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New South Wales
Funeral Funds Amendment Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Funeral Funds Act 1979 No 106 2
4 Amendment of Funeral Funds Regulation 2001 2
Schedule 1 Amendment of Funeral Funds Act 1979 3
Schedule 2 Amendment of Funeral Funds Regulation 2001 30
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Funeral Funds Amendment Bill 2003
Act No , 2003
An Act to amend the Funeral Funds Act 1979 to introduce certain reforms about
the prudential management of funeral funds; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Funeral Funds Amendment Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Funeral Funds Amendment Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Funeral Funds Act 1979 No 106
The Funeral Funds Act 1979 is amended as set out in Schedule 1.
4 Amendment of Funeral Funds Regulation 2001
The Funeral Funds Regulation 2001 is amended as set out in
Schedule 2.
Page 2
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
Schedule 1 Amendment of Funeral Funds Act 1979
(Section 3)
[1] Whole Act (except to the extent to which its provisions are
otherwise amended or repealed by this Act)
Omit "Pre-arranged" and "pre-arranged" wherever occurring.
Insert instead "Pre-paid" and "pre-paid", respectively.
[2] Section 3
Insert after section 2:
3 Objects
The objects of this Act are:
(a) to protect pre-payments made by consumers for funeral
services through the registration of funeral funds, and
(b) to ensure that funeral services agreed to be supplied
under a pre-paid contract are supplied as agreed, and
(c) to achieve accountability for money paid by a purchaser
of funeral services that have an indefinite delivery date,
and
(d) to properly manage money paid and other valuable
consideration given for funeral services in the long term
to provide agreed benefits to the purchaser and the
anticipated payment to the supplier of funeral services.
[3] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
authorised deposit-taking institution means an authorised
deposit-taking institution within the meaning of the Banking
Act 1959 of the Commonwealth.
officer, of a corporation, has the meaning given by the
Corporations Act 2001 of the Commonwealth.
[4] Section 4 (1)
Omit the definitions of Department and Director-General.
Insert instead:
Department means the Department of Commerce.
Page 3
Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
Director-General means:
(a) the Commissioner for Fair Trading, Department of
Commerce, or
(b) if there is no such position in the Department--the
Director-General of the Department.
[5] Section 4 (1), definition of "funeral contribution fund"
Omit the definition. Insert instead:
funeral contribution fund means:
(a) a company for the time being registered under section
14 to carry on contributory funeral benefit business, or
(b) a person for the time being registered under section 16C
to carry on contributory funeral benefit business.
[6] Section 8 Inspectors
Omit "Public Service Act 1902" wherever occurring.
Insert instead "Public Sector Employment and Management Act 2002".
[7] Section 10
Insert after section 9:
10 Appointment of independent actuary
(1) The Director-General may appoint an independent actuary to
assist the Director-General in performing his or her functions
under this Act.
(2) Without limiting subsection (1), the Director-General may
appoint an actuary:
(a) to provide advice in relation to the ability of an
applicant for registration under this Act to carry on a
funeral fund successfully and in compliance with the
provisions of the Act that would be applicable to the
applicant if registered, or
(b) to assist the Director-General in conducting an inquiry
under Division 2 of Part 5 into the affairs, or such of the
affairs as the Director-General determines, of a funeral
fund.
Page 4
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
[8] Section 11 Contributory funeral benefit business to be carried on
only by companies registered under this Act
Omit section 11 (1). Insert instead:
(1) A person must not carry on or advertise that the person carries
on or is willing to carry on any contributory funeral benefit
business unless that person is a funeral contribution fund.
Maximum penalty: 20 penalty units or, in the case of a
continuing offence, 2 penalty units for each day the offence
continues.
[9] Section 11 (3)(5)
Omit the subsections.
[10] Section 13 Requirements for registration
Omit section 13 (1) (a) and (b). Insert instead:
(a) the company does not carry on pre-paid funeral benefit
business,
(b) the income of the company derived from contributory
funeral benefit business is to be applied only for the
provision of funeral benefits to contributors and to meet
the management expenses of the company in carrying
on contributory funeral benefit business,
[11] Section 13 (1) (d)
Omit "and not more than 7".
[12] Section 13 (1) (e)
Omit the paragraph. Insert instead:
(e) the name of the company is not a name, or a name of a
kind, that the Minister has directed the Director-
General not to accept for registration,
[13] Section 13 (1) (g)
Omit the paragraph.
