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Unclaimed Money Bill 1995
Explanatory Note
This explanatory note relates to this Bill as introduced into Parliament.
(a)
to provide for the payment of unclaimed money to a Chief
Commissioner of Unclaimed Money, and
(b)
to require the publication of information concerning unclaimed
money, and
(c)
to establish a scheme for making and determining applications for
repayment of unclaimed money, and
(d) to repeal the Unclaimed Money Act 1982.
The Bill re-enacts the provisions of the Unclaimed Money Act 1982 in
simpler language and makes the following changes of substance:
·
it widens the range of organisations required to pay unclaimed money
to the State (but excludes the banks to which the Banking Act 1959 of
the Commonwealth applies)
· it increases the penalties for failure to do so
·
it updates powers of investigation
· it reduces from 20 years to 6 years the period during which the owner
of unclaimed money held by the State is entitled to recover the money
from the State
*
it provides for appeals against determinations of applications for
repayment of unclaimed money.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the proposed Act to commence on a day or days to
be appointed by proclamation.
Clause 3 defines certain terms used in the proposed Act.
Clause 4 specifies certain circumstances in which an account is to be taken
to be operated on (or not operated on) for the purposes of the proposed Act.
Clause 5 clarifies references to money held by an enterprise and by an
enterprise that does not have a separate legal personality. Enterprise is
defined (in clause 3) as follows:
enterprise means a person, partnership, association, society,
institution, organisation or other body, whether or not incorporated,
that:
(a)
operates in any way (or, in the case of a natural person, has a
residential address) in the State, and
(b) holds money on account of another person or body,
but does not include a bank (within the meaning of the Banking Act
1959 of the Commonwealth).
Clause 6 provides that the proposed Act binds the Crown.
Part 2
Unclaimed money
Clause 7 sets out the criteria for determining whether money is unclaimed
money for the purposes of the Act.
Clause 8 specifies the kind of money that may constitute unclaimed money.
Clause 9 exempts certain money from the meaning of the term unclaimed
money.
Explanatory note page 2
Part 3
Payment of unclaimed money to Chief
Commissioner
Clause 10 requires an enterprise that holds unclaimed money on 30 June in
any year to pay the money to, and lodge a return relating to the money with,
the Chief Commissioner of Unclaimed Money (the Chief Commissioner).
The money is to be paid and the return lodged by the end of the following
August (or within such longer time as the Chief Commissioner allows). The
Chief Commissioner is to pay the money to the Consolidated Fund.
Clause 11 requires an enterprise that lodges a return to retain a copy of it
for at least 6 years. An enterprise must make the retained copies of returns
reasonably available for inspection by any person. Any inspection fee
charged is not to exceed $10 (or such greater amount as the regulations may
prescribe).
Clause 12 requires the Chief Commissioner to cause to be published in the
Government Gazette information concerning:
· each amount of unclaimed money exceeding $50 (or exceeding the
amount, if any, prescribed by the regulations) that is paid to the Chief
Commissioner, and
·
the identity of the owner of the money, if known.
Clause 13 relieves an enterprise from all further liability (apart from a
liability arising under another law) in respect of unclaimed money that the
enterprise pays to the Chief Commissioner. However, the provision does not
operate to relieve the enterprise of its obligations in relation to records
concerning that money, or from liability in respect of money that the Chief
Commissioner repays to the enterprise under proposed Part 4 (Claims for
and repayment of unclaimed money).
Part 4
Claims for and repayment of unclaimed money
Clause 14 defines applicant, for the purposes of proposed Part 4, as a
person who applies under the Part for the repayment-of unclaimed money
paid to the Chief Commissioner.
Clause 15 specifies that the owner of any unclaimed money paid to the
Chief Commissioner under the proposed Act is entitled to recover that
money from the Chief Commissioner.
Clause 16 makes it clear that, if an owner's right to unclaimed money was
not extinguished before the money was paid to the Chief Commissioner, the
right subsists until the end of a period of 6 years beginning on the date of
that payment.
Explanatory note page 3
Clause 17 empowers the owner of unclaimed money paid to the Chief
Commissioner to make written application to the Chief Commissioner for its
repayment.
