Fair Trading (Prepaid Funerals Code of Practice) Regulations 2020

The code builds a compact regulatory architecture around a small set of legal constructs. Understanding the definitions in Schedule 1 cl 2 is essential because the obligations and timings in subsequent clauses rely on those defined terms.

• Prepaid funeral contract (Sch 1 cl 2): a contract between a client and a funeral organiser, entered into during the life of a recipient, under which the client agrees to make a prepayment and the funeral organiser agrees to arrange or provide funeral services for the recipient. It explicitly excludes contracts between a person and a cemetery manager to carry out funeral services.

• Client and recipient (Sch 1 cl 2): client is the person who enters into the prepaid funeral contract. Recipient is the person for whom the funeral services will be provided under the contract. The client may be the recipient, or a different person, and the code imposes specific protections when the client is not the recipient (for example cl 4(2) and cl 5(d)).

• Funeral organiser (Sch 1 cl 2): means a funeral broker or funeral director. The code treats funeral brokers and funeral directors differently in particular provisions (see cl 8). A funeral broker arranging a contract that requires the client to select a particular funeral director has extra disclosure obligations and must include a specified 14 point bolded note (cl 8).

• Funeral investment (Sch 1 cl 2): a product managed by an investment manager in which prepayments are invested and money is then paid out either when the investment manager receives written notice from the funeral organiser that the funeral has been carried out in accordance with the contract, or when the contract is terminated. This definition ties the trigger for investment payouts to written notice from the funeral organiser or to termination events (Sch 1 cl 2(f)).

• Investment manager (Sch 1 cl 2 & cl 15): defined in cl 2 and limited in who may act under cl 15 to a set of institutional entities: certain life insurance companies, friendly societies under the Life Insurance Act 1995, licensed trustee companies (Corporations Act s 601RAA), or the Public Trustee. That is a gatekeeping mechanism for who can legally hold and manage prepaid monies under the code.

• Cooling‑off period (Sch 1 cl 2): defined as the period starting when the client signs the contract and ending on the day 30 days after the funeral organiser gives the client a signed copy. That definition links the right to the operational act of delivering a signed copy and therefore creates an administrative ceiling that can be affected by timing of delivery.

• Cemetery contract and cemetery manager (Sch 1 cl 2): a cemetery contract is a contract with a cemetery manager relating to providing funeral services to a recipient under a prepaid funeral contract. Where such a contract exists, the code requires the part of the prepayment that relates to the cemetery contract to be paid to the cemetery manager within 16 days (Sch 1 cl 14(1)(a)).

The code ties contractual form and content requirements to consumer protection mechanics. For example, detailed specifications of the services, transport, documentation and costs are required (Sch 1 cl 6). The cooling‑off right (Sch 1 cl 12) interacts with the investment and payment rules (Sch 1 cl 14) so that when a client exercises the right, there are explicit repayment obligations on the organiser (Sch 1 cl 12(2)). The code also restricts price movement after contract execution (Sch 1 cl 9). Recordkeeping and notice provisions (Sch 1 cl 10-11 and Sch 1 cl 14(2)) create traceability between received funds and the contract to which they relate.

Two further structural concepts are worth emphasising because they shape incentives. First, the code requires that prepayments be invested in a funeral investment designated in the client’s name for the contract (Sch 1 cl 14(1)(b)). That is a design choice that presumptively separates the client’s prepaid funds from the funeral organiser’s general operating funds from the moment of investment. Second, the list of eligible investment managers (Sch 1 cl 15) channels those funds towards regulated institutional managers rather than allowing ad hoc custody or internally managed pooled funds by unregulated entities.

Finally, the code’s application clause ties the obligations to contracts entered into on or after the code’s commencement (Sch 1 cl 1). That limits the code to new contracts and avoids retrospective application to existing prepaid funeral arrangements.

Primary regulated persons

• Funeral organisers (funeral brokers and funeral directors). The code places most operational and compliance duties on funeral organisers. They must ensure contract form, content and signature requirements (Sch 1 cl 4), provide investment disclosure (Sch 1 cl 3), include detailed service and pricing information (Sch 1 cl 6), include specified termination provisions (Sch 1 cl 7, cl 12, cl 13), provide signed copies (Sch 1 cl 10), maintain a register (Sch 1 cl 11) and process prepayments within 16 days (Sch 1 cl 14). Funeral brokers face an additional specific requirement when a contract requires the client to select a particular funeral director (Sch 1 cl 8).

