[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Retirement Villages Amendment Bill 2012 CONTENTS 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Section 3 amended 2 5. Section 6 amended 3 6. Section 11 amended 3 7. Section 13 amended 4 8. Section 14A inserted 5 14A. Residence contracts to comply with prescribed requirements 5 9. Section 14 amended 6 10. Section 18 amended 6 11. Sections 23 to 25 inserted 8 23. Recurrent charges payable by former residents 8 24. Recurrent charges may be deducted from premium repayable to former resident 10 25. Administering body not to require payment in respect of prescribed matters 13 12. Section 52 amended 13 13. Section 55 inserted 13 55. Applications to SAT in relation to residence contracts 13 14. Section 56 amended 15 15. Section 57A inserted 16 57A. Disputes in relation to recurrent charges or levy payable by residents 16 16. Part 5A inserted 17 Part 5A -- Statutory manager 75A. Terms used 17 75B. SAT may appoint statutory manager on application of Commissioner 18 287--2 page i Retirement Villages Amendment Bill 2012 Contents 75C. Proposed statutory manager must consent to appointment 19 75D. Variation and revocation of orders 20 75E. Matters to be dealt with in order appointing a statutory manager 21 75F. Other matters arising from appointment of statutory manager 22 75G. Appointment of both statutory manager and external administrator 23 75H. Administering body to cooperate with statutory manager 24 75I. State Administrative Tribunal may require reports and recommendations from statutory manager 25 17. Sections 76 to 77C inserted 25 76. Persons who are not to be involved in administration of retirement villages 25 77A. Limitation of period for which section 76 applies to certain persons 27 77B. Offences by persons involved in administration of retirement village 28 77C. Commissioner may grant exemption certificates 29 18. Section 80 amended 30 19. Section 82 amended 30 20. Schedule 1 Division 1 heading inserted 30 Division 1 -- Provisions relating to commencement of Act 21. Schedule 1 Division 2 inserted 30 Division 2 -- Provisions relating to Retirement Villages Amendment Act 2012 4. Exemption certificate taken to have been granted to certain persons 30 5. Transitional regulations 32 page ii Western Australia LEGISLATIVE COUNCIL (As amended in Committee) Retirement Villages Amendment Bill 2012 A Bill for An Act to amend the Retirement Villages Act 1992. The Parliament of Western Australia enacts as follows: page 1 Retirement Villages Amendment Bill 2012 s. 1 1 1. Short title 2 This is the Retirement Villages Amendment Act 2012. 3 2. Commencement 4 This Act comes into operation as follows -- 5 (a) sections 1 and 2 -- on the day on which this Act 6 receives the Royal Assent; 7 (b) the rest of the Act -- on a day fixed by proclamation, 8 and different days may be fixed for different provisions. 9 3. Act amended 10 This Act amends the Retirement Villages Act 1992. 11 4. Section 3 amended 12 (1) In section 3(1) insert in alphabetical order: 13 14 levy means a single amount that the residents of a 15 retirement village are required to pay to recover an 16 unforeseen operating expense of the retirement village 17 not provided for in the recurrent charges; 18 19 (2) In section 3(1) in the definition of premium delete paragraph (b) 20 and insert: 21 22 (b) a levy or recurrent charges; 23 24 (3) In section 3(1) in the definition of service contract delete 25 paragraph (g) and insert: 26 27 (g) recreation services or amenities or 28 entertainment services or amenities; or 29 page 2 Retirement Villages Amendment Bill 2012 s. 5 1 (4) In section 3(1) in the definition of service contract after each of 2 paragraphs (a) to (f) insert: 3 4 or 5 6 5. Section 6 amended 7 (1) In section 6(1) delete "subsection (2)," and insert: 8 9 subsection (2) and without affecting the operation of 10 sections 23(4) and 24(6), 11 12 (2) In section 6(2) delete "A" and insert: 13 14 Unless this Act provides that this subsection does not have 15 effect in relation to the provision concerned, a 16 17 6. Section 11 amended 18 (1) At the beginning of section 11 insert: 19 20 (1) In this section -- 21 statutory manager means a person appointed under 22 section 75B and includes an agent of, or a person 23 employed or engaged by, a statutory manager who is 24 assisting the statutory manager in the performance of 25 the functions of the statutory manager under this Act. 26 27 (2) In section 11: 28 (a) delete "No" and insert: 29 30 (2) No 31 page 3 Retirement Villages Amendment Bill 2012 s. 7 1 (b) after "of the Department" insert: 2 3 or a statutory manager 4 5 (c) delete "or the officer" and insert: 6 7 the officer or the statutory manager 8 9 (d) delete "Commissioner or the Department under this Act 10 but" and insert: 11 12 Commissioner, the Department or the statutory manager 13 under this Act but, except as stated in subsection (3), 14 15 (3) At the end of section 11 insert: 16 17 (3) The Crown is relieved of any liability that it might 18 otherwise have had for any act or omission, as 19 described in subsection (2), by a statutory manager. 20 21 7. Section 13 amended 22 (1) In section 13(2) delete "5 working days" and insert: 23 24 10 working days 25 26 (2) After section 13(3) insert: 27 28 (4A) A person must not demand or receive any fee or charge 29 for any information or document given under 30 subsection (2) or (3). 31 Penalty: a fine of $5 000. 