[14] Section 13 (2)
Omit "subsection (1) (e) (ii)". Insert instead "subsection (1) (e)".
Page 5
Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[15] Section 14 Registration of company to carry on contributory
funeral benefit business
Insert at the end of section 14 (2):
, or
(d) the company is not fit to be registered having regard to
the character and reputation of the directors and other
officers of the company.
[16] Section 16 Cancellation of registration of funeral contribution
fund
Omit section 16 (1) and (2). Insert instead:
(1) The Director-General may, by notice in writing served on a
funeral contribution fund, cancel the fund's registration if:
(a) the fund has not commenced to carry on contributory
funeral benefit business in New South Wales within 6
months after its registration, or
(b) the fund is commenced to be wound up or is under
official management, or
(c) the fund has entered into a compromise or scheme of
arrangement with its creditors, or
(d) a receiver and manager has been appointed, whether by
the Supreme Court or otherwise, in respect of the
property of the fund, or
(e) the fund or any person involved in the management of
the fund is convicted of an offence involving fraud or
dishonesty or fails to comply with a provision of this
Act or the regulations, or
(f) at the request of the fund, or
(g) any other ground prescribed by the regulations is
established.
(2) The cancellation of the registration of a funeral contribution
fund under subsection (1) (paragraph (f) excepted) takes
effect on the expiration of 28 days after the notice of the
cancellation is served on the fund by the Director-General or,
if an appeal is lodged against the cancellation under Part 6, on
confirmation of the cancellation or the withdrawal of the
appeal.
Page 6
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
[17] Section 16 (4)
Omit "Corporate Affairs Commission".
Insert instead "Australian Securities and Investments Commission".
[18] Part 3, Division 1A
Insert after Division 1:
Division 1A Registration of previously exempt persons
carrying on business of funeral contribution
funds
16B Application for registration
(1) This section applies to a person (whether an individual or a
corporation) who, immediately before the commencement of
this Division:
(a) carried on the business of a funeral contribution fund,
and
(b) was exempt from the application of section 11 under
section 11 (3) or from the application of section 94
under section 97A.
(2) The person must, within 6 months after the commencement of
this Division, apply to the Director-General to be registered
under this Act to carry on a contributory funeral benefit
business.
Maximum penalty: 50 penalty units.
(3) An application for registration made under subsection (2)
must:
(a) be made in the form approved by the Director-General,
and
(b) be accompanied by:
(i) a written statement specifying whether the person
is subject to any other prudential requirements
with respect to the person's contributory funeral
benefit business, and
(ii) such other information as the Director-General
may require.
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
(4) Despite any other provision of this Act, this section applies to
an individual carrying on a business referred to in
subsection (1).
16C Registration of previously exempt person to carry on
contributory funeral benefit business
(1) On receipt of an application for registration from a person
under section 16B, the Director-General may:
(a) register the person to carry on contributory funeral
benefit business, or
(b) register the person to carry on contributory funeral
benefit business, subject to conditions, or
(c) refuse to register the person.
(2) The Director-General may waive the whole or any part of a
fee to be taken in the office of the Director-General for
registration of such a person.
(3) The Director-General may register a person to carry on
contributory funeral benefit business even if the Director-
General is satisfied of the matters referred to in section 14 (2)
if the Director-General is satisfied that registration of the
person subject to conditions would protect contributors to the
fund.
(4) Without limiting the conditions that may be imposed under
subsection (1) on a registration, the conditions may include
the following:
(a) a requirement that the fund comply with specified
reporting provisions, for example, by notifying the
Director-General of any change in financial status and
particulars of where contributions to the fund are held,
(b) a requirement that the fund must not accept after
registration any new contributors to the fund.
(5) The Director-General may exempt a person registered under
this section from complying with such of the provisions of
this Act or the regulations as the Director-General considers
appropriate having regard to all of the circumstances in which
the person carries on contributory funeral benefit business.
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(6) If the Director-General refuses, under this section, to register
a person to carry on contributory funeral benefit business, the
person must, within the period directed by the Director-
General, transfer any contributions held by the person to a
funeral contribution fund.
(7) Despite any other provision of this Act, the Director-General
may, under this section, register an individual to carry on
contributory funeral benefit business and the Act applies to
that funeral contribution fund in the same way it applies to a
funeral contribution fund that is a company, with any
necessary changes.
[19] Section 21
Omit the section. Insert instead:
21 Management expenses in administration of funeral
contribution funds
A funeral contribution fund is entitled to receive a
commission for its services in acting as trustee of
contributions received by it from or on behalf of a contributor.
