VersionNo. 080
Second-Hand Dealers and Pawnbrokers Act 1989
No. 54 of 1989
Version incorporating amendments as at
1 June 2016
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Application
Part 2—Registration
Division 1—General
5Second-hand dealers and pawnbrokers to be registered
6Eligibility for registration
7Application for registration
7AApplication for endorsement
8Investigation of application
8AConsideration of application
8BAuthority may impose conditions
8CNotation of condition on certificate of registration
9Registration
9AAEndorsement
9ANotice of decision
9BApplication for review
10Automatic cancellation of registration
10APermission to be registered or to continue to be registered
10BConditions on permission
11Annual registration fee and statement
11AAAnnual endorsement fee
11AFailure to comply with section 11
11BReturn of certificates of registration
11CSurrender of registration or endorsement
12Notification of changes
12AAddress for notices
13Register
14Correction of the register
16Offences
17Display of current registration certificate
18Death, disability etc. of registered person
Division 2—Disciplinary action
18ADisciplinary action
18BDetermination of disciplinary measures by Tribunal
18CEffect of suspension
18DSuspended and cancelled certificates of registration must be returned
Part 3—Conduct of business
19Identifying persons selling or pawning goods
20Recording transactions
21Retention of goods for seven days
21ARecording storage location of goods
22Co-operation with police
23Contracts for pawning goods
23AReturn of residual equity in unredeemed goods that are sold
Part 4—Disputes as to the ownership ofgoods
24Magistrates' Courts to determine disputes
24AOffence of failing to comply with court order
24BSign to be displayed
Part 5—Enforcement
Division 1—General
25Police powers generally
26Notice to stop dealings in goods suspected of having been stolen
Division 2—Enforcement—pawnbrokers
26ADefinition
26BProduction of identity card
26CDocuments available for inspection
26DSpecified persons to produce documents and answer questions
26EThird parties to produce documents and answer questions relating to endorsed pawnbroker's business
26FDepartment Heads, police and public authorities to produce information to inspectors
26GCertain other specified persons or bodies to produce information
26HPowers on production of documents
26IOrder requiring supply of information and answers to questions
26JEntry or search with consent
26KEntry without consent or warrant
26LSearch warrants
26MAnnouncement before entry
26NDetails of warrant to be given to occupier
26OSeizure of things not mentioned in the warrant
26PEmbargo notice
26QCopies of seized documents
26RRetention and return of seized documents or things
26SMagistrates' Court may extend 3 month period
26TRequirement to assist inspector during entry
26URefusal or failure to comply with requirement
26VRule against self-incrimination does not apply
26WOffence to give false or misleading information
26WAPowers of court if requirement to produce information not complied with
26XApplication of provisions relating to inspections
26YService of documents
26ZConfidentiality
Division 3—Infringement notices
26ZADefinition
26ZBPower to serve a notice
26ZCForm of notice
26ZFFurther proceedings concerning infringement notices
Part 6—General
27Service
28Delegation by Director
28AProduction of information to Authority
28BRule against self-incrimination does not apply
28CVerification of details supplied to the Authority
28DExtended time for prosecutions
28EWho may bring proceedings for offences?
29Evidentiary provisions
30Application of Australian Consumer Law and Fair Trading Act2012
31Regulations
Schedule
═══════════════
Endnotes
1General information
2Table of Amendments
3Amendments Not in Operation
4Explanatory details
1
VersionNo. 080
Second-Hand Dealers and Pawnbrokers Act 1989
No. 54 of 1989
Version incorporating amendments as at
1 June 2016
1
Part 1—Preliminary
Second-Hand Dealers and Pawnbrokers Act 1989
No. 54 of 1989
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
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).
(c)to enhance protection of consumers dealing with second-hand dealers and pawnbrokers.
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 insertedby 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 insertedby No. 82/2008 s.20.
computer means a machine that is capable of recording or storing information electronically;
S. 3(1) def. of Consumer Actinsertedby No. 93/2001 s.5, amendedby No.21/2012 s.239(Sch.6 item41.1).
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, amendedby No.21/2012 s.239(Sch.6 item41.2).
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 personmeans—
(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 theirgenders 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 anorganisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
S. 3(1) def. of endorsed pawnbroker insertedby No. 93/2001 s.5.
endorsed pawnbroker means a person whose registration is endorsed under Part 2;
S. 3(1) def. of endorsement insertedby 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. item101.1).
externally-administered body corporate has the same meaning as in the Corporations Act;
S. 3(1) def. of financial institution insertedby No. 93/2001 s.5.
financial institution means—
(a)an authorised deposit-taking institution within the meaning of the Banking Act1959 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 insertedby No. 93/2001 s.5, amendedby No.21/2012 s.239(Sch.6 item41.3).
inspector means an inspector appointed under theAustralian Consumer Law and Fair Trading Act 2012;
S. 3(1) def. of occupier insertedby 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 insertedby 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 insertedby 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 insertedby 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 second-hand dealer amended by No. 44/1997
s. 36(1)(b).
second-hand dealer means a person who carrieson the business of buying, selling, exchanging or otherwise dealing in secondhand goods, whether or not he or shedeals 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 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).
Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.
(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 thepurposes of the definition ofdomestic partnerin 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) substitutedby No.84/2001 s.12(2).
(a)an auctioneer acting in his or her capacity as auctioneer; or
S.4(aa) insertedby 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.
Part 2—Registration
Pt 2 Div. 1 (Heading) inserted by No. 93/2001 s.6.
Division 1—General
S. 5 substituted 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.
Penalty: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.
Penalty: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—
(a)the person or, if the person is a body corporate, a director of the person, is a represented person within the meaning of theGuardianship and Administration Act1986; 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 5years 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 5years 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, ifthe person is a body corporate, a director or an associate of a director of the person hascarried on any occupation, profession orbusiness that is regulated under anyenactment 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 5years; 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 isa body corporate, a director or an associateof 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 (ifthe 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, substitutedby No. 106/2003 s.28(1).
(d)lodged with the Authority not less than 1month 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 timeby 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.
Penalty:10 penalty units.
S. 7A insertedby 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 timeby the applicant in, or in relation to, the application, the applicant must, within 7 days afterbecoming so aware, give particulars of the change to the Authority.
Penalty: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 asecond 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 morethan 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 registrationor 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, asthe 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 insertedby No. 93/2001 s.13.
8BAuthority may impose conditions
(1)The Authority may—
(a)impose conditions that must be complied with before it registers, or endorses the registration of, an applicant;
(b)on registering, or endorsing the registration of, an applicant or at any other time, impose conditions in respect of the registration, or endorsement of the registration, of a person;
(c)at any time on the application of any person or of its own motion, vary or revoke any conditions previously imposed.
(2)A person registered under this Part must comply with any conditions imposed in respect of the registration or endorsement of the registration.
Penalty:100 penalty units.
S. 8B(3) amendedby Nos 106/2003 s.28(2), 10/2004 s.15(Sch.1 item26.1).
(3)An application under subsection (1)(c), other thanan application by the Director or the Chief Commissioner of Police, must be accompanied by the prescribed fee or, if no fee is prescribed, 15fee units.
S. 8C insertedby No. 93/2001 s.13.
8CNotation of condition on certificate of registration
(1)If a condition in respect of the registration, or endorsement of the registration, of a person registered under this Part is imposed, varied or revoked under section 8B or 18B(1)(f), the Authority may require the person to produce thecertificate of registration for notation of the condition or the variation or revocation of the condition.
(2)A person registered under this Part must comply with the requirement under subsection (1).
Penalty:10 penalty units.