Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Second-hand Dealers And Pawnbrokers Bill 2003
SECOND-HAND DEALERS AND
PAWNBROKERS BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
At a meeting of the Council of Australian Governments on 11 April
1995, the Queensland Government, together with other Australian States
and Territories, signed an agreement with the Commonwealth to
implement National Competition Policy (NCP) and related reforms. The
Competition Policy Agreement (CPA) requires all State and Territory
Governments to review, and where appropriate, reform all anti-competitive
legislation.
The CPA's guiding principle is that legislation should not restrict
competition unless it can be demonstrated that:
· benefits of the restriction to the community, as a whole, outweigh
the costs, and
· objectives of the legislation can only be achieved by restricting
competition.
The Second-Hand Dealers and Collectors Act 1984, the Pawnbrokers
Act 1984 and the Funeral Benefit Business Act 1982 have all been reviewed
in accordance with the CPA. The review was conducted within the NCP
Unit of the Office of Fair Trading (OFT).
The major objective of the Bill is to implement the NCP
recommendations for the Second-Hand Dealers and Collectors Act 1984,
the Pawnbrokers Act 1984 and the Funeral Benefits Business Act 1982.
The Funeral Benefits Business Act 1982
The NCP Report found that the benefits of the anti-competitive
provisions contained in the Funeral Benefit Business Act 1982 (FBB Act)
outweigh the costs to the community as a whole. However, the Report
made a number of recommendations for reform of the FBB Act in order to
2
Second-hand Dealers And Pawnbrokers Bill 2003
meet its policy objectives in a more cost-effective way. Therefore the
following NCP amendments have been included in the Bill:
No changes to existing contracts
· the retention of Parts 3 and 4 of the FBB Act in their current form
apply only in relation to existing contracts, to ensure the rights
and obligations of the parties under those contracts are not
changed.
New requirements for all new contracts:
· any type of entity will be permitted to operate as a funeral benefit
business;
· the Act is to apply to any business that sells a funeral benefit in
Queensland or to Queensland residents;
· all funeral benefit businesses are to be deemed to be trustees
under the Trusts Act 1973 (Qld) in respect of pre-payment money
entrusted to them unless they are already regulated under relevant
Commonwealth legislation;
· contributors may choose whether they deposit their pre-payment
money with a funeral director, or with an authorised investment
manager;
· if contributors deposit their pre-payment money with a funeral
director (rather than an authorised investment manager), the
funeral director must comply with the provisions of Part 3 of the
Trusts Act in respect of the investment of those pre-payment
monies;
· a "cooling off" period of 30 days is to be introduced;
· a short "client care" statement, drafted or approved by the OFT,
must be given, detailing in plain English the rights and
responsibilities of each of the parties to the contract. This
statement must be explained to the contributor, who must sign it
as proof of understanding the explanation. The statement must
also be signed by the other party to the contract; and
· substantial penalties for non-compliance with the Act are to be
introduced.
3
Second-hand Dealers And Pawnbrokers Bill 2003
New contracts will not include provision for the following:
· a cap on the value of funeral benefits;
· registration of funeral benefit businesses;
· explicit record and account-keeping requirements;
· notification to the OFT of a change in the business name;
· a requirement for residence or location of a public officer/
company secretary or registered office in Queensland;
· false and misleading statements; or
· approval from the OFT for any advertising.
Second-Hand Dealers and Collectors Act 1984 and the Pawnbrokers Act
1984
The NCP Report for the Second-Hand Dealers and Collectors Act 1984
(SHDA) and the Pawnbrokers Act 1984 (PBA) identified licensing and
business conduct restrictions on competition in both of the Acts. The NCP
recommendations implemented by this Bill include:
· consolidation of the two Acts into a single piece of legislation;
· retention of the licensing of second-hand dealers, pawnbrokers
and entrepreneurs;
· repeal of the provisions relating to collectors;
· modification of licensing requirements including introduction of
a single licence type for both second-hand dealers and
pawnbrokers, multi-site licences, replacement of the "fit and
proper person" test with a "suitability test" for applicants, and a
new option for one or three year licence renewals;
· introduction of optional computerisation of transaction records;
and
· the current disposal of unredeemed pledges by auction be made
optional with the introduction of the alternative of disposal of
sale through the premises where the pledge was made.
4
Second-hand Dealers And Pawnbrokers Bill 2003
Administrative cost
Any expenditure associated with the implementation of the
recommendations relating to the FBB Act will be met through existing
appropriations. For the amendments to the SHDA and the PBA, the
Cabinet Budget Review Committee, by Decision No. 612 of 24 January
2003, approved a proposal for a single licence regime under the Bill that
will result in a budget-neutral outcome with a new single application fee of
$480.00 and a new single annual registration fee of $305.00 for the
regulation of the second-hand dealing and pawnbroking industry.
Fundamental legislative principles
The Bill does not infringe any fundamental legislative principles.
The powers given to authorised officers by the Bill are accompanied by
adequate safeguards that balance the importance of enforcing the
legislation while ensuring the rights and liberties of individuals are
respected. These powers are consistent with other legislation dealing with
fair trading issues such as the Property Agents and Motor Dealers Act 2000
and the Introduction Agents Act 2001.
The general offence provisions, (section 49 of the SHDA and section 43
of the PBA) have been removed as the Scrutiny of Legislation Committee
has questioned the use of such widely-framed offences in the past, on the
basis that they seldom appear in current legislation and such a widely-
drawn provision may not have sufficient regard to the rights and liberties of
potential defendants. Specific penalties have instead been used in the Bill.
Consultation
Consultation occurred with the following government and non-
government agencies and individuals.
Community
The portion of the Bill relating to amendments to the FBB Act was sent
to the same 40 organisations contacted during the course of the NCP
review; this included the 15 registered corporations under the FBB Act, the
Australian Funeral Directors Association, the Queensland Funeral
Directors Association, the Association of Australian Owned Funeral
Directors Ltd, the Independent Funeral Directors Association, the
Australian, Queensland and Brisbane Consumer Associations, the Trustees
5
Second-hand Dealers And Pawnbrokers Bill 2003
of the Funeral Benefit Trust Fund Board, the Australian Prudential
Regulation Authority, the Caxton Legal Centre, the Australian Finance
Conference, the Financial Planning Association, the Financiers Association
of Australia Ltd, the Insurance Council of Australia, the Queensland
Association of Permanent Building Societies, the Credit Union Services
Corporation, the Australian Pensioners and Superannuants League, the
National Seniors Association Ltd, and the Probus Association of
Queensland. In addition, all of the 35 Queensland funeral benefit funds
listed in the Yellow Pages were sent the relevant portion of the Bill.
A letter was sent to the 2,492 second-hand dealers, 54 collectors and 214
pawnbrokers who are currently licensed in Queensland, advising them of
the Bill and its availability for comment. The letter was also sent to the
Queensland Pawnbrokers Association, the Pawnbrokers Industry
Federation, the Insurance Council of Australia, the Anti-Counterfeiting
Action Group, the Retailers Association of Queensland Ltd, the
Queensland Retail Traders & Shopkeepers Association, the Queensland
Antique Dealers Association, the Salvation Army and the Endeavour
Foundation.
The Bill and the NCP Reports for the FBB Act, and the SHDA and the
PBA were publicly available on the Office of Fair Trading's web-site.
Government
Queensland Treasury approved the Public Benefit Test plan and Terms of
Reference for the NCP Reports and oversaw the review process so that it
was in accordance with NCP guidelines.
Key Fair Trading agencies in other State jurisdictions were contacted
both during the NCP Review and with the Bill, as was the Australian
Securities and Investments Commission (ASIC) and the Australian
Competition and Consumer Commission (ACCC) at the Commonwealth
level in relation to the NCP amendments to the FBB Act.
