New Interim Code
The Interim Code of Practice for Retirement Villages (No. 2) 2020 commenced on 1 October 2020. It is found in a schedule to the Fair Trading (Retirement Villages Interim Code) Regulations (No. 2) 2020 (WA).
The new Interim Code will apply for 6 months, expiring at the end of 31 March 2021.
What has changed?
Importantly, there is no substantive change between the content of the new Interim Code and its predecessor. Any changes are largely clerical or grammatical (e.g. in relation to titles, commencement and expiry dates).
Why only 6 months?
The new Interim Code continues a trend seen for several years now, whereby codes of practice relating to retirement villages have been prescribed under the Fair Trading Act 2010, for 6 months at a time. With each 6 monthly iteration there has in fact been little if anything by way of substantive change.
This approach to code-making can be understood by looking to the Fair Trading Act Part 4. Under the provisions of Part 4, the Commissioner for Consumer Protection prepares draft codes of practice for submission to the Minister. These codes of practice for fair dealing apply to various kinds of goods and services, and various particular persons and classes of suppliers and consumers. Retirement villages are just one of the industries in which fair trade is regulated via codes of practice.
Ordinarily, the making of a code of practice involves consultation and submissions from interested persons and organisations. Without limiting the potential scope of consultation, the Commissioner must consult with, and invite submissions from, ‘principal organisations’ representing suppliers and consumers that are likely to be affected: Fair Trading Act s 44. Regulations prescribing a new code of practice must then provide an expiry date not later than 3 years after commencement: Fair Trading Act s 45.
Interim codes of practice can be prescribed without following the prescribed consultation and submission processes, but may only have effect for a period not exceeding 6 months: Fair Trading Act s 46.
The new Interim Code is an interim code for the purpose of section 46 of the Fair Trading Act, hence its short lifespan.
Practical considerations
Like other codes before it, the new Interim Code must be complied with; because, if a person carries on business in contravention of a prescribed code of practice applying to them, the Commissioner can apply to the State Administrative Tribunal for an order requiring the person to comply with the code and rectify the consequence of the contravention of the code: Fair Trading Act s 42(2).
Fortunately, in practical terms, major adjustments or changes to established practices should probably not be necessary. This is because the new Interim Code’s content will already be familiar if previous codes have been duly followed.
Owners and operators should, however, consider whether their residence contracts, village rules and policies contain references to superseded codes, and update any such references accordingly. Given that interim codes do not apply for more than 6 months, it is worthwhile considering the use of wording that will not become outdated in the longer term.
Ongoing reforms
Of greater long term significance than the new Interim Code, is the ongoing legislative reform process being undertaken by the State Government.
Consultation Regulatory Impact Statement 3 (CRIS 3) – the third in a series of consultation papers[1] regarding the implementation of recommendations for reform of retirement villages legislation in WA – opened in March 2020 and closed 30 September 2020.
A final consultation paper is due to be released in 2021. But note that in light of the coronavirus (COVID-19) pandemic, the focus in recent months has been on the possibility of fast-tracking reforms that could have a positive impact on investment in the retirement village sector in WA.[2] According to Consumer Protection, no further consultation papers will be released until decisions have been made about fast-tracked reforms.
Retirement village owners and operators should follow updates as they come to hand, regarding any fast-tracking and the broader retirement village law reform process continuing into 2021.
If you seek assistance with rights and obligations under the Interim Code, or have questions about how any of the proposals for reform may affect you, we would be pleased to hear from you.
[1] CRIS 1 was released in August 2019. CRIS 2 was released in December 2019.
[2] To this end, Consumer Protection formed a working group of members from industry and resident peak bodies, and held a series of roundtable discussions in August to October 2020.
