Second-hand Dealers and Pawnbrokers Act 1994

The Act defines several core concepts that determine its scope and operation. “Goods” means any form of personal property except intangible property, so the Act concerns tangible movable property only. “Second-hand goods” are goods that have been used for a purpose not connected with their manufacture or sale, or that have been taken from other goods used for any such purpose. This definition captures a broad range of used items. “Second-hand dealer” is defined as a person who carries on the business of buying or selling, or otherwise dealing in, second-hand goods, either as a principal or agent. The definition expressly excludes a real estate agent or a general auctioneer within the meaning of the Property Agents and Land Transactions Act 2016. It also excludes persons exempted by the Minister by order published in the Gazette under section 3(3). The Minister may exempt a person, a class of persons or persons engaged in a specified trade. “Pawnbroker” is defined as a person who carries on the business of advancing money on the security of pledged goods. “Promoter” means a person who operates a second-hand goods market or makes arrangements for any such market to be held. The definition of “stolen goods” is broad: it includes goods obtained by unlawful means, not merely goods taken by theft. “Vehicle” means a motor vehicle as defined in the Vehicle and Traffic Act 1999 or a trailer as defined in that Act. “Vessel” has the meaning given by the Marine Act 1976. The Act treats second-hand goods as being in the possession of a second-hand dealer when they are at any premises or place occupied by the dealer or under his or her control, or when they are in a vehicle under his or her control (section 3(2)). This deeming provision extends the reach of duties such as the seven-day retention rule and police powers. The Act also contains an evidentiary presumption under section 21: if in proceedings for an offence it is established that within the 12 months preceding the alleged offence the defendant sold second-hand goods other than vehicles or vessels on not less than six different days, or sold six or more second-hand vehicles or vessels, or conducted six or more auctions for the sale of second-hand goods on behalf of other persons, it is presumed that the defendant was carrying on business as a second-hand dealer on the date of the alleged offence, absent proof to the contrary. This provision lowers the evidentiary burden for prosecutors in borderline cases.

The Act directly affects any natural person or corporation who carries on the business of a second-hand dealer or pawnbroker within the jurisdiction. This includes dealers trading from fixed premises and those operating at second-hand goods markets. It also affects promoters of second-hand goods markets , persons who operate such markets or make arrangements for them to be held , imposing distinct duties on them under section 12. Employees of second-hand dealers, pawnbrokers and promoters are also affected: they may be required to perform identity checks, keep records, and they are personally subject to the duty to report suspected stolen goods under section 15. Section 15 also grants employees the power (but not the obligation) to arrest and detain a person offering suspected stolen goods and to seize the goods. The Commissioner of Police is directly empowered under the Act: the Commissioner may object to a person commencing business (section 4), may delegate functions to police officers (section 5), and police as a whole receive extensive powers of entry, inspection, and arrest under section 17. Courts of petty sessions constituted by a magistrate are given jurisdiction to hear objections (section 6) and ownership disputes (section 18). Persons who sell or supply goods to a second-hand dealer or pawnbroker are affected by the requirement under section 9 that they produce documentary proof of identity, and by section 19 which makes it an offence to fail to give a correct name and address. The Act also has significant implications for directors of body corporates that operate as second-hand dealers or pawnbrokers: section 22 imposes personal criminal liability on each director for an offence committed by the body corporate unless the director proves that he or she could not, by the exercise of reasonable diligence, have prevented the commission of the offence. This reverse-onus provision places a heavy compliance burden on directors. Individuals who claim to be entitled to possession of goods held by a second-hand dealer or pawnbroker may invoke the dispute resolution mechanism of section 18, which provides a statutory avenue to recover goods or their value. Finally, the Act may affect persons attending second-hand goods markets to sell goods: they may be required by a police officer to state their full name and address under section 17(2)(c), and refusal or false statements are offences.

The Act imposes a comprehensive set of duties on second-hand dealers, pawnbrokers and promoters, balanced by certain rights.

