Hostname: page-component-745bb68f8f-s22k5 Total loading time: 0 Render date: 2025-02-04T21:57:29.573Z Has data issue: false hasContentIssue false
  • English
  • Français

It's Time for Federal Regulation of Retirement Villages

Published online by Cambridge University Press:  01 January 2025

Paul Latimer
Paul Latimer*
Affiliation:
Swinburne Law School, Melbourne
Get access Rights & Permissions [Opens in a new window]

Abstract

As Australia's population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law.

This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

Type
Article
Information
Federal Law Review , Volume 45 , Issue 3 , September 2017 , pp. 469 - 493
Copyright
Copyright © 2017 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Acknowledgments to former corporate regulators Richard Cockburn, Michael Duffy, Andrew Serpell and Greg Tanzer for comments on an earlier draft of this article.

References

1 Australian Bureau of Statistics, 3222.0—Population Projections, Australia, 2012 (base) to 2101 (2 December 2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3222.0Main%20Features52012%20%28base%29%20to%202101?opendocument&tabname=Summary&prodno=3222.0&issue=2012%20%28base%29%20to%202101&num=&view>.

2 Productivity Commission, Caring for Older Australians, Productivity Commission Inquiry Report No 53 (2011) vol 2, 309.

3 Productivity Commission, Housing Decisions of Older Australians, Productivity Commission Research Paper (2015) 98, citing Property Council of Australia, Retirement Living and Grant Thornton, National Overview of the Retirement Village Sector, Prepared on behalf of the Property Council of Australia and the Retirement Living Council (2014) <http://www.retirementliving.org.au/wp-content/uploads/2015/03/National-overview-of-the-retirement-village-sector-Grant-Thornton.pdf>.

4 Michael, Barnett and Robert, Hayes, ‘Not Seen and Not Heard: Protecting Elder Human Rights in Aged Care’ (2010) 14 University of Western Sydney Law Review 45, 52Google Scholar.

5 This was the former co-operative scheme for companies and securities, as discussed below at Part V B.

6 Retirement villages as ‘prescribed interests’ are discussed below at Part V B.

7 As set out in n 35 below. For discussion of the relevant law, see, eg, Arthur Koumoukelis and Kimberley Vancuylenberg, Retirement Villages (Australian Encyclopaedia of Forms and Precedents, Lexisnexis online); Rodney, Lewis, Elder Law in Australia (LexisNexis Butterworths, 2nd ed, 2012)Google Scholar; Richard, McCullagh, Retirement Village Law in NSW (Thomson Reuters, 2013)Google Scholar; Arthur Koumoukelis, ‘A Guide to Aged Care and Retirement Villages in Australia’ (Discussion Paper, Gadens, 2014).

8 Options for accommodation for seniors are discussed by Lewis, above n 7, 10.1.

9 Many of the issues which affect retirement villages are common with Commonwealth regulated timeshares: Parliamentary Joint Committee on Corporations and Financial Services, Parliament of Australia, Timeshare: The Price of Leisure (2005).

10 This is more formally defined in, eg, Retirement Villages Act 1992 (WA) s 3 and the Retirement Villages Act 1999 (Qld) s 7.

11 See, eg, Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219, [76].

12 See, eg, ABC TV, ‘Bleed Them Dry Until They Die’, Four Corners, 26 June 2017 (Adele Ferguson, Klaus Toft, Lucy Carter) <http://www.abc.net.au/4corners/stories/2017/06/26/4689969.htm>.

13 Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Retirement Housing Sector (2017), which reported on the adequacy of consumer protection, dispute resolution procedures, fair pricing and consistent, simplified management standards.

14 Consumer Action Law Centre, Submission to Consumer Affairs Victoria, Review of Internal Dispute Resolution Processes Under the Retirement Villages Act 1986, 31 July 2017.

15 Consumer Affairs Victoria, Review of Internal Dispute Resolution Processes under the Retirement Villages Act 1986, Discussion Paper (2017).

16 Department of Commerce, Government of Western Australia, Statutory Review of Retirement Village Legislation, Final Report (2010). The Review resulted in new consumer protection reforms such as changes to the law on payments, the information in residence contracts, a new Code of Fair Practice for Retirement Villages 2015 (WA), new requirements relating to budgets, quarterly and annual financial reports, and two new disclosure statements to be given to prospective residents. The Report gave rise to the Retirement Villages Amendment Bill 2012 (WA), noted by Pnina Levine, ‘The Retirement Villages Amendment Bill 2012—An Improvement?’ (2013) 27(4) Australian Property Law Bulletin 61.

