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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Retirement Villages (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:56): Obtained leave and introduced a bill for an act to amend the Retirement Villages Act 2016. Read a first time.

Second Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:57): I move:

That this bill be now read a second time.

This bill responds to recommendations made by an independent review to strengthen the operation of the Retirement Villages Act 2016, increase consumer protection and provide clarity for residents and operators. In addition, following extensive community consultation last year, several amendments aimed at enhancing consumer protections of residents of retirement villages in South Australia have also been included.

These amendments ensure that our retirement villages legislation is robust in its protections for residents while also supporting the growth and sustainability of the sector. This bill will help establish a contemporary, balanced and comprehensive framework for the regulation of retirement villages in South Australia which puts consumer protection at the forefront, while also minimising any unnecessary impacts on retirement village operators.

Retirement villages are a unique form of housing, where consumers purchase a lease, licence or share to occupy a residence. The retirement village sector is diverse and includes private developers, for-profit organisations, non-government organisations, charitable organisations and government agencies. Currently, there are approximately 520 villages in South Australia which are home to over 26,700 residents, including my own grandmother.

As South Australia's older population grows, the retirement villages sector is continuing to innovate and grow. Older South Australians now entering the retirement village market are a diverse and changing demographic, and the sector is constantly evolving to respond to consumer expectations and requirements. It is vital that legislation governing retirement villages is kept up to date and ensures the best possible consumer protection for residents and prospective residents while also supporting the growth, sustainability, innovation and diversity of the sector.

The current Retirement Villages Act was passed by the South Australian parliament in 2016 and commenced in 2018. It replaced the 1987 act and established a contemporary legislative framework to modernise the regulation of retirement villages across South Australia.

Section 68 of the act provides for a review of the act to be undertaken three years after commencement. The independent review was conducted by PEG Consulting and provided to the former minister for health and wellbeing in September 2021. The independent review found that many of the provisions of the act are appropriate, effective and operating as intended. However, it also identified that there is room for improvement and made some recommendations for legislative change.

The government is committed to implementing the recommendations of the independent review to ensure the effective and optimum operations of the Retirement Villages Act. As recommended by the independent review, the bill amends the act to increase consumer protection, improve village administration, strengthen the standards applying to retirement village operators and village staff, and strengthen the powers and functions of the retirement villages registrar. The amendments include:

greater regulation of residence contracts and disclosure statements, including defining and explaining contractual terms, occupancy information, resident rights and responsibilities, the presence of embedded networks, how fees and charges are calculated and how those fees can vary depending upon the length of time the resident lives in the village by providing worked calculations based on leaving a village at two, five and 10 years;

a new offence of representing that a resident or prospective resident purchases a title to a residence if they do not;

earlier provision of the premises condition report;

additional clarity regarding financial reporting and resident consultation;

strengthened rights and participation for rental tenants;

a framework for managing residence contract deposits;

improved dispute resolution processes;

an obligation for operators to provide safe premises and maintain adequate insurance;

enhanced standards for operators and staff, including mandatory training and disqualifying offences;

additional information-gathering powers for the registrar and expanded capacity to publish relevant information on the register;

additional enforcement actions, including enforceable voluntary undertakings, increased expiable offences and more appropriate timelines for prosecution; and

some administrative and technical amendments to clarify the operation of the act.

The bill also introduces some additional measures that were not considered by the review report to increase consumer protections for existing residents. These additional amendments have been subject to extensive community consultation.

One of these additional measures is the introduction of a 12-month statutory buyback period, plus a 30-business day prescribed period to allow for the commencement of reinstatements and/or renovation when a resident vacates a residence. The 12-month buyback period is based on similar provisions in place or being introduced in other Australian jurisdictions and will provide certainty for residents while remaining feasible and achievable for operators.

Another additional measure is that where a residence contract does not provide a fixed amount or formula the bill restricts recurrent charges to CPI, unless otherwise agreed to by residents or approved by SACAT. Costs outside the operator's control, such as rates, taxes and charges levied under legislation, salaries and wages paid under an award, certain maintenance contracts, utilities and insurance, are excluded from the CPI cap.

