The table below sets out the RLCA’s full position on the review findings and recommendations, including the RLCA view and supporting comments.
Section | Line | Reviewer recommendation | RLCA view | RLCA view |
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| Position | Comments |
7 | 45 | The Code Administrator is only one of a number of complaint avenues available to a Retirement Community resident, as the following graphic developed by the ACT Retirement Village Residents Association demonstrates. | Agrees | The Code Administrator is one of several complaint and dispute-resolution pathways available to residents |
7 | 46 | Of course, the options will vary according to the State/Territory and the operator. | Agrees | Available pathways vary by jurisdiction and by operator |
7 | 47 | The Code Administrator/ Panel is, in our view, a significantly under used avenue for residents in disagreement with their Retirement Community operators. We acknowledge that the operators in the sector have voluntarily created the Code and the Administrator / Code panel mechanism, and genuinely believe that the incidence of resident complaints is actually low (rather than not reported) when considered in the context of quite positive resident feedback to satisfaction surveys. | Acknowledges | RLCA notes the importance of ensuring residents are aware of the Code Administrator pathway and understands the review’s observation regarding current levels of use
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7 | 48 | In our experience of consumer complaint-handling in multiple sectors, this is not a safe assumption. There are a number of factors present in this sector that will almost certainly be reducing the number of complaints being made to anyone – let alone coming to the Code Administrator. | RLCA recognises the theoretical risk of under-reporting, which exists across all consumer sectors | RLCA recognises that complaint volumes can be influenced by multiple factors and supports measures to improve awareness and accessibility of complaint and escalation pathways |
7 | 49 | Even if we assume that escalated complaints are freely being raised, our estimate is that between 500 and 1000 retirement village complaints are escalated to other bodies annually (see the table below). Given that around 45% of independent living units are covered by the Code, the fact that only a dozen or so matters make it to the Administrator or Panel each year clearly suggests that it this path is either not known or is not seen as effective. | RLCA notes the estimate of 500–1000 escalated complaints annually
| Even if accepted, this represents a small proportion of an estimated resident population of approximately 250,000. The review’s observation that relatively few matters are raised with the Code Administrator suggests a need to strengthen awareness, clarity of scope, and accessibility of the pathway
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7 | 50 | In some states and territories, the Fair Trading bodies are more proactive and responsive to individual complaints and prepared to assist with conciliating a resident’s dispute with an operator. In others, they are not resourced for this, only individually assisting vulnerable consumers, and in some, the only viable option for a complaint that the operator has not resolved is to go to the Administrative Appeals Tribunal – a too-daunting prospect for almost everyone we spoke to | Agrees | The responsiveness and resourcing of Fair Trading and equivalent bodies varies significantly across jurisdictions |
7 | 51 | Finally, it was evident to us that the Code is not being talked about, nor promoted in most of the villages we visited. So, we are not surprised that the matters coming to the Code Administrator are low in number. | Acknowledges | The revised Code should include clearer expectations and guidance on how signatories promote Code awareness at village level |
7 | 52 | We think that the industry’s commitment to continuous improvement, and its reputation, would be well served by clearer pathways for residents and some more assistance to resolve disputes | Agrees in principle | Clearer pathways and appropriate assistance can support consistent handling of issues and improved understanding of available options |
7 | 53 | Our view is that it is far better for the industry reputation for integrity to be welcoming complaints and actively seeking to resolve them than it is to be leaving residents to go to government regulators | Agrees | Government regulators have a legitimate role, including where matters fall outside the scope of the Code or where statutory powers are required |
8 | 54 | While the Code was a positive initiative by the sector, in the time that has elapsed since it was established, we found that the Code is generally no longer seen by stakeholders as doing enough to promote and protect the interests of current and future residents, as per Code Objective 1 | Accepts
| Stakeholder feedback indicates that the current Code could be clearer about its purpose and practical operation for residents
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8 | 55 | In the context of already comprehensive, albeit uneven government regulation, it is not currently clear to the stakeholders we spoke with what value the Code commitments are adding for current (or future) residents. This is particularly the case for Code commitments that are expressed as a requirement to have policies and procedures, rather than as outcome-focused obligations | Agrees | Where Code commitments closely replicate legislative procedural requirements, the role of the Code is clearer when it focuses on principles, expectations of conduct and resident outcomes |
