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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Funerals Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
PART 2--FUNERAL INDUSTRY MINISTERIAL ADVISORY
COUNCIL 5
4. Funeral Industry Ministerial Advisory Council 5
5. Functions of the Council 6
6. Meetings of the Council 6
PART 3--REGISTERS 8
Division 1--Register of Funeral Providers 8
7. Register of funeral providers 8
8. Contents of register of funeral providers 8
9. Access to register 9
10. Requirement to notify Director 9
11. Changes in registration information 9
Division 2--Register of Pre-Paid Funeral Contracts 10
12. Register of pre-paid funeral contracts 10
13. Contents of register of pre-paid funeral contracts 10
14. Access to register 11
15. Inclusion of pre-paid funeral contracts in register 11
16. Requirement to provide information to Director 11
17. Application to remove contract from register 12
18. Changes to information in register 12
Division 3--General 13
19. False or misleading statements 13
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551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Clause Page
PART 4--FUNERAL SERVICES 15
20. Requirement to offer basic funeral service 15
21. Requirement to produce funeral goods and services price list 15
22. Availability of funeral goods and services price list 16
23. Requirement to produce and provide coffin price list 17
24. Requirement to produce and provide statement of funeral costs 17
PART 5--PRE-PAID FUNERAL CONTRACTS 20
Division 1--Interpretation 20
25. Definition of funeral provider 20
26. References relating to pre-paid funeral contracts 20
Division 2--Pre-Paid Funeral Contracts 21
27. Funeral provider to provide information about investment 21
28. Pre-paid funeral contracts 22
29. Investment of money 23
30. Procedure for investment 25
31. Consideration under contract 26
32. Funeral provider not to accept other money 27
33. Receipt 28
Division 3--Termination of Pre-Paid Funeral Contracts 28
34. Definition of "funeral provider" 28
35. Termination of pre-paid funeral contract by purchaser 29
36. Termination of contract by funeral provider 30
37. When does termination take effect? 30
38. What must happen on termination? 30
39. Winding up 32
40. Legal personal representative of person may act 32
41. Other termination rights not affected 32
Division 4--Register of Contracts 33
42. Register of contracts 33
Division 5--Accounts and Records 33
43. Keeping of records 33
44. Accounts to be kept 34
PART 6--CODE OF PRACTICE 35
45. Preparation of draft code of practice by the Director 35
46. Consideration of draft code of practice prepared by other
persons 35
47. Prescribing codes of practice 35
48. Offence to breach code of practice 36
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551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Clause Page
PART 7--COMPLAINTS HANDLING 37
49. Procedure for dealing with complaints 37
50. Written document of complaints handling procedure 37
51. Provision of procedures for dealing with complaints 38
52. Guidelines 38
PART 8--ENFORCEMENT 39
Division 1--Powers of Director 39
53. Director may require information 39
Division 2--Application of Fair Trading Act Provisions 40
54. Incorporation of provisions of Fair Trading Act 1999 40
Division 3--Powers of Inspectors 41
55. Production of identity card 41
56. Searches to monitor compliance with this Act 41
57. Offence-related searches and seizures 42
58. Occupier to be given copy of consent 44
59. Search warrant 44
60. Announcement before entry 45
61. Copy of warrant to be given to occupier 46
62. Receipt must be given for any thing seized 46
63. Copies of certain seized things to be given 46
64. Use of equipment to examine or process things 47
65. Use or seizure of electronic equipment at premises 48
66. Compensation for damage caused during inspections 49
67. Return of seized things 50
68. Court may extend period 50
69. Power of inspector to require information or documents 51
70. False or misleading information 51
71. Protection against self-incrimination 52
72. Offence to hinder or obstruct inspector 52
73. Entry to be reported to the Director 52
74. Register of exercise of powers of entry 53
75. Complaints 53
Division 4--Confidentiality 53
76. Disclosure of information 53
Division 5--General 54
77. Limitation 54
78. Actions by firms 54
79. Who may bring proceedings for an offence? 54
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Clause Page
PART 9--GENERAL 56
80. Service of documents 56
81. Delegation 56
82. Regulations 57
PART 10--SAVINGS AND TRANSITIONAL PROVISIONS 59
83. Definitions 59
84. General transitional provisions 59
85. References to old Act 60
86. Application to pre-existing pre-paid funeral contracts 60
87. Existing pre-paid funeral contracts 60
88. Register of contracts 61
PART 11--REPEAL AND AMENDMENT 62
89. Repeal of Funerals (Pre-Paid Money) Act 1993 62
90. Amendment of Fair Trading Act 1999 62
ENDNOTES 63
INDEX 64
iv
551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
PARLIAMENT OF VICTORIA
A BILL
to provide for the regulation of the funeral industry, to re-enact
provisions relating to the regulation of pre-paid funeral contracts, to
provide for Codes of Practice, to repeal the Funerals (Pre-Paid
Money) Act 1993, to amend the Fair Trading Act 1999 and for other
purposes.
Funerals Act 2006
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to provide for the regulation of the funeral
industry; and
5
(b) to regulate pre-paid funeral contracts; and
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551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Funerals Act 2006
Act No.
Part 1--Preliminary
s. 2
(c) to establish a Funeral Industry Ministerial
Advisory Council; and
(d) to provide for Codes of Practice; and
(e) to repeal the Funerals (Pre-Paid Money)
Act 1993.
5
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 November 2007, it comes into
10
operation on that day.
3. Definitions
In this Act--
"associate" of a person includes--
(a) in the case of a person which is a body
15
corporate, a related body corporate
within the meaning of the Corporations
Act; and
(b) any body corporate of which the person
is a director or in the management of
20
which the person is concerned;
"basic funeral service" has the meaning given by
section 20;
"coffin price list" means a list required by
section 23;
25
"consideration" in relation to a contract
includes--
(a) a transfer or assignment of or a promise
to transfer or assign money or an
investment or an interest in an
30
investment in favour of a party to the
contract or an associate of that party;
and
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Funerals Act 2006
Act No.
Part 1--Preliminary
s. 3
(b) any administration fee or brokerage fee
paid in respect of the contract;
"Council" means the Funeral Industry Ministerial
Advisory Council established under Part 2;
"Director" has the same meaning as it has in the
5
Fair Trading Act 1999;
"disbursements" means money paid by a funeral
provider for funeral goods and funeral
services bought from a third party on behalf
of a consumer;
10
"firm" means a partnership or other
unincorporated body but does not include a
trust;
"funeral goods" means products supplied to a
consumer in connection with funeral
15
services;
"funeral goods and services price list" means
the list required by section 21;
"funeral provider" means any person carrying
on the business of supplying funeral goods
20
and funeral services to the public;
"funeral services" means--
(a) services for the care and preparation of
human bodies for burial, cremation or
other final disposition;
25
(b) the arrangement, supervision or
conduct of a funeral ceremony or final
disposition of human remains;
"GST" has the same meaning as it has in the
A New Tax System (Goods and Services
30
Tax) Act 1999 of the Commonwealth;
"inspector" means a person appointed under
section 114 of the Fair Trading Act 1999;
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Funerals Act 2006
Act No.
Part 1--Preliminary
s. 3
"person" includes a firm;
"pre-paid funeral contract" means an
agreement or arrangement--
(a) the purpose of which is or includes the
payment of money or the giving of
5
other valuable consideration for--
(i) the supply of funeral services
(with or without the supply of
funeral goods) by a party to the
agreement or arrangement; or
10
(ii) the supply of funeral services
(with or without the supply of
funeral goods) to be arranged by a
party to the agreement or
arrangement; and
15
(b) which is made before the death of the
person in respect of whom the service
is to be supplied;
"register of funeral providers" means the
register established under Division 1 of
20
Part 3;
"register of pre-paid funeral contracts" means
the register established under Division 2 of
Part 3;
"registration information" means the
25
information that the Director is required to
record under section 8;
"statement of funeral costs" means the
statement required by section 24.
__________________
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Funerals Act 2006
Act No.
Part 2--Funeral Industry Ministerial Advisory Council
s. 4
PART 2--FUNERAL INDUSTRY MINISTERIAL ADVISORY
COUNCIL
4. Funeral Industry Ministerial Advisory Council
(1) There is established a Funeral Industry Ministerial
Advisory Council.
5
(2) The Council consists of 9 members appointed by
the Minister of whom--
(a) 3 are to be funeral providers;
(b) 3 are to be persons--
(i) who are employed in the funeral
10
industry; or
(ii) who represent persons employed in the
funeral industry;
(c) 3 are to be persons--
(i) who are appointed to represent the
15
interests of consumers; or
(ii) who work in the health industry.
