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This is a Bill, not an Act. For current law, see the Acts databases.


RETIREMENT VILLAGES AMENDMENT BILL 2012

                    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

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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.


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                                                                      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.

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     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.




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     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.

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                                                                              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

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     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
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                                                                          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.




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     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;

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                               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.




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                                                                            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




 


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