Unclaimed Money Regulations 1991

The Regulations rely on the Act’s core distinction between “unclaimed money” (generally money owed by a holder that remains unclaimed for a given period, not defined in the Regulations but in the Act) and “prescribed retained money” (money that is held by certain categories of entities and becomes reportable even if not classified as unclaimed money under the broader provisions). The Regulations do not redefine these terms, but they operationalise them for reporting purposes. “Notification” is a central concept: regulation 2 requires holders of prescribed retained money to notify the Treasurer by 31 January each year, and the notification must be in Form 1. “Payment” notifications (Form 2) are required when money is actually handed over to the Treasurer, specifying the payer and the physical place of payment. “Advertisement” by the Treasurer under section 11 is specified in regulation 4: the advertisement must include the notifier’s name and address, the stated owner’s name and address, a brief description of how the holder came into possession, and the date of possession. However, regulation 4(3) gives the Treasurer discretion to omit details if their publication would likely reveal private or confidential information about the owner. That is a notable limit on transparency in favour of privacy. Regulation 4A introduces “exemption from advertising for small amounts”: amounts under $100 can be omitted from the Gazette advertisement as long as the Treasurer keeps a public list detailing the owner’s name and address, amount, notifier’s name and address, manner of possession, and date. That list must be available for inspection without charge at places the Treasurer considers appropriate. “Prescribed amount” under regulation 7 sets the threshold for when the Treasurer may pay interest on unclaimed money paid out: $500. If the amount is less than that, no interest is payable. The “patients trust account” is defined in regulation 2B(3) as the Hospital Patients’ Private Property Trust Account held by the Health Department with Treasury. That regulation creates a special regime for interest credited before 30 June 1994, allowing voluntary payment under section 13 of the Act even if the ownership details cannot be fully ascertained. That is a de facto grant of authority to the Treasurer to accept money without strict proof of the owner. The “mining survey fees” exemption (regulation 2A) addresses a historical glitch: fees paid under the repealed Mining Act 1904 and transferred to the Trust Account, where the original payer details are lost. Holders are exempted from providing the owner’s name, address, and the date of possession if those details cannot reasonably be ascertained. These concepts collectively illustrate that the Regulations manage the practical friction between the Act’s reporting ideal and the reality of incomplete records, particularly for old accounts and small sums.

The Regulations directly affect three main groups. First, holders of unclaimed money and prescribed retained money are the primary duty-bearers. These are typically financial institutions, companies, government agencies, and other organisations that hold money owed to a person but which has not been claimed after a statutory period. The Regulations impose a specific annual reporting deadline of 31 January for prescribed retained money, and prescribe the form and content of notifications. The definition of “holder” is in the Act, but the Regulations add administrative burdens: every holder who notifies must complete Form 1 with owner details, amounts, dates and circumstances. If the holder later pays the money to the Treasurer, they must also submit Form 2 (notification of payment) and, for payments under section 13, a statement in Form 3. The Regulations do not exempt small holders; even a holder with a single small amount must comply, though the advertising burden on the Treasurer is lightened for amounts under $100. Second, the Treasurer of Western Australia is affected heavily. The Regulations impose duties to advertise, to keep public lists for small amounts, to exercise discretion on privacy grounds, and to pay interest only on amounts over $500. The Treasurer must also manage notifications and payments, and accept voluntary payments under the special exemption for the patients trust account. Third, owners of unclaimed money are affected indirectly. The advertising regime is designed to reunite owners with their money. If the amount is under $100, the owner’s details are not published in the Gazette but are kept in a list at places the Treasurer chooses - which may reduce the chance of an owner seeing the advertisement. Owners of amounts over $500 are entitled to interest when they claim, but only if the Treasurer pays out; the Regulations set that threshold, so owners of smaller sums receive no interest. The Regulations also affect the Health Department (formerly the Health Department of WA) and the Director General of Mines (historically) by providing exemptions tailored to their specific circumstances. The Health Department can voluntarily pay interest from the patients trust account without strict ascertainment of owners, thereby cleansing its books of old small credit balances. The mining survey fee exemption similarly cleans up old records. Finally, any person who makes a notification or payment (including legal personal representatives) must sign the forms and certify correctness, so the Regulations affect individuals who are officers or representatives of holders, imposing a certification obligation with potential consequences for false statements.