(3) In appointing a person to be a member of the
Council, the Minister must be satisfied that the
person has appropriate knowledge, experience or
20
skills relevant to the funeral industry.
(4) The Chairperson of the Council is to be appointed
from among the members of the Council by the
Minister.
(5) A member of the Council--
25
(a) holds office for the period, not exceeding
5 years, specified in the instrument of
appointment and is eligible for re-
appointment;
(b) is entitled to be paid any travelling and other
30
allowances approved by the Minister;
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Funerals Act 2006
Act No.
Part 2--Funeral Industry Ministerial Advisory Council
s. 5
(c) is not in respect of the office of the member
subject to the Public Administration Act
2004.
(6) The Minister may at any time--
(a) remove a member of the Council from
5
office;
(b) fill a vacancy in the office of a member of
the Council.
5. Functions of the Council
The functions of the Council are--
10
(a) to monitor the operation of this Act and the
regulations;
(b) to monitor the provision of services by the
funeral industry and developments in the
funeral industry generally;
15
(c) to advise the Minister--
(i) in respect of matters relating to the
provision of funeral services;
(ii) on any matter referred to the Council
by the Minister;
20
(d) to make recommendations to the Minister--
(i) on matters affecting the operation of
this Act and the regulations;
(ii) on matters relating to the provision of
funeral services.
25
6. Meetings of the Council
(1) Meetings of the Council must be presided over by
the Chairperson or if the Chairperson is absent the
members present must elect one of their number
to preside at the meeting.
30
(2) A majority of members of the Council for the time
being in office constitute a quorum.
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Funerals Act 2006
Act No.
Part 2--Funeral Industry Ministerial Advisory Council
s. 6
(3) Subject to the presence of a quorum, the Council
may act despite any vacancy in its membership.
(4) The decision on any matter by the majority of the
members of the Council present at any meeting is
the decision of the Council.
5
(5) Subject to this Act, the Council may regulate its
own procedure.
__________________
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551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Funerals Act 2006
Act No.
Part 3--Registers
s. 7
PART 3--REGISTERS
Division 1--Register of Funeral Providers
7. Register of funeral providers
(1) The Director must establish and maintain a
register of funeral providers in accordance with
5
this Division to record the details of persons who
carry on the business of a funeral provider in
Victoria.
(2) The purpose of the register is to give members of
the public access to a list of the funeral providers
10
in Victoria.
(3) The Director may keep the register of funeral
providers in any form the Director thinks fit.
8. Contents of register of funeral providers
The Director must record in the register of funeral
15
providers the following information in respect of
each funeral provider in Victoria--
(a) the name of the funeral provider;
(b) the business address of the principal place of
business of the funeral provider;
20
(c) the postal address of the funeral provider;
(d) the address of each place of business of the
funeral provider in Victoria;
(e) any other prescribed information.
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Funerals Act 2006
Act No.
Part 3--Registers
s. 9
9. Access to register
Any person, on application in accordance with the
regulations (if any) and on payment of the
prescribed fee (if any) may--
(a) inspect the register of funeral providers; and
5
(b) make a copy of, or take extracts from, the
register of funeral providers.
10. Requirement to notify Director
(1) A funeral provider must provide the Director with
the registration information relating to that funeral
10
provider--
(a) in the case of a funeral provider who is
carrying on business as a funeral provider on
the commencement of section 7 of this Act,
within 3 months after that commencement;
15
and
(b) in any other case, within 28 days of
commencing business as a funeral provider.
Penalty: 10 penalty units.
(2) A funeral provider must notify the Director of a
20
change in any of the registration information
relating to the funeral provider within 14 days of
the change.
Penalty: 10 penalty units.
(3) Information under this section must be provided in
25
a manner and form approved by the Director.
11. Changes in registration information
(1) The Director may send to a funeral provider a
copy of the registration information in relation to
that funeral provider and a written request that the
30
funeral provider--
(a) confirm that that registration information is
correct; or
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Funerals Act 2006
Act No.
Part 3--Registers
s. 12
(b) if the registration information is not correct,
notify the Director of any change that is
required to the registration information.
(2) Within 28 days of receiving a request under sub-
section (1), a funeral provider must respond to the
5
request by--
(a) confirming that the registration information
is correct; or
(b) if the registration information is not correct,
notifying the Director of any change that is
10
required to the registration information.
Penalty: 10 penalty units.
(3) The Director may at any time amend, vary or
remove an entry in the register of funeral
providers.
15
Division 2--Register of Pre-Paid Funeral Contracts
12. Register of pre-paid funeral contracts
(1) The Director may establish a register of pre-paid
funeral contracts.
(2) The purpose of the register of pre-paid funeral
20
contracts is to enable information about the
existence of a pre-paid funeral contract to be made
available to affected persons.
(3) The Director may keep the register of pre-paid
funeral contracts in any form the Director thinks
25
fit.
13. Contents of register of pre-paid funeral contracts
Subject to this Division, the Director may record
in the register of pre-paid funeral contracts any
information relating to a pre-paid funeral contract
30
provided to the Director under this Division that
the Director considers appropriate.
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Funerals Act 2006
Act No.
Part 3--Registers
s. 14
14. Access to register
(1) Subject to this section, any person, on application
in accordance with the regulations (if any) and on
payment of the prescribed fee (if any) may--
(a) inspect the register of pre-paid funeral
5
contracts; and
(b) make a copy of, or take extracts from, the
register of pre-paid funeral contracts.
(2) The Director may restrict access to the register of
pre-paid funeral contracts in the circumstances
10
determined by the Director.
15. Inclusion of pre-paid funeral contracts in register
(1) A funeral provider may apply to the Director to
record information relating to a pre-paid funeral
contract in the register of pre-paid funeral
15
contracts.
(2) An application under sub-section (1) must--
(a) contain the prescribed information; and
(b) be accompanied by the prescribed fee.
16. Requirement to provide information to Director
20
(1) A funeral provider must provide the Director, in
accordance with the regulations, with the
prescribed information relating to pre-paid funeral
contracts.
Penalty: 60 penalty units.
25
(2) For the purposes of sub-section (1), the prescribed
information may include all or any of the
following--
(a) information in relation to a prescribed class
of pre-paid funeral contract;
30
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Funerals Act 2006
Act No.
Part 3--Registers
s. 17
(b) information in relation to pre-paid funeral
contracts that have been terminated or
fulfilled;
(c) information or reports in relation to pre-paid
funeral contracts entered into--
5
(i) with a particular person; or
(ii) before or after a particular date
specified by the Director; or
(iii) during a specified period or periods.
17. Application to remove contract from register
10
(1) A purchaser under a pre-paid funeral contract may
apply to the Director to remove the information
relating to that contract from the register of pre-
paid funeral contracts.
(2) An application under this section must--
15
(a) be made in a form approved by the Director;
and
(b) be accompanied by the prescribed fee.
18. Changes to information in register
(1) The Director may write to a funeral provider who
20
is a party to a pre-paid funeral contract and
request that the funeral provider--
(a) confirm that the details recorded on the
register of pre-paid funeral contracts are
correct; or
25
(b) if the details recorded on the register of pre-
paid funeral contracts are not correct, notify
the Director of any change that is required to
those details.
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Funerals Act 2006
Act No.
Part 3--Registers
s. 19
(2) Within 28 days of receiving a request under sub-
section (1), a funeral provider must respond to the
request by--
(a) confirming that the details recorded on the
register of pre-paid funeral contracts are
5
correct; or
(b) if the details recorded on the register of pre-
paid funeral contracts are not correct,
notifying the Director of any change that is
required to those details.
10
Penalty: 10 penalty units.
(3) The Director may at any time amend, vary or
remove an entry in the register of pre-paid funeral
contracts.
Division 3--General
15
19. False or misleading statements
(1) A person must not give information or make a
statement that is false or misleading by reason of
the inclusion of any false or misleading matter or
the omission of any material matter--
20
(a) in any application or notice under this Part;
or
(b) in the provision of details for inclusion in, or
amendment of, the register of funeral
providers or the register of pre-paid funeral
25
contracts under this Part.
Penalty: 60 penalty units for a natural
person or, in any other case,
120 penalty units.
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Funerals Act 2006
Act No.
Part 3--Registers
s. 19
(2) It is a defence to a prosecution for an offence
against sub-section (1) if a person proves that,
when the information was given or the statement
made, the person--
(a) believed on reasonable grounds--
5
(i) that the false matter was true; or
(ii) that the misleading matter was not
misleading; or
(iii) in the case of an omission, that no
material matter had been omitted; or
10
(b) in the case of an omission, did not know that
the omitted matter was material.
__________________
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Funerals Act 2006
Act No.
