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RETIREMENT VILLAGES REGULATION 2013 (NO 5 OF 2013)
2013
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
RETIREMENT VILLAGES
REGULATION 2013
SUBORDINATE LAW No. SL2013-5
EXPLANATORY
STATEMENT
Presented by
Simon Corbell
MLA
Attorney-General
RETIREMENT VILLAGES REGULATION 2013
Overview of the Regulation
The Retirement
Villages Act 2012 was passed on 22 August 2012 and has a default
commencement date of 4 March 2013.
The commencement of the
Retirement Villages Act 2012 will introduce legislative provisions into
ACT law that regulate existing and new retirement villages in the ACT. These
provisions will replace the Code of Practice which will be repealed on
commencement of the Act.
The provisions in the Act are based on
provisions in the NSW Retirement Villages Act 1999.
Similarly,
this regulation is largely based on the NSW Retirement Villages Regulation
2009 (‘the NSW Regulation’) and most provisions in the
regulation are identical or similar to equivalent sections in the NSW
Regulation.
This regulation will bring the ACT scheme into line with
the requirements in NSW. It will ensure the harmonisation of both schemes so
that operators and residents can move confidently into the ACT market from NSW
and into NSW from the ACT and be subject to largely identical regulatory
requirements in both jurisdictions.
There are minor drafting
modifications to the NSW requirements in this Regulation. References to NSW laws
and language used in NSW laws have been substituted with the ACT equivalents.
There are other drafting modifications that are necessary to ensure
consistency with ACT drafting practice. For instance, NSW laws commonly
prescribe forms within the regulation under the parent Act. In the ACT, the
relevant Act may provide for forms to be approved under the Act. Where such
forms are approved these are notified on the ACT legislation
register.
This is the reason why section 7 of the ACT regulation lists
the matters which must be included in the disclosure statement, with the Act
allowing an approved form to be made. In the NSW Regulation, equivalent
requirements to those in Regulation 7 are captured in the form prescribed at
part 1 of schedule 1 of the NSW Regulation.
Also, NSW provisions are
re-located in this regulation to ensure consistency with ACT drafting practice,
where the ordering of regulations usually follows the ordering of its parent
Act.
Some specific amendments have been made to the NSW requirements.
These amendments have been requested by the ACT Retirement Village
Residents Association Inc, the Property Council of Australia and the Aged and
Community Services Association of NSW & ACT Inc in their joint submission to
the ACT Government dated 11 January 2013 (‘the joint submission’)
which was received in the course of consultations between the ACT Government and
stakeholders about the content of the proposed regulation.
Some of the
recommendations made in the joint submission were not incorporated as they would
have required further consideration and consultation with all stakeholders.
Some might have constituted a significant departure from the NSW scheme. Some
related to provisions in the Act which cannot be addressed by way of
regulation.
The modifications to NSW requirements that have been
incorporated in this regulation are (with reasons summarised from the joint
submission):
Definition of operator
The provision relating
to the definition of ‘operator’ as provided for in regulation 6 of
the NSW Regulation is omitted on the basis that it may capture people or classes
of people who should not be caught by the definition (a modification to the
wording in use in the NSW regulation was sought, however it is unlikely that
this would have achieved the desired effect and in any case the regulation
itself is likely to be superfluous to the provisions in the Act
itself).
Optional services
Regulation 7 of the NSW
Regulation prescribes the provision of meals, laundry and home services as
“optional services” made available, by or on behalf of the operator,
to individual residents of a retirement village. The provision is omitted on
the basis that the services listed in that regulation often form part of the
general services provided by an operator and should not be prescribed in the
regulation as being optional services.
Definition of
resident
Regulation 8 of the NSW Regulation prescribes a spouse or de
facto (a ‘domestic partner’ in ACT law) of another resident who
occupies residential premises in the retirement village with the other resident
and continues to do so after the other resident dies or permanently vacates the
premises as a “resident”.
Regulation 8(2) of the NSW
Regulation provides that this provision does not apply where the other person
dies and the terms of his or her will are such as to require the person to
vacate the residential premises.
The provision relating to the
definition of ‘resident’ as provided for in regulation 8(2) of the
NSW Regulation is omitted as it would require an operator to delve into an
outgoing resident’s will and challenge beneficiaries.
Condition
reports
The requirement provided for in regulation 14(8) of the NSW
Regulation is omitted on the basis that the requirement to complete a condition
report at least 14 days before entering into a residence contract is
impractical.
Matters to be dealt with in the proposed annual budget
and matters not to be financed by way of recurrent charges
The
requirements in regulation 17 (matters that must be dealt with in the proposed
annual budget and regulation 26 (matters not to be financed by way of recurrent
charges) are sequenced in such a way that they must be read together (which
would have occurred in any case due to the sequencing of this regulation in
accordance with ACT drafting practice).
Limit on
contingencies
The $100 limit on contingencies in proposed annual
budgets as provided for in regulation 20 of the NSW Regulation is substituted
with:
a) for an annual budget of $200,000 or less - $1000; and
b) for an
annual budget that exceeds $200,000, 0.5% of the total of the annual budget.
The maximum amount prescribed in the NSW Regulation is viewed as being
so restrictive that it does not allow for any contingencies to be provided for
in the annual budget.
