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Unclaimed Moneys (Amendment) Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
Clause 1 states the purpose of the Bill: to clarify the purpose of the
Unclaimed Moneys Act 1962, to clarify and modernise powers
and processes under that Act, and other miscellaneous
amendments.
Clause 2 provides the commencement arrangements for the amendments.
They will come into operation the day after Royal Assent.
Clause 3 names the Unclaimed Moneys Act 1962 as the Principal Act.
Clause 4 inserts a new section 2 in of the Principal Act which sets out the
purpose of the Principal Act.
Clause 5 inserts a new section 8A in Part 3 of the Principal Act which sets
out the purpose of that Part: to ensure businesses and trustees
deal properly with unclaimed moneys and property, to provide
for the Registrar to publish details of unclaimed moneys and to
provide for the inspection of businesses and trustees to ensure
compliance.
Clause 6 substitutes and inserts definitions in section 9 of the Principal
Act.
Sub-clause (1)(a) substitutes the definition of "business" to define
"business" as any body that carries on any business in Victoria,
including a sole legal practitioner. The definition also includes a
trustee company that is holding money (previously included in
the definition of "property" in section 13A).
Sub-clause (1)(b) inserts a definition of "reasonable expenses".
The definition explains what types of expenses businesses can
deduct in Part 3 of the Principal Act.
Sub-section (2) inserts new sub-sections (2A), (2B) and (2C) in
section 9 of the Principal Act.
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New section 9(2A) introduces a minimum amount for unclaimed
money. The section excludes any amount of unclaimed money or
unclaimed trust property less than $20 (or a higher amount
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prescribed by regulations) from Part 3 of the Principal Act.
New section 9(2B) clarifies the term "legally payable" in regard
to the definitions of "unclaimed moneys" and "owner".
The section determines that money is legally payable to a person
regardless of any action or claim by the person or any shift in
entitlement to the money accompanied by an arrangement for the
person to be paid.
New section 9(2C) reinforces the intention that a trustee that is a
business holding unclaimed moneys is treated the same as any
other business holding unclaimed moneys in Part 3 of the
Principal Act.
Sub-clause (3) inserts new sub-section (4) in the section 9 of the
Principal Act.
New section 9(4) allows the Registrar to determine what types of
expenses are defined as "reasonable expenses" in section 9(1) of
the Principal Act.
Clause 7 substitutes new sections 11 and 12 and inserts new sections 12A
and 12B in the Principal Act.
Section 11 clarifies and modernises the requirements of
businesses to keep a register and advertise details of unclaimed
moneys. It should be noted that the old section 11(2) provided
for the public inspection of the business register; this provision
has been removed in favour of a more modern approach to the
disclosure of information by the business and also by the
Registrar (via the unclaimed moneys website).
Section 11(1) requires a business holding unclaimed moneys to
establish a register and enter the details of unclaimed moneys
held at 1 March in the register by 31 March.
Section 11(2) and (3) require a business holding unclaimed
moneys to advertise the details of entries of at least $200 (or
another amount specified by the Registrar) in the Government
Gazette as determined by the Registrar. However, this does not
apply if the identity of the owner is unknown.
Section 11(5) provides for a business to deduct reasonable
expenses for holding unclaimed moneys and locating owners.
Section 12 clarifies and modernises the requirements of
businesses to lodge returns and pay unclaimed moneys to the
Registrar.
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Section 12(1) requires a business to pay unclaimed moneys to the
Registrar and lodge a return by 31 March. The section also
requires this payment to be equal to the amount of unclaimed
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moneys held by the business at 1 March the previous year, less
any amounts paid to owners net of expenses, less any expenses
applicable to the entries still unclaimed in the return. Further the
section allows the Registrar to determine the form and manner of
lodgement.
Section 12(2) requires the return to include the details of the
entries of unclaimed moneys that are still unclaimed and held by
the business at the time of lodgement. The section also requires
the return to include a statement of compliance that shows the
original total amount of unclaimed moneys held by the business,
the total amount paid by the business to the owners net of
allowable expenses, the total amount of expenses deducted by the
business for entries still unclaimed and a summary of these
expenses (such as postage, bank fees, stationery and advertising
costs) and the total amount payable to the Registrar.
This statement is intended to be a summary sheet of the
unclaimed amounts held by a business.
Section 12(3) provides for a business to deduct reasonable
expenses from the amount payable to the Registrar, that is the
amount still unclaimed at the time of lodgement.