32 page 4 Retirement Villages Amendment Bill 2012 s. 8 1 8. Section 14A inserted 2 After section 13 insert: 3 4 14A. Residence contracts to comply with prescribed 5 requirements 6 (1) The regulations may provide for provisions or matters 7 that must be included, or provisions or matters that 8 must not be included, in residence contracts or in 9 residence contracts of a specified kind. 10 (2) A person must not enter into a residence contract with 11 a prospective resident unless the residence contract, 12 otherwise than because of the operation of 13 subsection (3) or (4), complies with any regulations 14 made for the purposes of subsection (1). 15 Penalty: a fine of $20 000. 16 (3) If regulations made for the purposes of subsection (1) 17 provide that residence contracts or residence contracts 18 of a specified kind must contain a provision in the 19 terms specified in those regulations, a residence 20 contract to which those regulations apply that does not 21 include a provision in the specified terms is to be taken 22 to include that provision. 23 (4) If regulations made for the purposes of subsection (1) 24 provide that any provision or matter must not be 25 included in residence contracts or residence contracts 26 of a specified kind, a residence contract to which those 27 regulations apply that includes any provision or matter 28 contrary to those regulations is void to the extent of the 29 provision or matter. 30 (5) The regulations may provide that section 6(2) does not 31 have effect in relation to any specified regulations, or 32 any specified provisions of regulations, made for the 33 purposes of subsection (1). 34 page 5 Retirement Villages Amendment Bill 2012 s. 9 1 9. Section 14 amended 2 In section 14(1): 3 (a) in paragraph (a) delete "5 working days" and insert: 4 5 7 working days 6 7 (b) in paragraph (b) delete "10 working days" and insert: 8 9 17 working days 10 11 10. Section 18 amended 12 (1) Delete section 18(1)(a) and insert: 13 14 (a) the person by or on whose behalf the premium 15 was paid -- 16 (i) enters into occupation of the residential 17 premises; or 18 (ii) is entitled to enter into occupation of the 19 residential premises and is no longer 20 entitled to rescind the residence contract 21 under section 14 because the applicable 22 period referred to in that section has 23 expired, 24 whichever occurs first; or 25 26 (2) After section 18(1) insert: 27 28 (2A) If -- 29 (a) a premium is paid to an administering body and 30 subsection (2) does not apply; and page 6 Retirement Villages Amendment Bill 2012 s. 10 1 (b) the premium is not held in trust or invested as 2 required by subsection (1), 3 the administering body is guilty of an offence. 4 Penalty: a fine of $20 000 5 6 (3) In section 18(3) in the Penalty before "$5 000" insert: 7 8 a fine of 9 10 (4) Delete section 18(5) and insert: 11 12 (5) If -- 13 (a) a question affecting entitlement to or 14 disposition of the premium is required by 15 subsection (4) to be determined by reference to 16 the residence contract and the administering 17 body fails to act in accordance with that 18 requirement; or 19 (b) interest and accretions arising from investment 20 of the premium are required by 21 subsection (4)(a) to be paid to the prospective 22 resident and that interest and those accretions 23 are not paid accordingly, 24 the administering body is guilty of an offence. 25 Penalty: a fine of $20 000. 26 page 7 Retirement Villages Amendment Bill 2012 s. 11 1 11. Sections 23 to 25 inserted 2 At the end of Part 3 insert: 3 4 23. Recurrent charges payable by former residents 5 (1) In this section -- 6 former resident means a former resident of a 7 retirement village who has permanently vacated 8 residential premises in the retirement village and who 9 does not have an interest in the retirement village as a 10 tenant in common or as an owner of a lot under the 11 Strata Titles Act 1985 in relation to the residential 12 premises in the retirement village that he or she 13 formerly occupied; 14 permanently vacated, in relation to a former resident 15 and residential premises in a retirement village, means 16 that -- 17 (a) if required by the residence contract -- the 18 administering body has been given notice of the 19 former resident's intention to vacate the 20 residential premises; and 21 (b) the goods and belongings of the former resident 22 have been removed from the residential 23 premises; and 24 (c) the former resident has ceased to reside in the 25 residential premises; and 26 (d) the right to exclusively occupy the residential 27 premises has been given up by the former 28 resident (or, if the former resident is deceased, 29 by the estate of the former resident) by 30 returning the keys to the residential premises to 31 the administering body; page 8 Retirement Villages Amendment Bill 2012 s. 11 1 recurrent charges, except in subsection (6), means 2 recurrent charges -- 3 (a) that are payable in respect of the residential 4 premises in a retirement village that a former 5 resident formerly occupied; and 6 (b) that arise -- 7 (i) after those premises have been 8 permanently vacated by the former 9 resident; and 10 (ii) on or after the commencement of the 11 Retirement Villages Amendment Act 12 2012 section 11. 13 (2) This section applies to a former resident of residential 14 premises in a retirement village, whether that former 15 resident permanently vacated those premises before or 16 after the commencement of the Retirement Villages 17 Amendment Act 2012 section 11. 18 (3) Subject to subsection (4), a former resident's liability 19 to pay recurrent charges -- 20 (a) begins when the residential premises have been 21 permanently vacated by the former resident; 22 and 23 (b) ceases in accordance with the regulations. 