[20] Section 22 Investment of surplus funds etc
Omit "banks, building societies or credit unions in New South Wales"
from section 22 (2).
Insert instead "authorised deposit-taking institutions".
[21] Section 24 Returns
Insert after section 24 (1):
(1A) The Director-General may exempt a funeral contribution fund
from the requirement to lodge a return under subsection (1) if
the Director-General is satisfied that the fund is subject to
adequate reporting requirements under a law of the
Commonwealth.
Page 9
Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[22] Section 25A
Insert after section 25:
25A Annual report to be provided to contributors
(1) A funeral contribution fund must, at least once annually or at
such other times as are prescribed by the regulations, give to
each contributor to the fund a report containing the particulars
prescribed by the regulations.
(2) A report may be given to a contributor personally or by post
addressed to the last known place of residence or business of
the contributor.
[23] Section 28 Actuarial investigation of funeral contribution funds
Omit section 28 (2). Insert instead:
(2) The Director-General may waive the requirement for an
investigation of a funeral contribution fund to be made under
subsection (1) if the Director-General is satisfied that, in all
the circumstances, it would be unduly onerous or otherwise
unwarranted to require the investigation.
(3) A funeral contribution fund must:
(a) within 3 months after an investigation is made under
subsection (1), lodge with the Director-General an
abstract, prepared in the manner prescribed by the
regulations and containing the particulars prescribed by
the regulations, of the report by the actuary of the
results of that investigation, and
(b) if requested by notice in writing given by the Director-
General, lodge with the Director-General (by the date
specified in the notice) a copy of the report by the
actuary of the results of the investigation.
Maximum penalty: 10 penalty units.
Page 10
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
[24] Section 30
Omit the section. Insert instead:
30 Procedure where deficiency in assets or management
expenses unduly high
(1) If the Director-General is satisfied that, as a result of an
actuarial investigation under section 28 or of an inquiry
instituted by the Director-General:
(a) the assets of a funeral contribution fund are insufficient
to meet its liabilities, or
(b) the rate of the management expenses of a funeral
contribution fund is unduly high,
the Director-General may, by notice served on the fund, give
such directions to the fund as the Director-General considers
necessary in the circumstances.
(2) The Director-General must not give a direction under
subsection (1) without the approval of the Minister.
(3) A funeral contribution fund must comply with a direction
given to it under subsection (1).
Maximum penalty: 10 penalty units.
[25] Section 31 Transfer or amalgamation to be confirmed by Director-
General
Insert at the end of the section:
(2) The regulations may make provision for or with respect to
guidelines to be used by the Director-General in deciding
whether to confirm or refuse to confirm a scheme in
accordance with section 32.
[26] Section 32 Schemes for transfer or amalgamation
Omit "the Government Actuary" from section 32 (4).
Insert instead "an actuary".
[27] Section 34 Trustee under pre-paid contract to be registered under
this Act
Omit section 34 (1) (c).
Page 11
Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[28] Section 34 (2)(4)
Omit the subsections.
[29] Section 37 Registration of pre-paid funeral funds
Insert after section 37 (2) (b):
(ba) the corporation or group of individuals will not be able
to carry on pre-paid funeral benefit business
successfully,
[30] Part 4, Division 1A
Insert after Division 1:
Division 1A Registration of previously exempt pre-paid
funeral funds
39A Application for registration of previously exempt trustees
(1) This section applies to a person (whether an individual or
corporation) who, immediately before the commencement of
this Division:
(a) acted as trustee of trust funds under a pre-paid contract,
and
(b) was exempt from the application of section 34 under
section 34 (2) or from the application of section 112
under section 114B.
(2) The person must, within 6 months after the commencement of
this Division, apply to the Director-General to be registered
under this Act to act as trustee of trust funds under pre-paid
contracts.
Maximum penalty: 50 penalty units.
(3) An application for registration made under subsection (2)
must:
(a) be made in the form approved by the Director-General,
and
(b) be accompanied by:
(i) a written statement specifying whether the person
is subject to any other prudential requirements
with respect to the person acting as trustee of trust
funds under a pre-paid contract, and
Page 12
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(ii) such other information as the Director-General
may require.
39B Registration of previously exempt person to act as trustee of
funds under pre-paid contracts
(1) On receipt of an application for registration from a person
under section 39A, the Director-General may:
(a) register the person to act as trustee of trust funds under
a pre-paid contract, or
(b) register the person to act as trustee of trust funds under
a pre-paid contract, subject to conditions, or
(c) refuse to register the person.