The Bill was sent to the Department of Premier and Cabinet, Queensland
Treasury, the Business Regulation Reform Unit of the Department of State
Development, Queensland Police, Department of Justice and Attorney-
General, Department of Employment and Training and Department of
Primary Industries.
The portion of the Bill relevant to the FBB Act was also sent to the
Seniors Interests Unit, Department of Families.
6
Second-hand Dealers And Pawnbrokers Bill 2003
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short title
Clause 1 sets out the short title of the Bill.
Commencement
Clause 2 sets out the commencement of the Bill.
Objectives of Act
Clause 3 sets out the objectives of the Bill. This is a new section as the
NCP review suggested that the objectives of the Act should be clarified to
reflect the current marketplace and social environment.
PART 2--INTERPRETATION
Definitions
Clause 4 provides the dictionary in schedule 3 which defines particular
words used in the Bill.
Meaning of "associate" and "effective control"
Clause 5 replaces the concept of a "nominee" used in the SHDA and the
PBA with the concept of "associate". This is necessary as a result of NCP
recommendations to change the licensing system and to allow a second-
hand dealer and pawnbroker to have a multi-site licence. An associate is a
person who is not the licensee but, through the associate's actions, is in
effective control of the licensee's business. A person in "effective control"
is defined as a person who is regularly or usually in control of the business,
or regularly directs staff of the business in their duties, or is in a position to
7
Second-hand Dealers And Pawnbrokers Bill 2003
control or influence the business in a substantial way. If the licensee is a
corporation, each executive officer of the corporation is taken to be an
associate.
PART 3--LICENCES
Division 1--Requirement to be licensed
Acting as licensee
Clause 6 states that if a person wants to carry on business as a second-
hand dealer or a pawnbroker they must be licensed. Subsections (2) and
(4) set out the persons that are not required to be licensed.
Division 2--Suitability of applicants and licensees
Suitability of applicants and licensees
Clause 7 replaces the "fit and proper" test for applicants with a
"suitability" test. This was one of the NCP review recommendations. A
person is not a suitable person to hold a licence if the person, or an
associate of the person, is under 18 years of age; is an insolvent under
administration; has been convicted of a disqualifying offence within the
last 5 years; or is a corporation that is an externally-administered body
corporate. A person who is not a suitable person may not hold a licence.
"Disqualifying offence" is defined in schedule 1 and the terms "externally-
administered body corporate" and "insolvent under administration" are
defined in subsection (3). "Body corporate" is defined in section 9 of the
Corporations Act 2001.
Investigations about suitability of applicants and licensees
Clause 8 specifies that the chief executive may make investigations
about the applicant or licensee, and/or an associate of the applicant or
licensee, to help decide whether an applicant or a licensee is a suitable
person to hold a licence. The chief executive must ask the commissioner of
8
Second-hand Dealers And Pawnbrokers Bill 2003
the police service for a written report about the criminal history of any of
those persons.
Criminal history is a confidential document
Clause 9 states that an officer, employee or agent of the department must
not, directly or indirectly, disclose to anyone else a report about a criminal
history of an applicant or an associate of an applicant. However, the person
does not contravene this section if disclosure of the report or information is
authorised by the chief executive to the extent necessary to perform a
function under the Bill or the disclosure is otherwise required or permitted
by law. The chief executive must destroy the report as soon as practicable
after considering the applicant's suitability to hold a licence.
Division 3--Applying for, renewing or restoring a licence
Application for licence
Clause 10 sets out how a person may apply for a licence and what
information must be included in the application. The application must be
in the approved form and state whether the person intends to carry on
business solely as a second-hand dealer, solely as a pawnbroker or if they
want to carry on business as both. The licence can be obtained for a term
of 1 or 3 years. The application must state the names and addresses of the
associates, each place the applicant intends to carry on business and be
accompanied by the prescribed fee. This is a NCP recommendation and it
removes the previous requirement that a separate licence had to be obtained
for each occupation.
Principal place of business
Clause 11 specifies that if a person intends to carry on business at more
than one place, they must specify in the application the place the person
intends to be their principal place of business. This is a NCP
recommendation and it removes the previous requirement that a separate
licence had to be obtained for each premise.
If the applicant intends to carry on business at a location (for example, at
a market) the applicant must specify a place as their principal place of
business. For a second-hand dealer this must be a place where the
applicant's transactions register is to be maintained and may be inspected.
9
Second-hand Dealers And Pawnbrokers Bill 2003
For a pawnbroker, this must be a place where the applicant's property
register it to be maintained and may be inspected and property taken as a
pawn is located. The principal place of business cannot be a post office
box.
Decision on application for a licence
Clause 12 modernises the drafting style currently used in the SHDA and
the PBA. The chief executive must consider an application for a licence
and either grant the licence with or without conditions or refuse to grant the
licence. The chief executive must refuse to grant the application if the
chief executive is not satisfied that the applicant is a suitable person to hold
a licence. If the chief executive decides to grant the licence with a
condition or refuses to grant the licence, the chief executive must give the
applicant an information notice within 14 days after the decision is made.
Renewal of licence
Clause 13 updates the drafting style of the current section in the SHDA
and the PBA for renewal of licenses. A licensee may apply to the chief
executive to renew the licensee's licence, before the licence expires. The
application must be in the approved form, state whether the licence is
sought for a term of 1 or 3 years, state the names and addresses of the
associates of the applicant and be accompanied by the prescribed fee.
Restoration of licence
Clause 14 provides that if a licence expires, the person who was the
holder of the licence may, within 14 days after the licence expiry apply to
restore the licence. The application must be in the approved form and state
whether the licence is sought for a term of 1 or 3 years, state the names and
addresses of the associates of the applicant and be accompanied by the
prescribed fee.
Decision on application for renewal or restoration of a licence
Clause 15 sets out what the chief executive must do when considering an
application for renewal or restoration of a licence. The chief executive
must either grant the renewal or restoration of the licence, with or without
conditions, or refuse to grant the renewal or restoration of the licence.
However, the chief executive must refuse the application if the chief
10
Second-hand Dealers And Pawnbrokers Bill 2003
executive is not satisfied the applicant is a suitable person to hold a licence.
If the chief executive decides to refuse to grant the renewal or restoration of
the licence, the chief executive must give the applicant an information
notice within 14 days after the decision is made.
Licence continues pending decision about renewal
Clause 16 confirms that the licence continues while the decision is being
made by the chief executive whether to renew the licence or not. If the
chief executive renews the licence, the licence is taken to have been
renewed from the time of expiry. If the licence is not renewed, it expires
from the day the chief executive gives the licensee an information notice.
Licence continues pending decision about restoration
Clause 17 confirms that the licence is pending while the decision is
being made by the chief executive whether to restore the licence or not. If
the chief executive restores the licence, it is taken to have been renewed
from the expiry day. If the licence is not restored, it expires from the day
the chief executive gives the licensee an information notice.
Requirement to give chief executive information
Clause 18 provides the chief executive with powers to request
information or documents from an applicant under this part of the Bill, in
order for the chief executive to consider the applicant's application. If the
applicant fails to provide the information or documents within 14 days of
the request, the applicant is taken to have withdrawn the application and the
chief executive must refund the fee paid by the applicant.
Division 4--Suspending, cancelling, refusing to renew or restore, or
imposing conditions on a licence
Grounds for suspending, cancelling, refusing to renew or restore, or
imposing conditions on a licence
Clause 19 provides that each of the following is a ground for
suspending, cancelling, refusing to renew or restore or imposing a
condition on a licence: if a licence was obtained because of incorrect or
misleading information; the licensee or an associate of the licensee has
11
Second-hand Dealers And Pawnbrokers Bill 2003
failed to comply with a condition of the licence; if the licensee or an
associate has been convicted of an offence against this Bill, the repealed
Act or a law of another State that provides for the same matter as this Bill
within the last 5 years; or the licensee is no longer a suitable person to hold
a licence.