• Investment managers. Only certain institutional entities may act: companies registered under the Life Insurance Act 1995 s 21, friendly societies as defined in that Act, licensed trustee companies under Corporations Act s 601RAA, or the Public Trustee (Sch 1 cl 15). That excludes many smaller or non‑authorised investment managers.

• Cemetery managers. When a prepaid funeral contract relates to a cemetery contract, part of the prepayment must be forwarded to the cemetery manager within 16 days (Sch 1 cl 14(1)(a)). Cemetery managers therefore receive part of prepayments directly and must be prepared to accept those funds.

Affected consumers and third parties

• Clients who enter into prepaid funeral contracts. The code creates rights and protections for clients: detailed contractual information, a 30 day cooling‑off right with repayment obligations for organisers (Sch 1 cl 12), and limits on post‑contract price increases (Sch 1 cl 9). Where the client is not the recipient, the code imposes obligations on organisers to verify the recipient’s consent or capacity (Sch 1 cl 4(2)) and to provide the recipient with a signed copy (Sch 1 cl 10(b)).

• Recipients of prepaid funerals. If the client is not the recipient, the recipient’s consent or lack of capacity must be verified (Sch 1 cl 4(2)). The recipient is also the named beneficiary of the funeral services and the contract must specify how the services will be carried out (Sch 1 cl 6).

• Legal personal representatives. Post‑death contract variations that increase charges require the agreement of the recipient’s legal personal representative, which the code defines (Sch 1 cl 9(1)-(2)).

• Persons the funeral organiser is to contact on notification of death. Contracts must identify that person (Sch 1 cl 5(e)), who will receive a copy of the signed contract (Sch 1 cl 10(c)) and may be operationally important in executing the deceased’s funeral.

Indirectly affected entities

• Smaller financial service providers and custodians who are not among the authorised investment manager categories will be excluded from acting as investment managers under the code (Sch 1 cl 15). That affects market structure for funeral investments by concentrating custody/management among institutional entities.

• Independent funeral directors who are not the named funeral director in broker‑arranged contracts may be engaged if the selected funeral director cannot provide services; brokers must explain fallback selection mechanisms (Sch 1 cl 8). That affects supply relationships between brokers and directors.

• Accountants, legal personal representatives and estate administrators. The code’s repayment and termination provisions intersect with estate administration (for example Sch 1 cl 12(2), cl 13), and the code also obliges organisers to suggest clients consider taxation and social security implications in cooling‑off and termination notes (Sch 1 cl 12(1)(c) and cl 13(2) , these are suggested considerations rather than substantive legal rules).

Who pays and who decides

• The funeral organiser is the operational decision maker for meeting most obligations: drafting and delivering compliant contracts, selecting eligible investment managers, making payments to cemetery managers and investment managers within 16 days, and maintaining the register (Sch 1 cl 4, cl 14, cl 11, cl 15). The client pays prepayments, but the code constrains what the organiser may do with those funds and prescribes timelines and destinations for them (Sch 1 cl 14).

• Investment managers decide how the funeral investments are managed subject to their institutional governance and relevant prudential law. The code allows the funeral organiser to comply with the investment disclosure obligation by passing on information given by the investment manager (Sch 1 cl 3(2)), which makes investment managers the primary source for factual statements about the investment product.

Geographical and temporal scope

• The code applies to contracts entered on or after the code’s commencement (Sch 1 cl 1). It applies to funeral services supplied in the State of Western Australia as the Regulations are a WA instrument. The definition of "moving outside of the State" is included as an example under circumstances requiring contract provision for payments (Sch 1 cl 7(d)), which implies inter‑jurisdictional mobility of recipients is contemplated.

Duties imposed on funeral organisers

• Investment disclosure: Funeral organisers must give the client information about how prepayments will be invested in a funeral investment. Compliance may be achieved by providing the client with information from the investment manager (Sch 1 cl 3(1)-(2)). Mechanically, the organiser must obtain, retain and transmit accurate investment‑product documentation.

• Contract form and consent checks: Contracts must be printed in at least 12 point type, signed and dated by both the client and the funeral organiser (Sch 1 cl 4(1)(a)-(c)). Where the recipient is not the client, the organiser must take reasonable steps to be satisfied that the recipient either agrees to the client entering into the contract or lacks capacity to enter into or agree to the contract (Sch 1 cl 4(2)). This imposes an evidentiary or procedural duty on organisers to verify consent or capacity.