(2) The Director-General may waive the whole or any part of a
fee to be taken in the office of the Director-General for
registration of such a person.
(3) The Director-General may register a person to act as trustee
of trust funds under a pre-paid contract even if the Director-
General is satisfied of the matters referred to in section
37 (2) (a) or (b) if the Director-General is satisfied that
registration of the person subject to conditions would protect
persons on whose behalf that person would hold trust funds.
(4) Without limiting the conditions that may be imposed under
subsection (1) on a registration, the conditions may include
the following:
(a) a requirement that the trustee comply with specified
reporting provisions, for example, by notifying the
Director-General of any change in financial status and
particulars of where trust funds are held,
(b) a requirement that the trustee must not accept any new
trust funds after registration.
(5) The Director-General may exempt a person registered under
this section from complying with such of the provisions of
this Act or the regulations as the Director-General considers
appropriate having regard to all of the circumstances in which
the person acts as trustee of trust funds under a pre-paid
contract.
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
(6) If the Director-General refuses, under this section, to register
a person to act as trustee of trust funds under a pre-paid
contract, the person must, within the period directed by the
Director-General, transfer any trust funds held by the person
to a pre-paid funeral fund.
[31] Section 40 Payment of money and giving of consideration under
pre-paid contract to pre-paid funeral fund
Insert "(in accordance with the regulations, if any)" after "paid or given"
in section 40 (1).
[32] Section 42 Transfer of trust funds under pre-paid contracts
Insert at the end of the section:
(8) The regulations may make provision for or with respect to
guidelines to be used by the Director-General in deciding
whether to confirm or refuse to confirm a scheme under this
section.
[33] Section 43 Pre-paid funeral funds, trust accounts
Omit "banks, building societies or credit unions in New South Wales"
from section 43 (1).
Insert instead "authorised deposit-taking institutions".
[34] Section 46
Omit the section. Insert instead:
46 Management expenses in administration of trust funds
A pre-paid funeral fund is entitled to receive a commission for
its services in acting as trustee of funds held by it under a pre-
paid contract.
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
[35] Part 4, Divisions 3A3C
Insert after Division 3:
Division 3A Actuarial investigation
49A Actuarial investigation of pre-paid funeral funds
(1) A pre-paid funeral fund must:
(a) at least once in each period of 3 years or such other
period as may be prescribed by the regulations, and
(b) where the Director-General by notice served on the
fund so directs, within the period specified in the notice,
cause an actuary to make an investigation of the financial
position of the fund, including a valuation of its liabilities, and
to furnish it with a report of the results of the investigation.
(2) The Director-General may waive the requirement for an
investigation of a pre-paid funeral fund to be made under
subsection (1) if the Director-General is satisfied that, in all
the circumstances, it would be unduly onerous or otherwise
unwarranted to require the investigation.
(3) A pre-paid funeral fund must:
(a) within 3 months after an investigation is made under
subsection (1), lodge with the Director-General an
abstract, prepared in the manner prescribed by the
regulations and containing the particulars prescribed by
the regulations, of the report by the actuary of the
results of that investigation, and
(b) if requested by notice in writing given by the Director-
General, lodge with the Director-General (by the date
specified in the notice) a copy of the report by the
actuary of the results of the investigation.
Maximum penalty: 10 penalty units.
49B Procedure where deficiency in assets or management
expenses unduly high
(1) If the Director-General is satisfied that, as a result of an
actuarial investigation under section 49A or of an inquiry
instituted by the Director-General:
Page 15
Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
(a) the assets of a pre-paid funeral fund are insufficient to
meet its liabilities, or
(b) the rate of the management expenses of a pre-paid
funeral fund is unduly high,
the Director-General may, by notice served on the fund, give
such directions to the fund as the Director-General considers
necessary in the circumstances.
(2) The Director-General must not give a direction under
subsection (1) without the approval of the Minister.
(3) A pre-paid funeral fund must comply with a direction given to
it under subsection (1).
Maximum penalty: 10 penalty units.
Division 3B Auditing
49C Independent auditor to prepare auditor's report
(1) A pre-paid funeral fund must cause an independent auditor:
(a) to audit the records that the fund is required to keep
under any law, including the accounts of the fund, and
(b) to furnish it with a report of that audit within 3 months
after the last day of the fund's financial year.
