Part 5Miscellaneous

Part 5—Miscellaneous 56—Endorsement of certificates of title (1) If land is, or is to be, used as a retirement village, a note of that fact must be endorsed on the relevant certificates of title before a residence contract in respect of that retirement village is entered into. (2) The owner of land that is to be used as a retirement village must apply to the Registrar‑General for endorsement of the relevant certificates of title before any residence contract relating to the retirement village is entered into. (3) An operator must not enter into a residence contract in respect of a retirement village (or a proposed retirement village) on any land unless satisfied that the endorsements on the relevant certificates of title have been made in accordance with this section. (4) Before an application is made under subsection (2), the owner must notify each person who holds a mortgage, charge or encumbrance over the land and, if the application relates to a retirement village that had not been established before the commencement of this Act, the application can only be made with the consent of each such person. (5) The Registrar-General may cancel an endorsement made under this section if satisfied that the land is no longer used, or to be used, as a retirement village. 57—Lease of land in retirement village for residential purposes (1) The operator of a retirement village may 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. (2) However, the operator must not, under subsection (1), lease, or grant a licence to occupy, a residence in the village that has formerly been occupied pursuant to the scheme unless either the former resident consents (in accordance with any requirements prescribed by the regulations) to the lease or licence or the exit entitlement owing to the former resident in relation to the cessation of such occupation has been paid in full and all amounts deducted from the exit entitlement have been paid to the relevant fund, account or person. (3) Subject to this section, a person to whom a lease or licence is granted under this section does not become a resident of the retirement village (and Part 3 does not apply in relation to the person). Such a lease would be subject to the Residential Tenancies Act 1995. (4) However, a person to whom a lease or licence is granted under this section— (a) may be elected as a member of a residents' committee under section 38 (and that section applies as if the person were a resident); and (b) 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), as if the person were a resident of the retirement village. 57A—Lease of land in retirement village for commercial purposes (1) 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. (2) However, the operator must not, under subsection (1), lease, or grant a licence to occupy, land within the village that has formerly been occupied pursuant to the scheme unless either the former resident consents (in accordance with any requirements prescribed by the regulations) to the lease or licence or the exit entitlement owing to the former resident in relation to the cessation of such occupation has been paid in full and all amounts deducted from the exit entitlement have been paid to the relevant fund, account or person. (3) Unless the Minister authorises a lease or licence for a longer term, the term of any such lease or licence must not exceed 5 years. 57B—Offences relating to leases etc If a lease or licence is granted contrary to section 57 or 57A, the operator is guilty of an offence. 57C—Duty to insure (1) An operator of a retirement village must— (a) maintain insurance such that all buildings and building improvements forming part of the village of which the operator is an owner are insured to their replacement value; and (b) take all reasonable steps to ensure that all buildings and building improvements forming part of the village of which the operator is not an owner are insured to their replacement value. (2) An operator of a retirement village must be insured against— (a) liability in tort (which, if an amount is prescribed by the regulations for the purposes of this paragraph, must be for at least that amount); and (b) any other liability— (i) determined at a meeting of residents by special resolution (where insurance against such liability is reasonable in the circumstances and reasonably able to be obtained from an insurer); or (ii) prescribed by the regulations. (3) For the purposes of this section the replacement value of buildings and building improvements is the cost of their complete replacement including the cost of any necessary preliminary demolition work, any necessary surveying, architectural or engineering work and any other associated or incidental costs. (4) The insurance under subsection (1) must be against— (a) risks of damage caused by events (other than subsidence) declared to be prescribed events in relation to home building insurance under Part 5 of the Insurance Contracts Act 1984 of the Commonwealth; and (b) risks against which insurance is required by the regulations. (5) Any money which an operator receives under a contract of insurance in relation to damage to buildings or building improvements must, subject to the termination of the retirement village scheme or any contrary order of the Tribunal or a Court, be applied by the operator in reinstating or repairing those buildings or building improvements. 