The bill also limits the liability of a former resident to pay recurrent-like charges, such as council and water rates, for a maximum period of six months after vacating the residence, and introduces a cap on the repayment of capital fund contributions in order to provide certainty for residents.

With all of these amendments, if a resident has more favourable conditions within their existing contract, the more favourable conditions will continue to apply. The amendments operate to ensure that consumer requirements are fair, consistent and transparent. Both the independent review of the act and the amendment bill were subject to comprehensive community consultation. A consultation draft bill, guide to the bill and information sheets were released for a seven-week consultation period.

During the consultation period, the Office for Ageing Well of the Department for Health and Wellbeing held 13 information sessions across metropolitan and regional South Australia, which were attended by over 420 residents, operators and other interested stakeholders. The consultation resulted in 373 unique submissions. Through this extensive engagement, the government has identified some additional amendments to the act to further enhance consumer protection and clarity. These are:

a regulation-making power to enable standard residence contract terms to be prescribed, which my department will undertake public consultation on to inform the drafting of this regulation;

a requirement that the residence contract must include details about who is responsible for the reinstatement of the residence, including fair wear and tear upon exit and who is responsible for the cost of any renovation work; and

a requirement that an operator must not unreasonably refuse a request for an alteration to the premises if the alteration involves the installation of a functional aid, equipment or infrastructure recommended as necessary for the resident by a registered health practitioner.

Alongside this bill, my department is also working towards implementing policy reforms arising from the review recommendation. This includes procuring an online platform to digitise the retirement village's register so it is a user-friendly and accessible source of information for residents, prospective residents and other stakeholders, and updating the better practice guidelines to provide up-to-date and comprehensive information and guidance to retirement village operators.

The government is committed to ensuring that the Retirement Villages Act provides a contemporary, balanced and comprehensive framework for the regulation of the retirement village sector that puts consumer protection at the forefront while also supporting the growth, sustainability and diversity of the sector. I am confident that this bill achieves that balance.

In closing, I wish to take the opportunity to thank all of the residents, including the South Australian Retirement Villages Residents Association (SARVRA), operators, peak bodies and other interested stakeholders, who provided extensive and valuable feedback during the independent review and also our public consultation. Their engagement was essential for informing these important reforms and ensuring all views and perspectives were actively and comprehensively considered.

I would also like to thank the Office for Ageing Well in undertaking this extensive consultation, developing all the materials involved to explain the draft bill, meeting with stakeholders across the state, and providing advice in relation to all the feedback received. I commend the bill to the house, and I seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

These clauses are formal.

2—Commencement

Part 2—Amendment of Retirement Villages Act 2016

3—Amendment of section 4—Interpretation

This clause inserts and amends definitions for the purposes of the measure. In particular, the clause provides—

(a) that an ingoing contribution is to include any deposit paid; and

(b) a new definition of retirement village dispute, proposed to be a dispute between an operator of a retirement village and a resident of the retirement village about the parties' rights and obligations under the Act or the resident's residence contract (which is to includes, for the avoidance of doubt, a dispute arising in connection with the application of a residence rule); and

(c) that paragraph (b) of the definition of special resolution is to be amended so that the resolution must have been passed by at least 75% of residents who vote at the meeting (either in person or by way of an absentee vote exercised in accordance with this Act).

4—Amendment of section 5—Application of Act

This clause amends section 5 of the Act to expressly provide that an exemption under section 5(2) may be varied or revoked by subsequent notice in the Gazette.

This clause also provides that an offence against section 5(4) of the Act will be expiable, with an expiation fee of $500 to apply.

5—Amendment of section 7—Registrar's functions

This clause amends section 7 of the Act to specify the functions of the Registrar as follows:

(a) to provide guidance and advice to operators of retirement villages in relation to the operation of, and matters arising under, the Act, in particular the obligations of operators under the Act; and

(b) to provide guidance and advice to residents and prospective residents of retirement villages in relation to the operation of the Act, in particular the obligations, rights and liabilities of residents and prospective residents under a residence contract and any code of conduct to be observed by residents; and

(c) to gather and maintain current information about retirement villages and retirement village schemes in South Australia, including but not limited to information about the operations of retirement villages such as information relating to occupation and vacancy rates, ingoing contributions, recurrent charges, exit entitlements, dispute resolution, terminations of residence contracts, enforceable voluntary undertakings and prosecutions for offences against the Act; and

(d) to advise the Minister on the administration and operation of the Act; and

(e) to perform any other function assigned to the Registrar under the Act or by the Minister.