24 (4) If a former resident's residence contract provides for 25 the former resident's liability to pay recurrent charges 26 to cease at a time that would occur before the time 27 provided for in regulations made for the purposes of 28 subsection (3)(b), that liability ceases in accordance 29 with that contract. page 9 Retirement Villages Amendment Bill 2012 s. 11 1 (5) The administering body of a retirement village must 2 pay recurrent charges, at the time when a former 3 resident would have been required to pay those charges 4 if the former resident were still liable to pay them, that 5 are payable in respect of the period that -- 6 (a) begins when the former resident's liability to 7 pay the recurrent charges ceases in accordance 8 with regulations made for the purposes of 9 subsection (3) or with the residence contract 10 referred to in subsection (4), as the case 11 requires; and 12 (b) ceases when a new resident of the residential 13 premises becomes liable to pay the recurrent 14 charges. 15 (6) The administering body must not seek to recover from 16 the residents of the retirement village, by increasing the 17 recurrent charges payable by them or by demanding or 18 receiving from them any additional fee or charge, any 19 amount payable by the administering body under 20 subsection (5). 21 Penalty: a fine of $20 000. 22 (7) Section 6(2) does not have effect in relation to this 23 section. 24 24. Recurrent charges may be deducted from premium 25 repayable to former resident 26 (1) In this section -- 27 former resident has the meaning given in 28 section 23(1); 29 recurrent charges means recurrent charges -- 30 (a) that are payable in respect of the residential 31 premises in a retirement village that a former 32 resident formerly occupied; and page 10 Retirement Villages Amendment Bill 2012 s. 11 1 (b) that arise -- 2 (i) after those premises have been 3 permanently vacated by the former 4 resident; and 5 (ii) on or after the commencement of the 6 Retirement Villages Amendment 7 Act 2012 section 11. 8 (2) If a premium is repayable in whole or in part to a 9 former resident, the former resident may elect, by 10 notice in writing given to the administering body of the 11 retirement village, to pay any recurrent charges for 12 which he or she is liable (including any interest payable 13 in respect of those charges under subsection (4)) by 14 their deduction from the amount of premium repayable. 15 (3) A former resident who elects to pay recurrent charges 16 under subsection (2) may give the notice to the 17 administering body at any time after the former 18 resident has permanently vacated the residential 19 premises that he or she formerly occupied. 20 (4) Subject to subsection (6) and to any regulations made 21 for the purposes of this subsection, a former resident 22 who elects to pay recurrent charges under 23 subsection (2) is liable to pay interest to the 24 administering body in respect of those charges if the 25 effect of that election is to defer the payment of the 26 charges. 27 (5) Interest is payable -- 28 (a) from the time the recurrent charges would, 29 apart from subsection (2), be payable by the 30 former resident until their deduction from the 31 premium repayable to the former resident; and 32 (b) at the rate determined in the prescribed manner. page 11 Retirement Villages Amendment Bill 2012 s. 11 1 (6) If -- 2 (a) the administering body and the former resident 3 agree to a rate of interest that is lower than the 4 rate referred to in subsection (5)(b); or 5 (b) the former resident's residence contract 6 specifies a rate of interest for the purposes of 7 this section that is lower than the rate referred 8 to in subsection (5)(b), 9 interest is payable by the former resident at that lower 10 rate. 11 (7) If the effect of the election under subsection (2) is to 12 defer the payment by a former resident of any recurrent 13 charges, the administering body -- 14 (a) must pay the recurrent charges at the time when 15 the former resident would have been required to 16 pay those charges apart from subsection (2); 17 and 18 (b) may deduct the amount paid from the premium 19 that is repayable to the former resident. 20 (8) A former resident is to be taken to have paid any 21 recurrent charges in respect of which a deduction is 22 made from the premium that is repayable to the former 23 resident. 24 (9) If a former resident elects to pay any recurrent charges 25 under subsection (2), the administering body must not 26 demand or receive payment of those charges otherwise 27 than in accordance with that election. 28 Penalty: a fine of $20 000. 29 (10) Section 6(2) does not have effect in relation to this 30 section. page 12 Retirement Villages Amendment Bill 2012 s. 12 1 25. Administering body not to require payment in 2 respect of prescribed matters 3 (1) The administering body of a retirement village must 4 not demand or receive payment from a resident or 5 former resident in respect of any matter prescribed for 6 the purposes of this section. 7 Penalty: a fine of $20 000. 8 (2) Section 6(2) does not have effect in relation to this 9 section. 10 11 12. Section 52 amended 12 After section 52(2) insert: 13 14 (3) Subsection (1)(b) does not apply to -- 15 (a) an order made under section 55(3) or 57A(4) or 16 Part 5A; or 17 (b) if the order is made in relation to a residence 18 contract -- an order made under section 56(4). 