57D—Notice of proposal to terminate retirement village scheme (1) The operator of a retirement village must not take any step under this Part towards the termination of the retirement village scheme or part of the retirement village scheme unless the operator— (a) has given notice of the proposed termination in writing to the Registrar; and (b) after giving the notice referred to in paragraph (a), has given each resident of the village, by notice in writing— (i) notice of the proposed termination and the grounds for the termination; and (ii) a recommendation, and a reasonable period within which, to seek independent legal advice. (2) An operator must pay for the reasonable legal costs incurred in obtaining independent legal advice on the proposed termination of the scheme or part of the scheme if— (a) the legal advice is provided by a legal practitioner approved by a majority of residents of the village at a meeting of those residents; and (b) a copy of the legal advice has been provided to all residents of the village. (3) The obligation under subsection (2) to pay legal costs applies only once in relation to each proposal to terminate a scheme or part of a scheme. (4) If the operator fails to comply with subsection (2), the operator is guilty of an offence. 58—Termination of retirement village scheme on application to Supreme Court (1) Subject to this Act, a retirement village scheme or part of a retirement village scheme cannot be terminated without the approval of the Supreme Court while a person who has entered into occupation of a residence under the scheme or the relevant part of the scheme remains in occupation of that residence. (2) The Minister will be a party to any proceedings in which the Supreme Court's approval of the termination of a retirement village scheme or part of a retirement village scheme is sought. (2a) In addition, the following persons are entitled to appear in proceedings before the Supreme Court under this section: (a) a resident of the retirement village the subject of the application; (b) any other any person who, in the opinion of the Court, has a sufficient interest in the proceedings. (2b) Subject to subsection (2c), a person who proposes to apply for the termination of a retirement village scheme or part of a retirement village scheme under this section must, before making the application— (a) give notice in writing of the proposed application and termination to each resident along with any prescribed information relating to the proposed termination; and (b) allow a period of 60 days after giving the notice for residents to make representations to the person in response to the notice; and (c) keep a record of representations made by residents in response to the notice. (2c) The Supreme Court may, on application, dispense with the requirement to comply with subsection (2b) if satisfied that it is appropriate in the circumstances of a particular case. (2d) Notice of an application to the Supreme Court under subsection (2c) must be given to each resident. (2e) An application for the termination of a retirement village scheme or part of a retirement village scheme under this section must include information about the results of consultation undertaken in accordance with subsection (2b) (if any). (2f) In determining whether to approve the termination of a retirement village scheme or part of a retirement village scheme under this section, the Supreme Court must have regard to the following matters (insofar as the matters are relevant to the proposed termination): (a) the views of residents of the retirement village (including the results of any consultation undertaken in accordance with subsection (2b)) and the operator in relation to the proposed termination; (b) whether the proposed termination would be likely to benefit residents of the retirement village or may result in detriment to residents; (c) whether the proposed termination would be likely to affect the capital value of residences in the retirement village; (d) whether the proposed termination would be likely to involve a breach of any residence contracts; (e) the conduct of the operator and residents of the retirement village, and the Court may have regard to any other matter the Court considers to be relevant in the circumstances of the particular case. (3) If the Supreme Court approves the termination of a retirement village scheme or part of a retirement village scheme it may make such orders as it thinks necessary to protect the interests of existing residents. (4) Without limiting subsection (3), if the Court makes an order under this section that will terminate residence contracts, the Court— (a) must fix in the order a date by which the residents who are affected by the order must vacate their residential premises in the village; and (b) may order an operator or former operator (other than an administrator appointed under Part 4) to pay compensation to each resident affected by the order for the resident's loss of rights under a residence contract; and (c) may make such other orders as it thinks fit. (5) A reference in this section to a resident includes a person who is not in occupation of a residence but is, under a residence contract, entitled to payment of an exit entitlement and has not received payment of the exit entitlement. 