8 | 56 | While most stakeholders see an important role for an industry commitment to high standards (in addition to government-imposed regulation) and would like to see improvement, it is not clear to us as Reviewers that this would be achieved through simply refining, toughening or adding to current Code obligations. We think a fresh approach may be needed. | Agrees |
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8 | 57 |
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8 | 58 | From our investigation, there is evidence that the Code has had some impact on standards and signatories are recognised by regulators as typically being the better, higher standard operators. | Notes | RLCA notes the review’s observation that the Code has had an impact on standards. RLCA also notes that the review’s findings are based on stakeholder consultation and analysis, and were not an investigative audit |
8 | 59 | That said, the compliance monitoring of the Code has not been seen as having had the impact that it was expected to have had. | Agrees | The review suggests compliance monitoring has not had the impact originally expected and should be reconsidered in the revised framework
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8 | 60 | We consider that going forward, compliance reviews or other proactive, continuous improvement work should be undertaken so as to ensure Code Signatories can demonstrate high and consistent standards, as per Code Objective 2 and this should be adequately resourced and more effort made to publicise. | Agrees in principle | Any future framework should consider including appropriately resourced compliance and continuous-improvement activity, supported by greater visibility |
8 | 61 | Whilst industry surveys suggest a generally good level of trust and confidence in the sector, we found that this is mostly derived from the individual reputations and track record of Retirement Community operators rather than Code subscription being seen as a marker of quality, as per Code Objective 3. | Acknowledges | Lower Code uptake reduces the extent to which Code subscription is used by stakeholders as an indicator in decision-making |
8 | 62 | The strongest supporters of the Code have also been the most disappointed in the lower than hoped for take up. While the fact that many of the signatories are the larger operators (which is why the relatively low number of operators that are signatories result in 35% of villages and 45% of ILUs operating under the Code), this has not been sufficient so far to establish the desired presence in the sector. | Notes | RLCA notes that Code subscription has been relatively stable over time and continues to apply to a substantial proportion of independent living units nationally |
8 | 63 | We also found from our village visits and interviews that the Code is not being sufficiently promoted by Code Signatories, notwithstanding Code obligations to make residents and stakeholders aware of the Code, to display their Code Compliance certificate prominently and to make the Code available on their website | Agrees | The review identifies opportunities to strengthen and standardise how signatories promote and make the Code available to residents |
8 | 64 | In addition, the work that the Code Administrator and Panel have been able to do has had limited impact because it has lacked visibility | Agrees
| The review identifies scope to improve visibility and understanding of the Administrator and Panel functions
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8 | 65 | A greater and more coordinated effort is needed to achieve the level of promotion and recognition that Objective 3 calls for – and that will deliver the credibility for the Code that the RLC has aimed for and that it needs | Agrees | A more coordinated approach to promotion and recognition is required to improve awareness and understanding of the Code |
8 | 66 | While internal complaints handling is in place in villages and within operator structures, we found that the Code has not been able to establish a clear framework that assists with the external resolution of complaints, as per Code Objective 4. | Accepts
| RLCA supports clarifying the scope and process of the Administrator and Panel functions, including how matters may be referred or escalated
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8 | 67 | Against a background of what we think is limited numbers of complaints to any of the various avenues listed on the previous page, it seems that almost no residents take their complaints to the Code Administrator/ Panel. This may be in part explainable because the Code Administrator/ Panel’s principal role is to assess whether a breach has occurred, not to resolve disputes, however we do not think that is at the forefront of a resident’s thinking when deciding not to escalate a complaint | Agrees |
