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This is a Bill, not an Act. For current law, see the Acts databases.
JUSTICE AND COMMUNITY SAFETY LEGISLATION AMENDMENT BILL 2002
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and
Community Safety Legislation Amendment Bill 2002
Contents
Page
Part
1.1 Pawnbrokers Act 1902 54
Part 1.2 Second-hand Dealers Act
1906 67
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Justice and Community
Safety Legislation Amendment Bill 2002
A Bill for
An Act to amend the law relating to justice and community safety, and for
other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Justice and Community Safety Legislation Amendment Act
2002.
(1) Parts 2, 4, 5 and 7 commence on the day after the Act’s
notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act 2001, s 75).
(2) The remaining provisions commence on the 28th day after the
notification day.
Part
2 Administration and Probate Act
1929
This part amends the Administration and Probate Act 1929.
4 Executors
etc may be allowed commissionSection
70 (2)
substitute
(2) A commission or percentage allowed by the registrar under subsection
(1) must not exceed 5% (plus any GST payable in relation to the commission or
percentage).
5 Limits
of professional charges for obtaining probate
etcSection 71 (3)
substitute
(3) The following are not included in the amounts mentioned in subsections
(1) and (2) and must be allowed and paid out of the estate:
(a) necessary disbursements;
(b) GST payable for the supply of the services;
(c) the charges for preparing and passing the statement for duty or the
payment of duty.
This part amends the Agents Act 1968.
substitute
12 Ending of appointments
The Minister may end the appointment of a member—
(a) if the member becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with creditors or
makes an assignment of remuneration for their benefit; or
(b) for misbehaviour; or
(c) for physical or mental incapacity; or
(d) if the member is convicted in Australia of an offence the maximum
punishment for which is imprisonment for at least 1 year; or
(e) if the member is absent, except on leave granted by the chairperson,
from 3 consecutive meetings of the board; or
(f) if the member, without reasonable excuse, contravenes section 16A
(Disclosure of interests).
Note A person’s appointment also ends if the person resigns
(see Legislation Act 2001, s 210)
8 Meetings
of the boardSection 16
(8)
omit
insert
16A Disclosure of interests
(1) A member who has a relevant interest in an issue being considered, or
about to be considered, by the board must, as soon as practicable after the
relevant facts have come to the member’s knowledge, disclose the nature of
the interest at a meeting of the board.
(2) The disclosure must be recorded in the board’s minutes and,
unless the board otherwise decides, the member must not—
(a) be present when the board considers the issue; or
(b) take part in a decision of the board on the issue.
(3) Any other member who also has a relevant interest in the issue must
not—
(a) be present when the board is considering its decision under subsection
(2); or
(b) take part in making the decision.
(4) Within 7 days after the end of each financial year, the chairperson
must give the Minister a statement of any disclosure of interest made under this
section during the financial year.
(5) The Minister must give a copy of a statement received under subsection
(4) to the relevant committee of the Legislative Assembly within 14 days after
the day the Minister receives the statement.
(6) In subsection (5):
relevant committee means—
(a) a standing committee of the Legislative Assembly nominated by the
Speaker for subsection (5); or
(b) if no nomination under paragraph (a) is in effect—the standing
committee of the Legislative Assembly responsible for the scrutiny of public
accounts.
relevant interest means—
(a) a direct or indirect financial interest; or
(b) a direct or indirect interest of any other kind if the interest could
conflict with the proper exercise of the member’s functions in relation to
the board’s consideration of an issue.
10 Duties
of board in relation to unclaimed moneys in trust
accountSection 57D
omit
registrar-general
substitute
public trustee
11 Application
to recover moneysSection
57E
omit
registrar-general
substitute
public trustee
12 Determination
of applicationsSection
57F
omit
registrar-general
substitute
public trustee
Part
4 Children and Young People Act
1999
This part amends the Children and Young People Act 1999.
substitute
52 Arrangement of business of Childrens
Court
The Chief Magistrate is responsible for ensuring the orderly and prompt
discharge of the business of the Childrens Court and accordingly may, subject to
appropriate and practicable consultation with the magistrates, make arrangements
about—
(a) the magistrate who is to be the Childrens Court Magistrate;
and
(b) the assignment under section 51 of magistrates to act as Childrens
Court Magistrate; and
(c) the assignment under section 53A of magistrates to deal with
matters.
53 Childrens Court
(1) The Magistrates Court is known as the Childrens Court when it is
constituted by the Childrens Court Magistrate exercising the jurisdiction given
under section 54.
(2) The Childrens Court Magistrate is responsible for dealing with all
matters within the jurisdiction of the Childrens Court.
53A Assignment of other magistrates to deal with
Childrens Court matters
(1) If the Childrens Court Magistrate is unable to deal with a matter
because of a conflict of interest, or a perceived conflict of interest, the
Chief Magistrate may assign another magistrate to deal with the
matter.
(2) Also, if the Childrens Court Magistrate is unable to deal with a
matter or matters without a delay that is likely to prejudice the wellbeing of a
child or young person, the Chief Magistrate may assign another magistrate to
deal with the matter or matters.
(3) A magistrate may be assigned under subsection (2) only if the
Chief Magistrate is satisfied the assignment is necessary having regard
to—
(a) the circumstances mentioned in that subsection; and
(b) the best interests principle; and
(c) the degree of urgency of the matter or matters to be dealt with by the
assigned magistrate; and
(d) the views (if any) of the Childrens Court Magistrate on the proposed
assignment.
(4) The Magistrates Court is also known as the Childrens Court when it is
constituted by a magistrate assigned under this section who is exercising the
jurisdiction given under section 54.
(5) This section does not create a right in relation to the assignment of
a matter under this section.
(6) Without limiting subsection (5), the decision to assign or not to
assign a matter under this section—
(a) may not be challenged or called into question in any court;
and
(b) is not subject to prohibition, mandamus or injunction in any
court.
(7) This section is in addition to, and does not limit, section 51
(Restriction on assignment to act as Childrens Court Magistrate).
Part
5 Consumer Credit (Administration) Act
1996
This part amends the Consumer Credit (Administration) Act
1996.
16 CommissionsSection
35 (2)
substitute
(2) A finance broker must not demand, receive or accept any commission for
a finance broking transaction in excess of the maximum prescribed by the
regulations (plus any GST payable in relation to the commission).
Maximum penalty: 50 penalty units.
Part
6 Crown Proceedings Act
1992
This part amends the Crown Proceedings Act 1992.
substitute
13 Enforcement of judgments against Territory
Crown
(1) A writ or similar process must not be issued out of any court to
enforce a judgment against the Territory Crown.
(2) If—
(a) a final judgment is given against the Territory Crown; and
(b) the judgment has not been paid; and
(c) the judgment has not been appealed against or stayed (or, if it has,
the appeal has been disallowed or discontinued or the stay has been removed);
and
(d) at least 21 days have elapsed since the judgment was given;
the party in whose favour the judgment was given may give a copy of the
judgment to the Treasurer.
(3) If the Treasurer receives a copy of a final judgment under
subsection (2), the Treasurer must give directions about how the judgment
is to be paid unless the Treasurer is satisfied that the judgment can be, or has
been, paid in another way.
(4) A direction under this section that requires payment of public money
of the Territory operates to authorise payment of the money.
(5) The Financial Management Act 1996, section 6 (Necessity for
appropriation) does not apply to a payment made in accordance with a direction
under this section.
(6) A direction under this section that requires payment of an amount from
the funds of a Territory authority or instrumentality provides sufficient
authority for the payment.
