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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-08-21 Daily Xml
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Bills

Unclaimed Goods (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:24): Obtained leave and introduced a bill for an act to amend the Unclaimed Goods Act 1987 and to make a related amendment to the Local Government Act 1999. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:25): I move:

That this bill be now read a second time.

I am pleased to introduce the Unclaimed Goods (Miscellaneous) Amendment Bill 2025. This bill makes much-needed updates to the Unclaimed Goods Act 1987, primarily aimed at modernising and easing the regulatory burden on businesses and others who hold goods on bailment.

When a person comes into possession of goods belonging to another, it is expected that they retain and take reasonable care of the goods pending their collection by the owner. The act prescribes a process by which the person in possession of the goods, currently referred to in the act as the bailee, may lawfully sell or dispose of goods that are abandoned or have not been collected by their owner, referred to in the act as the bailor. A bailee who disposes of unclaimed goods without the consent of the bailor and who does not follow the process set out in the act risks the bailor taking legal action against them.

The act may have application in a wide variety of circumstances, for example, where goods are left with a business by a customer for a specific purpose, such as for inspection, storage, cleaning, repair or other treatment; where goods are given to a friend or family member for temporary safekeeping; or where goods are abandoned on premises, such as in a private car park or left behind by a former housemate or employee.

A person in possession of goods belonging to another may be considered a bailee under the act even if they did not agree to the bailment. In certain circumstances, there may be other lawful ways for a bailee to dispose of uncollected goods. For example, the Residential Tenancies Act 1995 provides a process for landlords to dispose of property that has been abandoned by a tenant after the landlord regains possession of the premises. The act does not affect a bailee's right to dispose of goods in accordance with any other act.

Since the commencement of the act in 1987, the legislation has remained substantially unchanged; however, over that almost 40-year period there have been significant advancements in electronic communications, as well as changes in the way that businesses and consumers interact. The government has received repeated feedback that the waiting periods prescribed in the act which require unclaimed goods to be retained for lengthy periods of time place an unreasonable burden on businesses and other bailees, and that the notice requirements and prescribed methods of disposing of unclaimed goods are overly cumbersome, often resulting in undue cost and inconvenience.

If the regulatory burden imposed by the act is too onerous, bailees may be discouraged from acting in accordance with the law despite any risk of legal action. On the other hand, bailors may have legitimate reasons for failing to collect goods or being uncontactable. It is therefore necessary for the legislation to maintain an appropriate level of protection for bailors of goods. The bill makes a number of changes to modernise the act and to ensure that the processes prescribed under the act are reasonable, practicable and readily understood.

The language in the act is updated in the bill, including the replacement of the term 'bailee' with 'recipient' to refer to a person who is left in possession of the goods and the replacement of the term 'bailor' with 'provider' to refer to a person who leaves the goods in the possession of another. The bill also refers to the owner of goods where that person is different from the provider. For simplicity, I will use the updated terms to explain the changes contained in this bill.

Under the act, goods are classified as scale 1, 2 or 3 goods based on their value. The act prescribes differing requirements for the sale and disposal of goods depending on which scale the goods fall within. The bill provides that where multiple goods are unclaimed, the relevant scale has to be determined by reference to the cumulative value of the goods in the bailee's possession. This provides clarity and is expected to achieve a fairer result where the individual items, such as individual pieces of jewellery within the collection, are of low to moderate value but their cumulative value is considerable.

The bill increases the threshold for scale 3 goods to $20,000, taking into account the onerous obligations placed on recipients before disposing of these goods, including the requirement to seek a court order. Conversely, the upper limit for scale 1 goods is reduced to $200 to complement amendments in the bill which simplify the process for dealing with these goods. To facilitate simpler and expedited processes to dispose of unclaimed motor vehicles which are destined for scrap metal, the bill sets a higher scale 1 upper limit of $1,000.

The various waiting or retention periods described in the act are also reduced. For example, the act currently requires the recipient to hold the goods for a blanket period of three months from the date on which the goods are classified as unclaimed goods before they are permitted to take any further steps in accordance with the act. The bill instead prescribes differing holding periods depending on the value of the goods. A mechanism is also introduced to enable a recipient to apply to the court to dispose of goods earlier than permitted under the act where compliance would be unreasonable in the circumstances.