Part 4--Funeral Services
s. 20
PART 4--FUNERAL SERVICES
20. Requirement to offer basic funeral service
(1) A funeral provider must offer a basic funeral
service for the disposition of human remains by
burial or cremation in accordance with the
5
regulations (if any).
Penalty: 60 penalty units.
(2) In this section "basic funeral service" means the
provision of--
(a) prescribed funeral goods; and
10
(b) prescribed funeral services.
21. Requirement to produce funeral goods and services
price list
(1) A funeral provider must produce a clear and
legible price list of all the funeral goods and
15
funeral services it provides which complies with
this section.
Penalty: 60 penalty units.
(2) A funeral goods and services price list--
(a) must include a description and total price of
20
the funeral goods and funeral services
offered by the funeral provider; and
(b) must include a list of any service fees that
may be charged by the funeral provider; and
(c) must reflect the maximum price that a
25
funeral provider charges for the funeral
goods and funeral services; and
15
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Funerals Act 2006
Act No.
Part 4--Funeral Services
s. 22
(d) in relation to the basic funeral service offered
by the funeral provider, must contain--
(i) a description of what is included in that
service; and
(ii) the total price of that service.
5
(3) A funeral goods and services price list must
either--
(a) contain the full range, description and price
of all coffins available for purchase; or
(b) include a price range for the coffins available
10
for purchase and advise that a coffin price
list is available.
(4) A funeral goods and services price list must
contain the prescribed particulars (if any).
(5) A funeral goods and services price list must be in
15
the prescribed form (if any).
(6) If a funeral provider offers packages of funeral
goods and funeral services, the funeral goods and
services price list must contain a description of the
goods and services that are provided in each
20
package and the total cost of the package.
22. Availability of funeral goods and services price list
A funeral provider must give a copy of the funeral
provider's funeral goods and services price list
to--
25
(a) any person who asks in person about funeral
goods or funeral services and their prices;
and
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Funerals Act 2006
Act No.
Part 4--Funeral Services
s. 23
(b) any other person on request.
Penalty: 60 penalty units.
Note: The following provisions of the Fair Trading Act 1999
may apply to any breach of a funeral provider's obligations
5 under this Division--
section 8 (unconscionable conduct);
section 9 (misleading or deceptive conduct);
section 10 (misleading conduct in relation to goods);
section 11 (misleading conduct in relation to services);
10 section 12 (false representations in relation to goods and
services);
section 19 (accepting payment without being able to supply
as ordered).
23. Requirement to produce and provide coffin price
list
15
If a funeral goods and services price list does not
contain the full range, description and price of all
coffins available for purchase, the funeral provider
must give a copy of a clear and legible list
containing a description and total price of each
20
coffin that is available for purchase to--
(a) any person who asks in person about coffins
and their prices; and
(b) to any other person on request.
Penalty: 60 penalty units.
25
24. Requirement to produce and provide statement of
funeral costs
(1) Before entering into any agreement for the
provision of funeral goods or funeral services, a
funeral provider must provide the customer with a
30
statement--
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Funerals Act 2006
Act No.
Part 4--Funeral Services
s. 24
(a) setting out an itemised list of--
(i) the cost of the funeral goods and
funeral services selected by the
customer; and
(ii) service fees; and
5
(iii) disbursements; or
(b) if the proposal is a funeral package, an
itemised list of each item provided in the
package and the total cost of the package.
Penalty: 60 penalty units.
10
(2) A funeral provider must ensure that each item on a
statement of funeral costs (except disbursements)
corresponds with an item on the funeral goods and
services price list produced by the funeral
provider.
15
Penalty: 60 penalty units.
(3) Subject to sub-section (4), a funeral provider must
ensure that a statement of funeral costs lists
disbursements separately.
Penalty: 60 penalty units.
20
(4) If a funeral provider does not know the cost of the
disbursements at the time of providing the
statement of funeral costs, the funeral provider
must--
(a) include on the statement a reasonable
25
estimate of the cost of the disbursements;
and
(b) provide a further written statement of the
actual disbursements with the final invoice.
Penalty: 60 penalty units.
30
18
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Funerals Act 2006
Act No.
Part 4--Funeral Services
s. 24
(5) A statement of funeral costs must--
(a) state that the funeral provider has a
complaints handling procedure; and
(b) set out how a customer can make a
complaint.
5
Penalty: 60 penalty units.
(6) Sub-section (2) only applies in relation to a
funeral goods and services price list required to be
produced on or after the commencement of
section 21.
10
__________________
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551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Funerals Act 2006
Act No.
Part 5--Pre-Paid Funeral Contracts
s. 25
PART 5--PRE-PAID FUNERAL CONTRACTS
Division 1--Interpretation
25. Definition of funeral provider
In this Part "funeral provider" includes a person
who carries on a business of arranging the supply
5
of funeral services under pre-paid funeral
contracts.
26. References relating to pre-paid funeral contracts
(1) In this Part, a reference to money paid in respect
of a pre-paid funeral contract includes a reference
10
to money paid in respect of any investment the
assignment or transfer of which, or the assignment
or transfer of an interest in which, or the promise
of the assignment or transfer of which, or the
promise of the assignment or transfer of an
15
interest in which forms the consideration or part
of the consideration for the contract.
(2) In this Part, a reference to money paid to a funeral
provider includes a reference to money paid to or
received by the funeral provider as agent for any
20
person or to any agent or associate of the funeral
provider.
(3) In this Part, a reference to the supply of funeral
services under a pre-paid funeral contract
includes--
25
(a) a reference to the supply of funeral goods
specified in the contract; and
(b) a reference to the supply of funeral services
by arrangement under a pre-paid funeral
contract.
30
(4) In this Part, in the case of an agreement or
arrangement under which funeral services are or
were to be supplied or arranged to be supplied in
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respect of the first person to die of 2 or more
named persons--
(a) a reference to the death of the person in
respect of whom a funeral or funeral service
is or was to be supplied (however expressed)
5
is a reference to the death of the first of those
named persons to die; and
(b) a reference to an investment or payment
being made or having been made in the name
of the person in respect of whom a funeral or
10
funeral service is to be supplied (however
expressed) is a reference to an investment or
payment being made or having been made in
the names of each of those named persons in
the alternative.
15
Division 2--Pre-Paid Funeral Contracts
27. Funeral provider to provide information about
investment
Before entering into a pre-paid funeral contract, a
funeral provider must give each other party to the
20
contract details in writing of--
(a) the manner in which any money to be paid to
the funeral provider by or on behalf of that
party in respect of the contract is to be
invested, including--
25
(i) the type of investment; and
(ii) the terms and conditions applying to
that investment; and
(iii) any other prescribed information; and
(b) any administration fee or brokerage fee
30
payable in respect of the contract.
Penalty: 360 penalty units.
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28. Pre-paid funeral contracts
(1) A funeral provider must not enter into a pre-paid
funeral contract unless that contract--
(a) is in writing; and
(b) complies with sub-sections (2) and (4); and
5
(c) contains any other terms and conditions
prescribed in respect of that class of contract.
Penalty: 600 penalty units.
(2) The contract must specify--
(a) the funeral services to be supplied under the
10
contract; and
(b) any funeral goods to be supplied under the
contract in connection with the funeral
services; and
(c) the consideration to be paid or given in
15
respect of the contract for the supply of those
funeral services (including any funeral goods
referred to in paragraph (b)); and
(d) that, subject to sub-section (3), any money
paid to the funeral provider in respect of the
20
contract by or on behalf of any other party to
the contract is required to be--
(i) invested in a specified investment in
accordance with sections 29(1) and 30;
or
25
(ii) paid to the trustees of a cemetery in
accordance with sections 29(2) and 30.
(3) Sub-section (2)(d) does not apply to an
administration fee or brokerage fee paid in respect
of a pre-paid funeral contract.
30
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(4) Without affecting the operation of sections 29
and 30, if the consideration or part of the
consideration under the contract is an assignment
or transfer or the promise of an assignment or
transfer of an investment or an interest in an
5
investment, the contract must specify the type of
investment and must require the investment--
(a) to be made or to have been made in the name
of the person in respect of whom the funeral
is to be supplied; and
10
(b) to be an investment of a kind referred to in
section 29(1).
(5) The funeral provider must give each other party to
the contract a copy of the contract.
Penalty: 120 penalty units.
15
(6) Despite sub-section (1) a contract entered into in
contravention of that sub-section is not void by
reason only of the contravention.