(7) In this section:
Territory Crown—see section 12 (3).
13A Enforcement of judgments against Crown in right
of a State or another Territory
(1) A writ or similar process must not be issued out of any ACT court to
enforce a judgment against the Crown in right of a State or another
Territory.
(2) If a final judgment is given by an ACT court against the Crown in
right of a State or another Territory, the court must give a copy of the
judgment to the Governor or Administrator of the State or Territory.
insert
Note 1 The Legislation Act 2001 contains definitions and
other provisions relevant to this Act.
Note 2 In particular, the Legislation Act 2001, dict, pt 1,
defines the following terms:
• Territory authority
• Territory instrumentality
Part
7 Legal Practitioners Act
1970
This part amends the Legal Practitioners Act 1970.
21 Issue
of certificates—generallySection 26,
new note
insert
Note Section 147H (1) also contains restrictions on the issue
of practising certificates to applicants required to comply with s 147E
(Solicitor to have fidelity cover for regulated mortgages).
22 SuspensionSection
36, new note
insert
Note Section 147H (2) also contains provisions allowing the
suspension of practising certificates of solicitors required to comply with s
147E (Solicitor to have fidelity cover for regulated mortgages).
23 Statutory
interest accountSection
128 (4) (d) and (e)
substitute
(d) to pay or reimburse the amount of any costs and disbursements incurred
by the law society in relation to—
(i) an inquiry before the professional conduct board or proceedings before
the Supreme Court under part 8 (including deciding whether an inquiry should be
made or a proceeding should be instituted); or
(ii) other action taken before the court in relation to a legal
practitioner or an unqualified person practising as a legal practitioner
(including deciding whether such action should be taken); and
(e) to pay or reimburse the amount of any costs and disbursements incurred
by the law society in relation to—
(i) the law society making an objection to an application for admission or
enrolment (including deciding whether an objection should be made); or
(ii) the law society assisting the court in relation to an application for
admission or enrolment; and
insert
Part 12A Mortgage practices and managed
investment schemes
Division
12A.1 Preliminary
147A Definitions for pt 12A
In this part:
ASIC exemption means an exemption from the Corporations Act
given by the Australian Securities and Investments Commission under that
Act.
approved policy of fidelity insurance—see section 147E
(Solicitor to have fidelity cover for regulated mortgages).
associate, in relation to a solicitor—see section
113.
borrower means a person who borrows from a lender or
contributor money that is secured by a mortgage.
client, of a solicitor, means a person who—
(a) receives the solicitor’s advice about investment in a regulated
mortgage or managed investment scheme; or
(b) gives the solicitor instructions to use money for a regulated mortgage
or managed investment scheme.
contributor means a person who lends, or proposes to lend,
money that is secured by a contributory mortgage arranged by a
solicitor.
contributory mortgage means a mortgage to secure money lent
by 2 or more contributors as tenants in common or joint tenants, whether or not
the mortgagee is a person who holds the mortgage in trust for the
contributors.
financial institution means—
(a) an authorised deposit-taking institution; or
(b) a friendly society under the Life Insurance Act 1995 (Cwlth);
or
(c) a trustee company mentioned in the Trustee Companies
Act 1947, schedule 1; or
(d) a property trust or other corporation established by or in respect of
a church that may invest money in accordance with an Act; or
(e) an entity prescribed under the regulations for this
definition.
lender means a person who lends, or proposes to lend, a
borrower money that is secured by a mortgage.
managed investment scheme—see the Corporations Act,
section 9 (Dictionary).
member, of a managed investment scheme—see the
Corporations Act, section 9 (Dictionary).
mortgage means an instrument under which an interest in real
property is charged, encumbered or transferred as security for the payment or
repayment of money, and includes—
(a) an instrument prescribed under the regulations for this definition;
and
(b) a proposed mortgage.
professional misconduct—see section 37.
regulated mortgage means a mortgage (including a contributory
mortgage) other than—
(a) a mortgage under which the lender is a financial institution;
or
(b) a mortgage under which the lender or contributors nominate the
borrower, but only if the borrower is not a person introduced to the lender or
contributors by the solicitor who acts for the lender or contributors or
by—
(i) an associate of the solicitor; or
(ii) an agent of the solicitor; or
(iii) a person engaged by the solicitor to introduce the borrower to the
lender or contributors; or
(c) a mortgage prescribed under the regulations as exempt from this
definition.
responsible entity—see the Corporations Act, section 9
(Dictionary).
run-out mortgage means a regulated mortgage entered into
before the date this part commences, that is not—
(a) a Territory regulated mortgage; or
(b) a mortgage that forms part of a managed investment scheme that is
required to be operated by a responsible entity under the Corporations Act (as
modified by any ASIC exemption or the regulations under that Act).
solicitor—see part 11.
Territory regulated mortgage—a regulated mortgage is a
Territory regulated mortgage in relation to a solicitor
if—
(a) the solicitor’s practice is a Territory regulated mortgage
practice; and
(b) the regulated mortgage does not form part of a managed investment
scheme or, if it does form part of a managed investment scheme, the managed
investment scheme is not required to be operated by a responsible entity under
the Corporations Act (as modified by any ASIC exemption or the regulations under
that Act).
Territory regulated mortgage practice means a
solicitor’s practice for which a nomination under section 147C is in
force.
Division 12A.2 Mortgage
practices
147B Conduct of mortgage
practices
(1) A solicitor must not, in the solicitor’s capacity as solicitor
for a lender or contributor, negotiate the making of or act in relation to a
regulated mortgage unless—
(a) the mortgage is a Territory regulated mortgage; or
(b) the mortgage is a run-out mortgage; or
(c) the mortgage forms part of a managed investment scheme that is
operated by a responsible entity.
(2) A solicitor must not, in the solicitor’s capacity as solicitor
for a lender or contributor, negotiate the making of or act in relation to a
regulated mortgage except in accordance with—
(a) the Corporations Act, or that Act as modified by any ASIC exemption or
the regulations under that Act; and
(b) this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
(3) A solicitor must not, in the solicitor’s capacity as solicitor
for a lender or contributor, negotiate the making of or act in relation to a
regulated mortgage that forms part of a managed investment scheme unless the
solicitor complies with any ASIC exemption that applies to managed investment
schemes that—
(a) have more than 20 members; and
(b) are operated under the supervision of the law society in accordance
with that exemption.
(4) Subsection (3) applies even if the regulated mortgage forms part of a
managed investment scheme that has no more than 20 members.
(5) Subsection (3) does not apply if the managed investment scheme is
operated by a responsible entity.
(6) A solicitor who knows that an associate has contravened
subsection (1), (2) or (3) must give written notice to the law society of
that fact within 21 days after becoming aware of the contravention.
(7) A solicitor who contravenes this section commits professional
misconduct.
Note The law society or the council may take action under division
8.3 (Conciliation) or division 8.4 (Complaints) in relation to professional
misconduct by a solicitor.
147C Nomination of practice as Territory regulated
mortgage practice
(1) A solicitor who, in the solicitor’s capacity as solicitor for a
lender or contributor, negotiates the making of or acts in relation to a
regulated mortgage, or who proposes to do so, may, by written notice given to
the law society, nominate the solicitor’s practice as a Territory
regulated mortgage practice.
(2) A nomination may, if the law society approves, be made for a solicitor
by another solicitor.
Example
A nomination could be made by a solicitor on behalf of members of a firm of
solicitors.
(3) A nomination of a solicitor’s practice as a Territory regulated
mortgage practice takes effect on the day written notice of the nomination is
given to the law society.
(4) A nomination ceases to be in force in relation to a solicitor
if—
(a) the solicitor revokes the nomination by written notice given to the
law society; or
(b) the solicitor’s practising certificate ceases to be in force;
or
(c) the law society, by written notice given to the solicitor, rejects the
nomination of the solicitor’s practice.
(5) A nomination must include the information required under the
regulations or the rules of court.
(6) In this section:
interstate legal practitioner—see section
191A.
practising certificate, for an interstate legal
practitioner—see section 191A.
147D Law society to be notified of Territory
regulated mortgages
(1) A solicitor who, in the solicitor’s capacity as solicitor for a
lender or contributor, negotiates the making of or acts in relation to a
Territory regulated mortgage must give the law society written notice of that
fact in accordance with the regulations or rules of court.
Maximum penalty: 20 penalty units.
(2) A solicitor who contravenes this section also commits professional
misconduct.
147E Solicitor to have fidelity cover for regulated
mortgages
(1) A solicitor who, in the solicitor’s capacity as solicitor for a
lender or contributor, negotiates the making of or acts in relation to a
regulated mortgage must ensure that an approved policy of fidelity insurance is
in force in relation to the solicitor for the purpose of compensating people who
suffer financial loss because of any dishonest failure to pay money payable
under the mortgage.
(2) A policy of fidelity insurance is an approved policy of fidelity
insurance if:
(a) the insurer and the terms of the policy have been approved for this
division by the Attorney-General by written order given to the law society;
and
(b) any conditions imposed by the order are complied with.
(3) A solicitor commits an offence if the solicitor, in the
solicitor’s capacity as solicitor for a lender or contributor, negotiates
the making of or act in relation to a regulated mortgage without ensuring that
an approved policy of fidelity insurance is in force in relation to the
solicitor in accordance with this section.
Maximum penalty: 20 penalty units.
(4) A solicitor who contravenes subsection (3) also commits professional
misconduct.
(5) This section does not apply in relation to a regulated mortgage that
forms part of a managed investment scheme operated by a responsible
entity.
Note For transitional arrangements applying to mortgages entered
into before the commencement of this section, see div 12A.4.
147F Bar on claims against fidelity fund relating to
regulated mortgages
(1) A lender or contributor under a regulated mortgage is not entitled to
claim against the fidelity fund to obtain compensation for a financial loss if
the claim relates to a regulated mortgage for which a solicitor is required to
have fidelity insurance under section 147E.
(2) Subsection (1) does not apply if the solicitor who acts for the lender
or contributor contravenes section 147E in relation to the mortgage.
(3) However, any claim on the fidelity fund by a lender or contributor to
whom subsection (2) relates—
(a) is to be dealt with as if the solicitor had complied with
section 147E; and
(b) in particular, is subject to the same restrictions (including the
amount of any compensation payable) as would have applied to a claim under an
approved policy of fidelity insurance had such a policy had been in force in
relation to the solicitor in accordance with that section.
147G Notification of insurance arrangements for
regulated mortgages
(1) If a client entrusts money to a solicitor and the money, or part of
the money, is proposed to be advanced to a borrower for a regulated mortgage,
the solicitor must, within 7 days after the money is entrusted to the solicitor,
give the client written notice that—
(a) tells the client about the effect of section 147F; and
(b) includes details of the solicitor’s approved policy of fidelity
insurance.
(2) The solicitor must not advance any of the money to a borrower for a
regulated mortgage unless—
(a) the solicitor has given the client notice under subsection (1);
and
(b) after having been given the notice, the client has given the solicitor
written authority to advance money for the mortgage.
(3) A solicitor who contravenes this section commits professional
misconduct.
(4) A contravention of this section does not limit the operation of
section 147F.
(5) This section does not apply in relation to a regulated mortgage that
forms part of a managed investment scheme operated by a responsible
entity.
147H Failure to obtain fidelity insurance for
regulated mortgage
(1) The law society must not issue a practising certificate to an
applicant who is or will be required to comply with section 147E (Solicitor to
have fidelity cover for regulated mortgages) unless it is satisfied
that—
(a) an approved policy of fidelity insurance is, or will be, in force in
relation to the applicant; and
(b) the policy is, or will be, in force in relation to the applicant while
the applicant’s practising certificate is in force.
(2) The law society must suspend the practising certificate of a solicitor
who is required to comply with section 147E unless it is satisfied
that—
(a) an approved policy of fidelity insurance is in force in relation to
the solicitor; and
(b) the policy will remain in force in relation to the solicitor while the
solicitor’s practising certificate is in force.
(3) The law society must end the suspension of a solicitor’s
practising certificate under subsection (2) when it is satisfied of the matters
mentioned in subsection (2) (a) and (b) in relation to the
solicitor.
(4) The law society must suspend the entitlement under part 15A
(Interstate legal practitioners) to practise in the ACT of a solicitor
who is required to comply with section 147E unless it is satisfied
that—
(a) an approved policy of fidelity insurance is, or will be, in force in
relation to the solicitor; and
(b) the policy will not expire before the end of the solicitor’s
entitlement under part 15A to practise in the ACT.
(5) The law society must end the suspension of a solicitor’s
entitlement to practise under subsection (4) when it is satisfied of the matters
mentioned in subsection (4) (a) and (b) in relation to the
solicitor.
Division 12A.3 Managed investment
schemes
147I Involvement of solicitors in managed investment
schemes
(1) This part does not prevent a solicitor from carrying out any legal
work in relation to a managed investment scheme operated by a responsible
entity, or from having an interest in such a managed investment scheme or in the
responsible entity for such a managed investment scheme.
(2) However, if a client entrusts, or proposes to entrust, money to a
solicitor to be invested in a managed investment scheme operated by a
responsible entity, and the solicitor has a relevant interest in the managed
investment scheme, the solicitor must give the client written notice telling the
client that—
(a) the solicitor has an interest in the managed investment scheme;
and
(b) the operation of the managed investment scheme does not form part of
the solicitor’s practice; and
(c) there is no right to claim against the fidelity fund for a financial
loss arising from an investment in the managed investment scheme.
(3) The notice must include any other information required by the
regulations or the rules of court.
(4) The solicitor must not advance the money entrusted to the solicitor to
the responsible entity for the managed investment scheme or to anyone else
unless the client has been given the notice.
(5) A solicitor who knows that an associate has contravened
subsection (2), (3) or (4) must give written notice to the law society of
that fact within 21 days after becoming aware of the contravention.
(6) A solicitor who contravenes this section commits professional
misconduct.
(7) In this section:
legal work includes the work involved in preparing an
instrument that—
(a) is a will or other testamentary disposition; or
(b) creates, regulates or affects rights between parties (or purports to
do so); or
(c) affects real or personal property; or
(d) relates to a legal proceeding.
relevant interest—a solicitor has a relevant
interest in a managed investment scheme if the solicitor, or an
associate of the solicitor—
(a) is a director of or concerned in the management of the responsible
entity for the managed investment scheme; or
(b) is a shareholder in the responsible entity; or
(c) is taken to be an agent of the responsible entity under the
Corporations Act, chapter 5C; or
(d) receives any financial benefit from the managed investment scheme or
the responsible entity if a client of the solicitor invests in the managed
investment scheme; or
(e) has an interest prescribed under the regulations or the rules of court
in the managed investment scheme or the responsible entity.
147J Claims against fidelity fund relating to managed
investment schemes connected with solicitors
(1) This section applies to a person who entrusts money to a solicitor to
be invested in a managed investment scheme operated by a responsible entity if
the solicitor has a relevant interest in the scheme.