17 Office of Fair Trading, Queensland Government, Queensland Retirement Villages, Discussion Paper (2011) (the paper focused on the closure of villages, the timeframe for disclosure and the financial considerations). A review of the Retirement Villages Act 1999 (Qld) is part of the Queensland Government's Housing Strategy in 2017: Queensland Government, Department of Housing and Public Works, Review of the Retirement Villages Act 1999 (2016) http://www.hpw.qld.gov.au/Housing/IndustryRegulation/RetirementVillages/Pages/ReviewOfTheRetirementVillagesAct1999.aspx>.

18 Department of Human Services, Government of South Australia, Issues Associated with the Regulations under the Retirement Villages Act 1987, Discussion Paper (2011); Parliament of South Australia, Report of the Select Committee on a Review of the Retirement Villages Act 1987 (2013).

19 Major amendments to protect vulnerable consumers and to set out clear guidelines for operators were made by the Retirement Villages (Amendment) Act NSW (2008) (to make further provision regarding the rights and obligations of residents and retirement village operators, to establish a scheme for the enforcement of a resident's right to receive payment under a village contract).

20 Legal and Social Issues Committee, Parliament of Victoria, above n 13.

21 Justice and Community Safety Directorate, ACT Government, Review of the Retirement Villages Act 2012, Report (2017). The Review concluded that the legislation is generally operating effectively and meets the needs of operators and residents.

22 Law Commission, Retirement Villages, Report 57 (Wellington 1999) <http://www.nzlii.org/nz/other/nzlc/report/R57/R57.pdf>.

23 Australian Government, My Aged Care <http://www.myagedcare.gov.au>.

24 House of Representatives Standing Committee on Legal and Constitutional Affairs Committee, Parliament of Australia, Report into Older People and the Law (2007).

25 Ibid 214.

26 Ibid.

27 House of Representatives Standing Committee, above n 24, 226.

28 Productivity Commission, Caring for Older Australians, Productivity Commission Inquiry, Report (2011) vol 2, 321–2.

29 Ibid 275, 315, 321.

30 Ibid Recommendation 12.4, 315.

31 ABC TV, above n 12.

32 Ken Wyatt, Minister for Aged Care, Transcript of Interview on 6PR Mornings with Harvey Deegan, 11 July 2017 <http://www.health.gov.au/internet/ministers/publishing.nsf/Content/health-mediarel-yr2017-wyatt064.htm?OpenDocument&yr=2017&mth=07>.

33 ‘Groups Push For National Retirement Village Regulation’, Australian Ageing Agenda (online), 28 June 2017 <http://www.australianageingagenda.com.au/2017/06/28/groups-push-for-national-retirement-village-regulation>.

34 In its Final Report (Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131, (2017)), the Australian Law Reform Commission has recommended that the Commonwealth Government, in cooperation with state and territory governments, should develop a plan to combat elder abuse. There were no specific recommendations as to retirement villages. Importantly, the Report did include reference back to the recommendations of the House of Representatives, Report into Older People and the Law in 2007, above n 24.

35 Retirement Villages Act 2012 (ACT); Retirement Villages Act 1999 (NSW); Retirement Villages Act 1995 (NT); Retirement Villages Act 1999 (Qld); Retirement Villages Act 1987 (SA); Retirement Villages Act 2004 (Tas); Retirement Villages Act 1986 (Vic); Retirement Villages Act 1992 (WA). For the NSW Act, see, eg, Lewis, above n 7, 10.11–10.36. This legislation was passed to fill the gap after retirement villages were removed as prescribed interests from the Companies Act 1981 (Cth) and Codes, as discussed below at Part V B. The Retirement Villages Act 1986 (Vic) was a direct result of the collapse of the Baptist Church's retirement village at Frankston at year end 1985 as a result of an expansion program which saw the operator borrow too much with the prospect that retirees would be homeless at Christmas time as the bank foreclosed. (It turned out people lived longer in retirement villages and this contributed to the operator's business model not being profitable).

