Explanatory Memorandum
(Circulated by the authority of the Treasurer, the Hon J. B. Hockey MP)Chapter 4 Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Banking Laws Amendment (Unclaimed Money) Bill 2015
4.1 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
4.2 The Bill amends the unclaimed moneys provisions in the Banking Act 1959 (Banking Act) and the Life Insurance Act 1995 (Life Insurance Act). The amendments include:
- •
- extending the unclaimed moneys period from three years to seven years for accounts held by authorised-deposit taking institutions (ADI) and life insurance providers;
- •
- exempting ADI accounts created for children and those that are held in a foreign currency from the unclaimed moneys provisions;
- •
- stopping the transfer of ADI accounts to the Commonwealth where an account holder provides notification that the account should be treated as active after the account is assessed as unclaimed moneys at the end of the calendar year but before it is transferred to the Commonwealth;
- •
- removing the requirement for the Australian Securities and Investment Commission to publish details of unclaimed moneys in the annual Unclaimed Moneys Gazette; and
- •
- introducing secrecy provisions to prevent access to information on unclaimed moneys via the Freedom of Information Act 1982 (FOI Act).
Human rights implications
4.3 The Bill engages the following human rights:
- •
- the right of the child to have their best interests be a primary consideration under Article 3(1) of the Convention on the Rights of the Child;
- •
- the right to the protection from arbitrary or unlawful interference with privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR); and
- •
- the right to seek information under Article 19(2) of the ICCPR.
Best interests of the child to be a primary consideration under Article 3(1) of the Convention on the Rights of the Child (CRC)
4.4 Item 2 in Part 1 of Schedule 1 to this Bill provides that ADI accounts created for children will be exempt from the unclaimed moneys provisions. As a result, children's accounts will no longer have to be transferred to the Commonwealth when they become inactive.
4.5 The exemption in this Bill will replace the current special treatment for children's accounts under the Banking Regulations 1966 (Banking Regulations) which currently provides that children's accounts are only transferred to the Commonwealth if they have been inactive for seven years (instead of the regular three year period).
4.6 Exempting children's accounts from being transferred to the Commonwealth is consistent with Article 3(1) of the Convention on the Rights of the Child because it makes the best interest of the child the primary consideration.
4.7 The exemption is in the best interest of children because it ensures that they will always have access to their accounts even in cases where the account has been inactive for a long period of time.
4.8 The exemption is also in the best interests of children because it seeks to ensure that they do not have to go through lengthy processes to reclaim their accounts.
4.9 In addition, children's accounts are generally established for long periods so that money can be set aside in high-interest accounts for a child to access on, for example, their eighteenth birthday.
4.10 Exempting these accounts from the unclaimed moneys provisions is therefore in the best interest of children because the accounts would otherwise be transferred to the Commonwealth and this may result in some children losing out on the higher interest rates because the accounts transferred to the Commonwealth only accrue interest at the rate of the Consumer Price Index.
Right to the protection from arbitrary or unlawful interference with privacy and the right seek information under Article 17 and 19 of the ICCPR
4.11 Items 6 and 9 in Part 1 of Schedule 1 of the Bill establish new secrecy provisions that prevent the disclosure of information relating to unclaimed moneys in ADI and life insurance provider accounts.
4.12 Under the secrecy provisions, information on unclaimed moneys in ADI accounts can only be disclosed if authorised by the Banking Act and information on unclaimed moneys in life insurance accounts can only be disclose if authorised by the Life Insurance Act.
4.13 The secrecy provisions apply in relation to the FOI Act as well, ensuring that access to information on unclaimed moneys via freedom of information requests is only available to the people to whom the information relates (or their agent).
4.14 The secrecy provisions being introduced are consistent with the right to protection against arbitrary and unlawful interference with privacy and the right to freedom of expression under Articles 17 and 19 of the ICCPR.
4.15 The introduction of the secrecy provisions is intended to promote and protect the privacy of individuals with accounts that have unclaimed moneys.
4.16 Information on unclaimed moneys has been used by business groups to contact account holders offering to help reclaim unclaimed moneys for a fee. Account holders may be disadvantaged by this because they are able to reclaim the money from the Government directly with no charge.
4.17 Stakeholder groups have also raised concerns that the public disclosure of information on unclaimed moneys could lead to identity theft.
4.18 The secrecy provisions therefore support Article 17 of the ICCPR by protecting account holders from interference with their privacy.
4.19 Limiting access to information about ADI and life insurance provider accounts with unclaimed moneys restricts the public's right to seek information under Article 19(2) of the ICCPR. However, this is permitted under Article 19(3) of the ICCPR if the restrictions are intended to protect the rights of others.
4.20 As such, the secrecy provisions being introduced into the Banking Act and Life Insurance Act are consistent with the ICCPR because the restriction of the public's right to seek information is a consequence of strengthening the right of privacy of individuals who hold accounts with unclaimed moneys.
Conclusion
4.21 The Bill is compatible with human rights as it seeks to put the best interests of children first by exempting children's accounts from the unclaimed moneys provisions and protects the privacy of account holders by stopping the public disclosure of information on unclaimed moneys.
4.22 To the extent that the Bill restricts the public's right to seek information, this is justified because it is a reasonable, necessary and proportionate consequence of protecting the privacy of individuals who have accounts consisting of unclaimed moneys.