(2) The person is not entitled to make a claim against the fidelity fund
to obtain compensation for any financial loss arising from that investment if
the solicitor gave notice to the person in accordance with section 147I (2) and
(3).
(3) In this section:
relevant interest—see section 147I (7).
147K Transfer of mortgages to responsible
entity
(1) A solicitor who, in the solicitor’s capacity as solicitor for a
lender or contributor, is responsible for the administration of a regulated
mortgage must not transfer the mortgage to a responsible entity for a managed
investment scheme unless the lender or contributor has given the solicitor
written authority to transfer the mortgage to the responsible entity.
(2) A solicitor who contravenes this section commits professional
misconduct.
(3) In this section:
scheme property—see the Corporations Act, section 9
(Dictionary).
transfer a regulated mortgage to a responsible entity—a
solicitor transfers a regulated mortgage to a responsible entity
if the solicitor does anything that results in—
(a) a responsible entity for a managed investment scheme becoming the
holder or custodian of the regulated mortgage; or
(b) any money advanced in relation to the mortgage, or the property that
is charged or encumbered by the mortgage, becoming scheme property of a managed
investment scheme.
Division
12A.4 Miscellaneous
147L Law society may require information about
mortgage practices
(1) The law society may, by written notice, require a solicitor to provide
information to the law society about any of the following:
(a) whether the solicitor, an associate of the solicitor or a person
engaged by the solicitor negotiates the making of or acts in relation to
regulated mortgages or has done so in the past;
(b) details of regulated mortgages that continue to have effect;
(c) whether the solicitor proposes:
(i) to nominate the solicitor’s practice as a Territory regulated
mortgage practice; or
(ii) to transfer responsibility for any regulated mortgage; or
(iii) to take no further action in relation to any regulated
mortgage;
(d) any other information, relating to regulated mortgages, prescribed
under the regulations or rules of court.
(2) A solicitor who contravenes a notice under this section commits
professional misconduct.
147M Indemnity insurance
This part does not affect the terms of any policy of professional indemnity
insurance approved under section 76.
147N Approved forms
(1) The Minister may, in writing, approve forms for this part.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for the purpose.
Note For other provisions about forms, see Legislation Act
2001, s 255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
147O Regulations and rules relating to pt
12A
(1) The regulations and, subject to the regulations, the rules of court
may make provision in relation to—
(a) regulated mortgages, including run-out mortgages; and
(b) the involvement of solicitors in managed investment schemes.
(2) In particular, the regulations and the rules of court may make
provision about, or for the purpose of, the following:
(a) the making of and acting in relation to regulated mortgages by
solicitors;
(b) how the law society is to be given any notice or other information
under this part;
(c) how notices are to be given under this part;
(d) ensuring that the operation of a managed investment scheme by a
responsible entity is kept separate from a solicitor’s practice;
(e) ensuring that clients of a solicitor are aware that the operation of a
managed investment scheme does not form part of the solicitor’s
practice.
Division 12A.5 Transitional
arrangements—pre-existing mortgages
147P Meaning of commencement
date
In this division:
commencement date means the date this part
commences.
147Q Part extends to pre-existing
mortgages
Except as provided by this division, this part applies to mortgages that
were entered into before the commencement date.
147R Requirement to obtain fidelity insurance for
pre-existing mortgages
(1) Section 147E (Solicitor to have fidelity cover for regulated
mortgages) does not apply in relation to a regulated mortgage that was entered
into before the commencement date.
(2) Despite subsection (1), section 147E applies to a solicitor if money
entrusted to the solicitor by a client (whether before, on or after the
commencement date) is advanced or proposed to be advanced on or after the
commencement date to a borrower for a regulated mortgage entered into before the
commencement date.
(3) If subsection (2) applies—
(a) the solicitor must ensure that a policy of fidelity insurance is in
force in relation to the advance in accordance with section 147E, and
comply with section 147G (Notification of insurance arrangements for regulated
mortgages); and
(b) section 147F (Bar on claims against fidelity fund relating to
regulated mortgages) applies to any claim against the fidelity fund so far as it
relates to such an advance; and
(c) for the application of section 147F to the advance, the date that
money is entrusted to the solicitor by the client is taken to be the later
of—
(i) the commencement date; and
(ii) the date the money is entrusted to the solicitor.
(4) This section is subject to section 147T (Substitution of lender or
contributor under run-out mortgage).
147S No further action to be taken in relation to
run-out mortgages
(1) A solicitor must not, in the solicitor’s capacity as solicitor
for a lender or contributor—
(a) advance any money entrusted to the solicitor to a borrower for a
run-out mortgage; or
(b) do anything for the purpose of extending the term of a run-out
mortgage; or
(c) accept any money from a client for the purpose of advancing money to a
borrower for a run-out mortgage; or
(d) do anything else in relation to a run-out mortgage in contravention of
the regulations or the rules of court relating to run-out mortgages.
(2) A solicitor who contravenes this section commits professional
misconduct.
147T Substitution of lender or contributor under
run-out mortgage
(1) Despite section 147S, a solicitor may accept money from a client, and
do other work that is necessary solely for the purpose of substituting a lender
or contributor under a run-out mortgage.
(2) Section 147E (Solicitor to have fidelity cover for regulated
mortgages) does not apply in relation to anything done by a solicitor under
subsection (1) and, accordingly, the solicitor is not required to obtain
fidelity insurance to compensate the substitute lender or contributor for any
financial loss.
(3) If a client entrusts or proposes to entrust money to a solicitor for
the purpose of substituting a lender or contributor under a run-out mortgage,
the solicitor must give the client written notice telling the
client—
(a) about the effect of section 147U; and
(b) that the solicitor is not required to have fidelity insurance in
relation to a run-out mortgage.
(4) The solicitor must not advance the money to a borrower for a run-out
mortgage unless the solicitor has given the client notice under subsection
(3).
(5) A solicitor who contravenes this section commits professional
misconduct.
147U No claims against fidelity fund by substitute
lenders
(1) This section applies to a person who entrusts money to a solicitor to
become a lender or contributor under a run-out mortgage after the commencement
date.
(2) The person is not entitled to make a claim against the fidelity fund
to obtain compensation for any financial loss in relation to that mortgage if
the solicitor gave notice to the person in accordance with section 147T
(3).
147V Expiry of div 12A.5
(1) This division expires 3 years after it commences.
(2) This division is a law to which the Legislation Act 2001,
section 88 (Repeal does not end transitional or validating effect etc)
applies.
25 Interstate
legal practitioner may practise in this
jurisdictionSection 191D (2),
note
substitute
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act 2001, s 104).
Note 2 Section 147H (3) contains provisions allowing the
suspension of entitlement under this part to practise in the ACT of solicitors
required to comply with s 147E (Solicitor to have fidelity cover for regulated
mortgages).
Part
8 Legislation Act
2001
This part amends the Legislation Act 2001.
27 Dictionary,
part 1, new definition of GST
insert
GST—see the A New Tax System (Goods and Services
Tax) Act 1999 (Cwlth), dictionary.
Part
9 Pawnbrokers Act
1902
This part amends the Pawnbrokers Act 1902.
Note The Pawnbrokers Act 1902 is also amended in sch 1
(Technical amendments), pt 1.1.
substitute
Part 2 Licences
5 Issue of licences
(1) If a person applies to the commissioner for a licence, or for renewal
of a licence, the commissioner must issue a licence to the person or renew the
licence if—
(a) the application complies with this Act; and
Note If a form is approved under s 28 (Approved forms) for an
application, the form must be used.