36 See, eg, Retirement Villages Code of Fair Practice (NT) Part 5 (Village management); Code of Fair Practice for Retirement Villages 2015 (WA), div 5 (Village management). The Retirement Villages Industry Code of Practice (1999), inserted under the then Fair Trading Regulations (Amendment) 1999 (ACT), was replaced by Retirement Villages Act 2012 (ACT).

37 See, eg, Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 at Part [168], noted by Levine, above n 16. Was variation a termination of the retirement village scheme? The case had 101 defendants.

38 Anthony, Segedin, ‘Retirement Villages Act 2003’ [2004] New Zealand Law Journal 102, 104Google Scholar.

39 Below at Part V B.

40 Paul, von Nessen, Sean, Robertson and Tim, Wiedman, A Practical Guide to Managed Investments (Lawbook Co, 3rd ed, 2008) 30–1Google Scholar.

41 A prominent early retirement village is Sun City, built in Arizona in 1960, and now accommodating 42 000 residents.

42 Australian Competition and Consumer Commission (ACCC), Retirement Homes <http://www.accc.gov.au/consumers/health-home-car/retirement-homes>. The ACCC's jurisdiction in consumer law and competition would not equip it to be the national regulator of retirement villages because it does not have jurisdiction in the regulation of financial services generally. This is the role for ASIC, as discussed below at Part IV C.

43 Andy Kollmorgen, ‘The Hidden Costs of Retirement Village Contracts—Don't Sign on the Dotted Line Until You Understand the Deal’, Choice Magazine (Marrickville, 4 August 2015) <https://www.choice.com.au/money/property/buying/articles/retirement-village-contracts>.

44 As recognised by the Productivity Commission, above n 28, 315.

45 Deferred management fee, discussed below at Part III C 3.

46 Village resident quoted by Adele Ferguson ‘Retirement Villagers Rebel Against Aveo’, The Sydney Morning Herald (Sydney, 3 August 2016) <http://www.smh.com.au/business/comment-and-analysis/retirement-villagers-rebel-against-aveo-group-20160802-gqjduz.html>.

47 Brian, Maher, ‘Retirement Villages and Aged Care Facilities’ (2003) 2 Elder Law Review 1Google Scholar.

48 See, eg, Retirement Villages Act 1999 (Qld) s 45 (Content of residence contract), augmented by prescribed details in the Retirement Villages Regulation 2010 (Qld) reg 3.

49 See, eg, Retirement Villages Regulation 2009 (NSW) sch 2 (Standard form of village contract), amended in 2013; Retirement Villages (Contractual Arrangements) Regulations 2013 (Vic).

50 Retirement Villages Act 1999 (Qld) ss 13 (What is a public information document), 74 (Form and content of public information document).

51 See, eg, Retirement Villages Code (WA), cl 23 (residence rules).

52 See, eg, Geoff Strong, Fighting Back (17 April 2012) The Sydney Morning Herald <http://www.smh.com.au/national/fighting-back-20120416-1x3k6.html>: ‘Retirement villages are becoming places of protest and agitation as residents object to confusing contracts, high management fees and exit costs.’.

53 Sullivan v Hamley Bridge District Senior Citizens’ Homes Inc [2016] SACAT 12 (resident permitted to keep pet dog in the unit).

54 Competition and Consumer Act 2010 (Cth), sch 2.

55 The equivalent section in the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act) s 12DA, administered by ASIC does not apply to retirement villages as it is limited to misleading or deceptive conduct with reference to financial services.

56 Competition and Consumer Act 2010 (Cth), sch 2 cl 18.

57 (2004) 216 CLR 388; earlier proceedings in Murphy and 112 Ors v Overton Investments Pty Limited [1998] NSWSC 425 noted by Betty Weule, ‘Retirement Village Torture’ (2000) 10(2) New Directions in Bankruptcy 10 (discussed representative example of Gladys v Overton Village)—Overton not precluded from recovering outgoings; case brought by the Aged-care Rights Service.

58 Unconscionable conduct is proscribed by the Competition and Consumer Act 2010 (Cth), sch 2 pt 2–2 and the ASIC Act ss 12CA–12CC, the latter only with reference to financial services.

59 Unfair contract terms are proscribed by the Competition and Consumer Act 2010 (Cth), sch 2 pt 2–3 and the ASIC Act ss 12BF–12BM, the latter only with reference to financial products and financial services. See, eg, Courtney, Wall, ‘Unfair Contract Terms Provisions: The Saviour of Retirees?’ (2012) 20 Competition and Consumer Law Journal 165Google Scholar; Paul, Latimer, ‘Protecting Consumers from Unfair Contract Terms: Australian Comparisons’ (2016) 44 Australian Business Law Review 274Google Scholar.