29. Investment of money
(1) Subject to sub-sections (2) and (3), a funeral
20
provider must ensure that all money paid to the
funeral provider in respect of a pre-paid funeral
contract by or on behalf of any other party to the
contract is invested in--
(a) a funeral benefit fund established or deemed
25
to be established under the Friendly Societies
(Victoria) Code or by a body that is a
friendly society for the purposes of the Life
Insurance Act 1995 of the Commonwealth;
or
30
(b) a policy issued by or other investment with a
company registered under the Life Insurance
Act 1945 of the Commonwealth under which
there is a guaranteed payment on the death of
a person and the amount of that payment is
35
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Part 5--Pre-Paid Funeral Contracts
s. 29
specified at the time the investment is made;
or
(c) a policy issued by or other investment with a
company registered under the Life Insurance
Act 1945 of the Commonwealth under which
5
there is a guaranteed payment on the death of
a person which consists of the premium paid
for the investment--
(i) less any costs incurred in respect of the
investment; and
10
(ii) plus any interest accruing in respect of
the investment; or
(d) any other manner approved by the Minister,
generally or in a particular case, by notice
published in the Government Gazette.
15
Penalty: 600 penalty units.
(2) If a pre-paid funeral contract provides for the
purchase of a right of burial or interment in a
cemetery or for the payment of any other fees
(including fees for cremation or preservation or
20
disposition of ashes) to the trustees of a cemetery
on behalf of the person in respect of whom the
funeral is to be supplied, the funeral provider may
arrange for money paid to the funeral provider in
respect of that contract to be paid to the trustees of
25
the cemetery for that purpose.
(3) A funeral provider or an associate of a funeral
provider holds any money paid to the funeral
provider or associate in respect of a pre-paid
funeral contract by or on behalf of any other party
30
to the contract on trust for that other party until
that money is paid or invested in accordance with
sub-section (1) or (2).
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(4) Sub-sections (1) and (3) do not apply to--
(a) an administration fee or brokerage fee paid
in respect of a pre-paid funeral contract; or
(b) an amount paid in respect of any GST
payable on the supply to which a pre-paid
5
funeral contract relates.
30. Procedure for investment
(1) A funeral provider must ensure that an investment
or payment under section 29(1) or (2) is made--
(a) in the name of the person in respect of whom
10
the funeral services are to be supplied; and
(b) in accordance with the contract.
Penalty: 600 penalty units.
(2) A funeral provider must ensure that any
investment or payment under section 29 is
15
made--
(a) if the money is paid to the funeral provider in
cash, before the end of the third business
day; and
(b) if the money is paid to the funeral provider
20
otherwise than in cash, before the end of the
seventh business day--
after the money is received by the funeral provider
or by any agent or associate of the funeral
provider.
25
Penalty: 600 penalty units.
(3) Within 21 days after receipt of any money paid to
a funeral provider under a pre-paid funeral
contract by or on behalf of any other party to the
contract, the funeral provider must give that other
30
party copies of any documents--
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(a) which relate to any payment or investment of
that money under section 29; and
(b) which are in a class of documents approved
under sub-section (4).
Penalty: 120 penalty units.
5
(4) The Minister may by notice published in the
Government Gazette approve classes of
documents for the purposes of this section.
(5) If an investment is made under section 29(1)(b),
29(1)(c) or 29(1)(d), the funeral provider
10
concerned must inform the investment body that
the investment is made for the purpose of a
funeral service to be supplied under a pre-paid
funeral contract.
Penalty: 120 penalty units.
15
31. Consideration under contract
(1) A funeral provider must not demand any
consideration from any person for any funeral
service supplied under a pre-paid funeral contract
other than the consideration provided for in the
20
contract.
Penalty: 360 penalty units.
(2) Despite sub-section (1), a funeral provider may
recover charges for a funeral service supplied in
respect of a person if--
25
(a) the funeral service supplied was different
from or included an additional service to the
funeral service to be supplied under the pre-
paid funeral contract; and
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(b) the legal personal representative of the
person in respect of whom the funeral is to
be supplied has agreed to the different or
additional service and before so agreeing,
has signed a statement to the effect that he or
5
she was aware that the funeral service
specified in the pre-paid funeral contract
could be supplied without further cost but
that he or she agreed to a different or
additional service; and
10
(c) the charges for the funeral service so
supplied are reduced by an amount equal to
the value of the consideration (less any
administration fee or brokerage fee) given
under the contract for the original funeral
15
service.
32. Funeral provider not to accept other money
(1) A funeral provider or associate of a funeral
provider must not accept any money payable to
the funeral provider or an associate of the funeral
20
provider under any investment specified in a pre-
paid funeral contract unless the funeral service
specified in the contract has been supplied in
accordance with the contract or another service
has been supplied in accordance with section
25
31(2).
Penalty: 360 penalty units.
(2) A funeral provider or an associate of a funeral
provider must not accept any commission or other
payment from any person in respect of any
30
investment made under section 29(1) or 29(2) or
money held under section 29(3) other than the
consideration payable to the funeral provider or
associate in accordance with the pre-paid funeral
contract.
35
Penalty: 360 penalty units.
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33. Receipt
(1) If money is paid to a funeral provider in respect of
a pre-paid funeral contract by or on behalf of a
party to that contract, the funeral provider
must ensure that a receipt complying with sub-
5
section (2) is given to the person who made the
payment--
(a) without delay, if the payment is made in
cash; and
(b) before the end of the third business day after
10
the payment is received if--
(i) the money is paid otherwise than in
cash; and
(ii) the person requested a receipt at the
time of making the payment.
15
Penalty: 10 penalty units.
(2) A receipt must state--
(a) particulars sufficient to identify the person
who made the payment; and
(b) the benefit to be provided under the contract;
20
and
(c) the date of receipt of the money; and
(d) the amount paid.
Division 3--Termination of Pre-Paid Funeral Contracts
34. Definition of "funeral provider"
25
In this Division "funeral provider" includes any
person who has ceased to carry on business as a
funeral provider and, except in sections 35(1) and
35(2), also includes the legal personal
representative of a funeral provider.
30
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35. Termination of pre-paid funeral contract by
purchaser
(1) A party to a pre-paid funeral contract (other than a
funeral provider) or the legal personal
representative of that party may terminate that
5
contract at any time before the death of the person
in respect of whom a funeral is to be supplied
under that contract if--
(a) the funeral provider fails to comply with
section 28, 29 or 30; or
10
(b) the service will not be supplied because the
funeral provider has ceased to carry on the
business of supplying or arranging the
supply of services of that kind; or
(c) he or she is otherwise entitled under the
15
contract to terminate the contract.
(2) The legal personal representative of a person in
respect of whom a funeral service is to be supplied
under a pre-paid funeral contract may terminate
the contract at any time on or after the death of the
20
person and before the funeral service is supplied
under that contract if--
(a) the funeral provider was unable or unwilling
to supply or arrange the supply of the funeral
service when it was required; or
25
(b) a funeral service had been supplied in respect
of the person but was not supplied under that
contract and section 31(2) does not apply to
the provision of that funeral service; or
(c) the legal personal representative is otherwise
30
entitled under the contract to terminate the
contract.
(3) A contract may be terminated under sub-
section (1) or (2) by notice in writing served on
the funeral provider.
35
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36. Termination of contract by funeral provider
If a funeral provider is entitled to do so under a
pre-paid funeral contract, the funeral provider may
terminate the contract by notice in writing served
on--
5
(a) each other party to the contract or that party's
legal personal representative, if the contract
is terminated before the death of the person
in respect of whom the funeral is to be
supplied under the contract; and
10
(b) the legal personal representative of the
person in respect of whom the funeral is to
be supplied under the contract, if the contract
is terminated on or after the death of that
person.
15
37. When does termination take effect?
A pre-paid funeral contract is terminated on the
service of a notice under section 35(3) or 36.
38. What must happen on termination?
(1) On the termination of a contract under section 37
20
before the death of the person in respect of whom
a funeral service was to be supplied under the
contract--
(a) the funeral provider and any associate of a
funeral provider must transfer or assign to
25
the other party to the contract or that party's
legal personal representative any interest the
funeral provider or associate has in the
consideration paid or given in respect of the
contract by or on behalf of that party; and
30
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(b) if any money paid to the funeral provider in
respect of the contract by or on behalf of any
other party to the contract has not been
invested or paid out in accordance with
section 29 or 30(1), the funeral provider
5
must pay the amount of that money to that
other party to the contract or that party's
legal personal representative.
Penalty: 360 penalty units.
(2) On the termination of a contract under section 37
10
on or after the death of the person in respect of
whom a funeral service was to be supplied under
the contract--
(a) the funeral provider and any associate of a
funeral provider must transfer or assign to
15
the legal personal representative of the
person in respect of whom a funeral service
was to be supplied under the contract any
interest the funeral provider or associate has
in the consideration paid or given in respect
20
of the contract; and
(b) if any money paid to the funeral provider in
respect of the contract by or on behalf of any
other party to the contract has not been
invested or paid out in accordance with
25
section 29 or 30(1), the funeral provider is
discharged from the trust created under
section 29(3) and must pay the amount of
that money to the legal personal
representative of the person in respect of
30
whom the funeral service was to be supplied
under the contract.