Procedure for suspending, cancelling, refusing to renew or restore, or
imposing conditions on a licence
Clause 20 provides the procedure that the chief executive must follow to
suspend, cancel, refuse to renew or restore or impose conditions on a
licence, including the provision of a show cause notice if the chief
executive believes there are reasonable grounds to do so. The licensee may
appeal against the decision to a Magistrates Court within 28 days after the
date of the notice.
Return of licence
Clause 21 provides that if the chief executive decides to suspend, cancel,
refuse to renew or restore, or impose a condition on a licence, the licensee
must within 14 days return the licence to the chief executive, unless the
chief executive has otherwise given written consent for the retention of the
licence for a period of time or if the licensee has a reasonable excuse.
Division 5--Other provisions about licences
Condition that licensee comply with local laws
Clause 22 replicates the existing provision that the licensee must comply
with relevant local laws.
Condition that second-hand dealer not enter or remain at premises
Clause 23 replicates section 36 of the SHDA. The NCP
recommendation was to repeal all provisions relating to collectors. This
means that existing collectors will have to obtain second-hand dealers
licences if they wish to continue to operate collecting goods. Second-hand
dealers under this Bill must not enter or remain at premises without the
permission of the owner or occupier of the premises.
12
Second-hand Dealers And Pawnbrokers Bill 2003
Authorised place
Clause 24 defines an "authorised place" for the purposes of the Bill. In
the licensee's application for a licence, they must state all of the places that
they intend to carry on business. Those places stated in the application
form are the only places that the licensee is then authorised to carry on
business. There is provision in the Bill for the licensee to change the
authorised place.
Change of authorised place
Clause 25 allows the licensee to change an authorised place, or in other
words, the licensee can add, remove, alter or change a place on their
license. The clause sets out the procedure to change an authorised place.
The licensee can only carry on business from the places stated on their
licence.
Licence to include particular information
Clause 26 states the information that must be on all licences. It must
include any conditions imposed on the licence, and the addresses of all of
the locations (for example markets) and premises where the licensee is
authorised to carry on business. The licensee can only carry on business
from the locations and/or premises noted on the licence. If the licence is
issued to a second-hand dealer for carrying on business at a location (for
example they only carry on business at a market) the licence must also state
the address where the transactions register is to be maintained and may be
inspected. For a pawnbroker carrying on business at a location, the licence
must also state the licensee's address where the property register is to be
maintained and may be inspected, and property taken as a pawn is located.
Change of licensee's home address
Clause 27 sets out the requirements for a change of home address for all
licensees and the requirements for a change of address by a licensee who
carries on business at a location.
Licence to be kept on premises or with licensee
Clause 28 states the licence or a copy of the licence must be kept at the
premises stated on the licence. If the licence authorises the licensee to
13
Second-hand Dealers And Pawnbrokers Bill 2003
carry on business at a location (for example at a market), the licensee must
carry the licence or a copy of the licence when carrying on business at the
location.
Change of associate
Clause 29 states that if a licensee changes an associate, either by an
associate ceasing to be an associate or if a new associate is appointed, the
licensee must give the chief executive signed notice within 14 days.
Licensee must give notice if licence lost, stolen, destroyed, or damaged
Clause 30 states if a licence is lost, stolen, destroyed, or damaged in a
way that requires its replacement, the licensee must give the chief executive
signed notice as soon as practicable after becoming aware the licence is
lost, stolen, destroyed, or damaged, in a way that requires its replacement.
Replacement of lost, stolen, destroyed or damaged licence
Clause 31 states a licensee may apply for a replacement licence in
writing, accompanied by the prescribed fee. The chief executive must
consider each application and replace the licence if satisfied that the licence
has been lost, stolen, destroyed, or damaged in a way that requires its
replacement.
Surrender of licence
Clause 32 states a licensee may surrender their licence by signed notice
to the chief executive. The licensee must return the licence to the chief
executive within 14 days after the licensee surrenders the licence, unless
the licensee has a reasonable excuse.
Return of expired licence
Clause 33 states the licensee must return the licence to the chief
executive within 14 days after the licence expires unless the licensee has
applied for the renewal or restoration of the licence and the application has
not been decided by the chief executive or the licensee has a reasonable
excuse.
14
Second-hand Dealers And Pawnbrokers Bill 2003
Licence not transferable
Clause 34 states a licence can not be assigned or transferred to another
person.
PART 4--CONDUCT OF BUSINESS
Division 1--Second-hand dealers
Where business may be carried on
Clause 35 states a second-hand dealer must not carry on business as a
second-hand dealer at a place other than a place stated on the dealer's
licence. The place of business includes both premises and locations (for
example markets). This requirement is not breached if the dealer is only
acquiring second-hand property at another place not stated on their licence,
or is carrying on business at a public auction conducted by a licensed
auctioneer.
Second-hand dealer must identify place of business
Clause 36 modernises the drafting style used in section 41 of the SHDA
and sets out the requirements for identifying an authorised place to the
public.
Second-hand dealer must keep a transactions register
Clause 37 modernises the drafting style used in section 44 of the SHDA
and provides for the option of using a printed or an electronic transactions
register. This is a NCP recommendation. The register must be kept in the
way specified in a regulation and the details entered into the register as
detailed in a regulation.
Place transactions register to be kept
Clause 38 states the transactions register must be kept at the premises for
which it relates. If the transactions register is used at locations, when a
second-hand dealer is not at the location, the transactions register must be
15
Second-hand Dealers And Pawnbrokers Bill 2003
kept at the second-hand dealer's address stated on the licence, pursuant to
section 26.
Second-hand dealer must give information to commissioner of police
service
Clause 39 provides that a second-hand dealer must give the
commissioner of the police service the particulars in the transaction register
in the way and within the period prescribed under a regulation.
False or misleading entries in transactions register
Clause 40 states a person must not make a false or misleading entry in a
transactions register.
Person must not alter transactions register
Clause 41 replicates and updates the drafting style of subsection 44(6) of
the SHDA. A person must not remove an entry in the register. If an error is
detected, the second-hand dealer may correct the entry by making a new
entry for the transaction in the register.
Employees must not be under 17
Clause 42 states a second-hand dealer must not employ a person less
than 17 years to acquire second-hand property.
Second-hand dealer taken to be in possession of second-hand property
Clause 43 provides that a second-hand dealer is taken to be in possession
of second-hand property located at a place other than a place stated on the
second-hand dealer's licence if the property is found in a place occupied by
the second-hand dealer; or the property is under the control of the second-
hand dealer or the second-hand dealer did not sell the property in good
faith and the property has been moved to another place. This is not the
case, if the contrary is proven.
16
Second-hand Dealers And Pawnbrokers Bill 2003
Second-hand dealer to keep property for 7 days
Clause 44 replicates section 47A of the SHDA. "Nominated property"
is defined in the dictionary in Schedule 3. Second-hand dealers must keep
nominated property in their possession for 7 clear working days after
acquiring it.
Second-hand dealer must not acquire property from particular
persons
Clause 45 states that a second-hand dealer must not directly or indirectly
acquire second-hand property from a person under 17 years or who is
under the influence of alcohol or a drug.
When a second-hand dealer may acquire property
Clause 46 The NCP recommendation was to repeal all provisions
relating to collectors. This means that existing collectors will have to
obtain second-hand dealers licences if they wish to continue to operate.
This provision replicates section 30 of the SHDA. A second-hand dealer
must not acquire second-hand property from a person at the person's home
on the days and times specified in subsection (1). The second-hand dealer
does not breach subsection (1) if the second-hand dealer has the person's
prior consent, at least 1 day before the day the property is acquired.
