or parcel may be recorded in accordance with subregulation (4).

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(6) If a second-hand dealer buys second-hand goods at auction, subregulation (2) is satisfied if the second-hand dealer—

(a) obtains a receipt signed by the auctioneer containing the following information—

(i) an accurate description of the goods received, including a description of any identifying mark or label on the goods;

(ii) the identifying mark or number assigned by the second-hand dealer to the goods;

(iii) the full name and business address of the auctioneer who conducted the auction;

(iv) the date on which the goods were received from the second-hand dealer;

(v) the price paid for the goods at auction;

(vi) the name of the person acting on behalf of the second-hand dealer in the transaction; and

(b) enters in the record book or computerised record-keeping system a reference to identify the receipt.

(7) If a second-hand dealer imports second-hand goods from outside Australia, subregulation (2) is satisfied if the second-hand dealer—

(a) keeps the documents of consignment and customs documents relating to the goods; and

(b) enters in the record book or computerised record-keeping system a reference to identify those documents.

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(8) If a second-hand dealer or pawnbroker receives second-hand goods or pawned goods at any premises other than those notified to the Authority, the second-hand dealer or pawnbroker must record the transaction in the bound record book or computerised record-keeping system as soon as practicable after the transaction.

10 Identifying mark or number A second-hand dealer must ensure that the identifying mark or number assigned to second-hand goods received by the dealer remains affixed to the goods at all times until the goods are sold or otherwise disposed of by the second-hand dealer.

Penalty: 20 penalty units.

11 Pawn ticket and notice (1) A pawn ticket issued by a pawnbroker under

section 23(3)(a) of the Act must contain the particulars listed in Schedule 2.

(2) A notice under section 23(3)(b) of the Act must be in the form set out in Schedule 3 and—

(a) the heading to the form and the headings "In brief", "For further information" and "In more detail" must be printed in bold type and in a font size not less than 14 points; and

(b) the words between "In brief" and "For further information" must be printed in bold type and in a font size not less than 12 points; and

(c) all other headings must be printed in bold type and in a font size not less than 12 points; and

(d) the remainder of the form must be printed in a font size not less than 12 points.

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(3) A pawnbroker must not charge a fee to issue a pawn ticket.


12 Lost pawn ticket A pawnbroker must issue a duplicate pawn ticket if a person who pawned goods produces to the pawnbroker—

(a) a statutory declaration that the person has lost the pawn ticket or the pawn ticket has been stolen; and

(b) evidence as to the person's identity referred to in section 19(1) of the Act.


13 Period of loan (1) A pawnbroker must fix the period of the loan on

the security of pawned goods at the time the goods are pawned.


(2) The period of a loan for pawned goods commences on the day the goods are pawned.

14 Redemption of goods (1) A person who has pawned goods may redeem the

goods by paying the outstanding amount of the loan and producing to the pawnbroker—

(a) the pawn ticket or duplicate pawn ticket; and

(b) evidence as to the person's identity referred to in section 19(1) of the Act.

(2) A person who has pawned goods may redeem the goods at any time before the pawnbroker sells or disposes of them despite the expiry of the period of the loan.

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15 Sale of unredeemed goods (1) Subject to this regulation, if—

(a) the period of a loan expires and is not extended; and

(b) the goods pawned as security on the loan are unredeemed—

the pawnbroker must offer the goods for sale as soon as practicable and so as to receive the best price reasonably obtainable.


(2) A notice under section 23A(3) of the Act must be in the form set out in Schedule 4 and—

(a) the heading to the form and the words commencing "Name and address of pawnbroker" and ending "Date by which you must claim this money" and the words "What you need to do" and "Details of pawned goods and sale" must be printed in bold type and in a font size not less than 14 points; and

(b) the remainder of the form must be printed in a font size not less than 12 points.

(3) A pawnbroker must not purchase goods that have been pawned as security with the pawnbroker and have not been redeemed at or after the expiration of the period of the loan.


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Part 4—Enforcement


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PART 4—ENFORCEMENT

16 Embargo notice For the purposes of section 26P(1) of the Act, an embargo notice must be in the form set out in Schedule 5.

17 Infringement offences and infringement penalties (1) For the purposes of section 26ZB(1) of the Act, an

offence against the following provisions is an additional offence in respect of which an infringement notice may be issued—

(a) sections 11B(a), 11B(b), 11B(c), 11C(4), 12(a), 12(b), 12(c), 12(d), 17(1), 17(2) and 18D of the Act; and

(b) regulations 12, 13(1) and 15(3) of these Regulations.

(2) For the purposes of Division 3 of Part 5 of the Act, if an offence specified in column 2 of the following Table is dealt with by infringement notice, the infringement penalty for that offence is the penalty specified in the corresponding entry of column 3 of the Table.

Column 1 Item

Column 2 Infringement Offence

Column 3 Infringement Penalty

1 An offence against section 11B(a) of the Act

5 penalty units

2 An offence against section 11B(b) of the Act

5 penalty units

3 An offence against section 11B(c) of the Act

5 penalty units

4 An offence against section 11C(4) of the Act

2 penalty units

5 An offence against section 12(a) of the Act

2 penalty units

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Reg. 17 substituted by S.R. No. 75/2012 reg. 3.