A person who proposes to carry on business as a second-hand dealer or pawnbroker must give at least one month’s notice in writing to the officer in charge of the nearest police station, specifying the person’s full name, address and date of birth, and the address of the premises or market (section 4(2)-(3)). A notice is required even if the person has already obtained a licence or approval from a local authority. Where a dealer or pawnbroker later wishes to change business address or add a new premises or market, further notice is required (section 8). Failure to give notice exposes the person to a fine of up to 50 penalty units plus a daily fine of up to 2 penalty units (sections 7, 8(2)).

A second-hand dealer or pawnbroker must not receive any goods in the course of business unless the person selling, supplying or pawning the goods produces documentary proof of identity showing the correct name and address (section 9(1)). Contravention carries a maximum fine of 50 penalty units. Records must be kept: for dealers, records of all second-hand goods bought or received that exceed a prescribed value, containing prescribed particulars; for pawnbrokers, records of all goods received in pawn, including dates of pawn and redemption (section 10). Failure without reasonable excuse is an offence punishable by up to 20 penalty units. The Minister may exempt persons or trades from this requirement by order published in the Gazette, subject to conditions.

A second-hand dealer must retain second-hand goods in the form received for seven days and must not dispose of them during that period (section 11(1)). Maximum penalty 20 penalty units. This duty does not derogate from any longer retention obligation the dealer may have under other laws. There are important exceptions: it does not apply to goods purchased at a public auction, goods purchased from another second-hand dealer, vehicles and vessels (section 11(2)). Also, the disposal prohibition does not apply if the dealer obtains a means of the relevant person, goods disposed of exceed in value such amount as may be prescribed, and the person to whom the goods are disposed is not someone whose usual place of residence is outside Australia (section 11(3)-(4)).

Promoters of second-hand goods markets must keep prescribed records of persons selling second-hand goods at the market and must require any person proposing to sell second-hand goods to produce documentary proof of identity (section 12). Offence: up to 20 penalty units.

Pawnbrokers must, at the time of taking goods in pawn, give a signed notice specifying the rate of interest, total interest payable on redemption, and the date before which goods may be redeemed (section 13). The notice must also state that goods will be forfeited on failure to redeem, that the owner is entitled on demand to the balance of sale proceeds, and any other prescribed matters. Failure gives a maximum fine of 5 penalty units. The redemption period is six months or such longer period as agreed, after which the goods are forfeited and may be sold (section 14(1)). Selling before expiry attracts a maximum fine of 10 penalty units (section 14(2)). For forfeited goods above a prescribed value, the pawnbroker must sell them by auction, give at least 14 days’ notice by certified post to the person entitled to redeem, and keep a record (section 14(3)). The former owner may recover any surplus proceeds as a debt, and failure to pay on demand within the prescribed period is an offence (maximum 10 penalty units) without limiting civil liability.

If a second-hand dealer, pawnbroker or employee has reasonable cause to suspect that goods offered are stolen, they must immediately notify a police officer (section 15(1)(a)). They may also arrest and detain the person offering the goods and seize the goods (section 15(1)(b)), and must take necessary action to deliver them into police custody as soon as practicable (section 15(2)). Failure to notify is an offence (maximum 10 penalty units).

A police officer may serve a notice on a second-hand dealer or pawnbroker suspecting goods in their possession may be stolen, prohibiting dealing with the goods for 21 days (renewable once) (section 16). Non-compliance carries a maximum fine of 20 penalty units.

Police have powers to enter and inspect premises of dealers, pawnbrokers, promoters, and second-hand goods markets at any reasonable time, require production of goods and records, and require persons at markets to state their name and address (section 17). Refusal or false statements are offences (maximum 10 penalty units). Police may arrest without warrant a person in a dealer’s or pawnbroker’s place of business if they have reasonable grounds to believe the person has committed or is committing an offence under the Act and the person refuses to give their name and address or gives a false name or address (section 17(5)).

A person claiming entitlement to goods in the possession of a second-hand dealer or pawnbroker may apply to a court of petty sessions for an order for delivery or payment of the value assessed by the court (section 18). The court must be satisfied by the supporting evidence that the applicant is entitled to possession; otherwise it must dismiss the application. The order takes effect 21 days after service and is enforceable as a judgment of the Magistrates Court (Civil Division). After application is served, the dealer or pawnbroker must not alter or dispose of the goods; doing so is an offence with a maximum fine of 50 penalty units, without limiting civil liability.

