Australian and New Zealand Retirement Villages ... - Minter Ellison

Edition 1 

November 2009 

Australian and New Zealand 

Retirement Villages Legislation Compendium

2009 – Australian and New Zealand Retirement Villages Legislation Compendium – MINTER ELLISON 3 

About Minter Ellison 

Minter Ellison is one of the Asia Pacific region’s premier law firms. With more than 284 partners 

and 870 legal staff located in 14 offices across Australia, New Zealand, Hong Kong, the People’s 

Republic of China and the United Kingdom, our firm works with leading private sector and 

government clients. 

Retirement villages and aged care expertise 

For more than two decades Minter Ellison has been the law firm of choice to the retirement 

villages industry across Australia and New Zealand. A key strength is that we offer clients 

specialist lawyers on the ground in every state and territory of Australia and in key New Zealand 

centres. But what truly sets us apart is our strong industry experience and expertise. 

Minter Ellison lawyers understand the retirement villages industry and its key drivers. We focus 

on providing practical, commercial solutions that make business sense, and we look for longterm 

relationships where we can provide genuine value to the client. 

Our key services to the industry include: 

• acquisition and disposal of villages, village sites and aged care facilities 

• structuring, start-ups and documentation 

• joint ventures 

• development, construction, planning and environment 

• financing 

• tax and GST 

• legislative compliance 

• retirement village unit conveyancing 

• resident dispute resolution and litigation. 

Our experience counts. We deliver results. 

About the Retirement Village Association 

The Retirement Village Association (RVA) Ltd is the peak national body representing more than 

685 members comprising retirement village operators, managers, owners, developers, investors, 

and industry specialists across Australia. Industry specialists represent diverse business groups 

from major banking and financial institutions, national law, accountancy and valuation firms to 

service product providers. 

With an underlying strength of over 685 village and associate members nationally, the RVA 

continues to play a critical role in the ongoing growth and sustainability of the retirement 

villages industry. The RVA has five regional offices located in Brisbane, Sydney, Melbourne, 

Adelaide and Perth. 

As the leading industry voice, the principal objectives of the RVA are to: 

• lead the building and growth of a sustainable and responsible industry 

• advocate and strengthen our relationships with local, state and federal governments to 

ensure the best legislative outcomes for the retirement villages industry 

• encourage industry excellence and best practice through accreditation and facilitate quality 

improvement through an effective and relevant professional development program 

• support and promote the benefits of retirement villages as ‘the preferred choice of lifestyle for 

senior Australians’. 

The RVA has encapsulated these imperatives into our vision, which is 

‘To make Retirement Villages the preferred choice in accommodation for older Australians’.

4 MINTER ELLISON – Australian and New Zealand Retirement Villages Legislation Compendium – 2009 

Foreword – Minter Ellison 

Welcome to the first edition of the Australian and New Zealand Retirement Villages 

Legislation Compendium. 

In Australia today there are close to 2 million people aged 70 and over, about 9.3 per cent of 

the population. Within 40 years that number is expected to triple. The trend is the same in New 

Zealand. In both countries, this demographic shift is set to underpin unparalleled growth in the 

retirement living market in the coming years. 

The past decade has heralded some dramatic changes in Australasia’s retirement villages industry. 

A greater focus by governments everywhere on regulation and consumer protection has seen new 

or amended legislation governing retirement villages in most Australian states and in New Zealand. 

Large corporate entities have entered the market, resulting in significant market consolidation and 

a more ‘corporate’ approach to the operation and management of retirement villages. 

Retirement villages have repositioned in the market. No longer do they offer only a basic form of 

retirement accommodation. Villages now meet the demands of all levels of the market, including 

luxury resort-style accommodation, and offer residents a myriad of living options, facilities and 

services. 

What has not changed is the fact that different approaches are taken by the governments of the 

various jurisdictions to regulation of the retirement villages industry. Some jurisdictions have 

very detailed laws and regulations governing retirement villages, others have comparatively little 

regulation. Furthermore, the common issues that are regulated in all jurisdictions are often dealt 

with in vastly different ways across the jurisdictions. 

