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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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SECOND-HAND GOODS BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (18:22): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Purpose

The purpose of the Second-hand Goods Bill 2012 is the reduction of property related crime through improved regulation of the second-hand dealer and pawnbroker industry. This will be achieved by the establishment of a new regulatory regime together with enhanced record keeping requirements and a requirement to electronically transfer transaction information to police.

A further objective is the introduction of legislative controls to address a current market imbalance which exists between pawnbroker service providers and consumers by requiring pawnbrokers to provide consumers with accurate information to enable the public to make informed choices when seeking these services.

The intended focus of the Bill is at the time a business acquires prescribed second-hand goods for resale or enters into a contract of pawn. It is not proposed to regulate the subsequent re-sale of the acquired goods other than a period of retention prior to resale.

The licensing and registration regime will be administered by Consumer and Business Services (CBS) and is targeted at businesses dealing in 'high risk of theft' second-hand goods. Licensees and registrants will be required to electronically transfer prescribed records via a web-based transaction management system to be administered and managed by Police.

A dual enforcement model will enable officers from both agencies to enforce and ensure compliance with the legislation. CBS will be responsible for licensing and registrations. South Australia Police (SAPOL) will be responsible for administration and compliance of the web-based transaction management system and resultant matching and investigation of stolen property.

Background

Second-hand dealing and pawnbroking involves acquiring pre-owned goods for re-sale. Research throughout Australia, New Zealand, USA and Canada has identified property criminals frequently exchange stolen property for money, using second-hand dealers and pawnbrokers. Anecdotal evidence of Police further supports the proposition the second-hand industry often knowingly or unknowingly provides a convenient means for offenders to convert stolen assets into cash, thereby facilitating the use of the industry as a conduit for stolen property.

In order to reduce the number of crimes, Police in these jurisdictions have or are taking steps to electronically monitor property pawned or sold to dealers, in order to identify property crime offenders and recover stolen property.

Interstate and overseas experience suggests licensing together with electronic transmission of transaction information reduces the opportunity and ability of property crime offenders to convert stolen property into cash, thereby reducing the number of theft and associated offences.

Over the last decade, several Australian and overseas jurisdictions have enacted legislation requiring dealers to be licensed and provide details of their transactions electronically to Police. Governments are also equipping Police with the technology to be able to automatically search transferred dealer's transaction information against Police databases.

Australian jurisdictions that have enacted legislation requiring second-hand dealers and pawnbrokers to be licensed include New South Wales (NSW), Western Australia (WA) and Queensland (Qld). In NSW and Qld the relevant Act and Regulations are administered by the respective State Office of Fair Trading (OFT) which has a licensing, compliance and investigation section.

Regulation of the industries in these three States occurs via a licensing regime and electronic transaction reporting system, similar to the scheme proposed by these reforms. To facilitate the recording and identification of stolen property, police in the aforementioned jurisdictions have developed 'web-based' second-hand dealer databases capable of receiving transaction records electronically directly from dealers.

Like any other economic market, the stolen goods market is largely driven by supply and demand. Property crime is affected by the ease of theft and the availability of a pool of willing buyers.

The reforms focus on shrinking the stolen goods market by preventing supply and reducing the demand for stolen goods. Without an active market disposal becomes difficult, risky and unrewarding and significantly impacts an offender's willingness to engage in property crime.

A central tenet of the proposal is the introduction of a web-based electronic transaction management system (TMS). Licensed and registered dealers will be required to transfer to Police, transaction information relating to a reportable list of 'prescribed goods'. These include those goods commonly stolen and traded.

Current Environment

Currently, the laws relating to second-hand dealing and pawn broking are contained in the Second-hand Dealers and Pawnbrokers Act 1996, and Regulations, which have been in place since 1998. The Act provides for a dealer to operate a second-hand business simply by registering their intent in writing with the Commissioner of Police.

Since the Act's introduction, there has been continued community concern over second-hand dealers and pawnbrokers and their possible role in the receipt, distribution and disposal of stolen goods.