• Content requirements: A long list of content is compulsory. Contracts must identify the funeral organiser and, where relevant, the funeral director, the client and recipient addresses, and the named contact (Sch 1 cl 5). Contracts must set out services to be provided, selection mechanisms for place and service, disposition method, coffin/material details, cemetery name if interment, transport details (number and class of vehicles, capacity, maximum distance and limitations), documentation list and costs, full itemised costs including GST, fees or charges such as administration or cancellation fees, and details about related cemetery contracts and whether those costs have been fully paid (Sch 1 cl 6).

• Price protection: A funeral organiser must not charge the client more than the amount in the prepaid funeral contract for an agreed service unless the parties agree to the increase, the service is varied and the parties agree to that variation, or, for post‑death variations where the client is the recipient, the recipient’s legal personal representative agrees (Sch 1 cl 9(2)). This restricts unilateral price increases by organisers.

• Delivery obligations: Organisers must provide copies of the signed contract to the client, the recipient if not the client, and the named contact as soon as reasonably practicable after signing (Sch 1 cl 10). The timing of delivery is consequential for the cooling‑off period (Sch 1 cl 12 and definition).

• Recordkeeping: Maintain a register recording the contract identity details, amount and timing of each prepayment and when the funeral organiser pays whole or part of a prepayment to an investment manager (Sch 1 cl 11). This is a traceability duty connecting funds to contracts.

• Payment handling: When organisers receive prepayments they must pay the cemetery component, if any, to the cemetery manager no later than 16 days after receipt, and otherwise must invest prepayments in a funeral investment designated in the client’s name no later than 16 days after receipt (Sch 1 cl 14(1)). The organiser must also give the payee a written notice identifying the contract and client (Sch 1 cl 14(2)).

• Termination and cooling‑off mechanics: Contracts must include the client’s right to end the contract during the cooling‑off period by written notice and the organiser’s obligations to repay prepayments, less any administration fee expressly charged for ending the contract during the cooling‑off period (Sch 1 cl 12(1)-(2)). For other termination rights, contracts must state who may exercise them, how to exercise them and the financial arrangements that apply, including notice periods for withdrawal of amounts paid to an investment manager and fees or charges (Sch 1 cl 13(1)). Contracts giving termination rights must include a 14 point bolded note advising the party to consider taxation and social security implications (Sch 1 cl 13(2)).

Rights and protections for clients and recipients

• Cooling‑off right: The client may end the contract during the cooling‑off period and obtain repayment of amounts paid under the contract, except for an administration fee charged for terminating during that period (Sch 1 cl 12(1)(a)-(b), cl 12(2)). The cooling‑off period is defined to end 30 days after the day the funeral organiser gives the client a signed copy (Sch 1 cl 2 definition).

• Information rights: The client must be given information about the funeral investment (Sch 1 cl 3). Contracts must include a detailed breakdown of services and costs (Sch 1 cl 6).

• Price certainty: The client is protected from being charged more than the contract price for agreed services except in narrow circumstances (Sch 1 cl 9).

• Receipt of signed contract: Clients and recipients (where applicable) are entitled to prompt copies of the signed contract (Sch 1 cl 10).

• Clear termination process: If the contract provides other termination rights, the contract must clearly specify who may exercise them and the financial consequences, including notice periods for withdrawal of funds from the investment manager (Sch 1 cl 13). The client is therefore entitled to contractual clarity about exit terms.

Duties on brokers concerning funeral director selection

• Funeral brokers who require the client to select a particular funeral director must explain how an alternate funeral director will be chosen if the selected director is unable to provide services, and must include a specific 14 point bolded note advising selection is not guaranteed and an alternate will be selected in accordance with the contract (Sch 1 cl 8).

Investment manager eligibility and payout triggers

• Investment managers are limited to certain kinds of regulated entities (Sch 1 cl 15). Payouts from funeral investments are triggered by the investment manager receiving written notice from the funeral organiser that the funeral has been carried out in accordance with the contract, or when the contract is terminated (Sch 1 cl 2(f)). This creates an operational dependency on the funeral organiser delivering a written notice to the investment manager.

Contract drafting formalities and notice formatting

• The code prescribes minimum font sizes for contracts (12 point) and specifies two 14 point bolded notices for selection of funeral director and termination rights (Sch 1 cl 4(1)(a), cl 8(b), cl 12(1)(c), cl 13(2)). Those formatting rules are mandatory content and therefore are compliance checkpoints.

Limits and exclusions

• The code does not apply to contracts entered before the code’s commencement (Sch 1 cl 1). It also explicitly excludes contracts with cemetery managers to carry out funeral services from the definition of a prepaid funeral contract (Sch 1 cl 2).