Matters to be included in village contracts
– village rules
Schedule 1, part 1.2 of this regulation
(schedule 2, part 1 of the NSW Regulation) provides for matters which must be
included in village contracts. One of the required inclusions is a statement
about the interaction between village rules and contract terms, which is
provided in this regulation in schedule 1, part 1.2, section 1.11. The
provision is drafted so that the provision reads consistently with section 87
with the Retirement Villages Act 2012.
Model proposed annual
budget
The model proposed annual budget as provided for in schedule 4
of the NSW Regulation is omitted on the basis that it is too soon to prescribe
such a form and there is no provision in this regulation which supports such a
model annual budget form.
Quorum required for special
resolution
The reference to 25% as provided in section 4 of schedule
7 of the NSW Regulation (equivalent to schedule 4, section 4.10 of this
regulation) for the quorum required for special resolutions is substituted with
a reference to 50% (75% was sought in the joint submission) on the grounds that
the matters requiring a special resolution are usually significant and may
affect all residents.
A mandated quorum of 75% of residents may stifle
democratic decision-making. There is already a requirement in schedule 1, part
1.3 section 1.6 of the Act that a special resolution is carried only if it is
passed by at least 75% of the number of residents who participate in the ballot.
A quorum of at least half of residents in the village is appropriate and will
not lead to an unnecessary impediment to decision-making.
Human
Rights implications
No provisions in this regulation engage
rights under the Human Rights Act 2004.
CLAUSE NOTES
Part 1 Preliminary
Clause 1 Name of
regulation
This clause names the regulation as the Retirement
Villages Regulation 2013.
Clause 2 Commencement
This
clause provides for the commencement of the regulation. The regulation
commences on the commencement of the Retirement Villages Act 2012,
section 3.
Clause 3 Dictionary
This clause provides that
the dictionary at the end of the regulation is part of the
regulation.
Clause 4 Notes
This clause provides that a note
in the regulation is explanatory only and includes a cross-reference to the
relevant sections in the Legislation Act 2001.
Clause
5 Offences against regulation–application of Criminal Code
etc
This clause states that other legislation applies in relation to
offences against the regulation, such as the Criminal Code
2002.
Part 2 Important concepts
Clause 6 Places
not retirement village–Act, s 10 (1), def retirement village, par
(b) (viii)
Section 10(1)(b) of the Act provides for arrangements that
are not defined as retirement villages for the purposes of the Act. These
include a building, or any part of a building, that is used or intended to be
used for the provision of residential aged care.
Section 10(1)(b)(viii)
provides for other places to be prescribed by regulation as not being retirement
villages.
This clause provides that a place where a service is provided
by a provider of services within the meaning of the Disability Services Act
1991 and housing provided by a community housing provider within the meaning
of the Housing Assistance Act 2007 are prescribed for the purposes of
section 10(1)(b)(viii).
This clause is equivalent to a provision in the
NSW Regulation.
Part 3 Representations and information about
retirement villages
Clause 7 Disclosure statement–Act, s 24
(3) (b)
Section 24 of the Act provides for disclosure
statements.
Section 24(3) provides that the disclosure statement must
include details of particular residential premises in the village, including
fees and charges payable in relation to the premises, that it must comply with
any requirement prescribed by regulation and be signed and dated by the
operator.
This clause provides that the disclosure statement must include
prescribed information about the retirement village which is based on
information contained in the current prescribed form in part 1 of schedule 1 of
the NSW Regulation.
Clause 8 Copies of certain documents to be
available–Act, s29 (1) (k)
Section 29(1) of the Act provides
for certain documents that the operator must make available at the village or a
place of business in the ACT, for inspection at all reasonable times by a
prospective resident.
These include documents prescribed by regulation
under section 29(1)(k).
This clause prescribes the additional documents
that must be provided under section 29(1).
This clause is equivalent to a
provision in the NSW Regulation.
Part 4 Village
contracts
Division 4.1 General
Clause 9 Prescribed
rate of interest–Act, s 41 (5) (b)
A number of provisions in
the Act provide for interest to be paid at the prescribed rate of interest on
unpaid amounts. These provisions are equivalent to sections in the NSW
Retirement Villages Act 1999.
Regulation 28 of the NSW Regulation
prescribes the rate of interest that is prescribed under section 101 of the NSW
Civil Procedure Act 2005
with respect to the payment of interest on a judgment debt.
Section
101 of the NSW Civil Procedure Act 2005 provides for interest after
judgment. It provides that a reference to the term “prescribed
rate” of interest in that section is a reference to the rate of interest
prescribed by the Uniform Civil Procedure Rules 2005.
The rate
prescribed for the relevant provisions in the Act (sections 41(5)(b), 69(b),
213(3), 235(6)(b), 237(3) and 238(9)(b)) is the rate prescribed under the
Court Procedures Rules 2006, schedule 2, part 2.2 (Interest after
judgment) in relation to the payment of interest on a judgment debt.
The
reference to the Court Procedures Rules 2006, schedule 2, part 2.2 is an
equivalent reference to the prescribed rate of interest in section 101 of the
NSW Civil Procedure Act 2005.
This clause provides for the
interest payable on amounts owing to a former occupant where there has been a
contravention of section 41 of the Act.
Clause 10 Amount payable for
legal and other expenses–Act, s 52 (3)
Section 52 of the Act
provides for the costs of preparation of village contracts.
Section 52(3)
provides that a regulation may prescribe a maximum amount payable by a resident
under the section.
This clause prescribes a maximum amount of
$200.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 11 Condition report–Act, s
59
Section 59 of the Act provides for condition reports, which must
be given to a prospective resident at the start of the resident’s
occupation of the premises.
Section 59(2) provides that regulations may
prescribe how a condition report must be completed. The regulation may include
providing the time within which the condition report must be completed and the
time within which the condition report must be given to the prospective
resident.
This clause provides how a condition report is to be completed
and is equivalent to regulation 14 of the NSW Regulation. However regulation
14(8) of the NSW Regulation provides that the completed condition report must be
provided to the prospective resident at least 14 days before the operator and
the prospective resident enter into a village contract or, if the premises are
still being constructed, 14 days before the prospective resident occupies the
premises.
An equivalent provision is not inserted by this clause. This
modification of the equivalent NSW provision was requested in the joint
submission.
In addition, the NSW Regulation prescribes a form for
condition reports. It is ACT drafting practice that an approved form be made
under the Act and notified on the ACT Legislation Register. It is unlikely that
a form such as that provided for in the NSW Regulation for condition reports is
necessary in any case. Operators may use forms as they deem appropriate which
adequately provide for the condition of the premises, similar to condition
reports used by lessors for residential tenancies agreements.
Clause
12 Renovations and alteration of fixtures and fittings–Act, s 63 (5)
(b)
This clause is equivalent to a provision in the NSW Regulation.
It provides that renovations or alterations of fixtures and fittings in
residential premises owned by a resident under a community title scheme, company
title scheme or units plan do not require the consent of the
operator.
Where such a resident wishes to add or alter a structure on
their unit they may need to comply with other Territory laws (eg the rules of
the owners corporation may require that the resident obtains the consent of the
owners corporation before adding or altering structures on the resident’s
unit).
Clause 13 Contents of village contracts–Act, s 66
(1)
This clause is equivalent to a provision in the NSW
Regulation.
It provides prescribes matters that must be included and
excluded from village contracts.
Schedule 1 of the regulation sets out
the matters which must be included in village contracts. It is equivalent to
schedule 2 of the NSW Regulation.
Schedule 2 of the regulation sets out
the matters that are to be excluded from village contracts. It is equivalent to
schedule 3 of the NSW Regulation.
Clause 14 Prescribed rate of
interest–Act, s 69 (b)
This regulation sets the prescribed rate
of interest as the rate under the Act, section 41 (5) (b) (which is prescribed
in clause 9).
Division 4.2 Settling-in period for
residents
Clause 15 Liability of former occupant if village
contract ended during settling-in period–Act, s 73 (1)
(d)
Section 73(1) sets out the items that a former occupant is liable
to pay if a village contract is ended under division 5.2 of the
Act.
Section 73(1)(d) allows other amounts to be prescribed by
regulation.
The clause is equivalent to a provision in the NSW
regulation.
Clause 16 Maximum administration fee–Act, s 73
(4)
This clause sets out a maximum administration fee of $200 for
section 73 of the Act.
This clause is equivalent to a provision in the
NSW Regulation.
Part 5 General management of retirement
villages
Division 5.1 Village rules
Clause
17 Village rules–Act, s 78 (2) (i)
Section 78(2) of the Act
sets out what the rules may relate to (but are not limited to).
These
include any other matter prescribed by regulation.
The regulation
prescribes security in the retirement village and the external appearance of
residents’ premises in the retirement village as matters that may be
included in the village rules.
This clause is equivalent to a provision
in the NSW Regulation.
Division 5.2 Certain obligations of
operators
Clause 18 Safety inspection report–Act, s 91 (2)
(e)
This clause provides that a safety inspection report mentioned in
section 91(2)(d) of the Act must remain on the notice board for at least 1
month.
This clause is equivalent to a provision in the NSW
Regulation.
Division 5.3 Certain rights of
residents
Clause 19 Access to residential premises in
village–Act, s 100 (3) (g)
Section 100(3) of the Act sets out
when an operator may enter residential premises in the village.
Section
100(3)(g) allows other circumstances to be prescribed by regulation.
This
clause provides that the operator or authorised person may enter residential
premises if the operator or authorised person has given the resident 2 days
notice:
a) to install a smoke alarm that is required by law to be
installed in the premises; and
b) to replace a battery in a smoke alarm
installed in the premises.
This clause is equivalent to a provision in
the NSW Regulation.
Clause 20 Membership of residents
committee–Act, s 104 (1)
Section 104(1) of the Act provides
that a person must not hold the same office, or hold an office exercising the
same (or substantially the same) function, on the executive committee for more
than 3 consecutive years, except as prescribed by regulation.
This clause
provides that a person may hold the same office for more than 3 consecutive
years if the village has fewer than 20 residents or the annual budget for the
village is less than $50,000.
This does not apply, however, if the
director-general has written to the residents committee objecting generally to
any person holding the same office on the committee for more than 3 consecutive
years or to a stated person holding the same office for more than 3 consecutive
years and the director-general has not written to the residents committee to
withdraw the objection.
This clause is equivalent to a provision in the
NSW Regulation.
Clause 21 Annual management meeting agenda–Act,
s 108 (4).
Section 108(4) of the Act provides that a regulation may
prescribe matters that must be included in the agenda for an annual management
meeting.
This clause prescribes excluded matters.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 22 Questions
at annual meeting–Act, s 110 (3) (b)
Section 110(3)(b) of the
Act provides that nothing in section 110 requires the operator or representative
to answer a question relating to an excluded matter prescribed by
regulation.
This clause prescribes these matters.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 23
Appointment of proxies–Act, s 116 (2)
Section 116(2) of the
Act provides the appointment of a proxy must be made in the way prescribed by
regulation.
This clause prescribes the way in which a proxy must be
appointed.
This clause is equivalent to a provision in the NSW
regulation.
Part 6 Financial management
Division
6.1 Capital maintenance and replacement
Clause 24 Capital
item–Act, s 135 (1), def capital item, par (a) (iv)
This
clause prescribes items which are “capital items”. These are
fixtures, fittings, furnishings and non-fixed items. Examples are included for
these items, and a note is also included which refers to the relevant provisions
of the Legislation Act 2001 about examples.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 25 Works not
capital maintenance–Act, s 135 (1), def capital maintenance, par
(c)
Section 135(1) provides for the meaning of capital maintenance
and capital replacement.
Section 135(1) defines capital maintenance to
mean works that are carried out for repairing or maintaining a capital item and
works prescribed by regulation as being capital maintenance.
Section
135(1) (c) provides that capital maintenance does not include works prescribed
by regulation as not being capital maintenance.
This clause prescribes
works that are not capital maintenance. These are works done to substantially
improve a capital item beyond its original condition and works done to maintain
or repair a capital item when it would have been more cost effective to replace
the capital item.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 26 Matters not to be funded from capital works fund
or recurrent charges – Act, s 141 (3) (e)
Section 141(1)
provides that the operator may fund the cost of capital maintenance for which
the operator is responsible from the capital works fund for the village (if any)
and from recurrent charges.
Section 141(2) provides that the operator
must bear the cost of capital replacement of a capital item for which the
operator is responsible.
Section 141(3) provides that section 141 does
not authorise the funding of matters listed in subsection (3) or anything
prescribed from the capital works fund or recurrent charges.
This
clause provides that work mentioned in section 25 of the regulation (works not
capital maintenance) are not authorised to be funded from the capital works fund
or recurrent charges.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 27 Capital works fund–Act, s 143
(4)
Section 143 of the Act requires capital works fund to be
established and maintained.
Section 143(4) provides that a capital works
fund must be held in an account with an Approved Deposit-taking Institution or
as otherwise provided by regulation.
This clause provides that if the
operator is a property trust or other corporation constituted by an Act, money
in the capital works fund may be held in a fund administered by the property
trust or corporation.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 28 Use of capital works fund amounts–Act, s
144 (1) (c)
Section 144(1)(c) provides that a regulation may
prescribe a purpose for which the capital works fund amount may lawfully be used
by an operator.
This clause provides that an amount may be used for a
purpose other than a purpose mentioned in section 144(1)(a) or (b) of the Act if
the residents have, by special resolution, consented to the money being used for
the purpose and the use of the money for the purpose does not involve the
funding of a matter mentioned in the Act, section 141(3).
This clause is
equivalent to a provision in the NSW Regulation.
Clause 29 Minimum
public liability insurance–Act, s 145 (4)
Section 145(4)
provides that a regulation may prescribe a minimum amount of public liability
insurance required under section 145.
This clause prescribes a minimum
amount of $10,000,000.
This clause is equivalent to a provision in the
NSW Regulation.
Division 6.2 Recurrent charges
Clause
30 Notice of fixed formula amendment–Act, s 149 (2) (c)
Section
149 of the Act provides for amendments of recurrent charges where the village
contract provides that they are to be amended according to a fixed
formula.
Section 149(1) provides that the operator must give a resident
who is a party to the contract written notice of the amendment at least 14 days
before it takes effect.
Section 149(2) sets out what must be stated in
the notice. Section 149(2)(c) requires anything else prescribed by regulation
to be stated in the notice.
This clause prescribes matters which must be
included in the notice.
This clause is equivalent to a provision in the
NSW Regulation.
Clause 31 Notice of amendment – no fixed formula
and not exceeding CPI–Act,
s 150 (4) (c)
This clause
prescribes matters which must be included in a notice of amendment of recurrent
charges, where the village contract does not provide for a fixed formula and the
amendment does not exceed the CPI.
This clause is equivalent to a
provision in the NSW Regulation.
Clause 32 Notice of
amendment–no fixed formula and greater than CPI–Act,
s
151 (4) (f)
This clause prescribes matters which must be included in
a notice of amendment of recurrent charges, where the village contract does not
provide for a fixed formula and the amendment exceeds the CPI.
This
clause is equivalent to a provision in the NSW Regulation.
Clause
33 Information about recurrent charges not needed to be given–Act, s 153
(5)
Section 153 of the Act provides for resident consent to amendment
of recurrent charges where the amendment is otherwise than by fixed formula and
exceeds the CPI.
Section 153(4) provides that if the residents committee
(or, if there is no residents committee, a resident) requests information about
the proposed amendment for the purpose of deciding whether to consent to it, the
operator must give the information requested.
Section 153(5) provides
that the operator does not have to give information prescribed by
regulation.
This clause prescribes the matters which the operator is not
required to give.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 34 Time to give information about recurrent
charges–Act, s 153 (6)
Section 153 of the Act provides that if
the operator fails to give the information requested by the residents committee
or resident within the time frame prescribed by regulation, the residents
committee or resident may apply to the ACAT for an order requiring the operator
to give the information stated in the order.
This clause prescribes a
time frame of 7 days after the information is first requested.
This
clause is equivalent to a provision in the NSW Regulation.
Division
6.3 Proposed and approved annual budgets
Clause 35 Matters to be
dealt with in proposed annual budget–Act, s 159 (4) (a)
Section
159(4)(a) of the Act provides that a regulation may make provision for the
matters that are to be dealt with in the proposed annual budget.
This
clause prescribes these matters.
This clause is equivalent to a
provision in the NSW Regulation.
Clause 36 Matters not to be
financed by way of recurrent charges–Act, s 159 (4) (b)
Section
159(4)(b) of the Act provides that a regulation may make provision for the
matters that must not be financed by way of using amounts received as recurrent
charges.
This clause prescribes these matters.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 37 Notice
accompanying proposed annual budget–Act, s 159 (5) (d)
Section
159(5) of the Act provides that the proposed annual budget must be accompanied
by a notice that includes the information contained in section
159(5).
Section 159(5)(d) allows other information to be included in the
notice to be prescribed by regulation.
This clause prescribes these
matters.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 38 Limit on contingencies in annual
budget–Act, s 164
This clause prescribes the maximum amount
that may be allocated in the proposed annual budget for contingencies. The
amount is:
(a) for an annual budget of $200,000 or less – $1000;
and
(b) for an annual budget that exceeds $200,000 – 0.5% of the total
amount of the annual budget.
The equivalent NSW Regulation provides for
an amount of $100. This modification from the NSW requirement was requested in
the joint submission.
Division 6.4 Annual
accounts
Clause 39 Copies of audited accounts–Act, s 169 (8)
(a) (ii)
This clause provides that a copy of the audited accounts for
the village must be displayed on a notice board in a common area of the village
for at least 1 month starting not later than 4 months after the end of the
financial year to which the accounts relate.
This clause is equivalent to
a provision in the NSW Regulation.
Division 6.5 Surplus or deficit of
accounts
Clause 40 Making good of deficit–Act, s 174 (3)
(c)
Section 174(1) of the Act provides that an operator must make
good a deficit in the annual accounts of the village.
Section 174(2)(a)
provides that the operator must not carry forward a deficit to a later financial
year.
Section 174(3)(c) provides that a regulation may prescribe
circumstances in which the operator may carry forward a deficit to later
financial year.
This clause prescribes when the operator may carry
forward a deficit to a later financial year.
This clause is equivalent to
a provision in the NSW Regulation.
Part
7 Disputes
Division 7.1 Dispute resolution
Clause
41 Representative for residents in dispute–Act, s 176
(2)
Section 176(2) of the Act provides that two or more residents who
claim that a dispute mentioned in section 176(1) has arisen may nominate, in
accordance with a regulation, any resident as their representative in the
dispute.
This clause provides that two or more residents who claim that a
dispute mentioned in the Act, section 176(1) has arisen may nominate a resident
as their representative in the dispute if each resident who is a party to the
dispute signs a statement to the effect that the person named in the statement
is nominated as the signatory’s representative and the nominated resident
gives written consent to the nomination.
This clause is equivalent to a
provision in the NSW Regulation.
Division 7.2 ACAT–applications
and orders
Clause 42 Time for making ACAT
applications
This clause provides that an application to the ACAT
under a section of the Act mentioned in an item in schedule 3 must be made
within the time mentioned in column 3 of the item.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 43 ACAT
applications by residents committee
This clause provides for
applications to be made by the residents committee on behalf of one or more
residents on their request or on behalf of all residents with the consent of the
residents.
In order for the residents committee to apply to the ACAT on
behalf of all residents, residents’ consent must be obtained by the
proposal being put to a meeting of the residents and the vote for the proposed
being decided by a show of hands.
Any resident who does not wish to be a
party must give written notice to the residents committee of that fact before
the application is made to the ACAT. On receiving written notice from a
resident, the committee must exclude the resident from the
application.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 44 ACAT may decide other party to application by
operator
This clause provides that the ACAT may, if it considers
appropriate to do so, order that 1 or more stated residents, or all the
residents, are the other parties to an application to the ACAT by the
operator.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 45 ACAT additional orders–Act, s 181 (1)
(k)
Section 181 of the Act sets out the orders that the ACAT may make
on application by a resident or operator of a retirement village.
Section
181(1)(k) allows other orders to be prescribed by regulation.
This clause
prescribes that the ACAT may amend, set aside or stay an order of the ACAT in
force under the Act.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 46 Differential orders
This clause
provides that the ACAT may make different orders in relation to different
residents of a village in deciding an application to which two or more residents
are parties.
This clause is equivalent to a provision in the NSW
Regulation.
Part 8 Ending residence
contracts
Division 8.1 General principles about ending residence
contracts
Clause 47 Time for giving notice to end
contract–Act, s 184 (2)
Section 184(1) of the Act provides that
if the operator or resident intends to apply to the ACAT to end a residence
contract, the intending applicant must give the other party written notice of
the intention except as otherwise provided by the Act.
Section 184(2)
provides that the notice must be given within the time prescribed by regulation.
This clause provides that the notice must be served by the intending
applicant within 14 days of the making of the application to the ACAT and not
later than the time the intending applicant makes the application to the ACAT.
If the notice is not served within 14 days the intending applicant must give a
new notice.
This clause is consistent with a requirement in the NSW
Regulation. A form is prescribed in NSW for this purpose by regulation. It is
not ACT drafting practice to prescribe a form by regulation.
Division
8.2 Uncollected Goods
Clause 48 Meaning of uncollected
goods–div 8.2
This clause defines uncollected goods for
division 8.2 of the Act by describing what is not included in the
definition.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 49 Disposal of perishable and certain other
uncollected goods–Act,
s 203 (1) (b)
Section 203(1)
of the Act provides that if a residence contract is ended and goods are left on
the residential premises by the former resident, the operator may apply to the
ACAT for an order under section 203 or sell or dispose of the goods in
accordance with a regulation.
This clause prescribes the goods which may
be removed and disposed of and when they may be removed and disposed
of.
This clause is equivalent to a provision in the NSW
Regulation.
Clause 50 Storage of other uncollected
goods
This clause provides for goods other than those referred to in
clause 49.
This clause provides for the storage of the uncollected goods
for 30 days after the operator issued a notice under section 203(2) of the Act.
If the operator does not have a forwarding address for the former occupant (or
the executor or administrator of the estate of the former occupant), the 30 days
starts from the day the former occupant vacated the residential premises if the
residence contract was ended by an ACAT order, or in any other case, from the
day the former occupant’s residence contract was ended.
This clause
provides that an operator commits an offence (a strict liability offence) if the
operator does not comply with these requirements.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 51 Claiming
uncollected goods
This clause allows a person who is entitled to
possession of uncollected goods to claim them before they are destroyed, sold or
otherwise dealt with under this division.
This clause is equivalent to a
provision in the NSW Regulation.
Clause 52 Disposal of uncollected goods
after storage
This clause prescribes requirements in relation to
uncollected goods, in particular uncollected personal documents and how these
are to be dealt with after the 30 day period mentioned in clause 50.
This
clause provides that an operator commits an offence (a strict liability offence)
if the operator does not comply with these requirements.
This clause is
equivalent to a provision in the NSW Regulation.
Clause 53 Records and
accounting
This clause provides for the keeping of records of all
uncollected goods disposed of under section 52 and how the balance of proceeds
of the sale of the goods must be dealt with.
This clause is equivalent to
a provision in the NSW Regulation.
Part 9 – Prescribed rates
of interest
Clause 54 Prescribed rate of interest–Act, s 213
(3)
This clause sets the maximum rate of interest that can be charged
on unpaid recurrent charges as the rate prescribed for the Act, section 41 (5)
(b) at clause 9.
Clause 55 Prescribed rate of interest–Act, s
235 (6) (b)
This clause sets the rate of interest that can be
charged when an operator has not paid an amount requires to be paid to a former
occupant as required under s235(2). It is the amount prescribed for the Act,
section 41 (5) (b) at clause 9.
Clause 56 Prescribed rate of
interest–Act, s 237 (3)
This clause sets the rate of interest
on amounts owed to former occupants by operators where the operator has not
acted properly or fairly in certain circumstances. It is the rate prescribed for
the Act, section 41 (5) (b) at clause 9.
Clause 57 Prescribed rate of
interest–Act, s 238 (9) (b)
This clause sets the rate of
interest on amounts owed for former occupants that are not paid as required by
the Act, s238. It is the rate prescribed for the Act, section 41 (5) (b) at
clause 9.
Part 10 Protection of ingoing contributions paid by
residents other than registered interest holders
Clause 58 Refund
of ingoing contribution–Act, s 241 (1) (b)
Section 241 of the
Act sets out when part 11 of the Act applies. Section 241 provides that the
part applies to a village contract if a resident has paid an ingoing
contribution under the contract that includes a provision that entitles the
resident to a refund of the whole, or any part, of the ingoing contribution and
the refund is more than the prescribed amount.
This clause prescribes an
amount of $10,000.
This clause is equivalent to a provision in the NSW
Regulation.
Part 11 Consent of residents
Clause
59 Conduct of written ballots–Act, sch 1, s 1.3 (1) (b) and s
1.5
This clause provides that a written ballot must be conducted in
accordance with schedule 4, part 4.2 and that a vote in relation to a measure or
action requiring a special resolution must be conducted in accordance with
schedule 4, part 4.3.
Part 12 Miscellaneous
Clause
60 Modification of Act–Act, s 504(2)
This clause provides that
the Act, part 20 is modified by schedule 5 and that this provision and schedule
5 expire 5 years after the commencement day.
Clause
61 Resident–Act, dict, def resident, par (b) (ii)
This
clause provides that a domestic partner who occupies residential premises in the
retirement village with the other resident and continues to reside there after
the other resident dies or permanently vacates the premises is defined as a
“resident” for the Act.
This is equivalent to regulation 8 of
the NSW Regulation, however the NSW equivalent provision also provides that the
provision does not apply where the other resident dies and the terms of that
other resident’s will are such as to require (whether directly or
indirectly) the person to vacate the residential premises.
This
modification of the equivalent NSW provision was requested in the joint
submission.
Part 20 Transitional
Clause
100 Matters not to be financed by way of recurrent charges – Act,
s 159 (4) (b)–s 36
Clause 36 provides for the
matters that are not to be financed by way of recurrent charges.
Clause
36(1)(d) provides that payroll tax must not be funded by way of recurrent
charges unless the wages paid by the operator in relation to operating the
retirement village are more than the threshold amount.
In addition, this
clause provides that payroll tax must not be financed by way of recurrent
charges unless before the commencement day the residents of the retirement
village consented to the financing of payroll tax by way of recurrent charges
and have continued to consent to the financing of payroll tax by way of
recurrent charges.
Schedule 1 Contents of village
contracts
This schedule provides for the contents of village
contracts.
Part 1.1 of schedule 1 provides for the information which must
be included in village contracts.
This clause is equivalent to schedule 2
part 1 in the NSW Regulation.
Part 1.2 provides for headings and
additional matters to be included in village contracts.
This clause is
equivalent to schedule 2 part 2 in the NSW Regulation. Clause 1.11, which deals
with village rules, has been modified from the NSW equivalent paragraph to read
consistently with section 87 of the Act.
Schedule 2 Matter to be
excluded from village contracts
This schedule provides for matter to
be excluded from village contracts.
This schedule is equivalent to
schedule 3 of the NSW Regulation.
Schedule 3 Time for making
ACAT applications
This schedule provides for the time that
applications to the ACAT are to be made.
This schedule is equivalent to
schedule 5 of the NSW Regulation.
Schedule 4 Conduct of written
ballots
This schedule provides for the conduct of written ballots and
ballots for special resolutions.
This schedule is equivalent to schedule
7 of the NSW Regulation.
Schedule 5 Modification of
Act
Part 20 of the Act provides for transitional matters, including
providing that a residence or service contract entered into before commencement
of the Act (for example, a residence contract entered into under the Code of
Practice) is a residence or service contract under the Act.
Section
504(2) of the Act provides that a regulation may modify part 20 (including in
relation to any other territory law) to make provision in relation to anything
that, in the Executive’s opinion, is not, or is not adequately or
appropriately, dealt with in part 20.
Section 504(3) provides that a
regulation made under section 504(2) has effect despite anything else in another
territory law.
The provisions in this schedule modify part 20 of the Act
under section 504(2) of the Act.
These provisions relate to the effect of
the provisions in the Act on arrangements entered into before commencement of
the Act.
Many of these provisions are equivalent to sections in schedule
4 of the NSW Act which provide for matters of a savings or transitional nature
consequent on the enactment of the NSW Act and subsequent Amending
Acts.
Some of the provisions are equivalent to subsections in the NSW Act
which provide for the effect of a section on a contract or arrangement entered
into before commencement of the provision. It is ACT drafting practice to place
such provisions in the transitional part of the Act rather than within the
relevant sections in the Act as in NSW.
Remaining provisions are
equivalent to provisions in the NSW Regulation.
An additional provision
to that in the NSW Act and Regulation is section 503ZB.
Section 503ZB
relates to a termination provision that applies to an existing contract or a
termination clause that is included in an existing contract immediately before
commencement.
Section 503ZB(2) provides that the termination provision
ceases to apply to the existing contract and instead, part 9 of the Act applies
to the contract.
Clause 503A Meaning of permanently vacated
residential premises–s 14 (1)
This clause is equivalent to
schedule 4, s 13 of the NSW Act.
Clause 503B Former retirement
villages that stopped being retirement villages before the commencement
day–s 15A (3)
This clause is equivalent to section 11 (6) of
the NSW Act.
Clause 503C General inquiry document–s 23
This clause is equivalent to schedule 4, s 28 of the NSW
Act.
Clause 503D Disclosure statement–s 24
This
clause is equivalent to schedule 4, section 28 of the NSW Act.
Clause
503E Copies of certain documents to be made available–s 29 (1)
(c)
This is equivalent to schedule 4, section 5 of the NSW
Act.
Clause 503F Resident to enter village contract–Act, s
41(1)
This clause is equivalent to schedule 4, section 29 of the NSW
Act.
Clause 503G Retirement village land to be registered–s 42
(3)
This clause is equivalent to section 24A(2)(a) of the NSW
Act.
Clause 503H Inconsistency between village contract and disclosure
statement –
s 45
This clause is equivalent to
schedule 4, section 6 of the NSW Act.
Clause 503I Village contracts
must be in writing–s 46
This clause is equivalent to section 26
of the NSW Act.
Clause 503J Amendment or replacement of village
contract–s 49
This clause is equivalent to section 29(5) of the
NSW Act.
Clause 503K Rescission of village contract on grounds
relating to disclosure statement–s 54
This clause is equivalent
to schedule 4, section 6 of the NSW Act.
Clause 503L Condition report
for certain residential premises–s 59 (4)
This clause is
equivalent to section 38(4) of the NSW Act.
Clause 503M Renovations
and alteration of fixtures or fittings–s 63 (5) (a)
This clause
is equivalent to schedule 4, section 30 of the NSW Act.
Clause
503N Settling-in period for residents–div 5.2 and s 71
This
clause is equivalent to schedule 4, section 31 of the NSW Act.
Clause
503O Village rules–div 6.1
This clause is equivalent to
schedule 4, section 4 of the NSW Act.
Clause 503P Operator not to
demand power of attorney–s 98
This clause is equivalent to
section 64(2)(a) of the NSW Act.
Clause 503Q Membership of Residents
Committee–s 104
This clause is equivalent to schedule 4,
section 32 of the NSW Act.
Clause 503R Operator must hold annual
general meeting–s 107
This clause is equivalent to schedule 4,
section 33 of the NSW Act.
Clause 503S Proxies–s
116
This clause is equivalent to schedule 4, section 34 of the NSW
Act.
Clause 503T Relative may ask to enter into residence
contract–s 120 (1) (c)
This clause is equivalent to section
81(1)(c) of the NSW Act.
Clause 503U Resident may carry out urgent
work–s 139
This clause is equivalent to schedule 4, section 23
of the NSW Act.
Clause 503V Sale of items of capital items to
residents–s 146
This clause is equivalent to schedule 4,
section 25 of the NSW Act.
Clause 503W Amendment of recurrent
charges–s 148(2)
This clause is equivalent to schedule 4,
section 35 of the NSW Act.
Clause 503X Residents’ consent to
spending–s 162(9)
This clause is equivalent to regulation 21 of
the NSW Regulation.
Clause 503Y Auditing of accounts–s 168 (3)
and (6)
This clause is equivalent to schedule 4, section 36 of the
NSW Act.
Clause 503Z Existing disputes–pt 8
This
clause is equivalent to schedule 4, section 8 of the NSW Act.
Clause
503ZA Information resolution of disputes–s 178
This clause is
equivalent to schedule 4, section 7 of the NSW Act.
Clause
503ZB Ending residence contracts – pt 9
This clause relates to
a termination provision that applies to an existing contract or a termination
clause that is included in an existing contract immediately before
commencement.
The clause provides that the termination provision ceases
to apply to the existing contract and instead, part 9 of the Act applies to the
contract.
The clause also provides that a reference to a contract referee
is, on commencement, taken to be a reference to the ACAT and any procedure
involving the ending of a residence contract, or the residence right under the
contract, by a contract referee is, on commencement, taken to be a reference to
the procedures mentioned in part 9.
This clause is not included in the
NSW Act or Regulation but is necessary as it clarifies the termination process
that is to be followed after commencement for existing contracts, in particular
where an existing contract refers to the ending of a residence contract or a
residence right by the contract referee referred to in the Code of
Practice.
Clause 503ZC Existing uncollected goods–div
9.8
This clause is equivalent to schedule 4, section 10 of the NSW
Act.
Clause 503ZD Meaning of permanently vacated
residence–s 207
This clause is equivalent to schedule 4,
section 13 of the NSW Act.
Clause 503ZE Recurrent charges for general
services–registered interest holders–s 210 (3) (a)
This
clause is equivalent to schedule 4, section 17 of the NSW Act.
Clause
503ZF Recurrent charges for general services–generally–s 211 (2)
(e)
This clause is equivalent to schedule 4, section 18 of the NSW
Act.
Clause 503ZG Meaning of departure fee–s 214
(1)
This clause is equivalent to schedule 4, section 11 of the NSW
Act.
Clause 503ZH Meaning of departure fee–s 214 (1)
(a)
This clause is equivalent to section 156(1)(a)(ii) of the NSW
Act.
Clause 503ZI Departure fees payable–s 217
This
clause is equivalent to section 158 of the NSW Act.
Clause
503ZJ Departure fees payable–registered interest holders
This
clause is equivalent to section 159 of the NSW Act.
Clause
503ZK Departure fees payable–not registered interest
holders
This clause is equivalent to section 160 of the NSW
Act.
Clause 503ZL Reduction or waiver of departure fee
This
clause is equivalent to section 161 of the NSW Act.
Clause
503ZM Condition of premises on ending of residence contract–s 219
(2)
This clause is equivalent to section 163(4) of the NSW
Act.
Clause 503ZN No refurbishment required–s
220
This clause is equivalent to section 164 of the NSW
Act.
Clause 503ZO Refurbishment under existing
contract
This clause is equivalent to section 165 of the NSW
Act.
Clause 503ZP Sale of premises–s 223 (4)
This
clause is equivalent to section 168(3) of the NSW Act.
Clause
503ZQ Statements to former occupants who were registered interest
holders–s 236 (2)
This clause is equivalent to section
180(3)(g) of the NSW Act.
Clause 503ZR Statements to former occupants
who were not registered interest holders–s 238A (2)
This clause
is equivalent to section 181(4)(d) of the NSW Act.
Clause
503ZS Application of pt 11–s 241 (1)
This clause is equivalent
to section 182A(2) and (3) of the NSW Act.
Clause 503ZT Creation of
charge–s 242 (1)
This clause is equivalent to section 182B(2)
of the NSW Act.
Clause 503ZU Costs of operator’s legal advice or
proceeding–s 260
This clause is equivalent to schedule 4,
section 14 of the NSW Act.
Dictionary
The dictionary
provides for the definition of terms used in the Regulation.