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This is a Bill, not an Act. For current law, see the Acts databases.
HAWKERS BILL 2002
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
Hawkers Bill
2002
Contents
Page
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
A Bill for
An Act to regulate the activities of hawkers in public places, and for
other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Hawkers Act 2002.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
(1) The objects of this Act are to ensure that—
(a) people carrying on business as hawkers in a public place do not have a
significant, adverse effect on any of the following in or near the public
place:
(i) public safety;
(ii) the free movement of people and vehicles;
(iii) the accessibility of premises, including commercial
premises;
(iv) the accessibility of public amenities; and
(b) people carrying on business as hawkers in a public place do not have a
significant, adverse effect on the appearance or amenity of the public place;
and
(c) adequate and appropriate public amenities (for example, rubbish bins
and toilets) are available at or near the location where a person carries on
business as a hawker.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) For subsection (1), it does not matter whether the adverse effect is
direct or indirect.
4 Conduct
excluded from Act
This Act does not apply to any of the following:
(a) the sale of goods or services in accordance with—
(i) a licence under the Land (Planning and Environment) Act 1991;
or
(ii) a permit under the Roads and Public Places Act 1937;
or
(iii) a permit under the Trespass on Territory Land Act
1932;
(b) the operation of a public passenger service under the Road
Transport (Public Passenger Services) Act 2001 or a public vehicle under the
Road Transport (General) Act 1999, part 10;
(c) the sale of a ticket or share in an approved lottery or exempt lottery
under the Lotteries Act 1964;
(d) the sale, delivery or distribution of newspapers by a child in
accordance with the Children and Young People Act 1999, chapter 10
(Employment of children and young people);
(e) busking;
(f) a collection under the Collections Act 1959;
(g) conduct declared by the regulations to be conduct to which the Act
does not apply.
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 ‘public
place—see section 9.’ means that the expression
‘public place’ is defined in section 9 and the definition applies to
this Act.
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, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
7 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Hawking in public
places
8 Meaning
of carrying on business as a hawker
For this Act, a person carries on business as a hawker—
(a) if the person carries on an itinerant business
selling—
(i) goods carried by the person, or by a vehicle used by the person;
or
(ii) services provided by the person, or provided from a vehicle used by
the person; or
(b) if the person sells goods or services for a person mentioned in
paragraph (a).
Note Vehicle includes an animal, see dict.
9 Meaning
of public place
In this Act:
public place means a place that is unleased Territory land
(including a road) that the public are entitled to use or that is open to, or
used by, the public.
10 Hawkers
not to obstruct or endanger public
(1) A person who is carrying on business as a hawker in a public place
commits an offence if—
(a) the person hinders or obstructs the free movement of people or
vehicles in or near the public place; or
(b) the person endangers the safety of members of the public in or near
the public place.
Maximum penalty: 30 penalty units.
(2) An offence against this section is a strict liability
offence.
11 Unlicensed
hawkers limited to 30 minutes standing
(1) A person commits an offence if—
(a) the person carries on business as a hawker at a location in a public
place for more than 30 minutes at a time; and
(b) the person is not licensed to sell goods or services at the
location.
Maximum penalty: 10 penalty units.
(2) A person commits an offence if—
(a) the person carries on business as a hawker at a location in a public
place that is less than 180m from the same or another location in a public place
where the person carried on business as a hawker earlier the same day; and
(b) the total of the periods the person spent at the locations is more
than 30 minutes; and
(c) the person is not licensed to sell goods or services at each of those
locations.
Maximum penalty: 10 penalty units.
(3) This section does not apply to a person who carries on business as a
hawker for a licensed hawker in accordance with the licence.
(4) An offence against this section is a strict liability
offence.
12 Licensed
hawkers to comply with licence
(1) A licensed hawker commits an offence if the licensee carries on
business as a hawker in contravention of the licence.
Maximum penalty: 10 penalty units.
(2) A licensed hawker commits an offence if someone else carries on
business as a hawker for the licensee in contravention of the licence.
Maximum penalty: 10 penalty units.
Examples of contraventions for s (1) and s
(2)
1 selling goods or services at a location, or from a vehicle, not shown on
the licence
2 selling goods or services not shown on the licence
3 selling goods or services outside the period or periods shown on the
licence during which goods or services may be sold
4 selling goods or services in contravention of a condition shown on the
licence
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) An offence against this section is a strict liability
offence.
