UNCLAIMED MONEY BILL 2008 Explanatory Memoranda

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UNCLAIMED MONEY BILL 2008

Unclaimed Money Bill 2008 Introduction Print EXPLANATORY MEMORANDUM General The object of this Bill is to safeguard and collect unclaimed money and to ensure the rightful owners of such money can be identified and located. Unclaimed money includes money paid into court, general unclaimed money such as share dividends, salaries and wages, rent and bonds, debentures and interest and unpresented cheques and unclaimed superannuation benefits. It rewrites the Unclaimed Moneys Act 1962 after numerous opportunities for further modernisation and improvement of that Act were identified. These matters are extensive enough to warrant a rewrite of the legislation, which accords with the Government's commitment to modernising Victoria's legislation and reducing the regulatory burden on Victorian business. Clause Notes PART 1--PRELIMINARY Part 1 of the Bill outlines the purposes of the Bill and contains the commencement provisions, definitions and other preliminary matters. Clause 1 outlines the purposes of the Bill. Clause 2 provides that the Bill will come into operation on the earlier of the day or days to be proclaimed or 1 January 2009. Clause 3 subclause (1) contains the following definitions-- amount payable which is defined to mean the amount due and payable to the Registrar by a business or trustee under Parts 3 and 4 of the Bill; assessment which is defined to mean an assessment of an amount payable made by the Registrar under clause 36 of the Bill; authorised investigation which is defined to mean an investigation authorised under Division 1 of Part 6; 561185 1 BILL LA INTRODUCTION 27/5/2008

authorised officer which is defined to mean a person appointed by the Registrar under section 9; authorised person which is defined to mean an authorised officer or any other person engaged (whether as an officer or employee or otherwise) in the administration of this Act; business which is defined to mean any person carrying on business in Victoria and includes-- · a corporation within the meaning of the Corporations Act; · a Council within the meaning of the Local Government Act 1989; · a public hospital within the meaning of the Health Services Act 1988; · a co-operative within the meaning of the Co-operatives Act 1996; · a society within the meaning of the Co-operative Housing Societies Act 1958; · a partnership, including a limited partnership; · a trustee company within the meaning of the Trustee Companies Act 1984; · a law practice within the meaning of the Legal Profession Act 2004; · any body, whether or not incorporated, prescribed to be a business; business register which is defined to mean a register of unclaimed money that a business must establish under section 11; corresponding law which is defined to mean a law of another State or Territory which relates to unclaimed money; Court which is defined to mean the Supreme Court, except in clauses 46, 80 and Part 7 (Money Paid into Court) where it means the Supreme Court, County Court or Magistrates Court; default which is defined to mean a failure by a business or trustee to pay an amount payable; Deputy Registrar which is defined to mean the person appointed as Deputy Registrar of Unclaimed Money under section 5; 2

money paid into court which is defined to have the meaning given in clause 86 of the Bill; objector which is defined to mean a person who lodges an objection under section 56(1) of the Bill; owner which is defined to mean, other than for Part 8 (Unclaimed Superannuation Benefits), the person entitled to any unclaimed money including the person's executors, administrators, assignees, lawful attorney or agent; person which is defined to include a body or association (corporate or unincorporate) and a partnership, including a firm; premises which is defined to include land, a vehicle, a vessel and an aircraft; prescribed which means prescribed by the regulations; proper officer which is defined to mean, in relation to-- · the Supreme Court, the Prothonotary; · the County Court, the registrar, deputy registrar or other officer of the County Court; · the Magistrates' Court, the Principal registrar, a registrar or deputy registrar of the Magistrates' Court; reasonable expenses of a business in holding unclaimed money and locating the owner which is defined to include bank fees, stationary, postage and such expenses as determined by the Registrar under subsection (2); reassessment which is defined to mean a reassesment made by the Registrar under clause 37 of an amount payable; Registrar which is defined to mean the person appointed as Registrar of Unclaimed Money under section 4 of the Bill; Secretary which is defined to mean the Secretary to Department of Treasury and Finance; trustee which is defined to include an executor, administrator or a trustee company within the meaning of the Trustee Companies Act 1984; unclaimed money which is defined to mean principal and interest and dividends, bonuses and profits and salaries and wages and sums of money that are legally payable to the owner that has remained unpaid for not less than 12 months after it has become payable or money that has been converted from 3

unclaimed trust property by a trustee after the expiration of the required period under Division 2 of Part 3; Any amount the value of which is less than $20 or a prescribed amount (whichever is higher) is not unclaimed money for the purposes of this Bill; unclaimed money register is defined to mean the unclaimed money register kept by the Registrar under section 28 of the Bill. Subclause (2) provides that the Registrar may, by instrument published in the Government Gazette, clarify what comprises "reasonable expenses of a business in holding unclaimed money and locating the owner". Subclause (3) clarifies the definition of owner and unclaimed money so that in determining whether an owner is entitled to money or if an amount of unclaimed money is legally payable, no account is to be taken of whether or not-- · the owner is required to take any action to claim or recover the money; or · there has been any shift in entitlement to the money accompanied by an arrangement or undertaking (whether enforceable or not) to pay the owner if the owner subsequently makes a claim. Subclause (4) provides that an amount will not be unclaimed money if the business knows or has reason to believe that the owner wishes the business to continue holding that amount. This provision ensures that money can be held in trust for over twelve months. Subclause (5) clarifies that, for the purposes of subclause (4), a business does not have reason to believe that an owner wishes the business to keep holding the money because the owner does not reply or does not reply as requested to communication from the business. Subclause (6) clarifies that, for the purposes of subclauses (4) and (5), if it is necessary to establish the belief of a business, it is sufficient to show that-- · in the case of a business that is a body corporate, that an employee, agent, or, a person concerned in the management of the body corporate within the meaning of clause 26(5) holds that belief; 4

· in the case of a business that is a partnership, firm, unincorporated body or association, that a person who is an employee, agent, or member of the partnership, firm, unincorporated body or association holds that belief. Subclause (7) clarifies that a business holding unclaimed money includes reference to unclaimed money held in the trust account of a law practice (within the meaning of the Legal Profession Act 2004). Subclause (8) clarifies that a reference in the Bill to a business holding unclaimed money includes a reference to the business holding that money as trustee. PART 2--ADMINISTRATION Part 2 of the Bill deals with the personnel involved with the administration of unclaimed money, including the appointment of the Registrar and Deputy Registrar of Unclaimed Money, staff and contractors, authorised agents and officers, together with the issuing of identity cards to authorised officers. Clause 4 Subclause (1) provides that the Secretary may appoint an employee in the public service as the Registrar who has administration of this Bill and any regulations and can carry out the powers, duties or functions conferred by this Bill and any regulations. Subclause (2) provides that the Registrar of Unclaimed Moneys appointed under the Unclaimed Moneys Act 1962 prior to its repeal is taken to be the Registrar under this Bill. Clause 5 Subclause (1) provides that the Secretary may appoint an employee in the public service as a Deputy Registrar of Unclaimed Money. Subclause (2) provides that, subject to the direction and control of the Registrar, the Deputy Registrar has the same duties and functions as the Registrar. Subclause (3) provides that the Deputy Registrar of Unclaimed Moneys appointed under the Unclaimed Moneys Act 1962 prior to its repeal is taken to be the Deputy Registrar under this Bill. Clause 6 provides that the Registrar may delegate any power, function or duty to any person engaged in the administration of this Bill (except this delegation power). Clause 7 provides that the Registrar may employ public servants to assist with the administration of the Bill and regulations. 5