The text provided prescribes the code under section 45 of the Fair Trading Act 2010 (reg 3(2)) but does not itself set out penalty or enforcement provisions within the Schedule or regulations text. The code specifies duties, formatting demands and timing obligations but contains no explicit fine schedules, civil penalty clauses, or criminal offence descriptions in the content supplied.

Because the code is prescribed under the Fair Trading Act 2010, compliance and enforcement consequences will interface with the enforcement mechanisms of the Act. The regulations themselves explicitly state the code is "prescribed under section 45 of the Act as a code of practice" (reg 3(2)). To determine the statutory enforcement mechanisms, penalties, infringement notices or administrative remedies that attach to contravention of this code one must consult the Fair Trading Act 2010 itself, and any subsidiary provisions identifying the legal effect of prescribed codes. The regulations do not, in the text provided, convert each code requirement into a freestanding civil penalty provision.

Operational enforcement implications that follow from the code as drafted

• The code creates clear mandatory obligations that can be evidenced , for example, whether a contract was printed in 12 point or whether the organisation paid the cemetery manager within 16 days. Those are binary compliance points that an enforcement agency or a regulator could inspect or test.

• The register requirement (Sch 1 cl 11) creates a documentary trail that can be audited. If the broader Fair Trading Act gives powers to inspect or compel production of registers or records, the register will increase the regulator’s capacity to verify compliance.

• The reliance on eligible investment managers (Sch 1 cl 15) narrows the universe of authorised custodians. Where an organiser uses an ineligible entity to hold funds, that would be a straightforward non‑compliance point, provided the enforcement scheme treats contraventions of a prescribed code as actionable.

• The contractual formatting requirements (font sizes and bold notices) are concrete compliance metrics that an enforcement body can enforce by document inspection.

Uncertainties and implementation risks

• The regulations do not specify the process by which breaches are escalated, nor the remedies for aggrieved clients in the event of a breach beyond the contractually specified repayment rights for cooling‑off or termination in the contract text. The absence of penalty language in the regulations means remedies and enforcement pathways depend on the Fair Trading Act and any enforcement policies or directions issued by the administering regulator.

• The code’s practical enforceability will depend on the resources and investigative powers of the regulator under the Fair Trading Act, which are not set out in the regulation text.

• The requirement that investment payouts be made upon receipt by the investment manager of written notice from the funeral organiser (Sch 1 cl 2(f)) creates an operational gate: disputes about whether services were "carried out in accordance with the contract" can delay payout. Enforcement of timely payout in disputed situations will likely require an adjudicative mechanism not contained in the code itself.

For any action alleging breach of the code or seeking enforcement remedies, practitioners must consult the Fair Trading Act 2010 to identify the enforcement powers, whether contravention of a prescribed code is itself a statutory infraction, and what administrative or court remedies are available.

The code expressly cross‑references and interfaces with Commonwealth and State legislation in multiple places. These cross‑references shape who may act as investment managers, how GST is treated and which other statutory instruments interact with the code’s mechanics.

Cross‑references present in the code

• Life Insurance Act 1995 (Commonwealth): Clause 15 restricts investment managers to entities referenced in that Act (companies registered under s 21, friendly societies as defined in s 16C). This channels management of funeral investments into entities that are regulated under the Life Insurance Act regime.

• Corporations Act 2001 (Commonwealth): Clause 15(c) allows licensed trustee companies as defined in Corporations Act s 601RAA to act as investment managers. That relies on federal licensing and governance frameworks for trustee companies.

• Public Trustee Act 1941 (Western Australia): Clause 15(d) allows the Public Trustee, as defined in that State Act, to act. That embeds a familiar State entity as an eligible manager.

• A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth): GST is defined by reference to that Commonwealth Act (Sch 1 cl 2). The code requires total cost including GST to be stated (Sch 1 cl 6(j)), and places an onus on clients to consider taxation and social security implications in the cooling‑off and termination notes (Sch 1 cl 12(1)(c), cl 13(2)). Those notes do not alter tax law but signal that payments and repayments might have tax or social security consequences.

• Births, Deaths and Marriages Registration Act 1998 (WA): Clause 6(h) requires the contract to list documents to be prepared including a document to be given to the Registrar under s 42 of that Act. That aligns contract administration with statutory registration responsibilities.