13 Licensed
hawkers to display licence
(1) A licensed hawker commits an offence if—
(a) the licensee carries on business as a hawker in a public place;
and
(b) the licence is not displayed at the point of sale.
Maximum penalty: 10 penalty units.
(2) A licensed hawker commits an offence if—
(a) someone else carries on business as a hawker for the licensee in a
public place; and
(b) the licence (or a copy of the licence) is not displayed at the point
of sale.
Maximum penalty: 10 penalty units.
(3) An offence against this section is a strict liability
offence.
14 Restriction
on hawking near commercial premises
(1) A person commits an offence if—
(a) the person carries on business as a hawker at a location in a public
place within 180m of commercial premises; and
(b) the person is not an exempt person for the premises.
Maximum penalty: 10 penalty units.
Note An exempt person may carry on business as a hawker within 180m
of the commercial premises to which the exemption applies (see s 14 and
s 28).
(2) This section does not apply to a person who carries on business as a
hawker for an exempt person in accordance with the exemption.
(3) An offence against this section is a strict liability
offence.
15 Commercial
premises—exempt people to comply with exemption
(1) An exempt person commits an offence if the person carries on business
as a hawker in contravention of the exemption.
Maximum penalty: 10 penalty units.
Note An exempt person may carry on business as a hawker within 180m
of the commercial premises to which the exemption applies (see s 14 and
s 28).
(2) An exempt person commits an offence if someone else carries on
business as a hawker for the exempt person in contravention of the
exemption.
Maximum penalty: 10 penalty units.
Example of contravention of exemption for s
(1) and s (2)
selling goods or services in contravention of a condition shown on the
exemption
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) An offence against this section is a strict liability
offence.
16 Commercial
premises—exemption to be displayed
(1) This section does not apply to a licensed hawker.
Note A licensed hawker must display the licence, which must show any
exemption held by the licensee, see s 13 and s 21.
(2) An exempt person for commercial premises commits an offence
if—
(a) the person carries on business as a hawker at a location in a public
place within 180m of the premises; and
(b) the exemption is not displayed at the point of sale.
Maximum penalty: 5 penalty units.
Note An exempt person may carry on business as a hawker within 180m
of the commercial premises to which the exemption applies (see s 14 and
s 28).
(3) An exempt person for commercial premises commits an offence
if—
(a) someone else carries on business as a hawker for the exempt person at
a location in a public place; and
(b) the location is within 180m of the premises to which the exemption
applies; and
(c) the exemption (or a copy of the exemption) is not displayed at the
point of sale.
Maximum penalty: 5 penalty units.
(4) An offence against this section is a strict liability
offence.
17 Application
for licence
(1) A person may apply in writing to the chief executive for a
licence.
Note 1 If a form is approved under s 46 (Approved forms) for an
application, the form must be used.
Note 2 A fee may be determined under s 45 (Determination of fees)
for this section.
(2) The chief executive may, by written notice given to the applicant,
require the applicant to give the chief executive further stated information or
a stated document that the chief executive reasonably needs to decide the
application.
(3) If the applicant fails to comply with a requirement under
subsection (2), the chief executive may refuse to consider the application
further.
18 Decision
on application for licence
(1) The chief executive must issue, or refuse to issue, the
licence.
(2) In deciding whether to issue a licence, the chief executive must act
in accordance with the objects of this Act.
(3) Without limiting subsection (2), the chief executive may also have
regard to any of the following matters:
(a) whether the applicant has contravened this Act (whether or not the
applicant has been convicted or found guilty of an offence for the
contravention);
(b) if the applicant proposes to use other people to carry on business as
a hawker for the applicant—whether the applicant can and will ensure that
each other person will comply with this Act;
Note A licensed hawker commits an offence if another person carries
on business as a hawker for the licensee and contravenes the licence or does not
display the licence, see s 12 (2) and s 13 (2).
(c) whether the applicant or anyone else who is concerned with, or takes
part in, the applicant’s management has been convicted or found guilty of
an offence against any of the following provisions of the Crimes Act 1900
or a corresponding offence against the law of a State or another
Territory:
(i) section 105 (Handling stolen property);
(ii) section 109 (Delivery of stolen property held by dealers).