The Act creates a series of summary offences, each with a maximum fine expressed in penalty units. At the date of the Act’s operation a penalty unit is defined under the relevant legislation (typically around $100-$200, but the Act itself does not define the value; reference to the applicable penalty unit legislation is necessary). The most severe penalties attach to carrying on business without giving the required notice: a maximum fine of 50 penalty units plus a daily fine of up to 2 penalty units for each day the business continues (sections 7, 8(2), 20(2)). A similar penalty applies to carrying on business after service of a notice of objection and before the hearing (section 7(b)), and during a disqualification period ordered by a court (section 7(c)). Disposing of or altering goods after an ownership application has been served under section 18 attracts a maximum fine of 50 penalty units. Failure to verify identity when receiving goods attracts a maximum fine of 50 penalty units. Less serious offences, such as failure to keep records (section 10(4)), failure to retain goods for seven days (section 11(1)), promoter record-keeping failures (section 12(2)), failure to comply with a police notice (section 16(4)), and failure to notify suspected stolen goods (section 15(3)), carry maximum fines of 20 or 10 penalty units. The lowest penalty is 5 penalty units for a pawnbroker who fails to give the required notice at the time of taking goods in pawn (section 13(3)).

Enforcement is primarily by way of summary conviction before a court of petty sessions. The Act also empowers the court to impose a disqualification order prohibiting the person from carrying on the business of a second-hand dealer or pawnbroker for a period of not less than one year at the hearing of an objection under section 6(3), or for such period as the court thinks fit upon conviction for an offence under the Act or an offence involving dishonesty under section 20(1). Section 17(5) provides a power of warrantless arrest in a dealer’s or pawnbroker’s place of business where the police officer believes an offence under the Act is being or has been committed and the person refuses to give their name and address or gives a false response. Section 22 extends criminal liability to directors of body corporates: each director is guilty of the same offence as the body corporate unless the director proves that he or she could not, by the exercise of reasonable diligence, have prevented the commission of the offence. This reverses the usual evidentiary burden.

The dispute resolution mechanism under section 18 also has a coercive effect: a court order for delivery of goods or payment of their value takes effect 21 days after service and is enforced as a judgment of the Magistrates Court (Civil Division). The Act preserves civil liability: a conviction under section 14(2) or (5) (sale before redemption or failure to pay surplus) does not limit the civil liability of the convicted person to the owner (section 14(6)); similarly, a conviction under section 18(7) (altering or disposing of goods after application) does not limit civil liability under any order made under section 18(5) (section 18(8)).

The Act expressly repeals the Pawnbrokers Act 1857 and the Second-hand Dealers Act 1905 (section 24), consolidating the regulation of these activities into a single statute. It preserves powers under other legislation: section 11(2)(a) provides that the seven-day retention obligation does not derogate from any obligation a second-hand dealer might otherwise have to keep goods for a longer period after receipt. This would permit longer retention periods required, for example, under police powers or other regulatory schemes. The definition of “second-hand dealer” excludes real estate agents and general auctioneers within the meaning of the Property Agents and Land Transactions Act 2016 (section 3(1)), so those professionals are not subject to this Act when acting in those capacities. References to “vehicle” and “vessel” incorporate definitions from the Vehicle and Traffic Act 1999 and the Marine Act 1976 respectively, ensuring consistency with other transport-related legislation. Service of notices and orders under sections 4(7), 6(4) and 18(6) is governed by the Justices Act 1959. Section 4(3) states that the notice required under section 4(2) is required whether or not the person has been granted a licence or approval by a local authority in respect of the proposed business, indicating that local government planning or licensing requirements operate independently and concurrently. The Minister may exempt persons, classes of persons or trades from the operation of the Act (section 3(3)) and from the record-keeping requirements of section 10 (section 10(3)), by order published in the Gazette. The administration of the Act is assigned to the Minister for Justice and the Department of Justice until an order under the Administrative Arrangements Act 1990 provides otherwise (section 25). The Governor may make regulations for the purposes of the Act, particularly regarding records to be kept by second-hand dealers, pawnbrokers and promoters (section 23). The Act does not oust the general criminal law relating to theft, handling stolen goods, or fraud; it creates additional regulatory offences that coexist with those broader offences.