(b) if the person is an individual—the person is 18 years old or
older; and
(c) the person is a suitable person; and
(d) if the person is a partner applying for a licence on behalf of the
partnership—each other partner is a suitable person.
(2) A licence must state each premises where the holder of the licence may
carry on business as a pawnbroker.
(3) A licence may be issued for up to 1 year.
30 New
section 8 heading, part 3
insert
8 Pawnbrokers—carrying on
business
insert
(1) A licensed pawnbroker must not carry on business as a pawnbroker at a
place other than premises stated in the licence.
Maximum penalty: 50 penalty units.
32 New
sections 21 to 25, part 4
insert
21 Working out whether person suitable
(1) This section applies in working out for this Act whether a person is a
suitable person.
(2) A person is a suitable person if the person is not
disqualified.
(3) A person is disqualified if the person or, if the person
is a corporation, the corporation or an executive officer of the
corporation—
(a) has committed—
(i) an offence against this Act or a corresponding law of a State or
foreign country; or
(ii) an offence involving fraud or dishonesty in Australia or a foreign
country; or
(b) has been refused a licence, or had a licence cancelled or revoked,
under this Act or a corresponding law of a State.
(4) However, even if a person is disqualified, the Magistrates Court may
declare that the person is a suitable person if satisfied that the person is
unlikely to be disqualified again.
(5) If a person is disqualified after being declared by the Magistrates
Court to be a suitable person, the person is no longer a suitable
person.
22 Cancellation and suspension of
licences
(1) The Magistrates Court may cancel a person’s licence, on
application by anyone claiming that—
(a) the person is not a suitable person; or
Note A corporation licensed as a pawnbroker is disqualified, and
therefore not a suitable person, if a thing mentioned in section 21 (3) (a) or
(b) (Working out whether person suitable) applies to the corporation or
an executive officer of the corporation.
(b) if the person is a partner who holds the licence on behalf of a
partnership—the person or any other partner is not a suitable
person.
(2) The Magistrates Court may suspend the person’s licence until the
application is decided.
23 Register of licences
(1) The commissioner must keep a register of licences under this
Act.
(2) The register must be available for public inspection at reasonable
times.
24 Keeping of register
(1) The register may include information about licences given to the
commissioner under this Act and any other information the commissioner considers
appropriate.
(2) The register may be kept in the form of, or as part of, 1 or more
computer databases or in any form the commissioner considers
appropriate.
(3) The commissioner may correct any mistake, error or omission in the
register subject to the requirements (if any) of the regulations.
(4) This section does not limit the functions of the commissioner in
relation to the register.
25 False or misleading
information
A person must not, in relation to an application for a
licence—
(a) provide information that the person knows is false or misleading in a
material particular; or
(b) omit information without which the application is, to the
person’s knowledge, misleading in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
substitute
27 Determination of fees and
charges
(1) The Minister may, in writing, determine fees and charges for this
Act.
Note The Legislation Act 2001 contains provisions about the
making of determinations and regulations relating to fees and charges (see pt
6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
28 Approved forms
(1) The commissioner may, in writing, approve forms for this
Act.
(2) An approved form that is an application for, or for renewal of, a
licence may include a consent for a police officer to make inquiries about any
criminal record of—
(a) the applicant; or
(b) if the applicant is a partner applying for a licence on behalf of the
partnership—each partner; or
(b) if the applicant is a corporation—the applicant and each
executive officer of the applicant.
(3) If the commissioner approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see Legislation Act
2001, s 255.
(4) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
29 Regulation-making power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act 2001.
insert
Part 5 Transitional
30 Definitions for pt 5
In this part:
amendment Act means the Justice and Community Safety
Legislation Amendment Act 2002.
commencement means the commencement of the amendment Act,
part 9 (Pawnbrokers Act 1902).
current Act means the Pawnbrokers Act 1902, as in
force after the commencement.
previous Act means the Pawnbrokers Act 1902, as in
force immediately before the commencement.
31 Existing applications for
licences
An application made by a person for a licence under the previous Act,
section 6 (Applications for licences) that has not been finally dealt with by
the Magistrates Court before the commencement is taken, after the commencement,
to be an application made by the person under the current Act, section 5 (Issue
of licences).
32 Expiry of pt 5
This part expires 6 months after it commences.
Part
10 Public Trustee Act
1985
This part amends the Public Trustee Act 1985.
substitute
47 Function of board
The function of the board is to advise the public trustee on the investment
of money that is from time to time in a common fund or otherwise in the hands of
the public trustee and available for investment.
Note A provision of a law that gives an entity a function
also gives the entity powers necessary and convenient to exercise the function
(see Legislation Act 2001, s 196 and dict, pt 1, def of
entity).
substitute
48 Membership of board
(1) The board consists of—
(a) the public trustee; and
(b) at least 2 other members appointed by the Minister.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act 2001, div 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act 2001, s 7 (3)) and an appointment
may be made by naming a person or nominating the occupant of a position (see
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act 2001,
div 19.3.3).
(2) A member mentioned in subsection (1) (b) must be appointed for a
term of not longer than 3 years.
Note A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act 2001,
s 208 and dict , pt 1, def of appoint).
38 Meetings
of boardSection
54 (4)
substitute
(4) If the senior member is not present, the member chosen by the members
present presides.
39 Investment
of money held in common fundsSection
56 (1)
substitute
(1) Money in a common fund must be invested by the public trustee having
regard to any advice given by the board.
Note The Trustee Act 1925, subdivision 2.2.1 contains
provisions about the powers and duties of trustees (including the public
trustee) in relation to investments.
40 Investment
of money not held in common fundsSection
57 (b)
substitute
(b) the public trustee must invest the money in accordance with any
directions applying to it; and
41 Withdrawal
of money from common fundsSection
58 (1) (b)
substitute
(b) invest the amount separately for the benefit of that estate, trust or
person.
substitute
59 Distribution of capital and
income
(1) The public trustee must distribute any capital or income paid into the
income account of a common fund to the estates, trusts or persons having an
interest in the common fund.
(2) Distributions must be made at times decided by the public trustee and
having regard to any advice given by the board.
43 Income
accountsSection
60 (4)
omit everything after paragraph (c), substitute
the amount, or the part of the amount decided by the public trustee, must
be invested by the public trustee.
insert
(4A) In acting under subsection (4), the public trustee must have regard
to any advice given by the board.
renumber subsections when Act next republished under Legislation Act
2001
46 Common
fund guarantee and reserve accountSection
61 (3)
substitute
(3) If, after distribution of capital and income under section 59, a
balance remains in an income account, the public trustee must transfer from the
account to the common fund guarantee and reserve account the amount decided by
the public trustee having regard to any advice given by the board.
omit
, with the approval of the board,
substitute
(6) If there is an amount at credit in the common fund guarantee and
reserve account that is not for the time being required to be applied for any of
the purposes mentioned in subsection (5), the amount must be invested by the
public trustee.
49 Directions
of board about investmentsSection
62
omit
substitute
63 Application of surplus funds
(1) This section applies if a balance remains in an income account after
each amount required under this part to be paid from the account is
paid.
(2) The balance, or the part of the balance decided by the public trustee
having regard to any advice given by the board, may be applied towards the costs
and expenses necessarily incurred by the public trustee in the exercise of the
public trustee’s functions under this Act.