The Regulations impose several specific duties and grant a few rights. The primary duty is on holders of prescribed retained money to notify the Treasurer by 31 January each year (regulation 2(1)). The notification must be in Form 1 and must include the holder’s name and address, the owner’s last known address, the amount, the date the holder came into possession, and the manner of possession. That duty is not optional; the holder must notify regardless of whether the amount is small or old. A closely related duty is to include the additional matters listed in regulation 2(2) - but if the holder cannot reasonably ascertain the owner’s name or address, the mining survey fee exemption (regulation 2A) relieves that duty entirely for that specific class of money. Holders also have a duty, when paying unclaimed money to the Treasury under section 13, to submit a statement in Form 3 (regulation 5). When paying under section 14 (payment after advertisement), the holder must specify the item number from the Gazette advertisement (regulation 6). Rights for holders are limited: the main one is the exemption under regulation 2A for certain mining survey fees, which allows notification without owner details if they cannot be reasonably ascertained. That is not a right to withhold money, but a relief from the normal information requirements. The Treasurer has duties to advertise: under regulation 4(1), the Treasurer must advertise prescribed retained money that is notified in the year (and not yet paid). The advertisement must include the particulars listed in regulation 4(2): notifier’s name and address, owner’s stated name and address, brief description of how the holder came into possession, and the date. However, the Treasurer has a discretion under regulation 4(3) to omit details that would reveal private or confidential information about the owner - that is a power, not a duty. For amounts under $100, regulation 4A allows the Treasurer to avoid listing each item in the advertisement, but imposes a duty to keep a public list with full details (owner name, address, amount, notifier, manner and date of possession) at places the Treasurer considers appropriate, available for inspection without charge. The Treasurer also has a duty derived from section 16 of the Act, as operationalised by regulation 7: to pay interest only on amounts over $500. That caps the state’s liability. The right of owners of unclaimed money to claim their money is established by the Act, but the Regulations affect the practical exercise: owners of amounts under $100 may have a harder time finding their money because it is not individually advertised; they must search the public list. Owners of amounts over $500 have the added right to interest when their money is paid out. The Health Department has a right under regulation 2B to voluntarily pay interest from the patients trust account to the Treasury under section 13, with a deemed satisfaction of the “satisfied that” requirement in section 7(4)(a) of the Act, meaning they do not have to fully identify owners. Finally, any person who makes a notification or payment must certify the correctness of the information, which is a duty of accuracy.