Clause 8 provides that the Registrar may engage consultants and contractors to assist with the administration of the Bill. Clause 9 Subclause (1) provides that the Registrar is an authorised officer for the purposes of carrying out investigations under Division 1 of Part 6 of the Bill. Subclause (2) provides that the Registrar may, by instrument, appoint a person to be an authorised officer for the purposes of carrying out investigations under Division 1 of Part 6. Subclause (3) provides that the Registrar must be satisfied that any person appointed under subclause (2) is suitably qualified or trained to be an authorised officer. Subclause (4) provides that the appointment of an authorised officer may specify the functions, duties or powers under the Bill or regulations to which the appointment relates and can be subject to any conditions the Registrar considers appropriate. Clause 10 Subclause (1) provides that the Registrar must issue an identity card to each authorised officer. Subclause (2) provides that any identity card issued must contain a photograph of the authorised officer, their signature, a statement that they are an authorised officer for the purposes of the Bill and be signed by the Registrar. PART 3--BUSINESS AND TRUSTEES Part 3 of the Bill deals with various obligations on business and trustees, including the requirement to keep a business register of unclaimed money, pay unclaimed money to the Registrar and lodge a return. Other requirements include keeping records for a certain period of time, in English (or easily convertible into English) that are accessible. There are offences that attract penalties for a failure to comply with these obligations and for giving false or misleading information in whatever form. These are necessary because the Bill creates a self assessment regime, and third party co-operation underpins its effective operation. Division 1--Obligations of business in respect of unclaimed money Clause 11 Subclause (1) requires a business holding unclaimed money to keep a register of unclaimed money in a form prescribed by the regulations at, or readily accessible from (should the business store the register off site), its principal place of business. By 31 March of any given year, the business must enter details of unclaimed money which the business held at 1 March of that same year in the register. 6

Subclause (2) ensures that the entry of details in the register will not affect or prejudice the owner's rights to recover unclaimed money from the business so long as the unclaimed money has not been paid to the Registrar. Subclause (3) permits the business to deduct, out of unclaimed money payable to an owner, reasonable expenses which it incurs in holding the unclaimed money and locating the owner. Reasonable expenses are intended to be of a minor administrative nature and would not include the wages of an employee or agent responsible for managing unclaimed money held by a business. The reasonable expenses of a business would include the cost of sending letters to the owners of unclaimed money, in an effort to locate them. Reasonable expenses would also include expenses associated with holding unclaimed money, such as bank fees. Clause 11 does not apply to unclaimed money that is money converted from unclaimed trust property by a trustee under clause 14. Clause 12 Subclause (1) requires a business, by 31 May each year, to pay an amount equal to all amounts of unclaimed money (less any amounts paid to owners and any reasonable expenses) held by it on 1 March of that same year and lodge a return with the Registrar. The Registrar has a discretion to approve a later date. Subclause (2) provides that the return must include the details in the business register which are associated with the unclaimed money paid to the Registrar and a statement of compliance (in a form approved by the Registrar) signed by a nominated officer of the business. Subclause (3) permits the business to deduct, out of unclaimed money payable to the Registrar, reasonable expenses which it incurs in holding the unclaimed money and locating all the owners. These will include any minor administrative expenses incurred between 1 March and 31 May (or such earlier time that the unclaimed money is paid to the Registrar) each year. Subclause (4) discharges the business from further liabilities in respect of an amount of unclaimed money which it pays to the Registrar. Subclause (5) defines nominated officer to mean the officer or employee of the business who is responsible for managing unclaimed money held by the business. 7

Division 2--Obligations of trustees in respect of unclaimed trust property Clause 13 Subclause (1) provides two definitions for the purposes of this Division-- property which includes-- · any estate, share or interest in real or personal property; · any debt or thing in action; · any other right or interest, whether in possession or not-- but does not include any money; required period means a period of 6 years commencing after the person entitled to the property became entitled to have the property transferred to them. Subclause (2) provides that for the purposes of the definition of required period no account is to be taken, in determining whether a person is entitled to have property, of whether or not-- · the person is required by the terms of the trust to take any action by way of demand or otherwise to have the property transferred to them; or · there is or has been any shift in entitlement to the property accompanied by an arrangement or undertaking (whether enforceable or not) to pay the person if the person subsequently makes a claim. Clause 14 Subclause (1) provides that where trust property has not been claimed by a person entitled to it for a period of 6 years (after that person first became entitled to have the property transferred to them), the trustee must, within twelve months of the end of that six year period (unless the trustee applies for and the Registrar extends the time in writing) sell, call in or otherwise convert the unclaimed trust property to money, pay the money to the Registrar and lodge a statement giving details of the unclaimed trust property, the money paid, and the person entitled to that property before it was converted into money. Subclause (2) allows the Registrar to extend the time for selling, calling in or converting property, for paying the money, and lodging a statement with the Registrar. 8

Subclause (3) provides that a trustee is not required to comply with this section if the trustee knows that the person entitled to the trust property intends the trustee to continue holding that trust property. This provision ensures that property can be held in trust for over six years. Subclause (4) provides that a trustee does not have reason to believe that a person entitled to property wishes the trustee to continue to hold the property because the person does not respond to a communication from the trustee (or does not respond as specified in the communication), even if the terms of the communication suggest that the person's failure to respond indicates such a wish. Subclause (5) provides that Division 1 (Obligations of business in respect of unclaimed money) does not apply to a trustee who is required to pay unclaimed money to the Registrar under subclause (1) of clause 14. Clause 15 Subclause (1) provides that a trustee may apply to the Registrar for an extension of time to sell, call in or convert property, pay the unclaimed money, and lodge a statement with the Registrar under section 14(1). Subclause (2) provides that the application by a trustee must be in writing, detailing the reason(s) why the extension of time is required and must be made no later than 12 months after the expiration of the 6 year period. Clause 16 Subclause (1) requires the Registrar's decision in respect of an application for an extension of time to be made within 60 days of receiving the application for an extension of time or within such period of time as agreed to by the trustee. Notice of the decision must be given in writing. Subclause (2) requires a decision to grant an extension of time to specify the length of the extension and a decision not to grant an extension of time to specify the Registrar's reasons for not granting the extension. Division 3--Offences for failure to meet obligations in respect of unclaimed money Clause 17 creates an offence where a person fails to make entries, without reasonable excuse, in the business register as required under section 11(1). A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, 9