Although regulating the sale of prescribed second-hand goods, the current legislation does not require dealers to be licensed or electronically transfer to police transaction information. This makes it difficult for Police to effectively monitor and investigate illegal dealings in an efficient and timely manner.

Furthermore, the current business registration system provides only limited screening processes to preclude unsuitable persons from entering and remaining in the SHDP industry making it difficult to ascertain who is participating in the industry.

Research as well as anecdotal evidence of Police suggests recidivist property offenders exploit opportunities to dispose of stolen property via the second-hand dealer and pawnbroker industry. Despite existing regulation and the efforts of police, operational intelligence indicates a significant proportion of stolen goods are disposed of through the second-hand industry.

Police estimate that between 10–15 per cent of stolen property may be sold to pawnbrokers and second-hand dealers either directly by property offenders themselves, or indirectly by recipients such as drug dealers and fences (a fence is an individual who knowingly buys stolen property for later resale in a legitimate market at a higher price).

As a result, Police are concerned the role second-hand dealers and pawnbrokers play in the receipt and distribution of stolen property. Research and anecdotal evidence of police further suggests recidivist property offenders exploit opportunities to dispose of stolen property via the second-hand dealer and pawnbroker industry.

SAPOL advises a data base enabling the electronic recording of dealer transactions has been in use in this State since the mid 1990's. Police estimate 5–10 per cent of dealer transaction records are currently received and activities monitored for stolen property or persons of interest. Previous reviews have concluded the current system is resource intensive and if not replaced, will cease to function in any productive form.

In response, on 3 June 2007, the Government announced $2.1 million had been allocated from the State Budget to introduce an online transaction reporting system for second-hand dealers and pawnbrokers to combat the stolen property market.

On 17 June 2009 the Government introduced the Second-Hand Goods Bill 2009 to Parliament. The Bill sat during the winter Parliamentary break whilst formal industry and public consultation took place. The Bill was not debated and lapsed when Parliament was prorogued in December 2009.

As a result of the 2009 consultation process, a number of changes were made to the original proposal including the removal of scrap metal recyclers and auctioneers from the regulatory regime, the classification of prescribed goods into Class 1 and Class 2, enabling the creation of a tiered regulatory approach and the introduction of a registration regime for businesses acquiring class 2 prescribed goods.

On 21 March 2011, Cabinet approved a further submission to draft legislation and the release of a revised draft Bill for public consultation. During the four week consultation period, the SAPOL project team received 97 contacts regarding the proposed Bill with 17 formal submissions being received in both email and hard copy format.

As a result of the consultation process together with further scrutiny of the Bill by the Second-hand Dealers and Pawnbrokers Legislative working group, a number of policy changes and general amendments to the draft Bill have occurred.

Features of the Bill

The proposal is to repeal the Second-hand Dealers and Pawnbrokers Act 1996 and replace it with legislation targeted to prevent and remedy current and possible future issues associated with the second-hand goods and pawnbroker industries.

The Bill introduces a new tiered regulatory regime and associated regulatory costs commensurate with the level of risk associated with the particular goods and activities of the industry groups. The objective of this market reduction approach is to alter property crime offenders' attitude, ability and opportunity to dispose of stolen goods via the second-hand and pawnbroker industry.

At risk goods will be prescribed by way of Regulation and will be similar to current Regulations in so far as they will include commonly stolen items frequently traded by second-hand dealers and pawnbrokers. Prescribed goods will be nominated as class 1 or class 2.

Class 1 prescribed goods are those portable items of property frequently stolen and traded by property crime offenders. Licences will be required by those second-hand dealers who deal in class 1 prescribed goods.

Class 2 prescribed goods are those goods which are commonly stolen but not to the same extent as class 1 prescribed goods. Second-hand dealers who only deal in class 2 prescribed goods will be required to register.

The Bill makes reference to the term 'approved persons' which refers to persons who are approved by the licensing authority to conduct or supervise transactions of class 1 prescribed goods and in the case of pawnbrokers, all pawns. An approved person must undergo probity checking to ensure he or she is fit and proper to carry out this role.