This lack of consistency can result in significant confusion and administrative burdens for owners 

and operators, particularly those with national or Australasian retirement living interests. Whilst 

national uniformity in the legislation regulating retirement villages is supported by many in the 

industry, that uniformity is unlikely to become a reality in the near future. 

Against this background, the Australian and New Zealand Retirement Villages Legislation 

Compendium aims to provide the retirement villages industry with a quick reference guide to key 

aspects of the legislation regulating retirement villages in each state and territory of Australia and 

in New Zealand. 

By using common major headings, the compendium is designed to enable the parallels and 

divergences between the legislation on specific issues in the various jurisdictions to be easily 

identified. 

The retirement living sector has evolved into a significant asset class. This snapshot of the 

legislation across jurisdictions highlights just some of the regulatory hurdles that the industry will 

face as it continues to grow. 

We acknowledge the work of the lawyers, partners and others at Minter Ellison involved in the 

production of this compendium. It has truly been a team effort. 

We hope you find this publication useful. 

Robin Lyons 

Partner 

Minter Ellison


Endorsement – Retirement Village Association 

With more than 685 village and associate members across Australia, a key focus for the 

Retirement Village Association (RVA) Ltd is to assist its members sustain and grow the 

retirement villages industry nationally and in every state in Australia. 

Our stakeholders – retirement village operators, managers, owners, developers, investors and 

industry specialists – face challenging times. Many of those challenges are linked to economic 

cycles over which we have little control. However, there are early signs of an imminent recovery 

that should benefit the industry. 

But some of the challenges that are stymieing growth and increased investment in our industry, 

and perhaps also impeding best practice and excellence, are a direct result of the myriad of laws 

and regulations that regulate the retirement villages industry. 

For members with operations across a number of jurisdictions, the differences and nuances of the 

various legislative regimes are sometimes difficult to understand. Infringements can be costly. 

But even for those with operations only in one state or territory, the sustainability of their 

operations depend on knowing the law and the parameters its sets. 

Minter Ellison’s Australian and New Zealand Retirement Villages Legislation Compendium is the first 

publication of its kind in Australia. It is thought leadership at its best and will prove an invaluable 

resource for RVA members. 

By drawing on the knowledge and experience of its team of specialist lawyers across every 

Australian state and territory and New Zealand, Minter Ellison has produced a quick reference 

guide to key aspects of the legislation regulating retirement villages. 

The compendium continues Minter Ellison’s long-standing commitment to, and support for, our 

industry. And it will be a useful tool for the RVA as we continue to advocate local, state and federal 

governments to ensure the best legislative outcomes for the retirement villages industry. 

The writing and production of the Australian and New Zealand Retirement Villages Legislation 

Compendium has been a huge task. The RVA commends Minter Ellison for its initiative and is 

pleased to endorse this publication. The RVA believes it will add enormous value to villages across 

Australiasia and promote great living environments for older Australians through enhanced 

understanding of legislation. 

Andrew Giles 

Chief Executive Officer 

Retirement Village Association (RVA) Ltd


Contents 

1 Retirement villages legislation – current legislation, key amending legislation, former legislation, administration and key bodies 8 

2 Relationships with other legislation – strata title, residential tenancies, fair trading, aged care 12 

3 Application of the retirement villages legislation 16 

4 Retirement village and retirement village scheme – definitions, registration, exemptions, de-registration 18 

5 Resident – definition, important categories of resident, age restrictions 26 

6 Scheme operator – definition, restrictions on who can be an operator 30 

7 Residence contract – definition, mandatory content, pre-contracting and post-contracting obligations, resident’s rights of access to contract documents, 

consequences of inconsistency with RV Act, costs of preparation 32 

8 Pre-contract disclosure – required form and content, consequences of inconsistencies, prospective resident’s rights of access to information, inaccurate or misleading disclosure 42 

