See also— Statute Law (Miscellaneous Provisions) Bill 2021 Better Regulation Legislation Amendment (Miscellaneous) Bill 2021
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: actuary means:
(a) a Fellow of the Institute of Actuaries incorporated by Royal Charter on 29 July 1884, (b) a Fellow of the Faculty of Actuaries in Scotland, or (c) 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 theof the Commonwealth. Banking Act 1959 bankers’ books means:
(a) books of a bank, building society or credit union, (b) 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 (c) 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 theof the Commonwealth. Corporations Act 2001 contributor means a person:
(a) 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 (b) 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 Finance, Services and Innovation.funeral benefit means:
(a) the supply of any funeral service, with or without the supply of goods connected with that service, or (b) 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) a company for the time being registered under section 14 to carry on contributory funeral benefit business, or (b) a person for the time being registered under section 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 theof the Commonwealth. A New Tax System (Goods and Services Tax) Act 1999 individual means a natural person.inspector means an inspector appointed under section 8.officer , of a corporation, has the meaning given by theof the Commonwealth. Corporations Act 2001 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) 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 (b) 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:
(a) the memorandum of association of the company, (b) the articles of association (if any) of the company, and (c) any other rules of the company dealing with:
(i) a matter referred to in section 13 (1), (ii) the payment of contributions, and (iii) funeral benefits. Secretary means:
(a) the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Finance, Services and Innovation. Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) For the purposes of this Act:
(a) a person does not carry on contributory funeral benefit business by reason only that the person contributes for funeral benefits, and (b) 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.
(1) The Minister may appoint inspectors for the purposes of this Act. (2) The Minister shall not appoint a person, other than a person employed under the , as an inspector under subsection (1) unless the person is appointed: Government Sector Employment Act 2013
(a) with the approval of the Public Service Commissioner and on such terms and conditions as may be approved by the Commissioner, and (b) for a term not exceeding 3 years.
(1) 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. (2) The Secretary may, by instrument in writing, revoke any delegation under subsection (1) either wholly or in part.
(1) A person must not carry on or advertise that the person carries on or is willing to carry on any contributory funeral benefit business unless that person is a funeral contribution fund. Maximum penalty: 20 penalty units or, in the case of a continuing offence, 2 penalty units for each day the offence continues.
(1) An alteration of or addition to the rules of a funeral contribution fund shall not have any force or effect until it is approved in writing by the Secretary.
(1) The Secretary may, by notice in writing served on a funeral contribution fund, cancel the fund’s registration if:
(a) the fund has not commenced to carry on contributory funeral benefit business in New South Wales within 6 months after its registration, or (b) the fund is commenced to be wound up or is under official management, or (c) the fund has entered into a compromise or scheme of arrangement with its creditors, or (d) a receiver and manager has been appointed, whether by the Supreme Court or otherwise, in respect of the property of the fund, or (e) the fund or any person involved in the management of the fund is convicted of an offence involving fraud or dishonesty or fails to comply with a provision of this Act or the regulations, or (f) at the request of the fund, or (g) any other ground prescribed by the regulations is established.
(1) Subject to this section, a funeral contribution fund shall not enter into any contract, agreement, arrangement or understanding with a person by virtue of which the affairs, or any of the affairs, of the fund are managed, controlled or promoted by a corporation or by a person who is not employed by the fund to manage, control or promote those affairs as an officer of the fund under a contract of service. Maximum penalty: 10 penalty units.
(1) A funeral contribution fund shall, in each year within 3 months after the last day of the fund’s financial year, lodge with the Secretary a return containing the particulars specified in subsection (2) and accompanied by such documents as are specified in subsection (3). (1A) The Secretary may exempt a funeral contribution fund from the requirement to lodge a return under subsection (1) if the Secretary is satisfied that the fund is subject to adequate reporting requirements under a law of the Commonwealth. (2) The particulars required to be contained in the return under subsection (1) are:
(a) the address, as at the date of lodgment of the return, of the registered office of the funeral contribution fund, (b) all such particulars with respect to the person who, as at the date of lodgment of the return, is an executive officer of the fund (within the meaning of the of the Commonwealth) and with respect to any person who, as at that date, is a director or secretary of the fund in respect of whom the fund has lodged (or should have lodged) a notice under Part 2D.5 of that Act, Corporations Act 2001 (c) the name and address of every person who, as at the date of lodgment of the return, is an auditor of the fund, (d) the name and address of every bank, building society and credit union at which the fund, as at the date of lodgment of the return, maintains an account or keeps any of its money, and (e) such other particulars (if any) as are prescribed.