The Bill will retain a number of features contained in the current legislation including:

prescribed goods will be similar to the current Regulations;

the requirement to record details of a person from whom prescribed second-hand goods are bought or received, and all pawned goods;

the requirement to record an accurate description of the prescribed goods including serial numbers and any identifying features;

a retention period for prescribed goods acquired by a second-hand dealer;

labelling of prescribed goods with a unique identifying code;

the power for Police to enter business premises of all second-hand dealers, pawnbrokers, auctioneers and market operators to inspect and examine goods and records;

the ability for Police to place 'holds' on goods suspected of being stolen;

a requirement for any second-hand dealer or pawnbroker to advise Police of any goods acquired which he or she suspects are stolen;

second-hand dealers and pawnbrokers are not to acquire goods from a child (a person under the age of 16 years);

operators of second-hand markets are required to keep certain records of people selling goods at their market;

charities, school fetes and the like where goods are donated are excluded from the provisions of the Act.

The Bill will further strengthen current provisions by requiring regulated dealers to comply with a number of features not contained in the present legislation including:

Businesses which acquire class 1 prescribed second-hand goods for the purpose of resale (and all pawnbrokers) will be required to be licensed.

In deciding whether or not to grant a licence or approval, the Commissioner for Consumer Affairs will take into account whether the applicant is a fit and proper person to hold a licence or approval.

When acquiring class 1 prescribed goods, a licensee or approved person will be required to be present on the premises to conduct or supervise the transaction.

Documents produced to verify a seller's identity will have to meet a '100 point system' regime. The scheme will not be as stringent as required in the banking environment and will use recognised and easily produced documents outlined in Regulations.

When buying or receiving reportable prescribed goods, details of the transaction including the person's identity details and description of the goods must be electronically transferred to Police in a manner and timeframe prescribed by Regulations.

Goods received by a licensed or registered second-hand dealer are required to be retained and not offered for sale for a period of 14 days from the date of transferring the transaction details to Police.

Employee records are required to be kept and produced upon request to an authorised officer.

The Commissioner of Police may prohibit the employment of a person in a licensed business if the person is found guilty of an offence or offences as prescribed by Regulations.

Police have the ability to apply to the Magistrates Court for a barring order for a person identified as being a prolific property crime offender.

Businesses who acquire prescribed goods only by way of trade-in are excluded from certain provisions of the Bill.

The Bill also contains a number of consumer protection mechanisms specific to pawn transactions and the redemption of pawned goods including:

the issuing of 'pawn tickets' to persons pawning property outlining interest rates, fees and charges and the rights and obligations of both parties;

provisions applicable to the redemption of the pawned goods, extending the redemption period and the sale of unredeemed goods;

provisions applicable to 'surplus' funds following the sale of unredeemed goods.

Licensing, registration and approvals

As the licensing authority, Consumer and Business Services will have administrative responsibility for the processing of licence, registration and approval applications as well as issuing, disqualifying and suspending of licenses and approvals. Jurisdiction to hear disciplinary proceedings in relation to licensees and approved persons will be vested in the Administrative and Disciplinary Division of the District Court.

Electronic transfer of records

The requirement to electronically transfer transaction information is seen as an important tool to combat and restrict offenders disposing of stolen goods. The availability to police of accurate and timely transaction information will support the identifying of property crime offenders and cross-matching of stolen goods. With current technologies the transfer of information in close to real time will be expected in many instances. However it is recognised on occasions dealers may find it problematic to transfer information as soon as practicable, as such regulations will allow for a period of time to ensure details are transferred to police.

Transfer will be done via a web based interface or the uploading of computer files in a manner and form set out in Regulations.

Barring Orders

Research, together with Police observations, has identified a nexus between property crime offenders and the second-hand industry. Anecdotal evidence suggests that a small number of offenders are responsible for selling or pawning a disproportionate amount of stolen or unlawfully obtained property such as DVDs and small electrical appliances, often in new or near new condition.

In order to address this issue, the Bill provides Police, in circumstances where a person is charged with, or found guilty of a property related offence, to make application to the Court to bar the person from disposing of goods via a second-hand dealer, pawnbroker, auctioneer or second-hand market.