Other statutory interactions and legal implications

• Insolvency and corporations law: Clause 7(a)(i)-(ii) refers to the funeral organiser becoming bankrupt or a Chapter 5 body corporate under the Corporations Act 2001. The code therefore contemplates insolvency events as trigger points for specific contractual consequences concerning prepayments and requires contracts to state what happens to payments in such events (Sch 1 cl 7(a)). The code’s provisions therefore interact with insolvency law by requiring pre-emptive contractual allocation rules for insolvency scenarios.

• Estate law: Clause 9(1) defines "legal personal representative" and the code requires post‑death charge increases to be agreed by the recipient’s legal personal representative (Sch 1 cl 9). That ties post‑death contractual variation rights to estate administration roles such as executor or administrator.

• Cemeteries Act 1986 (WA): The definition of cemetery manager references that Act (Sch 1 cl 2), and the code requires payments relating to cemetery contracts be made to the cemetery manager (Sch 1 cl 14(1)(a)). That situates part of the prepayment flow directly into the statutory framework for cemetery management.

Areas where the code leaves interaction outcomes open

• The code requires organisers to advise clients to consider taxation and social security consequences (Sch 1 cl 12(1)(c), cl 13(2)). It does not specify how those consequences should be calculated or who bears the cost. The substantive tax or social security law in the Commonwealth statutes will govern actual outcomes.

• The code does not specify whether funds invested in a funeral investment are held on trusts for the client or are otherwise segregated under trust law. The code’s requirement that investments be "designated in the client’s name for the contract" (Sch 1 cl 14(1)(b)) implies a form of client‑level earmarking, but does not itself create trust law outcomes. Whether trust obligations, fiduciary duties, or insolvency‑protected segregation apply will depend on the law governing the investment manager, the contractual arrangements between organiser and investment manager, and general trust and insolvency principles outside the text.

• Enforcement and remedies are not specified in the regulations. Enforcement routes and sanctions will depend on the Fair Trading Act 2010 and possibly other consumer protection laws in WA or Commonwealth statutes if cross‑jurisdictional elements arise.

Practical consequence of cross‑references

• The code channels prepaid funds into entities subject to federal prudential and trustee regulation rather than allowing funeral organisers to manage funds in-house unless they happen to be a licensed trustee or insurer that fits cl 15. That interaction influences the market structure for funeral investments by interlocking State consumer protection rules with Commonwealth‑regulated financial entities.

• The code’s references to insolvency and estate law make contract drafting and recordkeeping essential to ensuring money flows can be traced and allocated when statutory creditors, executors or insolvency practitioners are involved.

For practitioners advising on compliance or disputes, the code must be read alongside the Fair Trading Act 2010 (for legal status and enforcement), the Corporations Act, the Life Insurance Act and relevant WA Acts cited. The code is designed as a state‑level consumer protection overlay that depends on federal regulatory categories for investment custody.

The compilation table included in the regulations records the initial instrument and a later amendment. Key chronological points are:

• Original: Fair Trading (Prepaid Funerals Code of Practice) Regulations 2020 were published as SL 2020/138 on 21 August 2020. Regulations 1 and 2 (citation and commencement) commenced on 21 August 2020; the remainder of the regulations commenced on 1 March 2021 (reg 2 and compilation table).

• Amendment recorded: Fair Trading (Prepaid Funerals Code of Practice) Regulations 2024, SL 2024/2, published 10 January 2024. The compilation table notes commencement dates: regs 1 and 2 on 10 January 2024 and "regulations other than r. 1 and 2: 11 Jan 2024" (compilation table entry for SL 2024/2).

• Deletion noted: The schedule references that regulation 4 was deleted by SL 2024/2 r. 4 (reg 3 contains a bracketed note "[4. Deleted: SL 2024/2 r. 4]"). The content of the deleted r 4 is not shown in the provided text. The code as reproduced is the Prepaid Funerals Code of Practice 2021 set out in Schedule 1 and as amended up to the compilation.

Implications of the amendment entry

• The only explicit textual evidence of amendment in the provided material is the deletion of reg 4. The content and policy significance of that deletion cannot be determined from the provided text because the deleted material is not reproduced. Practitioners must consult the consolidated legislation on the Western Australian Government Gazette or legislation website for the detailed amendment text and the original reg 4 content to assess substantive change.

• The 2024 instrument’s commencement timing suggests the amendment was relatively recent at date of compilation. Where an amendment deletes or alters provisions (for example reg 4), parties must ensure they rely on current consolidated text for contract drafting, especially if reg 4 previously imposed obligations that have now been removed.