6—Amendment of section 8—Registrar's power to require information

This clause substitutes section 8(1) to clarify the operation of the section in relation to the provision of information to the Registrar as the Registrar may reasonably require for the performance of the Registrar's functions under the Act.

7—Substitution of section 9

This clause substitutes section 9 of the Act to remove the current requirement to maintain the confidentiality of information that could affect the competitive position of the operator of a retirement village or some other person, or is commercially sensitive for some other reason. The proposed new provision retains the provision that information classified by the Registrar as confidential is not liable to disclosure under the Freedom of Information Act 1991.

8—Amendment of section 11—Annual report

This clause changes the date for the annual report of the Registrar to be forwarded to the Minister from 30 September to 31 October.

9—Amendment of section 12—Register

This clause amends section 12 of the Act to clarify that the register may include the address of each site comprising a retirement village and also that the Registrar may include on the register—

(a) enforceable voluntary undertakings accepted by the Minister and notified to the Registrar under section 64A of the Act; and

(b) findings of guilt for offences against the Act.

This clause also provides that the register is to be available for inspection without fee on a website determined by the Minister (in addition to a public office during ordinary office hours).

10—Amendment of section 13—Notification of information required for register

This clause amends section 13 of the Act to clarify that an operator is required to give the Registrar the address of each site comprising the retirement village.

11—Amendment of section 14—Appointment of authorised officers

This clause amends section 14 of the Act to provide that the Registrar is an authorised officer as well as any person appointed by the Minister to be an authorised officer.

12—Amendment of section 15—Identification of authorised officers

This clause amends section 15 of the Act consequential to the amendments made to section 14.

13—Amendment of section 16—General powers of authorised officers

This clause amends section 16 of the Act to provide that an application for a warrant to enter a part of premises used for residential purposes must be made to a magistrate.

14—Substitution of sections 20 and 21

This clause substitutes sections 20 and 21 of the Act with new provisions containing requirements in relation to residence contracts and disclosure statements.

In particular, proposed new section 20 provides that a residence contract will be taken to include any other terms prescribed by the regulations and such terms will prevail over any inconsistent contractual term unless the resident elects to rely on the contractual term (in which case the contractual term will prevail to the extent of any inconsistency).

15—Amendment of section 22—Information to be provided before residence contract entered into

This clause amends section 22 of the Act in relation to matters to be provided to a potential resident before the residence contract is entered into. In particular, the requirement that the potential resident is given the information at least 10 business days before the person enters into the residence contract will not apply if—

(a) the person has received the required documents; and

(b) the person's legal representative has confirmed, by notice in writing, the provision of legal advice to the person in relation to the documents and the proposal to enter into the residence contract; and

(c) the person has given notice in writing that they wish to enter into the contract before the 10 business day period has expired.

16—Substitution of section 23

This clause substitutes section 23 of the Act and in doing so amends the requirements applying under current section 23. It is proposed that a premises condition report is to be provided before a person enters into occupation of a residence in a retirement village and the report is to also include provision as to who has responsibility under the residence contract for the maintenance, repair and replacement of fixtures, fittings and furnishings provided in the residence and, if the operator is responsible for the maintenance, repair and replacement, how the maintenance, repair and replacement will be funded.

A person who enters into occupation of a residence in a retirement village must complete the premises condition report provided to the person by the operator and return the completed report to the operator within 10 business days of entering into occupation of the residence. A person who fails to return the report as required is taken to have agreed to the report as provided to them by the operator.

17—Amendment of section 24—Rights in relation to contract etc

This clause amends section 24 to provide for the refund of an ingoing contribution if a person rescinds a residence contract in accordance with the section.

18—Amendment of section 25—Offences

This clause amends section 25 of the Act to provide that it is an offence to represent to a person that, by entering into a residence contract, the person purchases the residence if the right to occupation of the residence is conferred pursuant to a lease or licence or by ownership of shares. The penalty for the offence is proposed to be $35,000.

