Funeral Funds Act 1979

This Act may be cited as the Funeral Funds Act 1979.

This section and section 1 shall commence on the date of assent to this Act.

Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

The objects of this Act are—

to protect pre-payments made by consumers for funeral services through the registration of funeral funds, and

to ensure that funeral services agreed to be supplied under a pre-paid contract are supplied as agreed, and

to achieve accountability for money paid by a purchaser of funeral services that have an indefinite delivery date, and

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.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

actuary means—

a Fellow of the Institute of Actuaries incorporated by Royal Charter on 29 July 1884,

a Fellow of the Faculty of Actuaries in Scotland, or

the holder of a prescribed qualification as an actuary,

who has practised as an actuary for a continuous period of not less than 5 years.

authorised deposit-taking institution means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

bankers’ books means—

books of a bank, building society or credit union,

cheques, orders for the payment of money, bills of exchange and promissory notes in the possession or under the control of a bank, building society or credit union, and

securities or documents of title to securities in the possession or under the control of a bank, building society or credit union whether by way of pledge or otherwise.

company means a company within the meaning of the Corporations Act 2001 of the Commonwealth.

contributor means a person—

who makes or has made periodic contributions, or on whose behalf periodic contributions are or have been made, to a person carrying on contributory funeral benefit business, and

who is thereby entitled to be provided with a funeral benefit on his or her death.

contributory funeral benefit business means business in relation to a scheme or arrangement for the provision of funeral benefits to contributors.

Department means the Department of Customer Service.

funeral benefit means—

the supply of any funeral service, with or without the supply of goods connected with that service, or

the payment of money, upon the death of a person, for the purpose of meeting the whole or a part of the expenses of and incidental to the funeral of that person.

funeral contribution fund means—

a company for the time being registered under section 14 to carry on contributory funeral benefit business, or

a person for the time being registered under section 16B to carry on contributory funeral benefit business.

funeral fund means a funeral contribution fund or a pre-paid funeral fund.

funeral service includes burial service and cremation service.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

individual means a natural person.

inspector means an inspector appointed under section 8.

officer, of a corporation, has the meaning given by the Corporations Act 2001 of the Commonwealth.

pre-paid contract means an agreement whose purpose is or includes the payment of money (in a lump sum or by instalments) or the giving of other valuable consideration for the supply of a funeral service, with or without the supply of goods connected with that service, being an agreement made before the death of the person who is to be supplied with that service, and includes an agreement prescribed as a pre-paid contract under section 5.

pre-paid funeral benefit business means the business of supplying funeral services under pre-paid contracts.

pre-paid funeral fund means—

a person or a group of individuals that is for the time being registered under section 37 to act as trustee or trustees of trust funds under pre-paid contracts, or

a person for the time being registered under section 39A to act as trustee of trust funds under a pre-paid contract.

rules, in relation to a company that carries on or proposes to carry on contributory funeral benefit business, means—

the memorandum of association of the company,

the articles of association (if any) of the company, and

any other rules of the company dealing with—

a matter referred to in section 13 (1),

the payment of contributions, and

funeral benefits.

Secretary means—

the Commissioner for Fair Trading, Department of Customer Service, or

if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

For the purposes of this Act—

a person does not carry on contributory funeral benefit business by reason only that the person contributes for funeral benefits, and

a person carries on contributory funeral benefit business if the person accepts any contributions for funeral benefits, otherwise than in the capacity of an agent.

For the purposes of this Act—

a person does not carry on pre-paid funeral benefit business by reason only that the person pays any money or gives any other valuable consideration for the supply of any funeral service under a pre-paid contract, and

a person carries on pre-paid funeral benefit business if the person agrees to supply any funeral service under a pre-paid contract.

In this Act, a reference to the supply or provision of a funeral benefit to any person is a reference to the supply or provision of that benefit in connection with the death of that person.

