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PARLIAMENT OF VICTORIA
Unclaimed Moneys (Amendment) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause 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
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PARLIAMENT OF VICTORIA
Initiated in Assembly 14 October 2003
As amended by Assembly 4 March 2004
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Unclaimed Moneys Act 1962 and for other purposes.
Unclaimed Moneys (Amendment) Act
2003
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;
5 (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;
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Unclaimed Moneys (Amendment) Act 2003
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(ii) to inspect businesses which hold
unclaimed moneys and trustees who
hold unclaimed trust property;
Victorian Legislation and Parliamentary Documents
(c) to modernise the process for businesses to
5 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;
10 (e) to make other miscellaneous amendments.
2. Commencement
This Act comes into operation on 1 January 2005.
3. Principal Act
See: In this Act, the Unclaimed Moneys Act 1962 is
Act No.
15 called the Principal Act.
6879.
Reprint No. 7
as at
3 April 2003.
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www.dms.
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gov.au
4. New section 2 inserted
After section 1 of the Principal Act insert--
"2. Purpose
The purpose of this Act is to provide for--
20 (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;
25 (c) the keeping of registers of details
relating to unclaimed moneys so that
the rightful owners can be identified
and located;
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(d) the publication of sufficient information
for the purpose of identifying and
locating the rightful owners of
Victorian Legislation and Parliamentary Documents
unclaimed moneys.".
5 5. New section 8A inserted
After the heading to Part 3 of the Principal Act
insert--
"8A. Purpose
The purpose of this Part is--
10 (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
15 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
20 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
25 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
30 identify and locate the rightful owners
and reunite them with their money;
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(e) to provide the Registrar with inspection
powers to ensure that businesses and
trustees comply with their obligations
Victorian Legislation and Parliamentary Documents
in respect of unclaimed moneys and
5 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
10 incorporated, or any sole practitioner,
that carries on any business in Victoria,
and includes--
(a) a corporation within the meaning
of the Corporations Act;
15 (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;
20 (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;
25 (f) a society within the meaning of
the Industrial and Provident
Societies Act 1958;
(g) a partnership, including a limited
partnership;
30 (h) a trustee company within the
meaning of the Trustee
Companies Act 1984;
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(i) any body, whether or not
incorporated, prescribed by the
regulations for the purposes of this
Victorian Legislation and Parliamentary Documents
Act;';
5 (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;
10 and
(b) the costs of advertising in the
Government Gazette; and
(c) any other expenses of a kind
determined by the Registrar under
15 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
20 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
25 "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--
30 (a) the owner or person is required to take
any action by way of demand or
otherwise to claim or recover the
money; or
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(b) there is or has been any shift in
entitlement to the money accompanied
by an arrangement or undertaking
Victorian Legislation and Parliamentary Documents
(whether enforceable or not) to pay the
5 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
10 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
15 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
20 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.
25 (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--
30 '(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
35 expenses.'.
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7. New sections 11 and 12 substituted and 12A and 12B
inserted
Victorian Legislation and Parliamentary Documents
For sections 11 and 12 of the Principal Act
substitute--
5 '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
10 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
15 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
20 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.
25 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
30 unclaimed money less than--
(i) the amount determined from time
to time by the Registrar by notice
published in the Government
Gazette; or
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(ii) if no amount is determined--
$200; or
Victorian Legislation and Parliamentary Documents
(b) an entry relating to unclaimed moneys
where the identity of the owner of the
5 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
10 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
15 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
20 (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--
25 (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
30 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
35 Registrar.
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(2) The return must include--
(a) the details included in the business's
Victorian Legislation and Parliamentary Documents
register of all unclaimed moneys paid
to the Registrar under sub-
5 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
10 (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
15 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
20 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
25 (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
30 section an amount equivalent to the
reasonable expenses of the business in
holding unclaimed moneys and locating the
owners.
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(4) On payment to the Registrar of an amount as
required by this section, a business is
discharged from further liability in respect of
Victorian Legislation and Parliamentary Documents
that amount.
5 (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
10 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
15 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)--
20 (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
25 (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
30 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
35 Registrar considers that the trustee should
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make further enquiries or searches for the
person entitled to the property.
Victorian Legislation and Parliamentary Documents
(3) For the purposes of this section, in
determining whether a person is entitled to
5 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
10 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
15 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
20 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.
25 (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
30 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.
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(6) In this section--
"property" includes--
Victorian Legislation and Parliamentary Documents
(a) any estate, share or interest in real
or personal property;
5 (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
10 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
15 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
20 (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
25 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
30 necessary or expedient to be advertised or
published for the purposes of this Part.'.
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8. New section 13 substituted
For section 13 of the Principal Act substitute--
Victorian Legislation and Parliamentary Documents
'13. Powers of inspection
(1) A person may exercise a power under this
5 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
10 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.
15 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--
20 (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
25 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--
30 (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
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or on behalf of the business that relate
to unclaimed moneys; and
Victorian Legislation and Parliamentary Documents
(b) require a trustee to produce for
inspection any records or other
5 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)
10 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
15 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
20 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;
25 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
30 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.
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(7) In this section--
"trustee" has the same meaning as in
Victorian Legislation and Parliamentary Documents
section 12A.'.
9. Consequential repeal
5 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,".
10 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
15 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
20 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.
25 (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.
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(3) A business or trustee must not--
(a) refuse or fail to produce a register,
Victorian Legislation and Parliamentary Documents
record or document for inspection
under section 13(4)(a) or (b) (as the
5 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
10 (c) otherwise obstruct or hinder the
Registrar or a person authorised by the
Registrar exercising powers under this
Part.
Penalty: 60 penalty units.
15 (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
20 (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
25 section 13(1); or
(ii) for the purposes of, or in the
course of, any criminal
proceeding.
Penalty: 10 penalty units.
30 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
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contravened the same provision if the officer
knowingly authorised or permitted the
contravention.
Victorian Legislation and Parliamentary Documents
(2) A person may be proceeded against and
5 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
10 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
15 Unclaimed Moneys (Amendment) Act
2003, 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
20 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
25 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
30 necessary or expedient to be advertised or
published for the purposes of this Part.".
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Endnotes
Act No.
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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