Second-hand dealer must ask for information
Clause 47 replicates and modernises the drafting style used in section 48
of the SHDA. This section sets out the information that the second-hand
dealer must obtain from the person before acquiring second-hand property
from that person.
Second-hand dealer to inform police about stolen property
Clause 48 replicates and modernises the drafting style used in section 47
of the SHDA. If a second-hand dealer acquires second-hand property that
may be suspected stolen property, the second-hand dealer must advise a
police officer as soon as practicable after becoming aware that the property
may be stolen. Written, printed or oral information provided by a police
officer or another person to the second-hand dealer that property may be
17
Second-hand Dealers And Pawnbrokers Bill 2003
stolen, comprises sufficient grounds on which the second-hand dealer can
base his/her suspicions.
Second-hand dealer to produce licence if asked
Clause 49 provides that the second-hand dealer must, if asked, show the
licence to a person acquiring or intending to acquire or disposing or
intending to dispose of second-hand property.
Holding out place as second-hand dealer's business
Clause 50 makes it an offence for a person to hold out a place as a place
of business as a second-hand dealer, if they are not licensed to carry on
business at an authorised place.
Division 2--Pawnbrokers
Where business may be carried on
Clause 51 states a pawnbroker must not carry on business as a
pawnbroker at a place other than a place stated on their licence.
Pawnbroker must identify place of business
Clause 52 modernises the drafting style of section 29 of the PBA and
sets out the requirements for identifying each authorised place to the
public. An authorised place can be a premise or location (for example a
market).
Pawnbroker must keep a property register
Clause 53 modernises the drafting style used in section 32 of the PBA
and provides for the option for a printed or an electronic property register
to be used. This is a NCP recommendation. The register must be kept in
the way specified in a regulation and the details to be entered into the
register are also detailed in a regulation.
18
Second-hand Dealers And Pawnbrokers Bill 2003
Place property register to be kept
Clause 54 states the property register must be kept at the premises to
which it relates. If the property register is used at locations, when the
pawnbroker is not at the location, the property register must be kept at the
pawnbroker's address stated on the licence, pursuant to section 26.
Pawnbroker must give information to commissioner of police service
Clause 55 provides that the pawnbroker must give the commissioner of
the police service the particulars in the property register in the way and
within the period prescribed under a regulation.
False and misleading entries in property register
Clause 56 states a person must not make a false or misleading entry in a
property register.
Person must not alter property register
Clause 57 states a person must not remove an entry in the register. If an
error is detected, the error may be corrected by making a new entry for the
transaction in the register.
Pawnbroker must give a person a pawn ticket
Clause 58 replicates and modernises the drafting style used in section 33
of the PBA. If a pawnbroker takes property as a pawn from a person, the
pawnbroker must give the person a legible copy of the entry made in the
pawnbroker's property register for the transaction, or in other words a
"pawn ticket". The pawn ticket must include the number allotted to the
entry and the name of the pawnbroker. A person has a right to receive a
replacement pawn ticket if they can prove their identity and that the
original pawn ticket was lost, destroyed or stolen, to the satisfaction of the
pawnbroker. This may be done by way of declaration under the Oaths Act
1867.
Presumption of right to redeem
Clause 59 replaces section 55 of the PBA. If a person presents a pawn
ticket or a replacement pawn ticket, they are presumed to be the owner of
19
Second-hand Dealers And Pawnbrokers Bill 2003
the pawn ticket and have a right to redeem the property. Subsection (3) sets
out the exceptions, namely that if the police or an authorised officer have
seized the property and not returned it, or if the pawnbroker has previously
been informed that the pawn ticket has been lost or that the property has
been stolen, the pawnbroker does not have to give the property back to the
person.
Pawnbroker must not sell property before redemption period expires
Clause 60 states the pawnbroker must not sell or dispose of property,
taken as a pawn, before the redemption period expires for the property.
The redemption period is 3 months from the day the person pawned the
property, or if a longer period is agreed between the person and the
pawnbroker, then not until after the expiry of that period. If the period is
longer than 3 months, that period must be entered in the property register
for the transaction.
Disposal of pawned property
Clause 61 states after the expiry of the 3 months or other agreed time
(the redemption period) certain particulars prescribed by regulation must
be entered in the property register.
If property is not redeemed within the redemption period
Clause 62 replicates section 34 of the PBA. If a pawnbroker has
advanced an amount less than $40, or a higher amount prescribed under a
regulation, for property taken as a pawn and the property has not been
redeemed before the redemption period expires; on expiry of the
redemption period, the property becomes the property of the pawnbroker
and the person who pawned the property loses all claim to the property. If
the pawnbroker has advanced an amount that is at least $40 or a higher
amount prescribed under a regulation, for property taken as a pawn, and the
property has not been redeemed before the redemption period expires, on
expiry the pawnbroker may sell the property free of any claim by the
person who pawned the property.
Sale of pawned property
Clause 63 replicates and modernises the drafting style for section 35 of
the PBA. This section of the Bill incorporates a NCP recommendation to
20
Second-hand Dealers And Pawnbrokers Bill 2003
include the option of selling an unredeemed pledge from the place where
the pawn was taken. There remains the option to sell by auction, if the
pawnbroker wishes to do so. This clause specifies the procedure to follow
when selling an unredeemed pledge by auction.
Proceeds of sale of property
Clause 64 replicates and modernises the drafting style for section 35(4)
of the PBA, the meaning of the section has not changed. The section sets
out what deductions may be made from the proceeds of the sale of the
unredeemed pledge and how the proceeds must be dealt with.
Person may inspect property register
Clause 65 replicates the current section 56 of the PBA. The drafting
style has been modernised, however the meaning is intended to be the
same.
Recovery rights if pawn wrongly sold or disposed of
Clause 66 replicates the current section 36 of the PBA. The drafting
style has been modernised, however the meaning is intended to be the
same.
Employees must not be under 17
Clause 67 states a pawnbroker must not employ a person under the age
of 17 years to take property as a pawn. This replicates section 39 of the
PBA.
Pawnbroker taken to be in possession of property
Clause 68 modernises the drafting style of section 63 of the PBA. The
clause provides that a pawnbroker is taken to be in possession of property
located at a place other than a place stated on the pawnbroker's licence if
the property is found in a place occupied by the pawnbroker; the property is
under the control of the pawnbroker; or the pawnbroker did not sell the
property in good faith and the property has been moved to another place.
This is not the case, if the contrary is proven.
21
Second-hand Dealers And Pawnbrokers Bill 2003
Pawnbroker must not acquire property from particular persons
Clause 69 modernises the drafting style of section 37 of the PBA. A
pawnbroker must not directly or indirectly take property as a pawn from a
person under 17 years, or who is under the influence of alcohol or a drug.
Pawnbroker must ask for information
Clause 70 replicates and modernises the drafting style used in section
41of the PBA. This section sets out the information that the pawnbroker
must obtain from a person before taking property as a pawn.
Pawnbroker to inform police about stolen property
Clause 71 replicates and modernises the drafting style used in section 40
of the PBA. If a pawnbroker acquires property that may be suspected
stolen property, the pawnbroker must advise a police officer as soon as
practicable after becoming aware that the property may be stolen. Written,
printed or oral information that property may be stolen provided by a
police officer or another person to the pawnbroker comprises sufficient
grounds on which the pawnbroker can base his/her suspicions.
Pawnbroker to produce licence if asked
Clause 72 provides that the pawnbroker must, if asked, show the licence
to a person acquiring property or intending to acquire property or pawning
or intending to pawn property to the pawnbroker.
Holding out place as pawnbroker's business
Clause 73 makes it an offence for a person to hold out a place as a place
of business as a pawnbroker if the place is not an authorised place for a
pawnbroker.