(4) A licence is subject to the conditions (if any) stated in the
licence.
A licence is issued for the period (not longer than 1 year) stated in the
licence.
20 Licence
not transferable
A licence is not transferable.
(1) A licence must show the following information:
(a) the full name, address and contact telephone number of the
licensee;
(b) the goods or services that may be sold under the licence;
(c) the locations where a person may carry on business as a hawker under
the licence;
(d) the period or periods during which a person may carry on business as a
hawker under the licence;
(e) whether the goods or services must be sold from a vehicle;
(f) if the goods or services must be sold from a vehicle—the make,
model and registration number of the vehicle;
(g) the conditions (if any) to which the licence is subject;
(h) any exemption given to the licensee under section 28 (Hawking near
commercial premises—giving of exemption);
(i) the licence number allocated to the licensee;
(j) when the term of the licence ends.
(2) A licence may also include any other information the chief executive
considers appropriate.
22 Amendment
of licence—application by hawker
(1) A licensed hawker may apply in writing to the chief executive for the
amendment of the licence.
Examples of amendments
1 to amend or revoke a condition to which the licence is subject
2 to change the locations where a person may carry on business as a hawker
under the licence
Note 1 If a form is approved under s 46 (Approved forms) for an
application, the form must be used.
Note 2 A fee may be determined under s 45 (Determination of fees)
for this section.
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may, by written notice given to the applicant,
require the applicant to give the chief executive further stated information or
a stated document that the chief executive reasonably needs to decide the
application.
(3) If the applicant fails to comply with a requirement under
subsection (2), the chief executive may refuse to consider the application
further.
(4) The chief executive must amend the licence or refuse to amend the
licence.
(5) In deciding whether to amend the licence the chief executive must have
regard to the matters mentioned in section 18 (2) and (3) (Decision on
application for licence).
(6) If the chief executive amends a licence under this section, the chief
executive must give the licensee an amended licence for the remainder of the
term of the licence amended.
Note A licensee must return the licence for amendment if required,
see s 26.
(7) An amendment has effect only if the amendment is stated in the licence
to which the amendment relates.
23 Temporary
amendment or suspension of licence—Roads and Public Places
Act
(1) The chief executive may, in writing, temporarily amend or suspend a
licence if satisfied on reasonable grounds that a location where a person may
carry on business as a hawker under the licence is, or will be—
(a) closed under the Roads and Public Places Act 1937, section 4
(Temporary closing of roads); or
(b) affected by a permission under the Roads and Public Places Act
1937, section 9 (Permission to place culverts etc across, and to interfere
with the surfaces of, public places).
(2) The chief executive must give written notice to the licensee
of—
(a) the date when the amendment or suspension takes effect; and
(b) the date when the amendment or suspension end; and
(c) for a licence that is amended—how the licence is amended.
(3) The date of effect must not be earlier than 7 days after the day the
notice is given to the licensee.
24 Amendment,
suspension or cancellation of licence—other grounds
The chief executive may act under section 25 to amend, suspend or cancel a
licence if satisfied, on reasonable grounds, that—
(a) carrying on business as a hawker in accordance with the licence is
not, or will not be, consistent with the objects of this Act; or
(b) the licensee has committed an offence against this Act (whether or not
the licensee has been convicted or found guilty of an offence for the
contravention); or
Note A licensed hawker commits an offence if another person carries
on business as a hawker for the licensee and contravenes the licence or does not
display the licence, see s 12 (2) and s 13 (2).
(c) the licensee or anyone else who is concerned with, or takes part in,
the licensee’s management has been convicted or found guilty of an offence
against any of the following provisions of the Crimes Act 1900 or a
corresponding offence against the law of a State or another Territory:
(i) section 105 (Handling stolen property);
(ii) section 109 (Delivery of stolen property held by dealers).
25 Procedure
for amendment etc of licence—other grounds
(1) If the chief executive proposes to act under this section in relation
to a licence, the chief executive must give the licensee a written notice
that—
(a) states the proposed action, including any proposed amendment of the
licence or suspension period; and
(b) states the grounds for the proposed action; and
(c) tells the licensee that the licensee may, within 14 days beginning the
day after the day the licensee receives the notice, give a written response to
the chief executive about the matters in the notice.