Clause 18 limits the time for making such applications to the period during
which the owner's right to the money subsists.
Clause 19 makes it clear that an applicant bears the onus of establishing
that the applicant is the owner of the money to which the application relates.
Clause 20 provides that the standard of proof for establishing ownership of
unclaimed money is the balance of probabilities.
Clause 21 specifies the way in which the Chief Commissioner determines
an application (by giving the applicant notice in writing to the effect that the
Chief Commissioner is satisfied, or is not satisfied, that the applicant owns
the money (or part of the money) to which the application relates). If the
Chief Commissioner has not determined the application at the end of a
period of 90 days after the application was lodged, the Chief Commissioner
is taken to have given a notice, at the end of that period, to the effect that the
Chief Commissioner is not satisfied that the applicant is the owner of the
money concerned.
Clause 22 allows an applicant to appeal against a determination to the
District Court in accordance with rules of court.
Clause 23 makes it clear that an appeal is to be by way of a rehearing of
the original application, although information additional to the information
considered for the purposes of the original determination may be taken into
consideration. The clause also provides that the District Court may make an
order varying the determination appealed from or dismissing the appeal. The
District Court's determination of an appeal is final.
Clause 24 empowers the Chief Commissioner to repay unclaimed money to
its owner, and relieves the Chief Commissioner from further liability in
respect of unclaimed money so repaid. However, if the person to whom the
Chief Commissioner repaid the money is not the owner of the money, the
owner is entitled to recover the money from that person (unless the owner is
prevented from doing so by operation of the Limitation Act 1969).
Clause 25 deals with the situation where the Chief Commissioner is of the
opinion that money paid to the Chief Commissioner in purported compliance
with the proposed Act is not unclaimed money required to be so paid. The
Chief Commissioner may repay the money to any person the Chief
Commissioner considers appropriate.
Clause 26 appropriates the Consolidated Fund for the purposes of
repayments by the Chief Commissioner.
~
Explanatory note page 4
Part 5 Investigative powers
Clause 27 provides that a power conferred under proposed Part 5 may be
exercised only for the purposes of exercising functions under the proposed
Act or the regulations.
Clause 28 permits the Chief Commissioner to authorise an officer of the
Office of State Revenue, by delegation, to exercise the powers conferred on
the Chief Commissioner by proposed Part 5 . An officer so authorised is a
delegated officer for the purposes of the proposed Part.
Clause 29 specifies the matter that must be included in the instrument of
delegation.
Clause 30 confers on the Chief Commissioner power to require a person to
provide records, information and evidence.
Clause 31 specifies the way in which the Chief Commissioner may deal
with records provided or produced to the Chief Commissioner or a delegated
officer.
Clause 32 requires an enterprise holding records that the Chief
Commissioner or a delegated officer considers to be incorrect in relation to
unclaimed money to note the records with details of what the Chief
Commissioner believes to be the correct position.
Clause 33 confers on the Chief Commissioner power to require a person to
attend and give evidence before the Chief Commissioner or a delegated
officer.
Clause 34 is a standard provision to the effect that the possibility of
self-incrimination does not excuse a person from complying with a
requirement under the proposed Act to answer a question, furnish
information or produce a record. However, any information given in an
answer or otherwise furnished, and any record produced, in compliance with
such a requirement is not admissible in any criminal proceedings against the
person, except for proceedings for an offence against proposed section 40
(Offence-obstructing Chief Commissioner or delegated officer) or the
regulations, or proceedings in respect of the falsity of information given on
oath or by affirmation.
Clause 35 confers on the Chief Commissioner a power to enter premises.
Clause 36 makes it clear that entry to residential premises may be effected
only with the consent of the owner or occupier or under the authority of a
search warrant.
Explanatory note page 5
Clause 37 requires reasonable notice of an intention to enter premises to be
given, unless the entry is made with the consent of the owner or occupier, or
the giving of notice would defeat the purpose of the entry.