The text of the Act as provided includes amendment notations indicating several amendments. Section 3(1) was amended by No. 76 of 2003 (Schedule 1, applied 1 January 2004), although the specific change is not detailed in the printed text. The definition of “second-hand dealer” was amended by No. 75 of 2005 (Schedule 1, applied 1 December 2006) and again by No. 58 of 2016 (Schedule 4, applied 1 April 2017), specifically in relation to the exclusion of real estate agents and general auctioneers. The definitions of “vehicle” and “vessel” were amended by No. 90 of 1999 (Schedule 1, applied 14 August 2000). Section 18(6) was amended by No. 32 of 1995 (Schedule 1, applied 30 March 1998) to provide that an order under section 18(5)(a) or (b) is taken to be a judgment of the Magistrates Court (Civil Division) and may be enforced accordingly. The Act itself commenced on a day to be proclaimed, but the amendment history shows that various amendments have taken effect at different dates, indicating that the Act has been operational for many years. The Act’s commencement provision (section 2) indicates it was not proclaimed immediately upon assent and required a subsequent proclamation to bring it into force. The source does not indicate whether the Act as originally enacted has been subsequently amended beyond the notations shown, but the amendments listed affect core definitions and enforcement provisions, reflecting ongoing legislative attention to the regulation of second-hand dealing and pawnbroking.

The source text of the Act does not mention any specific cases, judicial decisions, or litigation history. However, it is relevant to note that the Act creates several mechanisms that are likely to generate litigation: the objection process under sections 4-6, where a person may contest the Commissioner of Police’s objection or a court’s prohibition order; the ownership dispute resolution process under section 18, which provides a statutory route for a person claiming goods to apply to a court of petty sessions for delivery or payment; and the criminal proceedings for the various summary offences, which may be heard and determined by magistrates. The provision that orders under section 18 are enforceable as a judgment of the Magistrates Court (Civil Division) (as amended in 1995) indicates that civil enforcement proceedings may arise. The reverse-onus director liability provision in section 22 may also be the subject of judicial consideration. The evidentiary presumption in section 21, which deems a person to be carrying on business as a second-hand dealer based on sales frequency, could be challenged in criminal proceedings. In the absence of named cases in the source, practitioners should conduct their own research to identify any relevant appellate decisions that have interpreted provisions of this Act, particularly regarding the meaning of “fit and proper person”, the scope of “reasonable cause to suspect” stolen goods, and the circumstances in which a court may prohibit a person from carrying on business.

Several provisions in the Act contain traps for the unwary. Section 4(2) requires at least one month’s notice before commencing business, but the Commissioner of Police has 28 days after receipt of the notice to file an objection (section 4(5)). This means a person who begins business immediately after giving notice risks committing an offence if an objection is filed before the month expires. The Act does not allow the person to commence before the objection is resolved; section 7(b) makes it an offence to carry on business after service of a notice of objection and before the hearing.

The duty to obtain proof of identity under section 9 applies to “any goods” received in the course of business, not just those above a value threshold. A dealer who accepts a low-value item without checking identification commits an offence.

The seven-day retention rule under section 11(1) has exceptions, but there is an additional trap: subsection (3) allows disposal within seven days if the dealer obtains identity documents from the recipient, keeps prescribed records for goods above a prescribed value, and does not dispose to a person whose usual place of residence is outside Australia (subsection (4)). A dealer who disposes to an overseas buyer within seven days commits an offence even if identity and records are obtained.

Section 11(2) exempts vehicles and vessels from the seven-day retention requirement. However, a dealer who receives a vehicle or vessel must still comply with all other duties, including identity checks and record-keeping.