key personnel not being available due to sudden resignation, illness or death, or computer malfunction. A maximum penalty of 30 penalty units for a person and 60 penalty units for a body corporate is prescribed for a breach of this provision. Clause 18 creates an offence where a business fails, without reasonable excuse, to make payment and lodge returns to the Registrar as required under section 12(1). A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, key personnel not being available due to sudden resignation, illness or death, or computer malfunction. A maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Clause 19 creates an offence where a trustee fails, without reasonable excuse, to comply with their obligations under section 14(1) of the Bill. A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, key personnel not being available due to sudden resignation, illness or death, or computer malfunction. A maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Clause 20 Subclause (1) imposes a requirement on a business to keep or cause to be kept proper records to enable the Registrar to verify their compliance under Parts 3 and 4 of the Bill. Subclause (2) imposes a requirement on a trustee to keep or cause to be kept proper records to enable the Registrar to verify their compliance with Parts 3 and 4 of the Bill. In both instances, a maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of either provision. Clause 21 creates an offence for making or including information in a record (required to be made or kept under the Bill) that is false or misleading in a material particular. A maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of this provision. 10

Clause 22 provides that records (required to be kept or cause to be kept under the Bill) are to be kept in such a manner that they can be readily produced to the Registrar. A maximum penalty of 30 penalty units for a person and 60 penalty units for a body corporate is prescribed for a breach of this provision. Clause 23 provides that records (required to be kept or cause to be kept under the Bill) must be kept in, or easily convertible into, the English language. A maximum penalty of 30 penalty units for a person and 60 penalty units for a body corporate is prescribed for a breach of this provision. Clause 24 requires a business or trustee to retain records (required to be kept or cause to be kept under the Bill) for five years. The five year period commences from the later date of when the record was made or obtained or when the business lodged a return or trustee lodged a statement with the Registrar relating to that record. A maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Clause 25 creates an offence for giving false or misleading information to an authorised person. This includes making or omitting information from a declaration or statement so that the declaration or statement is false or misleading in a material particular. This clause may apply to a person who has falsely claimed that they are the owner of unclaimed money, as well as when false and misleading information is given by, or on behalf of, a business or trustee. A maximum penalty of 60 penalty units for a person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Clause 26 Subclause (1) provides that if a body corporate contravenes a provision of the Bill, a person who is concerned in, or takes part in, the management of the body corporate is deemed to have contravened the same provision (subject to subclause 2). Subclause (2) provides that a person will not be deemed to have contravened the provision if they can point to evidence in the proceeding, which shows any of the following matters-- · the person did not know the body corporate had contravened the provision; 11

· the person was not in a position to influence the conduct of the body corporate in relation to its contravention of the provision; or · the person used all due diligence to prevent the contravention of the provision by the body corporate. If a person can point to evidence of these matters, the Registrar will be required to disprove that evidence beyond reasonable doubt. Subclause (3) provides that a person may be convicted under this provision, even if the body corporate has not been convicted. Subclause (4) provides that this clause has no impact on the liability imposed on a body corporate for any offence it commits under the Act. Subclause (5) sets out the persons who are considered to be concerned in, or take part in, the management of a body corporate for the purpose of this clause. Those persons are-- · a director of a body corporate; · a secretary of a body corporate; · a receiver or manager of property of the body corporate; · an official manager or deputy official manager of a body corporate; · a liquidator of a body corporate appointed in a voluntary winding up of the body corporate; · a trustee or other person administering a compromise or arrangement between the body corporate and another person or persons. Clause 27 provides that if a person, being a partnership or unincorporated association, is guilty of an offence, that reference to the person in the case of a partnership is to be read as a reference to each member of the partnership and in the case of an unincorporated association is to be read as a reference to each member of the committee of management of the association. 12

PART 4--REGISTRAR'S OBLIGATIONS AND POWERS IN RESPECT OF UNCLAIMED MONEY Part 4 of the Bill outlines the Registrar's obligations and powers in respect of unclaimed money. The Registrar is obliged to keep a register of unclaimed money, repay unclaimed money that is paid incorrectly, and pay unclaimed money to owners. The powers given to the Registrar include a general power to make (and withdraw) an assessment or reassessment in respect of a business or trustee. Interest can be charged on money where there is a default resulting in money remaining payable to the Registrar after it becomes due. Penalties are payable (in addition to interest) where a default occurs. The amount of penalty payable can be increased or decreased in certain circumstances. Division 1--Registrar's obligations in respect of unclaimed money Clause 28 Subclause (1) provides that the Registrar must keep an unclaimed money register recording details included in the returns under clause 12(2)(a) and details included in the statements under clause 14(1)(c). Subclause (2) gives the Registrar discretion to decide the form and manner in which the unclaimed money register is to be kept. Subclause (3) requires the Registrar to advertise, publish or make publicly available on the Internet in a searchable form updated regularly, and in any other form the Registrar considers appropriate, the minimum amount of information from the unclaimed money register which the Registrar considers necessary and expedient for purposes of the Bill. The Bill imposes a positive obligation on the Registrar to advertise, publish or make publicly available information primarily for the purpose of identifying and locating the owners of unclaimed money. The requirement to make this information available in a searchable form on the Internet will ensure that potential owners can access details about unclaimed money at any point in time. This represents a more contemporary and accessible equivalent to Gazette advertising. The term "publicly available" means the Registrar must make information from the unclaimed money register available in both metropolitan and regional areas. Some people in rural or regional areas may not have access to the Internet to conduct an unclaimed money search. Therefore, subclause (3) permits the Registrar to make information publicly available in other forms, for example, the equivalent information may be available by telephoning a toll free number. 13

The term "minimum amount of information" is included to balance the owner's right to privacy with the need to advertise to locate owners and is aimed at preventing identity theft or other misuse of personal information. It is anticipated that where details are made available in printed form, publication will be limited to the owner's suburb rather than full address and the band width of unclaimed money rather than the specific amount. Subclause (4) clarifies that the Register is not required to advertise or publish such information where the identity of the owner is unknown. Clause 29 Subclause (1) provides that if a business or trustee believes they have overpaid unclaimed money under clauses 12 or 14, they may apply to the Registrar for a repayment. Subclause (2) provides that an application for repayment of unclaimed money must be in a form approved by the Registrar and made within 5 years of the payment to the Registrar. Clause 30 Subclause (1) provides that the Registrar must consider such an application within 60 days of receiving it and must give notice in writing of his or her decision. The Registrar is required to give reasons, where a decision is taken to reject an application, or allow repayment in part only. Subclause (2) provides that if the Registrar does not make a decision within 60 days of receiving an application for repayment, the Registrar is deemed to have made a decision to reject the application. As a result, the applicant can avail themselves of the objection process. Clause 31 provides a business or trustee cannot make an application for repayment of unclaimed money paid to the Registrar under section 12 or 14 if the Registrar has previously served a notice of assessment or reassessment on the business or trustee that relates to the payment that would be the subject of the application. Instead, a business or trustee may lodge a written objection to an assessment under Division 1 of Part 5. This ensures that there cannot be a simultaneous assessment/ reassessment dispute as well as a repayment dispute under this provision. Clause 32 Subclause (1) provides that if the Register decides to repay, in full or in part, unclaimed money paid under clauses 12 or 14, the Registrar must repay the amount of unclaimed money that is in excess of the amount properly payable under those clauses. 14