Section 12(4) discharges a business from further liability in
respect of the amount paid to the Registrar.
Section 12(5) defines "authorised officer" as it relates to this
section.
Section 12A provides for unclaimed trust property. This section
is similar to the old section 13A apart from 2 changes explained
below.
Section 12A(3) clarifies a person's unconditional entitlement to
unclaimed property.
Section 12A(4) defines "property". The section now excludes
money from the definition of property. A trustee company
holding unclaimed moneys is now regarded as a business in
section 9 of the Principal Act and will be required to have a
register and follow the requirements of sections 11 and 12.
An individual trustee holding money (previously defined as
property in the old section 13A) may pay such money to the
Registrar under section 15 of the Principal Act.
Section 12B requires the Registrar to keep an official register of
unclaimed moneys.
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Section 12B(1) requires the register to contain the details of
unclaimed moneys provided by a business in its return and the
details required in the statements provided by a trustee.
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The details provided by a business will include a person's name,
last known address, a description of the unclaimed moneys and a
date when the moneys were first payable.
Section 12B(2) provides for the form of the register and what
manner it is kept in, to be determined by the Registrar.
Section 12B(3) allows the Registrar to disclose any information
contained in the register that is considered appropriate for the
purposes of Part 3 of the Principal Act. The intention is that this
wide discretion, to advertise or publish collected information,
will be exercised in accordance with the standards contained in
the Information Privacy Principles that comprise Schedule 1 of
the Information Privacy Act 2000.
Clause 8 substitutes new section 13 in the Principal Act.
Section 13 broadens the Registrar's powers of inspection of not
only businesses, but also trustees as defined in section 12A of the
Principal Act. The existing powers have been reviewed in
accordance with the Government's response to the
recommendations of the Parliamentary Law Reform Committee's
Report on Inspection Powers.
Section 13(1) requires that the inspection powers are only to be
used for determining compliance with Part 3 and only during
normal business hours.
Section 13(2) re-enacts current section 13(2), which requires a
person to sign a declaration of secrecy before exercising
inspection powers.
Section 13(3) requires that an authorised person must produce
written authorisation before exercising inspection powers or
when asked to produce the authorisation.
Section 13(4) provides for the Registrar or an authorised person
to require a business or trustee to produce any registers, records
or documents relating to unclaimed moneys. The section also
provides for inspection, copying, and correction of errors.
Section 13(5) provides for the qualifications for the appointment
of authorised persons.
Section 13(6) requires that copies taken must be destroyed or
returned to the owner once they are no longer required.
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Clause 9 repeals section 13A of the Principal Act. A new section 12A,
providing for unclaimed trust property, has been inserted in the
Principal Act (see clause 7).
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Clause 10 amends section 14(1) of the Principal Act, a technical
amendment regarding payments into the Consolidated Fund
under Part 3 of the Principal Act.
Clause 11 inserts new sections 15A to 15D in the Principal Act.
Section 15A exempts a trustee from any breach of trust for any
action in accordance with Part 3 of the Principal Act.
Section 15B includes details of the offences and the penalties
under Part 3 of the Principal Act; previously each offence and
penalty was included under each section. The section increases
penalties for businesses, introduces offences and penalties for
trustees and transfers all offences and penalties to a new
"Offences" section for Part 3 of the Principal Act. All per diem
penalties have been replaced with maximum penalties. The new
penalties have been introduced in accordance with Department of
Justice policy and in line with the Sentencing Act 1991.
Section 15C clarifies contraventions and convictions under Part 3
of the Principal Act by bodies and officers of bodies.
Section 15D inserts a transitional provision to ensure that the
amendments in the Bill do not affect liabilities that arose before
their commencement. In particular, those businesses currently
holding unclaimed money that has been advertised and is due to
be paid to the Registrar will follow the current procedures.
Clause 12 repeals section 16(ca) of the Principal Act as it is no longer
necessary to prescribe amounts for section 11. The means for
prescribing amounts will now be determined by the Registrar
where appropriate.
Clause 13 inserts a new section 22(4) in the Principal Act. This section
allows the Registrar to disclose any information relating to
unclaimed superannuation benefits contained in the register that
is considered appropriate for the purposes of Part 4 of the
Principal Act. It is intended that this wide discretion, to advertise
or publish collected information, will be exercised in accordance
with the standards contained in the Information Privacy
Principles that comprise Schedule 1 of the Information Privacy
Act 2000.
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