19 20 13. Section 55 inserted 21 After section 54 insert: 22 23 55. Applications to SAT in relation to residence 24 contracts 25 (1) If a dispute arises between the parties to a residence 26 contract as to the residence contract's compliance with 27 a requirement of regulations made for the purposes of 28 section 14A(1) -- 29 (a) either party to the residence contract; or page 13 Retirement Villages Amendment Bill 2012 s. 13 1 (b) if the dispute has been brought to the attention 2 of the Commissioner -- the Commissioner, 3 may make an application in relation to the matter to the 4 State Administrative Tribunal. 5 (2) If the State Administrative Tribunal is of the opinion 6 that an order, if made under subsection (3), may be 7 relevant to other residence contracts (including 8 residence contracts that relate to another retirement 9 village), the State Administrative Tribunal -- 10 (a) may order the administering body of a 11 retirement village or other person to provide the 12 State Administrative Tribunal with specified 13 information or documents in relation to any 14 residence contract; and 15 (b) on its own initiative or at the request of the 16 administering body or other person -- may 17 order that the administering body or other 18 person be joined as a party to the proceeding 19 under this section. 20 (3) The State Administrative Tribunal may, on an 21 application made under this section, order -- 22 (a) the variation or cancellation of any of the terms 23 of the residence contract, as specified in the 24 order; 25 (b) specific performance of the residence contract; 26 (c) the payment of a sum of money, 27 and may make such other orders as the State 28 Administrative Tribunal considers appropriate and may 29 declare that the order applies to any residence contracts 30 specified in the order, and the order is to have effect 31 accordingly. 32 (4) Subsection (2) does not limit the State Administrative 33 Tribunal Act 2004 section 35 or 38. page 14 Retirement Villages Amendment Bill 2012 s. 14 1 14. Section 56 amended 2 (1) Before section 56(1) insert: 3 4 (1A) A reference in this section to a service contract 5 includes a reference to a residence contract but only to 6 the extent that the residence contract provides for the 7 provision to a resident of a service or amenity that may 8 be provided to the resident under a service contract. 9 10 (2) Delete section 56(3) and insert: 11 12 (3) If the State Administrative Tribunal is of the opinion 13 that an order, if made under subsection (4), may be 14 relevant to other service contracts (including service 15 contracts that relate to another retirement village), the 16 State Administrative Tribunal -- 17 (a) may order the administering body of a 18 retirement village or other person to provide the 19 State Administrative Tribunal with specified 20 information or documents in relation to any 21 service contract; and 22 (b) on its own initiative or at the request of the 23 administering body or other person -- may 24 order that the administering body or other 25 person be joined as a party to the proceeding 26 under this section. 27 28 (3) Before section 56(4)(a) insert: 29 30 (aa) the variation or cancellation of any of the terms 31 of the service contract, as specified in the order; 32 page 15 Retirement Villages Amendment Bill 2012 s. 15 1 (4) After section 56(4) insert: 2 3 (5) Subsection (3) does not limit the State Administrative 4 Tribunal Act 2004 section 35 or 38. 5 6 15. Section 57A inserted 7 After section 56 insert: 8 9 57A. Disputes in relation to recurrent charges or levy 10 payable by residents 11 (1) This section applies if a dispute arises between the 12 residents of a retirement village and the administering 13 body of the retirement village regarding an increase in 14 recurrent charges or the imposition of a levy. 15 (2) If the residents pass a special resolution that authorises 16 the application to be made, the residents may make an 17 application in relation to the matter in dispute to the 18 State Administrative Tribunal. 19 (3) In subsection (2) -- 20 special resolution means a resolution passed at a 21 meeting of the residents of a retirement village that is 22 held in accordance with the requirements in an 23 applicable code for passing a special resolution. 24 (4) The State Administrative Tribunal may, on an 25 application made under this section, make such orders 26 as the State Administrative Tribunal considers 27 appropriate. 28 (5) Nothing in this section limits the matters in relation to 29 which an application may be made under section 56. 30 (6) Section 6(2) does not have effect in relation to this 31 section. page 16 Retirement Villages Amendment Bill 2012 s. 16 1 16. Part 5A inserted 2 After section 74 insert: 3 4 Part 5A -- Statutory manager 5 75A. Terms used 6 In this Part -- 7 assets, of the administering body of a retirement 8 village, means -- 9 (a) if the owner of land in the retirement village is 10 the sole administering body of the retirement 11 village -- that land and any other property held 12 for the purposes of the retirement village by the 13 owner; or 14 (b) if the owner of land in the retirement village is 15 not the sole administering body of the 16 retirement village -- the land and property of 17 the owner referred to in paragraph (a) and any 18 other property held for the purposes of the 19 retirement village by an administering body 20 other than the owner; 21 functions, of the administering body of a retirement 22 village, means the powers and duties that the 23 administering body exercises and performs in the 24 administration of the retirement village under this Act 25 or another written law; 26 property includes