19—Insertion of section 25A

This clause inserts proposed new section 25A relating to residence contract holding deposits. The proposed section provides for—

(a) a cap on deposits that an operator may seek or accept, to be set at $5,000 or other amount as may be prescribed by regulation; and

(b) where a deposit is paid, a prohibition on increasing a fee or charge, or entering into a residence contract with another person, during the deposit holding period; and

(c) the refund of a deposit paid if the person who paid the deposit does not proceed to enter into the residence contract.

20—Amendment of section 27—Exit entitlements

This clause amends section 27 in relation to the recovery of an exit entitlement by a resident. It is proposed to substitute section 27(2)(b) with a provision specifying a period 12 months after the end of the relevant period (being a period of 30 business days commencing on the first business day after the resident delivered up vacant possession of the residence) as a time when the resident is entitled to recover the amount of the exit entitlement as a debt owing to the resident. This will apply in circumstances where conditions (if any) specified in the residence contract about the payment of the exit entitlement have not been fulfilled and the operator has not agreed to pay the exit entitlement.

Proposed new section 27(15) sets a period within which an operator is required to make payment of an exit entitlement.

21—Amendment of section 28—Payment of capital fund contributions deducted from exit entitlement

This clause amends section 28 to provide a cap on deductions from an exit entitlement as contributions to 1 or more capital funds. The total amount that is deducted must not exceed the lesser of the following amounts:

(a) an amount that is 1% of the current market value of the residence to which the exit entitlement relates multiplied by the number of years (including any part year) of occupation of the residence under the residence contract;

(b) an amount that is 12.5% of the current market value of the residence to which the exit entitlement relates.

This clause also provides that it will be an offence If an operator deducts an amount from an exit entitlement in contravention of subsection (3). A maximum penalty of $35,000 will apply.

In addition, this clause provides that an offence against section 28(1) of the Act will be expiable with an expiation fee of $315 applying.

22—Amendment of section 29—Arrangements if resident is absent or leaves

This clause amends section 29 of the Act to include a reference to other charges that an operator must assume responsibility for under section 29(2)(b) and which the operator may recover from the resident under section 29(3). Other such charges would include, for example, council rates, water rates and emergency services levy.

In addition, this clause provides that an offence against section 29(8) of the Act will be expiable with an expiation fee of $315 applying.

23—Amendment of section 30—Arrangements if resident leaves to enter residential aged care facility

This clause amends section 30 of the Act to recognise refundable accommodation contributions under the Aged Care Act 1997 of the Commonwealth as relevant to the section.

This clause also amends section 30(5) to increase the maximum penalty and expiation fee for that offence to $10,000 and $500 respectively.

24—Amendment of section 31—Certain taxes, costs and charges must not be charged to residents

This clause amends section 31 of the Act to insert new subsection (5) which provides that a person must not charge an amount as a fee or charge to a resident in relation to the remarketing of a residence under a residence contract unless—

(a) the amount is as specified in, or calculated in accordance with, the residence contract; or

(b) if the residence contract was entered into before the commencement of clause 24 and does not specify the fee or charge or the manner of its calculation—the amount represents the reasonable costs incurred by the operator in relation to the remarketing of the residence (which may include a reasonable portion of the costs of the general marketing strategy of the retirement village).

An offence under the section for a contravention carries a maximum penalty of $10,000 and is expiable with an expiation fee of $500 applying.

25—Insertion of section 31A

This clause inserts proposed new section 31A relating to recurrent charges. It provides that the operator of a retirement village must give a resident at least 10 business days' written notice of any proposed variation to a recurrent charge payable by the resident under the resident's residence contract. A resident will not be required to pay any increase in a recurrent charge unless notice of the increase is given as required. Offences under the section for a contravention carry a maximum penalty of $10,000 and are expiable with an expiation fee of $500 applying.

In addition, proposed new section 31A imposes restrictions on increases to recurrent charges under a residence contract. It is proposed that an operator must not increase recurrent charges payable under a residence contract by an amount that is greater than—

(a) if the residence contract provides for the recurrent charges to be varied by specified amounts—the specified amounts; or

(b) if the residence contract provides for the recurrent charges to be varied according to a fixed formula—the amount calculated under the fixed formula; or

(c) in any other case—an amount that is the CPI percentage increase,

unless—

(d) a majority of the residents whose recurrent charges will be affected by the increase agree to the increase by resolution passed at a meeting of those residents; or

(e) the increase is allowed under subsection (4), which specifies circumstances in which an increase is permitted; or

(f) the South Australian Civil and Administrative Tribunal makes an order that the increase is to take effect.