Consumer protection

As indicated in my introduction, a further objective of this legislation is to redress the current imbalance of information provided by pawnbrokers to consumers. This initiative will enable users to make more informed choices when seeking these services and as well as bringing greater consistency and transparency to the pawnbroker industry, which the Government believes is warranted in the current economic climate.

Market Operators

The Bill also acknowledges the level of risk in the trade of stolen goods associated with second-hand markets is significantly less than second-hand dealers and pawnbrokers. As a consequence, the legislation will not subject market operators to the same requirements. Instead, market operators where second-hand prescribed goods are offered for sale, will be required to be registered. These markets will also be required to ensure a supervisor is present during the trading hours of the market to supervise and comply with legislative requirements. A market operator will also be required to electronically transfer details of traders offering for sale prescribed goods.

It is understood this Bill encompasses a wide variety of goods and disparate industry groups. As such, Regulations will allow for variations such as retention periods for scrapped and dismantled vehicles and the age of certain prescribed goods such as old cameras or electrical and electronic items.

It is not the intention of this Bill to place unnecessary regulatory requirements upon certain areas of the second-hand goods industry such dealers of costume jewellery or those who acquire second-hand goods via clearance sales, deceased estates and unclaimed goods. This legislation also does not unnecessarily prevent individuals from holding legitimate garage sales or selling their goods at second-hand markets.

Conclusion

Although positive licensing imposes costs on industries, government and the community, the benefits to the community as a whole, outweigh these costs. Furthermore, the objectives of Government to limit trade in stolen property can only be achieved by through improved regulation and positive licensing.

The Bill, in large, builds upon existing provisions. It addresses current community concerns and expectations by equipping Police with the necessary legislation and technology to assist in the prevention and detection of property related crime. It represents, in the view of the Government, a sensible balance between the needs of those who conduct business and the needs of the law enforcement to have an increased ability to combat the trading of stolen goods.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms and concepts used in this Bill.

4—Application of Act

This clause ensures that people will not require 2 statutory licences in respect of any activity by providing that nothing in this measure applies in relation to an activity undertaken in accordance with a licence issued under another Act. The regulations may also modify or exclude the application of this measure in relation to persons, goods or transactions of a specified class.

In addition to the above, the Minister may, by notice in writing, exempt a person from the application of this measure.

5—Non-derogation

This clause provides that the provisions of this measure are in addition to, and do not derogate from, the provisions of any other Act, nor do they limit, or derogate from, any civil remedy at law or in equity.

6—Commissioner to be responsible for administration of Act

The Commissioner for Consumer Affairs is responsible for the administration of this measure. In so doing, the Commissioner is subject to the control and directions of the Minister.

7—Criminal intelligence

This clause provides for how information that has been classified as criminal intelligence by the Commissioner of Police may be used or disclosed etc in respect of the measure.

Part 2—Licences and approvals

8—Requirement to be licensed

This clause provides that a person cannot act as, or advertise or otherwise hold himself or herself out as, a second-hand dealer or pawnbroker unless licensed under proposed Part 2. The maximum penalty for a contravention of proposed subsection (1) is a fine of $20,000.

Proposed subsection (2) provides that certain specified second-hand dealers are exempt from this requirement.

9—Requirement to be approved

This clause makes it an offence for a person to act as, or advertise or otherwise hold himself or herself out as, an approved person unless approved under proposed Part 2. The maximum penalty for a contravention of the proposed section is a fine of $20,000. Temporary authorisations are provided for.

10—Application for licence or approval

This clause sets out procedural matters in respect of how a licence or approval can be obtained.

11—Applications to be furnished to Commissioner of Police

This clause provides that an application for a licence or approval must be communicated to the Commissioner of Police, who in turn must provide the Commissioner with certain information relevant to the application.

The clause also provides that the Commissioner of Police may object to an application by notice in writing provided to the Commissioner within the prescribed period, and sets out associated procedural matters.

12—Applicant for approval taken to be approved

This clause provides that applicants for approval are taken to be approved until the day on which the Commissioner determines the application.