51 Advances
from common fundsSection
64 (1)
omit
, with the approval of the board,
substitute
, having regard to any advice given by the board,
substitute
(2) An advance under subsection (1) must bear interest at the rate, and be
made on any other conditions, that the public trustee from time to time decides
having regard to any advice given by the board.
53 Advances
to beneficiariesSection
65 (2)
substitute
(2) The public trustee must not make an advance to a person under
subsection (1) if the advance exceeds, or the total of the advances made to the
person would exceed, 1/2
of the amount the public trustee estimates to be the value of the person’s
beneficial interest in the estate or trust against which the advance is to be
made.
substitute
(3) An advance under subsection (1) must bear interest at the rate, and be
made on any other conditions, that the public trustee from time to time decides
having regard to any advice given by the board.
Part
11 Residential Tenancies Act
1997
This part amends the Residential Tenancies Act 1997.
56 InterestSection
28 (3)
substitute
(3) In subsection (1):
departmental bank account—see the Financial
Management Act 1996, dictionary.
interest —see the Financial Management Act 1996,
dictionary.
Part
12 Second-hand Dealers Act
1906
This part amends the Second-hand Dealers Act 1906.
Note The Second-hand Dealers Act 1906 is also amended in sch
1 (Technical amendments), pt 1.1.
58 Dealers
must be licensedSection
4
omit
A
substitute
(1) A
insert
(2) The regulations may exempt an entity from subsection (1).
substitute
10 Second-hand dealers—carrying on
business
(1) A licensed second-hand dealer must not carry on business as a
second-hand dealer at a place other than premises stated in the
licence.
Maximum penalty: 50 penalty units.
(2) To remove any doubt, a licensed second-hand dealer does not commit an
offence against subsection (1) only because the dealer buys second-hand goods at
a place other than premises stated in the licence.
Examples
1 A licensed second-hand dealer buys second-hand goods from a charity or at
a trash and treasure market.
2 A person advertises a piano for sale, a licensed second-hand dealer goes
to the person’s home to look at the piano and the dealer buys the piano
while at the person’s home.
(3) A licensed second-hand dealer must not, without reasonable excuse,
fail to produce his or her licence on demand made by a police officer at
premises stated in the licence.
Maximum penalty: 5 penalty units.
(4) A licensed second-hand dealer must not buy or receive second-hand
goods from a person if the dealer believes or has reasonable grounds to believe
that the person is under 14 years old.
Maximum penalty: 5 penalty units.
insert
16A Authority to ask for
identification
A licensed second-hand dealer may ask a person to show the dealer
identification—
(a) to enable the dealer to comply with section 6 (1); or
(b) if the dealer sells second-hand goods, or disposes of second-hand
goods in another way, to the person, the goods are worth more than $50 and the
dealer believes or has reasonable grounds to believe that the name or home
address given by the person is incorrect.
62 Dictionary,
definition of second-hand dealer
after
dealing in
insert
(other than hiring out)
Part
13 Second-hand Dealers Regulations
2002
63 Regulations
amended—pt 13
This part amends the Second-hand Dealers Regulations 2002.
64 Kinds
of second-hand goods—Act, dict, def of second-hand
goodsRegulation 5 (2) and
(3)
substitute
(2) However, goods are not second-hand goods if they are taken as a
trade-in by a person (other than a licensed second-hand dealer) as part of the
sale of goods that are not second-hand goods.
insert
5A Exempt entities—Act, s 4
(2)
(1) The following are exempt entities:
(a) charitable organisations;
(b) people (other than licensed second-hand dealers) offering goods for
sale at a trash and treasure market.
(2) In this regulation:
charitable organisation means a body carried on for a
religious, educational, benevolent or charitable purpose, other than a body
carried on for the financial benefit of its members.
66 Making
records about goods bought or received—Act,
s 6 (1)Regulation 8
(1)
substitute
(1) This regulation applies if a licensed second-hand dealer buys, or
receives in another way, second-hand goods from a person other than an exempt
entity.
67 Making
records about goods sold or disposed of—Act,
s 6 (1)Regulation 9 (1)
(a)
omit
second-hand dealer
substitute
licensed second-hand dealer
substitute
10 Making records—goods bought from exempt
entities—Act, s 6 (1)
substitute
(a) a licensed second-hand dealer buys second-hand goods from an exempt
entity; and
70 Dictionary,
new definition of exempt entity
insert
exempt entity means an exempt entity under regulation
5A
Part
14 Unclaimed Moneys Act
1950
This part amends the Unclaimed Moneys Act 1950.
72 Unclaimed
assets in hands of liquidatorSection
4
omit
registrar-general
substitute
public trustee
73 Publication
of registerSection 8
omit
registrar-general
substitute
public trustee
74 Examination
of accounts etcSection
12
omit
registrar-general
substitute
public trustee
Part
15 Technical
amendments
75 Technical
amendments—sch 1
Schedule 1 amends the Acts mentioned in the schedule.
Schedule
1 Technical
amendments
(see s 75)
Part
1.1 Pawnbrokers Act
1902
substitute
An Act to provide for the licensing and regulation of pawnbrokers, and for
other purposes
Explanatory note
This amendment updates the long title, particularly to reflect the fact
that the Act is now, for all purposes, an ACT law.
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act.
For example, the signpost definition ‘suitable
person—see section 21 (Working out whether person
suitable).’ means that the expression ‘suitable
person’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act 2001, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act 2001, s 127 (1), (4) and (5)
for the legal status of notes.
Explanatory note
This amendment replaces the interpretation section, in line with current
drafting practice. New sections 2 and 3 are standard provisions explaining the
status of the dictionary and notes. A new dictionary is inserted by a later
amendment in this part.
substitute
4 Application of Act
Explanatory note
This amendment brings the section heading into line with current drafting
practice.
omit
Nothing in this Act shall be construed to apply
substitute
This Act does not apply
Explanatory note
This amendment updates language.
omit
bona fide
substitute
genuine
Explanatory note
This amendment updates language.
substitute
6 Pawnbrokers must be licensed
A person must not carry on business as a pawnbroker unless the person is
licensed as a pawnbroker.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
7 Name of pawnbroker etc to be displayed on
premises
(1) A licensed pawnbroker must clearly display on the outside of each
premises where the pawnbroker carries on business, in letters at least 5cm
high—
(a) his or her full name; and
(b) the words ‘licensed pawnbroker’.
(2) A licensed pawnbroker must not, without reasonable excuse, contravene
subsection (1).
Maximum penalty: 5 penalty units.
Explanatory note
This amendment remakes existing sections 5 and 11 and brings their language
and structure into line with current drafting practice.
[1.7] New
section 8 (Pawnbrokers—carrying on business) (2) and
(3)
insert
(2) A licensed pawnbroker must not, without reasonable excuse, fail to
produce his or her licence on demand made by a police officer at premises stated
in the licence.
Maximum penalty: 5 penalty units.
(3) A licensed pawnbroker must not buy, receive or take in pawn an article
from a person if the pawnbroker believes or has reasonable grounds to believe
that the person is—
(a) under 14 years old; or
(b) drunk.
Maximum penalty: 30 penalty units.
Explanatory note
This amendment brings the language of existing sections 12 and 24 into line
with current drafting practice.
omit
Explanatory note
Section 12 is remade, in a modified form, as s 8 (2)
(Pawnbrokers—carrying on business).
substitute
9 Records of pawned articles
received
(1) This section applies if a licensed pawnbroker takes in pawn an article
on which money is to be lent to a person.