The bill modernises requirements under the act, including updating the approved methods for service to include electronic forms of communication, abolishing the antiquated public notice requirements and introducing requirements to search the commonwealth Personal Property Securities Register in respect of unclaimed motor vehicles. The bill also introduces a new requirement on recipients to give the provider of the goods and, where known, any owner of the goods—referred to in the bill as a 'relevant person'—notice of their intent to dispose of the goods under the act.

The holding period does not commence until such notice has been given, unless the recipient is unable to obtain that person's contact details despite reasonable attempts to do so. Where the goods remain unclaimed after the holding period ends, the act authorises disposal of the goods through certain approved methods. The bill simplifies these processes, particularly with respect to scale 1 and 2 goods. Under the bill, scale 1 goods are simply vested in the recipient at the expiry of the holding period, meaning the recipient can retain or dispose of the goods as they wish. Scale 2 goods may be sold by public auction or by private sale for fair value or otherwise in accordance with any court order.

The existing requirement to obtain a court order before disposing of scale 3 goods is retained. The bill makes special provision for the disposal of special categories of goods, including rubbish, perishable goods or goods that are likely to cause a risk to health and safety, personal documents and motor vehicles. Where the goods are claimed by the provider or owner of the goods, the act permits the recipient to require payment of certain costs before handing over the goods. Similarly, if the goods are ultimately sold, the recipient may retain certain costs from the proceeds of sale before depositing the balance with the Treasurer.

The existing right is revised in the bill to ensure that the recipient is not left out of pocket. Significantly, in relation to costs incurred prior to the goods being unclaimed goods, the act only permits the recipient to claim or retain the amount of any lien established over the goods. As a result, recipients who cannot establish a lien over unclaimed goods may not be permitted to demand or retain all of the charges due to them in connection with the goods.

An illustration as to how this may operate unfairly was provided by the Law Society in its feedback to the government during the development of this bill. The Law Society highlighted that no lien is created in South Australia over animals that have been abandoned in agistment, kennels, catteries or pet day care. As a result, a recipient left in possession of an abandoned animal would not be permitted to retain the costs of feeding or sheltering the abandoned animal from the proceeds of sale if those costs were incurred prior to the animal being classified as unclaimed, nor would they be able to demand those costs before handing the animal back to the owner. Instead, the recipient would be required to pursue those costs as a debt.

The bill removes the requirement to establish a lien over the goods and instead permits the recipient to demand or retain the amount agreed—or, in the absence of an agreement, such amount as is reasonable—as the charges due for any inspection, carriage, storage or maintenance of the goods or for any repair or other treatment or work done in connection with the goods.

The bill also expands the rights of third parties, such as those with a security interest over the goods, to establish their interests in unclaimed goods. Currently, the only remedy available under the act to third parties who claim an interest in unclaimed goods is to make a claim with the Treasurer for payment from the proceeds of sale. The bill introduces a mechanism for any person who claims an interest in unclaimed goods to apply to the court to declare their interest and to determine how the goods should be dealt with. A number of other amendments to the act are made, including:

making explicit in the act that it only applies to the extent that there is no existing agreement between the parties about how unclaimed goods may be disposed of, which will allow businesses to set conditions regarding the disposal of unclaimed goods prior to agreeing to any goods being left in their possession;

the introduction of record-keeping requirements;

clear protection from civil or criminal liability for taking action in good faith in accordance with the act;

new provisions that regulate how the proceeds from the sale of unclaimed goods are dealt with by the Treasurer, for greater consistency with the Unclaimed Money Act 2021; and

the inclusion of a declaration in accordance with section 73(2) of the commonwealth Personal Property Securities Act 2009 to clarify the priority of rights between the recipient and third parties with a security interest in the goods.

I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Unclaimed Goods Act 1987

3—Amendment of long title

This clause makes a minor consequential amendment to the long title.

4—Substitution of section 3

This clause substitutes new definitions for the purposes of the measure and clarifies that the Act does not apply to the disposal of unclaimed goods to the extent that an agreement or understanding between the provider and the recipient deals with the disposal of the goods.