13—Entitlement to be licensed or approved

This clause provides that a natural person who satisfies the eligibility requirements set out in proposed subsection (1) is entitled to be licensed or approved. Proposed subsection (2) makes similar provision in respect of the right of bodies corporate to be licensed.

14—Factors to be taken into account in deciding whether to grant licence or approval

This clause sets out factors the Commissioner must take into account in deciding when assessing an application for a license or approval. These include the reputation, honesty and integrity of the applicant, or people associated with the applicant. The Commissioner must also take into consideration the grounds for any objection made by the Commissioner of Police in respect of the application.

An application for a licence or approval can only be granted if the Commissioner is satisfied that to grant the application would not be contrary to the public interest

15—Conditions

This clause provides that the grant of a licence or approval may be conditional or unconditional, and that the holder of a licence or approval must not contravene, or fail to comply with, a condition of the licence or approval. The maximum penalty for a contravention of proposed subsection (2) is a fine of $20,000.

16—Appeals

An applicant for a licence or approval, or a licensee or approved person, may appeal to the Administrative and Disciplinary Division of the District Court against certain decisions of the Commissioner, and the provision sets out related procedural matters.

17—Power of Commissioner to require photograph and information

This clause provides the Commissioner may require photographs and other information from a licensee or an approved person.

18—Identification to be carried

This clause provides that the Commissioner must issue each licensee who is a natural person and each approved person with an identity card in a form approved by the Commissioner. The person must carry the identity card when performing functions as a licensee or approved person, and produce it if requested to do so by an authorised officer or a person with whom the licensee or approved person has dealings as a licensee or approved person. The maximum penalty for a contravention of proposed subsection (2) is a fine of $1,250. The clause does not apply to a person who is taken to be approved under Part 2.

19—Duration of licence or approval

A licence or approval granted by the Commissioner Part 2 remains in force until it is surrendered or cancelled, or the licensee dies or (if the licensee is a body corporate) is dissolved.

20—Annual fee and return

This clause sets out procedural matters in relation to the payment of fees and the lodging of returns. A failure to do either may result in the Commissioner requiring the licensee or approved person to make good the default, and, if that does not happen in accordance with the proposed section, the relevant licence or approval is cancelled.

21—Change of particulars relating to licence or approval

This clause requires a licensee or approved person to notify the Commissioner in writing of any changes to any prescribed particular within 14 days after the change.

22—Commissioner may require surrender of licence or approval etc

This clause provides that (if a person's licence or approval is suspended or cancelled) the Commissioner may require a licensee or approved person to surrender their licence or approval and any identity card issued to the person under this measure. The maximum penalty for a contravention of proposed subsection (1) is a fine of $1,250.

Part 3—Registration—class 2 goods

23—Requirement to be registered

This clause provides that a person cannot act as, or advertise or otherwise hold himself or herself out as, a second-hand dealer unless registered under proposed Part 2. The maximum penalty for a contravention of proposed subsection (1) is a fine of $10,000.

Proposed subsection (2) provides that certain specified second hand dealers are exempt from this requirement.

This clause also sets out procedural matters in respect of how registration can be obtained.

24—Annual returns etc.

This clause provides that a registered second-hand dealer must lodge an annual return with the Commissioner.

25—Change of particulars relating to registration

This clause requires a registered second-hand dealer to notify the Commissioner in writing of any changes to any prescribed particular within 14 days after the change.

Part 4—Regulation of licensees and registered second-hand dealers

Division 1—Provisions applicable to licensees and registered second-hand dealers generally

26—Class 1 and 2 transactions

This clause requires a licensee to ensure that each class 1 transaction that occurs in the course of, or for the purposes of, the licensee's business is conducted or supervised by the licensee or an approved person. The maximum penalty for a contravention of proposed subsection (1) is a fine of $10,000.

The clause also requires a licensee to ensure that each class 2 transaction that occurs in the course of, or for the purposes of, the licensee's business is conducted or supervised by a natural person. The maximum penalty for a contravention of proposed subsection (2) is a fine of $5,000.