59—Voluntary termination of retirement village scheme (1) The Minister may, by notice in the Gazette, terminate a retirement village scheme or part of a retirement village scheme if satisfied (in such manner as the Minister thinks fit) that all residents of the retirement village (if any) wish to terminate the scheme or the relevant part of the scheme (as the case requires). (3) The Minister may make such orders as the Minister thinks necessary or appropriate on account of the termination of a retirement village scheme or part of a retirement village scheme under this section. (4) The termination of a retirement village scheme or part of a retirement village scheme will take effect from the day specified for the purpose in the notice. (5) The Registrar-General must, at the request of the Minister, take any action for or in connection with the issue, alteration, correction or cancellation of certificates of title necessary to give effect to the provisions of this section. (6) If the Minister requests the Registrar-General to give effect to a particular determination or action, the Minister will, if so required by the Registrar‑General, furnish the Registrar‑General with a certificate certifying the determination or action. 59A—Termination of part of retirement village scheme on application to Minister (1) On application by the operator of a retirement village the Minister may, by notice in the Gazette, terminate part of the 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. (2) The Minister may, in a notice under subsection (1) terminating part of a retirement village scheme, make such orders as the Minister considers necessary or appropriate on account of the termination and such orders will have effect according to their terms. (3) An operator may not make an application under subsection (1) in relation to the proposed termination of part of a retirement village scheme unless— (a) the operator has given to each resident of the village notice in writing of the proposed application along with any prescribed information relating to the proposed termination; and (b) a period of at least 60 days has expired since the notice and information required under paragraph (a) was given to residents; and (c) taking into account any representations made by or on behalf of residents in response to the notice and information, the operator is satisfied that— (i) the proposed 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 (ii) at least 90% of residents at the retirement village wish to terminate that part of the scheme. An operator must have complied with section 57D before giving notice and information to residents under subsection (3)(a). (4) An application under subsection (1) must— (a) be made in the manner and form determined by the Minister; and (b) be accompanied by the prescribed fee; and (c) be accompanied by evidence, in a form approved by the Minister, of the agreement of all residents who agree with the proposed termination; and (d) comply with the requirements (if any) prescribed by the regulations. (5) As soon as reasonably practicable after making an application under subsection (1), the operator must give a copy of the application to each resident of the retirement village along with information in a form approved by the Minister setting out how, and the time within which, the resident may make a submission to the Minister in relation to the proposed termination. (6) The Minister may, by notice in writing, require an operator to provide the Minister, within the time and in the manner specified in the notice, with such additional information as the Minister may reasonably require for the purposes of determining an application made by the operator under this section. (7) The termination of part of a retirement village scheme will take effect from the day specified for the purpose in the notice. (8) The Registrar-General must, at the request of the Minister, take any action for or in connection with the issue, alteration, correction or cancellation of certificates of title necessary to give effect to the provisions of this section. (9) If the Minister requests the Registrar-General to give effect to a particular determination or action, the Minister will, if so required by the Registrar‑General, furnish the Registrar‑General with a certificate certifying the determination or action. 60—Disqualified persons not to be involved in certain roles or functions at retirement village (1) A disqualified person must not undertake any of the following roles or functions as part of the operations of a retirement village: (a) operator; (b) village manager; (c) senior manager; (d) a role or function prescribed by the regulations. Maximum penalty: $35 000 or imprisonment for 1 year. (2) The operator of a retirement village must not engage a person— (a) as village manager; or (b) as a senior manager; or (c) in a prescribed role or function, unless, in accordance with the requirements prescribed by the regulations (if any), the operator is satisfied that the person is not a disqualified person. (3) The operator of a retirement village must not continue to engage a person— (a) as village manager; or (b) as a senior manager; or (c) in a prescribed role or function, unless, within the preceding 3 years, the operator has, in accordance with the requirements prescribed by the regulations (if any), been satisfied that the person is not a disqualified person. (4) The regulations may prescribe circumstances in which an operator is not required to comply with the requirements of subsection (2) or (3). (5) A person who becomes a disqualified person while engaged at a retirement village as a village manager, senior manager or in a role or function referred to in subsection (1)(d) must, as soon as practicable after becoming a disqualified person, notify the operator of the retirement village that they are a disqualified person. disqualified person means a person— (a) who has been found guilty of a prescribed offence; or (b) in relation to whom prescribed circumstances exist; prescribed circumstances—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 this definition exist in relation to the person; prescribed offence means— (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 this definition by the regulations. 