60 Competition and Consumer Act 2010 (Cth) s 131A.

61 See, eg, Pnina, Levine, ‘Security of Tenure for Retirement Village Residents in WA—Will the Law Walk the Walk or Just Talk the Talk?’ (2015) 40 University of Western Australia Law Review 436Google Scholar; Aviva Freilich, Pnina Levine, Benjamin Travia and Eileen Webb Security of Tenure for the Ageing Population of Western Australia—Does Current Housing Legislation in WA Support Seniors’ Ongoing Housing Needs? (November 2014) COTA Western Australia <http://www.cotawa.org.au/wp-content/uploads/2014/11/Housing-for-older-people-summary.pdf>.

62 Productivity Commission, above n 28, 317.

63 Advertisements in the US offer seniors accommodation in a non profit continuing care retirement community for example where ‘monthly fees start at $2251’.

64 Noelene Clements v ZW2 Pty Ltd t/as Lake Munmorah Residential Resort [2015] NSWCATCD 37 (proposed rent increase not excessive and in line with market rent).

65 Productivity Commission, above n 28, 317.

66 See, eg, Retirement Villages Act 1999 (Qld) pt 5 div 9 (Financial Accounts and Statements).

67 House of Representatives Standing Committee, above n 24.

68 Ibid 219, Recommendation 46.

69 Knowles and Freund v Wagga Road Road Properties Pty Ltd (Retirement Villages) [2010] NSWCTTT 269 (no refund from an aged care facility of incoming contribution under Retirement Village Act).

70 See, eg, Retirement Villages Code (WA) cl 11 (Before entering into a service contract).

71 See, eg, Retirement Villages Act 1992 (WA) s 3.

72 For example, the Retirement Village Act 1992 (WA) s 23 read with Retirement Villages Regulations 1992 (WA) reg 9 limit the liability of a former non-owner resident to pay recurrent charges. See, eg, Pnina, Levine, ‘Capping the Liability of Former Residents to Pay Recurrent Charges under the Retirement Villages Act 1992 (WA)—What is the Cap?’ (2014) 29(4) Australian Property Law Bulletin 62Google Scholar.

73 See, eg, Alloura Waters Retirement Village Residents Committee v Living Choice Australia Pty Ltd [2014] NSWCATCD 68 (whether items were recurrent charges or capital maintenance); The Residents Committee of the Landings v Sakkara Investment Holdings Pty Ltd [2015] NSWCATCD 113 (order for refund for overpayment of recurrent charges: $136 to be paid to each of the 220 eligible residents); Lynne Smith as executrix of the Estate of the late Melville John Jack v Village Projects Pty Ltd [2016] NSWCATCD 15.

74 For problems with rates, see, eg, Natalie Savino, Roxburgh Park Retirees Plead for 25% Rate Cut on Retirement Homes Across Hume (23 July 2014) Herald Sun <http://www.heraldsun.com.au/leader/north/roxburgh-park-retirees-plead-for-25-rate-cut-on-retirement-homes-across-hume/news-story/6be929532db9d3349ff5a1254364144c> (includes a picture of five residents holding a sign ‘UNFAIR RATES!!!’).

75 For example, s 4 of the Retirement Villages Act 1999 (NSW) defines ‘capital maintenance’ as works carried out for the purpose of repairing or maintaining an ‘item of capital’, which includes any building or structure, plant or machinery. Reg 4 of the Retirement Villages Regulations 2009 (NSW) includes fixtures, fittings, furnishings and non-fixed items like curtains and blinds as items of capital; also clarified in the Alloura case, above n 73.

76 See, eg, The Residents Committee, The Landings v Sakkara Investment Holdings Pty Ltd ATF Sakkara Landings Trust [2014] NSWCATCD 228, [37].

77 Productivity Commission, above n 28, 316.

78 See, eg, Executors of the Estate of the Late Joan Beatrice Aubrey v Deepwater Retirement Village Pty Ltd [2014] NSWCATCD 184; Dickins v Southern Cross Care (NSW & ACT) (Retirement Villages) [2016] ACAT 13.