The Unclaimed Money Regulations 1991 themselves do not prescribe penalties. They are subordinate legislation under the Act, and the Act contains the penalty provisions. However, the Regulations indirectly support enforcement by prescribing the forms and procedures that, if not followed, might put a holder in breach of the Act. Section 9 of the Act requires holders of unclaimed money and prescribed retained money to notify the Treasurer; failure to do so within the prescribed time (set by the Regulations as 31 January for prescribed retained money) would be an offence under the Act, carrying a penalty of up to $2,000 or imprisonment for up to 6 months for an individual, and up to $10,000 for a body corporate (as per the Act’s penalty unit system). The Regulations’ forms are mandatory: regulation 2(3) states that a notification “is to be in the form of Form 1”. If a holder submits a notification not in that form, the Treasurer could reject it, and the holder may be assessed as failing to notify. Regulation 3(2) likewise makes Form 2 mandatory for payment notifications. Regulation 5 requires a statement “in the form of Form 3” for payments under section 13. Non-compliance with those form requirements could be treated as non-compliance with the underlying notification or payment duty. Additionally, the person signing the form certifies that the information is correct. Knowingly making a false certification could lead to prosecution for providing false information to a public officer, potentially under the Criminal Code (WA) or the Act’s own provisions on false statements. The Regulations do not create any enforcement mechanisms themselves - they leave that to the Act and the general law. However, the Treasurer’s discretion under regulation 4(3) to withhold private information from advertisements is not enforceable against the Treasurer; an owner who wants more publicity has no remedy under the Regulations. The exemption for small amounts (regulation 4A) is also permissive for the Treasurer; if the Treasurer chooses not to use it, no party can compel it. The mining survey fee exemption (regulation 2A) is a defence to a claim that the notification was incomplete - if the holder can show that the information could not be reasonably ascertained, the notification is deemed compliant. But the holder bears the practical burden of proving that the information could not be reasonably ascertained. Likewise, the patients trust account exemption (regulation 2B) permits the Health Department to pay money without strict ascertainment; but if the Department does not use that permission, there is no penalty. The interest threshold of $500 (regulation 7) is a limitation on the state’s liability: if the Treasurer pays interest in error on a sum under $500, that might be a payment without authority, though not penal. Overall, enforcement relies on the Act’s offence provisions, with the Regulations providing the procedural framework that, if not followed, triggers those penalties. Practical enforcement history is sparse (see litigation history), but the threat exists for systematic non-compliance.

The Regulations are expressly made under the Unclaimed Money Act 1990 (WA) and must be read in conjunction with it. The Act confers the regulation-making power (section 18) and the Regulations fill procedural gaps. Several specific references to other laws appear. Regulation 2A refers to the Mining Act 1978 and the repealed Mining Act 1904, and the Audit Act 1904 (repealed and replaced by the Financial Administration and Audit Act 1985). This demonstrates that the Regulations are designed to clean up historical anomalies arising under earlier legislation. The mining survey fees exemption exists because those fees were paid under a now-repealed Act and the records are inadequate. The reference to the Audit Act 1904 reminds readers that the procedural framework for government accounts has since changed. Regulation 2B refers to the “Health Department of Western Australia” which, by the Alteration of Statutory Designations Order (No. 3) 2001, is now the Department of Health. That order is a statutory instrument made under the Acts Amendment and Repeal Act 2000 or similar, and so the Regulations interact with that general law on statutory interpretation. The Regulations also interact with the Financial Administration and Audit Act 1985, which governs the management of trust accounts and the payment of money into the Treasury. When section 13 payments are made, they go to the Treasury, which is administered under that Act. The Regulations do not directly reference privacy laws, but regulation 4(3) gives the Treasurer a discretion to withhold publication of information that would “reveal information about the owner that may be private or confidential”. This suggests an interaction with the common law duty of confidentiality and possibly with the Privacy Act 1988 (Cth) (though the WA public sector is not bound by the Commonwealth Privacy Act in all contexts; there is the WA State Records Act 2000 and the Freedom of Information Act 1992 (WA) which deal with access to information). The discretion is a practical acknowledgment of privacy concerns but does not create a statutory privacy right. The prescribed amount of $500 for interest (regulation 7) interacts with the Act’s section 16, which would otherwise leave the threshold open. There is no interaction with the Corporations Act 2001 (Cth) noted in the Regulations; however, holders who are companies may have additional obligations under ASIC’s unclaimed money regime, but that is a separate system. The Regulations are specific to Western Australia and do not purport to apply to Commonwealth unclaimed money or to unclaimed money regulated by other state and territory regimes (though those regimes are broadly similar). The compilation table notes that the Regulations were amended in 1994, 1996, and 1998, and the current reprint is as at 18 July 2003. It is possible that later amendments have occurred since 2003, but the source text only goes to that date. Practitioners should check whether later versions exist. The listed amendment history shows that the 1994 amendment was gazetted on 27 May 1994, the 1996 amendment on 20 Aug 1996, and the 1998 amendment on 11 Dec 1998. The 1996 amendment introduced regulations 2A and 4A, and amended regulation 2. The 1998 amendment introduced regulation 2B. No subsequent amending instruments are shown in the compilation table. The Regulations do not interact with the Act’s provisions on prescribed amounts in any other way; only one prescribed amount is given. No other legislative instruments are cross-referenced.

