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Resorts and Other Legislation Amendment Bill 2008
Resorts and Other Legislation
Amendment Bill 2008
Explanatory Notes
Introduction
The Resorts and Other Legislation Amendment Bill 2008 (the Bill)
provides interim measures to address pressing equity and procedural issues
as part of broader reforms to modernise the governance and development of
the six resorts in Queensland governed by the Sanctuary Cove Resort
Development Act 1985 (SCRA) and the Integrated Resort Development Act
1987 (IRDA).
While considered best practice at inception, the SCRA and the IRDA no
longer reflect contemporary best practice planning or bodies corporate
management. The current resorts regime pre-dates the Integrated Planning
Act 1997 (IPA) and the Body Corporate and Community Management Act
1997 (BCCMA) by 20 years and has not been significantly amended in that
time.
The Bill provides relief on a number of equity issues important to residents
in the short term, such as representation on bodies corporate, provisions for
financial disclosure, disputes resolution and proxy use. The Bill also
addresses procedural issues, such as improved consistency in address
management, an administrative process to amend land uses in the SCRA
and certain minor boundary realignments under the IRDA to allow for
improved planning outcomes and land use.
Short Title of the Bill
The short title of the Bill is the Resorts and Other Legislation Amendment
Bill 2008.
Objectives of the Bill
The policy objective of the Bill is to address immediate equity and
procedural issues in the resorts legislation and related Acts, while
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Resorts and Other Legislation Amendment Bill 2008
introducing the resort communities to the concepts underlying a broader
reform.
The Bill will:
· in both the SCRA and the IRDA, include provisions to improve
transparency and equity in the conduct of the bodies corporate
including body corporate representation, use of proxies, dispute
resolution, limits on the length of body corporate management
contracts and financial disclosure.
· include provision in the SCRA of a process, similar to the process
already existing in IRDA, that will allow for amendment of land uses
to modernise uses established 22 years ago, and facilitate scheme
amendment without the need for legislative amendment
· in the IRDA, enable limited site boundary adjustment, to facilitate
minor boundary realignments between resort land and adjacent sites
to achieve improved planning outcomes
· in the SCRA, the IRDA and the Mixed Use Development Act 1993
(MUDA), include provisions for the developer to submit an address
plan with the relevant local government authority for new
developments (e.g. subdivision) and changes to addressing.
Policy rationale
Resort legislation (SCRA and IRDA) pre-dates the IPA by 20 years and has
not been significantly amended in that time. The regime for resort
development established under the SCRA and the IRDA no longer reflects
contemporary best practice planning.
While considered best practice at the time of its inception, this legislative
framework complicates planning and development issues with competing
rights and multiple interests established under the body corporate structure.
Under this framework, management of resorts is complex and based on an
outdated, multi-layered bodies corporate structure which has resulted in a
range of inequities for resort residents, including lack of representation on
bodies corporate and dispute resolution processes. Issues arising in resort
jurisdictions are often detailed and involved, requiring considerable
negotiation and time to resolve both planning and body corporate matters.
As an early response to address a range of complex issues which arise
under the resort development framework, the Bill aims to provide relief
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Resorts and Other Legislation Amendment Bill 2008
regarding a range of pressing equity issues for resort residents, and
facilitate improved planning and development outcomes in the short term
while work continues on moving the management and development of
resorts into more contemporary frameworks.
The Bill also provides an opportunity to consider address management at
resorts and other mixed use developments. There are no formal or
standardised addressing processes for development occurring under the
IRDA, SCRA and MUDA. The Bill will require submission of address
management plans when lodging subdivision applications to the relevant
local government for approval. This ensures new developments at resorts
conform with addressing standards of the relevant local government.
How objectives are achieved
The Bill achieves the objectives by:
1. Providing for more equitable and transparent bodies corporate
conduct, including contemporary requirements for representation on
bodies corporate, financial disclosure, proxy use, limits on the term of
body corporate management contracts and disputes resolution
modelled on provisions in the BCCMA.
2. Providing an administrative process to amend the land uses outlined in
the SCRA using a process similar to that already existing in IRDA, to
allow for modernisation of land uses established 22 years ago and
facilitate scheme changes without the need for legislative amendment.