Disposal of pledges if licence cancelled or not renewed
Clause 74 modernises the drafting style of section 42 of the PBA. If the
chief executive cancels or refuses to renew a pawnbroker's licence, a
person may apply to a Magistrates Court for an order to dispose of property
taken as a pawn in a way the court considers appropriate.
22
Second-hand Dealers And Pawnbrokers Bill 2003
PART 5--ENFORCEMENT
Division 1--Authorised officers
Part 5 of the Bill has been added to update the provisions in the SHDA
and PBA relating to the enforcement of legislation. The provisions are the
standard provisions used in other OFT legislation.
Appointment and qualifications
Clause 75 authorises the chief executive to appoint an officer of the
department as an authorised officer or inspector provided that the chief
executive is satisfied that the person has the necessary expertise or
experience to be an authorised officer.
Appointment conditions and limit on powers
Clause 76 specifies that an authorised officer holds office on the
conditions stated in the person's instrument of appointment, a signed notice
given to the person, or a regulation and that the instrument of appointment,
signed notice, or regulation may limit the authorised officer's powers under
the Bill.
Issue of identity card
Clause 77 requires the chief executive to provide each authorised officer
with an identity card containing a recent photo of the person and other
relevant particulars.
Production or display of identity card
Clause 78 requires an authorised officer to produce the authorised
officer's identity card before exercising any power under the Bill or display
the card when exercising the power. However, if it is not practical to
comply with this requirement, the authorised officer must produce the card
at the first reasonable opportunity.
23
Second-hand Dealers And Pawnbrokers Bill 2003
When authorised officer ceases to hold office
Clause 79 specifies the circumstances under which an authorised officer
ceases to hold office.
Resignation
Clause 80 specifies how an inspector may resign.
Return of identity card
Clause 81 makes it an offence for a person who ceases to be an
authorised officer, without a reasonable excuse, to fail to return the person's
identity card to the chief executive within 21 days after ceasing to be an
authorised officer.
Division 2--Powers of authorised officers
Subdivision 1--Entry of places
Power to enter places
Clause 82 sets out the circumstances in which an authorised officer may
enter a place. In addition to the `standard' power to enter public places, or
other places if the entry is with the consent of the occupier or a warrant, an
authorised officer may also enter an authorised place (as defined) if open
for business or otherwise open for entry or required to be open for
inspection under the licence. Subsection (3) makes it clear that the entry
powers, other than those that may be exercised only by consent or warrant,
do not apply to places, or part of places, where an individual resides.
Subdivision 2--Procedure for entry
Entry with consent
Clause 83 outlines the procedures an authorised officer must follow
when seeking consent to enter a place. Subsection (6) provides that, should
the issue whether the occupier consented to the entry arise in a proceeding,
24
Second-hand Dealers And Pawnbrokers Bill 2003
the onus is on the person relying on the lawfulness of the entry to prove that
the occupier consented to the entry.
Application for warrant
Clause 84 makes provision for an authorised officer to apply to a
Magistrate for a warrant to enter a place.
Issue of warrant
Clause 85 sets out the conditions under which a Magistrate may issue a
warrant and specifies the information that must be stated in a warrant.
Special warrants
Clause 86 makes provision for an authorised officer to apply for a
warrant by phone, fax, radio or another form of communication because of
urgent or other special circumstances.
Warrants - procedure before entry
Clause 87 outlines the procedures that must be followed by an
authorised officer prior to entering a place under a warrant.
Subdivision 3--Powers after entry
General powers after entering places
Clause 88 specifies what powers are available to an authorised officer
who has entered a place for the purpose of monitoring and enforcing
compliance with the Bill. Subsection (2)(f) provides an example,
illustrating that it may be reasonable for a person who can operate a
computer to help an authorised officer access a document on the computer
so it can be inspected.
25
Second-hand Dealers And Pawnbrokers Bill 2003
Licensee to show licence if asked
Clause 89 makes it an offence for a licensee to fail to show an authorised
officer the licence or a copy of the licence, unless the licensee has a
reasonable excuse.
Subdivision 4--Power to seize evidence
Power to seize evidence
Clause 90 provides the authorised officer with power to seize a thing at a
place.
Receipt for seized things
Clause 91 requires the authorised officer to issue a receipt to the person
from whom the thing was seized. However, if this is impractical, the
authorised officer must leave the receipt at the place of seizure in a
conspicuous position and in a secure way.
Access to seized things
Clause 92 provides for the person entitled to the seized thing, if it were
not in the authorised officer's possession, to have access to it for inspection
and copying (if a document) until it is returned.
Return of seized things
Clause 93 specifies when an authorised officer must return a seized thing
to the person entitled to it.
Compensation
Clause 94 makes provision for a person to be compensated by the State,
if the person incurs loss or expense because of the exercise or purported
exercise of a power under this part of the Bill.
26
Second-hand Dealers And Pawnbrokers Bill 2003
Subdivision 5--Power to require information
Power to require name and address
Clause 95 enables an authorised officer, if an offence has or appears to
have been committed against the Act, to require a person to state the
person's name and residential address and to produce evidence of the
correctness of the stated name or address. When making such a
requirement, the authorised officer must warn the person it is an offence to
fail to state the person's name or address, unless they have a reasonable
excuse.
PART 6--GENERAL OFFENCES, LEGAL
PROCEEDINGS AND APPEALS
Division 1--General offences
False or misleading information
Clause 96 makes it an offence for a person to give information to an
authorised officer that the person knows is false or misleading in a material
particular.
Obstruction of authorised officers
Clause 97 makes it an offence to obstruct an authorised officer or
someone helping an authorised officer, in the exercise of a power under this
Bill, unless the person has a reasonable excuse.
Forging a licence
Clause 98 makes it an offence for a person to forge a licence.
Person not to possess a licence without reasonable excuse
Clause 99 makes it an offence for a person who is not a licensee to have
a licence or a document resembling a licence, without reasonable excuse. It
27
Second-hand Dealers And Pawnbrokers Bill 2003
also makes it an offence for a person who is not a licensee, to possess a
licence that has been cancelled, suspended, surrendered or expired, unless
the person has a reasonable excuse.
Person not to use or allow another person to use a licence
Clause 100 makes it an offence for a person to use a licence issued to
another person or to allow a licence issued to the person to be used by
another person.
Person not to alter a licence
Clause 101 makes it an offence for a person to alter a licence, unless
they are authorised to do so under the Bill.
Division 2--Legal proceedings
Proceeding for offence
Clause 102 provides for offences under the Bill to be dealt with as
summary offences and specifies the period within which proceedings for an
offence can be commenced.
Authorised officer may prosecute
Clause 103 states that an authorised officer may appear and act in court
for the prosecution on a proceeding under this Bill, whether or not the
authorised officer is the complainant in the proceeding.
Evidence
Clause 104 specifies those matters which do not have to be proved in a
proceeding under the Bill unless a party by reasonable notice requires
proof or which are considered to be evidence of those matters.
Effect of conviction for dealing in or selling property obtained by fraud
Clause 105 provides that if a licensee is convicted of an offence
involving the licensee knowingly dealing in or selling property obtained by
28
Second-hand Dealers And Pawnbrokers Bill 2003
fraud or by a dishonest means, a court may, as well as imposing a penalty,
cancel the licensee's licence and/or order that the licensee may not hold a
licence for 5 years after the conviction.
Attempts to commit offences
Clause 106 makes it an offence for a person to attempt to commit an
offence against this Bill. Any attempt to commit an offence against this
Bill is an offence against the Bill.
Division 3--Appeals
Right to appeal to Magistrates Court
Clause 107 enables a person to appeal to a Magistrates Court against a
decision of the chief executive to refuse to grant a licence.