money, bank credits, travellers 27 cheques, bank cheques, money orders, shares, 28 securities, bonds, debt instruments, drafts and letters of 29 credit; 30 statutory manager means a person appointed under 31 section 75B. page 17 Retirement Villages Amendment Bill 2012 s. 16 1 75B. SAT may appoint statutory manager on application 2 of Commissioner 3 (1) The State Administrative Tribunal may, on application 4 by the Commissioner under this section, make an order 5 appointing one or more persons specified in the 6 application to perform -- 7 (a) all the functions of the administering body of a 8 retirement village; or 9 (b) specified functions of the administering body of 10 a retirement village; or 11 (c) all the functions other than specified functions 12 of the administering body of a retirement 13 village, 14 and may make such other orders as the State 15 Administrative Tribunal thinks fit. 16 (2) An application under this section is to be accompanied 17 by -- 18 (a) a copy of the consent given under 19 section 75C(1) by each person to be appointed; 20 and 21 (b) the Commissioner's recommendations as to the 22 statutory manager's terms and conditions to be 23 dealt with in the order under section 75E. 24 (3) The Commissioner must give a copy of the application 25 to the administering body. 26 (4) For the purposes of the State Administrative Tribunal 27 Act 2004 section 36, the administering body is a party 28 to the proceeding on an application under this section. 29 (5) The State Administrative Tribunal may make an order 30 appointing a statutory manager only if the State 31 Administrative Tribunal is satisfied that -- 32 (a) the wellbeing or financial interests of the 33 residents of the retirement village may be at page 18 Retirement Villages Amendment Bill 2012 s. 16 1 risk if the administering body continued to 2 perform all the functions of the administering 3 body of the retirement village; or 4 (b) the administering body has contravened, or is 5 contravening, an order made by the State 6 Administrative Tribunal or a court in relation to 7 the administering body or the retirement 8 village; or 9 (c) the administering body has contravened, or is 10 contravening, section 18 or another provision of 11 this Act, or a provision of the regulations, 12 prescribed for the purposes of this subsection. 13 (6) Without limiting the matters to which the State 14 Administrative Tribunal may have regard for the 15 purposes of subsection (5)(a), for those purposes the 16 State Administrative Tribunal must have regard to any 17 prescribed provisions of any applicable code. 18 (7) If 2 or more persons are appointed under 19 subsection (1), a function of the administering body to 20 be performed by the statutory manager under this Part 21 may be performed by any one of them, or by any 2 or 22 more of them together, except to the extent that the 23 order appointing them provides otherwise. 24 (8) Unless sooner revoked, an order under this section has 25 effect for the period specified in the order. 26 (9) The State Administrative Tribunal is not to require the 27 Commissioner, as a condition of granting an 28 application under this section, to give an undertaking as 29 to damages. 30 75C. Proposed statutory manager must consent to 31 appointment 32 (1) The Commissioner is not to make an application for an 33 order under section 75B appointing a person to be a page 19 Retirement Villages Amendment Bill 2012 s. 16 1 statutory manager unless the person has given the 2 Commissioner written consent to the application. 3 (2) The order appointing a person to be a statutory 4 manager does not have effect unless the person has 5 given the Commissioner written consent under 6 subsection (1) and has not withdrawn that consent as at 7 the time of the appointment. 8 75D. Variation and revocation of orders 9 (1) In this section -- 10 other persons means -- 11 (a) if an application is made under this section by 12 the Commissioner -- the administering body of 13 the retirement village and the statutory 14 manager; 15 (b) if an application is made under this section by 16 the administering body of the retirement 17 village -- the Commissioner and the statutory 18 manager; 19 (c) if an application is made under this section by 20 the statutory manager -- the Commissioner and 21 the administering body of the retirement 22 village. 23 (2) The State Administrative Tribunal may, on application 24 by the Commissioner, the administering body of the 25 retirement village or the statutory manager under this 26 section, vary or revoke an order appointing a statutory 27 manager under section 75B. 28 (3) The applicant must give a copy of the application to the 29 other persons. 30 (4) The State Administrative Tribunal may give any 31 directions it considers necessary or expedient for the 32 purposes of this section. page 20 Retirement Villages Amendment Bill 2012 s. 16 1 (5) For the purposes of the State Administrative Tribunal 2 Act 2004 section 36, the other persons are parties to the 3 proceeding on an application under this section. 4 75E. Matters to be dealt with in order appointing a 5 statutory manager 6 (1) An order under section 75B appointing a statutory 7 manager is to -- 8 (a) set out the terms and conditions that the State 9 Administrative Tribunal considers appropriate 10 to the appointment, including terms and 11 conditions as to the remuneration and expenses 12 payable to the statutory manager; and 13 (b) specify the assets of the administering body of 14 the retirement village that are to be under the 15 control of the statutory manager; and 16 (c) specify the assets of the administering body of 17 the retirement village that may be applied for 18 the purpose of providing funds for -- 19 (i) the performance by the statutory 20 manager of the functions of the 21 administering body conferred on the 22 statutory manager under section 75B(1); 23 and 24 (ii) the payment of the remuneration and 25 expenses of the statutory manager. 