(2) In deciding whether to amend, suspend or cancel the licence, the chief
executive must consider any response given to the chief executive in accordance
with subsection (1) (c).
(3) If the chief executive is satisfied that grounds for taking action
under this section have been established, the chief executive
may—
(a) if the proposed action was to cancel the licence—cancel the
licence, suspend the licence for a period of not longer than 1 year or
amend the licence; or
(b) if the proposed action included suspending the licence for a stated
period—suspend the licence for a period of not longer than that period or
amend the licence; or
(c) if the proposed action included amending the licence—amend the
licence in a way that is no more onerous than the proposed amendment.
(4) To remove any doubt, the amendment of a licence under this section may
include the imposition of a condition on the licence and the amendment of a
condition to which the licence is subject.
(5) The chief executive must give the licensee written notice of the chief
executive’s decision.
(6) The amendment, suspension or cancellation of the licence takes effect
14 days after the day when notice of the amendment, suspension or cancellation
is given to the licensee or, if the notice states a later date of effect, that
date.
(7) If the chief executive amends a licence under this section, the chief
executive must give the licensee an amended licence for the remainder of the
term of the licence amended.
26 Failing
to return amended, suspended or cancelled licence
(1) A licensed hawker commits an offence if—
(a) the licence is amended, suspended or cancelled; and
(b) the chief executive gives the licensee a written notice requiring the
licensee to return the licence to the chief executive within a stated reasonable
time; and
(c) the person does not comply with the requirement.
Maximum penalty: 5 penalty units.
(2) This section does not apply to the amendment or suspension of a
licence under section 23 (Temporary amendment or suspension of
licence—Roads and Public Places Act).
(3) An offence against this section is a strict liability
offence.
Part
4 Exemptions for hawking near
commercial premises
27 Circumstances
for exemption from s 14 (1)
(1) The Minister may, in writing, determine circumstances when a person
may be exempted from the operation of section 14 (1) (Restriction on hawking
near commercial premises).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
28 Hawking
near commercial premises—giving of exemption
(1) A person may, in writing, apply to the Minister for exemption from the
operation of section 14 (1) (Restriction on hawking near commercial premises) in
relation to particular commercial premises.
Note 1 If a form is approved under s 46 (Approved forms) for an
application, the form must be used.
Note 2 A fee may be determined under s 45 (Determination of fees)
for this section.
(2) The application must state the grounds on which it is made.
(3) If satisfied that a circumstance determined under section 27 applies
to the person, the Minister may, in writing, exempt the person from the
operation of section 14 (1) in relation to the commercial premises stated in the
exemption.
(4) An exemption is subject to the conditions (if any) stated in the
exemption.
(5) An exemption has effect—
(a) for a licensed hawker—only if the exemption is stated in the
licence; or
Note A licensee must return the licence for amendment if required,
see s 26.
(b) for an unlicensed hawker—only if a copy of the exemption is
given to the hawker exempted.
29 Exemption
not transferable
An exemption is not transferable.
30 Amendment
of exemption—application by exempt person
(1) An exempt person may apply in writing to the Minister for the
amendment of the exemption.
Examples of amendments
1 to amend or revoke a condition to which the exemption is
subject
2 to change the locations where a person may carry on business as a hawker
under the exemption
Note 1 If a form is approved under s 46 (Approved forms) for an
application, the form must be used.
Note 2 A fee may be determined under s 45 (Determination of fees)
for this section.
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The Minister may, by written notice given to the applicant, require
the applicant to give the Minister further stated information or a stated
document that the Minister reasonably needs to decide the application.
(3) If the applicant fails to comply with a requirement under
subsection (2), the Minister may refuse to consider the application
further.
(4) The Minister must amend the exemption or refuse to amend the
exemption.
(5) In deciding whether to amend the exemption the Minister must have
regard to the circumstances determined under section 27 (Circumstances for
exemption from s 14 (1)).
(6) If the Minister amends an exemption under this section, the Minister
must give the applicant an amended exemption.
Note A exempt person must return the exemption for amendment if
required, see s 32.
(7) An amendment has effect only if the amendment is stated in the
exemption to which the amendment relates.