26—Repeal of section 32

This clause repeals section 32 of the Act.

27—Amendment of section 33—Convening meetings of residents

This clause amends section 33 of the Act to require that a notice for an annual meeting of residents of a retirement village must be accompanied by—

(a) information that enables a comparison to be made between the previous financial year's income and expenditure and the estimates of income and expenditure for the current financial year including—

(i) an audited statement of accounts in respect of the previous financial year showing income and expenditure for that financial year and separately detailing the income and expenditure in respect of any capital fund; and

(ii) estimates of income and expenditure for the current financial year, separately detailing—

(A) estimates of income and expenditure in respect of any capital fund (including a description of each general category of proposed expenditure from the fund and the estimated amount of expenditure for each such category); and

(B) expenditure items covered, or proposed to be covered, by the recurrent charges (including a description of each general category of item and the amount of expenditure for each such category); and

(C) estimates of any management expenditure (including an explanation of each expenditure item and, if the expenditure is apportioned between more than 1 retirement village or other businesses, the manner in which such apportionment is calculated); and

(b) an invitation to residents to submit written questions to the operator at least 5 business days before the date of the meeting and other questions at the meeting; and

(c) any other information required by the regulations.

28—Amendment of section 34—Proceedings at meetings

This clause amends section 34 to clarify that the obligation to ensure that minutes of a meeting are circulated or made accessible is an obligation of the convener of the meeting.

This clause deletes section 34(7) consequential to the insertion of new section 31A in clause 25.

29—Amendment of section 36—Consultation with new operator

This clause amends section 36 of the Act so that, when a change in operator is proposed, the obligation to convene a meeting of residents is to be an obligation of the current operator.

The clause also amends section 36(3) to make the former operator and the person who is the new operator to each be guilty of an offence if a change in an operator of a retirement village is effected by an agreement without compliance with the term referred to in section 36(1). It is also proposed to make an offence against section 36(3) expiable, with and expiation fee of $500 to apply.

30—Amendment of section 39—Mandatory consultation with residents' committee in relation to annual budget

This clause amends section 39 of the Act to provide that the business agenda of a meeting must include a summary of the matters set out in proposed new section 33(6)(a) to be discussed at the meeting and be accompanied by the statements and information on which the summary is based (and for that purpose it doesn't matter whether or not those statements and information are in their final audited form).

This clause also proposes to make an offence against section 39(7) expiable, with an expiation fee of $500 to apply.

31—Substitution of section 41

This clause substitutes section 41 relating to residence rules. Proposed new section 41 provides that if a residence rule, or a provision of a residence rule, is harsh, oppressive, unconscionable or unjust, the rule or provision is void. The South Australian Civil and Administrative Tribunal may, on application by a resident to whom a residence rule applies, make an order that the rule is void and of no effect, or to apply in a modified form, if the Tribunal is satisfied that the residence rule, or a provision of the residence rule, is harsh, oppressive, unconscionable or unjust.

In addition, new section 41(3) provides that the operator of a retirement village may only make an alteration to the residence rules applying in relation to the village in accordance with the requirements prescribed by the regulations.

32—Amendment of section 42—Documents to be supplied to residents

This clause amends section 42 of the Act to require the documents to be provided under the section within 10 business days of the request for the documents. The section is also amended to include details of all current policies of insurance that are in place in relation to the village (such as a copy of the relevant certificates of insurance).