Maximum penalty: 10 penalty units.
(2) A pre-paid funeral fund must, within 7 days of receiving a
report under subsection (1) (b), lodge with the Director-
General:
(a) a copy of the report, and
(b) a copy of every financial statement on which the report
is based, together with every explanatory note that
forms part of such a statement.
Maximum penalty: 10 penalty units.
49D Qualifications as an independent auditor
(1) A person is not qualified to be an auditor of a pre-paid funeral
fund unless the person is a registered company auditor (within
the meaning of the Corporations Act 2001 of the
Commonwealth).
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(2) An auditor of a pre-paid funeral fund is not an independent
auditor:
(a) if (otherwise than as an auditor) the person is an officer
or employee of the fund, or
(b) if the person is a partner, employer or employee of a
person who is (otherwise than as an auditor) an officer
or employee of the fund.
(3) Appointment as the public officer of a pre-paid funeral fund
for the purposes of any law relating to taxation does not in
itself render a person unqualified to be an independent auditor
of the fund.
49E Form and content of auditors' reports
An auditor's report on a pre-paid funeral fund must include
statements by the auditor as to the following:
(a) whether the auditor has obtained all the information and
explanations which, to the best of the auditor's
knowledge and belief, were necessary for the purposes
of the audit,
(b) whether the financial statements on which the auditor
based the report are in agreement with the fund's books
of account and returns,
(c) whether, in the auditor's opinion, proper books of
account have been kept by the fund,
(d) whether, in the auditor's opinion and to the best of the
auditor's knowledge and according to the explanations
given to the auditor, the accounts give the information
required by or under this Act in the manner so required
and disclose a true and fair view of the state of the trust
accounts as at the end of the fund's financial year,
(e) whether, in the auditor's opinion, the records that the
fund is required to keep by or under this Act have been
properly kept,
(f) whether the requirements of the law relating to the
administration of trust funds, including the
requirements of this Act and any regulations, have been
observed,
(g) any matter prescribed by the regulations.
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
49F Access to books
An auditor of a pre-paid funeral fund is entitled:
(a) to be given access at all times to the books, accounts,
vouchers, securities and documents of the fund, and
(b) to be given by the fund such information and
explanations as the auditor thinks necessary for the
performance of his or her duties.
Division 3C Returns
49G Annual returns to be furnished
(1) Within 3 months after the last day of a pre-paid funeral fund's
financial year, or within such further time as the Director-
General may allow, the fund must lodge with the Director-
General a return specifying the following:
(a) the number of pre-paid contracts in respect of which the
fund held money or other valuable consideration, as at
the first day of that year,
(b) the number of pre-paid contracts in respect of which the
fund commenced holding money or other valuable
consideration during that year,
(c) the number of pre-paid contracts in respect of which the
fund ceased holding money or other valuable
consideration during that year, separately specified
according to whether it ceased to hold that money or
consideration pursuant to section 47 or pursuant to
section 48,
(d) the number of pre-paid contracts that were cancelled
pursuant to section 49 during that year (being contracts
in respect of which the fund was holding money or
other valuable consideration when they were
cancelled),
(e) the number of pre-paid contracts in respect of which the
fund held money or other valuable consideration, as at
the last day of that year.
Maximum penalty: 10 penalty units.
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(2) The Director-General may exempt a pre-paid funeral fund
from the requirement to lodge a return under subsection (1) if
the Director-General is satisfied that the fund is subject to
adequate reporting requirements under a law of the
Commonwealth.
49H Funds to provide information in certain cases
(1) The Director-General may, by notice in writing served on a
pre-paid funeral fund or on any officer or agent of the fund,
require the fund or that officer or agent to lodge with the
Director-General, within such period as is specified in the
notice, any one or more of the following:
(a) such particulars as may be so specified with respect to
existing or former pre-paid contracts,
(b) such particulars as may be so specified with respect to
payments by the fund of amounts held in trust by it,
(c) such further particulars with respect to the fund, or to
any of its officers or agents or to its affairs, as may be
so specified.
(2) A person must not, without reasonable excuse, fail to comply
with a requirement under this section.
Maximum penalty: 10 penalty units.
(3) Information provided by a person in response to a
requirement under this section is not admissible in evidence in
any proceedings for an offence taken against that person,
other than the offence of contravening subsection (2), so long
as the person providing the information objected to doing so,
at the time of providing it, on the ground that it might tend to
incriminate the person.