79 See, eg, Retirement Villages Act 1999 (Qld) pt 5 div 3 (Capital improvement).

80 See, eg, Australian Retirement Homes No 2 Pty Ltd v The Residents of Aveo Minkara Resort (Retirement Villages) [2011] NSW CTTT 262 (adjustments to proposed expenditure); Pittwater Palms Management Pty Ltd (Applicant); The Residents Committee Pittwater Palms Management (Respondent) [2016] NSWCATCD 18 (proposed expenditure approved).

81 Alan Kohler, Retirement Village Rorts: The Booming Scandal (10 June 2014) The Drum, ABC <http://www.abc.net.au/news/2014-07-10/kohler-retirement-village-rorts:-the-booming-national-scandal/5584412>. See also Alan Kohler, Complex Contracts and the ‘Lifestyle Village’ Swindle (17 July 2014) The Drum, ABC <http://www.abc.net.au/news/2014-07-17/kohler-complex-contracts-and-the-’lifestyle-village’-swindle/5601198>. Cf Geoff Grady, ‘Australia Needs More New Retirement Homes But Who Will Build Them’, The Australian Financial Review, 26 July 2017.

82 DMF models vary. (1) There may be an accelerated DMF over say three years. (2) The DMF may be based on the per-year value of the unit, so, for example, if the DMF is 3% a year, the resident would pay back 15% of the sale price if they moved out after five years. (3) Under ‘The Aveo Way’, residents pay a 35% DMF in year one, 7% in year two and 14% in year 3: Villages.com.au, Aveo Launches ‘Game Changing’ Retirement Village Contract (13 May 2015) <www.villages.com.au/info-centre/post/retirement-villages/aveo-launches-game-changing-retirement-village-contract>. (4) The Productivity Commission, above n 28, 316, cited the case of an 81 year old who sold her retirement village unit for $380,000 but who was left with less than $70,000 from the sale after the operator deducted more than $300,000 in exit charges, including a DMF of more than $200,000.

83 Examples include arrears, and damage to the unit or to the property of another resident.

84 Under, eg, Retirement Villages Act 1999 (NSW), s 167 (Options): see, eg, Bondi Beach Astra Retirement Village v Hohman [2010] NSWCA 38, noted by Steve, Dejong, ‘Retirement Villages and Options to Purchase’ (2010) 84 Australian Law Journal 428Google Scholar (the option of the retirement village in the purchase contract to buy back the unit at $95k was not triggered and the estate of the former resident had the right to sell the unit at the then market value of $350,000).

85 See, eg, Retirement Villages Act 1999 (NSW), s 168 (Sale of premises). See, eg, Estate of Madeline Cozma v Milstern Retirement Living Pty Ltd [2016] NSWCATCD 56 (failure of retirement village to effectively market and promote the sale of the lease, engaged in conduct which inhibited the sale of the lease, retirement village ordered to reduce departure fee from 25% to 10% of the sale price plus GST); Retirement Villages Act 1999 (Qld), s 68(2) (Costs of selling).

86 Alan Kohler, above n 81.

87 See, eg, Code of Fair Practice for Retirement Villages (WA), above n 36, cl 21 (Marketing of residential premises).

88 Bina Brown, Retirement Living is No Simple Step (31 March 2012) The Australian Financial Review <http://www.afr.com/real-estate/residential/retirement-living-is-no-simple-step-20120330-j3787>.

89 For example, The Landings at Turramurra, NSW, was originally established by the RAAF Association as a not for profit organisation: The Residents Committee of the Landings v Sakkara Investment Holdings Pty Ltd [2015] NSWCATCD 113.

90 Retirement villages were not included in the National Partnership ‘seamless national economy’ reforms in 2008 which were led by the Rudd Commonwealth Government with the states and territories which resulted in inter alia the introduction of the national Australian Consumer Law (above n 47), business names, consumer credit and the national registration of personal property securities (PPS). Council of Australian Governments, National Partnership Agreement to Deliver a Seamless National Economy (2008); COAG, Report Card on the National Economy to Deliver a Seamless National Economy (2013).