61—Non-compliance may be excused by the Tribunal (1) The Tribunal may, on the application of any person, excuse that person from the consequences of inadvertent non‑compliance with a provision of this Act. (2) If the Tribunal acts under subsection (1), it may— (a) make consequential orders protecting the interests of a person affected by the contravention; and (b) make any other order that the justice of the case may require. (3) An application may not be made under this section after proceedings for an offence relating to the non‑compliance have been commenced. 62—Contract to avoid Act An agreement or arrangement that is inconsistent with a provision of this Act or purports to exclude, modify or restrict the operation of this Act, or a right conferred by or under this Act is to that extent void and of no effect (except where such inconsistency, exclusion, modification or restriction is expressly permitted by this Act). 63—Codes of conduct (1) The regulations may prescribe codes of conduct to be observed by— (a) operators of retirement villages; (b) village managers and senior managers; (c) persons employed or engaged to work at a retirement village; (d) residents of retirement villages. (2) It is a term of a residence contract that the operator and residents will observe any code of conduct applying to them (subject to any agreement between the operator and the resident that, pursuant to a power contained in the code of conduct, provides for the exclusion or modification of a provision of the code of conduct in the circumstances of the particular case). (3) If an operator breaches a code of conduct, the operator is, in addition to any civil remedy that may be available against the operator, liable to a fine not exceeding $2 500 or an expiation fee of $210 as if the operator had breached the regulations. 63A—Duty of operator to provide staff training (1) The operator of a retirement village must 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— (a) before the person commences duties at the retirement village (or, if the person commenced their duties before the commencement of this section, within the period of 12 months after the commencement of this section); and (b) thereafter, within each 3 year period or sooner if there are changes to any of the following that are relevant to the person's role and responsibilities within the village: (i) the operational policies and procedures of the village; (ii) this Act or any other Act or law. Such training could, for example, include a formal induction, on the job learning, viewing videos and reading information, supervision and self-reflection. (2) Subsection (1) does not apply in relation to— (a) a person who provides a service or undertakes work at a retirement village under a contract for service where the service or work (as the case requires) does not form part of the ordinary operations of the village or require direct contact with residents of the village; or (b) a volunteer; or (c) any other person of a prescribed class. 64—Representations relating to retirement villages (1) A person must not represent that a complex of residences is a retirement village if the person knows, or could reasonably be expected to know, that the complex is not a retirement village within the meaning of this Act. (2) A person must not represent that a residence is part of a retirement village if the person knows, or could reasonably be expected to know, that the residence is not part of a retirement village within the meaning of this Act. (3) A person must not represent that a complex of residences proposed to be established will constitute a retirement village if the person knows, or could reasonably be expected to know, that the complex will not constitute a retirement village within the meaning of this Act. (4) A person must not represent that a residence proposed to be built will be part of a retirement village if the person knows, or could reasonably be expected to know, that the residence will not be part of a retirement village within the meaning of this Act. 64A—Enforceable voluntary undertakings (1) The Minister may accept (by written notice) a written undertaking (an enforceable voluntary undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. (2) The giving of an undertaking under this section does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates. (3) A person must not contravene an undertaking made by the person that is in effect. (4) If the Minister considers that a person has contravened an undertaking accepted by the Minister, the Minister may apply to the Magistrates Court for enforcement of the undertaking. (5) If the court is satisfied that the person who made the undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make any of the following orders: (a) an order that the person must comply with the undertaking or take specified action to comply with the undertaking; (b) an order discharging the undertaking; (c) an order directing the person to pay to the State— (i) the costs of the proceedings; and (ii) the reasonable costs of the designated entity in monitoring compliance with the undertaking in the future; (d) any other order that the court considers appropriate in the circumstances. (6) A person must not fail to comply with an order of the court under subsection (5). Maximum penalty: $50 000. (7) A person who has made an undertaking may, at any time, with