33—Insertion of sections 43A and 43B

This clause inserts new section 43A and 43B as follows:

43A—Duty of operator to ensure common areas reasonably safe

Proposed new section 43A requires that the operator of a retirement village must ensure that the common areas of the village are reasonably safe. In particular the operator must—

(a) ensure that an effective emergency plan is prepared and maintained for the retirement village; and

(b) take reasonable steps to ensure that all residents and staff are familiar with the emergency plan and prescribed safety information; and

(c) undertake a safety inspection of communal areas (if any) within the retirement village at least once each calendar year, and make a safety inspection report on the findings of each inspection available to residents; and

(d) ensure that certain safety information (such as a map indicating the location of assembly areas, exits and fire extinguishers) is clearly displayed in communal areas (if any) within the retirement village and is provided to residents in accordance with any requirements specified in the regulations); and

(e) take such other action as the regulations may require to ensure that the communal areas of the village are reasonably safe.

43B—Prescribed alterations

Proposed new section 43B provides that an operator may only refuse a request to approve an alteration of a prescribed kind to a residence if reasonable grounds exist for the refusal. An alteration to a residence is of a prescribed kind if the alteration—

(a) involves the installation of a functional aid, equipment or infrastructure recommended as necessary for the resident by a registered health practitioner; or

(b) is of a kind prescribed by the regulations.

34—Amendment of section 44—Termination of residents' rights

This clause amends section 44 of the Act to—

(a) specify the fees and charges that a resident who terminates a right of occupation during the settling-in period is liable to pay. These amounts may only include refurbishment fees where refurbishment of the residence is reasonably necessary due to damage to, or degradation of, the residence caused by an act or omission of the resident during resident's period of occupation of the residence;

(b) provide that an application to the South Australian Civil and Administrative Tribunal under section 44(8) to confirm the operator's decision to terminate a resident's right of occupation may only be made by an operator if the operator has given the resident notice of the application in writing at least 5 business days before the making of the application;

(c) increase the penalty applying under section 44(12) to $20 000. Section 44(12) specifies requirements of notice that an operator must give to a resident if the operator decides to terminate the resident's right of occupation.

35—Amendment of section 45—Dispute resolution policy

This clause amends section 45 to provide that, in the event of a dispute between the operator of a retirement village and a resident, the operator must take all reasonable steps to resolve the dispute in accordance with the dispute resolution policy of the retirement village unless—

(a) the resident, at the time of the dispute, agrees to take steps to resolve the dispute otherwise than in accordance with the dispute resolution policy; or

(b) exceptional circumstances exist in relation to which the South Australian Civil and Administrative Tribunal has granted permission to apply to the Tribunal under section 46.

This clause also proposes to make the offence in section 45(4) expiable with an expiation fee of $500.

36—Amendment of section 46—Application to Tribunal

This clause amends section 46 of the Act in relation to the powers of the South Australian Civil and Administrative Tribunal to resolve a retirement village dispute on application by a party to the dispute. The Tribunal may make orders if it finds that a party to the dispute has breached, or failed to comply with, a provision of this Act, a residence contract or a residence rule or that an operator has acted in a harsh or unconscionable manner.

In addition, the amendments to section 46 give the Tribunal the power to make a restraining order to restrain a person from engaging in specified conduct that if engaged in, will result in a breach of this Act, a residence contract or a residence rule. A restraining order may only be made if the Tribunal is satisfied that there is a risk that the person will engage in the specified conduct. The maximum penalty for a breach of a restraining order is proposed to be $50,000 or imprisonment for 2 years

37—Substitution of section 57

This clause substitutes section 57 with new sections 57, 57A, 57B, 57C and 57D.

Sections 57, 57A and 57C relate to the granting of leases over land in retirement villages:

Proposed new section 57 permits an operator, with some restriction, to grant a lease, or grant a licence to occupy, a residence in the village that is not immediately required for the purposes of the scheme to an eligible person for residential purposes. A person to whom a lease or licence is granted under this section does not become a resident of the retirement village but may be elected as a member of a residents' committee and is entitled to participate in a meeting of the residents of the retirement village and to vote on any issue arising for consideration at the meeting (other than an issue that is directly related to the financial management of the village);

Proposed new section 57A provides that the operator of a retirement village may lease, or grant a licence to occupy, land within the village to any person for commercial purposes related to the functioning of the village;

Proposed new section 57B provides that if a lease or licence is granted contrary to section 57 or 57A, the operator is guilty of an offence.

Proposed new section 57C provides obligations applying to the operator of a retirement village in relation to insurance for the retirement village.