91 Australia's former state and territory Companies Acts were made uniform under the Uniform Companies Acts which were passed by all jurisdictions between 1961 and 1963. These were replaced in 1981 by the co-operative scheme for the regulation of companies and the securities industry, which comprised inter alia the Companies Act 1981 (Cth) and State and the Northern Territory application legislation such as the Companies (Application of Laws) Acts which applied the Commonwealth legislation as local law. The scheme was supervised by the then MINCO and was administered by the first Commonwealth regulator, the National Companies and Securities Commission (NCSC, set up in 1979) and the local Corporate Affairs Commissions as its ‘delegates’. MINCO was established in 1990 by the Heads of Agreement between the Commonwealth Government, the States and the Northern Territory for direction and consideration of amendments to the then companies and securities legislation. As the source of legislation for the then co-operative scheme, MINCO was an extra-parliamentary body to which the Commonwealth Government had abdicated authority.

92 Lucy, Cradduck and Andrea, Blake, ‘Retirement Villages: Time for a Change?’ (2012) 3(8) Australia and New Zealand Property Journal 645Google Scholar <http://eprints.qut.edu.au/56643/3/56643.pdf>.

93 Richard, McCullagh, ‘Care in Australian Retirement Villages’ (2014) 8 Elder Law Review 1, 17Google Scholar.

94 ASIC provides user-friendly information for the over 55s including superannuation, retirement planning and aged care on its Moneysmart site <https://www.moneysmart.gov.au/life-events-and-you/over-55s>.

95 Because retirement villages are not financial products regulated by ASIC, the ACCC is the relevant Commonwealth consumer watchdog, in tandem with state and territory consumer affairs agencies.

96 This will require Commonweath government support. Will ASIC have the ‘capability’ to return to this area? See, eg, Australian Government, Fit for the Future—A Capability Review of the Australian Securities and Investments Commission, A Report to Government (December 2015) <http://www.treasury.gov.au/~/media/Treasury/Publications%20and%20Media/Publications/2016/Fit%20for%20the%20future/Downloads/PDF/ASIC-Capability-Review-Final-Report.ashx>.

97 Ian Yates quoted in Meredith Griffiths, ‘Ken Wyatt Promises Action on Regulating Retirement Villages after ‘Exploitation’ Exposed by Four Corners’, ABC News (online), 27 June 2017 <http://www.abc.net.au/news/2017-06-27/calls-for-tougher-laws-regulating-retirement-villages/8653314>.

98 See, eg, ASIC, ‘Retirement village director charged over $1.3 million theft’, (Media Release, 01/304, 23 August 2001); ASIC, ‘Retirement village director pleads guilty’, (Media Release, 02/23, 25 January 2002); ASIC, ‘Jail for retirement village director James Robb’, (Media Release, 02/145, 24 April 2002) (failure of retirement village director, registered owner and manager to refund licence fees to a number of deceased estates).

99 See, eg, ASIC, ‘Stop order lifted on Bridgewater Lake Estate’, (Media Release, 02/110, 28 March 2002). ASIC placed an interim stop order on an Offer Information Statement in an offer of shares in a project to develop a retirement village because it had concerns that investors were not given all the information they would need to make an informed investment decision. A month later the company lodged a replacement Offer Information Statement which addressed the concerns of ASIC.

100 See, eg, ASIC, ‘Unilink Village Toowoomba Ltd amends supplementary prospectus’, (Media Release, 01/082, 13 March 2001) (a second supplementary prospectus was lodged after ASIC action); ASIC, ‘ASIC lifts interim stops orders on fundraising documents of Perth companies’, (Media Release, 02/251, 12 July 2002).

101 See, eg, Australian Securities & Investments Commission v Primelife Corporation Ltd [2005] FCA 1229; Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) [2010] FCA 710.

102 Australian Securities and Investments Commission Act 2001 (Cth) pt 2 div 2.

103 Corporations Act 2001 (Cth) s 912A(1)(a).

104 Prime Trust is one of ASIC's Key Matters, with details at <http://asic.gov.au/about-asic/media-centre/key-matters/prime-trust/>. ASIC commenced its proceedings outside the limitations period of six years in the Corporations Act, so no reliance could be placed on conduct of the directors before this time to establish any breach of the law. The former chief executive was initially disqualified as a director in 1990, overturned on appeal: Lewski v Australian Securities & Investments Commission [2016] FCAFC 96. See, eg, Australian Securities and Investments Commission v Primelife Corporation Limited [2006] FCA 1072, citing ASIC, ‘Liquidator appointed to further unregistered retirement village investment scheme’, (Media Release, 06–344, 27 September 2006) where ASIC said it has now finalised 17 of the proceedings, involving the winding up of eight schemes. Background at Michael Wayne, Primelife (September 2006) <http://www.bmartin.cc/dissent/documents/health/Primelife.html>.