How to start appeal
Clause 108 specifies where and how an appeal may be started and the
timeframes for filing the notice of appeal.
Stay of operation of decisions
Clause 109 makes provision for the Magistrates Court to stay the
operation of a decision made by the chief executive, where an appeal has
been made to the Magistrates Court regarding that decision.
Hearing procedures
Clause 110 specifies the hearing procedures that the Magistrates Court
has in deciding an appeal and provides that the appeal is by way of
rehearing.
Powers of court on appeal
Clause 111 sets out what actions the Magistrates Court may take in
deciding an appeal.
29
Second-hand Dealers And Pawnbrokers Bill 2003
PART 7--GENERAL PROVISIONS
Executive officers must ensure corporation complies with Act
Clause 112 places an obligation on the executive officers of a
corporation to ensure that the corporation complies with the legislation. As
such, this provision creates an offence on the part of each executive officer
in situations where the corporation has committed an offence against this
Act. However, it is a defence for an executive officer to prove that he or she
exercised reasonable diligence to ensure the corporation complied with the
provision, or were not in a position to influence the conduct of the
corporation in relation to the offence.
Chief executive and authorised officers not civilly liable
Clause 113 provides that the chief executive or an authorised officer is
not civilly liable for an act done, or omission made honestly and without
negligence under this Bill. The liability attaches instead to the State.
Approval of forms
Clause 114 gives power to the chief executive to approve forms for use
under this Bill.
Regulation-making power
Clause 115 provides that the Governor in Council may make regulations
under this Bill.
PART 8--REPEALS AND CONSEQUENTIAL
AMENDMENTS
Repeals
Clause 116 repeals the Pawnbrokers Act 1984 and the Second-hand
Dealers and Collectors Act 1984.
30
Second-hand Dealers And Pawnbrokers Bill 2003
Consequential amendment
Clause 117 provides for schedule 2, which makes consequential
amendments to other acts that refer to both or either the Pawnbrokers Act
1984 and the Second-hand Dealers and Collectors Act 1984.
PART 9--TRANSITIONAL PROVISIONS
Division 1--Interpretation
Definition for pt 8
Clause 118 inserts a definition of "commencement" which means the
commencement of this part of the Bill.
Division 2--Transitional provisions for repeal of the Second-hand
Dealers and Collectors Act 1984
Definition for div 2
Clause 119 inserts a definition of "repealed Act, which means the
Second-hand Dealers and Collectors Act 1984.
Existing second-hand dealer's licence
Clause 120 provides that a second-hand dealer's licence in force under
the repealed Act is taken to be a second-hand dealer's licence under this
Bill. The licence is subject to the conditions and restrictions on the licence,
as far as practicable. The licence expires when it would have expired under
the repealed Act. The licence cannot be renewed, restored or reinstated
once it has expired. The licensee must apply for a new licence under the
Bill if they wish to obtain a further second-hand dealer's licence. The new
licence will be subject to the new licensing structure of this Bill, for
example if the licence is to be for one or three years, and the new licensing
structure allows for multi-site licensing.
31
Second-hand Dealers And Pawnbrokers Bill 2003
Existing applications for previous licences
Clause 121 provides that if an application for a second-hand dealer's
licence, a renewal or restoration of a licence, or a replacement licence is
requested before this Bill commences and the application has not been
decided, then the chief executive is to decide the application as if the
application was a similar application under this Bill. The chief executive
has power to ask for further information under clause 18 of the Bill, in the
event that all of the required information is not available in the application.
Notice of revocation
Clause 122 provides that if the chief executive has given a second-hand
dealer a notice of revocation under the repealed Act, and the licence has not
been revoked, the notice of revocation has effect as if the repealed Act had
not been repealed.
Surrender notice
Clause 123 provides that if the chief executive has given a second-hand
dealer a surrender notice under the repealed Act, and the surrender notice
has not had effect, the notice has effect as if the repealed Act had not been
repealed.
Change of address
Clause 124 provides if a second-hand dealer has given the chief
executive written notice of a change of address, and the chief executive has
not endorsed the second-hand dealer's licence with the change of address,
the notice is taken to be a notice of change of address under this Bill.
Nominated property
Clause 125 provides if a second-hand dealer receives nominated
property within 7 clear working days before the commencement of this
Bill, section 47A of the repealed Act applies to the property as if the
repealed Act had not been repealed.
32
Second-hand Dealers And Pawnbrokers Bill 2003
Appeals to court
Clause 126 states if a person appealed to a Magistrates Court under the
repealed Act before this Bill commences, and the appeal has not been
decided, then the Magistrates Court may hear or continue to hear and
decide the appeal, as if the repealed Act had not been repealed. If a person
could have appealed to a Magistrates Court under the repealed Act before
the commencement of the Bill and the person has not appealed, then the
person may appeal under the repealed Act and the Magistrates Court may
hear and decide the appeal, as if the repealed Act had not been repealed.
Existing authorised officers
Clause 127 provides that a person who held an appointment as an
authorised officer under the repealed Act immediately before the
commencement is taken to be appointed as an authorised officer under this
Bill.
References to repealed Act
Clause 128 states that in an Act or a document, a reference to the
repealed Act may, if the context permits, be taken as a reference to this Bill.
Division 3--Transitional provisions for repeal of the Pawnbrokers Act
1984
Definition for div 3
Clause 129 inserts a definition of "repealed Act", which means the
Pawnbrokers Act 1984.
Existing pawnbroker's licence
Clause 130 provides that a pawnbroker's licence in force under the
repealed Act is taken to be a pawnbroker's licence under this Bill. The
licence is subject to the conditions and restrictions on the licence, as far as
practicable. The licence expires when it would have expired under the
repealed Act. The licence cannot be renewed, restored or reinstated once it
has expired. The licensee must apply for a new licence under the Bill if
they wish to obtain a further pawnbroker's licence. The new licence will be
subject to the new licensing structure of this Bill, for example if the licence
33
Second-hand Dealers And Pawnbrokers Bill 2003
is to be for one or three years, and the new licensing structure allows for
multi-site licensing.
Existing applications for previous licences
Clause 131 provides that if an application for a pawnbroker's licence, a
renewal or restoration of a licence, or a replacement licence is requested
before this Bill commences and the application has not been decided, then
the chief executive is to decide the application as if the application was a
similar application under this Bill. The chief executive has power to ask for
further information under clause 18 of the Bill, in the event that all of the
required information is not available in the application.
Notice of revocation
Clause 132 provides that if the chief executive has given a pawnbroker a
notice of revocation under the repealed Act, and the licence has not been
revoked, the notice of revocation has effect as if the repealed Act had not
been repealed.
Surrender notice
Clause 133 provides that if the chief executive has given a pawnbroker a
surrender notice under the repealed Act, and the surrender notice has not
had effect, the notice has effect as if the repealed Act had not been
repealed.
Change of address
Clause 134 provides if a pawnbroker has given the chief executive
written notice of a change of address, and the chief executive has not
endorsed the pawnbroker's licence with the change of address, the notice is
taken to be a notice of change of address under this Bill.
Property pawned before the commencement
Clause 135 provides that certain sections of the repealed Act (termed
"nominated sections") continue to apply to property taken as a pawn under
the repealed Act before the commencement of this Bill, as if the repealed
Act had not been repealed.
34
Second-hand Dealers And Pawnbrokers Bill 2003
Appeals to court
Clause 136 states if a person appealed to a Magistrates Court under the
repealed Act before this Bill commences, and the appeal has not been
decided, then the Magistrates Court may hear or continue to hear and
decide the appeal, as if the repealed Act had not been repealed. If a person
could have appealed to a Magistrates Court under the repealed Act before
the commencement of the Bill and the person has not appealed, then the
person may appeal under the repealed Act and the Magistrates Court may
hear and decide the appeal, as if the repealed Act had not been repealed.
