Retirement Villages (Infringements) Regulations 2018

The central concept is the infringement offence - an offence under the Act that can be dealt with by way of an infringement notice rather than by prosecution. This is distinct from a standard criminal offence: paying the prescribed penalty within the specified period discharges any liability for that offence and avoids a criminal conviction, but the recipient is not required to admit guilt. The Regulations do not alter the elements of the underlying offences; they merely add an extra procedural option for enforcement. The second key concept is the penalty unit, defined by reference to section 110 of the Sentencing Act 1991. The Regulations set fines as a number of penalty units, and the dollar amount is derived from the annual penalty unit value fixed under the Monetary Units Act 2004. Because that value can change each financial year (the 2018-19 value was $161.19; it has since increased), the real burden of the fines escalates automatically. This creates a predictable but inflationary cost for operators, and the Regulations themselves provide no cap or mechanism for hardship relief. A third concept is the distinction between natural person and body corporate penalties. Most items in Schedule 1 specify a lower penalty for a natural person (typically 6, 7.5 or 12 penalty units) and a higher penalty for a body corporate (often double or more). For example, item 1 (section 8(1) offence) imposes 12 penalty units on a natural person but 50 penalty units on a body corporate. This differential reflects the policy assumption that companies have deeper pockets and greater capacity to comply, though it also means a small family-owned retirement village incorporated as a company faces significantly higher fines than an individual operator. Items 5, 20, 21, and 39 to 41 do not differentiate by entity type, applying a single penalty unit amount to whichever entity commits the offence. The Regulations also implicitly incorporate the concept of the infringement notice scheme from the broader Victorian infringement framework, though they do not repeat the procedural rules for issuing notices, late payment, enforcement, or election for court hearing - those are governed by the Infringements Act 2006 and the Criminal Procedure Act 2009.

The Regulations directly affect operators of retirement villages in Victoria, as they are the persons most likely to commit the offences listed in Schedule 1. An operator may be a natural person (e.g. an individual proprietor) or a body corporate (e.g. a company or incorporated association). The differential penalty structure means that incorporated operators face fines roughly 2 to 4 times higher than individual operators for the same offence. This disparity creates a compliance cost asymmetry: a corporate operator that fails to maintain proper records or provide required information (e.g. under section 19) could be fined up to 50 penalty units (about $8,059.50 at 2018-19 values, more in later years) while an individual operator would be fined only 12 penalty units (about $1,934.28). The Regulations also affect residents of retirement villages indirectly, to the extent that the underlying offences are designed to protect them - for instance, offences relating to provision of information, maintenance of accounts, or operation of residents committees. An infringement scheme may weaken resident protection if it substitutes a fixed fine for a court-ordered remedy that could include compensation or specific performance. Enforcement is typically carried out by Consumer Affairs Victoria (CAV), which administers the Act. The Regulations empower CAV inspectors and other authorised officers to issue infringement notices, reducing their reliance on prosecutions. The Regulations also affect legal practitioners and compliance advisors, who must advise clients on the financial consequences of infringement notices and the strategic decision of whether to pay or contest. Finally, the Victorian government is affected as the Regulations provide a revenue stream from fines, though this is incidental to the enforcement purpose. The sunset provision means the government must actively decide to re-make the Regulations before 2028, otherwise the infringement scheme lapses and all 41 offences revert to court-only enforcement.

