BANKING ACT 1959 - SECT 69 Unclaimed moneys

BANKING ACT 1959 - SECT 69

(1) For the purposes of this section, unclaimed moneys means all principal, interest, dividends, bonuses, profits and sums of money legally payable by an ADI but in respect of which the time within which proceedings may be taken for the recovery thereof has expired, and includes moneys to the credit of an account that has not been operated on either by deposit or withdrawal for a period of not less than:

(a) 7 years; or

(b) if a greater number of years is specified in the regulations--that greater number of years;

beginning:

(c) at the most recent time when the account was operated on either by deposit or withdrawal; or

(d) if another time is ascertained in accordance with the regulations--at that other time.

(1AA) Subsection (1) has effect subject to subsections (1A), (1B), (1C), (1D) and (1E).

(1A) However, the following are not unclaimed moneys:

(a) money in an account that is denominated in a currency other than Australian currency;

(b) money in a children's account;

(c) farm management deposits (within the meaning of the Income Tax Assessment Act 1997 ).

(1B) However, moneys to the credit of an account specified in the regulations are unclaimed moneys if, and only if, the conditions specified in the regulations are satisfied.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(1C) However, deposits specified in the regulations are unclaimed moneys if, and only if, the conditions specified in the regulations are satisfied.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(1D) Subsection (1) does not apply to an account specified in the regulations.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(1E) Subsection (1) does not apply to a deposit specified in the regulations.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(2) For the purposes of this section, the debiting of a fee to an account shall be deemed not to be a withdrawal and the crediting to an account of interest payable by an ADI on that account shall be deemed not to be a deposit.

(3) An ADI must, within 3 months after the 31 December in each year, deliver to the Treasurer a statement, complying with subsection (4) and any regulations under subsection (3A), of all sums of unclaimed moneys of not less than $100 (or such other amount as is prescribed) as at the end of the year, other than unclaimed moneys:

(a) held in RSAs (within the meaning of the Retirement Savings Accounts Act 1997 ); or

(c) held in accounts with the ADI that are operated on either by deposit or withdrawal between the end of the year and the day the statement is delivered to the Treasurer; or

(d) held in an account with the ADI in respect of which the holder of the account, or an agent of the holder, has notified the ADI, between the end of the year and the day the statement is delivered to the Treasurer, that the holder wishes to treat the account as active.

(3AA) The ADI commits an offence if:

(a) it does not give the Treasurer a statement as required by subsection (3); and

(b) there is no determination in force under section 11 that this subsection does not apply to the ADI.

Penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(3A) The regulations may require the statement to be delivered in a specified form in a specified kind of disk, tape, film or other medium.

(4) The statement shall set out:

(a) the name, and the last-known address, of each shareholder, depositor or creditor; and

(b) the amount required to be paid under subsection (5); and

(c) in the case of moneys to the credit of an account--the office or branch of the ADI at which the account was kept.

(5) The ADI must, at the time of the delivery of the statement, pay the Commonwealth an amount equal to the total of all sums of unclaimed moneys covered by subsection (3) in relation to the ADI, as at the end of the year.

(5A) The ADI commits an offence if:

(a) it does not pay, at the time of the delivery of the statement, the amount required by subsection (5); and

(b) there is no determination in force under section 11 that this subsection does not apply to the ADI.

Penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(6) Subject to subsection (7), an ADI is, upon payment to the Commonwealth of an amount as required by this section, discharged from further liability in respect of that amount.

(7) Where unclaimed moneys have been paid to the Commonwealth under this section and the Treasurer or an authorized officer is satisfied that, but for subsection (6), a person would be paid those unclaimed moneys by the ADI by which they were paid to the Commonwealth (or, if that ADI is no longer carrying on banking business, by an ADI to which the business of the first-mentioned ADI has been sold or disposed of), those unclaimed moneys shall be paid to that ADI and the ADI shall thereupon pay those moneys to that person.

(7AA) If unclaimed moneys are paid to an ADI under subsection (7) on or after 1 July 2013:

(a) the Commonwealth must also pay to the ADI the amount of interest (if any) worked out in accordance with the regulations; and

(b) the ADI must pay that amount to the person.

(7AB) Regulations made for the purposes of paragraph (7AA)(a) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate.

(7AC) Interest under paragraph (7AA)(a) does not accrue in relation to a period before 1 July 2013.

(7A) The ADI commits an offence if:

(a) it does not pay moneys to a person as required by subsection (7) or (7AA); and

(b) there is no determination in force under section 11 that this subsection does not apply to the ADI.

Penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(7B) If an ADI satisfies the Treasurer that an amount paid by the ADI under subsection (5) exceeds the amount that should have been paid under that subsection, the Treasurer must refund the amount of the excess.

(8) The Consolidated Revenue Fund is appropriated for the purposes of, and to the extent necessary to give effect to, subsections (7), (7AA) and (7B).

(9) The Treasurer shall cause particulars of every sum shown in a statement delivered under this section to be made available to the public (whether or not on the payment of a fee) in such manner as the Treasurer determines.

(11) The Treasurer or an ADI may apply to the Federal Court of Australia for a declaration whether any moneys are or are not unclaimed moneys within the meaning of this section and the Federal Court of Australia may make a declaration accordingly.

(11A) It is the intention of the Parliament that a law of a State or Territory has no effect insofar as it requires an ADI to:

(a) pay unclaimed moneys to, or to an authority of, a State or Territory; or

(b) lodge a return relating to unclaimed moneys with, or with an authority of, a State or Territory.

(11B) The Treasurer may, by instrument in writing, delegate any of his or her functions or powers under this section to:

(a) a corporate Commonwealth entity for which the Treasurer is the responsible Minister; or

(b) a member, or staff member, of such an entity.

(11C) The reference to the Treasurer in paragraph (3AA)(a) is to be read as including a reference to the authority or person to whom the Treasurer has delegated his or her function under subsection (3).

(12) In this section:

"authorized officer" , means the Secretary of the Department of the Treasury or an officer of that Department authorized by the Secretary to act under this section.

"children's account" means an account:

(a) whose terms and conditions require it to be held by, or for the benefit of, a person under 18; and

(b) that is opened:

(i) in the name of a person who is under 18 at the time; or

(ii) by the trustee of a trust for the benefit of a person who is under 18 at the time.

"corporate Commonwealth entity" has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .

"responsible Minister" has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .