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This Act may be cited as the Retirement Villages Act 1992.
The provisions of this Act shall come into operation on such day as is fixed by proclamation and in any event shall come into effect if not proclaimed, 6 months after Royal Assent.
In this Act —
administer a retirement village includes to manage or operate the retirement village;
amenity includes facility;
approved form means the form approved by the Commissioner under section 8(2);
authorised deposit‑taking institution has the meaning given in the Banking Act 1959 (Commonwealth) section 5(1);
code means any code of practice prescribed under the Fair Trading Act 2010 which relates to retirement villages;
Commissioner means the person for the time being designated as the Commissioner under section 7A;
community arrangements statement means a statement under section 14B;
Department means the department of the Public Service principally assisting in the administration of this Act;
exit entitlement means any amount of money that is, under a residence contract, payable by an operator in connection with a resident permanently vacating residential premises in a retirement village;
ingoing contribution —
means a payment, however described, made by or on behalf of a person in consideration for, or in contemplation of, the person becoming a resident in a retirement village; but
does not include —
a recurrent charge; or
a payment of a prescribed kind;
judicial member has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);
levy means a single amount that the residents of a retirement village are required to pay to recover an unforeseen operating expense of the retirement village not provided for in the recurrent charges;
operator, in relation to a retirement village —
means the person by or on behalf of whom the retirement village is administered; and
includes a person, other than a resident, who is the owner of land used for the purposes of the retirement village;
owner, in relation to land under the operation of the Transfer of Land Act 1893, means a person who alone or with others is registered as the proprietor of an estate in fee simple;
permanently vacated has the meaning given in subsection (1A);
prospective resident information statement means a statement under section 14C;
recurrent charge means any amount (including rent) payable by a resident to the operator of a retirement village on a recurrent basis;
Registrar of Titles has the meaning given to that expression by the Transfer of Land Act 1893;
residence contract means a contract, agreement, scheme or arrangement which creates or gives rise to a right to occupy residential premises in a retirement village, and may take the form of a lease or licence;
residence rules means the rules with which residents of a retirement village are expected by the operator to comply, but does not include any prescribed subsidiary legislation (to which residents are subject) in force under any prescribed Act;
resident, in relation to a retirement village, means a person who has been admitted to occupation of residential premises in accordance with a retirement village scheme and includes a spouse or de facto partner of such a person who —
is residing with that person; or
was residing with that person at the time of that person’s death;
residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence and includes a hostel unit;
residential tenancy agreement has the same meaning as in the Residential Tenancies Act 1987;
retired person means a person who has attained the age of 55 years or retired from full‑time employment or a person who is or was the spouse or de facto partner of such a person;
retirement village means a complex of residential premises, whether or not including hostel units, and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme;
retirement village scheme means a scheme established for retired persons or predominantly for retired persons, under which —
residential premises are occupied in pursuance of a residential tenancy agreement or any other lease or licence; or
a right to occupation of residential premises is conferred by ownership of shares; or
residential premises are purchased from the operator subject to a right or option of repurchase; or
residential premises are purchased subject to conditions restricting the subsequent disposal of the premises; or
residential premises are occupied under any other scheme or arrangement prescribed for the purposes of this definition,
but does not include any such scheme under which no person pays an ingoing contribution;
service contract means a contract between an operator or former operator of a retirement village and a resident for the provision to the resident of services and amenities in the retirement village;
special resolution means a resolution passed at a meeting of the residents of a retirement village in accordance with section 41G;
Tribunal means the State Administrative Tribunal;
working day means a day other than a Saturday, a Sunday or a public holiday.
Residential premises in a retirement village are permanently vacated —
if the residence contract with the operator of the retirement village with respect to the premises requires notice of an intention to vacate the premises — the later of —
28 days after the day on which the operator is given the notice in writing (regardless of the period of notice required by the contract); or
when vacant possession of the premises is given to the operator;
or
if the residence contract with the operator of the retirement village with respect to the premises does not require notice of an intention to vacate the premises — when vacant possession of the premises is given to the operator.
For the purpose of determining whether a contract, agreement, scheme or arrangement is a residence contract as defined in subsection (1), it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
[Section 3 amended: No. 57 of 1997 s. 39(10); No. 28 of 2003 s. 179; No. 55 of 2004 s. 1023; No. 28 of 2006 s. 139; No. 58 of 2010 s. 199; No. 36 of 2012 s. 4(1)-(3); No. 42 of 2024 s. 4, 32, 48(1) and 49.]
This Act binds the Crown.
Except as otherwise provided by or under this Act, this Act applies to retirement villages established either before or after the commencement of this Act.
This Act does not apply in relation to residential premises in a retirement village that are used to provide —
residential care as defined in the Aged Care Act 1997 (Commonwealth) section 41‑3; or
aged care of a prescribed kind.
[Section 5 amended: No. 69 of 2006 s. 34; No. 42 of 2024 s. 5 and 48(1).]
Subject to subsection (2), the provisions of this Act have effect despite any stipulation to the contrary in any contract, agreement, scheme or arrangement, and no residence contract or other contract, agreement or arrangement (whether oral or partly or wholly in writing) operates to annul, vary or exclude any of the provisions of this Act.
Unless this Act provides that this subsection does not have effect in relation to the provision concerned, a provision of this Act does not apply to a contract, agreement or arrangement made or entered into before the commencement of that provision.
A person must not enter into any contract, agreement or arrangement with the intention, either directly or indirectly, of defeating, evading or preventing the operation of this Act.
Penalty for this subsection: a fine of $2 000.
[Section 6 amended: No. 36 of 2012 s. 5; No. 42 of 2024 s. 6, 48(1), 50 and 52.]
The provisions of this Act are, except as otherwise provided by this Act, in addition to and do not derogate from the provisions of any other written law.
The Minister is required, by notice published in the Gazette, to designate a person who is an executive officer of the Department as the Commissioner for the purposes of this Act.
The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.
In this section —
executive officer has the meaning given by section 3(1) of the Public Sector Management Act 1994.
[Section 7A inserted: No. 28 of 2006 s. 140.]
The Commissioner has the following functions for the purposes of this Act —
to investigate and conduct research into matters relating to or affecting retirement villages;
to publish reports and disseminate information on matters relating to retirement villages;
to give advice to consumers on the provisions of this Act;
to investigate and attempt to resolve complaints by residents and operators of retirement villages and to take action by negotiation, prosecution of any offence or otherwise;
to make reports to the Minister on matters referred to the Commissioner by the Minister and matters of importance investigated by the Commissioner, whether referred to the Commissioner by the Minister or not.
The Commissioner may approve forms for use under this Act.
[Section 8 amended: No. 57 of 1997 s. 104; No. 28 of 2006 s. 141; No. 42 of 2024 s. 33 and 48(1).]
If a resident of a retirement village has made a complaint to the Commissioner and the Commissioner —
after investigating the complaint, is satisfied that the resident may have a right to commence or defend proceedings under this Act; and
is of the opinion that it is in the public interest that the Commissioner should commence, defend or assume the conduct of those proceedings on behalf of the resident,
the Commissioner may commence, defend or assume the conduct of those proceedings.
The Commissioner must not commence, defend, or assume the conduct of, any proceedings under subsection (1) on behalf of a resident without first obtaining the written consent of the resident which once given is irrevocable except with the consent of the Commissioner.
In relation to any proceedings referred to in subsection (1) the following provisions apply —
the Commissioner has, on behalf of the resident of the retirement village, in all respects the same rights in, and control over, the proceedings, including the right to settle any action or part of any action, as the resident would have had in the conduct of those proceedings; and
the Commissioner may, without consulting or seeking the consent of the resident, conduct the proceedings in such manner as the Commissioner thinks appropriate and proper; and
in the case of proceedings already commenced by or against the resident, the Tribunal or the court hearing the proceedings must, on the application of the Commissioner, order that the Commissioner be substituted for the resident as a party to the proceedings, and may make such other orders or give such other directions in that behalf as the Tribunal or the court thinks fit; and
any moneys (excluding costs) recovered by the Commissioner are tobe paid to the resident without deduction and any amount awarded against the resident is payable by and recoverable from the resident, but in all cases the costs of the proceedings are to be borne by or paid to and retained by the Commissioner as the case may require; and
if any party to the proceedings alleges another cause of action, or if the resident on whose behalf the proceedings are being defended has another cause of action, the Tribunal or the court hearing the proceedings may, on the application of the Commissioner, order that the proceedings for the other cause of action be heard separately and that the party or the resident as the case may require be a party to those proceedings in the party’s or the resident’s own right and may make such other orders or give such other directions in that behalf as the Tribunal or the court thinks fit.
In any proceedings referred to in subsection (1), a document purporting to be signed by the Commissioner stating in respect of the proceedings that the Commissioner is satisfied that the resident may have a right to commence or defend proceedings under this Act and that it is in the public interest to commence, defend, or assume the conduct of, the proceedings, as the case may be, on behalf of the resident of the retirement village is, in the absence of proof to the contrary, proof that the Commissioner commenced, defended, or assumed the conduct of, the proceedings, as the case may be, in accordance with that subsection.
In any proceedings referred to in subsection (1) a document purporting to be the consent of the resident of the retirement village to the Commissioner commencing, defending, or assuming the conduct of, the proceedings, as the case may be, is, in the absence of proof to the contrary, proof of that consent.
Despite anything in this section, if the Tribunal or the court hearing the proceedings is satisfied whether on application by the resident or otherwise that any proceedings taken by the Commissioner under this section in the name of a resident are not in the interests of the resident the Tribunal or the court, as the case may be, must order that the proceedings are to be —
discontinued; or
continued so as not to affect the interests of the resident and only in accordance with such directions including directions as to costs, as the Tribunal or court, as the case requires, thinks just.
Any costs recovered by the Commissioner under subsection (3)(d) are to be credited to the Consolidated Account.
In this section resident includes a prospective resident or former resident.
[Section 9 amended: No. 6 of 1993 s. 11; No. 49 of 1996 s. 64; No. 55 of 2004 s. 1044; No. 77 of 2006 s. 4; No. 42 of 2024 s. 34, 49, 51, 52 and 53(1).]
The Commissioner may by notice published in the Gazette delegate any of the Commissioner’s functions under this Act (other than this power of delegation) to the holder of any specified office in the public service of the State or to any specified officer of an agency or instrumentality of the Crown.
[Section 10 amended: No. 42 of 2024 s. 49.]
In this section —
statutory manager means a person appointed under section 75B and includes an agent of, or a person employed or engaged by, a statutory manager who is assisting the statutory manager in the performance of the functions of the statutory manager under this Act.
No liability attaches to the Commissioner or any delegate of the Commissioner, or any officer of the Department or a statutory manager for any act or omission by the Commissioner, the delegate, the officer or the statutory manager that occurred in good faith and in the performance or discharge or purported performance or discharge of the functions of the Commissioner, the Department or the statutory manager under this Act but, except as stated in subsection (3), this section does not relieve the Crown of any liability that it might have for the actions of such persons but for this section.
The Crown is relieved of any liability that it might otherwise have had for any act or omission, as described in subsection (2), by a statutory manager.
[Section 11 amended: No. 36 of 2012 s. 6; No. 42 of 2024 s. 52.]