Subclause (2) provides that money repaid under subclause (1) may be repaid to the business or trustee that paid the Registrar or to a person the Registrar otherwise considers appropriate. Clause 33 Subclause (1) provides that an owner may apply to the Registrar for payment of unclaimed money that has been paid to the Registrar by a business or trustee. Subclauses (2) and (3) provide that the Registrar may pay the unclaimed money to the applicant, if the Registrar is satisfied that the person is the owner of the money. The applicant bears the onus of establishing that they are the owner of the unclaimed money. Subclauses (4) provides that following payment to an owner the Registrar is discharged from any further liability in relation to that amount. Subclause (5) provides that, if after a payment is made, another person claims to be the owner of the unclaimed money, that person may have recourse against the person to whom the money was paid. Clause 34 provides that the Registrar may recover amount payable under the Bill as a debt due to the State. Clause 35 gives the Registrar flexibility to enter into payment arrangements with a business or trustee in order to recover an amount payable under the Bill. This includes arrangements for payment by instalments. The Registrar may also write off the whole or part of an amount payable if recovery is impracticable or unwarranted. Division 2--Assessment and reassessment Clause 36 Subclause (1) gives the Registrar the power to make an assessment of an amount payable to the Registrar. Subclause (2) provides that the assessment may include a determination that there is no particular amount payable. Clause 37 Subclause (1) enables the Registrar to make one or more reassessments of an amount payable by a business or trustee. Subclause (2) provides that the reassessment may include a determination that there is no particular amount payable. Subclause (3) provides that a reassessment may be made even if an amount previously assessed has been paid or if the amount payable under the reassessment is greater than previously assessed. 15

Subclause (4) prohibits a reassessment being made more than five years after the initial assessment unless the reassessment is made to effect an objection, review or appeal decision or, there was not true and full disclosure at the time the initial assessment or reassessment was made. Subclause (5) provides that the five year limit applies even if the initial assessment is withdrawn. Clause 38 provides that the Registrar may make an assessment or reassessment based on information from any source available at the time and, if there is insufficient information to make an exact assessment or reassessment, the Registrar may estimate the amount. This will enable an assessment to be made where, for example, a trustee has failed to convert trust property into money. Clause 39 allows the Registrar to withdraw an assessment or reassessment within five years of the date of service of the notice of assessment or reassessment irrespective of whether the amount assessed or reassessed has been paid. Clause 40 provides for mandatory service by the Registrar of a notice of assessment, reassessment or withdrawal of assessment. The notice of assessment or reassessment must be expressed as an assessment or reassessment of an amount payable and also specify the amount payable. That amount is to be paid by the date specified in the notice of assessment or reassessment. Clause 41 provides that interest or penalty payable for a default must be included in a notice of assessment or reassessment served on a business or trustee following that default. Clause 42 provides that the validity of an assessment or reassessment is not affected because a provision of the Bill has not been complied with. Division 3--Interest Clause 43 Subclause (1) imposes a liability on a business or trustee where a default occurs to pay interest on an amount payable under the Bill which remains unpaid. The interest is calculated on a daily basis from the end of the last day for payment until the date the amount is paid. Subclause (2) provides that interest is payable upon a failure to pay penalty but not in respect of a failure to pay interest. 16

Clause 44 Subclause (1) provides that the interest rate payable is the sum of the market rate component (which equals the Bank Accepted Bills rate unless there is a current order specifying a different rate, made by the Minister and published in the Government Gazette) and a premium rate component (of 8% per annum). Subclause (2) defines the Bank Accepted Bills rate in respect of any day as the average of the daily yields for 90 day Bank Accepted Bills published by the Reserve Bank of Australia for the month of May in the financial year preceding the financial year in which the day occurs. Subclause (3) provides that the Bank Accepted Bills rate must be rounded to the second decimal place (rounding 0005 upwards). Clause 45 provides that an amount of interest that is less than $20 is not payable. Clause 46 provides that the interest rate determined under this Division is to apply to an amount payable under the Bill which remains unpaid irrespective of whether a Court judgment has been made in respect of that or part of that amount payable. Clause 47 permits the Registrar to remit either or both the market rate component or premium rate component of interest by any amount. Division 4--Penalty Clause 48 Subclause (1) imposes a liability on a business or trustee, where a default occurs, to pay a penalty; Subclause (2) provides that the penalty imposed under this Division is in addition to any interest imposed. Subclause (3) provides that penalty is not payable in respect of a failure to pay interest imposed under Division 3 or a failure to pay a penalty previously imposed under this Division. Clause 49 Subclause (1) provides that the amount of penalty is 25% of the amount payable under the Bill which remains unpaid (subject to the provisions which follow). Subclause (2) enables the Registrar to increase the penalty to 75% of the amount payable under the Bill which remains unpaid if satisfied that the default is wholly or partly caused by the intentional disregard of the law by a business, trustee or a person acting on their behalf. 17

Subclause (3) provides that no penalty is payable where the Registrar is satisfied that the business or trustee (or a person acting on their behalf) took reasonable care to comply with the Bill or that the default occurred solely because of circumstances beyond their control. Clause 50 Subclause (1) provides for the amount of penalty to be reduced by 80% if the business or trustee discloses the default in writing to the Registrar before being informed that an investigation concerning the affairs of the business or trustee is to be carried out. Subclause (2) provides for the amount of penalty to be reduced by 20% if the business or trustee discloses the default in writing to the Registrar after being informed that an investigation concerning the affairs of the business or trustee is to be carried out but before the investigation is completed. Subclause (3) provides that subclauses (1) or (2) do not apply in respect of information disclosed by a business or trustee if-- · the default involves the failure by a business to lodge a return and pay the amount payable to the Registrar under clause 12, or, where a business lodges a return, the failure by a business to pay the amount payable in relation to that return by the due date; or · the default involves the failure of a trustee to pay money and lodge a statement in accordance with clause 14, or if a trustee lodges a statement within the required time, the failure by the trustee to pay the amount payable in relation to that statement within the required time, or such other time allowed by the Registrar. Clause 51 provides for an increase in the amount of penalty imposed under this Division by 20% where the business or trustee attempted to prevent or hinder the Registrar discovering the default. This includes damaging or destroying records, refusing to comply with a requirement made by the Registrar during an authorised investigation or by hindering or obstructing an authorised officer carrying out an authorised investigation. Clause 52 provides that an amount of penalty is not to be imposed if it would be less than $20. Clause 53 provides that a penalty imposed must be paid within the period specified in a notice of assessment or reassessment. Clause 54 allows the Registrar to remit the penalty by any amount. 18