3. Providing a specific limited power for minor amendments to resort
site boundaries to facilitate improved planning outcomes.
4. Amendment of the relevant acts to require submission of address
management plans to achieve consistent address management.
Alternative method of achieving the policy objectives
An interim phase towards modernisation of the SCRA and IRDA was
preferred to provide early relief on pressing equity and procedural matters
which could easily be addressed; while ensuring thorough consideration
and appropriate resolution of the more time-consuming and complex
matters of modernisation, which requires consultation with stakeholders
over a longer term.
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Resorts and Other Legislation Amendment Bill 2008
Estimated cost for Government implementation
There will be minor administrative costs to Government associated with the
Bill, including potentially those incurred to provide appropriate
consideration and processing of potential applications to amend site
boundaries and land uses.
Consistency with Fundamental Legislative Principles
The Bill has been drafted with regard to fundamental legislative principles
as defined in section 4 of the Legislative Standards Act 1992. However,
there are no fundamental legislative principles identified with the proposed
Bill.
Consultation
Developers, managers, residents and owners of the resorts under the IRDA
and the SCRA, have been invited to provide feedback on the provisions
leading to the draft Bill. Consultation has also occurred with key
government departments that may have an interest in the operation of the
Bill.
Notes on Provisions
Part 1 Preliminary
Clause 1 states the short title of the Bill.
Clause 2 provides for commencement of the Act on a day to be fixed by
proclamation.
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Resorts and Other Legislation Amendment Bill 2008
Part 2 Amendment of the Integrated
Resort Development Act 1987
Clause 3 provides that the Bill will amend the Integrated Resort
Development Act 1987.
Clause 4 amends section 4 (Application for approval of scheme) to insert
(1B) to clarify that an application under Division 2 to vary the boundaries
of the site is not an application for scheme approval.
Clause 5 amends section 9 (Application for amendment of approved
scheme) to remove any doubt that an application may be made under this
division to amend an approved scheme by varying the boundaries of the
site of the approved scheme.
Clause 6 amends section 10 (Members to be notified of proposed
amendment) to replace "30 days" with "30 business days" as the period for
consultation with a body corporate with respect to a proposed scheme
amendment.
Clause 7 inserts a new section 13A to allow for applications to amend an
approved scheme by varying the boundaries of the site of the approved
scheme provided that the proposed boundary variance is minor, will not
materially change the total area of the site, there will be no change to
aggregate lots or voting entitlements, and each affected land owner has
given written consent. A successful application would result in a notation
on the approved scheme. The section also defines "affected land owner"
for the purposes of the section.
Clause 8 amends section 27 (The site) to make subsection 1 subject to
subsection 2. A new subsection 2 is then inserted to extend the definition
of the site boundaries to include all land within the newly approved
scheme, and renumbers sections accordingly.
Clause 9 amends section 44 (Subdivision of initial lots by building units or
group titles plan) to insert a new subsection 6 requiring the submission to
local government at the time of initial subdivision of a diagrammatic
indication of naming and numbering, or proposed naming and numbering,
of roads within the primary thoroughfare shown on the plan.
Clause 10 amends section 45 (Approval of building units or group titles
plan) to add at section 45(1)(a)(iii) the diagram mentioned in section 44(6)
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Resorts and Other Legislation Amendment Bill 2008
to the list of items which must accompany the group titles plan for local
government approval.
Clause 11 amends section 59 (Subdivision of secondary lots within
residential precincts) to insert a new section 59(8) to require the submission
to local government at the time of subdivision into secondary lots of a
diagrammatic indication of naming and numbering of roads within the
primary thoroughfare or secondary thoroughfare shown on the plan.
Clause 12 amends section 61 (Approval by local government) to add the
diagram mentioned in section 59(8) to the list of items which must
accompany the group titles plan for local government approval.
Clause 13 inserts a new part 8 division 1AA and a new section 100A
(References to a standard module) to explain that square bracketed
numbers are references to similar sections of the Body Corporate and
Community Management (Standard Module) Regulation 2008.
Clause 14 amends section 101 (Interpretation) to amend the definition of
"special resolution".