(1) The Secretary may, by notice in writing served on a funeral contribution fund or on any officer or agent of any such fund, require the fund or that officer or agent to lodge with the Secretary, within such period as is specified in the notice:
(a) such particulars as may be so specified with respect to:
(i) existing or former contributors to the fund, or (ii) funeral benefits provided by the fund, or (b) such further particulars with respect to the fund or to any of its officers or agents or to its affairs as may be so specified.
(1) A funeral contribution fund shall keep a register of contributors to the fund and shall, within 7 days after the date on which a person becomes a contributor, enter in the register with respect to each such person:
(a) the full name, address, date of birth and sex of that person, (b) the date on which that person became a contributor, (c) particulars of the benefits for which that person is contributing, (d) particulars of the rate of contributions payable by that person, and (e) such other particulars as may be prescribed. (2) A funeral contribution fund shall enter in the register required to be kept under subsection (1):
(a) forthwith after any change in the rate of contributions payable by a contributor, particulars of the change and the date of the change, (b) forthwith after a person ceases to be a contributor to the fund, a statement to that effect and the date on which the person ceased to be a contributor, (c) forthwith after a contributor is supplied with a funeral benefit, a statement to that effect and the date on which the benefit was supplied, and (d) such other particulars as may be prescribed.
(1) A funeral contribution fund shall:
(a) at least once in each period of 3 years or such other period as may be prescribed, and (b) where the Secretary by notice served on the fund so directs, within the time specified in the notice, cause an actuary to make an investigation of the financial position of the fund, including a valuation of its liabilities, and to furnish it with a report of the results of the investigation.
(1) For the purposes of section 31 (a), a scheme shall set out the terms of the agreement or deed under which it is proposed to effect the transfer or amalgamation and shall contain such further provisions as are necessary for giving effect to the scheme. (2) An application for confirmation by the Secretary of any scheme for transfer or amalgamation may be made by or on behalf of any funeral contribution fund concerned.
(1) Subject to this section, the Secretary may:
(a) with the approval of the Minister, direct a funeral contribution fund to transfer its contributory funeral benefit business to another funeral contribution fund, or to a person exempt from the application of section 11, nominated by the Secretary, and (b) at the same time, require the fund, within a period specified by the Secretary, to enter into an agreement, approved by the Secretary, to give effect to the transfer so directed.
(1) An individual who is appointed to act as trustee of trust funds under pre-paid contracts in substitution for one of the members of a group of individuals that is a pre-paid funeral fund or in addition to the members of the group shall not act as such a trustee until his or her appointment is confirmed by the Secretary. Maximum penalty: 20 penalty units. Maximum daily penalty: 2 penalty units.
(1) A person shall not agree to supply any funeral service under a pre-paid contract unless the money to be paid, or other valuable consideration to be given, under the contract is required to be paid or given (in accordance with the regulations, if any) to a pre-paid funeral fund which has entered into an agreement with that person to act as trustee of that money or other valuable consideration. Maximum penalty: 20 penalty units.
(1) Trust funds under pre-paid contracts that are held by a pre-paid funeral fund shall not, either in whole or in part, be transferred to any other pre-paid funeral fund except in pursuance of a scheme confirmed by the Secretary in accordance with subsection (4). (2) For the purposes of subsection (1), a scheme shall set out the terms of the agreement or deed under which it is proposed to effect the transfer and shall contain such further provisions as are necessary for giving effect to the scheme. (3) An application for confirmation by the Secretary of any scheme for transfer may be made by or on behalf of any pre-paid funeral fund concerned.
(1) A pre-paid funeral fund shall open and maintain with one or more authorised deposit-taking institutions one or more current or deposit accounts designated as a trust account or, as the case may be, trust accounts.
(1) A pre-paid funeral fund must:
(a) at least once in each period of 3 years or such other period as may be prescribed by the regulations, and (b) where the Secretary by notice served on the fund so directs, within the period specified in the notice, cause an actuary to make an investigation of the financial position of the fund, including a valuation of its liabilities, and to furnish it with a report of the results of the investigation.