9 Cooling-off and settling-in – cooling-off period, resident’s right to rescind, consequences of rescission, disclosure obligations , settling-in period in NSW and SA 50 

10 Ingoing contribution – definition, deposits, holding of deposits and ingoing contributions in trust 56 

11 General services – definition, general services charges/recurrent charges, budgeting for charges, increasing charges, variations in services and new services 60 

12 Personal/optional services – definition, ceasing of charges 72 

13 Maintenance and repair of village capital items – responsibility for costs, mandatory funds and budgeting for maintenance costs, disclosure and reporting requirements 74 

14 Replacement of village capital items – responsibility for costs, mandatory funds and budgeting for replacement costs, disclosure and reporting requirements 80 

15 Capital improvement – responsibility for costs, residents’ rights to require improvements 86 

16 Financial accounts and statements – quarterly and annual accounts, auditing of accounts, residents’ rights to receive accounts 90 

17 Village insurance – obligation to insure, type and extent of insurance, insurance excesses, funding insurance costs 96 

18 Village rules and by-laws – obligations on operator to make rules, what the rules may regulate, who must comply with rules, the process for making, 

changing or revoking rules, rules that are inconsistent with a residence contract or the RV Act 98 

19 Residents committee – residents’ right to establish a residents committee, members of residents committee, residents committee’s function, residents committee’s powers, 

operator’s attendance at residents committee meetings 102 

20 Residents meetings – operator’s obligation to hold annual meeting, other residents meetings, notice requirements, conduct of meetings, simultaneous meetings, 

operator’s obligation to answer questions, voting rights and procedures, requirements for effecting special resolutions, meeting with proposed new village operator 106 

21 Other rights and obligations about village management and operation – restrictions on operator acting as attorney for a resident, right of certain non-residents to reside 

or become residents, letting or subletting by a resident, restrictions on operator’s access to a resident’s premises, operator’s obligations about safety, restrictions on advertising, 

other general rights of residents 120 

22 Enforcing a residence contract – persons against whom a residence contract may be enforced, persons from whom an exit entitlement may be recovered 126


23 Termination of residence contract – ways in which a residence contract may terminate, termination rights of residents and operators, required forms of notice, 

notice periods for termination, rights of appeal from termination, recovering possession of units, dealing with uncollected resident’s goods 128 

24 Appointing an agent, costs of sale and commission – process for appointing an agent to sell the resident’s interest, who may be appointed as the selling agent, 

responsibility for paying the costs of sale and commission 138 

25 Resale price/resale value – who may determine the resale price of the former resident’s interest, how the resale price must be worked out, updating the resale price 142 

26 Remarketing and resale procedures – restrictions on operator’s ability to exercise option to purchase resident’s premises, procedures for the remarketing and resale of the unit, 

operator’s obligations to market the unit and keep resident informed, operator’s duty not to interfere in sale, limitations on operator’s ability to refuse an offer from a prospective resident, 

relative’s right to enter into residence contract 146 

27 Reinstatement and refurbishment – who has the obligation to reinstate the premises, who bears the cost of reinstatement, standard of work required, who is responsible for refurbishment 154 

28 Former resident’s liability for general services charges/recurrent charges – liability of former resident and operator for charges after the former resident has vacated 160 

29 Exit fee/departure fee – definition, periods for which it may be charged, how it must be calculated, how it must be paid, right of a former resident to seek a reduction or waiver 

of the fee in particular circumstances 166 

30 Exit entitlement – amounts to be paid or repaid to former residents, time limits for making payments, consequences of payments not occurring on time, 

applications by residents for early payment to fund entry into aged care, rules about calculating payments or refunds 170 

31 Statutory charge over retirement village land – when a charge is created, exemptions from the charge, registration, priority over other interests, 

enforcement of the charge and sale of the village land, release of the charge 180 

32 Dispute resolution – mandatory dispute resolution processes, preliminary negotiation, mediation, applications to disputes committee, applications to a Tribunal, 