The Regulations themselves impose no duties and confer no rights beyond the procedural rights associated with the infringement notice scheme. All substantive duties reside in the underlying sections of the Retirement Villages Act 1986. However, because the Regulations specify which duties are enforceable by infringement notice, they effectively designate a set of obligations that are considered sufficiently clear-cut to warrant an on-the-spot fine. The duties that can now be enforced by infringement notice include, based on the Act sections referenced in Schedule 1: registration requirements (section 8(1)), provision of disclosure statements (section 9(1) and (4)), reporting and record-keeping obligations (sections 16(7), 17(1) and (2), 18A(2) and (4), 18B(2)), provision of information to residents (sections 19(1), (2), (4), 20(3), 21(1), 21A), maintenance of accounts (section 25(8)), compliance with residents committee provisions (section 30(1)), management of maintenance funds (sections 32B(4) and (5), 32E(1) and (3)), access and inspection rights (section 33), compliance with orders of the Director (sections 34(1) and (3)), and duties relating to the retirement villages register (sections 38A, 38E, 38F, 38G, 38H, 38I, 38L). For each of these duties, the operator now has the procedural right under the general infringement laws to either pay the penalty and escape prosecution, or elect to have the matter heard in court. This election right is fundamental: an operator who believes they have not committed the offence can contest the notice without first paying the fine. The Regulations do not specify the period within which the penalty must be paid or the election made - that is left to the Infringements Act 2006. Importantly, paying the infringement penalty does not extinguish any civil liability the operator may owe to a resident. A resident could still sue for damages or seek an injunction even after the operator pays the fine. The Regulations also do not affect the Director of Consumer Affairs Victoria’s power to issue compliance orders or seek court orders beyond the infringement scheme.

The penalties in Schedule 1 range from 2.5 penalty units (items 39, 40, 41 - for offences under sections 38L(1), (3), (4)) to 50 penalty units for a body corporate (items 1, 2, 10, 11, 12). Using the 2018-19 value of $161.19 per unit, the range is approximately $403 for the lowest to $8,059.50 for the highest body corporate penalty. By the 2023-24 financial year, when the penalty unit value had risen to about $192, the equivalent maximum would be about $9,600. These are fixed penalties: there is no judicial discretion to reduce them based on means or circumstances unless the recipient contests the notice and the matter goes to court. The enforcement pathway works in stages: (1) an authorised officer forms the belief that an offence has occurred and issues an infringement notice specifying the penalty; (2) the recipient must either pay the penalty within the prescribed period (usually 28 days) or elect to have the matter heard in court; (3) if the penalty is paid, no conviction is recorded and the matter ends; (4) if the penalty is not paid and no election is made, the matter proceeds to enforcement under the Infringements Act 2006, potentially resulting in additional costs, a penalty enforcement order, suspension of driver licence or vehicle registration, and ultimately a referral to the Magistrates’ Court for enforcement. Importantly, the Regulations do not create any demerit points, licence conditions, or other non-monetary sanctions. Enforcement is purely financial. However, the underlying Act may allow the Director to take other regulatory action (such as issuing a compliance notice) concurrently with an infringement notice, meaning double jeopardy does not apply in an administrative sense - only in a criminal prosecution sense. The highest penalties are reserved for core obligations: failing to register (section 8(1)), failing to provide disclosure statements (section 9(1)), failing to provide financial information (section 19(1), (2), (4)), and failing to comply with a Director’s order (sections 34(1) and (3)). These all attract 12 penalty units for a natural person and 50 for a body corporate. Mid-range penalties (12/30 penalty units) apply to sections 18A(2) and 18B(2), likely dealing with resident contracts. Many lesser administrative offences, such as failing to give notice of changes to the register (section 38L), attract only 2.5 penalty units.

The Regulations are made under section 43 of the Retirement Villages Act 1986 and are entirely dependent on that Act for their legal force. If the Act is amended to repeal or alter any offence listed in Schedule 1, the corresponding infringement penalty in the Regulations will become inoperative or misaligned unless the Schedule is updated. The Regulations explicitly incorporate the penalty unit concept from the Sentencing Act 1991 (section 110) and the Monetary Units Act 2004 (section 7). The dollar value of a penalty unit floats annually, so the real fine amounts in these Regulations increase automatically without any amendment process. This means an operator who commits an offence in 2028 will face a higher dollar fine than one who committed the same offence in 2018, even though the penalty unit number remains unchanged. The Regulations do not contain a transitional provision for the revoked 2017 Regulations; any infringement notices issued under the 2017 Regulations before 1 November 2018 continue to have effect under the general transitional provisions of the Interpretation of Legislation Act 1984 (section 14). The Regulations also interact with the Subordinate Legislation Act 1994, which imposes a 10-year sunset on most statutory rules. The endnotes state that these Regulations will sunset on 30 October 2028. If re-made, the government may update penalty amounts and offence references to reflect any amendments to the Act. The Regulations do not explicitly reference the Infringements Act 2006, but that Act governs the procedural aspects of infringement notices in Victoria, including time limits, payment options, enforcement, and review rights. An operator who receives a notice under these Regulations can rely on the protections in the Infringements Act, such as the ability to apply for a payment plan or to request an internal review on grounds of exceptional circumstances. There is also a potential interaction with the Retirement Villages (General) Regulations 2021 (or any other regulations made under the Act) that prescribe detailed compliance obligations; the infringement scheme supplements those regulations by providing a quick enforcement mechanism. Finally, the Regulations do not displace the Director’s power to issue compliance orders under Part 4 of the Act or to prosecute serious or repeated breaches in court. In practice, the infringement notice may be used for first-time or low-level breaches, while court prosecution may be reserved for serious or wilful contraventions.