In this Act, the description of an Act as an Act of the Commonwealth means an Act of the Parliament of the Commonwealth and all amendments of that Act, whether by subsequent Acts of that Parliament or otherwise and any Act of that Parliament passed in substitution for that Act.

Notes included in this Act do not form part of this Act.

An agreement whose purpose is or includes the supply of a burial site is prescribed as a pre-paid contract—

if the agreement does not specify the site, either individually or as a site within a specified area,

if, where the agreement so specifies the site, the person who agrees to supply the site does not, at the time the agreement is made, own, or have the power to assign the exclusive right to burial in, the site or area, as the case may be, or

if, where the site is within an area specified in the agreement, the person who agrees to supply the site has, at the time the agreement is made, already entered into agreements for the supply of the number of sites contained in that area.

All documents lodged under this Act with the Secretary are to be kept in an office of the Department.

The Minister may appoint inspectors for the purposes of this Act.

The Minister shall not appoint a person, other than a person employed under the Government Sector Employment Act 2013, as an inspector under subsection (1) unless the person is appointed—

with the approval of the Secretary of the Premier’s Department and on such terms and conditions as may be approved by the Secretary of the Premier’s Department, and

for a term not exceeding 3 years.

A person, other than a person employed under the Government Sector Employment Act 2013, who is appointed as an inspector under subsection (1) is not, in his or her capacity as an inspector, a Public Service employee within the meaning of that Act but, if the terms and conditions on which the person is appointed so provide, any specified provisions of that Act or the regulations or rules under that Act, whether with or without specified modifications, apply to and in respect of the person as if the person were a Public Service employee within the meaning of that Act.

An investigator appointed under the Fair Trading Act 1987 is taken to be an inspector for the purposes of this Act.

An inspector shall be provided by the Secretary with a certificate of his or her authority as an inspector.

An inspector, on exercising in any place a power conferred on the inspector by or under this Act, shall, if so requested by a person apparently in charge of that place or of any work being performed there, produce the certificate of his or her authority as an inspector.

The Secretary may, by instrument in writing, delegate such of the Secretary’s powers, authorities, duties and functions under this Act (other than this power of delegation) as may be specified in the instrument of delegation to any person employed in the Department.

The Secretary may, by instrument in writing, revoke any delegation under subsection (1) either wholly or in part.

A delegation under subsection (1) may be made subject to such conditions or such limitations as to the exercise or performance of any of the powers, authorities, duties or functions that have been delegated, or as to time or circumstance, as may be specified in the instrument of delegation.

A power, authority, duty or function, the exercise or performance of which has been delegated under subsection (1) may, while the delegation remains unrevoked, be performed or exercised by the delegate from time to time in accordance with the terms of the delegation.

Notwithstanding the making of any delegation under subsection (1), the Secretary may continue to exercise or perform all or any of the powers, authorities, duties or functions that have been delegated.

Any act, omission or thing done, omitted or undergone by a delegate while acting pursuant to a delegation made under subsection (1) shall have the same force and effect as if the act, omission or thing had been done, omitted or undergone by the Secretary.

The Secretary may appoint an independent actuary to assist the Secretary in performing his or her functions under this Act.

Without limiting subsection (1), the Secretary may appoint an actuary—

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

to assist the Secretary in conducting an inquiry under Division 2 of Part 5 into the affairs, or such of the affairs as the Secretary determines, of a funeral fund.

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.

Without limiting the application of subsection (1), a person carries on contributory funeral benefit business if the person undertakes to provide contributors with a funeral service in New South Wales.

A person is exempt from the application of subsection (1) if the person is a friendly society within the meaning of the Life Insurance Act 1995 of the Commonwealth.

(Repealed)

A company may apply to the Secretary to be registered under this Act to carry on contributory funeral benefit business.

An application for registration made pursuant to subsection (1) shall—

be made in or to the effect of the form approved by the Secretary, and

be accompanied by—

a written statement showing the reasons for believing that, if registered, the company would be able to carry on contributory funeral benefit business successfully,

a copy of the rules of the company, and

such other documents as may be prescribed.