Tribunal orders, appeal against a Tribunal decision or order 188 

33 Enforcement – powers of the administering bodies to investigate, inspect and enforce compliance with the RV Act 196 

Minter Ellison – Contacts 200 

Retirement Village Association – Contacts 201


1. Retirement villages legislation – current legislation, key amending legislation, former legislation, 

administration and key bodies 

QLD NSW VIC TAS SA 

Current legislation and key 

amending legislation 

Retirement Villages Act 1999 (Qld) 

– commenced on 1/7/2000 

Retirement Villages Amendment Act 

2006 (Qld) – commenced in parts on 

15/3/2006, 1/1/2007 and 16/3/2007 



Retirement Villages Act 1999 

(NSW) – commenced in parts on 

7/1/2000, 31/3/2000 and 1/7/2000 

Retirement Villages Regulation 2000 

(NSW) – commenced on 1/7/2000 

Current legislation and key amending 

legislation 

Retirement Villages Act 1986 (Vic) – commenced 

in parts on 25/2/1987 and 8/6/1987 

Retirement Villages (Records and Notices) 

Regulations 2005 (Vic) – commenced on 

30/1/2006 



Retirement Villages Act 2004 (Tas) 


Retirement Villages Regulations 

2005 (Tas) – commenced on 

1/7/2005 



Retirement Villages Act 1987 (SA) 


Retirement Villages (Miscellaneous) 

Amendment Act 2001 (SA) 



(Qld) – commenced on 1/7/2000 

Former legislation 

Retirement Villages Act 1988 (Qld) 


(Qld) 

Administration of the RV Act 

and key bodies 

In Queensland: 

• the government department 

administering the RV Act is the 

Department of Employment, 

Economic Development and 

Innovation; 

• the Minister with responsibility 

for the RV Act is the Minister for 

Tourism and Fair Trading; 

• the agency within the 

department that oversees 

retirement villages is the Office 

of Fair Trading; 

Retirement Villages Transitional 

Regulation 2000 (NSW) 


Retirement Villages Amendment Act 

2008 (NSW) – yet to commence 


(NSW) – yet to be enacted 


Retirement Villages Act 1989 (NSW) 


(NSW) 



In NSW: 



Department of Commerce; 

• the Ministers with 

responsibility for the RV Act are 

the Minister for Commerce and 

the Minister for Fair Trading; 

Retirement Villages (Contractual Arrangements) 

Regulations 2006 (Vic) – commenced on 

1/8/2006 

Estate Agents (Retirement Villages) Regulations 

2006 (Vic) – commenced on 1/8/2006 


Retirement Villages Regulations 1998 (Vic) 

– repealed from 19/5/2009 

Retirement Villages Regulations 1987 (Vic) 

Retirement Villages (Transitional Regulations) 

2005 (Vic) 

Administration of the RV Act and 

key bodies 

In Victoria: 

• the government department administering 

the RV Act is the Department of Justice; 

• the Minister with responsibility for the RV 

Act is the Minister for Consumer Affairs; 

• the agency within the department that 

oversees retirement villages is Consumer 

Affairs Victoria; 


Nil 



In Tasmania: 



Department of Justice; 


for the RV Act is the Attorney- 

General and Minister for 

Justice; 

• the agency within the 

department that oversees 

retirement villages is Consumer 

Affairs and Fair Trading; and 

• the ‘Director’ given various 

functions and powers in the RV 

Act is the Director of Consumer 

Affairs and Fair Trading (s3) 

Retirement Villages (Miscellaneous) 

Amendment Act 2005 (SA) 



2006 (SA) – commenced on 

1/11/2006 



1987 (SA) 


2002 (SA) 

Administration of the RV 

Act and key bodies 

In South Australia: 



Department of Families and 

Communities; 


for the RV Act is the Minister 

for Ageing;


WA ACT NT NZ 



Retirement Villages Act 1992 (WA) 



legislation 

Fair Trading Act 1992 (ACT) – commenced on 

1/1/1993 


legislation 

Retirement Villages Act 1995 (NT) 



legislation 

Retirement Villages Act 2003 (NZ) – commenced in parts 

on 1/2/2004, 1/10/2006 and 1/5/2007 

Retirement Villages Regulations 1992 (WA) 