Penalty: 360 penalty units.
(3) Sub-sections (1) and (2) do not apply to an
administration fee or brokerage fee paid in respect
35
of a pre-paid funeral contract.
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39. Winding up
If a funeral provider which is a body corporate is
commenced to be wound up or a receiver or
receiver and manager is appointed for a funeral
provider which is a body corporate--
5
(a) any pre-paid funeral contract to which the
funeral provider was a party is deemed to
have been terminated immediately before
that commencement or appointment; and
(b) any assignment or transfer to the funeral
10
provider of any investment or any interest in
an investment by any other party to the
contract or any promise by any other party to
the contract to assign or transfer an
investment or any interest in an investment
15
to the funeral provider is deemed to have
been cancelled immediately before that
commencement or appointment.
40. Legal personal representative of person may act
Under this Division--
20
(a) a notice of termination can be given; and
(b) an assignment, transfer or payment can be
made--
by or to the legal personal representative of a
person in respect of whom a funeral is to be
25
supplied under a pre-paid funeral contract whether
or not the person was a party to the contract.
41. Other termination rights not affected
Nothing in this Division affects any other rights
(not inconsistent with this Division) that a person
30
may have to terminate a pre-paid funeral contract.
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Division 4--Register of Contracts
42. Register of contracts
A funeral provider must keep a register setting
out--
(a) details of--
5
(i) each person with whom the funeral
provider has entered into a pre-paid
funeral contract; and
(ii) each person in respect of whom a
funeral is to be or may be supplied
10
under that pre-paid funeral contract;
and
(b) details of the money or other valuable
consideration paid or given to the funeral
provider or an associate of the funeral
15
provider in respect of each of those pre-paid
funeral contracts; and
(c) the manner in which money paid to the
funeral provider in respect of each of those
pre-paid funeral contracts has been invested
20
or paid out under section 29(1) or 29(2); and
(d) details of each funeral service supplied under
each of those pre-paid funeral contracts; and
(e) any other prescribed information.
Penalty: 60 penalty units.
25
Division 5--Accounts and Records
43. Keeping of records
A funeral provider must keep copies of the
following documents for at least 3 years after the
death of the person in respect of whom a funeral is
30
to be supplied under a pre-paid funeral contract--
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(a) the contract;
(b) any information given under section 27 in
respect of the contract;
(c) any receipt given under section 33 in respect
of the contract;
5
(d) any documents given under section 30(3) in
respect of the contract;
(e) any other prescribed documents.
Penalty: 60 penalty units.
44. Accounts to be kept
10
(1) A funeral provider must keep accounting and
other records which correctly record and explain
the transactions and financial position of the
funeral provider's pre-paid funeral business and
which comply with sub-section (2).
15
Penalty: 60 penalty units.
(2) For the purposes of sub-section (1), the records
must be kept--
(a) in writing in the English language; or
(b) in a manner that will enable the records to be
20
readily converted into writing in the English
language.
_______________
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Act No.
Part 6--Code of Practice
s. 45
PART 6--CODE OF PRACTICE
45. Preparation of draft code of practice by the Director
The Director may, with the approval of the
Minister, and must, if the Minister so directs,
prepare for submission to the Minister a draft code
5
of practice for funeral providers and persons
employed or engaged by funeral providers to
regulate--
(a) fair trading in relation to the supply of
funeral goods or funeral services; and
10
(b) funeral practices, including the storage,
handling and treatment of deceased bodies.
46. Consideration of draft code of practice prepared by
other persons
If the Director is satisfied that funeral providers
15
have, in consultation with other interested
persons, agreed to abide by a particular code of
practice in relation to the matters set out in
sections 45(a) and 45(b), the Director may submit
the code to the Minister for consideration together
20
with any recommendations of the Director with
respect to the code.
47. Prescribing codes of practice
The Minister may--
(a) recommend to the Governor in Council that
25
the Governor in Council make regulations
prescribing a code of practice which--
(i) has been prepared and submitted to the
Minister under section 45; or
(ii) has been submitted to the Minister
30
under section 46; or
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Part 6--Code of Practice
s. 48
(b) recommend that the Governor in Council
make regulations prescribing such a code of
practice with the amendments made by the
Minister.
48. Offence to breach code of practice
5
A person must comply with a code of practice
prescribed under this Act.
Penalty: 20 penalty units.
__________________
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Act No.
Part 7--Complaints Handling
s. 49
PART 7--COMPLAINTS HANDLING
49. Procedure for dealing with complaints
(1) A funeral provider must establish and maintain a
procedure for dealing with customer complaints
which complies with this section.
5
Penalty: 60 penalty units.
(2) A complaints handling procedure under sub-
section (1) must--
(a) subject to paragraph (b), be in accordance
with any guidelines issued by the Director
10
under section 52(1) (if any); or
(b) be in accordance with the prescribed
complaints handling procedure (if any).
50. Written document of complaints handling
procedure
15
(1) A funeral provider must set out the complaints
handling procedure referred to in section 49 in a
written document which complies with sub-
section (2).
Penalty: 60 penalty units.
20
(2) The written document referred to in sub-section
(1) must include the following information--
(a) the name or position title of the person or
persons to whom a customer may give notice
of a complaint;
25
(b) the contact details for the person or persons
referred to in paragraph (a);
(c) the times and places at which notice of a
complaint may be given, which must not
unreasonably restrict the ability of customers
30
to give that notice;
(d) details of the complaints handling procedure.
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Act No.
Part 7--Complaints Handling
s. 51
51. Provision of procedures for dealing with complaints
A funeral provider must immediately provide a
copy of the document setting out the complaints
handling procedure to any customer who makes a
complaint to the funeral provider.
5
Penalty: 60 penalty units.
52. Guidelines
(1) The Director may issue guidelines for complaints
handling procedures.
(2) Guidelines issued under sub-section (1) may
10
include but are not limited to--
(a) the form of the complaints handling
procedure document;
(b) how a funeral provider should manage
complaints;
15
(c) the procedure to follow if a complaint cannot
be resolved between a funeral provider and
customer.
(3) The Director must ensure that guidelines issued
under sub-section (1) are issued to all funeral
20
providers included in the register of funeral
providers.
__________________
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Act No.
Part 8--Enforcement
s. 53
PART 8--ENFORCEMENT
Division 1--Powers of Director
53. Director may require information
(1) The Director may require a person to give to the
Director any information or documents that the
5
Director reasonably considers necessary to
determine whether that person or any other
person--
(a) has complied with a provision of this Act; or
(b) is, or has been at any time, required by law
10
to comply with a provision of this Act.
(2) The Director must make a requirement under sub-
section (1) in a written notice that--
(a) identifies the information or document; and
(b) specifies by when the requirement must be
15
complied with; and
(c) specifies in what form the information or
document is to be given to the Director.
(3) A notice under sub-section (2) must--
(a) state that the requirement is made under this
20
section; and
(b) include a copy of this section and section 71.
(4) A person must comply with any requirement made
by the Director under this section, unless the
person has a reasonable excuse for not doing so.
25
Penalty: In the case of a natural person,
120 penalty units;
In any other case, 240 penalty units.
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Act No.
Part 8--Enforcement
s. 54
Division 2--Application of Fair Trading Act Provisions
54. Incorporation of provisions of Fair Trading
Act 1999
(1) Sections 143 and 144 and Division 2 of Part 11
(other than section 156) of the Fair Trading Act
5
1999 extend and apply (with any necessary
modifications) to this Act as if a reference in any
of those provisions to that Act were a reference to
this Act.
(2) For the purposes of sub-section (1), section 154 of
10
the Fair Trading Act 1999 applies as if a
reference to prescribed proceedings were a
reference to--
(a) proceedings for an offence against a
provision of this Act;
15
(b) proceedings on an application for an
injunction under section 149, 149A or 150 of
the Fair Trading Act 1999 (as applied by
sub-section (1)) against a person alleged to
have contravened a provision of this Act;
20
(c) proceedings on an application for--
(i) an order under section 158; or
(ii) damages under section 159--
of the Fair Trading Act 1999 (as applied by
sub-section (1)).
25
(3) For the purposes of sub-section (1), section 155 of
the Fair Trading Act 1999 applies as if--
(a) in sub-section (1), the words "in relation to a
contravention of a prescribed provision"
were omitted; and
30
(b) sub-sections (4) and (5) were omitted.
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Act No.