Clause 38 specifies the powers the Chief Commissioner may exercise once
entry to the premises has been effected. These powers include the power to:
·
require any person at the premises to produce any records in the
person's possession or under the person's control, and to answer
questions and otherwise furnish information, and
·
seize and remove evidence of the commission of an offence against
the proposed Act or the regulations.
Clause 39 provides for the issue of search warrants.
Clause 40 provides that it is an offence for a person to prevent, hinder or
obstruct, or refuse or fail to comply with a requirement of, or provide false
or misleading information to, the Chief Commissioner or a delegated officer
in the exercise of their functions under proposed Part 5 .
Clause 41 provides that it is an offence to impersonate the Chief
Commissioner or a delegated officer.
Clause 42 provides that a person charged with an offence under proposed
Part 5 is not guilty if the court hearing the charge is satisfied that the person
could not have complied with the requirement to which the charge relates, or
that the person complied to the best of the person's ability.
Part 6 Administration
Clause 43 provides that there is to be a Chief Commissioner of Unclaimed
Money who, under the Minister, has the general administration of the
proposed Act.
Clause 44 allows the Chief Commissioner to delegate his or her functions
to an officer of the Office of State Revenue.
Part 7 Miscellaneous
Clause 45 allows an officer of an enterprise that is not a natural person to
act on behalf of the enterprise.
Clause 46 provides that an officer of an enterprise that contravenes a
provision of the proposed Act or regulations is taken to have contravened
the same provision if the officer knowingly authorised or permitted the
contravention.
Explanatory note page 6
Clause 47 provides that proceedings for offences against the proposed Act
or regulations may be taken only by a person authorised in writing by the
Chief Commissioner, and are to be taken before a Local Court constituted by
a Magistrate sitting alone.
Clause 48 provides for the way in which something may be lodged with
the Chief Commissioner.
Clause 49 makes it clear that the proposed Act does not affect the
operation of any other law dealing with unclaimed money.
Clause 50 empowers the making of regulations for the purposes of the
proposed Act.
Clause 51 repeals the Unclaimed Money Act 1982.
Clause 52 is a formal provision giving effect to the amendment of Acts set
out in Schedule 1 .
Clause 53 is a formal provision giving effect to the savings, transitional
and other provisions set out in Schedule 2.
Clause 54 provides for the review of the operation of the proposed Act by
the Treasurer 5 years after the date of assent to the Act.
Schedule 1 Amendment of Acts
Schedule 1.1, 1.3 [1], 1.4, 1.5, 1.6 and 1.7 replace references to the
Unclaimed Money Act 1982 and the Treasurer in various Acts with
references to the proposed Act and the Chief Commissioner, respectively.
Schedule 1.2 repeals a provision of the Co-operatives Act 1992 to the effect
that money that is required to be paid to a former member of a co-operative
under Division 4 of Part 6 of that Act (Cancellation of membership etc of
inactive members) is not unclaimed money for the purposes of the
Unclaimed Money Act 1982, and that any such money may be credited to the
general reserves of the co-operative when a person's right and title to the
money against the co-operative is extinguished by the operation of any law
providing for the limitation of actions.
Schedule 1.3 [2] repeals a provision of the Local Government Act 1993 that
specifically applies the Unclaimed Money Act 1982 to purchase money paid
for land sold by a local council for overdue rates and charges if the purchase
money exceeds the amount owing. The provision is not necessary, as the
proposed Act will apply to that money. (This is because section 720 (1) of
the Local Government Act 1993 is to the effect that any such excess is to be
paid into the council's trust fund and held by the council in trust for the
persons having estates or interests in the land immediately before the sale.)
Explanatory note page 7
Schedule 1.8 amends the Search Warrants Act 1985 in consequence of
proposed section 39.
Schedule 2 contains savings, transitional and other provisions. In particular,
the Schedule provides that a person who would have been entitled to
maintain an action for the recovery of unclaimed money under the
Unclaimed Money Act 1982 immediately before the repeal of that Act and
would not (but for the Schedule) be entitled to recover unclaimed money
from the Chief Commissioner under the proposed Act may apply to the
Chief Commissioner for repayment of the money within 6 months after the
repeal.
Explanatory note page 8