105 See, eg, Pat McGrath, ‘Consumers Rights Group Push for Ombudsman to Oversee Retirement Village Sector’, ABC News (online), 1 September 2015 <http://www.abc.net.au/news/2015-09-01/push-for-retirement-village-sector-ombudsman/6741438?pfmredir=sm>.

106 There is no jurisdiction in the state and territory legislation for a court or tribunal to resolve disputes among retirement village residents: John Murphy v Office Holders of Vaughan Village Residents Association [2015] NSWCATCD 45.

107 The Residents Committee, The Landings v Sakkara Investment Holdings Pty Ltd ATF Sakkara Landings Trust [2014] NSWCATCD 228 (operator to pay residents $55,000, being 85% of the costs of the residents, within 28 days).

108 See, eg, Retirement Villages Act 1992 (WA) pt 4 (Resolution of disputes).

109 Corporations Act 2001 (Cth) s 912A(2). Equally, product issuers must meet dispute resolution requirements under s 1017G. See, eg, ASIC, ‘Dispute Resolution’; ASIC, Approval and Oversight of External Dispute Resolution Schemes (13 June 2013), RG 139.

110 See, eg, Anita Stuhmcke, ‘Australian Ombudsmen: A Call to Take Care’ (2016) 44(3) Federal Law Review 531 (no uniform model of Ombudsmen, new models, what is the Ombudsman brand).

111 Legal and Social Issues Committee, above n 13.

112 As recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 24, para 7.76, Recommendation 47.

113 See, eg, Margaret Burien, ‘Calls for Trip Advisor-style Platform to Measure Quality in Australian Aged Care’, ABC News (online), 11 May 2016 <http://www.abc.net.au/news/2016-05-11/dementia-aged-care-advocates-want-trip-advisor-style-platform/7391906>.

114 Care Opinion Australia <https://www.careopinion.org.au/opinions?nacs=HOS_CH_3186>.

115 Lifemark is based on standards including lifestyle, support and people: Retirement Living Council of Australia, Lifemark Village Scheme Standards (2013) 1.

116 See, eg, Steve Collier, Pros & Cons: Trip Advisor-style Platform for Informing Consumers on Aged Care Quality Aged Care Guide <https://www.agedcareguide.com.au/talking-aged-care/the-pros-and-cons-of-a-consumer-platform-rating-aged-care-quality>.

117 Contained in Fair Trading (Retirement Villages Code) Regulations 2015 (WA) sch 1 and in Retirement Villages Regulations 1995 (NT) sch 2, above n 36.

118 Corporations Act 2001 (Cth) s 1101A (Approved codes of conduct); ASIC, Approval of Financial Services Sector Codes of Conduct (1 March 2013), RG 183.

119 The ePayments Code (2011), administered by ASIC, replaced the Electronic Funds Code of Conduct (1986) originally prepared by the Commonwealth Treasury.

120 Compare the codes of conduct under the Competition and Consumer Act 2010 (Cth) pt IVB, approved by and administered by the ACCC; discussed by, eg, Paul, Latimer, Australian Business Law (Oxford University Press, 35th ed, 2016) [7–500]Google Scholar.

121 The Franchising Code of Conduct, the Horticulture Code of Conduct, the Oilcode and the Unit Pricing Code.

122 See, eg, CCH, Australian Competition and Consumer Law Commentary, online, [27–760].

123 Malcolm Rodgers, then ASIC Executive Director, Regulation, cited in Timeshare: The Price of Leisure, above n 9, 20.

124 The former definition of ‘prescribed interest’ can be traced back to the concept of an ‘interest’ ‘to participate in any profits assets or realization of any financial or business undertaking or scheme’ in s 10 of the Companies Act 1955 (Vic). This was the result of a recommendation of the Statute Law Revision Committee of the Victorian Parliament, Report from the Statute Law Revision Committee on Amendments of the Statute Law to Deal with Fraudulent Practices by Persons Interested in the Promotion and/or Direction of Companies and by Firms: together with minutes of evidence and appendices (Government Printer, 1954). The definition was carried forward in s 76 of the Companies Act 1961 (Vic) and equivalents in all states and territories, which was added by amendment in 1971. Investing in an ‘interest’ had a clear investment sense, as an ‘interest’ was defined to mean any right to participate in ‘any financial or business undertaking’ (para (a)), or in any ‘investment contract’ (para (c)).