Existing authorised officers
Clause 137 provides that a person who held an appointment as an
authorised officer under the repealed Act immediately before the
commencement is taken to be appointed as an authorised officer under this
Bill.
References to repealed Act
Clause 138 states that in an Act or a document, a reference to the
repealed Act may, if the context permits, be taken as a reference to this Bill.
PART 10--AMENDMENT OF FUNERAL BENEFIT
BUSINESS ACT 1982
Act amended in pt 10
Clause 139 explains that this part of the Bill amends the Funeral Benefit
Business Act 1982.
Amendment of s.5 (Definitions)
Clause 140(1) inserts new definitions into section 5 of the Funeral
Benefit Business Act 1982. "Entity" is not defined as there is a definition of
"entity" in the Acts Interpretation Act 1954. The intention of the definition
of "authorised investment manager" is to capture any friendly society, life
office, bank, building society, credit union, superannuation fund, or any
35
Second-hand Dealers And Pawnbrokers Bill 2003
other deposit taking institution already regulated under relevant
Commonwealth or State legislation.
Clause 140(2) amends a section reference in the definition of "approved
form".
Clause 140(3) & (4) removes the word "corporation" from the definition
of "contributor" and replaces it with "entity". This change is necessary as
any type of entity, whether a company or not, will be permitted to operate a
funeral benefit business.
Clause 140(5) replaces the definition of "corporation".
Clause 140(6) The heading for the definition of "funeral benefit" reads;
"funeral benefit or benefit". This clause removes the words "or benefit"
from the heading of the definition, to make it clear that the definition is for
a "funeral benefit".
Insertion of pt 3 hdg (Funeral benefit businesses of corporations
registered at commencement of this Act)
Clause 141 inserts a new part 3 heading.
Insertion of new s.8
Clause 142 inserts a new section 8 into the Funeral Benefit Business Act
1982. It makes it clear that Part 3 of the Funeral Benefit Business Act 1982
only applies to those corporations or funeral benefit businesses that, in
1982 were already registered under the old Friendly Societies Act 1913.
There are two corporations that are "part 3 corporations" for the purposes
of the Funeral Benefit Business Act 1982.
Amendment of ss. 14, 15, 19, 20, 22 & 23
Clauses 143-148 amend sections 14, 15, 19, 20, 22 and 23 of the
Funeral Benefit Business Act 1982. This is a result of the omission of
section 73 the "General Penalty" provision. The general penalty provision
has been removed on the grounds that the Scrutiny of Legislation
Committee has questioned the use of such widely-framed offences in the
past, because they seldom appear in current legislation and such widely-
drawn offences may not have sufficient regard to the rights and liberties of
potential defendants and may breach fundamental legislative principles.
Instead, specific penalties have been introduced in alignment with the
36
Second-hand Dealers And Pawnbrokers Bill 2003
current level of penalty specified in section 73. The penalty amount has not
changed as the NCP recommendation was to maintain the existing
responsibilities of parties.
Replacement of pt 4, hdg (Registration of corporations under this Act
to carry on funeral benefit business)
Clause 149 inserts a new heading for part 4.
Replacement of ss.24 to 31
Clause 150 repeals sections 24 to 31 of the Funeral Benefit Business Act
1982. These provisions will not be required, as no corporations will be
required to register under Part 4 once this Bill commences. The sections
relating to new registrations become redundant and are therefore being
repealed.
A new section ("Application of pt 4") is being inserted to make it clear
that Part 4 only applies to those corporations that registered after 1982 up
until commencement of this Bill. The clause also inserts a definition for
"nominated property" to re-create the definition of "nominated property" in
s.31 of the Funeral Benefit Business Act 1982. Section 31 is no longer
required, however, the definition may still need to be referred to.
Amendment of s.32 (Provisions to be contained in rules)
Clause 151 replaces the words "The rules relating to the funeral benefit
business of a corporation registered under this part to carry on such
business shall" with the words "The rules relating to the funeral benefit
business of a part 4 corporation must". This is in order to incorporate the
new definition of "part 4 corporation" and tidy up the start of the provision.
Omission of ss.33 to 35
Clause 152 omits sections 33 to 35. These provisions will not be
required, as no corporations will be required to register under Part 4 once
this Bill commences.
37
Second-hand Dealers And Pawnbrokers Bill 2003
Amendment of s.36 (Certificate of registration)
Clause 153 omits subsection (1) of section 36 of the Funeral Benefit
Business Act 1982. No new registrations will occur once this Bill
commences, therefore subsection (1) is not required. Subsection (2) will
remain and become subsection (1), as corporations that are registered, must
still display the certificate of registration.
A specific penalty has been added as a result of the removal of section 73
the "General Penalty" provision. The general penalty provision has been
removed on the grounds that the Scrutiny of Legislation Committee has
questioned the use of such widely-framed offences in the past, because
they seldom appear in current legislation and such widely-drawn offences
may not have sufficient regard to the rights and liberties of potential
defendants and may breach fundamental legislative principles. Instead,
specific penalties have been introduced in alignment with the current level
of penalty specified in section 73. The penalty amount has not changed as
the NCP recommendation was to maintain the existing responsibilities of
parties.
Omission of s.37 (Refusal of registration)
Clause 154 repeals section 37. No corporations will be able to register
under Part 4 once this Bill commences, this section is not required.
Amendment of s.38 (Funeral benefit business trust fund account)
Clause 155 repeals subsection (2)(b), and subsections (3) and (4) of
section 38 of the Funeral Benefit Business Act 1982. It also removes the
words "upon registration, open and" from subsection (1) of section 38.
A specific penalty has been added as a result of the removal of section 73
the "General Penalty" provision. The general penalty provision has been
removed on the grounds that the Scrutiny of Legislation Committee has
questioned the use of such widely-framed offences in the past, because
they seldom appear in current legislation and such widely-drawn offences
may not have sufficient regard to the rights and liberties of potential
defendants and may breach fundamental legislative principles. Instead,
specific penalties have been introduced in alignment with the current level
of penalty specified in section 73. The penalty amount has not changed as
the NCP recommendation was to maintain the existing responsibilities of
parties.
38
Second-hand Dealers And Pawnbrokers Bill 2003
Amendment of s.39 (Funeral benefit business trust fund)
Clause 156 repeals the words "a contract of insurance or a bond referred
to in section 34" from section 39 of the Funeral Benefit Business Act 1982
and replaces it with "an alternative financial arrangement" (which is
defined), as this Bill repeals section 34.
Amendment of s.40 (Investment of moneys)
Clause 157 replaces subsection (3) of section 40. The meaning is
intended to be the same, however the section has been redrafted to take into
account modern drafting style and to make the responsibility of the
corporation clear.
A specific penalty has been added as a result of the removal of section 73
the "General Penalty" provision. The general penalty provision has been
removed on the grounds that the Scrutiny of Legislation Committee has
questioned the use of such widely-framed offences in the past, because
they seldom appear in current legislation and such widely-drawn offences
may not have sufficient regard to the rights and liberties of potential
defendants and may breach fundamental legislative principles. Instead,
specific penalties have been introduced in alignment with the current level
of penalty specified in section 73. The penalty amount has not changed as
the NCP recommendation was to maintain the existing responsibilities of
parties.
Amendment of ss.41, 42 & 43
Clauses 158, 159 and 160 add specific penalties as a result of the
removal of section 73 the "General Penalty" provision. The general
penalty provision has been removed on the grounds that the Scrutiny of
Legislation Committee has questioned the use of such widely-framed
offences in the past, because they seldom appear in current legislation and
such widely-drawn offences may not have sufficient regard to the rights
and liberties of potential defendants and may breach fundamental
legislative principles. Instead, specific penalties have been introduced in
alignment with the current level of penalty specified in section 73. The
penalty amount has not changed as the NCP recommendation was to
maintain the existing responsibilities of parties.