Proposed new section 57D provides that the operator of a retirement village must not take any step towards the termination of the retirement village scheme unless the operator has given notice to the Registrar and each resident of the village in accordance with the section. The proposed new section also provides for the operator to pay for the reasonable legal costs incurred in obtaining independent legal advice for residents on the proposed termination of the scheme in certain circumstances.

38—Amendment of section 58—Termination of retirement village scheme on application to Supreme Court

This clause amends section 58 of the Act to make clear that the Supreme Court may make orders under the section in relation to part of a retirement village scheme. In addition, consequential to new section 59A, the operator of a retirement village may not apply to the Supreme Court for the termination of part of a retirement village scheme under section 58 if, within the previous 10 years, the operator has made an application to the Minister under section 59A in the same, or substantially similar, terms and the Minister has declined to make the termination

39—Amendment of section 59—Voluntary termination of retirement village scheme

This clause amends section 59 to provide that part of a retirement village scheme may be terminated in accordance with the section.

40—Insertion of section 59A

This clause inserts section 59A which provides that the Minister may, by Gazette notice, terminate part of a retirement village scheme if satisfied that—

(a) at least 90% of residents at the retirement village wish to terminate that part of the scheme; and

(b) the termination will not affect the right to occupation of a residence of any resident who wishes to remain in occupation of their residence at the retirement village; and

(c) the termination is otherwise appropriate in the circumstances.

Proposed new section 59A also provides requirements for any application under the section in relation to the termination of part of a retirement village scheme.

41—Substitution of section 60

This clause substitutes section 60 to provide that disqualified persons may not undertake or be engaged in the role of operator, village manager, senior manager or a role or function prescribed by the regulations. A disqualified person is a person who has been found guilty of a prescribed offence or in relation to whom prescribed circumstances exist.

A prescribed offence is proposed to be—

(a) an offence against section 11 of the Criminal Law Consolidation Act 1935 (murder); or

(b) an offence against a provision of Part 3 Division 11 of the Criminal Law Consolidation Act 1935 (rape and other sexual offences); or

(c) an offence brought within the ambit of the definition by the regulations.

Prescribed circumstances exist in relation to a person if—

(a) the person is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or

(b) the person has during the preceding 5 years been convicted of an offence against the person or an offence involving fraud or dishonesty; or

(c) the person has served a sentence of imprisonment for an offence against the person or an offence involving fraud or dishonesty, being a sentence that ended during the preceding 5 years; or

(d) any other circumstances prescribed by the regulations for the purposes of the definition exist in relation to the person.

42—Amendment of section 63—Codes of conduct

This clause amends section 63 to extend codes of conduct that may be prescribed under the regulations to village managers and senior managers and persons employed or engaged to work in a retirement village, with a maximum penalty of $2,500 applying to a breach of a code by such a person. The offence will be expiable with an expiation fee of $210 applying.

Proposed new section 63(5) requires an operator to ensure that the operator, a village manager, a senior manager and any other person employed or engaged to work at the retirement village undertakes training of a kind approved by the Minister in respect of a code of conduct applying to the person with a maximum penalty of $10,000 applying. The offence will be expiable and an expiation fee of $500 will apply.

43—Insertion of section 63A

This clause inserts new section 63A which requires an operator of a retirement village to ensure that a village manager, a senior manager and any other person employed or engaged to manage, or work at, the retirement village undertakes training on the operational policies and procedures of the village that are relevant to the person's role and responsibilities within the village. The training must occur before the person commences duties at the retirement village and thereafter, within each 3 year period or sooner if changes to the law or the operational policies and procedures of the village occur.

44—Insertion of section 64A

This clause provides for the insertion of new section 64A dealing with enforceable voluntary undertakings which may be given by a person in connection with a matter relating to a contravention or alleged contravention by the person of the Act. If the Minister accepts an undertaking relating to a contravention, or alleged contravention, of the Act and the person completely discharges the undertaking then no proceedings may be brought under the Act in relation to the contravention or alleged contravention. An undertaking is enforceable in the Magistrates Court on application by the Minister and a maximum penalty of $35,000 is proposed for a contravention of an undertaking. The Minister must notify the Registrar of any undertaking accepted by the Minister along with details of the contravention or alleged contravention to which the undertaking relates.