(1) For the purposes of an inquiry under this Division, the Secretary may require a specified person:
(a) to produce to the Secretary at a place specified by the Secretary such records relating to a matter to which the inquiry relates as are in the custody or under the control of that person, (b) to give to the Secretary all reasonable assistance in connection with the inquiry, and (c) to attend before the Secretary for examination on oath, and may administer an oath to that person. (2) A requirement under subsection (1) shall be made by notice in writing that is served on the person concerned and that specifies a time within which the requirement is to be complied with. (3) Where records are produced to the Secretary under this section, the Secretary may take possession of those records for such period as the Secretary thinks necessary for the purposes of the inquiry, and during that period the Secretary shall permit a person who would be entitled to inspect any one or more of those records if they were not in the possession of the Secretary to inspect at all reasonable times such of those records as that person would be so entitled to inspect. (4) A specified person shall not:
(a) refuse or fail to comply with a requirement of the Secretary specified in a notice referred to in subsection (2) to the extent to which the person is able to comply with it, (b) in purported compliance with such a requirement provide information which is to the person’s knowledge false or misleading in a material particular, or (c) when appearing before the Secretary for examination pursuant to such a requirement:
(i) make a statement which is to the person’s knowledge false or misleading in a material particular, or (ii) refuse or fail to take an oath. Maximum penalty: 10 penalty units. (5) A duly qualified legal practitioner acting for a specified person may:
(a) attend an examination of that person, and (b) with the permission of the Secretary:
(i) address the Secretary, and (ii) examine that person, in relation to matters in respect of which the Secretary has questioned that person.
(1) Subject to this Division and with the approval of the Minister, the Secretary may, by instrument in writing, appoint an administrator to administer the affairs of a funeral contribution fund if:
(a) the fund has failed to provide any funeral benefit it had agreed to provide and the Secretary has reason to believe that further failures of that kind will occur, (b) after being notified by the Secretary of any contravention of a provision of this Act, of the regulations or of the of the Commonwealth that is applicable to it, the fund has failed to remedy the contravention to the extent that it is capable of remedy, or has committed a further contravention of the provision, or Corporations Act 2001 (c) following an inquiry into the affairs of the fund under Division 2 or following an investigation under Part 3 of the of the Commonwealth, the Secretary is of the opinion that, in the interests of: Australian Investments and Securities Commission Act 2001
(i) contributors to the fund, or (ii) creditors of the fund, an administrator ought to be appointed to conduct the affairs of the fund. (2) On the appointment of an administrator under subsection (1), the Secretary shall serve on the funeral contribution fund a copy of the instrument of the appointment and thereupon:
(a) the affairs of the fund shall be administered by the administrator until the administrator’s appointment is terminated under this Division, (b) the administrator shall assume and be responsible for the management of the fund and shall perform all of the duties and may perform any of the functions and exercise any of the powers of the directors of the fund, (c) the directors of the fund shall cease to hold office, (d) any delegation made by the directors shall cease to have effect, and (e) all contracts of service and for the performance of services (including a contract with an undertaker for the supply of funeral services) entered into by or on behalf of the fund shall terminate.
(1) The Secretary may, at any time while an administrator of a funeral contribution fund is holding office as such, give to the administrator a direction requiring the administrator to call a general meeting of the fund for the purpose of appointing new directors of the fund. (2) Where a direction has been given under subsection (1) to the administrator of a funeral contribution fund, the administrator shall call a meeting of the fund by notice in writing given not less than 14 days before the meeting or, where the rules of the fund provide for more than 14 days’ notice for the calling of extraordinary general meetings, by notice in writing given as if the meeting were an extraordinary general meeting.
(1) Where the Secretary:
(a) refuses under section 37 to register a person to act as trustee or trustees of trust funds under pre-paid contracts, (b) refuses under section 38 to confirm the appointment of an individual as a trustee, or (ba) refuses under section 39A (3) to exempt a person registered under that section from complying with a provision of this Act or the regulations, or (c) cancels the registration of a pre-paid funeral fund under section 39 (subsection (1) (c) excepted), an appeal against that refusal or cancellation may be made to the Supreme Court by the person concerned.
(1) A person who, in a document required for the purposes of this Act or lodged with the Secretary, makes, or authorises the making of, a statement knowing it to be false or misleading in a material particular is guilty of an offence. Maximum penalty: 10 penalty units.
(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation.(2) A person commits an offence against this section if:
(a) a corporation commits a corporate offence, and (b) the person is:
(i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and (c) the person:
(i) aids, abets, counsels or procures the commission of the corporate offence, or (ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or (iii) conspires with others to effect the commission of the corporate offence, or (iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence. Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(1) All proceedings for offences against this Act or the regulations shall be disposed of summarily in the Local Court.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(1) The Secretary shall establish a repayment fund in respect of each existing funeral contribution fund as soon as practicable after the prescribed day in relation to that existing fund.
(1) The Secretary shall establish a repayment fund in respect of each person to whom this Division applies as soon as practicable after the prescribed day in relation to that person.