Version 001 (this version) of the Retirement Villages (Infringements) Regulations 2018 has no amendments. The Table of Amendments in the endnotes confirms that no statutory rules, subordinate instruments, or Acts have amended these Regulations since their making on 30 October 2018. This is a clean instrument in its original form. However, the Regulations revoked and replaced the Retirement Villages (Infringements) Regulations 2017 (S.R. No. 116/2017). The 2017 Regulations were only in effect for about 15 months before being superseded. The 2018 iteration appears to be a routine remaking to keep the instrument current, possibly adjusting penalty amounts or offence references to match amendments in the parent Act. A comparison of the Schedule between the two versions is not possible from this source alone, but the pattern suggests annual or biennial remakes are typical for infringement regulations to align with penalty unit value changes and Act amendments. The absence of amendments since 2018 could indicate either that the Act has not changed in relevant respects or that the government has chosen not to update the Schedule. The sunset at 2028 gives a natural deadline for a comprehensive review. Practitioners should be aware that the penalty unit dollar value has changed every year since 2018 (increases have ranged from about 1.5% to 3.5% per annum), so the real fine amounts in this 2018 version are now higher than the nominal penalty unit numbers suggest. For example, the 50 penalty unit fine for a body corporate under item 1, which was $8,059.50 in 2018-19, would be roughly $9,600 by 2023-24. The endnotes contain the penalty unit value only for the 2018-19 year; future values must be looked up separately.

The source does not reference any litigation that has involved or challenged these Regulations. This is unsurprising for a subordinate instrument that merely prescribes penalty amounts and identifies infringement offences. Litigation in this area typically concerns the underlying Act provisions rather than the infringement schedule. For example, a resident or operator might challenge the validity of an infringement notice on the grounds that the offence was not in fact committed, or that the notice did not comply with the Infringements Act 2006 procedural requirements. However, such challenges would be heard in the Magistrates’ Court and may not produce reported decisions. There is also the possibility of a judicial review application challenging the Regulations themselves on grounds such as ultra vires (e.g., if a prescribed offence is not one that section 43 of the Act authorises) or unreasonableness. No such challenge has resulted in an amendment to these Regulations as at the date of this version. The case law that exists on the Retirement Villages Act is largely about disputes over ingoing contributions, recurrent charges, termination rights, and compliance orders - matters distinct from the infringement scheme. The absence of litigation may reflect the low value of individual infringement penalties (most are under $2,000) relative to the cost of challenging them, which discourages legal contest. However, a body corporate facing a 50 penalty unit fine (approaching $10,000) may find it cost-effective to seek review or contest the notice if the alleged breach is disputed. Practitioners should be aware that while the Regulations themselves have not been tested in court, the underlying offences have been interpreted in various civil proceedings under the Act. Those interpretations would govern the elements that an infringement recipient would need to rebut.