Division 5--Interest and penalty not to be deducted from unclaimed money Clause 55 prohibits a business from deducting any interest or penalty payable under Part 4 from the amount of unclaimed money payable to an owner or the Registrar. PART 5--OBJECTIONS, REVIEWS AND APPEALS Part 5 of the Bill sets out the process by which a business or trustee can object to an assessment, reassessment or a decision by the Registrar not to repay unclaimed money, or repay it in part only. This Part also sets out the review and appeal rights available to a business or trustee that is dissatisfied with a decision on objection. Division 1--Objections, reviews and appeals Clause 56 Subclause (1) provides a business or trustee who is dissatisfied with an assessment, reassessment or decision not to repay unclaimed money, or repay it in part only, with the right to lodge a written objection. Subclause (2) provides that the grounds of the objection must be in writing and fully stated. Subclause (3) provides that in the case of a reassessment, the grounds for the objection may only relate to the amounts payable specified in the reassessment to the extent those amounts are additional to or greater than those under a previous assessment or reassessment. Subclause (4) places the onus of proving the objector's case on the objector. Subclause (5) provides that an objection must be lodged with the Registrar within 60 days after-- · service of the notice of assessment or reassessment on the objector; or · service of the decision on the objector. Subclause (6) provides that if the Registrar is satisfied that the business has a reasonable excuse for failing to lodge an objection, the Registrar may extend the 60 day period for lodging the objection. Subclause (7) provides that an objection is taken to be lodged with the Registrar when it is received by the Registrar. 19

Clause 57 Subclause (1) provides that the Registrar must allow an objection in whole or part or disallow it. Subclause (2) provides that an objection that is subject to a right of review may be determined by the Registrar at any time before the review proceedings commence. Subclauses (3) and (4) require the Registrar to give the objector a written notice of the outcome of the objection. This notice must specify the reasons for disallowing or allowing the objection in part. Clause 58 provides that the Registrar may suspend the determination of an objection where relevant information requested by the Registrar has not been provided. The suspension takes effect upon service of the written notice of suspension. Clause 59 provides for the right of review or appeal by a business or trustee dissatisfied with the Registrar's determination of their objection or the Registrar's failure to determine their objection. Subclauses (1) and (2) provide that where a business or trustee is dissatisfied with the Registrar's determination of an objection or, if 90 days have elapsed and the objection has not been determined, the business or trustee may either request that the matter be referred to the Victorian Civil and Administrative Tribunal or be treated as an appeal to be set down for hearing by the Court. Subclause (3) provides that where a business or trustee is dissatisfied with the Registrar's determination of an objection, the request for referral must be made within 60 days of the date of service of the notice of determination or, if no notice was served, any time after the expiration of the 90 day period within which the Register was required to issue a notice of determination. Subclause (4) requires the Registrar to refer the matter to review or appeal within 60 days of the request (subject to clause 60). Clause 60 provides that within 30 days of the request for referral for review or appeal, the Registrar may require the objector to give further and better particulars of the objection. Where the particulars requested are given within 30 days, the Registrar has 30 days from the date the particulars are received in full to refer the matter for review or appeal. If particulars are not given within the 30 days, the Registrar cannot refer the matter for review or appeal. 20

Clause 61 provides that upon a review or appeal, the objector's and Registrar's case are respectively limited to the grounds stated in the objection and the grounds on which the objection was disallowed, unless VCAT or the Court otherwise orders. Clause 62 provides that the objector bears the onus of proving the objector's case on a review or appeal. Clause 63 Subclause (1) provides for VCAT to review a matter referred to it, and empowers it to confirm or vary the Registrar's assessment, reassessment or decision. Subclause (2) requires VCAT to confirm the assessment, reassessment or decision if the objector does not appear at the hearing. However subclause (3) provides that if good cause is subsequently shown VCAT may re-open and review the matter within the time prescribed by the Regulations. Clause 64 enables the Court, on hearing an appeal, to make any order it thinks fit including an order to confirm or vary the Registrar's assessment, reassessment or decision. The Court is also given the discretion to determine the costs of the appeal. Clause 65 Subclause (1) requires the Registrar to give effect to a decision on review or appeal within 60 days of the decision on review or appeal becoming final. Subclause (2) provides that where no appeal is instituted against a decision of VCAT or the Court within 30 days of the date of decision, that decision becomes final at the end of that period. Division 2--Refund of amounts and payment of interest following a successful objection, review or appeal Clause 66 provides that if an objection to an assessment, reassessment or decision is allowed in whole or in part, or a review or appeal upheld, then the Registrar must refund any amount paid that is in excess of an amount required to be paid under this Bill. Clause 67 provides that, in addition to an amount refunded under this Part, the Registrar is required to pay interest on the amount calculated at the market rate referred to in section 44(1)(a) on a daily basis from-- · the date of payment of the amount overpaid that is refunded; or 21

· the date on which the Registrar made the assessment, reassessment or decision to which the objection and review or appeal relates-- whichever is the later, until the date of the refund. PART 6--INVESTIGATION, SECRECY AND GENERAL UNCLAIMED MONEY PROVISIONS The provisions in Part 6 set out the investigations powers, including the power of search, entry and inspection. The secrecy provisions prohibit and permit certain disclosures of information by authorised officers to particular recipients. Division 1--Investigations Clause 68 outlines the purposes for which the Registrar may authorise an investigation under this Division. These are to monitor compliance, investigate suspected contraventions of offences, and investigate other matters incidental to the administration of this Bill or a corresponding law. Clause 69 Subclause (1) empowers the Registrar, by written notice, to require a person to provide information, produce documents or attend and give evidence. Subclause (2) enables the Registrar to require evidence not given orally to be verified by statutory declaration. Subclause (3) enables the Registrar to require oral evidence to be given on oath. Subclause (4) requires a person to comply with a notice given under this provision within a specified time. A maximum penalty of 60 penalty units in the case of a natural person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Clause 70 Subclause (1) sets out the powers of entry, search and inspection for the purposes of an authorised investigation. These include powers to inspect premises, require a person to produce a document, operate a device to produce a document, retain a document and, require a person to answer questions and give reasonable assistance to an authorised officer. Subclause (2) enables the authorised officer to enter premises with the consent of the occupier or on the authority of a search warrant. 22