The clause also requires the licensee to make and keep certain records and verify the identity of sellers in accordance with the regulations. The maximum penalty for a contravention of proposed subsection (3) or (4) is a fine of $5,000.

The licensee must transfer to the Commissioner of Police, in accordance with any requirements that may be set out in the regulations, prescribed particulars of such records. The maximum penalty for a contravention of proposed subsection (5) is a fine of $5,000.

The regulations may also require the transfer of the prescribed particulars to be done electronically.

27—Labelling of goods

This clause requires a licensee or registered second-hand dealer to ensure that any class 1 or class 2 goods that he or she takes possession of in the course of, or for the purposes of, his or her business are marked or labelled in accordance with the regulations. The maximum penalty for a contravention of proposed subsection (1) is a fine of $2,500.

28—Retention of goods before sale

This clause provides that a licensee, in respect of class 1 goods that the licensee has taken possession of, and a registered second-hand dealer, in respect of class 2 goods that the dealer has taken possession of, must not alter the form, or part with possession, of the goods until at least 14 days after the prescribed day (which is defined in the proposed subsection (3)).

The clause also provides that the licensee and dealer must keep the class 1 or 2 goods (as the case may be) at the premises at which the goods were received, or premises notified to the Commissioner for the purposes of the proposed section, and must ensure that the goods are not moved to any other place.

The maximum penalty for a contravention of proposed subsection (1) is a fine of $2,500, and the clause also provides that the section does apply to goods in the circumstances listed in proposed subsection (2).

29—Staffing records

This clause requires a licensee or registered second-hand dealer to make and retain certain records in relation to the persons working in, or for the purposes of, the licensee's business. The maximum penalty for a contravention of proposed subsection (1) is a fine of $2,500.

Division 2—Additional provisions applicable to pawnbrokers

30—Preliminary

This clause defines terms used in the proposed Division.

31—Information to be provided to person pawning goods

This clause requires a pawnbroker to give (at no charge) to a person who pawns goods a pawn ticket. A pawn ticket includes a signed copy of the pawn agreement, required to set out matters relevant to the pawn such as interest rates and fees applicable, the rights and obligations under the pawn agreement and any other information that the regulations require be included. The maximum penalty for a contravention of the proposed section is a fine of $5,000, and the pawn agreement is invalid in the event that the section is not complied with.

32—Replacement of pawn ticket

This clause requires a pawnbroker, at the request of an entitled person (a term defined in proposed section 30), to replace (at no charge) a pawn ticket that has been lost, stolen or destroyed. The person requesting the replacement ticket must verify his or her identity in accordance with the regulations. The maximum penalty for a contravention of the proposed section by a pawnbroker is a fine of $2,500.

33—Redemption

This clause sets out how a person may be redeemed by an entitled person.

The clause also sets out a number of things that the pawnbroker cannot do in relation to the pawned goods during the redemption period, with penalties of up to a $5,000 fine if the pawnbroker contravenes those requirements.

34—Extension of redemption period

This clause provides that pawnbroker and an entitled person may extend a redemption period. The regulations will set out requirements regarding such an extension, while the proposed section sets out procedural provisions in relation to an extension. The maximum penalty for a failure to comply with the proposed section is a fine of $5,000.

35—Sale of pawned goods at end of redemption period

This clause provides that a pawnbroker must sell pawned goods, where the pawned goods have not been redeemed by the end of a redemption period. The goods must be sold in a manner that is conducive to getting the best price reasonably obtainable. The clause sets out further procedural requirements in relation to such sales, and requires that any surplus proceeds arising from the sale be paid, on request made by an entitled person before the end of the prescribed period, to the entitled person. The maximum penalty for a contravention of the proposed subsections is a fine of $2,500.

36—Fees and charges in respect of unredeemed pawned goods

This clause sets out the fees and charges that may be imposed in respect of unredeemed pawned goods, or deducted from the proceeds of the sale of such goods.

37—Pawnbroker not to purchase pawned goods

This clause prevents a pawnbroker, or a person acting on his or her behalf, from buying goods that have been pawned to and are being sold by, or on behalf of, the pawnbroker. The clause provides similar restrictions in the case of pawnbrokers that are partnerships or bodies corporate, extending the prohibition to partners, the body corporate and officers or directors of the body corporate.