The Unclaimed Money Regulations 1991 were originally gazetted on 12 April 1991 and commenced on that date. They have been amended three times, as shown in the compilation table. The first amendment was the Unclaimed Money Amendment Regulations 1994, gazetted 27 May 1994, which amended regulation 4 (advertising by Treasurer) to add subregulation (3) allowing the Treasurer to omit details that would reveal private or confidential information about the owner. Before that amendment, regulation 4 apparently required publication of all known particulars without discretion. The 1994 amendment also inserted the current regulation 4(3). The second amendment was the Unclaimed Money Amendment Regulations 1996, gazetted 20 August 1996. This was a major amendment that inserted regulation 2A (exemption for certain mining survey fees) and regulation 4A (exemption from advertising for small amounts), and also amended regulation 2 to add subregulation (1a) setting a special notification date for prescribed retained money to which regulation 2A applies (31 January 1997). That amendment solved a problem: the mining survey fees had been paid in 1980-1981, but had only become prescribed retained money later; the normal notification date would have been prior to 1996, so a one-off extended date was given. Regulation 4A was a practical simplification allowing the Treasurer to avoid publishing every tiny amount. The third amendment was the Unclaimed Money Amendment Regulations 1998, gazetted 11 December 1998, which inserted regulation 2B (exemption to allow voluntary payment of interest earned on patients trust account). That regulation applied only to interest credited before 30 June 1994 and allowed the Health Department to pay it to Treasury even if owners could not be fully identified, by deeming a modified reading of section 7(4)(a) of the Act. No subsequent amendments are recorded in the compilation as at 18 July 2003. It may be that later reprints exist beyond that date; the user supplied only this version. The Regulations have not been repealed. The note at the end of the text indicates that the compilation includes amendments from the three regulations listed. No amending regulations were gazetted between 1998 and 2003 that affected these Regulations. The history shows the WA government responding to specific administrative problems: old mining records, small unclaimed sums that cost more to advertise than they are worth, and old hospital trust accounts with incomplete owner details. Each amendment narrowed the scope of procedural obligations, making the system less burdensome for holders and for the Treasurer, but also reducing the chance of owners being reunited with their money (for small amounts, the advertising exemption reduces visibility). The absence of later amendments (at least up to 2003) suggests the Regulations were stable, except possibly for periodic updates to the prescribed amount of interest (still at $500 as of 2003). If inflation had eroded that value, the government might have raised it via a later regulation not included in this text.

There is no mention of any litigation in the text of the Unclaimed Money Regulations 1991. The Regulations themselves do not refer to any cases. A search of standard databases would likely find very few reported cases on these Regulations specifically, given their narrow scope. Litigation under the Unclaimed Money Act 1990 is rare, and even rarer on the regulations. The discretion of the Treasurer under regulation 4(3) to withhold private information could theoretically be challenged by an owner who wants their name advertised, but no such case is recorded in the source. The mining survey fee exemption (regulation 2A) might have been litigated if a holder claimed the exemption but the Treasurer refused to accept the notification as compliant; again, no case appears. The patients trust account exemption (regulation 2B) allowed a voluntary payment; likely the Health Department used it without dispute. The advertising exemption for small amounts (regulation 4A) could be challenged by an owner who argued that their money was not advertised and they did not know about the public list; but no case cites this regulation. The most likely source of litigation would be a prosecution for failing to notify under section 9 of the Act, where an accused relies on a regulation as a defence - for example, that the information could not be reasonably ascertained under regulation 2A, or that the money was subject to the mining survey fee exemption. Without reported case law, one can only speculate. The Regulations also set the prescribed amount of $500 for interest; a dispute might arise if the Treasurer refused to pay interest on a sum over $500 but under some other threshold. No such case is noted. It is possible that the Regulations were cited in judicial review proceedings concerning the Treasurer’s refusal to pay out money, but again, no reference in the text. The compilation note does not include any annotations of judicial decisions. Therefore, litigation history surrounding these specific regulations appears to be negligible. That is consistent with the nature of subordinate legislation that is purely procedural; disputes are more likely to centre on the Act’s substantive provisions, such as what constitutes unclaimed money, or the holder’s obligations, not the form of notification or the advertising particulars. The only legal risk under the Regulations themselves is a technical non-compliance that could scuttle a defence or give the Treasurer grounds to reject a notification. Practitioners should be aware that the lack of litigation does not mean the Regulations are safe; it may mean they operate largely without challenge.

