Funerals (Pre-Paid Money) Act 1993

Version No. 014

Funerals (Pre-Paid Money) Act 1993

No. 33 of 1993

Version incorporating amendments as at 30 May 2007

table of provisions

Section Page

Part 1—Preliminary 1

1. Purpose 1

2. Commencement 1

3. Definitions 2

Part 2—Pre-Paid Funeral Contracts 6

4. Funeral organiser to provide information about investment 6

5. Pre-paid funeral contracts 6

6. Investment of money 8

7. Procedure for investment 10

8. Consideration under contract 11

9. Funeral organiser not to accept other money 12

10. Receipt 12

11. Register of contracts 13

12. Keeping of records 14

13. Accounts to be kept 14

14. Termination of pre-paid funeral contract 15

Part 3—General 19

15. Limitation 19

16. Repealed 19

17. Actions by firms 19

17A. Application of provisions of Fair Trading Act 1999 20

18. Who may bring proceedings for an offence? 21

19. Service of documents 21

20. Repealed 22

21. Regulations 22

Part 4—Transitional 23

22. Definitions 23

23. Application to existing pre-paid funeral contracts 23

24. Transitional—existing pre-paid funeral contracts 24

Part 5—Repealed 25

25. Repealed 25

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ENDNOTES 26

1. General Information 26

2. Table of Amendments 27

3. Explanatory Details 28

Version No. 014

Funerals (Pre-Paid Money) Act 1993

No. 33 of 1993

Version incorporating amendments as at 30 May 2007

Funerals (Pre-Paid Money) Act 1993
No. 33 of 1993

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1. Purpose

The main purpose of this Act is to regulate the taking and management of money in respect of pre-paid funeral contracts.

2. Commencement

(1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does not come into operation within the period of 3months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.

3. Definitions

s. 3

(1) In this Act—

S. 3(1) def. of "associate" amended by No.44/2001 s.3(Sch. item52.1).

"associate" of a person includes—

(a) in the case of a person which is a body 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 which the person is concerned;

"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 investment in favour of a party to the contract or an associate of that party; and

(b) any administration fee or brokerage fee paid in respect of the contract;

S. 3(1) def. of "Director" inserted by No. 17/1999 s.35(1).

"Director" means the Director within the meaning of the Fair Trading Act 1999;

"firm" means a partnership or other unincorporated body but does not include a trust;

"funeral organiser" means a person or firm which carries on a business (whether or not in the course of, or as incidental to or in connection with, any other business) of supplying or arranging the supply of funeral services under pre-paid funeral contracts;

"funeral service" includes—

(a) burial service; and

(b) cremation service; and

S. 3(1) def. of "GST" inserted by No. 24/2000 s.4(1).

"GST" has the same meaning as it has in the ANew Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

"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 other valuable consideration for—

(i) the supply of a funeral service (with or without the supply of goods, services or facilities connected with that service) by a party to the agreement or arrangement; or

s. 3

(ii) the supply of a funeral service (with or without the supply of goods, services or facilities connected with that service) to be arranged by a party to the agreement or arrangement; and

(b) which is made before the death of the person in respect of whom the service is to be supplied;

(2) In this Act—

(a) a reference to money paid in respect of a pre-paid funeral contract includes a reference 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 interest in which forms the consideration or part of the consideration for the contract; and

(b) a reference to money paid to a funeral organiser includes a reference to money paid to or received by the funeral organiser as agent for any person or to any agent or associate of the funeral organiser; and

(c) (except in the definition of "pre-paid funeral contract") a reference to the supply of a funeral service under a pre-paid funeral contract includes—

(i) a reference to the supply of goods, services or facilities connected with the supply of that service and specified in the contract; and

(ii) a reference to the supply of a funeral service by arrangement under a pre-paid funeral contract; and

s. 3

(d) in the case of an agreement or arrangement under which a funeral service is or was to be supplied or arranged to be supplied in respect of the first person to die of two or more named persons—

(i) 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) is a reference to the death of the first of those named persons to die; and

(ii) 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 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.

s. 3

______

Part 2—Pre-Paid Funeral Contracts

4. Funeral organiser to provide information about investment

s. 4

Before entering into a pre-paid funeral contract, a funeral organiser must give each other party to the contract details in writing of—

(a) the manner in which any money to be paid to the funeral organiser by or on behalf of that party in respect of the contract is to be invested, including—

(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 payable in respect of the contract.

Penalty: 360 penalty units.

5. Pre-paid funeral contracts

(1) A funeral organiser 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

Penalty: 600 penalty units.

(2) The contract must specify—

(a) the funeral service to be supplied under the contract; and

(b) any goods, services and facilities to be supplied under the contract in connection with the funeral service; and

(c) the consideration to be paid or given in respect of the contract for the supply of that funeral service (including those goods, services and facilities); and

(d) that, subject to sub-section (3), any money paid to the funeral organiser in respect of the contract by or on behalf of any other party to the contract is required to be invested in a specified investment in accordance with sections 6(1) and 7 or paid to the trustees of a cemetery in accordance with sections 6(2) and 7.

s. 5

(3) Sub-section (2)(d) does not apply to an administration fee or brokerage fee paid in respect of a pre-paid funeral contract.

(4) Without affecting the operation of sections 6 and7, 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 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

(b) to be an investment of a kind referred to in section 6(1).

(5) The funeral organiser must give each other party to the contract a copy of the contract.

Penalty: 120 penalty units.

(6) Despite sub-section (1) a contract entered into in contravention of that sub-section is not void by reason only of the contravention.

6. Investment of money

s. 6

(1) Subject to sub-sections (2) and (3), a funeral organiser must ensure that all money paid to the funeral organiser in respect of a pre-paid funeral contract by or on behalf of any other party to the contract is invested in—

S. 6(1)(a) substituted by No. 37/1999 s.58(Sch. 3 item 8.1).

(a) a funeral benefit fund established or deemed 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

(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 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 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

(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.

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 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 organiser may arrange for money paid to the funeral organiser in respect of that contract to be paid to the trustees of the cemetery for that purpose.

s. 6

(3) A funeral organiser or an associate of a funeral organiser holds any money paid to the funeral organiser or associate in respect of a pre-paid funeral contract by or on behalf of any other party to the contract on trust for that other party until that money is paid or invested in accordance with sub-section (1) or (2).

S. 6(4) substituted by No. 24/2000 s.4(2).

(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 funeral contract relates.

7. Procedure for investment

s. 7

(1) A funeral organiser must ensure that an investment or payment under section 6(1) or (2) is made—

(a) in the name of the person in respect of whom the funeral service is to be supplied; and

(b) in accordance with the contract.

Penalty: 600 penalty units.

(2) A funeral organiser must ensure that any investment or payment under section 6 is made—

(a) if the money is paid to the funeral organiser in cash, before the end of the third business day; and

(b) if the money is paid to the funeral organiser otherwise than in cash, before the end of the seventh business day—

after the money is received by the funeral organiser or by any agent or associate of the funeral organiser.

Penalty: 600 penalty units.

(3) Within 21 days after receipt of any money paid to a funeral organiser under a pre-paid funeral contract by or on behalf of any other party to the contract, the funeral organiser must give that other party copies of any documents—

(a) which relate to any payment or investment of that money under section 6; and

(b) which are in a class of documents approved under sub-section (4).

Penalty: 120 penalty units.

(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 6(1)(b), (c) or (d), the funeral organiser 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.

8. Consideration under contract

s. 8

(1) A funeral organiser 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 contract.