49I Public inspection of annual returns
On being requested to do so by a person attending the
Director-General's office during the ordinary business hours
of that office, and on the payment by the person of the
appropriate fee, the Director-General:
(a) must make available for inspection by the person any
return lodged with the Director-General under section
49G, and
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
(b) must provide the person with a copy of such return, or
of such part of the return as the person specifies,
certified under the Director-General's hand and seal to
be a true copy.
[36] Section 49J
Insert after the heading to Division 4 of Part 4:
49J Cooling-off period
(1) A person who enters into a pre-paid contract with a pre-paid
funeral fund may, by notice in writing given to the fund within
the period after entry into the contract prescribed by the
regulations, end the agreement.
(2) If a person ends a pre-paid contract under subsection (1):
(a) the pre-paid funeral fund must refund to the person the
amount the person has paid to it under the agreement,
less any amounts prescribed by the regulations, and
(b) the person is not (despite anything to the contrary in the
contract) liable to the pre-paid funeral fund in any way
for ending the agreement.
[37] Part 5, Division 3A
Insert after Division 3:
Division 3A Disciplinary measures
66A Notices to show cause
(1) This section applies if the Director-General believes, on
reasonable grounds, that:
(a) for a fund that is a funeral contribution fund:
(i) the fund is no longer able to carry on contributory
funeral benefit business successfully, or
(ii) the fund no longer satisfies the requirements for
registration specified in section 13, or
(iii) the fund is not fit to be registered having regard
to the character and reputation of the directors
and other officers of the company, or
(iv) the fund is not complying with the conditions, if
any, of its registration, or
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(b) for a fund that is a pre-paid funeral fund:
(i) the fund is no longer able to carry on pre-paid
funeral benefit business successfully, or
(ii) the fund no longer meets the requirements for
registration specified in section 36, or
(iii) if the fund is a corporation--the fund is no longer
fit to be registered having regard to the character
and reputation of the directors and other officers
of the corporation or another matter prescribed
for the purposes of section 37 (2) (c) (ii), or
(iv) if the fund is a group of individuals--the fund is
no longer fit to be registered having regard to the
character and reputation of each of those
individuals or another matter prescribed for the
purposes of section 37 (2) (d) (ii), or
(v) the fund is not complying with the conditions, if
any, of its registration.
(2) The Director-General may, by notice in writing served on the
fund, call on the fund to show cause, within a specified period,
being not less than 14 days, why the fund should not, for the
reasons specified in the notice, be dealt with in accordance
with this Division.
(3) The Director-General may conduct such inquiry or make such
investigation in relation to the matters to which the notice
relates and the submissions made, if any, and the evidence
adduced, if any, by or on behalf of the fund in relation to those
matters as the Director-General thinks fit.
66B Determination of disciplinary measures by the Director-
General
(1) If, after compliance with section 66A, the Director-General is
satisfied that a ground referred to in section 66A (1) has been
established, the Director-General may do one or more of the
following:
(a) require the fund to comply within a specified time with
a requirement specified by the Director-General,
(b) impose or vary a condition on the fund's registration,
(c) suspend the registration for a period not exceeding 12
months,
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
(d) disqualify the fund, or if the fund is a company or
corporation, a director or other officer of the company
or corporation, from being registered or being
concerned in the direction, management or conduct of
the business of carrying on contributory funeral benefit
business or acting as a trustee of trust funds under a pre-
paid contract, either permanently or for such period as
the Director-General thinks fit,
(e) cancel the registration.
(2) Where, under subsection (1), the Director-General requires a
fund to comply with a requirement specified by the Director-
General, the fund must comply with the requirement within
the period specified by the Director-General under that
subsection.
(3) A fund or individual disqualified under subsection (1) (d)
must not, while disqualified:
(a) be registered under this Act, or
(b) be concerned in the direction, management or conduct
of a business for which this Act requires a person to be
registered.
[38] Section 74A Application of certain winding up provisions of
Corporations legislation
Omit "of the Department of Fair Trading" wherever occurring.
Insert instead "within the meaning of that Act".
[39] Section 75 Appeal against refusal to register funeral contribution
fund or to approve alteration or addition of rules
Insert "or a person to carry on contributory funeral benefit business under
section 16B" after "section 14" in section 75 (1) (a).
[40] Section 75 (1) (c)
Insert after section 75 (1) (b):
, or
(c) refuses under section 16C (5) to exempt a person
registered under that section from complying with a
provision of this Act or the regulations,
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
[41] Section 75 (2) (b)
Omit "company or approve the alteration of or the addition to the rules of
the fund".