31 Hawking
near commercial premises—amendment or revocation of
exemption
(1) The Minister may, in writing, amend or revoke an exemption
if—
(a) a circumstance determined under section 27 (Circumstances for
exemption from s 14 (1)) no longer applies in relation to the exempt person;
or
(b) the exempt person has committed an offence against this Act (whether
or not the person has been convicted or found guilty of the offence).
Note An exempt person commits an offence if another person carries
on business as a hawker for the person and contravenes the exemption or does not
display the exemption, see s 15 (2) and s 16 (3).
(2) If the Minister proposes to act under this section in relation to an
exemption, the Minister must give the exempt person a written notice
that—
(a) states the proposed action, including any proposed amendment of the
exemption; and
(b) states the grounds for the proposed action; and
(c) tells the person that the person may, within 14 days beginning the day
after the day the person receives the notice, give a written response to the
Minister about the matters in the notice.
(3) In deciding whether to amend or revoke the exemption, the Minister
must consider any response given to the Minister in accordance with subsection
(2) (c).
(4) To remove any doubt, the amendment of an exemption under this section
may include the imposition of a condition on the exemption and the amendment of
a condition to which the exemption is subject.
(5) The Minister must give the exempt person written notice of the
Minister’s decision.
(6) The amendment or revocation of the exemption takes effect 14 days
after the day when notice of the amendment or revocation is given to the exempt
person or, if the notice states a later date of effect, that date.
(7) If the Minister amends an exemption under this section, the Minister
must give the exempt person an amended exemption.
32 Failing
to return amended or revoked exemption
(1) An exempt person commits an offence if—
(a) the exemption is amended or revoked; and
(b) the Minister gives the person a written notice requiring the person to
return the exemption to the Minister within a stated reasonable time;
and
(c) the person does not comply with the requirement.
Maximum penalty: 5 penalty units.
(2) An offence against this section is a strict liability
offence.
Part
5 Decisions reviewable by
AAT
33 Review
of decisions by administrative appeals tribunal
(1) A person may apply to the administrative appeals tribunal for review
of any of the following decisions of the Minister:
(a) refusing to give an exemption under section 28 (Hawking near
commercial premises—giving of exemption);
(b) giving an exemption under section 28 subject to a condition;
(c) refusing to amend an exemption in a way requested by the exempt person
under section 30 (Amendment of exemption—application by exempt
person);
(d) amending or revoking an exemption under section 31 (Hawking near
commercial premises—amendment or revocation of exemption).
(2) A person may apply to the administrative appeals tribunal for review
of any of the following decisions of the chief executive:
(a) refusing to issue a licence under section 18 (Decision on application
for licence);
(b) issuing a licence under section 18 for a term different to that
applied for;
(c) issuing a licence under section 18 subject to a condition;
(d) refusing to amend a licence in a way requested by the licensee under
section 22 (Amendment of licence—application by hawker);
(e) amending, suspending or cancelling a licence under section 25
(Procedure for amendment etc of licence—other grounds).
34 Notification
of reviewable decisions
(1) The Minister must give written notice of each decision mentioned in
section 33 (1) to the applicant for the exemption or the exempt person (as
appropriate).
(2) The chief executive must give written notice of each decision
mentioned in section 33 (2) to the applicant for the licence or the licensee (as
appropriate).
(3) A notice under subsection (1) or (2) must be in accordance with the
code of practice in force under the Administrative Appeals Tribunal Act
1989, section 25B (1).
35 Register
of licensed hawkers and exempt people
(1) The chief executive must keep a register of licensed hawkers and
exempt people.
(2) For each licence, the chief executive must enter in the register the
information mentioned in section 21 (1) (Form of licence).
(3) For each exemption, the chief executive must enter in the
register—
(a) the full name, address and contact telephone number of the exempt
person; and
(b) the commercial premises to which the exemption applies; and
(c) the conditions (if any) to which the exemption is subject.
(4) The register may also include any other information the chief
executive considers appropriate.
(5) The register may be kept in the form of, or as part of, 1 or more
computer databases or in any other form the chief executive considers
appropriate.
(6) The chief executive may correct any mistake, error or omission in the
register subject to the requirements (if any) of the regulations.
