Consultation open: How should unclaimed goods be managed?
The South Australian Government is currently seeking feedback on proposed amendments to the Unclaimed Goods Act 1987 (the Act) and Unclaimed Goods Regulations 2013 (the Regulations), including as to the length of time a bailee must retain possession of the goods prior to selling or disposing those goods.
Presently, the Act applies to any ‘goods’ in the possession of the bailee that are unclaimed by the bailor (owner) either because the owner has failed to collect the goods pursuant to an agreement, or the bailee has made reasonable attempts to deliver the goods to the bailor pursuant to an agreement, but has not been able to do so, or where the bailee has come into possession of goods and there is no agreement between the bailee and the goods’ owner.
It is this last of the aforementioned scenarios that Council’s commonly find themselves in. For example, where a vehicle is impounded pursuant to Section 237 of the Local Government Act 1999 and that vehicle contains ‘goods’ those goods are unclaimed goods for the purposes of the Act.
The Act commenced operation in 1987 and has not been the subject of any significant amendments since that time. An Amendment to the Regulations in 2013 increased the scales of value for the categorisation of lower, mid-range and higher value goods. There have no doubt been continual advancements in technology and particularly electronic communications since the commencement of the Act. In its discussion paper on the review of the Act, the Government reports it has received feedback that the waiting periods prescribed in the Act create an unreasonable burden for bailees in requiring them to retain goods for lengthy periods of time and that the notice requirements in the Act are cumbersome, imposing excessive cost and inconvenience on bailees.
The Government has identified a number of potential amendments to the Act and Regulations relevant to local government, set out briefly below.
Presently, in accordance with section 5(c) of the Act, goods in the possession of the bailee are not considered ‘unclaimed goods’ until a period of 42 days has passed. The Government proposes amending this period to some lesser amount of time, or removing the collection period altogether where there is no agreement between the bailee and the goods’ owner (i.e. the majority of circumstances in which Council’s find themselves in possession goods) and instead prescribing criteria which, if met, mean the goods would be ‘unclaimed goods’ for the purpose of the Act.
Notice of intent to dispose
In accordance with section 5(2) of the Act, where there is no agreement regarding the delivery of goods, the bailee must provide the owner with a notice of request for collection of goods, in the form prescribed in Schedule 1 of the Regulations. A notice of intent must make clear that if the goods remain uncollected after three months, they may be sold or disposed of pursuant to the Act.
It is proposed that this notice could be given prior to commencement of the waiting period, which may prompt owners to collect items earlier, thus saving time and expenses associated with the retention of the good for the 3 month waiting period.
The Act presently requires notices to be delivered by post to the last known address of the owner of the goods, or where the identity or whereabouts of the owner is unknown, publication of a notice in a newspaper circulating generally throughout the State.
It is proposed that these requirements be modernised to include other electronic methods of communication, such as email, text message, or publication of a notice in an in-print or online newspaper operating in South Australia. Alternately, the Government seeks feedback on the removal of these requirements and instead the implementation of a requirement for bailees to search the Person Property Securities Register (PPSR).
Regardless of whether goods have come into possession of the bailee by agreement or otherwise, the Act presently imposes an overall 3 month waiting period before a bailee may sell or dispose of unclaimed goods.
The Government identifies that storage of goods for this lengthy period can be costly and inconvenient for a bailee and proposes specifying different waiting periods based on the value of the unclaimed goods, i.e. shorter waiting periods where the goods are of lesser value. Feedback is sought on retaining the 3 month waiting period where the identity or location of the owner of the goods is unknown.
Feedback is also sought on a number of other matters contained in the Act and Regulations, such as methods of sale or disposal and as to scales of value of unclaimed goods. The consultation period runs until 16 February 2024 and we encourage relevant Council staff to consider providing feedback on this review. Further information including a discussion paper can be found at https://yoursay.sa.gov.au/review-of-unclaimed-goods-act-1987.
Should you wish to discuss any of the matters raised in this article, or require specific advice as to any aspect of the operation of the Act and/or Regulations, please contact Dale Mazzachi on +61 8 8210 1223 or email@example.com or Paul Kelly on +61 8 8210 1248 or firstname.lastname@example.org