• The Schedule contains a "Notes" section and defined terms list that records the amendment history and references SL numbers. Users should rely on the official consolidated version for any compliance checks and for cross‑checking whether transitional provisions apply.

Action point for practitioners

• When advising clients on contracts entered around amendment dates, verify which version of the code applies by confirming the contract’s execution date relative to commencement and amendments. Because the code applies to contracts entered on or after the code’s operational date (Sch 1 cl 1), the state of the code at the moment of contract formation governs applicable obligations.

The supplied regulation text and Schedule do not record any litigation history. No cases or tribunal decisions are cited in the instrument. The notes and compilation table are limited to administrative publication and amendment metadata and do not include judicial citations.

What the absence of litigation history in the instrument means in practice

• The instrument itself is a statutory instrument; it will be used as evidence in disputes about prepaid funeral contracts. Any litigation that interprets its clauses would appear in external case law reporters and not in the regulation text. The provided material does not include such case law.

• The code’s relatively prescriptive format (font sizes, required notices, 16 day payment windows and specific entity eligibility for investment managers) creates many concrete factual issues that could give rise to disputes where non‑compliance is alleged. Because the text supplies concrete performance metrics, litigation in future disputes would likely focus on whether those metrics were met, whether the investments were appropriately designated in the client’s name, whether payments to cemetery managers were made within 16 days, and whether written notices triggering payouts were delivered.

• For practitioners handling disputes, the immediate next step is to search WA court and tribunal databases and the Federal Court and relevant administrative decision lists for cases that mention the Fair Trading (Prepaid Funerals Code of Practice) Regulations 2020 or the Prepaid Funerals Code of Practice 2021, because the code will be interpreted in context of the Fair Trading Act 2010 and general contract, trust and insolvency law.

• If enforcement is pursued under the Fair Trading Act 2010, litigation may be brought by the Director of Consumer Protection or other authorised enforcement bodies; the code itself does not identify who enforces it. The absence of litigation history in the regulation text means counsel and compliance officers should proactively research external databases rather than rely on the instrument for precedent.

The code contains several operational and drafting pitfalls that can have contractual or compliance consequences. The following items are concrete "gotchas" drawn from the text; each is stated narrowly with the clause citation.

1. Cooling‑off timing depends on when the client receives a signed copy, not solely when they sign. The cooling‑off period begins when the client signs and ends 30 days after the day the funeral organiser gives the client a signed copy (Sch 1 cl 2 definition; cl 12). If the organiser delays delivering a signed copy, the client’s cooling‑off window is extended. Practically, organisers should not expect a fixed 30 day window from signature; they effectively control the end date by timing delivery of the signed copy.

2. Font and formatting are mandatory compliance points. The code requires contracts to be printed in at least 12 point type (Sch 1 cl 4(1)(a)) and mandates 14 point bolded notices in two instances (Sch 1 cl 8(b), cl 12(1)(c), cl 13(2)). A failure to comply with these typographic rules would be a clear drafting non‑compliance even if substantive terms are otherwise present.

3. Funeral investment payouts require written notice from the funeral organiser to the investment manager confirming the funeral has been carried out in accordance with the contract (Sch 1 cl 2(f)). If organisers delay or dispute whether services were as contracted, that written notice may be withheld and payouts delayed. Contracts need clear processes and evidence trails for confirming performance to the investment manager.

4. Investment manager eligibility is narrow. Only entities listed in cl 15 may act as investment managers. That excludes many small financial services providers, local accountants or funeral organisers wanting to manage funds in pooled accounts unless they meet a listed accreditation. Using an ineligible manager risks non‑compliance.

5. Segregation/ownership language is limited. The code requires investments be "designated in the client’s name for the contract" (Sch 1 cl 14(1)(b)). This is not a statutory declaration that trusts exist or that funds are ring‑fenced against insolvency or creditors beyond what the investment manager’s law provides. The code does not define the legal nature of "designated" funds, so trust or insolvency outcomes remain dependent on underlying arrangements and external law.

6. Cemetery contract component must be identified and paid within 16 days. Where a prepaid funeral contract relates to a cemetery contract, the proportion of prepayment relating to the cemetery contract must be paid to the cemetery manager within 16 days of receipt (Sch 1 cl 14(1)(a)). Organisers must be able to itemise and calculate the cemetery portion and transfer it promptly.