36 Public
access to register
(1) Anyone may, without charge, inspect the register during ordinary
office hours.
(2) A person may, on payment of reasonable copying costs, obtain a copy of
all or part of the register.
37 Licensed
hawkers and exempt people to notify change of name and
address
(1) A licensed hawker commits an offence if—
(a) the licensee’s full name, address or contact telephone number
shown on the licence changes; and
(a) the licensee does not, as soon as practicable (but within 7 days)
after the change happens—
(i) tell the chief executive, in writing, of the change; and
(ii) return the licence to the chief executive for amendment.
Maximum penalty: 5 penalty units.
(2) The chief executive must give the licensee an amended licence for the
remainder of the term of the licence amended.
(3) An exempt person commits an offence if—
(b) the person’s full name, address or contact telephone number
shown on the exemption changes; and
(a) the person does not, as soon as practicable (but within 7 days)
after the change happens—
(i) tell the chief executive, in writing, of the change; and
(ii) return the exemption to the chief executive for amendment.
Maximum penalty: 5 penalty units.
(4) The chief executive must give the exempt person an amended
exemption.
(5) An offence against this section is a strict liability
offence.
38 Replacement
of licence or exemption
(1) The chief executive may issue a replacement licence to a person if
satisfied that the licence has been lost, stolen or destroyed.
(2) The Minister may give a replacement exemption to a person if satisfied
that the exemption has been lost, stolen or destroyed.
(3) Before acting under subsection (1) or (2), the chief executive or
Minister may require the person to give the chief executive or Minister a
statement, verified by a statutory declaration signed by the person, that the
licence or exemption has been lost, stolen or destroyed.
Note 1 A fee may be determined under s 45 (Determination of fees)
for this section.
Note 2 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
39 Surrender
of licence or exemption
(1) A licensed hawker or an exempt person may, at any time, surrender the
licence or exemption by returning the licence or exemption to the chief
executive with a written statement that the licence or exemption is
surrendered.
(2) However, if the licence or exemption has been stolen, lost or
destroyed, the person may give the chief executive a statement, signed by the
person, that the licence or exemption has been stolen, lost or
destroyed.
Note The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
(1) Each of the following is an authorised person for this Act:
(a) a police officer;
(b) a roads and public places officer under the Roads and Public Places
Act 1937;
(c) a person appointed under subsection (2).
(2) The chief executive may appoint a person as an authorised person for
this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) The chief executive must give each authorised person (other than a
police officer or roads and public places officer) an identity card that states
the person’s name and appointment as an authorised person, and
shows—
(a) a recent photograph of the person; and
(b) the date of issue of the card; and
(c) the date of expiry of the card; and
(d) anything else prescribed under the regulations.
(2) A person commits an offence if—
(a) the person was appointed as an authorised person under section 40
(2); and
(b) the person ceases to be an authorised person; and
(c) the person does not return the person’s identity card to the
chief executive as soon as practicable (but within 7 days) after the day
the person ceases to be an authorised person.
Maximum penalty: 1 penalty unit.
(3) An offence against this section is a strict liability
offence.
42 Authorised
person’s power to require name and address
(1) An authorised person may require a person to state the person’s
name and address if the authorised person—
(a) finds the person committing an offence against this Act; or
(b) has reasonable grounds for believing that the person has just
committed an offence against this Act.
(2) If an authorised person makes a requirement of a person under
subsection (1), the authorised person must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record those reasons.
(3) A person commits an offence if the person—
(a) contravenes a requirement under subsection (1); or
(b) states a false name or address in purported compliance with a
requirement under that subsection.
Maximum penalty: 5 penalty units.
(4) However, a person is not required to comply with a requirement under
subsection (1) if, when asked by the person, the authorised person does not
produce his or her identity card for inspection by the person.
(5) An offence against this section is a strict liability
offence.
43 False
or misleading statements in applications etc
(1) A person commits an offence if—
(a) the person makes a statement (whether orally, in a document or in any
other way); and
(b) the person does so knowing that the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading;
and
(c) the statement is made in, or in relation to—
(i) an application for the issue or amendment of a licence or an
exemption; or
(ii) a response to the chief executive under section 25 (1)
(Procedure for amendment etc of licence—other grounds); or
(iii) a response to the Minister under section 31 (2) (Hawking near
commercial premises—amendment or revocation of exemption).
