The retirement village industry in WA will be aware that a code of practice is prescribed in respect of retirement villages from time to time. Although the existence of such a code is expressly recognised in the Retirement Villages Act 1992 (WA), it is in fact prescribed under the Fair Trading Act 2010 (WA).
Until 30 September 2018, retirement villages were operating under the Interim Code of Fair Practice for Retirement Villages 2018. That code has now expired. The current code is now the Interim Code of Practice for Retirement Villages (No. 2) 2018 which has effect for the period of 6 months beginning on 1 October 2018.
The current code is set out in a schedule to the Fair Trading (Retirement Villages Interim Code) Regulations (No. 2) 2018. It is prescribed as an interim code under section 46(1) of the Fair Trading Act. The fact that it is an interim code means that the full procedures for a code of practice have not been followed or completed. As such, whilst a code of practice may ordinarily continue for a period of up to 3 years, an interim code of practice may have effect only for a period not exceeding 6 months. Hence, the current interim code of practice for retirement villages will be due for replacement again on 31 March 2019.
The current code applies to the administering body and a resident, a former resident or a prospective resident of a retirement village, whether or not the village was established before or after the commencement of the code.
Like codes before it, the current code must be complied with and is enforceable by the Commissioner in the State Administrative Tribunal under the Fair Trading Act. Where it appears to the Commissioner that a person has carried on business in contravention of a prescribed code of practice applicable to that person, the Commissioner may apply to the Tribunal for an order under section 47 of the Fair Trading Act.
Practical considerations for retirement village owners and administering bodies
Fortunately, the current code is almost identical to its predecessor. In addition to a new title, commencement date and expiry date, the changes are largely of a minor grammatical nature. That said, it is important to consult and adhere to the current code – especially as there are substantial differences between it and older codes from several years back.
Owners and administering bodies should consider whether their template / standard form residence contracts contain old code references, so that these can be updated prior to entering into new contracts going forward. Given the short lifespan of the current code, it may be worthwhile drafting amendments in a way that will accommodate future iterations of the code, come April 2019.
