Unclaimed Moneys (Amendment) Act 2004

Victorian Legislation Parliamentary Documents i Unclaimed Moneys (Amendment) Act 2004 Act No. 5/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. New section 2 inserted 2 2. Purpose 2 5. New section 8A inserted 3 8A. Purpose 3 6. Definitions 4 7. New sections 11 and 12 substituted and 12A and 12B inserted 7 11. Businesses to keep register and advertise details of unclaimed moneys 7 12. Payment of unclaimed moneys to the Registrar and lodgement of return 8 12A. Unclaimed trust property 10 12B. Official register of unclaimed moneys 12 8. New section 13 substituted 13 13. Powers of inspection 13 9. Consequential repeal 15 10. Power of Minister to pay lawful claimant 15 11. New sections 15A to 15D inserted 15 15A. Trustee not in breach of trust 15 15B. Offences 15 15C. Offences by bodies 16 15D. Transitional provision 17 12. Regulations 17 13. Unclaimed superannuation benefits 17 ═══════════════ ENDNOTES 18 -- 1 of 19 -- Victorian Legislation Parliamentary Documents 1 Unclaimed Moneys (Amendment) Act 2004 † [Assented to 27 April 2004] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Unclaimed Moneys Act 1962— (a) to clarify the purpose of that Act; (b) to clarify and improve the powers of the Registrar of Unclaimed Moneys— (i) with respect to the collection of, and publication of details regarding, unclaimed moneys; Victoria No. 5 of 2004 -- 2 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 2 (ii) to inspect businesses which hold unclaimed moneys and trustees who hold unclaimed trust property; (c) to modernise the process for businesses to advertise unclaimed moneys and to lodge the money and details of it with the Registrar; (d) to clarify the Registrar's power to publish information regarding unclaimed superannuation benefits; (e) to make other miscellaneous amendments. 2. Commencement This Act comes into operation on 1 January 2005. 3. Principal Act In this Act, the Unclaimed Moneys Act 1962 is called the Principal Act. 4. New section 2 inserted After section 1 of the Principal Act insert— "2. Purpose The purpose of this Act is to provide for— (a) the collection and safe-keeping of unclaimed moneys; (b) the collection of information needed to identify and locate the rightful owners of unclaimed moneys; (c) the keeping of registers of details relating to unclaimed moneys so that the rightful owners can be identified and located; s. 2 See: Act No. 6879. Reprint No. 7 as at 3 April 2003. LawToday: www.dms. dpc.vic. gov.au -- 3 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 3 (d) the publication of sufficient information for the purpose of identifying and locating the rightful owners of unclaimed moneys.". 5. New section 8A inserted After the heading to Part 3 of the Principal Act insert— "8A. Purpose The purpose of this Part is— (a) to ensure that businesses make reasonable efforts to identify and locate the rightful owners of unclaimed moneys, including the advertising of sufficient details in the Government Gazette; (b) to provide for businesses that are still holding unclaimed moneys after advertising to transfer the moneys to the Registrar for safe-keeping pending any claims by the rightful owners and to give the Registrar details of the unclaimed moneys; (c) to provide for trustees who hold unclaimed trust property to convert it to money and transfer the money to the Registrar with details of the rightful owners; (d) to provide for the Registrar to publish details of unclaimed moneys in order to identify and locate the rightful owners and reunite them with their money; s. 5 -- 4 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 4 (e) to provide the Registrar with inspection powers to ensure that businesses and trustees comply with their obligations in respect of unclaimed moneys and unclaimed trust property.". 6. Definitions (1) In section 9 of the Principal Act— (a) for the definition of "business" substitute— ' "business" means any body, whether or not incorporated, or any sole practitioner, that carries on any business in Victoria, and includes— (a) a corporation within the meaning of the Corporations Act; (b) a Council within the meaning of the Local Government Act 1989; (c) a public hospital within the meaning of the Health Services Act 1988; (d) a co-operative within the meaning of the Co-operatives Act 1996; (e) a society within the meaning of the Co-operative Housing Societies Act 1958; (f) a society within the meaning of the Industrial and Provident Societies Act 1958; (g) a partnership, including a limited partnership; (h) a trustee company within the meaning of the Trustee Companies Act 1984; s. 6 -- 5 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 5 (i) any body, whether or not incorporated, prescribed by the regulations for the purposes of this Act;'; (b) insert the following definitions— ' "reasonable expenses" of a business in holding unclaimed moneys and locating the owners, includes— (a) bank fees, stationery and postage; and (b) the costs of advertising in the Government Gazette; and (c) any other expenses of a kind determined by the Registrar under sub-section (4); "sole practitioner" has the same meaning as in the