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) Subsection (1) (b) (i) does not apply if the statement is not false or
misleading in a material particular.
(3) Subsection (1) (b) (ii) does not apply if the omission does not make
the statement misleading in a material particular.
(4) A person commits an offence if—
(a) the person makes a statement (whether orally, in a document or in any
other way); and
(b) the person is reckless as to whether the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading;
and
(c) the statement is made in, or in relation to—
(i) an application for the issue or amendment of a licence or an
exemption; or
(ii) a response to the chief executive under section 25 (1)
(Procedure for amendment etc of licence—other grounds); or
(iii) a response to the Minister under section 31 (2) (Hawking near
commercial premises—amendment or revocation of exemption).
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(5) Subsection (4) (b) (i) does not apply if the statement is not false or
misleading in a material particular.
(6) Subsection (4) (b) (ii) does not apply if the omission does not make
the statement misleading in a material particular.
44 Alternative
verdict for offence under s 43
(1) This section applies if, in a prosecution for an offence against
section 43 (1), the trier of fact is not satisfied that the defendant is guilty
of the offence, but is satisfied beyond reasonable doubt that the defendant is
guilty of an offence against section 43 (4).
(2) The trier of fact may find the defendant not guilty of the offence
against section 43 (1) but guilty of the offence against
section 43 (4) only if the defendant has been given procedural
fairness in relation to that finding of guilt.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (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.
(1) The Minister may, in writing, approve forms for this Act.
Note For other provisions about forms, see Legislation Act, s
255.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
47 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units
for offences against the regulations.
Part
8 Transitional and other
matters
48 Repeal
of Hawkers Act 1936
The Hawkers Act 1936 No 43 is repealed.
49 Repealed
Act—permits to sell at authorised place
A permit in force under the Hawkers Act 1936 (repealed),
section 6B (2) immediately before the repeal of the Act continues in force
for the remainder of the period stated in the permit as if it were a licence
under this Act.
50 Repealed
Act—consents to sell within 180m of shops
A consent in force under the Hawkers Act 1936 (repealed),
section 6A (1) immediately before the repeal of the Act is taken to be an
exemption under this Act, section 28 (Hawking near commercial
premises—giving of exemption).
51 Amendment
of Roads and Public Places Act—sch 1
Schedule 1 amends the Roads and Public Places Act 1937.
52 Regulations
modifying pt 8
The regulations may modify the operation of this part to make provision
with respect to any matter that is not, or is not in the Executive’s
opinion adequately, dealt with in this part.
This part expires 1 year after the day this section commences.
Schedule
1 Roads and Public Places Act
1937
(see s 51)
[1.1] Section
15A, new note
insert
Note A hawker who is licensed under the Hawkers Act 2002 does
not require a permit under this Act to park a vehicle in a public place if the
person is carrying on the business of a hawker under that Act in accordance with
the person’s licence, see s 15U.
insert
15U Occupation etc of public land under Hawkers Act
licence
A person is not required to hold a permit under this Act to park a vehicle
in a public place if—
(a) the person holds a licence under the Hawkers Act 2002 to use
the vehicle to sell goods or services in the public place; and
(b) the person is carrying on the business of a hawker under that Act in
accordance with the licence.
(see s 5)
Note 1 The Legislation Act contains definitions and other
provisions relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• amend
• chief executive
• found guilty
• penalty unit
• Territory land.
authorised person means a person who is an authorised person
under section 40.
carry on business as a hawker—see section 8.
commercial premises means premises used for the sale of goods
or services.
exemption means an exemption under section 28 (Hawking near
commercial premises—giving of exemption).
exempt person means a person who is the holder of an
exemption under section 28.
licence means a licence under this Act.
public place—see section 9.
sell includes—
(a) barter, offer or attempt to sell; or
(b) have in possession for sale; or
(c) display for sale; or
(d) dispose of by any method for valuable consideration; or
(e) dispose of by way of raffle, lottery or other game of chance;
or
(f) offer as a prize or reward.
vehicle means any means of transport of people or goods,
whether or not self-propelled or capable of being operated or moved in any way,
and includes an animal.
Examples
a caravan, trailer and trolley
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2002
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