Several provisions in the Unclaimed Money Regulations 1991 create traps for the unwary. First, the mandatory use of forms: regulation 2(3) says a notification “is to be in the form of Form 1”. A holder who writes a letter or sends an email without using the prescribed form may be deemed not to have notified, triggering the Act’s penalty. Similarly, regulation 5 requires that a payment under section 13 be accompanied by a statement in Form 3. If the holder pays the money by cheque but omits the form, the payment might not be recognised as a valid discharge. Second, the notification deadline of 31 January (regulation 2(1)) is tight: money that becomes prescribed retained money in the previous calendar year must be notified by 31 January of the next year. A holder who misses that date by even a day is in breach. The exception in regulation 2(1a) for regulation 2A money set a now-expired deadline of 31 January 1997, so that exemption is irrelevant for current notifications, but a holder might mistakenly think it still applies. Third, the advertising exemption for small amounts (regulation 4A) is a trap for owners: if the amount is under $100, the Treasurer does not have to advertise it individually. Owners may never learn they have money owing to them unless they search the public list at a place the Treasurer chooses. The list is not widely publicised. An owner who misses out because the list was not obvious has no recourse against the Treasurer because the exemption is permissive. Fourth, the discretion to withhold private information (regulation 4(3)) could be used to suppress details that would help an owner identify their money. If the Treasurer decides that advertising the owner’s name and address would breach privacy, that owner may never see their money advertised. But the owner cannot compel the Treasurer to publish. Fifth, the interest threshold of $500 (regulation 7) means that even if a holder pays interest to the Treasurer on a sum already earned, the owner is entitled to none of it if the amount is under $500. The holder might mistakenly assume they need to account for interest on all amounts, but the Act only requires interest on amounts over $500. Sixth, the mining survey fee exemption (regulation 2A) is extremely narrow: it applies only to fees paid under the Mining Act 1904 between 1 July 1980 and 31 December 1981, and only if those fees were paid to the Director General of Mines and then to the Treasurer under the Audit Act 1904. Any other historical mining payments do not qualify. A holder who tries to apply that exemption to other old fees is wrong. Seventh, the patients trust account exemption (regulation 2B) similarly is limited to interest credited before 30 June 1994. Any interest credited after that date must be dealt with under the normal rules, requiring reasonable ascertainment of owners before voluntary payment. The Health Department might think the exemption covers all old balances, but it does not. Eighth, the forms in Schedule 1 require the signature of the holder or their legal personal representative. If the holder is a company, the signatory must be authorised; a signature by an unauthorised employee could invalidate the notification. Ninth, Form 3 asks for “details of unfulfilled obligations in respect of the money being paid”. If the holder has a continuing obligation to the owner (for example, a contractual duty to maintain an account), paying the money to Treasury under section 13 might not fully discharge that obligation unless the Act so provides. The holder should get legal advice. Tenth, the compilation date is 18 July 2003. The Regulations may have been amended after that date; the $500 threshold might have been increased by a later regulation not shown. Relying on this version without checking for later amendments is risky.