(2) Before giving the money to the person, the pawnbroker must make a
record for the article that contains the following information:
(a) an accurate description of the article;
(b) the amount to be lent;
(c) the rate of interest to be charged on the amount, by the week or
month;
(d) the date the article is pawned;
(e) the name and home address given by the person;
(f) if the period for redemption of the article is longer than
3 months—the period.
(3) The pawnbroker must not give the money to the person unless the
pawnbroker reasonably believes that the name and address given by the person is
accurate.
(4) A licensed pawnbroker must, in each calendar year, consecutively
number the records for pawned articles made under this section, starting at 1
for the first pawned article.
(5) A licensed pawnbroker who, without reasonable excuse, contravenes this
section commits an offence.
Maximum penalty: 20 penalty units.
10 Duplicates of records
(1) If a licensed pawnbroker takes in pawn an article on which money is to
be lent to a person, the pawnbroker must give the person (without charge) a
duplicate of the record mentioned in section 9 (2) (Records of pawned articles
received) signed by the pawnbroker.
Maximum penalty: 5 penalty units.
(2) If the person does not take the duplicate, the pawnbroker must return
the article to the person.
11 Production of duplicates
(1) A person (the person) who pawned an article with a
licensed pawnbroker (the pawnbroker) must produce the duplicate
for the article to redeem the article, unless the duplicate is lost or
stolen.
(2) If the person does not have the duplicate because it is lost or
stolen, the person must give the pawnbroker a statutory declaration made by the
person that sets out the circumstances of the loss or theft.
(3) The pawnbroker must give a copy of the record for the article, signed
by the pawnbroker, to the person if—
(a) the pawnbroker is satisfied that the statutory declaration gives an
adequate explanation of the loss or theft; and
(b) the article has not been redeemed; and
(c) the person asks for a copy of the record.
Maximum penalty (subsection (3)): 5 penalty units.
12 Holders of duplicates taken to be owners of pawned
articles
(1) This section applies if a person—
(a) produces the duplicate for a pawned article to the licensed pawnbroker
who gave the duplicate; and
(b) claims to be the owner or authorised by the owner; and
(c) asks to redeem the article.
(2) The person is taken to be the owner of the article, or authorised by
the owner and entitled to redeem the article.
(3) However, subsection (2) does not apply if—
(a) the pawnbroker has notice from the real owner that the duplicate was
lost or stolen; or
(b) the pawnbroker reasonably believes that the article was stolen from
the real owner.
(4) If the pawnbroker refuses to give the article to the person mentioned
in subsection (1), the pawnbroker must—
(a) tell a police officer immediately about the refusal and the reasons
for it; and
(b) give the officer the person’s name and home address or a
description of the person.
(5) A licensed pawnbroker must not, without reasonable excuse, contravene
subsection (4).
Maximum penalty: 5 penalty units.
13 Period for sale or disposal of pawned
articles
(1) The period during which a pawned article may be redeemed (the
redemption period) is—
(a) 3 months; or
(b) if a longer period is agreed to by the licensed pawnbroker and the
person pawning the article—the longer period.
(2) A pawned article that is not redeemed by the end of the redemption
period for the article is forfeited to the licensed pawnbroker who has the
article, and may be sold or disposed of in another way.
(3) An agreement for the forfeiture of a pawned article before the end of
3 months is void.
14 Selling or disposing before end of redemption
period
A licensed pawnbroker must not sell, or dispose of in another way, a pawned
article before the end of the redemption period for the article.
Maximum penalty: 50 penalty units
15 Method of sale for certain pawned
articles
(1) This section applies to an article—
(a) taken in pawn by a licensed pawnbroker from a person; and
(b) on which more than $500 was lent to the person by the pawnbroker;
and
(c) that is forfeited under this Act.
(2) The article must be sold by public auction.
(3) On 2 separate occasions at least 4 days before the proposed sale, the
pawnbroker must publish a written notice about the sale in a newspaper published
and circulating in the ACT.
(4) The notice must contain a list of the articles to be sold by auction
and the date each article was pawned.
(5) A licensed pawnbroker who sells an article otherwise than in
accordance with this section must pay the owner of the article $500.
16 Pawnbroker not to buy pawned
article
If a licensed pawnbroker or a person acting on behalf of the pawnbroker
buys an article pawned with the pawnbroker, the purchase is not valid against
the owner.
17 Application of proceeds of
sale
(1) This section applies if—
(a) a pawned article is sold by the licensed pawnbroker with whom the
article was pawned; and
(b) there is a surplus; and
(c) the person by or for whom the article was pawned claims the surplus
within 12 months of the sale.
(2) Within 2 days of the person’s claim, the pawnbroker must pay the
person the surplus, less any necessary charges relating to the sale.
(3) A licensed pawnbroker must not, without reasonable excuse, contravene
subsection (2).
Maximum penalty: 50 penalty units.
(4) In this section:
surplus means the amount remaining after the following are
subtracted from the amount paid for the article:
(a) the amount lent by the pawnbroker on the security of the article
(the advance);
(b) any interest due at the time of the sale of the article in relation to
the advance.
18 Records of pawned articles sold or disposed
of
(1) This section applies if a licensed pawnbroker sells or otherwise
disposes of a pawned article.
(2) The pawnbroker must make a record for the article that contains the
following information:
(a) the record number for the article made under section 9 (4) (Records of
pawned articles received);
(b) the date the article was pawned;
(c) the name given by the person who pawned the article;
(d) the date the article was sold or disposed of;
(e) the amount for which the article was sold.
Maximum penalty: 20 penalty units.
(3) A pawnbroker must not knowingly or recklessly make a false record
under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
19 Inspection of records
(1) This section applies if—
(a) a licensed pawnbroker sells or otherwise disposes of a person’s
pawned article; and
(b) the person produces the duplicate for the article; and
(c) the person asks to inspect the record about the sale or
disposal.
(2) The pawnbroker must let the person inspect the record.
Maximum penalty: 5 penalty units.
Explanatory note
Existing sections 13 to 17 and 19 to 23 have been updated to bring their
language and structure into line with current drafting practice.
Existing section 18 (new section 14) has been updated to bring it into line
with current drafting practice. ‘Cause or knowingly suffer to be sold or
disposed of’ is not necessary because the Crimes Act 1900, section
180 (Aiding and abetting) deals with complicity in a principal
offence.
omit
Explanatory note
This section has been remade, in an updated form, as new section 8 (3)
(Pawnbrokers—carrying on business).
renumber as section 20
Explanatory note
This amendment renumbers section 29.
substitute
Part 4 Miscellaneous
Explanatory note
Most of the provisions of part 4 are omitted by the following amendments.
This amendment changes the part heading so that it describes the new contents of
the part.
omit
Explanatory note
Section 31 is no longer necessary (see Evidence Act 1995 (Cwlth), s
155 and 156).
Section 32 is omitted because it refers to the registrar, but it is not
necessary to give the power to the commissioner (see Evidence Act 1995
(Cwlth), s 155 and 156).
Section 33 is no longer necessary. A person carrying on business as a
pawnbroker without a licence would contravene new section 6 (Pawnbrokers must be
licensed). If the person is not carrying on business as a pawnbroker but
displays a sign saying, or a sign that makes people believe, that the person is
a pawnbroker, the person would contravene the Fair Trading Act 1992,
section 12 (Misleading or deceptive conduct).
Section 34 is no longer necessary. Establishing the identity of a person
is straightforward, and a pawnbroker who lent his or her licence to another
person so that the person could pretend to be a pawnbroker could be dealt with
under the Crimes Act 1900, section 180 (Aiding and abetting). The person
pretending could be dealt with under the Act, section 7.