39
Second-hand Dealers And Pawnbrokers Bill 2003
Amendment of s.44 (Where assets insufficient to meet liabilities)
Clause 161 removes references to section 31 in section 44(d) and in the
footnote, as this Bill repeals section 31 of the Funeral Benefit Business Act
1982.
Amendment of ss.46, 47 and 48
Clauses 162, 163 and 164 add specific penalties as a result of the
removal of section 73 the "General Penalty" provision. The general
penalty provision has been removed on the grounds that the Scrutiny of
Legislation Committee has questioned the use of such widely-framed
offences in the past, because they seldom appear in current legislation and
such widely-drawn offences may not have sufficient regard to the rights
and liberties of potential defendants and may breach fundamental
legislative principles. Instead, specific penalties have been introduced in
alignment with the current level of penalty specified in section 73. The
penalty amount has not changed as the NCP recommendation was to
maintain the existing responsibilities of parties.
Amendment of pt 5, hdg (Sale of funeral benefit businesses and
cancellation of registration provisions)
Clause 165 repeals the old part heading and replaces it with the words
"For Part 3 and 4 Corporations". This is because the sections relating to
the sale of funeral benefit businesses and the cancellation of registrations is
only applicable to the corporations currently registered under Part 3 or Part
4.
Replacement of s.49 (Interpretation)
Clause 166 repeals section 49 and replaces it with a definition of
"corporation" for part 5 of the Funeral Benefit Business Act 1982. This
confirms that this part is only applicable to part 3 and part 4 corporations
and not "corporations" generally.
Amendment of s.50 (Sale of funeral benefit business)
Clause 167 amends section 50(1) so that a part 3 or part 4 corporation,
with the approval of the registrar, may impose, sell, assign or dispose of
40
Second-hand Dealers And Pawnbrokers Bill 2003
their funeral benefit business to another entity, it is not restricted to another
registered part 3 or part 4 corporation.
Amendment of s.52 (Cancellation of registration by court)
Clause 168 removes a reference to section 35 from section 52(1)(a) of
the Funeral Benefit Business Act 1982, as this Bill repeals section 35. It
also removes a reference to section 52(17), as there is no subsection (17) in
section 52.
Omission of pt 6
Clause 169 repeals part 6 of the Funeral Benefit Business Act 1982. Part
6 provides offences should providers of funeral benefit businesses fail to
register. The registration requirements are being removed by this Bill and
part 6 is therefore no longer required.
Replacement of pt 7, heading (General provisions)
Clause 170 inserts a new part heading.
Replacement of s.58 (Reference to registered corporation)
Clause171 omits the current section 58 and replaces it. The clause states
that part 6 only applies to registered corporations in relation to funeral
benefit agreements entered into immediately before the commencement of
this Bill.
Amendment of ss.59, 60, 61, 63, 66, & 67
Clauses 172, 173, 174, 175, 176 and 177 add specific penalties as a
result of the removal of section 73 the "General Penalty" provision. The
general penalty provision has been removed on the grounds that the
Scrutiny of Legislation Committee has questioned the use of such widely-
framed offences in the past, because they seldom appear in current
legislation and such widely-drawn offences may not have sufficient regard
to the rights and liberties of potential defendants and may breach
fundamental legislative principles. Instead, specific penalties have been
introduced in alignment with the current level of penalty specified in
section 73. The penalty amount has not changed as the NCP
recommendation was to maintain the existing responsibilities of parties.
41
Second-hand Dealers And Pawnbrokers Bill 2003
Amendment of s.69 (Powers of inspectors)
Clause 178 clarifies that the section relates to registered corporations as
defined by the Bill.
Omission of s.73 (General penalty)
Clause 179 removes section 73 of the Funeral Benefit Business Act
1982. The general offence provision has been removed on the grounds that
the Scrutiny of Legislation Committee has questioned the use of such
widely-framed offences in the past, because they seldom appear in current
legislation and such widely-drawn offences may not have sufficient regard
to the rights and liberties of potential defendants and may breach
fundamental legislative principles. Instead, specific penalties have been
introduced in alignment with the current level of penalty specified in
section 73. The penalty amount has not changed as the NCP
recommendation was to maintain the existing responsibilities of parties.
Amendment of s.75 (Institution of proceedings)
Clause 180 removes subsection 75(1), this is because section 56 is
removed by this Bill. The words "subject to subsection (1)" are removed
from subsection (2).
Amendment of s.76 (Offences by body corporate)
Clause 181 repeals the word "body corporate" in the heading and the
section and replaces it with "corporation". This is to ensure consistent
terminology is used throughout the Funeral Benefit Business Act 1982.
Amendment of s.80 (Regulations)
Clause 182 omits subsections 80(2)(d) and (k).
Relocation and renumbering of ss.74 to 81
Clause 183 relocates and renumbers sections 74 to 81 of the Funeral
Benefit Business Act 1982. This is because these sections are the current
general sections which will apply to all funeral benefit agreements whether
they are entered into before or after the commencement of this Bill.
42
Second-hand Dealers And Pawnbrokers Bill 2003
Insertion of new pt 7
Clause 184 inserts a new part 7 implementing the NCP
recommendations relating to funeral benefit agreements entered into after
the commencement of this Bill. A new part heading and a new section 73
are included to confirm the application of part 7.
A new section 74 introduces a client care statement for all agreements
entered into after the commencement of this Bill. The entity providing the
funeral benefit agreement to the person must give the person a clear and
legible client care statement, in the approved form, stating the rights and
obligations of the parties to the agreement.
A new section 75 provides that a signed copy of the funeral benefit
agreement must be given to the person immediately after the agreement has
been entered into.
A new section 76 allows for a 30 day cooling-off period for all funeral
benefit agreements entered into after the commencement of this Bill.
The new section 77 sets out the consequences if a person exercises their
rights under the cooling-off period. The entity providing the funeral benefit
agreement is entitled to a penalty amount of $50 or the amount prescribed
under a regulation. The person is entitled to a full refund less the penalty of
$50, and the refund must be made within 7 days after receiving the person's
signed notice. This section has effect despite anything to the contrary in
the contract.
A new section 78 provides that an entity other than an authorised
investment manager, must advise the person prior to entering into a funeral
benefit agreement with the entity, that the person may enter into a funeral
benefit agreement with an authorised investment manager instead.
The new sections 79 and 80 provide that particular entities offering
funeral benefit agreements should comply with the nominated sections of
both the Trusts Act 1973 and the Trusts Accounts Act 1973 in respect of pre-
payment monies entrusted to them. For example, if consumers choose to
deposit their pre-payment monies with a funeral director, the funeral
director is required to comply with the nominated provisions of the Trusts
Act 1973 and the Trusts Accounts Act 1973.
The new part heading for part 8 is also inserted by clause 184 of the Bill.
43
Second-hand Dealers And Pawnbrokers Bill 2003
SCHEDULE 1
DISQUALIFYING OFFENCE PROVISIONS UNDER THE
CRIMINAL CODE
Schedule 1 sets out what comprises a "disqualifying offence" for the
purposes of the Bill.
SCHEDULE 2
CONSEQUENTIAL AMENDMENTS
Clause 117 provides for schedule 2, which makes consequential
amendments to other acts that refer to both or either the Pawnbrokers Act
1984 and the Second-hand Dealers and Collectors Act 1984.
SCHEDULE 3
DICTIONARY
Clause 4 provides for schedule 3 which provides the defined terms for
the purposes of the Bill.
© State of Queensland 2003