Clause 15 amends section 130 (Primary thoroughfare body corporate
manager) to limit the term of appointment for a body corporate manager
for the primary thoroughfare body corporate, after allowing for any rights
or options of extension or renewal, to a maximum of three years.
Subsections are also renumbered and cross references amended.
Clause 16 inserts a new Part 8, Division 1A (Proxies for principal bodies
corporate at general meetings of primary thoroughfare bodies corporate)
into Part 8, Division 1, which governs the primary thoroughfare body
corporate.
The division inserts new sections 133A to 133F.
Section 133A (Application of division 1A), determines that the division
applies to appointment and use of a proxy to represent a principal body
corporate that is a member of the primary thoroughfare body corporate at a
general meeting of the primary thoroughfare body corporate.
Section 133B (Appointment), determines that a proxy may be appointed,
subject to conditions in section 133B(2) that the proxy is only effective if
given by hand, post or facsimile, on a properly constituted proxy form, to
the secretary of the body corporate before the start of the meeting, or an
earlier time fixed by the primary thoroughfare body corporate.
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Resorts and Other Legislation Amendment Bill 2008
Section 133C (Form of Proxy) sets out the required conditions for the
proxy to be valid.
Section 133D (Use of Proxy), sets out conditions of the use of the proxy.
Section 133D(1) clarifies that a member holding a proxy can vote both in
their own right and also as the proxy. Section 133D(2) sets out the
conditions under which the use of a proxy on behalf of the principal body
corporate is prohibited. Section 133D(3) sets out that a proxy can be
exercised in a show of hands vote or an electronic vote. Section 133D(4)
defines majority resolution for the purposes of the section.
Section 133E (Special provisions about proxy use) requires under section
133E(1) that the principal body corporate can not be prevented by contract
from exercising a vote nor required by contract to make someone else the
body corporate's proxy for voting at a general meeting. Section 133E(2)
prevents the original owner of an initial or secondary lot, the body
corporate manager or their associates from exercising a proxy.
Section 133F (Offence) determines that a person must not exercise a vote
that they do not have the right to exercise and sets a maximum, penalty of
100 penalty units.
Clause 17 amends section 138 (Interpretation) to insert a definition of
"nominee" of a principal body corporate by reference to section 140(1) and
amends the reference to the definition of special resolution.
Clause 18 replaces section 140 (Member's nominee) with a new section
140 which governs who can represent a subsidiary body corporate (a
member of the principal body corporate) to the principal body corporate,
and requires under section 140(1) that the nominee must be appointed at
the annual general meeting. Section 140(2) requires that the nominee must
be a member of the subsidiary body corporate. Under section 140(3) the
nominee must represent the subsidiary body corporate as directed by, and
in the best interests of that subsidiary body corporate. Section 140(4)
provides that the term lasts for a maximum of one year and section 140(5)
provides that the proxy must be in writing.
The clause also inserts a new section 140A (When an original owner can
not be the nominee for the body corporate), which requires that the original
owner must not represent the subsidiary body corporate once 50% of lots
are sold, and the body corporate can not appoint the original owner or their
associate to represent them to the principal body corporate. Section 140A
also sets out procedures to remove the original owner or associate if they
are the current nominee.
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Resorts and Other Legislation Amendment Bill 2008
Clause 19 amends section 165 (Principal body corporate manager) to limit
the term of appointment for a body corporate manager for the primary
thoroughfare body corporate, after allowing for any rights or options of
extension or renewal, to a maximum of three years. Subsections are also
renumbered and cross references amended.
Clause 20 inserts a new Part 8, Division 3A and 3B into Part 8, Division 3
which governs principal bodies corporate.
Division 3A (Proxies for general meetings of principal bodies corporate)
inserts new sections 168A to 168F.
Section 168A (Application of Division 3A) sets out that the division
applies to the appointment and use of a proxy to represent a member of a
principal body corporate at a general meeting of the principal body
corporate.
Section 168B (Appointment) sets out conditions for the appointment of a
proxy. Section 168B(1) clarifies that a person may appoint a proxy.
Section 168B(2) determines that the principal body corporate may, by
special resolution, prohibit the use of proxies. Section 168B(3) clarifies
that subsection (1) is subject to subsection (2). Section 168B(4) limits the
number of proxies one person can hold and section 168B(5) sets out that
that the proxy is only effective if given by hand, post or facsimile, on a
properly constituted proxy form, to the secretary of the body corporate
before the start of the meeting, or an earlier time fixed by the principal
body corporate.