Sections 35 and 36 (a) are not necessary because of the Crimes Act
1900, division 6.4 (Forgery and use of forged instruments). Section 36 (b)
is not necessary because of the Crimes Act 1900, section 89
(Theft).
Section 37 is no longer necessary. The Supreme Court has the power to
issue a subpoena to give evidence, a subpoena for production etc (see Supreme
Court Rules o 39 r 25 and div 80.3), and failing to comply is contempt of
court or may be dealt with under the Supreme Court Act 1930, section 70A
(Failure to attend Supreme Court as required). The Magistrates Court has the
power to issue a summons to give evidence, a summons for production etc (see
Magistrates Court Act 1930, s 66 (Production of documents before
magistrate) and s 61 (Power of magistrate to summon witnesses) and
Magistrates Court (Civil Jurisdiction) Act 1982, div 14.3).
substitute
26 Magistrates Court may order return of
article
(1) This section applies if—
(a) a pawned article was pawned unlawfully; and
(b) the Magistrates Court is satisfied about the ownership of the
article.
(2) The Magistrates Court may order that the article be returned to the
owner and that the person with whom the article was pawned pay compensation to
the owner.
Explanatory note
This amendment renumbers the section and brings it into line with current
drafting practice.
omit
Explanatory note
This section is obsolete. A plea of general issue denies the whole of the
statement of claim, information or indictment. It is no longer open to a party
to proceedings to plead the general issue.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act 2001 contains definitions and
other provisions relevant to this Act.
Note 2 In particular, the Legislation Act 2001, dict, pt 1,
defines the following terms:
• commissioner for fair trading
• police officer
• statutory declaration
article includes a chattel or goods.
commissioner means the commissioner for fair
trading.
disqualified—see section 21 (Working out whether person
suitable).
duplicate, for a pawned article—see section 10 (1)
(Duplicates of records).
executive officer, of a corporation, means a person, by
whatever name called and whether or not the person is a director of the
corporation, who is concerned with, or takes part in, the corporation’s
management.
licence means a pawnbrokers licence under this Act.
licensed pawnbroker means a person who is licensed under this
Act as a pawnbroker.
pawnbroker means a person who carries on the business of
lending money on the security of an article taken by the person by way of pawn,
pledge or as security.
pawned article means an article taken by a licensed
pawnbroker by way of pawn, pledge or as security.
redemption period—see section 13 (1) (Period for sale
of pawned articles).
suitable person—see section 21 (Working out whether
person suitable).
Explanatory note
This amendment brings the dictionary into line with current drafting
practice, updates the definitions, includes new definitions and omits
unnecessary definitions (charge, convicted,
court and registrar). References to
‘court’ in the Act have been changed to ‘Magistrates
Court’ in line with current drafting practice.
Part
1.2 Second-hand Dealers Act
1906
substitute
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act.
For example, the signpost definition ‘suitable
person—see section 11 (Working out whether person
suitable).’ means that the expression ‘suitable
person’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act 2001, s 155 and
s 156 (1)).
Explanatory note
This amendment updates standard notes.
[1.18] Section
3 (1) (a), new note
insert
Note If a form is approved under s 18 (Approved forms) for an
application, the form must be used.
Explanatory note
This amendment inserts a standard note.
substitute
(c) the person is a suitable person; and
(d) if the person is a partner applying for a licence on behalf of the
partnership—each other partner is a suitable person.
Explanatory note
This amendment provides that each partner must be a suitable person, not
just the applicant partner.
substitute
(2) A licence must state each premises where the holder of the licence may
carry on business as a second-hand dealer.
Explanatory note
This amendment update language and makes it clear that the licence must
list each premises where the second-hand dealer can carry on business.
omit
place or
Explanatory note
This amendment omits an unnecessary word.
[1.22] Section
6 and 7 (1)
omit
second-hand dealer
substitute
licensed second-hand dealer
Explanatory note
This amendment makes it clear that these provisions apply to licensed
second-hand dealers.
omit
, and not in substitution for,
Explanatory note
This amendment omits unnecessary words.
omit
second-hand dealer
substitute
licensed second-hand dealer
Explanatory note
This amendment makes it clear that these provisions apply to licensed
second-hand dealers.
omit
licensed
Explanatory note
This amendment omits an unnecessary word. Subsection (1) states that the
section applies to a licensed second-hand dealer, so ‘licensed’ in
subsection (2) is superfluous.
substitute
11 Working out whether person
suitable
(1) This section applies in working out for this Act whether a person is a
suitable person.
(2) A person is a suitable person if the person is not
disqualified.
(3) A person is disqualified if the person or, if the person
is a corporation, the corporation or an executive officer of the
corporation—
(a) has committed—
(i) an offence against this Act or a corresponding law of a State or
foreign country; or
(ii) an offence involving fraud or dishonesty in Australia or a foreign
country; or
(b) has been refused a licence, or had a licence cancelled or revoked,
under this Act or a corresponding law of a State.
(4) However, even if a person is disqualified, the Magistrates Court may
declare that the person is a suitable person if satisfied that the person is
unlikely to be disqualified again.
(5) If a person is disqualified after being declared by the Magistrates
Court to be a suitable person, the person is no longer a suitable
person.
Explanatory note
This amendment simplifies the section.
substitute
(1) The Magistrates Court may cancel a person’s licence, on
application by anyone claiming that—
(a) the person is not a suitable person; or
Note A corporation licensed as a pawnbroker is disqualified, and
therefore not a suitable person, if a thing mentioned in section 11 (3) (a) or
(b) (Working out whether person suitable) applies to the
corporation or an executive officer of the corporation.
(b) if the person is a partner who holds the licence on behalf of a
partnership—the person or any other partner is not a suitable
person.
Explanatory note
This amendment provides that each partner must be a suitable person, not
just the partner who holds the licence, and is consequential on the
simplification of section 11 (replacement of ‘unsuitable
person’).
[1.28] Section
13 (4), definition of market
omit
(whether or not the market also deals with other goods)
substitute
(whether or not other goods are also dealt with at the market)
Explanatory note
This amendment makes it clear that goods are dealt with by people at the
market, not the market itself.
substitute
(2) An approved form that is an application for, or for renewal of, a
licence may include a consent for a police officer to make inquiries about any
criminal record of—
(a) the applicant; or
(b) if the applicant is a partner applying for a licence on behalf of the
partnership—each partner; or
(c) if the applicant is a corporation—the applicant and each
executive officer of the applicant.
Explanatory note
This amendment makes it clear what type of form can contain this consent
and provides for inquiries to be made about each partner, not just the applicant
partner.
[1.30] Dictionary,
new notes
insert
Note 1 The Legislation Act 2001 contains definitions and
other provisions relevant to this Act.
Note 2 In particular, the Legislation Act 2001, dict, pt 1,
defines the following terms:
• chief police officer
• commissioner for fair trading
• foreign country
• individual
• police officer
• regulations
• State.
[1.31] Dictionary,
definition of commissioner
omit
of
substitute
for
Explanatory note
This amendment corrects a minor error.
[1.32] Dictionary,
definition of executive officer
omit
means the person
substitute
means a person
Explanatory note
This amendment corrects a minor error.
[1.33] Dictionary,
definition of unsuitable person
omit
Explanatory note
This amendment is consequential on the amendment of section 11.
Endnotes
Republications of amended laws
1 For the latest republication of amended laws, see
www.legislation.act.gov.au.
Penalty units
2 The Legislation Act 2001, s 133 deals with the meaning of offence
penalties that are expressed in penalty units.
© Australian Capital Territory
2002
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