45—Amendment of section 65—Offences

This clause amends section 65 of the Act to provide for notice to be given to the Registrar on the commencement and conclusion of a prosecution for an offence against the Act.

46—Insertions of sections 65A and 65B

This clause inserts new sections 65A and 65B as follows:

65A—Limitation period for prosecutions

This proposed new section makes provision for the limitation periods applying in relation to the bringing of proceedings for an offence against the Act, being the latest of the following to occur:

(a) the period of 2 years after the offence first comes to the notice of the Minister;

(b) if an undertaking has been accepted in relation to the offence, the period of 6 months after—

(i) the undertaking is contravened; or

(ii) it comes to the notice of the Minister that the undertaking has been contravened; or

(iii) the Minister has agreed to the withdrawal of the undertaking.

65B—Publication in public interest

This proposed new section provides that the Minister may, if of the opinion that it is in the public interest to do so, publish information (in such manner as the Minister thinks fit) relating to any action taken by the Minister in connection with the enforcement of the Act.

47—Amendment of section 68—Review of Act

This clause amends section 68 to provide for a review of the operation of the Act 5 years after the commencement of the amending Act.

48—Amendment of section 69—Regulations

This clause amends section 69 to specify that the regulations may—

(a) make provision in relation to requirements that will apply to the making of alterations to residence rules; and

(b) make provision in relation to property (including for the disposal of property) left at a residence by a resident who has ceased to reside in the retirement village; and

(c) make different provision according to the classes of persons, or the matters or circumstances, to which they are expressed to apply; and

(d) may leave any matter to be determined according to the opinion or discretion of the Registrar.

Schedule 1—Transitional provisions

1—Interpretation

This clause provides definitions for the purposes of the Schedule:

capital fund has the same meaning as in the principal Act;

disclosure statement has the same meaning as in the principal Act;

exit entitlement has the same meaning as in the principal Act;

principal Act means the Retirement Villages Act 2016;

residence contract means a residence contract under the principal Act.

2—Residence contracts

(1) Section 20(3) of the principal Act, as inserted by the measure, will apply in relation to a residence contract irrespective of whether the contract was entered into before or after the commencement of clause 14 of the measure.

(2) Subject to subclause (1), section 20 of the principal Act, as inserted by the measure, will apply in relation to a residence contract irrespective of whether the contract was entered into before or after the commencement of clause 14 of the measure except where, before that commencement, the information required to be given to a person under section 22 of the principal Act had been given to the person, in which case section 20 of the principal Act as in force before that commencement continues to apply.

3—Disclosure statements

Section 21 of the principal Act, as inserted by the measure, will apply only in relation to a disclosure statement given to a person under section 22 of the principal Act after the commencement of clause 14 of the measure.

4—Residence contract holding deposits

Section 25A of the principal Act, as inserted by the measure, will apply only in relation to a deposit paid after the commencement of clause 19 of the measure.

5—Exit entitlements

The amendments made by the measure to section 27 of the principal Act apply in relation to a residence contract irrespective of whether the contract was entered into before or after the commencement of clause 20 of the measure except where, before that commencement, the resident had—

(a) ceased to reside in the retirement village; or

(b) given notice to the operator in accordance with section 27(2)(b)(ii) of the principal Act,

in which case section 27 of the principal Act as in force before that commencement continues to apply.

6—Capital fund contributions

Section 28(3) and (4) of the principal Act, as inserted by the measure, will apply only in relation to a residence contract entered into after the commencement of clause 21(2) of the measure.

7—Recurrent charges

Section 31A of the principal Act, as inserted by the measure, will apply in relation to recurrent charges under a residence contract irrespective of whether the contract was entered into before or after the commencement of clause 25 of the measure.

8—Application to Tribunal for resolution of retirement village dispute

The amendments made by the measure to section 46 of the principal Act will apply in relation to a dispute relating to a residence contract irrespective of whether the contract was entered into before or after the commencement of clause 36 of the measure.

9—Limitation period for prosecutions

Section 65A of the principal Act, as inserted by the measure, will apply only in relation to proceedings for an offence where the conduct constituting the offence was engaged in after the commencement of clause 46 of the measure.

Debate adjourned on motion of Mr Pederick.

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