5—Amendment of section 5—Unclaimed goods

This clause:

changes terminology used (to replace references to a 'bailee' of goods with references to a 'recipient' of goods and to replace references to a 'bailor' or goods with references to a 'provider' of goods);

makes changes to facilitate an expedited process for disposal of unclaimed goods that are perishable or rubbish;

makes changes to ensure reasonable attempts are made to contact the provider or an owner of the goods and to shorten the time period before the goods become 'unclaimed' from 42 days to 14 days from the date of a request to collect the goods.

6—Substitution of sections 6 and 7

This clause substitutes new sections as follows:

5A—Special requirements relating to motor vehicles

If unclaimed goods consist of or include a motor vehicle, it will not vest in the recipient and may not be disposed of under the measure unless a search of the PPS register has been undertaken and registered interest holders notified.

6—Vesting of scale 1 unclaimed goods in recipient

This provision specifies when the recipient of unclaimed goods (other than personal documents) the value of which lies within scale 1 (ie not more than $200 or, in the case of a motor vehicle, not more than $1,000) will be taken to be vested with a good title to those goods.

6A—Disposal of scale 2 or 3 unclaimed goods

This provision specifies when the recipient of unclaimed goods the value of which lies within scale 2 (ie more than $200 but not more than $20,000 or, in the case of a motor vehicle, more than $1,000 but not more than $20,000) or scale 3 (ie $20,000 or more) may dispose of the goods.

6B—Disposal of unclaimed goods that are personal documents

This provision imposes special requirements in relation to the disposal of personal documents.

6C—Disposal of unclaimed goods that are rubbish etc

This provision provides an expedited procedure for the disposal of goods that are rubbish or are perishable or likely to cause a risk to the health or safety of a person.

6D—Court may order disposal of unclaimed goods earlier than permitted under Act

This provision allows the Court (being either the Magistrates Court or the District Court, depending on the value of the unclaimed goods) to order that unclaimed goods vest in, or may be disposed of by, the recipient without compliance with a provision of the measure if it is satisfied that compliance with the provision would be unreasonable in the circumstances.

7—Claim by owner or provider before goods disposed of etc

This provision provides a mechanism for a recipient of goods to claim reasonable expenses where the provider or owner claims goods after they have become unclaimed goods under the measure but before they are vested in, or disposed of by, the recipient.

7A—Determination of claims by interest holders

This provision allows a person who claims an interest in unclaimed goods to apply to the Court (being either the Magistrates Court or the District Court, depending on the value of the unclaimed goods) for an order declaring their interest in the goods at any time before the goods are vested in, or disposed of by, the recipient.

7—Amendment of section 8—Proceeds of sale

This clause:

updates terminology;

makes some clarifying amendments;

declares the costs and charges of the recipient in relation to goods sold under the Act to be statutory interests to which section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies (have to have priority over all security interests in relation to the goods);

makes other provisions consistent with the Unclaimed Money Act 2021.

8—Insertion of sections 8A, 8B and 8C

This clause inserts new sections as follows:

8A—Treasurer may pay money to lawful claimant

This provision allows the Treasurer to pay money to a claimant who had an interest in goods that have been sold pursuant to the Act (or who have an interest in the proceeds of such a sale).

8B—Record keeping

This provision requires the keeping of certain records by a recipient who disposes of unclaimed goods under section 6A or pursuant to an order under section 6D.

8C—Protection from liability

No liability attaches to a recipient for an action taken in good faith in accordance with the Act.

9—Amendment of section 9—Purchaser's title to goods sold under this Act

10—Amendment of section 10—This Act does not affect bailee's remedy under other Acts

These clauses update terminology.

11—Insertion of sections 10A and 10B

This clause inserts a new provision specifying the manner of giving notices and a provision making it clear that the Treasurer can delegate functions.

12—Amendment of section 11—Regulations

This clause allows regulations to be made specifying what constitutes taking reasonable steps for the purposes of any provision of the Act.

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Local Government Act 1999

1—Amendment of section 237—Removal of vehicles

This clause makes a consequential amendment.

Part 2—Transitional provision

2—Application of Act as in force before commencement

The principal Act as in force before the commencement of the clause, continues to apply to any goods that became unclaimed goods before the commencement of this clause.

Debate adjourned on motion of Hon. N.J. Centofanti.

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