Retirement Villages Industry Code of Practice 

1999 (ACT) – commenced on 3/11/1999 

Retirement Villages Regulations 1995 (NT) 


Retirement Villages (General) Regulations 2006 (NZ) 


Fair Trading (Retirement Villages Code) 

Regulations 2009 (WA) – commenced in 

parts on 21/9/2009 and 1/10/2009 



Regulations 1993 (WA) 



Fair Trading (Retirement Villages Interim 

Code (No 2)) Regulations 2002 (WA) 


Code) Regulations 2001 (WA) 










Amendment Regulations 2006-2007 (WA) 


Nil 

Administration of the Code and key 

bodies 

In the ACT: 

• the government department administering 

the Code is the Department of Justice and 

Community Safety; 

• the Minister with responsibility for the Act 

is the Attorney-General; 


oversees retirement villages is the Office of 

Regulatory Services; and 

• the ‘Director’ given various functions and 

powers in the Code is the Commissioner 

for Fair Trading appointed under Part 3 Div 

3.1 of the Fair Trading (Consumer Affairs) 

Act 1973 (ACT) (cl 1 Code; ss6, 45 and 

Dictionary Fair Trading (Consumer Affairs) 

Act 1973 (ACT) 

Retirement Villages Code of Practice 1995 (NT) 

(appearing in Sch 2 of the Retirement Villages 

Regulations 1995 (NT)) – commenced on 

1/11/1995 


Nil 

Administration of the RV Act and key 

bodies 

In the NT: 


administering the Code is the Department 

of Justice; 

• the Minister with responsibility for the 

RV Act is the Minister for Justice and 

Attorney-General; 


oversees retirement villages is Consumer 

Affairs; 

Retirement Villages (Fees) Regulations 2006 (NZ) 


Retirement Villages (Disputes Panel) Regulations 2006 

(NZ) – commenced on 1/10/2006 

Retirement Villages Code of Practice 2008 (NZ) 



Securities Act 1978 (NZ) 

Securities Regulations 1983 (NZ) 

Retirement Villages Code of Practice 2006 (NZ) - declared 

invalid by the High Court on 19/12/2007 

Administration of the RV Act and key bodies 

In New Zealand: 

• the government department administering the RV 

Act is the Department of Building and Housing; 

• the Minister with responsibility for the RV Act is the 

Minister for Building and Construction;


Minter Ellison – Contacts 

QUEENSLAND 

NEW SOUTH WALES 

VICTORIA/TASMANIA 

Robin Lyons 

Partner 

T +61 7 3119 6440 

F +61 7 3119 1440 

Gary Goldman 

Partner 

T +61 7 3119 6268 

F +61 7 3119 1268 

David McElhone 

Partner 

T +61 2 9921 4718 

F +61 2 9921 8277 

Victoria Mathewson 

Partner 

T +61 2 9921 4567 

F +61 2 9921 8001 

David Inglis 

Partner 

T +61 3 8608 2906 

F +61 3 8608 1129 

Don MacCallum 

Partner 

T +61 3 8608 2843 

F +61 3 8608 1284 

SOUTH AUSTRALIA/ 

NORTHERN TERRITORY 

WESTERN 

AUSTRALIA 

AUSTRALIAN CAPITAL TERRITORY 

NEW ZEALAND 

Adrian Swale 

Partner 

T +61 8 8233 5525 

F +61 8 8233 5556 

John Prevost 

Partner 

T +61 8 6189 7890 

F +61 8 6189 7990 

Elizabeth Whitelaw 

Partner 

T +61 2 6225 3206 

F +61 2 6225 1206 

Alice McCormick 

Partner 

T +61 2 6225 3013 

F +61 2 6225 1013 

Anthony Segedin 

Consultant 

T +64 9 353 9924 

F +64 9 353 9701

Australian and New Zealand Retirement Villages ... - Minter Ellison

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