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8 | 68 | The industry is only one player in the system of protecting consumers in this space and it is not solely responsible for the lack of clarity about multiple pathways for resolution. We also understand that there is some risk many smaller, lesser resourced operators will struggle to afford a more robust system | Agrees | Clear information about pathways requires coordination between industry and government mechanisms. RLCA also notes that cost and capacity considerations are particularly relevant for smaller operators when designing any expanded functions |
8 | 69 | That said, we think that this is an area where a re-imagined Code and a more proactive and resourced Administrator / Panel function could add significant value (without trying to capture every matter of disagreement in the entire sector) | Agrees in principle | A revised Code and a more proactive Administrator role may assist residents and signatories, provided the scope is clearly defined and proportionate |
8 | 70 | We found that the Code has not been formally recognized or adopted by regulators, as per Code Objective 5, although we are aware that some regulators have taken the Code into account in considering new regulation. Instead, State and ACT legislation has continued to evolve. Whilst the various jurisdictions address a similar basket of issues, there are myriad differences at a detail level, creating complexities and costs for multi-State operators | Agrees | The Code is a voluntary instrument and operates alongside state and territory legislation. Jurisdictional variation continues to create complexity for multi-State operators |
8 | 71 | We also note that the role and resourcing for the Code Panel was established within a framework that included the operator Accreditation program. That program’s closure suggests to us that going forward, some strengthening of the role and desired impact of the Code Panel is needed | Agrees | The cessation of the accreditation program indicates that the intended role, resourcing and impact of the Code Panel should be reconsidered. RLCA also notes that some jurisdictions have adopted mandated professional training requirements |
8 | 72 | As touched on above, we support the idea of an industry Code complementing government regulatory arrangements, but we think that the complexity of adapting self-regulatory Code obligations to the contours of seven different (and constantly evolving) government regimes is too difficult | Agrees | Adapting a voluntary Code to seven evolving legislative regimes is challenging |
8 | 73 | We think that the industry needs a strong commitment to high standards, in its own ‘voice’, that is cognisant of government regulation but with a clearer differentiation and some ‘air space’ between it and that regulation | Agrees | Any future Code should clearly differentiate itself from legislation and articulate industry standards in its own voice |
9 | 74 | We do not think that the Code initiative should be seen as a failure. It was and in our view, continues to be, a worthwhile, needed element for the retirement communities of Australia. Some things have worked well, some things not so well. The environment, in particular government regulation, has changed significantly since the Code was established. Our experience is that all self-regulatory Codes go through these stages and adapt according to what has worked and what has changed | Agrees | RLCA notes the review’s view that the Code remains relevant but requires revision to reflect changes in the operating and regulatory environment |
9 | 75 | In view of the widespread support for the concept of an industry Code, and the achievements in adoption to date, we think that the RLCA should continue with the Code initiative. The Code’s aim of helping operators to provide a trustworthy and high quality service for those living in and those considering moving to a Retirement Community remains just as relevant and important today as in 2020 when the Code first commenced. | Agrees | RLCA agrees the Code initiative should continue and that the Code remains relevant |
9 | 76 | We think that the Code needs a major re-think and re-write for the context in which it now exists | Agrees | The Code requires a comprehensive update to reflect the current operating and regulatory environment |
9 | 77 | However, as suggested by the regulators with whom we spoke, the fundamentals need re-consideration. Questions include: a. What should the Code’s role and focus be? | Agrees | The review identifies key design questions for the next version of the Code, including role, drafting approach, uptake and the appropriate functions of the Administrator and Panel |
10 | 78 | We think that the Code is a critical element of the future of the retirement living sector, however we don’t think it should continue in its current conception and should be rewritten as a shorter, more resident-centric, principles-based and outcome-oriented set of commitments | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 79 | Commitments should continue to span the journey of a resident from buying into a Retirement Community, living in a Retirement Community and exiting a Retirement Community. But the commitments should be expressed as high level statements of principle that are outcomes focused. (This drafting approach would recognise that legislation sets out extensive procedural detail that does not need to be duplicated.) | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 80 | A couple of industry submissions in response to our Consultation Paper expressed support for more outcomes-focused commitments | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 81 | The commitments should be written in