Legal Practice Act 1996;'. (2) After section 9(2) of the Principal Act insert— '(2A) This Part does not apply to any amount of unclaimed money or unclaimed trust property the value of which is less than $20 or the prescribed amount (whichever is higher) payable or transferable to any owner. (2B) For the purposes of the definitions of "unclaimed moneys" and "owner" in sub- section (1), in determining whether money is legally payable to the owner or whether a person is entitled to money, no account is to be taken of whether or not— (a) the owner or person is required to take any action by way of demand or otherwise to claim or recover the money; or s. 6 -- 6 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 6 (b) there is or has been any shift in entitlement to the money accompanied by an arrangement or undertaking (whether enforceable or not) to pay the owner or person if the owner or person subsequently makes a claim. (2C) Despite sub-section (2B), money is not unclaimed money at any particular time if, at that time, the business holding the money (or an officer of the business if the business is not a natural person) knows or has reason to believe that the owner of the money wishes the business to continue to hold the money. (2D) However, a business (or an officer of a business if the business is not a natural person) does not have reason to believe that an owner of money wishes the business to continue to hold the money merely because the owner does not respond to a communication from the business (or does not respond as specified in the communication), even if the terms of the communication suggest that the owner's failure to respond indicates such a wish. (2E) A reference in this Act to a business holding unclaimed moneys includes a reference to the business holding those moneys as a trustee.'. (3) After section 9(3) of the Principal Act insert— '(4) For the purposes of the definition of "reasonable expenses" in sub-section (1), the Registrar may from time to time, by instrument, determine that kinds of expenses specified in the instrument are reasonable expenses.'. s. 6 -- 7 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 7 7. New sections 11 and 12 substituted and 12A and 12B inserted For sections 11 and 12 of the Principal Act substitute— '11. Businesses to keep register and advertise details of unclaimed moneys (1) A business that holds unclaimed moneys must— (a) establish a register of unclaimed moneys, in the form of the Second Schedule, at its principal office or place of business in Victoria; and (b) by 31 March each year, enter in the register the details required by the Second Schedule of all unclaimed moneys held as at 1 March in that year. Note: Failure to comply with this sub-section is an offence—see section 15B(1). (2) Subject to sub-section (3), a business that holds unclaimed moneys must advertise in the Government Gazette, at the times and in the manner determined by the Registrar from time to time, a copy of the entries in its register. Note: Failure to comply with this sub-section is an offence—see section 15B(1). (3) A business is not required to advertise any of the following entries— (a) an entry relating to an amount of unclaimed money less than— (i) the amount determined from time to time by the Registrar by notice published in the Government Gazette; or s. 7 -- 8 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 8 (ii) if no amount is determined— $200; or (b) an entry relating to unclaimed moneys where the identity of the owner of the money is unknown. (4) The entry of details of unclaimed moneys in the register, and the advertisement of entries in the register, do not affect or prejudice the rights of the owner of the money and the owner may recover the money from the business at any time before it is paid to the Registrar under section 12. (5) A business may deduct out of unclaimed moneys payable to an owner an amount in respect of the reasonable expenses of the business in holding unclaimed moneys and locating the owners. 12. Payment of unclaimed moneys to the Registrar and lodgement of return (1) On or before 31 March each year (or the later date approved in writing by the Registrar in any particular case), a business that held unclaimed moneys on 1 March in the previous year must— (a) pay to the Registrar, for payment into the Consolidated Fund, an amount equal to all amounts of unclaimed moneys held on that 1 March, less any amounts that have been paid to the owners and any amounts deducted under sub-section (3) or section 11(5); and (b) lodge a return with the Registrar in the form and manner determined by the Registrar. s. 7 -- 9 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 9 (2) The return must include— (a) the details included in the business's register of all unclaimed moneys paid to the Registrar under sub- section (1)(a); and (b) a statement of compliance, signed by an authorised officer of the business— (i) stating that the business has complied with section 11(1) and (2) in respect of the previous year; and (ii) stating the total amount of unclaimed moneys held by the business on 1 March in the previous year; and (iii) stating the total amount (if any) of those unclaimed moneys that have been paid to the owners since that date net of any deductions made under section 11(5); and (iv) stating the total amount, and giving details, of the expenses (if any) deducted by the business under sub-section (3); and (v) stating the total amount of those unclaimed moneys paid to the Registrar under sub-section (1)(a). (3) A business may deduct out of unclaimed moneys payable to the Registrar under this section an amount equivalent to the reasonable expenses of the business in holding unclaimed moneys and locating the owners. s. 7 -- 10 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 10 (4) On payment to the Registrar of an amount as required by this section, a business is discharged from further liability in respect of that amount. (5) In this section— "authorised officer" of a business means the officer or employee of the business who is responsible for managing unclaimed moneys held by the business. Note: Failure to comply with this section is an offence—see section 15B(2). 12A. Unclaimed trust property (1) If a trustee holds any property that has not been claimed by the person entitled to it for a period of 6 years after the person became entitled to have the property transferred to them, the trustee must, subject to sub- section (2)— (a) sell, call in or otherwise convert the property into money; and (b) pay the money to the Registrar for payment into the Consolidated Fund; and (c) include with the payment a statement giving details of the estate or trust to which the payment relates and of the details as known to the trustee of the person entitled to the property in respect of which the payment is made. (2) The Registrar may in writing extend the time for selling, calling in or converting property and the time for paying money to the Registrar under sub-section (1) if the Registrar considers that the trustee should s. 7 -- 11 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 11 make further enquiries or searches for the person entitled to the property. (3) For the purposes of this section, in determining whether a person is entitled to have property transferred to them, no account is to be taken of whether or not— (a) 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 (b) 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. (4) Despite sub-section (3), a trustee is not required to comply with sub-section (1) in respect of any property at any particular time if, at that time, the trustee (or an officer of the trustee if the trustee is not a natural person) knows or has reason to believe that the person entitled to the property wishes the trustee to continue to hold the property. (5) However, a trustee (or an officer of a trustee if the trustee is not a natural person) does not have reason to believe that a person entitled to property wishes the trustee to continue to hold the property merely 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. s. 7 -- 12 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 12 (6) In this section— "property" includes— (a) any estate, share or interest in real or personal property; (b) any debt or thing in action; (c) any other right or interest, whether in possession or not— but does not include any money; "trustee" means any executor, administrator or trustee, including a trustee company within the meaning of the Trustee Companies Act 1984. 12B. Official register of unclaimed moneys (1) The Registrar must keep a register that contains— (a) the details included in the returns under section 12(2)(a) relating to unclaimed moneys paid to the Registrar under section 12(1)(a); and (b) the details included in the statements under section 12A(1)(c) relating to money paid to the Registrar under section 12A(1)(b). (2) The register is to be in the form, and kept in the manner, determined by the Registrar. (3) The Registrar may advertise or publish, in any manner the Registrar considers appropriate, any information from the register that the Registrar considers necessary or expedient to be advertised or published for the purposes of this Part.'. s. 7 -- 13 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 13 8. New section 13 substituted For section 13 of the Principal Act substitute— '13. Powers of inspection (1) A person may exercise a power under this section only— (a) for the purpose of determining compliance with this Part by a business or trustee, including whether any offence has been committed against this Part; and (b) during normal business hours. (2) A person cannot exercise a power under this section until he or she has made a declaration of secrecy in the form of the First Schedule. Note: Failure to comply with this sub-section is an offence—see section 15B(4)(a). (3) A person (other than the Registrar) must produce his or her written authorisation for inspection— (a) before exercising a power under this section other than a requirement made by post; and (b) at any time during the exercise of a power under this section, if asked to do so. Note: Failure to comply with this sub-section is an offence—see section 15B(4)(b). (4) The Registrar or a person authorised in writing by the Registrar may— (a) require