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Column 1 Item

Column 2 Infringement Offence

Column 3 Infringement Penalty

6 An offence against section 12(b) of the Act

2 penalty units

7 An offence against section 12(c) of the Act

2 penalty units

8 An offence against section 12(d) of the Act

2 penalty units

9 An offence against section 17(1) of the Act

5 penalty units


5 penalty units

11 An offence against section 18D of the Act

5 penalty units

12 An offence against section 20 of the Act

5 penalty units


5 penalty units

14 An offence against section 21A of the Act

5 penalty units


5 penalty units


5 penalty units

17 An offence against section 23A(3) of the Act

3 penalty units

18 An offence against section 24B of the Act

5 penalty units

19 An offence against regulation 12 of these Regulations

3 penalty units

20 An offence against regulation 13(1) of these Regulations

5 penalty units

21 An offence against regulation 15(3) of these Regulations

5 penalty units

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18 Verifying statement For the purposes of section 25(2B) of the Act, the prescribed form of statement is the form set out in Schedule 6.

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Reg. 18 inserted by S.R. No. 20/2009 reg. 3.

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SCHEDULES

SCHEDULE 1 Regulation 4

REVOKED REGULATIONS

S.R. No. Title

175/1997 Second-Hand Dealers and Pawnbrokers Regulations 1997

61/2002 Second-Hand Dealers and Pawnbrokers (Amendment) Regulations 2002

92/2002 Second-Hand Dealers and Pawnbrokers (Exemption) Regulations 2002

170/2004 Second-Hand Dealers and Pawnbrokers (Forms) Regulations 2004

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Sch. 1



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SCHEDULE 2 Regulation 11(1)

PAWN TICKET Second-Hand Dealers and Pawnbrokers Act 1989

Name of pawnbroker:

Address of pawnbroker:

Full name and address of person from whom goods are received:

Date of loan:

Amount loaned:

Description of goods pawned:

Number of transaction:

Charges:

Period of loan:

Amount(s) paid and date(s) of payment (if any):

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WHAT ARE MY RIGHTS WHEN I PAWN GOODS? Second-Hand Dealers and Pawnbrokers Act 1989

In brief

• The pawnbroker must give you a pawn ticket and written notice of the charge you will have to pay in addition to the loan.

• If you do not repay your loan in time, the pawnbroker can sell your goods without telling you.

• If the pawnbroker sells your goods, you are entitled to claim the money left from the proceeds of sale after the money you owe under the loan, any unpaid pawnbroker's charge and the reasonable costs of sale of the goods have been deducted.

For further information

• If you have any questions about your rights when you pawn goods or if you have a complaint about a pawnbroker, please contact Consumer Affairs Victoria.

In more detail

Pawnbroker's charge The pawnbroker will charge you a weekly or monthly amount (sometimes called interest) and must give you written notice of the amount of the charge.

The pawnbroker's premises must have a sign that shows the maximum amount charged by the pawnbroker on pawn transactions.

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The pawnbroker must not charge you more than the maximum amount shown on the sign, unless the notice given to you states the reason for the higher amount and you agree in writing to pay the higher amount. You must also be given a copy of this agreement.

Repaying the loan You may repay your loan at any time before the pawnbroker sells your goods, even if the period of your loan has ended. The pawnbroker must record on your pawn ticket all payments you make on your loan.

Claiming your pawned goods You may claim your goods back by paying what you owe under the loan, and the amount of unpaid pawnbroker's charge. You may claim your goods back at any time before the pawnbroker sells them, even if the period of your loan has ended. When you claim your goods back you must show the pawnbroker—

• your pawn ticket; and

• one piece of identification with a photograph of yourself (such as a passport or a driver licence) or two pieces of identification without a photograph (such as a birth certificate, health care card or a marriage certificate). If you do not have these, either the pawnbroker or Consumer Affairs Victoria can advise you what other identification can be used.

Lost or stolen tickets If your pawn ticket is lost or stolen, the pawnbroker must give you a replacement pawn ticket if you provide—

• a statutory declaration stating that your ticket has been lost or stolen; and

• proof of identity as set out above.

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Selling unclaimed pawned goods

• If you do not claim back your goods by the end of the loan period the pawnbroker can sell them without telling you.

• The pawnbroker must sell your goods as soon as practicable after the end of the loan period and must obtain the best price reasonably obtainable for the goods.

• It is illegal for the pawnbroker to buy your goods.

Money left over from the sale of unclaimed pawned goods

• If your goods are sold, the pawnbroker is entitled to deduct from the proceeds of sale any money you owe (under the loan and the pawnbroker's charge) and the reasonable costs of selling the goods.

• You are entitled to any money left over from the proceeds of sale after these amounts have been deducted, if you claim it within 12 months after the sale of the goods.

• If the amount of money left over is $10 or more, the pawnbroker must send you a notice advising you that you can claim the money.