Insert instead "person, approve the alteration of or the addition to the rules
of the fund or exempt the person from the provision of this Act or the
regulations".
[42] Sections 75A and 75B
Insert after section 75:
75A Appeal against decision to impose conditions on registration
of funeral contribution fund
(1) A person who is registered to carry on contributory funeral
benefit business subject to conditions may appeal to the
Supreme Court against the imposition of the conditions.
(2) On hearing an appeal under subsection (1), the Supreme Court
may make an order:
(a) confirming the registration of the person subject to the
conditions imposed by the Director-General or
imposing other conditions that the Court considers
appropriate, or
(b) directing the Director-General to register the person
without conditions.
75B Appeal against decision to cancel registration of funeral
contribution fund
(1) If the Director-General cancels the registration of a funeral
contribution fund under section 16 (subsection (1) (f)
excepted), an appeal against the cancellation may be made to
the Supreme Court by the fund concerned.
(2) On hearing an appeal under subsection (1), the Supreme Court
may make an order:
(a) confirming the cancellation by the Director-General, or
(b) revoking the cancellation by the Director-General.
[43] Section 77 Appeal against refusal to register pre-paid funeral fund
or decision to cancel that registration
Insert "or section 39B" after "section 37" in section 77 (1) (a).
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[44] Section 77 (1) (ba)
Insert after section 77 (1) (b):
(ba) refuses under section 39B (5) to exempt a person
registered under that section from complying with a
provision of this Act or the regulations, or
[45] Section 77 (2A)
Insert after section 77 (2):
(2A) On hearing an appeal under subsection (1) (ba), the Supreme
Court may make an order:
(a) confirming the refusal of the Director-General, or
(b) directing the Director-General to exempt the person
from complying with the provision of this Act or the
regulations.
[46] Section 77A
Insert after section 77:
77A Appeal against decision to impose conditions on registration
of pre-paid funeral funds
(1) A person who is registered to act as a trustee of trust funds
under a pre-paid contract may appeal to the Supreme Court
against the imposition of conditions on the registration.
(2) On hearing an appeal under subsection (1), the Supreme Court
may make an order:
(a) confirming the registration of the person subject to the
conditions imposed by the Director-General or other
conditions the Court considers appropriate, or
(b) directing the Director-General to register the person
without conditions.
[47] Section 79A
Insert after section 79:
79A Appeal against imposition of disciplinary measures
(1) This section applies if the Director-General:
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(a) imposes a requirement on a fund under section 66B (1)
(a), or
(b) imposes or varies a condition on a fund's registration
under section 66B (1) (b), or
(c) suspends a fund's registration under section 66B (1) (c),
or
(d) disqualifies a fund or individual from being registered
or being concerned in the direction, management or
conduct of the business of carrying on contributory
funeral benefit business or acting as a trustee of trust
funds under a pre-paid contract under section
66B (1) (d), or
(e) cancels a fund's registration under section 66B (1) (e).
(2) An appeal against the imposition or variation of that
requirement or condition, or the suspension, disqualification
or cancellation, may be made to the Supreme Court by the
fund or individual concerned.
(3) On hearing an appeal under subsection (2), the Supreme Court
may make an order:
(a) confirming the Director-General's decision to impose
or vary the requirement or condition, suspend the
registration, disqualify the fund or individual or cancel
the registration, or take another disciplinary measure
the Court considers appropriate, or
(b) revoke the requirement, condition, suspension,
disqualification or cancellation.
[48] Section 82 Failure of Director-General to act on application
deemed refusal
Insert "(other than on application under section 16B)" after "business" in
section 82 (a).
[49] Section 82 (d)
Insert "(other than on application under section 39A)" after "contracts".
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[50] Section 82 (2)
Insert at the end of section 82:
(2) For the purposes of this Part, the Director-General is deemed
to have refused an application under section 16B or 39A if the
Director-General does not give a decision on an application
made under that section within 6 months after the application
is made.
[51] Section 85A
Insert after section 85:
85A False or misleading statements
(1) A person who, in a document required for the purposes of this
Act or lodged with the Director-General, makes, or authorises
the making of, a statement knowing it to be false or
misleading in a material particular is guilty of an offence.
Maximum penalty: 10 penalty units.
(2) A person who, from a document required for the purposes of
this Act or lodged with the Director-General, omits, or
authorises the omission of, anything knowing that the
omission makes the document misleading in a material
particular is guilty of an offence.