26 (2) The State Administrative Tribunal may give any 27 directions it considers necessary or expedient for the 28 purposes of this section. 29 (3) Without limiting section 11, neither the Crown, the 30 Minister nor the Commissioner is liable for the 31 remuneration of a statutory manager or any expenses 32 incurred by a statutory manager in performing any 33 functions of the administering body of a retirement 34 village. page 21 Retirement Villages Amendment Bill 2012 s. 16 1 75F. Other matters arising from appointment of 2 statutory manager 3 (1) In this section -- 4 appointed means appointed by an order under 5 section 75B. 6 (2) The administering body of a retirement village must 7 not, during the period of a statutory manager's 8 appointment, perform any of the administering body's 9 functions that the statutory manager is appointed to 10 perform. 11 Penalty: a fine of $20 000. 12 (3) Subject to any terms and conditions to which the 13 appointment is subject, a statutory manager must 14 perform any function of the administering body that the 15 statutory manager is appointed to perform in 16 accordance with any residence contract, service 17 contract or other contract, agreement or 18 arrangement -- 19 (a) to which the administering body is a party; and 20 (b) that relates to the performance of that function. 21 (4) Any act or thing done, in good faith, by or with the 22 consent of a statutory manager in the performance of 23 any function of the administering body that the 24 statutory manager is appointed to perform is valid and 25 effectual for the purposes of this Act. 26 (5) A statutory manager must, in accordance with the 27 regulations, provide the prescribed persons with the 28 prescribed written information about the performance 29 of any function of the administering body that the 30 statutory manager is appointed to perform. page 22 Retirement Villages Amendment Bill 2012 s. 16 1 75G. Appointment of both statutory manager and 2 external administrator 3 (1) In this section -- 4 external administration means external administration 5 under the Corporations Act 2001 (Commonwealth) 6 Chapter 5; 7 external administrator means a person appointed 8 under the Corporations Act 2001 (Commonwealth) for 9 the purposes of the external administration of the 10 administering body of a retirement village. 11 (2) This section applies if the administering body of a 12 retirement village is the subject of both -- 13 (a) the appointment by an order under section 75B 14 of a statutory manager; and 15 (b) the appointment of an external administrator. 16 (3) The statutory manager is under a duty to tell the 17 external administrator of the appointment of the 18 statutory manager, whether the appointment precedes, 19 follows or happens at the same time as the appointment 20 of the external administrator. 21 (4) The appointment of the statutory manager continues to 22 have effect while the administering body is subject to 23 external administration, but the statutory manager may 24 perform any function that the statutory manager is 25 appointed by an order under section 75B to perform -- 26 (a) only if authorised in writing by the external 27 administrator to do so; and 28 (b) subject to any condition or limitation specified 29 in that authorisation. page 23 Retirement Villages Amendment Bill 2012 s. 16 1 75H. Administering body to cooperate with statutory 2 manager 3 (1) In this section -- 4 records includes documents and information; 5 relevant means relevant to the performance of a 6 function referred to in subsection (2). 7 (2) This section applies if a statutory manager is appointed 8 by an order under section 75B to perform any function 9 of the administering body of a retirement village. 10 (3) The administering body of a retirement village must 11 cooperate with the statutory manager to the extent 12 reasonably required by the statutory manager to 13 perform a function referred to in subsection (2). 14 Penalty: a fine of $20 000. 15 (4) Without limiting subsection (3), that subsection 16 requires the administering body -- 17 (a) to answer, orally or in writing, relevant 18 questions asked by the statutory manager; and 19 (b) to produce to the statutory manager relevant 20 documents in the administering body's custody 21 or under the administering body's control; and 22 (c) to give the statutory manager access to relevant 23 records stored electronically, including any 24 translation, code, password or other information 25 necessary to gain access to, or to interpret and 26 understand, those records; and 27 (d) to give the statutory manager any other relevant 28 assistance the statutory manager reasonably 29 requires. 30 (5) The administering body must not hinder or obstruct the 31 statutory manager in the performance of a function 32 referred to in subsection (2). 33 Penalty: a fine of $20 000. page 24 Retirement Villages Amendment Bill 2012 s. 17 1 75I. State Administrative Tribunal may require reports 2 and recommendations from statutory manager 3 (1) The State Administrative Tribunal may, on its own 4 initiative or on application by the Commissioner under 5 this section, make an order directing a statutory 6 manager to prepare a report and make 7 recommendations concerning the retirement village in 8 respect of which the statutory manager is appointed. 