Any sale in contravention of the section is void and of no effect, and contravention of the section carries a maximum penalty of $2,500.

Part 5—Special powers relating to licences and approvals

38—Suspension or cancellation of licence or approval—prescribed offences

This clause allows the Commissioner to cancel or suspend a person's licence or approval if the person is charged with or found guilty of an offence of a kind to be prescribed by regulation.

39—Suspension of licence or approval in urgent circumstances

This clause provides the Commissioner with a special power to suspend a licence or approval (for up to 6 months) if there are reasonable grounds to believe that a licensee or approved person has engaged, or is engaging, in conduct that constitutes grounds for disciplinary action, that the conduct is likely to continue and there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of the conduct unless action is taken urgently.

40—Power of Commissioner of Police to prohibit employee or agent from working for licensee

This clause provides that the Commissioner of Police may prohibit a person found guilty of an offence of a kind prescribed by the regulations from working as an employee or agent of a licensee. A prohibition is effected by notice in writing, and may only be done if the person has been convicted of an offence of a kind specified by the regulations. A prohibition may be permanent, or for a specified time.

41—Appeal

This clause provides for an appeal against a decision to issue a notice under the Part.

Part 6—Discipline

42—Interpretation

This clause defines certain terms used in the Part.

43—Cause for disciplinary action

This clause defines when proper cause exists for disciplinary action.

44—Complaints

This clause provides for the lodging of a complaint with the Court in relation to a disciplinary matter.

45—Hearing by Court

This clause provides for the hearing by the Court of a disciplinary matter.

46—Procedure on hearing of complaint

The Court is not bound by the rules of evidence but may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The clause also provides that, in determining whether there is proper cause for disciplinary action, regard may be had to evidence of the conduct of persons with whom the licensee or approved person associates or has associated as the Court considers relevant.

47—Disciplinary action

This clause sets out the Court's powers on finding that proper cause exists for disciplinary action.

48—Contravention of orders

If a person contravenes an order of the Court, the person is guilty of an offence. If a person is employed or engaged in the business of a licensee or becomes a director of a body corporate that is a licensee in contravention of an order of the Court, that person and the licensee are each guilty of an offence. Both offences are punishable by a maximum fine of $35,000 or 6 months imprisonment.

49—Joinder of Commissioner and Commissioner of Police as parties

The Commissioner and the Commissioner of Police are each entitled to be joined as a party to any proceedings of the Court under this Act.

Part 7—Regulation of markets

50—Market operator to be registered

This clause provides that a person cannot act as, or advertise or otherwise hold himself or herself out as, a market operator unless registered. The maximum penalty for a contravention of proposed subsection (1) is a fine of $10,000. Subsection (1) does not apply if the operator establishes that he or she has taken reasonable measures to ensure that no class 1 or class 2 goods are sold at any second-hand market operated by the market operator.

This clause also sets out procedural matters in respect of how registration can be obtained.

51—Annual returns etc.

This clause provides that a registered market operator must lodge an annual return with the Commissioner.

52—Change of particulars relating to registration

This clause requires a registered market operator to notify the Commissioner in writing of any changes to any prescribed particular within 14 days after the change.

53—Market to be supervised

Under this clause, a market operator is required to ensure that a second-hand market is supervised by a natural person. The penalty for failure to comply is a maximum fine of $5,000. The provision does not apply if the operator establishes that he or she has taken reasonable measures to ensure that no class 1 or class 2 goods are sold at the second-hand market.

54—Sale of goods at market

A person must not sell class 1 or class 2 goods at a second-hand market without the permission of the person supervising the market and that person must ensure that the identity of the seller is verified in accordance with the regulations. The maximum penalty for each offence is $2,500 or an expiation fee of $210.

55—Records

A market operator is required to keep records relating to the sale of class 1 or class 2 goods and the name and address of the person acting as supervisor of the market (with a maximum penalty of $5,000 or an expiation fee of $315). A market operator must transmit prescribed particulars to the Commissioner of Police (with a maximum penalty of $5,000).