Section 168C (Form of proxy) sets out the required conditions for the
proxy to be valid.
Section 168D (Use of proxy) sets out conditions of the use of the proxy.
Section 168D(1) clarifies that a member holding a proxy can vote both in
their own right and also as the proxy. Section 168D(2) sets out that if one
co-owner of a lot is present, a proxy given by another co-owner of the lot
has no effect. Section 168D(3) sets out the conditions under which the use
at a general meeting of a proxy on behalf of the principal body corporate is
prohibited. Section 168D(4) sets out that a proxy can be exercised in a
show of hands vote or an electronic vote and section 168D(5) defines
majority resolution for the purposes of the section.
Section 168E (Special provisions about proxy use) requires under section
168E(1) that a member of the principal body corporate cannot be prevented
by contract from exercising a vote nor required by contract to make
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Resorts and Other Legislation Amendment Bill 2008
someone else the member's proxy for voting at a general meeting. Section
168E(2) prevents the original owner of an initial or secondary lot, the body
corporate manager, or their associates from exercising a proxy unless that
person is also a lot owner and subsequently a member of the subsidiary
body corporate.
Section 168F (Offence) determines that a person must not exercise a vote
that they do not have the right to exercise and sets a maximum penalty of
100 penalty units.
Division 3B (Accounts and Audit) inserts new sections 168G to 168I.
Section 168G (Application of Division B) determines that the division
applies to a principal body corporate for preparing statement of accounts
under section 151(1)(f), which includes the preparation of accounts in a list
of duties for the principal body corporate.
Section 168H (Accounts) allows for the preparation of the accounts on a
cash or accrual basis, sets out particular inclusions for cash and accrual
accounts, and requirements for the statement of accounts. The section also
requires that the statement of accounts must accompany the notice of the
following annual general meeting.
Section 168I (Audit) sets out the requirements for a valid audit. Section
168I(1) requires that the principal body corporate must have its accounts
audited every year. Section 168I(2) requires that the auditor to be
appointed must be agreed to by ordinary resolution of the body corporate.
Section 168I(3) sets out the conditions for a valid motion on agreeing to the
auditor to be appointed. Section 168I(4) sets out that the body corporate
can resolve to have its accounting records audited for a particular period or
a particular project and appoint an auditor for the audit. Section 168I(5)
excludes a member of the executive committee, the body corporate
manager or an associate of theirs from being appointed as auditor. Section
168I(6) requires that the auditor must give a certificate regarding the truth
and fairness of the accounts or identify deficiencies in the statement.
Section 168I(7) requires that the auditor's certificate must be distributed
with the notice of the annual general meeting next following the audit
certification. Section 168I(8) defines auditor for the purposes of the
section.
Clause 21 amends section 173 (Application of division 3 to expanded
principal body corporate) to include Divisions 3A and 3B.
Clause 22 inserts a new Part 10 Division 1 heading (Dispute resolution).
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Resorts and Other Legislation Amendment Bill 2008
Clause 23 amends section 179A (Dealing with disputes) to insert a new
section 179A(2) to clarify that section 179A does not apply to a matter
mentioned under section 179B and is subject to section 179C.
Clause 24 inserts a new section 179B and section 179C, part 2 division
heading and s179D.
Section 179B (Dealing with matters relating to development control by
laws) clarifies under section 179B(1) matters that the Commercial and
Consumer Tribunal may review or otherwise deal with. Section 179B(2)
provides for who can apply to have a matter dealt with and section 179B(3)
determines that any person applying must be a materially and directly
affected by the matter to which the application relates. Section 179B(4)
deals with substituted bylaws and section 179B(5) makes the provision
subject to section 179C.
Section 179C (Internal resolution processes to be used before application)
requires that reasonable efforts must be made to resolve the matter using an
internal dispute resolution process before it can be decided by a referee or
tribunal.
The clause also inserts a new Division 2 (Other Matters) which inserts new
section 179D (Associates) which defines the term associates and lists the
types of relationships which create an association.