9 (2) An order under subsection (1) is to specify the matters 10 that are to be the subject of the statutory manager's 11 report and recommendations and the period within 12 which the report and recommendations are to be 13 prepared. 14 (3) The statutory manager must provide a copy of the 15 report and recommendations to the State 16 Administrative Tribunal and the Commissioner and to 17 any other person the State Administrative Tribunal 18 specifies in the order under subsection (1). 19 20 17. Sections 76 to 77C inserted 21 After section 75 insert: 22 23 76. Persons who are not to be involved in 24 administration of retirement villages 25 (1) Subject to section 77A, this section applies to these 26 persons -- 27 (a) a person who is, according to the Interpretation 28 Act 1984 section 13D, a bankrupt or a person 29 whose affairs are under insolvency laws; 30 (b) a person who has been convicted, within or 31 outside Western Australia, of -- 32 (i) an offence involving violence to another 33 person punishable on conviction by page 25 Retirement Villages Amendment Bill 2012 s. 17 1 imprisonment for not less than 2 3 months; or 3 (ii) an offence involving fraud or dishonesty 4 punishable on conviction by 5 imprisonment for not less than 6 3 months; or 7 (iii) an offence under The Criminal Code 8 Chapter XXXI or an offence that, if 9 committed in Western Australia, would 10 constitute such an offence; or 11 (iv) a prescribed offence; 12 (c) a person who is disqualified from managing 13 corporations under the Corporations Act 2001 14 (Commonwealth) Part 2D.6; 15 (d) a person who was a director of, or concerned in 16 the management of, a corporation, as defined in 17 the Corporations Act 2001 (Commonwealth) 18 section 57A, when it was wound up otherwise 19 than voluntarily; 20 (e) a person prescribed as a person to whom this 21 section applies. 22 (2) A person to whom this section applies must not -- 23 (a) be the administering body of a retirement 24 village; or 25 (b) be in any way, whether directly or indirectly, 26 concerned in the administration of a retirement 27 village. 28 Penalty: a fine of $20 000. 29 (3) In any proceeding taken for an offence against 30 subsection (2), it is a defence to prove that, at the time 31 the offence occurred, the accused held a current 32 exemption certificate granted under section 77C. page 26 Retirement Villages Amendment Bill 2012 s. 17 1 (4) A person must not employ or engage a person to whom 2 this section applies if the person's employment or 3 engagement is or is to be in any way, whether directly 4 or indirectly, concerned in the administration of a 5 retirement village. 6 Penalty: a fine of $20 000. 7 (5) In any proceeding taken for an offence against 8 subsection (4), it is a defence to prove that, at the time 9 the offence occurred, the person employed or engaged 10 held a current exemption certificate granted under 11 section 77C. 12 77A. Limitation of period for which section 76 applies to 13 certain persons 14 (1) Section 76 applies to a person referred to in 15 subsection (1)(b) of that section, in relation to the 16 person's conviction of an offence, only for the period 17 of 5 years -- 18 (a) from the time of the person's conviction; or 19 (b) if the conviction results in a term of 20 imprisonment, from the time of the person's 21 release from custody. 22 (2) Section 76 applies to a person referred to in 23 subsection (1)(c) of that section, in relation to the 24 person's disqualification from managing corporations, 25 only for the period of 5 years from the time of that 26 disqualification. 27 (3) Section 76 applies to a person referred to in 28 subsection (1)(d) of that section, in relation to the 29 winding up of a corporation, only for the period of 30 5 years from the time of that winding up. page 27 Retirement Villages Amendment Bill 2012 s. 17 1 77B. Offences by persons involved in administration of 2 retirement village 3 (1) In this section -- 4 relevant information, in relation to a person, means 5 information as to the application of section 76 to the 6 person. 7 (2) A person -- 8 (a) whose employment or engagement is in any 9 way, whether directly or indirectly, concerned 10 in the administration of a retirement village; 11 and 12 (b) who becomes a person to whom section 76 13 applies because of the occurrence, after that 14 employment or engagement has commenced, of 15 a bankruptcy, conviction, disqualification, 16 winding up or other matter relevant to that 17 section, 18 must give relevant information to the person by whom 19 he or she is employed or engaged within 14 days after 20 that occurrence. 21 Penalty: a fine of $20 000. 22 (3) A person must not give relevant information that is 23 false or misleading to a person who employs or 24 engages, or who proposes to employ or engage, him or 25 her if the employment or engagement is or is to be in 26 any way, whether directly or indirectly, concerned in 27 the administration of a retirement village. 28 Penalty: a fine of $20 000. page 28 Retirement Villages Amendment Bill 2012 s. 17 1 77C. Commissioner may grant exemption certificates 2 (1) The Commissioner may grant an exemption certificate 3 to a person to whom section 76 applies if -- 4 (a) the person applies for the certificate in the form 5 approved by the Commissioner and pays the 6 prescribed fee; and 7 (b) satisfies the Commissioner that neither the 8 wellbeing nor financial interests of the residents 9 of a retirement village will be at risk if the 10 person -- 11 (i) is the administering body of the 12 retirement village; or 13 (ii) is in any way, whether directly or 14 indirectly, concerned in the 15 administration of the retirement village, 16 as the case requires. 