Several features of these Regulations can trap operators who are not carefully tracking them. First, the automatic indexation of penalty units is the most significant. The dollar figures in Schedule 1 are not fixed amounts; they float annually with the penalty unit value set by the Treasurer. An operator who looks up the 2018 Regulations in 2024 and multiplies by the 2018 value will understate the actual fine by 15-20%. The endnotes only provide the 2018-19 value; no updating mechanism is included in the Regulations themselves, so users must independently verify the current unit value from the Government Gazette. Second, some offences apply only to natural persons (items 5, 20, 21, 39, 40, 41), which means a body corporate cannot receive an infringement notice for those sections. This asymmetry could catch an operator who incorrectly assumes all penalties are available against both types of entity. Conversely, a body corporate that commits an offence that only has a natural person penalty specified may be unable to be issued an infringement notice at all, forcing prosecution instead. Third, the sunset clause means the Regulations will expire on 30 October 2028 unless re-made. After that date, no new infringement notices can be issued for these offences under this instrument. Operators and enforcement agencies should plan for this expiry, as it will affect enforcement strategies. Fourth, the Regulations do not provide for any discount for early payment or any hardship variation - the penalty is fixed unless the recipient elects court. The Infringements Act may allow payment plans, but the penalty amount itself is not negotiable. Fifth, there is a potential double enforcement trap: an operator could receive an infringement notice and also face a compliance order from the Director for the same conduct. Paying the fine does not immunise the operator from further regulatory action to remedy the breach. Sixth, the high body corporate penalties are a particular concern for small incorporated village operators. A company that fails to provide a required statement (section 19(1)) faces a fine of 50 penalty units - roughly $9,600 in 2023-24 - which could be a severe financial hit for a small business. Seventh, many of the offences listed (e.g., under sections 38E to 38L) relate to the retirement villages register kept by the Director. Operators must be meticulous about updating their registration details within the required timeframes; even a short delay could trigger an infringement notice. Eighth, the Regulations do not list the exact maximum court penalties for these offences, so an operator deciding whether to pay or contest cannot easily compare the infringement penalty with what a court might impose. The court penalty could be higher or lower; the infringement notice is a fixed amount that trades off certainty for potentially higher cost if the offence is minor.

Compliance with the Regulations is essentially compliance with the underlying Retirement Villages Act 1986, but with additional attention to the fact that many duties can now be enforced by on-the-spot fines. Operators should take the following steps. First, identify which duties you owe by cross-referencing every section of the Act listed in Schedule 1. Obtain a current copy of the Act and highlight the 41 sections that attract infringement penalties. Note that some sections have multiple subsections listed (e.g., sections 19(1), (2), (4) are separate offences). Second, implement systems to ensure timely performance of each duty: registration renewals, disclosure statements before contracts, provision of accounts within statutory periods, responses to resident requests for information, maintenance of the residents committee, and lodgement of changes to the retirement villages register. Because the infringement scheme targets administrative and informational obligations, the best defence is to have a calendar or compliance checklist that triggers actions before deadlines expire. Third, audit your current compliance against each listed section. For example, check that you have provided a disclosure statement to each incoming resident (section 9(1)), that you have maintained proper accounts and made them available (section 25(8)), and that you have a residents committee where required (section 30(1)). Any gap represents a risk of receiving an infringement notice. Fourth, train staff who handle resident contracts, accounts, and registration paperwork to understand the specific requirements. Fifth, respond promptly to any infringement notice received. The default is to pay within the period stated on the notice (usually 28 days). If you believe the notice is wrong, do not simply ignore it - instead, elect to have the matter heard in court or apply for an internal review under the Infringements Act. Ignoring the notice will lead to additional enforcement costs and penalties. Sixth, keep records of compliance to defend against any future allegation. If you can show that a particular statement or report was provided on time, you can defeat the offence entirely. Seventh, monitor the penalty unit value each financial year. The dollar value of each fine increases annually, so budget for potential fines accordingly. The value is published in the Government Gazette and on the Victorian Legislation website before 1 June each year. Eighth, plan for the sunset in 2028. If the Regulations are not re-made, the infringement scheme will lapse, but the Act offences will remain enforceable by prosecution. Do not assume that the absence of infringement notices means the obligations no longer matter. Finally, seek legal advice if you are unsure whether a particular requirement applies to your village or if you receive a notice for an offence you believe you did not commit. The infringement penalty is often a fraction of what a court might impose, so paying may be the cheaper option even if the breach is arguable - but that depends on the strength of your defence and the cost of litigation. The Regulations are a tool for efficient enforcement, but they reward operators who take their obligations seriously with minimal regulatory friction. Careful compliance is the surest way to avoid ever seeing the numbers in Schedule 1 applied to your business.