Maximum penalty: 10 penalty units.
(3) A person who, in a document required for the purposes of this
Act or lodged with the Director-General, makes, or authorises
the making of, a statement that is false or misleading in a
material particular is guilty of an offence unless it is proved
that the person had taken reasonable precautions aimed at
avoiding the making or authorising of false or misleading
statements in such a document.
Maximum penalty: 10 penalty units.
(4) If an omission makes a document required for the purposes of
this Act or lodged with the Director-General misleading in a
material respect, a person who made or authorised the
omission is guilty of an offence unless it is proved that the
Page 26
Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
person had taken reasonable precautions aimed at avoiding
the making or authorising of omissions that would make such
a document false or misleading.
Maximum penalty: 10 penalty units.
[52] Section 92 Regulations
Insert at the end of section 92 (2) (d):
, and
(e) the transfer of contributions made by a contributor from
one funeral contribution fund to another such fund, and
(f) the transfer of trust funds from one pre-paid funeral
fund to another such fund, and
(g) the transfer of a contract from one funeral director to
another funeral director, and
(h) the requirements for actuarial investigations of pre-paid
funeral funds, and
(i) the information that must be provided to a consumer
before a pre-paid contract is entered into, and
(j) without limiting paragraph (i), information that must be
provided to a consumer about the funeral services that
will be provided under a pre-paid contract, including
information about the funeral services that are not
covered by the contract, and
(k) the information that must be provided with a pre-paid
contract, including information relating to cancellation
of the contract under section 49.
[53] Part 8, Division 1A
Omit the Division.
[54] Section 105 Director-General may give directions for transfer of
business
Omit "the Government Actuary" from section 105 (2) (b).
Insert instead "an actuary".
[55] Section 105 (3)
Omit "Government Actuary". Insert instead "actuary".
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Funeral Funds Amendment Bill 2003
Schedule 1 Amendment of Funeral Funds Act 1979
[56] Part 9, Division 1A
Omit the Division.
[57] Part 10
Insert after Part 9:
Part 10 Savings and transitional provisions
124 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Funeral Funds Amendment Act 2003
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
125 Contributory funeral benefit business
(1) This section applies to a person who, immediately before the
commencement of this section:
(a) carried on the business of a funeral contribution fund,
and
(b) was exempt from the application of section 11 pursuant
to section 11 (3) or from the application of section 94
pursuant to section 97A, and
(c) within 6 months after that commencement, applies to
the Director-General to be registered under this Act to
carry on contributory funeral benefit business.
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Funeral Funds Amendment Bill 2003
Amendment of Funeral Funds Act 1979 Schedule 1
(2) The person does not commit an offence against section 11 if
the person continues to carry on the business of a funeral
contribution fund during the period starting on the
commencement of this section and ending on the day the
Director-General makes a decision under section 16C about
the person's application.
126 Pre-paid funeral funds
(1) This section applies to a person who, immediately before the
commencement of this section:
(a) acted as trustee of trust funds under a pre-arranged
contract, and
(b) was exempt from the application of section 34 pursuant
to section 34 (2) or from the application of section 112
pursuant to section 114B, and
(c) within 6 months after that commencement, applies to
the Director-General to be registered under this Act to
act as trustee of trust funds under pre-paid contracts.
(2) The person does not commit an offence against section 34 if
the person continues to act as the trustee of trust funds under
a pre-paid contract during the period starting on the
commencement of this section and ending on the day the
Director-General makes a decision under section 39B about
the person's application.
Page 29
Funeral Funds Amendment Bill 2003
Schedule 2 Amendment of Funeral Funds Regulation 2001
Schedule 2 Amendment of Funeral Funds
Regulation 2001
(Section 4)
[1] Whole Regulation (except clauses 14 and 1722)
Omit "pre-arranged" wherever occurring. Insert instead "pre-paid".
[2] Clause 8 Limitations on certain management expenses
(section 21)
Omit the clause.
[3] Part 3, heading
Omit "Pre-arranged". Insert instead "Pre-paid".
[4] Clause 14 Maximum commission chargeable (section 46)
Omit the clause.
[5] Clauses 1723
Omit the clauses.
[6] Clause 24 Fees
Omit "clause 21" from the table to the clause.
Insert instead "section 49G (1) of the Act".
[7] Clause 24, table
Omit "clause 17 (2)". Insert instead "section 49C (2) of the Act".
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