Part 8--Enforcement
s. 55
Division 3--Powers of Inspectors
55. Production of identity card
An inspector must produce his or her identity card
for inspection--
(a) before exercising a power under this Act
5
other than a requirement made by post; and
(b) at any time during the exercise of a power
under this Act, if asked to do so.
Penalty: 10 penalty units.
56. Searches to monitor compliance with this Act
10
(1) In this section--
"funeral provider" includes a person who carries
on the business of arranging the supply of
funeral services under pre-paid funeral
contracts;
15
"relevant premises" means any premises--
(a) on or from which it appears a funeral
provider is operating; or
(b) that an inspector believes on reasonable
grounds contains--
20
(i) any record or account that is
required to be kept by this Act; or
(ii) any document that indicates
whether or not this Act has been
complied with.
25
(2) An inspector may enter any relevant premises at
any reasonable hour in the daytime and at any
time that the premises are open for business and
may--
(a) inspect the premises and any thing on the
30
premises; and
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Part 8--Enforcement
s. 57
(b) search for any evidence of any contravention
of this Act; and
(c) make copies of, or take extracts from, any
document kept on the premises; and
(d) seize any thing on the premises if the
5
inspector believes on reasonable grounds that
it is necessary to seize the thing in order to
prevent its concealment, loss or destruction;
and
(e) use any assistants the inspector considers
10
necessary to exercise the powers conferred
by this section.
(3) An inspector may exercise powers under this
section only to the extent that it is reasonably
necessary to do so for the purpose of determining
15
compliance with this Act.
(4) An inspector must not continue to exercise any
powers under this section if he or she fails to
produce, on request, his or her identity card for
inspection by the occupier of the premises.
20
(5) An inspector must not, under this section, enter
premises which are a residence unless the
occupier of those premises has consented in
writing to the entry and the carrying out of a
search.
25
57. Offence-related searches and seizures
(1) An inspector may only exercise powers under this
section if he or she has reasonable grounds for
suspecting that there is on any premises a
particular thing that may be evidence of the
30
commission of an offence against this Act.
(2) Subject to sub-section (3), an inspector, with any
assistants he or she considers necessary, may with
the consent in writing of the occupier of the
premises, enter the premises and search for a thing
35
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s. 57
referred to in sub-section (1) without applying for
a search warrant.
(3) An inspector must not enter and search any
premises with the consent of the occupier unless,
before the occupier consents to that entry, the
5
inspector has--
(a) produced his or her identity card for
inspection; and
(b) informed the occupier--
(i) of the purpose of the search; and
10
(ii) that the occupier may refuse to give
consent to the entry and search or to the
seizure of anything found during the
search; and
(iii) that the occupier may refuse to consent
15
to the taking of any sample of goods or
any copy or extract from a document
found on the premises during the
search; and
(iv) that anything seized or taken during the
20
search with the consent of the occupier
may be used in evidence in
proceedings.
(4) If a thing referred to in sub-section (1) is found
during a search under sub-section (2), the
25
inspector may--
(a) inspect any thing on the premises;
(b) inspect, and make copies of, or take extracts
from, the thing;
(c) seize the thing if the inspector believes on
30
reasonable grounds that it is necessary to
seize it in order to prevent its concealment,
loss or destruction.
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58. Occupier to be given copy of consent
(1) An occupier who consents in writing to the entry
and search of the occupier's premises or residence
under section 56 or 57 must be given a copy of the
signed consent immediately.
5
(2) In any proceeding, if a written consent is not
produced to the court, it must be presumed, until
the contrary is proved, that the occupier did not
consent to the entry and search.
59. Search warrant
10
(1) An inspector may apply to a magistrate for the
issue of a search warrant in relation to particular
premises if the inspector believes on reasonable
grounds that there is, or may be within the next
72 hours, on the premises a particular thing that
15
may be evidence of the commission of an offence
against this Act.
(2) If a magistrate is satisfied that there are reasonable
grounds for suspecting that there is, or may be
within the next 72 hours, on the premises a
20
particular thing that may be evidence of the
commission of an offence against this Act, the
magistrate may issue a search warrant authorising
an inspector named in the warrant and any
assistants the inspector considers necessary--
25
(a) to enter the premises, or the part of the
premises, named or described in the warrant;
and
(b) to search for and seize any thing named or
described in the warrant.
30
(3) In addition to any other requirement, a search
warrant issued under this section must state--
(a) the offence suspected;
(b) the premises to be searched;
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s. 60
(c) a description of the thing for which the
search is to be made;
(d) any conditions to which the warrant is
subject;
(e) whether entry is authorised to be made at any
5
time or during stated hours;
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(4) A search warrant must be issued in accordance
10
with the Magistrates' Court Act 1989 and must
be in the form prescribed by the regulations under
that Act.
(5) Subject to any provision to the contrary in this
Act, the rules to be observed with respect to
15
search warrants mentioned in the Magistrates'
Court Act 1989 extend and apply to warrants
under this section.
60. Announcement before entry
(1) Before executing a search warrant, the inspector
20
named in the warrant, or a person assisting the
inspector, must--
(a) announce that he or she is authorised by the
warrant to enter the premises; and
(b) give any person at the premises an
25
opportunity to allow entry to the premises.
(2) The inspector or a person assisting the inspector
need not comply with sub-section (1) if he or she
believes on reasonable grounds that immediate
entry to the premises is required to ensure--
30
(a) the safety of any person; or
(b) that the effective execution of the search
warrant is not frustrated.
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s. 61
61. Copy of warrant to be given to occupier
If the occupier, or another person who apparently
represents the occupier, is present at a premises
when a search warrant is being executed, the
inspector must--
5
(a) identify himself or herself to that person by
producing his or her identity card for
inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
10
62. Receipt must be given for any thing seized
(1) An inspector must not seize a thing apparently in
the possession or custody of a person unless the
inspector makes out and tenders to the person a
receipt for the thing seized that--
15
(a) identifies the thing; and
(b) states the name of the inspector and the
reason why the thing is being seized.
(2) If an inspector is unable to discover the identity
of--
20
(a) the lawful owner of a thing seized; or
(b) the person from whose custody a thing is
seized--
the inspector must leave the receipt with, or post it
to, the owner of the premises from which the thing
25
was seized.
63. Copies of certain seized things to be given
(1) Subject to sub-section (2), if an inspector seizes--
(a) a document; or
(b) a thing that can be readily copied; or
30
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s. 64
(c) a storage device containing information that
can be readily copied--
the inspector must give a copy of the thing or
information to--
(d) the owner; or
5
(e) person from whom the document, thing or
device was seized--
as soon as is practicable after the seizure.
(2) Sub-section (1) does not apply--
(a) to any document, thing or device moved
10
under section 64(2); or
(b) if the inspector is unable to discover the
identity of the lawful owner or person from
whom any document, thing or device is
seized.
15
64. Use of equipment to examine or process things
(1) An inspector may bring on to any premises any
equipment reasonably necessary for the
examination or processing of things found at the
premises in order to determine whether they are
20
things that may be seized.
(2) If--
(a) it is not practicable to examine or process the
things at the premises; or
(b) the occupier of the premises consents in
25
writing--
the things may be moved to another place so that
the examination or processing can be carried out
in order to determine whether they are things that
may be seized.
30
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(3) An inspector, or a person assisting the inspector,
may operate equipment already at the premises to
carry out the examination or processing of a thing
found at the premises in order to determine
whether it is a thing that may be seized, if the
5
inspector or person assisting believes on
reasonable grounds that--
(a) the equipment is suitable for the examination
or processing; and
(b) the examination or processing can be carried
10
out without damage to the equipment or the
thing.
65. Use or seizure of electronic equipment at premises
(1) If--
(a) a thing found at a premises is or includes a
15
disk, tape or other information storage
device; and
(b) equipment at the premises may be used with
the disk, tape or other information storage
device; and
20
(c) an inspector believes on reasonable grounds
that the information stored on the disk, tape
or other information storage device is
relevant to determine whether this Act has
been contravened--
25
the inspector or a person assisting the inspector
may operate, or may require the occupier or an
employee of the occupier to operate, the
equipment to access the information.
(2) If an inspector or a person assisting the inspector
30
finds that a disk, tape or other information storage
device at the premises contains information of the
kind referred to in sub-section (1)(c), the
inspector--
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Part 8--Enforcement
s. 66
(a) may put the information in documentary
form and seize the documents so produced;
or
(b) may copy the information to another disk,
tape or other information storage device and
5
remove that disk, tape or other information
storage device from the premises; or
(c) if it is not practicable to put the information
in documentary form or to copy the
information, may seize the disk, tape or other
10
information storage device and the
equipment that enables the information to be
accessed.