Clause 25 inserts a new Part 12 (Transitional provisions for Resorts and
Other Legislation Amendment Act 2008) which inserts sections 184 to
187.
Section 184 defines "commencement" for the part.
Section 185 (Existing term of appointment for body corporate manager)
clarifies that contracts already in place at commencement of the section
continue to apply.
Section 186 (End of appointment of original owner of secondary lot as
nominee for subsidiary body corporate) outlines the requirements for
replacing a nominee if they are an original owner.
Section 187 (Auditing accounts for first annual general meeting after
commencement) allows that if accounts were already begun before
commencement or a person was authorised to begin preparing accounts,
and the annual general meeting has not happened, section 168I does not
apply.
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Resorts and Other Legislation Amendment Bill 2008
Clause 26 amends Schedule 2 (Dictionary) to insert a meaning for
"associate", "Commercial and Consumer Tribunal", "financial year",
"nominee", original owner" and "special resolution".
Part 3 Amendment of the Mixed Use
Development Act 1993
Clause 27 provides for amendment of the Mixed Use Development Act
1993.
Clause 28 amends section 79 (Lodgement of building units or group titles
plan) to insert section 79(5) requiring the submission to local government
of a diagrammatic indication of naming and numbering of roads within the
primary thoroughfare shown on the plan.
Clause 29 amends section 80 (Approval of building units or group titles
plan) to add the diagram mentioned in section 79(5) to the list of items
which must accompany the group titles plan for local government approval.
Clause 30 amends section 101 (Subdivision by building units or group
titles plan) to insert a new section 101(7) to require the submission to local
government of a diagrammatic indication of naming and numbering of
roads within the community thoroughfare or precinct thoroughfare shown
on the plan.
Clause 31 amends section 102 (Approval of building units or group titles
plan) to add the diagram mentioned in section 101(7) to the list of items
which must accompany the group titles plan for local government approval.
Part 4 Amendment of the Sanctuary
Cove Resort Act 1985
Clause 32 provides for amendment of the Sanctuary Cove Resort Act 1985.
Clause 33 amends section 4 (Interpretation) to replace the title with
"Definitions", remove definitions of "Albert Shire Council", "residential
zone" and "zone" and insert various new definitions.
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Resorts and Other Legislation Amendment Bill 2008
Clause 34 inserts a new section 4A (Meaning of Approved Use for zone),
to define "approved use" for a zone as a use or changed use under part 2AA
that is approved under regulation.
Clause 35 amends section 5 (The site) to replace the existing section (1),
renumber the existing subsections and inserts a new subsection (2). The
new section 5(1) defines the site and section 5(2) clarifies that if the initial
plan of survey is amended, the site is the area of land shown on the
amended plan. 5(3) is also amended to update language regarding local
government legislation.
Clause 36 removes section 7 (Site divided into zones).
Clause 37 amends section 8 (Proposed use plan) to delete subsections (1)
and (2), inserts a new subsection (1), makes a number of replacements to
update language regarding local government, replaces "company" with
"primary thoroughfare body corporate" and renumbers various subsections.
The new section 8(1) clarifies that subsections (2) through to (5) apply to a
plan of survey defining the boundaries of the zones within the site that is
lodged with the local government for approval.
Clause 38 amends section 9 (Town planning provisions) to delete
subsections (1) and (2), renumber the subsections and insert new
subsections (3) and (4) to update language regarding local government and
planning acts. The clause also inserts a definition of "erect".
Clause 39 amends section 10 (Initial subdivision within the site) to update
language in relation local government and correct a cross reference in
section 10(8)(b).
Clause 40 amends section 12A (The adjacent site) to replace subsection
(1), insert a new subsection 1A to clarify definition of the adjacent site,
subsequent to boundary amendments, refer to the initial plan of survey,
renumbers subsections and consequentially renumbers references to other
subsections and updates language in relation to local government.
Clause 41 deletes section 12C (Adjacent site divided into zones).
Clause 42 amends section 12D (Proposed use plan of the adjacent site) to
delete subsections (1) and (2), insert a new subsection (1), updates
language regarding local government, replace "company" with "primary
thoroughfare body corporate" and renumber various subsections. The new
section 12D(1) clarifies that subsections (2) to (5) apply to a plan of survey
defining the boundaries of the zones within the adjacent site that is lodged
with the local government for approval.