• The notice must be sent within 14 days after the sale to the last address you gave the pawnbroker unless you gave an alternative address for sending notices. It is important that you tell the pawnbroker if you change your address.

• If you do not claim the money left over within 12 months after the sale of the goods you are no longer entitled to it and the pawnbroker can keep it.

• It is illegal for the pawnbroker to refuse to pay you the money left over if you request payment within the 12-month period. If the pawnbroker refuses to pay you, you may apply to the Magistrates' Court for an order that the pawnbroker pay you the money.

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NOTICE OF SALE OF PAWNED GOODS Second-Hand Dealers and Pawnbrokers Act 1989

Name and address of pawnbroker:

You are entitled to claim money from the sale of your pawned goods.

Amount you are entitled to claim $

Date by which you must claim this money: [insert date 12 months after date of sale]

What you need to do

As you did not redeem your goods before the end of the loan period your goods have been sold.

The details of the goods, the amount obtained on their sale, the outstanding amount of the loan and the reasonable costs of sale are listed below.

You need to go to the pawnbroker at the above address to claim this money. If you do not claim the money by the date referred to above, the pawnbroker is entitled to keep it.

The pawnbroker may ask you to produce some identification when you claim this money.

It is illegal for the pawnbroker to refuse to pay you money left over from the sale of your goods if you request payment within 12 months after the sale of your goods. If the pawnbroker refuses to pay you, you may make an application to the Magistrates' Court for an order that the pawnbroker pay you the money.

If you have any questions about your rights when you pawn goods or if you have a complaint about a pawnbroker, you can get advice from Consumer Affairs Victoria.

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Details of pawned goods and sale

Date goods were pawned:

Description of goods pawned:

Date goods sold:

Amount for which goods were sold $

Amount of the loan $

Amount of accrued interest $

Sum of all payments made $

Reasonable costs of sale $

Breakdown of sale costs $

Signature of pawnbroker:

Printed name:

Date:

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EMBARGO NOTICE Second-Hand Dealers and Pawnbrokers Act 1989

Section 26P

1. The item described below has been embargoed under section 26P of the Second-Hand Dealers and Pawnbrokers Act 1989.

2. Section 26P(2) provides that a person who knows that an embargo notice relates to a thing and who—

(a) sells; or

(b) leases; or

(c) without the written consent of the inspector listed below notice, moves; or

(d) transfers; or

(e) otherwise deals with—

the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 50 penalty units.

3. Section 26P(3) provides that it is a defence to a prosecution for such an offence to prove that the thing or part of the thing was moved for the purpose of protecting and preserving it.

4. Section 26P(4) provides that despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of that section is void.

Description of embargoed item— This notice has been—

served on [name]

affixed to the item described above

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Signature of inspector:

Name of inspector:

Telephone number:

Date:

Time:

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Sch. 5



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VERIFYING STATEMENT UNDER SECTION 25(2B) OF THE ACT

Second-Hand Dealers and Pawnbrokers Act 1989

To: [insert name of member of police force]:

I, [insert name] in relation to [insert name and address of second-hand dealer/pawnbroker business] verify that the document produced to you on [insert date] in accordance with section 25(2A) of the Second-Hand Dealers and Pawnbrokers Act 1989 is a true record of the transaction records of the business for the period from [insert date] to [insert date], as at the date of this statement.

Signature:

Printed name:

Date:

Note

Section 25(2A) of the Act provides that a member of the police force may require a second-hand dealer or pawnbroker to produce a document that is, or is part of, a transaction record kept electronically by the second-hand dealer or pawnbroker.

The member of the police force may require the document to be provided either electronically, or in a paper form.

The second-hand dealer or pawnbroker must provide this verifying statement with the document.

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Sch. 6 inserted by S.R. No. 20/2009 reg. 4.

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ENDNOTES

1. General Information The Second-Hand Dealers and Pawnbrokers Regulations 2008, S.R. No. 140/2008 were made on 25 November 2008 by the Governor in Council under section 31 of the Second-Hand Dealers and Pawnbrokers Act 1989, No. 54/1989 and came into operation on 21 December 2008: regulation 2.

The Second-Hand Dealers and Pawnbrokers Regulations 2008 will sunset 10 years after the day of making on 25 November 2018 (see section 5 of the Subordinate Legislation Act 1994).

Endnotes



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2. Table of Amendments This Version incorporates amendments made to the Second-Hand Dealers and Pawnbrokers Regulations 2008 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Second-Hand Dealers and Pawnbrokers Amendment Regulations 2009, S.R. No. 20/2009

Date of Making: 3.3.09 Date of Commencement: 3.3.09

Second-Hand Dealers and Pawnbrokers Amendment (Infringements) Regulations 2012, S.R. No. 75/2012

Date of Making: 3.7.12 Date of Commencement: 3.7.12

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes



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3. Explanatory Details No entries at date of publication.

Endnotes

Documents

Second-Hand Dealers and Pawnbrokers Regulations · PDF fileAuthorised by the Chief Parliamentary Counsel 1 Authorised Version No. 003 Second-Hand Dealers and Pawnbrokers Regulations