Part 8—Enforcement

56—Powers of entry and inspection

This clause sets out powers of entry and inspection.

Part 9—Barring orders

57—Interpretation

This clause defines certain terms used in this Part.

58—Barring orders

This clause allows a police officer to apply to the Magistrates Court for an order (a barring order) barring a person who has been charged with, or found guilty of a barring offence from disposing of second-hand goods to, or through the agency of, a second-hand dealer, pawnbroker or auctioneer or at a second-hand market.

59—Issue of barring order in absence of respondent

This clause provides a procedure for the issue of a barring order in the absence of the respondent.

60—Service

This clause makes provision in relation to service of a barring order and in particular provides that a barring order must be served on the respondent personally and is not binding until it has been so served.

61—Variation or revocation of barring order

The Court may vary or revoke a barring order.

62—Burden of proof

The civil burden of proof is applicable to proceedings under this Part (other than proceedings for an offence).

63—Information relating to barring order

The Commissioner of Police may cause information relating to a barring order to be provided to second-hand dealers, pawnbrokers, auctioneers, market operators or such other persons as the Commissioner of Police thinks fit.

Part 10—Miscellaneous

64—Where goods suspected of being stolen

This clause is similar to the current section 11 of the Second-hand Dealers and Pawnbrokers Act 1996 and imposes various obligations on dealers, pawnbrokers and auctioneers where goods are suspected of being stolen. In particular, the clause provides for the issue of notices by the Commissioner of Police in relation to suspected stolen goods, for the making of claims by members of the public in relation to suspected stolen goods, and for notification by dealers etc to the Commissioner of Police in relation to suspected stolen goods.

65—Offence to deal with child or intoxicated person

This clause prohibits certain dealings with children or intoxicated persons (the maximum penalty being a fine of $2,500 or an expiation fee of $210).

66—No contracting out

An agreement or arrangement that is inconsistent with a provision of the measure or purports to exclude, modify or restrict the operation of the measure is to that extent void and of no effect.

67—False or misleading information

This clause creates an offence relating to the provision of false or misleading information. The maximum penalty is $10,000 if the person made the statement knowing that it was false or misleading or $2,500 in any other case.

68—Statutory declaration

The Commissioner or the Commissioner of Police may require information to be verified by statutory declaration.

69—Investigations

The Commissioner may request the Commissioner of Police to investigate and report in relation to certain matters.

70—Information to be provided to Commissioner of Police

The Commissioner must advise the Commissioner of Police of a change in any prescribed particulars of persons licensed, approved or registered under the proposed Act.

71—Register of persons licensed, approved or registered

This clause provides for the keeping of a public register in relation to licensed, approved and registered persons.

72—General defence

It is a defence to a charge of an offence if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

73—Liability for act or default of officer, employee or agent

An act or default of an officer, employee or agent of a person carrying on a business will be taken to be an act or default of that person unless it is proved that the person acted outside the scope of his or her actual, usual and ostensible authority.

74—Service of documents

This clause provides for the service of documents under the measure.

75—Prosecutions

This clause makes provision in relation to the commencement of prosecutions under the measure.

76—Evidentiary provision

This clause provides for certain certificates and evidentiary presumptions for the purposes of the measure

77—Annual report

This clause provides for annual reports by the Commissioner.

78—Regulations

This clause is a regulation making power.

Schedule 1—Consequential amendment, repeal and transitional provisions

Part 1—Amendment of Magistrates Court Act 1991

1—Amendment of section 3—Interpretation

This clause makes a consequential amendment to the Magistrates Court Act 1991.

Part 2—Repeal

2—Repeal

This clause repeals the Second-hand Dealers and Pawnbrokers Act 1996.

Part 3—Transitional provisions

3—Act applies to transactions occurring after commencement

The measure is to apply to transactions occurring after commencement of the measure.

4—Regulations

This clause provides for the making of savings and transitional regulations, including, for example, regulations which allow the new provisions to be phased in.

Debate adjourned on motion of Hon. T.J. Stephens.

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