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Resorts and Other Legislation Amendment Bill 2008
Clause 43 amends section 12E (Town planning provisions) to update
language regarding local government and planning, defines "erect" and
rewords subsection (4) to remove reference to Schedule A.
Clause 44 amends section 12F (Initial subdivision within the adjacent site)
to update language regarding local government and planning, and corrects
a cross reference in section 12F(8)(b).
Clause 45 inserts a new part 2AA (Amendments by application to Minister)
and inserts new sections 12I to 12O.
Section 12I (Amendment applications) allows for the primary thoroughfare
body corporate to apply to the Minister to change an approved use for a
zone under section 12I(1)(a). Section 12I(1)(b) amends the proposed use
plan of the site or the adjacent site by replacing zone names or varying zone
boundaries. Section 12I(1)(c) amends the initial plan of survey by varying
the boundary of the site. Section 12I(d) amends the initial plan of survey
by varying the boundary of the adjacent site
Section 12I(2) clarifies that plans mentioned in section 12I(1)(b) to (d) is a
relevant plan.
Section 12J (Application procedure) sets out the procedure for submitting
an application to the Minister, including appropriate consultation
mechanisms and required documentation, and allows that the Minister can
further consult with a person likely to be affected.
Section 12K (Minister to consider application) provides that the Minister
must consider the application including written comments included in the
application, consult with any local government, department of government
or statutory authority, that in the Minister's opinion is likely to be affected
by the application.
Section s12L (Decision on application) provides that the Governor in
Council may approve the amendment, require amendments or
modifications or conditions or refuse to approve the amendment.
Section 12M (Minor variation of site boundaries) allows for the site
boundaries of the site or the adjacent site to be amended if the boundary
variation is minor, will not materially change the total area of the site, will
not change the aggregate number of lots or voting entitlements, and each
affected land owner has given written consent.
Section 12N (Approval of change of use for zone) provides that the
amendment does not take effect until it has been approved under a
regulation.
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Resorts and Other Legislation Amendment Bill 2008
Section 12O (Approval of amendment of relevant plan) sets out notification
and inspection requirements with respect to the amended plan.
Clause 46 amends section 15 (Subdivision of secondary lots) to require the
submission to local government at the time of secondary subdivision of a
diagrammatic indication of naming and numbering of roads within the
primary and secondary thoroughfares shown on the plan, and updates
wording in relation to local government.
Clause 47 amends section 15A (Plan of survey where variation of boundary
approved) to update cross references and language in relation to local
government.
Clause 48 amends section 21A (Subdivision of land outside residential
zones) to update language in relation to local government and requires the
submission to local government of a diagrammatic indication of naming
and numbering of roads in these zones.
Clause 49 amends section 22 (Interpretation) replaces the heading and
inserts definitions of "financial year", "nominee" and "original owner".
Clause 50 inserts a new section 22A (References to standard module) to
explain that square bracketed numbers are references to similar sections of
the Body Corporate and Community Management (Standard Module)
Regulation 2008.
Clause 51 replaces section 24 (Member's nominee) and inserts new
sections 24 and 24A.
Section 24 governs who can represent a subsidiary body corporate (a
member of the principal body corporate) to the principal body corporate,
and requires that nominee must be appointed at the annual general meeting;
the nominee must be a member of the subsidiary body corporate; the
nominee must represent the subsidiary body corporate as directed by, and
in the best interests of that subsidiary body corporate; that the term lasts for
a maximum of one year; and the proxy must be in writing.
Section 24A (When an original owner can not be the nominee for the body
corporate) requires that the original owner must not represent the
subsidiary body corporate once 50% of lots are sold, and the body
corporate can not appoint the original owner or their associate to represent
them to the principal body corporate. Section 24A also sets out procedures
to remove the original owner or associate if they are the current nominee.
Clause 52 amends section 47A (Principal body corporate manager) to limit
the term of appointment for a body corporate manager for the primary
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Resorts and Other Legislation Amendment Bill 2008
thoroughfare body corporate, after allowing for any rights or options of
extension or renewal, to a maximum of three years. Subsections are also
renumbered and cross references amended.