Compliance with the Unclaimed Money Regulations 1991 requires a structured process for any holder of unclaimed money or prescribed retained money. First, determine whether the money falls under the Act and whether it is unclaimed money (not defined here, but generally money held for six years without claim) or prescribed retained money (money held by certain entities such as gas corporations, water corporations, etc., as listed in the Act). If it is prescribed retained money, the holder must notify the Treasurer by 31 January of the year following the date the money became prescribed retained money. That notification must be on Form 1 (Schedule 1). The holder must include its own name and address, the owner’s last known name and address (if known), the amount, the date of possession, and the manner of possession. If the holder cannot reasonably ascertain the owner’s name or address, but only for the very specific mining survey fee class (regulation 2A), then those details may be omitted. For any other class, the holder must include whatever is known; if unknown, the notification is still required but the holder should note the inability. The holder should keep records supporting why information is unknown. Second, if the holder later pays the money to the Treasurer under section 13 or 14, a separate notification is required. Under section 13 (voluntary payment before advertisement), the holder must use Form 3 (regulation 5) and submit it with the payment. That form requires the holder’s name and address, the amount paid, the owner’s name and last known address, the date and manner of possession, details of any unfulfilled obligations, and the amount of balance to be paid to the owner (if any). The holder must pay the money to the Treasury (not just to the Treasurer) - check the Act for the correct recipient. Under section 14 (payment after advertisement in the Gazette), the holder must specify the item number from the advertisement (regulation 6) and likely use Form 2 (notification of payment) as per regulation 3. Form 2 asks for the payer’s name and address, the amount, the name of the recipient, the address of handover, and the date. The holder should retain copies of all forms and proof of payment. Third, if the amount is small (under $100), the holder does not get any relief from notifying; the relief is only for the Treasurer’s advertising. The holder must still notify. But the holder should be aware that the owner might never see a gazette notice for small sums. Fourth, the holder must also consider whether the money has earned interest. Under section 16 of the Act, if the money is over $500 (regulation 7), the Treasurer may pay interest to the owner when the money is claimed. The holder does not have to pay interest to the Treasurer, but the holder should account for any interest earned on the money while it was held, because the Act may require the holder to pay that interest to the Treasurer as part of the unclaimed money. The Regulations do not explicitly require that, but the Act does. The holder should calculate interest in accordance with the Act, not the Regulations. Fifth, the holder should maintain a register of all unclaimed money and prescribed retained money, with the dates and amounts, to ensure the annual notification deadline is not missed. For prescribed retained money, the deadline is fixed at 31 January. For unclaimed money under section 9 of the Act, the notification date may be different - the Act provides for notification at prescribed intervals. The Regulations do not change that for general unclaimed money, only for prescribed retained money. Sixth, if the holder is the Health Department dealing with the patients trust account, regulation 2B allows a voluntary payment of interest credited before 30 June 1994. The Department must read section 7(4)(a) of the Act as if it had been amended to say “to the extent to which they can reasonably be ascertained”. That means the Department can pay the interest without having full owner details, but it should still attempt to ascertain what it can. The payment should be accompanied by a statement (presumably Form 3 or a similar document) - the regulation does not specify a form, but using Form 3 would be prudent. Seventh, for holders of mining survey fees from 1980-1981, regulation 2A provides relief from providing owner details. But that class is only for money paid under the Mining Act 1904 and transferred under the Audit Act 1904. If the holder is the current Department of Mines, it can notify without the owner’s name if it cannot reasonably be ascertained. That notification date was extended to 31 January 1997; for any such money not notified by then, the holder may still owe a notification but should seek legal advice as the exemption might no longer apply. Finally, all notifications must be signed by the holder or a legal personal representative. For companies, the signatory should be an authorised officer, and the certification must be truthful. The holder should ensure that internal systems can generate the precise dates and amounts, and cross-check against the Act’s definitions of “unclaimed money”. If in doubt, consult a legal professional with experience in unclaimed property laws.