(3) An inspector or a person assisting an inspector
must not operate or seize equipment for the
15
purpose mentioned in this section unless the
inspector or person assisting believes on
reasonable grounds that the operation or seizure of
the equipment can be carried out without damage
to the equipment.
20
66. Compensation for damage caused during
inspections
(1) Subject to sub-section (2), the Minister must pay
compensation for any damage caused by an
inspector, or a person assisting an inspector, in
25
exercising or purporting to exercise any power
conferred by this Act.
(2) The Minister is not liable to pay compensation for
any damage caused during any inspection that
reveals that there has been a contravention of this
30
Act.
(3) In determining the amount of compensation
payable in relation to any damage caused to
electronic equipment, regard is to be had to
whether the occupier of the premises and the
35
employees and agents of the occupier, if they were
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Part 8--Enforcement
s. 67
available at the time, had provided any warning or
guidance as to the operation of the equipment that
was appropriate in the circumstances.
67. Return of seized things
(1) If an inspector seizes a thing under this Act, the
5
inspector must take reasonable steps to return the
thing to the person from whom it was seized if the
reason for its seizure no longer exists.
(2) If a seized thing has not been returned within
3 months after it was seized, the inspector must
10
take reasonable steps to return it unless--
(a) proceedings have commenced within that
3 month period and those proceedings
(including any appeal) have not been
completed; or
15
(b) a court makes an order under section 68
extending that period.
68. Court may extend period
(1) An inspector may apply to the Magistrates' Court
within 3 months after seizing a thing or, if an
20
extension has been granted under this section,
within that extended period, for an extension of
the period during which the seized thing may be
retained.
(2) The Magistrates' Court may order the extension of
25
the period during which a seized thing may be
retained if satisfied that retention of the thing is
necessary--
(a) for the purposes of an investigation into
whether an offence has been committed; or
30
(b) to enable evidence of an offence to be
obtained for the purposes of a prosecution.
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(3) The Magistrates' Court may adjourn an
application to enable notice of the application to
be given to any person.
69. Power of inspector to require information or
documents
5
(1) An inspector who--
(a) exercises a power of entry under this Act;
and
(b) produces his or her identity card for
inspection by a person--
10
may, to the extent that it is reasonably necessary
to determine whether this Act has been
contravened, require the person--
(c) to give information to the inspector; and
(d) to produce documents to the inspector; and
15
(e) to give reasonable assistance to the inspector.
(2) A person must not refuse or fail, without
reasonable excuse, to comply with a requirement
made under sub-section (1).
Penalty: 60 penalty units.
20
70. False or misleading information
A person must not, in response to a request or
requirement under this Part--
(a) give information that the person knows to be
false or misleading in a material detail; or
25
(b) produce a document that the person knows to
be false or misleading in a material detail
without indicating the respect in which it is
false or misleading and, if practicable,
providing correct information.
30
Penalty: 60 penalty units.
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71. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to
refuse or fail to give information or do any other
thing that the person is required to do by or under
this Part, if the giving of the information or the
5
doing of that other thing would tend to incriminate
the person.
(2) Despite sub-section (1), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is required to
10
produce by or under this Part, if the production of
the document would tend to incriminate the
person.
72. Offence to hinder or obstruct inspector
A person must not, without reasonable excuse,
15
hinder or obstruct an inspector who is exercising a
power under this Part.
Penalty: 60 penalty units.
73. Entry to be reported to the Director
(1) If an inspector exercises a power of entry under
20
this Part, the inspector must report the exercise of
the power to the Director within 7 days after the
entry.
(2) A report under sub-section (1) must include all
relevant details of the entry including particulars
25
of--
(a) the time and place of the entry; and
(b) the purpose of the entry; and
(c) the things done while on the premises,
including details of things seized, samples
30
taken, copies made and extracts taken; and
(d) the time of departure from the premises.
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s. 74
74. Register of exercise of powers of entry
The Director must keep a register containing the
particulars of all matters reported to the Director
under section 73.
75. Complaints
5
(1) Any person may complain to the Director about
the exercise of a power by an inspector under this
Part.
(2) The Director must--
(a) investigate any complaint made to the
10
Director; and
(b) provide a written report to the complainant
on the results of the investigation.
Division 4--Confidentiality
76. Disclosure of information
15
(1) A person must not disclose any information that is
obtained by him or her while exercising a power
conferred by this Act.
Penalty: 60 penalty units.
(2) A person must not use any information that is
20
obtained by him or her while exercising a power
conferred by this Act to obtain directly or
indirectly any pecuniary advantage for himself or
herself or for any other person.
Penalty: 60 penalty units.
25
(3) Despite sub-section (1) or (2), a person may
disclose or use such information if--
(a) the disclosure or use is made in the
performance of a duty under, or in
connection with, this Act; or
30
(b) the person has the consent of the person to
whom the information relates; or
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Part 8--Enforcement
s. 77
(c) the disclosure or use is made in legal
proceedings at the direction of a court; or
(d) the information is in the public domain at the
time it is disclosed or used.
(4) Sub-section (3) is not intended to interfere with
5
any rights another person may have with regard to
the disclosure or use of the information.
Division 5--General
77. Limitation
Despite anything in any Act, proceedings for an
10
offence against Part 5 of this Act may be brought
within the period of 3 years after the commission
of the alleged offence or, with the consent of the
Director of Public Prosecutions, at any later time.
78. Actions by firms
15
Where this Act provides that a person, being a
firm, is guilty of an offence, that reference to the
person--
(a) in the case of a partnership, is to be read as a
reference to each member of the partnership;
20
and
(b) in the case of any other unincorporated body,
is to be read as a reference to each member
of the committee of management of the
body.
25
79. Who may bring proceedings for an offence?
(1) Proceedings for an offence against this Act may
only be brought by--
(a) the Director; or
(b) a person authorised by the Director for the
30
purposes of this section.
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(2) In proceedings for an offence against this Act it
must be presumed, in the absence of evidence to
the contrary, that the person bringing the
proceedings was authorised to bring the
proceedings.
5
__________________
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Act No.
Part 9--General
s. 80
PART 9--GENERAL
80. Service of documents
(1) If, under this Act, a document or notice is required
or permitted to be served on or given to a person,
the document or notice, in addition to any other
5
lawful method of service, may be served or
given--
(a) if the person is a natural person, by giving it
to or serving it personally on the person or
by sending it by post to the person at the
10
person's usual or last known place of
residence or business; or
(b) if the person is a corporation, by leaving it at
or sending it by post to the registered office
of the corporation within the meaning of the
15
Corporations Act.
(2) If, under this Act, a document or notice is required
or permitted to be served on or given to a firm, the
document, in addition to any other lawful method
of service, may be served or given by leaving it at
20
or sending it by post to the principal place of
business of the firm.
81. Delegation
The Director may, by instrument, delegate any of
his or her powers under this Act (except a power
25
under section 53 or this power of delegation) to
any person employed under Part 3 of the Public
Administration Act 2004.
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Act No.
Part 9--General
s. 82
82. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) the items or disclosures to be included on a
funeral goods and services price list;
5
(b) the form of a funeral goods and services
price list;
(c) the items or disclosures to be included on a
coffin price list;
(d) the form of a coffin price list;
10
(e) the items or disclosures to be included on a
statement of funeral costs;
(f) the form of a statement of funeral costs;
(g) the funeral goods and funeral services to be
provided in a basic funeral service;
15
(h) prescribing terms and conditions of pre-paid
funeral contracts and classes of pre-paid
funeral contracts;
(i) the information and reports to be given to the
Director in respect of pre-paid funeral
20
contracts;
(j) complaints handling procedures;
(k) forms;
(l) fees, including fees for any action required to
be taken by the Director under the Act;
25
(m) codes of practice for the purposes of Part 6;
(n) prescribing penalties not exceeding
20 penalty units for a contravention of the
regulations;
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Part 9--General
s. 82
(o) any other matter or thing required or
permitted by this Act to be prescribed or
necessary to be prescribed to give effect to
this Act.
(2) Regulations under this Act--
5
(a) may be of general or limited application;
(b) may differ according to differences in time,
place or circumstance;
(c) may apply, adopt or incorporate any matter
contained in any document whether--
10
(i) wholly or partially or as amended by
the regulations; or
(ii) as in force at a particular time or as
amended from time to time;
(d) may confer a discretionary authority or
15
impose a duty on the Director;
(e) may leave any matter or thing to be from
time to time determined, applied, dispensed
with or regulated by the Director;
(f) may provide in a specified case or class of
20
cases for the exemption of persons or things
or a class of persons or things from any of
the provisions of the regulations whether
unconditionally or on specified conditions
and either wholly or to such an extent as is
25
specified.