Subclause (3) provides that the occupier who consents to entry search and inspection must be given a copy of his or her signed consent immediately. Subclause (4) provides that an authorised officer must, upon request, produce his or her identity card to the occupier of the premises. Subclause (5) allows the authorised officer to be accompanied by any assistants and equipment reasonably required to carry out the authorised investigation. Subclause (6) creates an offence where a person hinders or obstructs, or fails to reasonably co-operate with an authorised officer carrying out an authorised investigation or answers a question with an answer he or she knows is false or misleading. A maximum penalty of 60 penalty units in the case of a natural person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Subclause (7) creates an offence where a person uses threatening language to an authorised officer carrying out an authorised investigation or person assisting an authorised officer. This offence can only be committed by a person, not a business so a maximum penalty of 30 penalty units only is stipulated. Clause 71 makes provision for obtaining a search warrant. Subclause (1) enables an authorised officer to apply for a search warrant where there is a belief, on reasonable grounds, that a thing relevant to the administration of the Bill is or will be on the premises within the next 72 hours. Subclause (2) empowers a magistrate to issue a search warrant if satisfied by evidence on oath of the matters stipulated in subclause (1). The warrant may permit an authorised officer to enter the premises, search for and seize a thing named in the warrant and break open any receptacle if reasonably necessary. Subclause (3) requires a search warrant to state the premises to be searched, a description of the thing to be searched for, any conditions of the warrant, that entry is to be made during business hours unless unreasonable, and the day the warrant ceases to have effect. Subclause (4) provides that a search warrant must be issued in accordance with the Magistrates' Court Act 1989. 23

Subclause (5) provides that the rules relating to warrants under the Magistrates' Court Act 1989 are to apply to warrants issued under this provision. Clause 72 requires an authorised officer or assistant to announce his or her authority to enter the premises under a search warrant before executing it unless there is a reasonable belief that immediate entry is required to either protect the safety of any persons or to ensure that effective execution of the search warrant is not frustrated. Clause 73 provides that if the occupier (or apparent occupier) is present when the search warrant is executed, the authorised officer must identify himself or herself by producing his or her identity card for inspection. A copy of the search warrant must also be given to the occupier (or apparent occupier). Clause 74 provides protection against self-incrimination. Subclause (1) provides that a person may refuse or fail to give information, produce documents or answer questions that the person is required to give, produce or answer under the investigations provisions if giving the information, producing the documents or answering the questions would tend to incriminate the person. Subclause (2) does not excuse a person from giving information, producing documents or answering questions that the person is required to give, produce or answer on the ground that giving the information, producing the documents or answering the questions would tend to incriminate the person in respect of an offence against this Bill. Subclause (3) provides that information given, documents produced or questions answered by a person as required by the investigation provisions of this Bill are not admissible in evidence against the person in any proceeding in respect of an offence against this Bill. Nothing in this provision prevents the person providing information from being charged with perjury, or that evidence being used against another person. Clause 75 provides that the Registrar may conduct an authorised investigation for the purposes of a corresponding law if requested to do so by the authority who administers that corresponding law. For this purpose, the Registrar may delegate his or her powers of investigation to that authority or an appropriate officer or employee of that authority. 24

Division 2--Secrecy Clause 76 prohibits persons involved in administering the Bill (now or in the past) from disclosing information obtained in the administration of the Bill. A maximum penalty of 60 penalty units is prescribed for a breach of this provision. Subclause (2) confirms that information received by such persons is exempted from disclosure under section 38 of the Freedom of Information Act 1982. Clause 77 permits the disclosure of information by persons involved in administering the Bill in certain circumstances, including with the consent of the person to whom the information relates, or in connection with the administration of the Bill or in relation to other laws as specified. Subclause 77(1) also allows disclosure to a number of "authorised recipients" being-- · the Ombudsman; or · a member of the police force; or · the Auditor-General; or · a member of the Australian Federal Police; or · the Director of Consumer Affairs; or · the Victorian WorkCover Authority; or · the Privacy Commissioner appointed under the Information Privacy Act 2000; or · a person prescribed to be an authorised recipient for the purposes of this section. Clause 78 Subclause (1) allows the Registrar to disclose information obtained under or in relation to the administration of this Bill unless that information will or is likely to identify a particular person. This may include information such as figures and statistics. Subclause (2) permits the Registrar, despite subclause (1) to disclose information obtained under or in relation to the administration of this Bill that will or is likely to identify a person if that disclosure is required by or is necessary for the administration of this Bill. 25

Clause 79 Subclause (1) prohibits a person who has obtained information from a person involved in administering the Bill under section 77, from further disclosing that information unless-- · the disclosure is to enable that person to exercise a function conferred by law for the enforcement of a law; or · the disclosure is to enable that person to exercise a function to protect the public revenue; and · the Registrar consents to it. A maximum penalty of 60 penalty units in the case of a natural person and 120 penalty units for a body corporate is prescribed for a breach of this provision. Subclause (2) confirms that information referred to in subclause (1) is exempted from disclosure under section 38 of the Freedom of Information Act 1982. Clause 80 provides further restrictions on disclosure by restricting persons who are or were authorised persons involved in administering the Bill from disclosing or producing in Court any information obtained in the administration of the Bill unless the disclosure is necessary for the purposes of-- · administration of the Bill; or · enabling an authorised recipient to exercise a function conferred or imposed by law. Division 3--General unclaimed money provisions Clause 81 Subclause (1) is a catch-all provision to ensure that persons who hold unclaimed money, but are not otherwise covered by the definition of a business, can still remit unclaimed money to the Registrar under clause 12(1). Subclause (2) clarifies that subclause (1) does not apply to any money converted from trust property, or money paid into Court. Clause 82 provides that a person who has paid unclaimed money to the Registrar under clause 81 can apply to the Registrar for repayment of that money. The form of application is the same as that set out in clauses 29 and 30 of the Bill. Clause 83 provides that the production of a notice of assessment (or reassessment) or a document signed by the Registrar purporting to be a copy of such a notice of assessment (or reassessment) is 26

evidence of the due making of the assessment (or reassessment) and of the correctness of the amount and particulars of the assessment (or reassessment). Clause 84 allows the Registrar to give evidence of the matters stipulated in this clause by way of a signed certificate in any proceeding under the Bill. The certificate is proof of the matters stated therein. Clause 85 extends the time for commencing prosecution for an offence under the Bill to 3 years after the alleged commission of the offence. The extension for bringing proceedings ensures the Registrar has sufficient time to prepare evidence and bring proceedings in relation to offences under the Bill. PART 7--MONEY PAID INTO COURT Part 7 provides for unclaimed money paid into court. Clause 86 defines money paid into court to mean money or any security paid into Court or paid into any ADI (whether in the name or to the credit of any officer or person of the Court) and that may be subject to the order or disposition of the Court. Money paid into court also includes-- · any interest, dividends or other profits that have accrued after the money is paid into court; or · the proceeds from the sale of any security paid into Court. Clause 87 Subclause (1) provides that money paid into court, which remains unclaimed for fifteen years, is to be paid into the Consolidated Fund. Subclauses (2) and (3) provide that the 15 year period does not start running if (based on documents filed in court) the person entitled to the money, falls into one of the following categories set out below, until the specified event occurs-- · a person under the age of 18, attains the age of 18; · a person who is insolvent under administration, is no longer insolvent under administration; · a person who has a disability within the meaning of the Guardianship and Administration Act 1986, becomes a represented person within the meaning of that Act; or 27