a business to produce for inspection the register required to be kept by the business under section 11 or any other records or documents kept by s. 8 -- 14 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 14 or on behalf of the business that relate to unclaimed moneys; and (b) require a trustee to produce for inspection any records or other documents kept by the trustee that relate to property to which section 12A applies; and (c) inspect any register, records or documents referred to in paragraph (a) or (b); and (d) take copies of any register, records or documents referred to in paragraph (a) or (b); and (e) require a business or trustee to correct any error in a register, record or document referred to in paragraph (a) or (b). Note: Failure to comply with a requirement under this sub-section is an offence—see section 15B(3). (5) The Registrar may authorise a person to exercise powers under this section if the Registrar is satisfied that the person— (a) is competent to exercise those powers; and (b) is of good repute, having regard to character, honesty and integrity. (6) Any copies taken under sub-section (4)(d) must be destroyed or returned to the owner of the thing copied as soon as the copies are no longer required for the purposes of determining compliance with this Part or any criminal proceedings. s. 8 -- 15 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 15 (7) In this section— "trustee" has the same meaning as in section 12A.'. 9. Consequential repeal Section 13A of the Principal Act is repealed. 10. Power of Minister to pay lawful claimant In section 14(1) of the Principal Act, for "placed to the credit of the Consolidated Fund" substitute "paid into the Consolidated Fund under this Part,". 11. New sections 15A to 15D inserted After section 15 of the Principal Act insert— "15A. Trustee not in breach of trust Nothing done by a trustee (whether or not the trustee is a business) in accordance with this Part is to be regarded for any purpose as constituting a breach of trust by the trustee. 15B. Offences (1) A business must not fail to— (a) make entries in the register as required by section 11(1); or (b) advertise entries in its register of unclaimed moneys in the Government Gazette as required by section 11(2). Penalty: 60 penalty units. (2) A business must not fail to pay an amount to or lodge a return with the Registrar in accordance with section 12. Penalty: 120 penalty units. s. 9 -- 16 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 16 (3) A business or trustee must not— (a) refuse or fail to produce a register, record or document for inspection under section 13(4)(a) or (b) (as the case requires); or (b) refuse or fail to correct any error in a register, record or document on being required to correct it under section 13(4)(e); or (c) otherwise obstruct or hinder the Registrar or a person authorised by the Registrar exercising powers under this Part. Penalty: 60 penalty units. (4) A person must not— (a) exercise a power under section 13 before making a declaration under section 13(2); or (b) contravene section 13(3); or (c) make a record of or disclose any information obtained by the person through the exercise of a power under section 13 except— (i) for the purpose referred to in section 13(1); or (ii) for the purposes of, or in the course of, any criminal proceeding. Penalty: 10 penalty units. 15C. Offences by bodies (1) If a body (whether incorporated or not) contravenes any provision of this Part, each officer of the body is to be taken to have s. 11 -- 17 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 17 contravened the same provision if the officer knowingly authorised or permitted the contravention. (2) A person may be proceeded against and convicted under a provision in accordance with sub-section (1) whether or not the body has been proceeded against or convicted under that provision. (3) Nothing in this section affects any liability imposed on a body for an offence committed by the body against this Part. 15D. Transitional provision Section 12, as in force immediately before the commencement of section 7 of the Unclaimed Moneys (Amendment) Act 2004, continues to apply to a business in respect of any unclaimed moneys that were the subject of entries made in the business's register of unclaimed moneys before that commencement in accordance with section 11(1) as in force at the time.". 12. Regulations Section 16(ca) of the Principal Act is repealed. 13. Unclaimed superannuation benefits After section 22(3) of the Principal Act insert— "(4) The Registrar may advertise or publish, in any manner the Registrar considers appropriate, any information from the register that the Registrar considers necessary or expedient to be advertised or published for the purposes of this Part.". ═══════════════ s. 12 -- 18 of 19 -- Victorian Legislation Parliamentary Documents Act No. 5/2004 Unclaimed Moneys (Amendment) Act 2004 18 ENDNOTES † Minister's second reading speech— Legislative Assembly: 16 October 2003 Legislative Council: 20 April 2004 The long title for the Bill for this Act was "to amend the Unclaimed Moneys Act 1962 and for other purposes." Endnotes -- 19 of 19 --