Clause 53 inserts a new Part 3 Divisions 2B and 2C.
Division 2B (Proxies for general meetings of principal body corporate)
inserts new sections 47B to 47G.
Section 47B (Application of Division 2B) sets out that the division applies
to the appointment and use of a proxy to represent a member of a principal
body corporate at a general meeting of the principal body corporate.
Section 47C (Appointment) sets out conditions for the appointment of a
proxy. The section clarifies that a person may appoint a proxy; determines
that the principal body corporate may, by special resolution, prohibit the
use of proxies; clarifies that subsection (1) is subject to subsection (2);
limits the number of proxies one person can hold; and sets out that that the
proxy is only effective if given by hand, post or facsimile, on a properly
constituted proxy form, to the secretary of the body corporate before the
start of the meeting, or an earlier time fixed by the principal body
corporate.
Section 47D (Form of proxy) sets out the required conditions for the proxy
to be valid.
Section 47E (Use of proxy) sets out conditions of the use of the proxy. The
section clarifies that a member holding a proxy can vote both in their own
right and also as the proxy; sets out that if one co-owner of a lot is present,
a proxy given by another co-owner of the lot has no effect; sets out the
conditions under which the use at a general meeting of a proxy on behalf of
the principal body corporate is prohibited; sets out that a proxy can be
exercised in a show of hands vote or an electronic vote; and defines
majority resolution for the purposes of the section.
Section 47F (Special provisions about proxy use) requires that a member of
the principal body corporate cannot be prevented by contract from
exercising a vote nor required by contract to make someone else the
member's proxy for voting at a general meeting. Section 47F(2) prevents
the original owner of an initial or secondary lot, the body corporate
manager, or their associate from exercising a proxy unless that person is
also a lot owner and subsequently a member of the subsidiary body
corporate.
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Resorts and Other Legislation Amendment Bill 2008
Section 47G (Offence) determines that a person must not exercise a vote
that they do not have the right to exercise and sets a maximum, penalty of
100 penalty units.
The new Division 2C (Accounts and Audit) inserts new sections 168H to
168J.
Section 47H (Application of division 3B) determines that the division
applies to a principal body corporate for preparing statement of accounts
under section 33(1)(f), which includes the preparation of accounts in a list
of duties for the principal body corporate.
Section 47I (Accounts) allows for the preparation of the accounts on a cash
or accrual basis, sets out particular inclusions for cash and accrual
accounts, and requirements for the statement of accounts. The section also
requires that the statement of accounts must accompany the notice of the
following annual general meeting
Section 47J (Audit) sets out the requirements for a valid audit. The section
requires that the principal body corporate must have its accounts audited
every year; requires that the auditor to be appointed must be agreed to by
ordinary resolution of the body corporate; sets out the conditions for a valid
motion on agreeing to the auditor to be appointed; sets out that the body
corporate can resolve to have its accounting records audited for a particular
period or a particular project and appoint an auditor for the audit; excludes
a member of the executive committee, the body corporate manager or an
associate of theirs from being appointed as auditor; requires that the auditor
must give a certificate regarding the truth and fairness of the accounts or
identifying deficiencies in the statement; requires that the auditor's
certificate must be distributed with the notice of the annual general meeting
next following the audit certification; and defines auditor for the purposes
of the section.
Clause 54 replaces s 64A (Maintenance etc. of canals) to remove obsolete
references.
Clause 55 amends section 64B (Surrender of secondary thoroughfare as a
canal) to update language regarding local government and remove
references to obsolete legislation.
Clause 56 amends section 65 (Interpretation) to replace the title with
"Definitions for part 5" and insert a definition of "financial year".
Clause 57 inserts a new section 65A (References to standard module) to
explain that square bracketed numbers are references to similar sections of
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Resorts and Other Legislation Amendment Bill 2008
the Body Corporate and Community Management (Standard Module)
Regulation 2008.
Clause 58 amends section 91A (Primary thoroughfare body corporate
manager) to limit the term of appointment for a body corporate manager
for the primary thoroughfare body corporate, after allowing for any rights
or options of extension or renewal, to a maximum of three years.
Subsections are also renumbered and cross references amended.