__________________
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Act No.
Part 10--Savings and Transitional Provisions
s. 83
PART 10--SAVINGS AND TRANSITIONAL PROVISIONS
83. Definitions
In this Part--
"commencement day" means the date of
commencement of section 89;
5
"old Act" means the Funerals (Pre-Paid
Money) Act 1993;
"pre-existing pre-paid funeral contract" means
a pre-paid funeral contract (whether or not
complying with Part 5)--
10
(a) which was entered into before the
commencement of section 22 of the
Funerals (Pre-Paid Money) Act 1993;
and
(b) under which the funeral goods or
15
funeral services have not been
supplied--
but does not include a pre-paid funeral
contract which has been terminated or held
to be void, if the money or other valuable
20
consideration paid or given under the
contract has been repaid or returned in full.
84. General transitional provisions
(1) This Part does not affect or take away from the
Interpretation of Legislation Act 1984.
25
(2) This Part applies despite anything to the contrary
in any other provision of this Act.
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Part 10--Savings and Transitional Provisions
s. 85
85. References to old Act
On and from the commencement day, unless the
context otherwise requires, in any Act (other than
this Act), or in any instrument made under any
Act or in any other document of any kind, a
5
reference to the old Act must be read as a
reference to this Act to the extent that the
reference applies to any period on or after the
commencement day.
86. Application to pre-existing pre-paid funeral
10
contracts
(1) A pre-existing pre-paid funeral contract continues
in force on and after the commencement day
subject to this Part.
(2) Subject to sub-section (3), this Act applies to a
15
pre-existing pre-paid funeral contract in respect of
any period on or after the commencement day.
(3) Sections 27, 28, 30(1)(b), 30(2), 30(3), 30(4),
30(5) and 32 and Division 3 of Part 5 do not apply
to a pre-existing pre-paid funeral contract.
20
(4) Nothing in this Act affects the exercise of any
right of termination contained in a pre-existing
pre-paid funeral contract.
87. Existing pre-paid funeral contracts
(1) Subject to sub-section (2), this Act applies to a
25
pre-paid funeral contract entered into on or after
the commencement of section 22 of the old Act
and before the commencement day.
(2) This Act does not apply to a pre-paid funeral
contract referred to in sub-section (1) if the
30
contract has been terminated or held to be void, if
the money or other valuable consideration paid or
given under the contract has been repaid or
returned in full.
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Part 10--Savings and Transitional Provisions
s. 88
88. Register of contracts
A register kept by a person or body under
section 11 of the old Act is deemed to form part of
the register required to be kept by that person or
body under Division 4 of Part 5 of this Act.
5
__________________
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Act No.
Part 11--Repeal and Amendment
s. 89
PART 11--REPEAL AND AMENDMENT
See: 89. Repeal of Funerals (Pre-Paid Money) Act 1993
Act No.
33/1993.
The Funerals (Pre-Paid Money) Act 1993 is
Reprint No. 1
repealed.
as at
17 May 2000
and
amending
Act Nos
17/2001,
44/2001 and
103/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
See: 90. Amendment of Fair Trading Act 1999
5 Act No.
16/1999.
In Schedule 1 to the Fair Trading Act 1999 for
Reprint No. 2
"Funerals (Pre-Paid Money) Act 1993"
as at
30 August
substitute "Funerals Act 2006".
2004
and
amending
Act Nos
103/2004,
108/2004,
18/2005,
91/2005,
98/2005 and
32/2006.
LawToday:
www.dms.
dpc.vic.
gov.au
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Clause
Act
amendments 90
application of Fair Trading Act 1999 54
commencement 2
purposes 1
repeals 89
savings and transitional provisions 8388
3, 29, 30, 32, 38
Associates
Basic funeral services See Funeral services
29
Burial rights
Cemeteries See Trustees in cemeteries
4548
Codes of practice
3, 21, 23
Coffin price lists
66
Compensation
Complaints
regarding funeral providers 24, 4952
regarding inspectors 75
Council See Funeral Industry Ministerial Advisory
Council
3, 20, 25, 34, 56,
Definitions
83
Director
definition 3
delegation 81
powers, functions regarding
codes of practice 4546
complaints 52, 75
inspectors 7375
legal proceedings 79
register of funeral providers 711
register of pre-paid funeral contracts 1218
requirements for information, documents 53
77
Director of Public Prosecutions
76
Disclosure of information
54, 90
Fair Trading Act 1999
3, 78
Firms
29
Funeral benefit funds
Funeral costs See Funeral goods; Funeral services
Funeral goods
definition 3
disbursements for 3, 24
price lists 2123
specified in pre-paid funeral contracts 28
statements, itemised lists of costs 24
3, 2122, 24
Funeral goods and services price lists
46
Funeral Industry Ministerial Advisory Council
21, 24
Funeral packages
64
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Funerals Act 2006
Act No.
Subject Clause
Funeral providers
definition 3, 25, 34, 56
duties regarding complaints 24, 4952
duties regarding prices of funeral goods, services 2124
See also Pre-paid funeral contracts
Funeral providers Register
access to 9
contents 8
establishment, maintenance, purpose 7
false, misleading statements in relation to 19
registration information 3, 1011
Funeral services
basic funeral services 3, 20, 21
definition 3
disbursements for 3, 24
price lists 2122
statements, itemised lists of costs 24
supplied under pre-paid funeral contracts
additional, different to those to be supplied 31
as condition of receipt of money payable 32
consideration provided for in contracts 31
construction of references to 26
failure to supply as required 35
information in funeral providers' registers 42
specified in contracts 28
Inspectors
definition 3
entry, search and seizure powers
compensation for damage caused 66
complaints about exercise of 75
consent of, information for occupiers 5658
information, documents required, given 6971
offence-related with warrant 5961
offence-related without warrant 57
protection against self-incrimination 71
reports, registers of exercise of 7374
things seized under warrant 6265, 6768
to monitor compliance with Act 56
use of equipment 6466
hindrance, obstruction 72
identity cards 5557, 61, 69
relevant premises (def.) 56
29
Interment rights
Investments
acceptance of money payable under 32
assignments, transfers as consideration 28
cancellation of assignments, transfers 39
commissions 32
funds, policies where money invested 29
information in funeral providers' registers 42
information provided by funeral providers 27
matters specified in, requirements of contracts 28
procedure 30
65
551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Funerals Act 2006
Act No.
Subject Clause
31, 3438, 40
Legal personal representatives
77, 79
Legal proceedings
2930
Life insurance policies
Minister
powers, functions regarding
codes of practice 4547
compensation 66
Council 45
investments 2930
Offences and penalties
by partnerships, unincorporated associations 78
regarding
basic funeral services 20
codes of practice 48
complaints 4951
disclosure of information 76
information, documents required by Director 53
inspectors 55, 6970, 72
pre-paid funeral contracts 2733, 38, 4244
prices, costs of funeral goods and services 2124
registers 10, 11, 16, 18, 19
Pre-paid funeral contracts
accounts 44
administration, brokerage fees 27, 28, 29, 38
commissions 32
consideration (def.) 3
construction of references in relation to 26
copies of contracts, documents 28, 30, 43
definition 3
funeral goods and services supplied under 28, 3132, 35, 42
GST payable 29
information from providers to other parties 27, 43
legal personal representatives' powers, rights 31, 3438, 40
matters specified in 28
money paid
held on trust by funeral provider 29, 32, 38
investment 2730, 32, 39, 42
paid to trustees of cemeteries 2830, 32, 42
receipts for 33, 43
non-compliance with requirements 35
registers, records kept by funeral providers 4244
requirements (general) 28
termination
assignments, transfers, payments as result of 38
by funeral providers 36
by purchasers 35
deemed terminations on winding up 39
notice of 3537, 40
other rights not affected 41
time of taking effect 37
66
551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
Funerals Act 2006
Act No.
Subject Clause
Pre-paid funeral contracts Register
access to 14
establishment, purpose 12
false, misleading statements in relation to 19
fees 15, 17
information recorded in 13, 1516, 18
removal of information from 17, 18
Price lists See Funeral goods and services price lists
Registers
See Funeral providers Register;
Pre-paid funeral contracts Register
47, 82
Regulations
89
Repeals
80
Service of documents
3, 24
Statements of funeral costs
8388
Transitional provisions
29, 32, 38
Trust money
Trustees of cemeteries
money in respect of pre-paid funerals paid to
commissions 32
details in funeral providers' registers 42
for rights of burial, interment in cemeteries 29
matters specified in, requirements of contracts 28
procedure 30
67
551447B.I1-9/8/2006 BILL LA INTRODUCTION 9/8/2006
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