7. Passing investment disclosure to the client is permitted but shifts reliance risk. The organiser may comply with disclosure by providing the client with information given by the investment manager (Sch 1 cl 3(2)). If the investment manager’s information is inaccurate, the client’s recourse may be against the organiser or the investment manager depending on the facts. Organisers should obtain contemporaneous, documented investment manager disclosures.

8. Verification of recipient consent or capacity is required where the recipient is not the client. Organisers must take reasonable steps to be satisfied the recipient agrees or lacks capacity to enter into/agree to the contract (Sch 1 cl 4(2)). The code does not define "reasonable steps" which creates evidentiary risk; practitioners should document steps taken.

9. Post‑death price variations require the legal personal representative’s agreement. If the client is the recipient and charges or services are to be varied after death, the recipient’s legal personal representative must agree to a higher charge (Sch 1 cl 9(2)(c)). This can create operational delays or disputes between organisers and estate representatives.

10. Registers must record when prepayments are paid to investment managers. The register must record amounts and when the organiser pays whole or part of a prepayment to an investment manager (Sch 1 cl 11(b)-(c)). Omissions or recording errors in the register are compliance risks.

11. The code does not itself specify remedies for many breaches. While the code sets duties and procedural obligations, it does not supply a penalty schedule or set out dispute resolution mechanisms. Practitioners cannot assume statutory penalties are in the regulations; consult the Fair Trading Act for enforcement pathways.

12. The scope excludes cemetery manager contracts from the definition of prepaid funeral contract. The code’s protections do not convert a direct contract between client and cemetery manager into a "prepaid funeral contract" under the code (Sch 1 cl 2). Parties should map the contractual chain carefully and ensure the organiser handles funds in accordance with cl 14.

13. The code contemplates the funeral organiser becoming bankrupt or a Chapter 5 body corporate as a specified scenario. Contracts must address payment outcomes in insolvency events (Sch 1 cl 7(a)). Drafting must therefore include insolvency contingencies and ensure funds have been forwarded or invested to avoid estate entanglement.

This section provides a practical compliance checklist aligned to the code clauses. Each item references the clause(s) that trigger the action.

Document and contract drafting

• Use minimum font sizes and notices: Ensure prepaid funeral contracts are printed in not less than 12 point type and include the specified 14 point bolded notices where required (Sch 1 cl 4(1)(a); cl 8(b); cl 12(1)(c); cl 13(2)). Failure to meet these typographic specifications is a technical non‑compliance.

• Signature and dating: Obtain signatures and dates from both the funeral organiser and the client at the time of entering the contract and retain signed copies (Sch 1 cl 4(1)(b)-(c)). Where the recipient is different from the client, document the steps taken to verify consent or lack of capacity (Sch 1 cl 4(2)).

• Full contract content: Include all items listed in cl 5 and cl 6: organiser and funeral director contact details, client and recipient names and residential addresses, named contact for notification of death, investment manager details, exhaustive list of services, how place and service will be chosen, design details for coffin/memorial, transport arrangements (number, classes, capacities, distance and timing restrictions), documents required and costs, itemised fees including GST and any administration or cancellation fees, and cemetery contract particulars including whether cemetery costs are fully paid (Sch 1 cl 5; Sch 1 cl 6).

• Termination and cooling‑off wording: Insert the cooling‑off clause verbatim as required by cl 12(1)(a)-(c) including the bold notice text. For any other termination rights include clause elements mandated by cl 13(1)(a)-(c) and the 14 point bolded note in cl 13(2).

Operational payments and investment flow

• Prepare fund flow mapping: For each contract, identify whether a related cemetery contract exists. If so, calculate the portion of any prepayment that relates to the cemetery contract and ensure that amount is paid to the cemetery manager within 16 days of receipt (Sch 1 cl 14(1)(a)). For the remaining prepayment, ensure it is invested in a funeral investment designated in the client’s name no later than 16 days after receipt (Sch 1 cl 14(1)(b)).

• Use eligible investment managers only: Only contract with investment managers who are among the classes listed in cl 15. Confirm and document the investment manager’s status as a company registered under the Life Insurance Act s 21, a friendly society under the Life Insurance Act, a licensed trustee company under Corporations Act s 601RAA, or the Public Trustee (Sch 1 cl 15).

• Obtain and store investment documentation: Secure the funeral investment product document from the investment manager and provide it to the client to satisfy the disclosure obligation (Sch 1 cl 3(2)). Keep records showing the investment manager provided the information and the date the client received it.

• Designation in client’s name: When investing funds, ensure the investment manager designates the investment in the client’s name for the contract. Obtain written confirmation from the investment manager evidencing the designation and retain it in the contract file (Sch 1 cl 14(1)(b)).