the written agreement of the Minister— (a) vary the undertaking; or (b) withdraw the undertaking. (8) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act. (9) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if an undertaking is in effect in relation to that contravention. (10) The Minister may commence proceedings for a contravention or alleged contravention of this Act despite an undertaking being in effect in relation to that contravention if the Minister, after accepting the undertaking, is in receipt of additional information relating to the contravention which the Minister considers significantly increases the seriousness or extent of the contravention. (11) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made an undertaking in relation to the contravention and has completely discharged the undertaking. (12) The Minister may accept an undertaking in relation to a contravention or alleged contravention before proceedings that have been commenced in relation to the contravention have been finalised. (13) If the Minister accepts an undertaking before the proceedings are finalised, the Minister must take all reasonable steps to have the proceedings discontinued as soon as possible. (14) If the Minister accepts an undertaking given by a person under this section, the Minister must notify the Registrar of the acceptance of the undertaking and forward to the Registrar— (a) a copy of the undertaking; and (b) details of the contravention or alleged contravention to which the undertaking relates. 65—Offences (1) A prosecution for an offence against this Act can only be commenced by the Minister or a person authorised by the Minister. (2) In proceedings for an offence against this Act, a document apparently signed by the Minister that appears to be an authorisation for the purposes of subsection (1) will be accepted, in the absence of proof to the contrary, as proof of such an authorisation. (3) If the Minister or a person authorised by the Minister commences a prosecution for an offence against this Act, the Minister or the authorised person (as the case requires) must— (a) notify the Registrar of the prosecution and forward to the Registrar a copy of the information and the allegations; and (b) at the conclusion of the prosecution, notify the Registrar of the outcome. 65A—Limitation period for prosecutions Subject to this Act, proceedings for an offence against this Act (including an expiable offence) may be brought within the latest of the following periods 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 under section 64A, 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 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 this Act. 66—Delegation (1) The Minister may delegate a power or function vested in or conferred on the Minister by or under this Act— (a) to a particular person or body; or (b) to the person for the time being holding or acting in a particular office or position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act in a matter; and (c) is revocable at will by the delegator. 67—Service A notice or document required to be given to a person under this Act may— (a) be served on the person personally; or (b) be posted in an envelope addressed to the person's last known address; or (c) be transmitted by fax or email to the person's fax number or email address (in which case the notice or document will be taken to have been given or served at the time of transmission). 68—Review of Act (1) The Minister must, 5 years after the commencement of the Retirement Villages (Miscellaneous) Amendment Act 2024, undertake a review of the operation of this Act. (2) The Minister must cause a report on the outcome of the review to be tabled in both Houses of Parliament within 12 sitting days after its completion. 69—Regulations (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) prescribe fees (including differential fees) for the purposes of this Act and provide for the payment of fees at intervals and in such manner as may be prescribed; (b) prescribe amounts payable for late payment of fees so prescribed; (c) prescribe forms and the information to be contained in forms; (d) provide that a residence contract or other document required under this Act must be printed or typewritten (apart from insertions or amendments) in type of a prescribed kind and size; (e) make provision in relation to the form or content of any document referred to in this Act; (f) make provision in relation to the keeping of records for the purposes of this Act; (fa) make provision in relation to requirements that will apply to the making of alterations to residence rules; (fb) 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; (g) require the preparation, and the provision to residents (or prospective residents), of policies relating to matters prescribed by the regulations; (h) require the provision to residents (or prospective residents) of such other information or documents as may be prescribed by the regulations; (i) prescribe penalties (not exceeding $2 500) for breach of a regulation. (3) The regulations— (a) may be of general or limited application; and (ab) make different provision according to the classes of persons, or the matters or circumstances, to which they are expressed to apply; and (b) may leave any matter to be determined according to the opinion or discretion of the Registrar, Registrar‑General or the Minister; and (c) may incorporate, adopt or apply, with or without modifications, a document formulated or published by any body or authority (as in force at a particular time or from time to time).