· a person who is entitled to the money on the happening of an event, when that event happens. The 15 year period will also start running if one of those persons dies. Clause 88 Subclause (1) provides that after the expiry of the 15 year period a proper officer of the Court may sell or otherwise convert money paid into court for the purposes of paying that money into the Consolidated Fund. This may be necessary where the money paid into court consists of a security in the form of real property. Subclause (2) permits the Court to make an order vesting the money paid into court in the proper officer in order to facilitate the payment of that money into the Consolidated Fund. Clause 89 Subclause (1) provides that where money in Court has been paid into the Consolidated Fund, a Court shall hear and determine any claim, application or proceedings brought in relation to the money as if the money had remained in Court. Subclause (2) provides that the Court has power to make an order for the payment to any person of the money, or any part of the money, paid into the Consolidated Fund. Subclause (3) and (4) provides that the Minister must pay an amount out of the Consolidated Fund in accordance with a Court order, but that amount is not to include interest calculated from the date it was paid into the Consolidated Fund. Subclause (5) provides that amounts payable under Part 7 are payable out of the Consolidated fund and the Consolidated fund is to the necessary extent appropriated accordingly. PART 8--UNCLAIMED SUPERANNUATION BENEFITS This Part sets out the regime for unclaimed superannuation benefits. Clause 90 contains the following definitions-- approved deposit fund has the same meaning as in section 10 of the Commonwealth Superannuation Act; Commonwealth RSA Act means the Retirement Savings Accounts Act 1997 of the Commonwealth; Commonwealth Superannuation Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; Commonwealth Unclaimed Money Act means the Superannuation (Unclaimed Money and Lost Members) Act 1999 of the Commonwealth; 28

exempt public sector superannuation scheme means a public sector superannuation scheme that is specified in the regulations made under the Commonwealth Superannuation Act for the purposes of the definition of exempt public sector superannuation scheme in that Act; holder of an RSA has the same meaning as in the Commonwealth RSA Act; member means-- · a member of, or a depositor with, a superannuation fund; or · a holder of an RSA; or · in respect of an unclaimed superannuation benefit that is taken to be unclaimed money under section 12(2) of the Commonwealth Unclaimed Money Act, a non-member spouse within the meaning of Part VIIIB of the Family Law Act 1975 of the Commonwealth; owner means the person entitled to any unclaimed superannuation benefit including-- · the person's executors, administrators or assignees; or · the person's lawful attorney or agent. regulated superannuation fund has the same meaning as in section 19 of the Commonwealth Superannuation Act; retirement savings account and RSA have the same meaning as in section 8 of the Commonwealth RSA Act; RSA provider has the same meaning as in section 12 of the Commonwealth RSA Act; superannuation fund means-- · a regulated superannuation fund; or · an exempt public sector superannuation scheme; or · an approved deposit fund; superannuation provider means-- · a trustee of a superannuation fund; or · an RSA provider; tax file number has the same meaning as in section 202A of the Income Tax Assessment Act 1936 of the Commonwealth; 29

trustee, in relation to a superannuation fund, has the same meaning as in section 10 of the Commonwealth Superannuation Act; Unclaimed Moneys Act 1962 means the Unclaimed Moneys Act 1962 as in force immediately before its repeal by section 104; unclaimed superannuation benefit means an amount that is taken to be unclaimed money under the Commonwealth Unclaimed Money Act. Clause 91 Subclause (1) sets out that this Part of the Bill will apply to a superannuation fund and the trustee of a superannuation fund if-- · the trustee of a superannuation fund is a corporation within the meaning of the Corporations Act and its registered office is in Victoria; or · the trustee of a superannuation fund is a natural person and the principal place where he or she carries on business as that trustee is in Victoria; or · in the case of an exempt public superannuation scheme, the principal place where the scheme is administered is in Victoria; or · there are 2 or more trustees of a superannuation fund and the first or second bullet point applies to one or more but not to all the trustees, the principal place where the fund is administered is in Victoria. Subclause (2) provides that this Part applies to a retirement savings account and an RSA provider where the provider has its registered office in Victoria. Clause 92 Subclause (1) provides that the Minister can pay out or refund unclaimed superannuation benefits. Payments can be made after an application is made in the approved form, and the Minister is satisfied that the applicant is entitled to the benefits. Subclause (2) permits the Registrar to request that the applicant provide his or her tax file number in the application form. Subclause (3) clarifies that the applicant need not comply with the Register's request to provide details of his or her tax file number and that non-compliance will not preclude the applicant from being paid an unclaimed superannuation benefit. 30

Subclause (4) provides that the Minister must refund to a superannuation provider any excess amount paid under the Unclaimed Moneys Act 1962, or any amount that was paid under that Act that was not an unclaimed superannuation benefit. Subclause (5) provides that the Minister may deduct tax payable to the Commonwealth from an unclaimed superannuation benefit payable to an owner. Clause 93 Subclause (1) requires the Registrar to keep a register of unclaimed superannuation benefits recording details of each unclaimed superannuation benefit paid to the Registrar and the owner of those benefits. Subclause (2) gives the Registrar discretion to decide the form and manner in which the register of unclaimed superannuation benefits is to be kept. Subclause (3) provides that the Registrar may disclose information contained in the register of unclaimed superannuation benefits to the Commonwealth Commissioner of Taxation. Clause 94 requires the Registrar to advertise, publish or make publicly available on the Internet in a searchable form updated regularly, and in any other form the Registrar considers appropriate, the minimum amount of information from the register of unclaimed superannuation benefits which the Registrar considers necessary and expedient to identify and locate the owner of unclaimed superannuation benefits. The requirement to make this information available in a searchable form on the Internet will ensure that potential owners can access details about unclaimed superannuation benefits at any point in time. The term "publicly available" means the Registrar must make the information available in both metropolitan and regional areas. Some people in rural or regional areas may not have access to the Internet to conduct a search for unclaimed superannuation benefits. Therefore, clause 94 permits the Registrar to make that information publicly available in other forms, for example, the equivalent information may be available by telephoning a toll free number. The term "minimum amount of information" is included to balance the owner's right to privacy with the need to advertise to locate owners and is aimed at preventing identity theft or other misuse of personal information. It is anticipated that where details are made available in printed form publication will be limited to, the owner's suburb rather than full address and the 31