17 (2) An exemption certificate may be granted subject to any 18 condition or limitation the Commissioner considers 19 appropriate and specifies in the certificate, which may 20 include a limitation on the period during which the 21 certificate has effect. 22 (3) The Commissioner may at any time revoke an 23 exemption certificate by written notice given to the 24 person granted the certificate. 25 (4) An exemption certificate is cancelled by force of this 26 subsection if the person granted the certificate becomes 27 a person to whom section 76 applies because of the 28 occurrence, after the person has been granted the 29 certificate, of a bankruptcy, conviction, 30 disqualification, winding up or other matter relevant to 31 that section. 32 (5) A person must return his or her exemption certificate to 33 the Commissioner within 14 days after the certificate is page 29 Retirement Villages Amendment Bill 2012 s. 18 1 revoked under subsection (3) or cancelled under 2 subsection (4). 3 Penalty: a fine of $20 000. 4 18. Section 80 amended 5 In section 80 delete "2 years" and insert: 6 7 3 years 8 9 19. Section 82 amended 10 In section 82(3) delete "$500." and insert: 11 12 $5 000. 13 14 20. Schedule 1 Division 1 heading inserted 15 Before Schedule 1 clause 1 insert: 16 17 Division 1 -- Provisions relating to commencement of Act 18 19 21. Schedule 1 Division 2 inserted 20 At the end of Schedule 1 insert: 21 22 Division 2 -- Provisions relating to Retirement Villages 23 Amendment Act 2012 24 4. Exemption certificate taken to have been granted to 25 certain persons 26 (1) In this clause -- 27 commencement day means the day on which the Retirement 28 Villages Amendment Act 2012 section 17 comes into 29 operation; page 30 Retirement Villages Amendment Bill 2012 s. 21 1 relevant information, in relation to a person, means 2 information as to the application of section 76 to the person. 3 (2) Subclause (3) applies to a person (a relevant person) who 4 on the commencement day -- 5 (a) is -- 6 (i) the administering body of a retirement 7 village; or 8 (ii) in any way, whether directly or indirectly, 9 concerned in the administration of a 10 retirement village; 11 and 12 (b) is a person to whom section 76 applies. 13 (3) On the commencement day, an exemption certificate is to be 14 taken to have been granted under section 77C to a relevant 15 person that has effect, subject to subclause (4) and 16 section 77C(3) and (4), for the period of 6 months from that 17 day. 18 (4) If -- 19 (a) an exemption certificate is to be taken to have been 20 granted to a relevant person; and 21 (b) the person makes an application under 22 section 77C(1) during the period referred to in 23 subclause (3), 24 the exemption certificate -- 25 (c) continues to have effect, whether or not the period 26 referred to in subclause (3) expires, until the 27 application is determined; and 28 (d) is cancelled by force of this subclause at the time of 29 that determination. 30 (5) A person who on the commencement day -- 31 (a) is employed or engaged in any way that, whether 32 directly or indirectly, is concerned in the 33 administration of a retirement village; and page 31 Retirement Villages Amendment Bill 2012 s. 21 1 (b) is a person to whom section 76 applies, 2 must give relevant information to the person by whom he or 3 she is employed or engaged within 14 days after the 4 commencement day. 5 Penalty: a fine of $20 000. 6 5. Transitional regulations 7 (1) In this clause -- 8 amending Act means the Retirement Villages Amendment 9 Act 2012; 10 commencement day means the day on which section 21 of 11 the amending Act comes into operation; 12 Gazettal day means the day on which transitional 13 regulations are published in the Gazette; 14 transitional matter means a matter of a transitional, savings 15 or application nature; 16 transitional regulations means regulations under 17 subclause (2). 18 (2) Regulations may prescribe anything necessary or convenient 19 to be prescribed in relation to a transitional matter in 20 connection with amendments made to this Act by the 21 amending Act. 22 (3) Without limiting subclause (2), transitional regulations may 23 modify the operation of section 6(2) in respect of any matter 24 specified in the regulations. 25 (4) Transitional regulations can only be made before the end of 26 the period of 12 months beginning on commencement day. 27 (5) If transitional regulations provide that a state of affairs is to 28 be taken to have existed, or not to have existed, on and from 29 a day (the operative day) that is earlier than Gazettal day, 30 the regulations have effect according to their terms as long 31 as the operative day is not earlier than the commencement 32 day. page 32 Retirement Villages Amendment Bill 2012 s. 21 1 (6) If transitional regulations contain a provision referred to in 2 subclause (5), the provision does not operate so as -- 3 (a) to affect in a manner prejudicial to any person 4 (other than the State or an authority of the State), 5 the rights of that person existing before Gazettal 6 day; or 7 (b) to impose liabilities on any person (other than the 8 State or an authority of the State) in respect of 9 anything done or omitted to be done before Gazettal 10 day. 11
[Index] [Search] [Download] [Related Items] [Help]