125 Law Reform Commission and Company and Securities Advisory Committee, Collective Investments: Other People's Money, Report 65 (1993) 21.

126 NCSC, Release 119 Companies Act and Codes: Sections 168 and 170—Retirement Villages (30 March 1984), set out in National Companies and Securities Commission, Fifth Annual Report and Financial Statements 1 July 1983 to 30 June 1984 (Canberra, 1984) 75. The power of the NCSC to exempt a person from compliance with the Act was added to the Companies Act 1981 (Cth) as s 215C by Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth) s 68. See, eg, Stephen Bottomley, ‘The Notional Regulator: the Australian Securities and Investments Commission's Role as a Law-Maker’ (2011) 39 Federal Law Review 1, 14. Further amendment by the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 (Cth) added s 215D, in force from 1 July 1987, which excluded retirement village schemes from the fund raising provisions of the then Companies Act and Codes. At the same time, the definition of ‘security’ in the Securities Industry Act 1981 (Cth) and Codes excluded retirement villages generally. In the words of the Companies and Securities Law Reform Committee (CASAC), Prescribed Interests, Report to the Ministerial Council (1988) 48, ‘(t)he Committee's only comment about this exclusion is to question why the exclusion for the purposes of the Companies Act should not give an exclusion for the purposes of that Act generally’. The exclusion of retirement villages was later carried forward by former reg 7.12.04(a) of the Corporations Regulations 1990 (Cth). The report Other People's Money, above n 125, 19, did note that the fund raising schemes and other arrangements which had been excluded under the Corporations Regulations, such as retirement villages, had been made under an ‘ad hoc basis’.

127 NCSC, Sixth Annual Report and Financial Statements 1 July 1984 to 30 June 1986 (1986) 22.

128 By the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985 (Cth). There was little debate in the parliament about the removal of retirement villages from the then Companies Act. Senator Durack, Leader of the Opposition in the Senate, supported the removal of retirement villages from ‘this scheme’ (Commonwealth, Parliamentary Debates, Senate, 6 December 1985, 3140–1). He was critical of the effect of the guillotine (the time limit supported by the House) which had limited debate in the House of Representatives to 45 minutes, and was critical that legislation of such magnitude and complexity had not been debated in full. Senator Durack stated that even though the amendments had been agreed to by MINCO, the parliament could have sent them back and MINCO would have accepted the view of the Parliament. (Commonwealth, Parliamentary Debates, Senate, 6 December 1985, 3138). Senator Janine Haines of the then Australian Democrats stated that the only regulation for retirement villages should be limited to that of the conduct of any predatory companies operating retirement villages (Commonwealth, Parliamentary Debates, Senate, 6 December 1985, 3142).

129 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1985, 3402 (Robert Chynoweth, ALP).

130 Commonwealth, Parliament Debates, House of Representatives, 11 October 1985, 1922 (Lionel Bowen); Explanatory Memorandum, Companies and Securities Legislation (Miscellaneous Amendments) 1985, [18]. In the interim period pending commencement of the amendments, the NCSC delegated all its powers concerning retirement villages to the state and territory Corporate Affairs Commissions for administration under state and territory laws.

131 ASIC, Licensing: Financial Product Advice and Dealing (June 2016), RG 36; ASIC, Giving information, general advice and scaled advice (12 December 2012), RG 244.

132 Corporations Act 2001 (Cth) pt 7.6 (Licensing of providers of financial services), and in particular s 912A.

133 Corporations Act 2001 (Cth) pt 7.7 (Financial services disclosure).

134 ASIC, Conflicted remuneration (4 March 2013), RG 246.

135 ASIC, Disclosure: Product Disclosure Statements (and other disclosure obligations) (28 October 2011) RG 168; ASIC, Facilitating digital financial services disclosures (29 March 2016), RG221; ASIC, Licensing—Financial product advisers—conduct and disclosure (3 October 2013), RG 175; ASIC, Facilitating digital financial services disclosure (29 March 2016), RG 221.

136 House of Representatives Standing Committee on Legal and Constitutional Affairs Committee, Report into Older People and the Law, 2007, above n 24, 213.

137 Productivity Commission, above n 28.