a plain English, non-legalistic style. This would make the Code much easier for residents to read and use. | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 82 | The Code should speak more directly to residents e.g., “we will keep the premises well maintained and safe for you”. The Background section of the Code should be made more succinct and resident (rather than industry) focused | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 83 | As most industry submissions to our Consultation Paper proposed, the Code commitments should apply to all Retirement Communities operated by the Code Signatory (with a 6-to-12-month grace period where new premises are acquired to allow time for compliance practices to be put in place). | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 84 | By way of indicative example, we have set out on the next page the commitments that we recommend become the core of the rewritten Code. If other commitments in the current version of the Code are viewed as adding to (not merely repeating) legislative protections available to residents, these could also be included | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 85 | Where the need is established, the core Code commitments could be expanded upon or added to by one or more supplementary sections. But this should only happen where the RLC identifies a gap in the legislative framework | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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10 | 86 | We also envisage that the Code would be supplemented by guidance material that provides an explanation of what good practice entails. This could take the form of guidelines, case studies, template documents – developed progressively as needed (discussed further in Part 11 of our Report). | RLCA agrees with the proposed direction toward a shorter, principles-based, resident-centric and outcomes-focused Code, supported by supplementary guidance where genuine legislative gaps exist |
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11 |
| Illustrative Code commitments, examples | RLCA acknowledges this feedback |
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12 | 87 | We think that within the proposed future framework, the Code Administrator/ Panel should be empowered and adequately resourced to undertake effective monitoring of the Code, to better support the interests of residents and to enhance the Code’s credibility | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 88 | That monitoring should be undertaken with a primary focus on promoting best practice and assisting Code Signatories to continuously improve. This would be consistent with the approach taken by many modern code compliance committees – e.g., Banking Code Compliance Committee and General Insurance Code Compliance Committee. As for those committees, compliance and discipline powers should, however, be retained (see paragraph 98) | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 89 | This broader monitoring role should be facilitated by enhancements to annual compliance statements (whilst still ensuring the statement is not too onerous) to make them less ‘tick-a-box’ and active review of these to identify those who need help to lift their practices. This was something that was supported by 7 of the industry submissions responding to our Consultation Paper | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 90 | The Code Administrator/ Panel’s monitoring role should also include undertaking ‘own motion’ projects (examination of cross-sector practices with a view to publicising and promoting best practice initiatives to lift industry standards generally) – something raised as an improvement opportunity in one industry submission | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 91 | The Code Administrator/ Panel’s role should include developing and approving more industry guidance and resources to detail and promote best practice compliance and assist Code Signatories to meet their compliance obligations | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 92 | Industry representatives could be brought together to help with this work, in particular the development of model policies, procedures and templates. Some industry responses to our Consultation Paper referred to the benefits of resources of these kind, which we think would be particularly useful for smaller Code Signatories and could serve as an incentive for them to subscribe to the Code | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 93 | The Code Administrator should also continue to produce webinars to promote best practice compliance (as per current practice). | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 94 | We think that the Code Administrator/ Panel should more frequently and publicly play an active role in assisting residents with finding the best path to take to resolve a complaint that they have been unable to resolve with their Code Signatory | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 95 | In the first instance, the Administrator should provide information and advice for residents on how to approach their operator with a complaint. The information should go on to provide clear ‘mapping’ information for each state or territory on the options for a resident to escalate the complaint if not satisfied with the operator’s response | RLCA agrees in principle | A future framework should consider monitoring, guidance, education and visibility, with an emphasis on supporting compliance and continuous improvement |