The pawnbroker redemption provisions contain a strict timeline: the default redemption period is exactly six months, and goods may not be sold before that date. Selling one day early is an offence (section 14(2)). For goods above a prescribed value, the pawnbroker must sell by auction, give 14 days’ notice by certified post, and keep a record (section 14(3)). The pawnbroker must pay the surplus proceeds to the former owner on demand within the prescribed period; failure is an offence (section 14(5)). The Act does not define the prescribed period, so regulations must be consulted.

Section 15 imposes a mandatory duty to notify police immediately if there is reasonable cause to suspect goods are stolen. This duty applies even if the dealer or pawnbroker is uncertain. The power to arrest and detain the person offering the goods is permissive, not mandatory, but the duty to notify is absolute.

The police power under section 17(2) to enter a second-hand goods market and inspect goods “apparently in the possession, or under the control, of a person who is attending the premises or market to sell goods or leaving the premises or market after attending it to sell goods” is broad and permits searches of individuals, not just stalls. This power may be exercised without a warrant.

Section 18(7) prohibits altering the form of goods or disposing of them after an application for delivery has been served. This applies even if the application is later dismissed. A dealer who sells goods after service but before the court order risks a fine of up to 50 penalty units plus civil liability.

The evidentiary presumption in section 21 can catch occasional sellers who sell goods on six separate days within 12 months. The presumption can only be rebutted by proof to the contrary. A person who holds six garage sales within a year may be presumed to be a second-hand dealer.

Section 22 imposes personal criminal liability on directors for offences by the body corporate, with a reverse onus. Directors must actively ensure compliance, not merely rely on delegation.

A person proposing to start business as a second-hand dealer or pawnbroker should give written notice to the officer in charge of the police station nearest to the intended premises or market at least one month before commencing operations. The notice must state the person’s full name, address and date of birth, and the address of the premises or market. If there are multiple premises or markets, notice to the nearest station for one is sufficient. The person should not commence business until the month has elapsed without a notice of objection, or, if an objection is filed, until the objection is heard and resolved in their favour. A court may prohibit the person for not less than one year if it finds it not in the public interest for the person to carry on business.

For any change of business address, a further notice must be given before operating at the new location (section 8). Ongoing compliance requires obtaining documentary proof of identity from every person who sells, supplies or pawns goods. The dealer or pawnbroker must sight the document and satisfy themselves that it shows the correct name and address; merely asking is insufficient. Records must be kept of all second-hand goods bought or received that exceed the prescribed value, containing the prescribed particulars. Pawnbrokers must keep records of all goods pawned, including the date of pawn and date of redemption. The seven-day retention rule must be observed for most second-hand goods: the goods must not be altered or disposed of within seven days of receipt. For pawnbrokers, a signed notice must be given at the time of pawning, specifying interest rate, total interest, redemption date, forfeiture consequences, and the right to surplus proceeds. The redemption period must be at least six months. The pawnbroker must not sell or dispose of goods before the expiry of the redemption period. When selling forfeited goods above a prescribed value, they must sell by auction, give at least 14 days written notice by certified post to the person entitled to redeem, and keep a record. Surplus proceeds must be paid on demand within the prescribed period.

If at any time a dealer, pawnbroker or employee has reasonable cause to suspect that goods offered are stolen, they must immediately notify a police officer. They may also arrest and detain the person and seize the goods, but must deliver both to a police officer as soon as practicable. Promoters of second-hand goods markets must keep records of persons selling second-hand goods and verify their identity. Cooperating with police officers who attend to inspect goods or records is mandatory; obstruction or giving false information is an offence. Where a police officer serves a notice under section 16, the dealer must not alter or dispose of the specified goods for 21 days (renewable once). Directors of corporate dealers or pawnbrokers should ensure that systems are in place to verify identity, maintain records, comply with retention periods, and train staff on stolen goods reporting obligations. Directors should document their oversight to be able to prove that they could not have prevented an offence by the body corporate with the exercise of reasonable diligence. Anyone receiving an application under section 18 for the delivery of goods must not alter or dispose of the goods until the court order is made and takes effect (21 days after service). A person claiming ownership may apply to a court of petty sessions; the dealer or pawnbroker should respond and may adduce evidence.