band width of unclaimed superannuation benefits rather than the specific amount. Clause 95 subclause (1) enables the Registrar to transfer all unclaimed superannuation benefits to the Commonwealth on a date, which will be published in the Gazette. This date is referred to in clause 95 as the date of transfer. Subclause (2) provides that once the unclaimed superannuation benefits are transferred to the Commonwealth the Registrar is discharged from all further obligations and liabilities in relation to those amounts. Subclause (3) defines date of transfer to mean the date specified by the Minister to be the date of transfer in a notice published in the Government Gazette. These provisions give effect to an agreement between Victoria and the Commonwealth that administration of unclaimed superannuation benefits should be transferred to the Commonwealth. This will make it easier for individuals searching for lost superannuation by providing a single access point, and a simpler national claims process. PART 9--GENERAL Clause 96 provides that a person is not to be liable to another person as a result of them complying with their obligations under the Bill in good faith. Clause 97 provides that anything done by a trustee in compliance with the Bill shall not constitute a breach of trust by that trustee. Clause 98 Subclause (1) provides that any amounts paid to the Registrar under the Bill must be paid into the Consolidated Fund. Subclause (2) contains a standing appropriation for amounts which are payable by the Registrar or Minister out of the Consolidated Fund under the Bill. Clause 99 provides the various means by which service may be effected on the Registrar and includes delivery of documents by hand or post at an office of the Registrar, by a means indicated by the Registrar as being available (including facsimile or delivering it to a document exchange) or by leaving the document with a person who has authority to accept documents on behalf of the Registrar. 32

Clause 100 provides that a document served on the Registrar or an amount tendered to the Registrar after hours is taken to have been served on or tendered to the Registrar on the next business day. Clause 101 provides for the various means by which the Registrar may affect service of documents on a person including-- · personally; or · by leaving it at the last address of the person known to the Registrar (including, in the case of a body corporate, the registered office or a business address of the body corporate); or · by post addressed to the person at the last address of the person known to the Registrar (including in the case of a corporation, the registered office or a business address of the corporation); or · by a means indicated by the person as being an available means of service (such as by facsimile or other electronic transmission or by delivering it, addressed to the person, to the facilities of a document exchange); or · by any means provided for the service of the document by another Act or law. Subclause (2) provides that if a person (the agent) has actual or apparent authority to accept service of a document on behalf of another, the Registrar may, for the purposes of this Bill, serve the document on the agent as if the agent were that other person. Subclause (3) provides that service of a document on a member of a partnership, or on a member of the committee of management of an unincorporated association or other body of persons, is taken, for the purposes of this Bill, to constitute service of the document on each member of the partnership, or on each member of the association or other body of persons. Clause 102 Subclause (1) provides that a document must be taken, unless the contrary is proved, to have been served on or given to a person by the Registrar-- · in the case of delivery in person--at the time the document is delivered; · in the case of posting--2 business days after the day on which the document was posted; 33

· in the case of a facsimile or other electronic transmission--at the time the facsimile or transmission is received. Subclause (2) provides that if a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it must be taken to have been received on the next business day. Clause 103 provides a general power for the Governor in Council to make regulations in respect of procedural matters and things required or permitted to be prescribed under the Bill. PART 10--REPEAL, TRANSITIONAL AND AMENDMENT PROVISIONS Clause 104 subclause (1) provides for the repeal of the Unclaimed Moneys Act 1962. Subclause (2) provides for the transition from the Unclaimed Moneys Act 1962 to this Bill by providing that all persons, things and circumstances appointed or created under that Act, shall continue to have the same status, operation and effect as if that Act was not repealed. Subclause (3) provides that, despite the repeal of the Unclaimed Moneys Act 1962, any proceeding, inquiry, claim or obligation that commenced or arose under a section of that Act that was not finally determined under that Act immediately before its repeal, may be continued and completed under that Act as if the Act had not been repealed. Subclause (4) provides that from commencement of this clause-- · a reference to the Register of Unclaimed Moneys must be read as a reference to the Registrar of Unclaimed Money; · a reference to the Deputy Registrar of Unclaimed Moneys must be read as a reference to the Deputy Registrar of Unclaimed Money; · a reference to the Unclaimed Moneys Act 1962 must be read as a reference to the Unclaimed Money Act 2008; 34

· a reference to a register established by a business under section 11 of the Unclaimed Money Act 1962 must be read as a reference to a business register established by a business under clause 11 of this Bill; · a reference to a register kept by the Registrar of Unclaimed Moneys under section 12B of the Unclaimed Moneys Act 1962 must be read as a reference to the unclaimed money register kept by the Registrar of Unclaimed Money under clause 28 of this Bill; · A reference to a register kept by the registrar under section 22(1) of the Unclaimed Money Act 1962 must be read as a reference to the register of unclaimed superannuation benefits kept by the Registrar under clause 93 of this Bill. Clause 105 provides for the inclusion of the Unclaimed Money Act 2008 within the jurisdiction of VCAT. PART 11--CONSEQUENTIAL AMENDMENTS Part 11 provides for consequential amendments arising from the introduction of this Bill. These amendments either replace a reference to "moneys" with "money" or "Registrar of Unclaimed Moneys" with "Registrar of Unclaimed Money", thereby reflecting the more modern language used in this Bill or replace references to the Unclaimed Moneys Act 1962 with the Unclaimed Money Act 2008. In the case of the Landlord and Tenant Act 1958 a minor grammatical error resulting from the changes is also corrected. Amendments are made to the following Acts. Clause 106 the Disposal of Uncollected Goods Act 1961 section 11(1)-(4). Clause 107 the Domestic (Feral and Nuisance) Animals Act 1994 section 75C(2). Clause 108 the Environment Protection Act 1970 section 62(14). Clause 109 the Estate Agents Act 1980 section 59A(2). Clause 110 the Financial Management Act 1994 section 58(1). Clause 111 the Impounding of Livestock Act 1994 section 20(2). Clause 112 the Infringements Act 2006 section 104(e)(iii). 35

Clause 113 the Landlord and Tenant Act 1958 section 42(D)(1), (3) and (4). Clause 114 the Residential Tenancies Act 1997 sections 242(3), 365(3), 393(2), 399 and 422. Clause 115 the Transport Act 1983 section 251(A)(5). Clause 116 the Warehousemen's Liens Act 1958 sections 10(2)(b), (3), (4), (7)-(9) and 11(1)(f). PART 12--REPEAL Clause 117 repeals clause 105, Part 11 (consequential amendments) and this Part from 1 January 2010. The repeal of clause 105, Part 11 and this Part do not affect the continuing operation of the amendments made by that clause and those Parts (see section 15(1) of the Interpretation of Legislation Act 1984). 36

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