12 | 96 | Depending on the circumstances, this could range from assistance with escalation within an operator’s management, to guidance on taking the issue to a government regulator or tribunal and where appropriate and efficient, the Code Administrator should be able to directly assist the resident with their complaint. This would be particularly helpful where a complaint raises a systemic issue for the Retirement Community | RLCA supports the Administrator playing a stronger guidance and navigation role for residents, including helping identify appropriate escalation pathways and systemic issues | RLCA does not support the Administrator assuming a primary dispute-resolution or conciliation role |
12 | 97 | As for all complaint processes, there should be discretions to not handle a complaint where the complaint is (e.g.,) vexatious or without merit or there is a more appropriate forum for the resolution of the complaint – e.g., where there is a legal dispute about a contract). | Agrees | An Administrator should have discretion to manage matters that are outside scope, duplicative, or better addressed through a statutory pathway, with clear criteria and transparency about how decisions are made |
12 | 98 | We recognise that this would result in higher Code administration costs. However, interviewed residents committees affirmed how much they would value this. To our mind, this could operate as a clear and tangible differentiator of an operator that has taken the step of subscribing to the Code and an operator that has not taken this step | RLCA acknowledges that enhanced functions would increase costs and that any expansion must be clearly justified by resident benefit |
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12 | 99 | While we think that a conciliation approach will continue to be the most effective, ultimately, for the credibility of the process, we think the Administrator or Code Panel should have the power to determine matters or direct an signatory operator to resolve a matter | RLCA does not support introducing a conciliation or determinative dispute-resolution role for the Administrator or Panel
| Such functions would duplicate statutory mechanisms, blur the boundary between self-regulation and regulation, and introduce unnecessary duplication, unclear role boundaries, procedural complexity, additional cost, and legal risk
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12 | 100 | To address the issue raised by one industry submission to our Consultation Paper (see quote below), the conciliation process should include a clear feedback mechanism to the resident making the complaint | RLCA does not support introducing a conciliation or determinative dispute-resolution role for the Administrator or Panel
| Such functions would duplicate statutory mechanisms, blur the boundary between self-regulation and regulation, and introduce unnecessary duplication, unclear role boundaries, procedural complexity, additional cost, and legal risk
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12 | 101 | The complaints role should include regular public reporting of complaint outcomes (on an anonymised basis). | Agrees | Anonymised public reporting would support transparency |
12 | 102 | The Panel should continue to have a disciplinary role, with the power to remove a Code Signatory from the register (and, as appropriate, to publicly report this, naming the Code Signatory) in the event of egregious conduct or failure to work with the Code Administrator/ Panel to lift their practices where this is required | RLCA agrees that disciplinary powers, including removal from the register in serious cases, should be retained with appropriate due process |
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12 | 103 | Whilst a last resort, as noted in one industry submission to our Consultation Paper, this power is needed to counter some perceptions that the Code is weak. This power should, however, only be exercised after due process being afforded to the Code Signatory | RLCA agrees that disciplinary powers, including removal from the register in serious cases, should be retained with appropriate due process |
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12 | 104 | In general, the Code Panel needs to be able to be flexible in its consideration of matters, in its responses and in any penalties applied for breaches of the Code. To that end, we think that the current breach matrix should be abolished. While the Panel should be able to require remediation, we are not proposing that the Panel should have the power to impose fines. | RLCA agrees on the need for flexibility but notes that whether the breach matrix should be abolished or redesigned requires Board consideration |
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13 | 105 | A re-launch of the Code will not be enough by itself. It will only be successful if the benefits of the Code are clear to both Retirement Community operators (so they are motivated to subscribe to the Code) and to residents and their families (so they want to choose a Retirement Community that has the benefit of the Code). The diagram sets out the prerequisites that we think would have to be met to achieve this | Agrees | Implementation will require clear communication of the Code’s purpose, scope and operation to operators, residents and families |