Clause 59 inserts a new Part 5 Division 2B (Proxies for principal body
corporate and general meetings of the primary thoroughfare body
corporate) which inserts new sections 91B to 91G
Section 91B (Application of Division 2B) sets out that the division applies
to the appointment and use of a proxy to represent the principal body
corporate at a general meeting of the primary thoroughfare body corporate.
Section 91C (Appointment) sets out conditions for the appointment of a
proxy. The section clarifies that a person may appoint a proxy; and sets out
that that the proxy is only effective if given by hand, post or facsimile, on a
properly constituted proxy form, to the secretary of the body corporate
before the start of the meeting, or an earlier time fixed by the principal
body corporate.
Section 91D (Form of proxy) sets out the required conditions for the proxy
to be valid.
Section 91E (Use of proxy) sets out conditions of the use of the proxy. The
section clarifies that a member holding a proxy can vote both in their own
right and also as the proxy of the principal body corporate; sets out the
conditions under which the use of a proxy on behalf of the principal body
corporate is prohibited; sets out that a proxy can be exercised in a show of
hands vote or an electronic vote; and defines majority resolution for the
purposes of the section.
Section 91F (Special provisions about proxy use) requires that a member of
the principal body corporate cannot be prevented by contract from
exercising a vote nor required by contract to make someone else the body
corporate's proxy for voting at a general meeting. Section 91F(2) prevents
the original owner of an initial or secondary lot, or their associate from
exercising a proxy unless that person is also a lot owner and a member of
the subsidiary body corporate.
Section 91G (Offence) determines that a person must not exercise a proxy
or vote on behalf of the principal body corporate at a general meeting that
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Resorts and Other Legislation Amendment Bill 2008
they know they do not have the right to exercise and sets a maximum
penalty of 100 penalty units.
Clause 60 amends section 103 (Application of laws of the State) to update
references.
Clause 61 inserts a new Part 8 Division 1 heading (Dispute resolution).
Clause 62 amends section 104A (Dealing with disputes) to insert a new
section 104A(2) to clarify that section 104A does not apply to a matter
mentioned under section 104B and is subject to section 104C.
Clause 63 inserts a new section 104B, section 104C, Division 2 heading,
and s109D.
Section 104B (Dealing with matters relating to development control by
laws) clarifies matters that the Commercial and Consumer Tribunal may
review or otherwise deal with and who can apply to have a matter dealt
with. The section determines that a person has standing to make the
application if the person is directly and materially affected person; and
makes the provision subject to section 104C.
Section 104C (Internal resolution processes to be used before application)
provides that a referee or tribunal must not decide an application unless
reasonable efforts have been made to resolve the matter using an internal
dispute resolution process.
The clause also inserts a new Part 8 Division 2 heading (Other matters) and
a new section 104D (Associates). Section 104D (Associates) defines the
term associates and lists the types of relationships which create an
association.
Clause 64 inserts a new Part 10 (Transitional provisions for Resorts and
Other Legislation Amendment Act 2008), which adds sections 113 to 116.
Section 113 defines commencement for the purposes of the section.
Section 114 (Existing term of appointment for body corporate manager)
clarifies that contracts already in place at commencement of the section
continue to apply.
Section 115 (End of appointment of original owner of secondary lot as
nominee for subsidiary body corporate) outlines the requirements for
replacing a nominee if they are an original owner at the time of
commencement.
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Resorts and Other Legislation Amendment Bill 2008
Section 116 (Auditing accounts for first annual general meeting after
commencement) allows that if accounts were already begun before
commencement or a person was authorised to begin preparing accounts,
and the annual general meeting has not happened, section 47J does not
apply.
Clause 65 amends Schedule A (Uses permitted within the zones) to replace
the heading with "Schedule - Names of and uses for zones", and amends
the definition of harbour facility.
The clause also moves the names of zones into one list as Part 1, and the
uses permitted within zones into one list as Part 2, and removes the current
table.
Clause 66 removes Schedules B to E and inserts a new title "Schedule 2
Dictionary"
Schedule Minor amendments of the Sanctuary
Cove Resort Act 1985
Clauses 1 to 5 update references to local government and certain
legislation.
© State of Queensland 2008
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