Recordkeeping and registers

• Maintain the register: Keep a register recording for each contract the identity details required by cl 5, the amounts and dates of each prepayment, and when the funeral organiser paid full or part of a prepayment to an investment manager (Sch 1 cl 11). Ensure the register is accessible for audits and can be produced if enforcement action occurs.

• Written notices for payments: Give the person to whom the prepayment was paid (the cemetery manager or the investment manager) a written notice identifying the contract and naming the client and recipient if the client is not the recipient (Sch 1 cl 14(2)). Retain a copy of that notice and proof of delivery.

Operational procedures and staff training

• Develop an intake checklist: At contract formation, verify client and recipient details, confirm the investment manager, issue and record investment disclosure, advise on cooling‑off rights and taxation/social security implications, and capture the named contact information (Sch 1 cl 3; cl 4; cl 5; cl 12).

• Train staff about cooling‑off mechanics: Because the cooling‑off end date depends on when a signed copy is given to the client, train staff to understand the strategic effect of delivery timing and to document the date of delivery to the client (Sch 1 cl 2 definition; cl 12).

• Implement payment timelines: Create accounting controls to ensure that cemetery portions and investment amounts are transferred within 16 days. Reconcile bank receipts daily and track cut‑off dates for each contract (Sch 1 cl 14).

Dispute readiness and performance evidence

• Evidence for performance notice: Prepare templates and evidence checklists to support written notice to the investment manager that the funeral was carried out "in accordance with the contract" (Sch 1 cl 2(f)). Collect sign‑offs, attendance lists, photographs where appropriate and supplier invoices to reduce disputes about performance.

• Document consent/capacity steps: When the client is not the recipient, maintain records demonstrating the reasonable steps taken to confirm recipient consent or incapacity (Sch 1 cl 4(2)). Examples include signed consent forms, solicitor letters, medical certificates or statutory declarations; the code does not specify acceptable proofs, so document contemporaneous steps.

Contract drafting and sample provisions to avoid risk

• Include explicit insolvency clauses: Because contracts must set out what happens if the funeral organiser ceases to carry on business or becomes bankrupt (Sch 1 cl 7(a)), include explicit contingency clauses detailing treatment of prepayments, transfer of records and contact details for the investment manager and cemetery manager.

• Clear fallback for funeral director selection: If the broker requires a client to select a particular funeral director, specify the process and criteria for selecting an alternate director where necessary and include the mandated 14 point bolded note (Sch 1 cl 8).

• Enshrine repayment procedures: For the cooling‑off and other termination rights, draft repayment mechanics specifying timelines, nominated bank accounts for repayment and calculation of any permitted administration fee to avoid disputes (Sch 1 cl 12; cl 13).

Engagement with investment managers and cemetery managers

• Contractual terms with investment managers: Negotiate written terms with investment managers that confirm they will accept funds designated in the client’s name and will accept written notice from the funeral organiser as a payout trigger. Include SLAs for payout timelines after valid notice (Sch 1 cl 2(f); cl 14(1)(b)).

• Cemetery manager coordination: Where a cemetery contract exists, coordinate with the cemetery manager to receive and acknowledge the cemetery portion payment within the 16 day timeframe and to accept the written notice required by cl 14(2).

Cross‑checking and regulatory liaison

• Consult the Fair Trading Act 2010 for enforcement context: Because the regulations are prescribed under s 45 of the Fair Trading Act, review the Act to understand enforcement mechanisms, inspection powers and any administrative penalties that may attach to breaches.

• Keep abreast of amendments: The instrument has recorded amendments (SL 2024/2). Maintain a process for checking legislative updates and consulting consolidated legislation for any deletions or changes that affect compliance (see compilation table).

Record retention and privacy

• Store all client consents, signed contracts, proof of delivery of signed copies, register entries, payment confirmations and notices to investment and cemetery managers securely for the period recommended by corporate record retention policies and any statutory limitation periods relevant to consumer disputes.

By aligning contract templates, accounting cut‑offs, investment manager agreements and staff training to the clauses cited above (for example Sch 1 cl 3; cl 4; cl 6; cl 11; cl 12; cl 14; cl 15), funeral organisers can operationalise compliance with the code’s concrete duties. Where there is legal uncertainty about the effect of "designation" on trust or insolvency outcomes, engage counsel and the intended investment manager to obtain documented assurances and contractual clauses that clarify legal rights over funds.