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Introduced into the House of
Representatives on 30 October 2012
Portfolio: Treasury
Committee view
1.2
The committee has written to the Treasurer seeking clarification on a
number of issues before forming a view on the bill's compatibility with human
rights.
Purpose of the bill
1.3
This bill amends the Banking Act 1959, First Home Saver Accounts Act
2008 and Life Insurance Act 1995 to:
- reduce to three years the period before amounts held by authorised
deposit-taking institutions, first home saver account providers and life
insurance companies are treated as unclaimed moneys; and
- provide for the payment of interest on unclaimed moneys claimed after 1
July 2013;
1.4
The bill also amends the Superannuation (Unclaimed Money and Lost
Members) Act 1999 to:
- increase to $2000 the balance threshold below which small lost accounts
are required to be transferred to the Commissioner of Taxation;
- decrease to 12 months the period of inactivity before inactive accounts
of unidentifiable members are required to be transferred to the Commissioner;
and
- provide for the payment of interest on all unclaimed superannuation
moneys claimed after 1 July 2013.
1.5
Finally, the bill amends the Australian Securities and Investments
Commission Act 2001 to close the Companies and Unclaimed Moneys
Special Account; and the Corporations Act 2001 to establish a new
process for the receipt and payment of unclaimed property and provide for the
payment of interest on unclaimed property claimed after 1 July 2013.
Compatibility with human rights
1.6
The bill is accompanied by a brief statement of compatibility which
states that the bill ‘does not engage any of the applicable rights or
freedoms’, does not raise any human rights issues and is therefore compatible
with human rights.
Right to privacy
1.7
The effect of the bill is to increase the dollar threshold of accounts
that fall under the different statutes and to reduce the period of time for
which a person may leave particular types of account without activity before
sums standing to the credit of the accounts are required to be paid to the
Australian Taxation Office (subject to being reclaimed, with interest, by the
owner of the funds). The types of accounts include regular bank accounts, first
homesavers accounts, unclaimed life insurance funds, superannuation funds, and
unclaimed moneys under the Corporations Act 2001. The sums eligible to
be transferred include amounts of up to $2,000 (up from $200); examples of the
reduction of time are from 7 years to 3 years for bank accounts, and from 3
years to 1 year for superannuation accounts.
1.8
A person’s operation of a bank account or superannuation account,
including decisions as to what transactions the person wishes to engage in
through that account, fall with the area of the person’s private life,
guaranteed by article 17 of the ICCPR. Accordingly, a person’s right not to be
subject to arbitrary or unlawful interference with their private life is
engaged by an externally imposed requirement that balances in an account owned
by them be transferred to the ATO after a specified period. A person’s right to
property is also engaged, although this right is not guaranteed as a
freestanding right in the human rights treaties that fall under the Human
Rights (Parliamentary Scrutiny) Act 2011. However, any discrimination in
the enjoyment of the right to property would be covered under various human
rights guarantees, including article 26 of the ICCPR.
1.9
The question thus becomes whether the interference is aimed at the
achievement of a legitimate objective, whether there is a rational connection
between the limitation and the objective, and whether the limitation is
proportionate to that restriction. The explanatory memorandum explains in
general terms that:
‘The Bill will bring forward the time at which money is
recognised under the relevant law as lost or unclaimed, helping to reunite people
with their money earlier, and will protect superannuation account balances
transferred to the Australian Taxation Office (ATO) from erosion by fees and
charges.’
1.10
The objective advanced is thus to preserve the person’s funds from being
eroded by fees and charges, which could be seen as a legitimate objective. The
removal of funds to the ATO and the establishment of procedures for the
reclaiming of those funds as well as the requirement to pay interest on
balances, would have the effect of preserving balances. The issue of
proportionality is less clear, and the explanatory memorandum does not offer an
justification for the dramatic reduction in the period that must elapse before
the obligation to transfer the funds to the ATO is activated.
1.11
The committee seeks clarification of the basis for determining that
the significant reduction in the time which must elapse before funds are
required to be transferred is a proportionate means of achieving the objectives
pursued by the bill.
Right to privacy
1.12
The ease of access to procedures for the recovery of funds that are
transferred as lost or unclaimed funds is also relevant to the permissibility
of the interference with the right to privacy. The system provided for under
the legislation involves easy access by members of the public through the
website of the Australian Securities and Investment Commission to an on-line
database of unclaimed funds (https://www.moneysmart.gov.au/). Any person may
search under any name and if there is a record under that the name, the
database will display the full name of the account holder, the amount in the
account, the address of the person or the institution, and the name of the
institution at which the account was held.
1.13
While this system is extremely easy to access and use (and thus
facilitates any effort by the owner of funds to reclaim them), the availability
of this personal data also engages the right to privacy. There is no
consideration of this issue in the explanatory memorandum or in the statement
of compatibility.
1.14
The committee seeks clarification of whether the procedures for
identifying lost or unclaimed funds and seeking their return, in particular the
availability of personal information online, engage the right to privacy of
individual account holders and whether the procedures involve a permissible
limitation on the enjoyment of that right.
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