Funerals (Infringements) Regulations 2021

The Regulations operate by two linked legal concepts: (1) designation of certain statutory offences as infringement offences for the purpose of the Act's infringement scheme; and (2) quantification of the corresponding infringement penalties in penalty units. The enabling hook is section 81A of the Funerals Act 2006, which the Regulations reference in reg 6(1) and reg 6(2). The Regulations do not create new substantive offences; they identify which existing offences under specific provisions of the Act will be capable of being dealt with via an infringement notice and specify the penalty units payable if an infringement notice is issued and complied with.

The Schedule is the operative list: it maps 19 items (Schedule 1, regulation 6) each to a specific provision of the Funerals Act 2006. The Schedule uses the following penalty unit levels: 1.25 penalty units for items 1-4 and 14; 5 penalty units for items 5-12 and 15-19; and 10 penalty units for item 13 (an offence against s 28(5) of the Act). The Regulations rely on the Sentencing Act 1991 for the definition of a penalty unit and on the Monetary Units Act 2004 for the calculation of the monetary value of a penalty unit in a given financial year; these cross-references appear in the Explanatory Details. The explanatory material provides the concrete value for the 2021-22 financial year, $181.74 per penalty unit, and instructs multiplication and rounding rules (Monetary Units Act 2004 s 7; rounding to nearest dollar). That means the monetary amounts of infringement penalties under these Regulations will vary over time as the Treasurer fixes the value of a penalty unit annually under the Monetary Units Act 2004 s 5.

The Regulations also engage interpretative law from the Interpretation of Legislation Act 1984 (ILA): the Endnotes record that the ILA s 54A authorises style changes and that a range of ILA provisions affect how headings, notes, punctuation and provision numbers are to be read as part of the Statutory Rule. The statutory format matters for legal drafting and citation but does not itself change the substantive operation of the infringement scheme.

Finally, the instrument is time-limited by the statutory sunset mechanism: Endnotes record the Regulations were made on 6 July 2021 and, under the Subordinate Legislation Act 1994 s 5, will sun‑set ten years later on 6 July 2031 unless earlier repealed or remade. The Regulations also expressly revoke the 2011 infringement Regulations, so the list and penalty levels in the Schedule supplant those in S.R. No. 71/2011 from the commencement date.

The Regulations affect persons and entities whose conduct is governed by the specified provisions of the Funerals Act 2006. The instrument itself identifies the relevant offence provisions by reference (Schedule 1), for example offences against ss 10(1), 10(2), 11(2), 18(2), 21(1), 22, 23, the subparagraphs of s 24(1)-(5), s 28(5), s 33(1), s 42, s 43, s 49(1), s 50(1) and s 51 of the Act. The Regulations do not reproduce the text of those sections, so the practical boundaries of regulated conduct must be determined by consulting the Funerals Act 2006 itself to know what behaviour each cited provision proscribes or requires.

Who pays: when a person (natural or corporate) commits an offence under one of the listed sections, that offence is prescribed as an infringement offence under reg 6(1) and carry the infringement penalty in penalty units specified in column 3 of the Schedule under reg 6(2). The explanatory details explain how to convert penalty units into dollars, citing the Sentencing Act 1991 for the definition of penalty unit and the Monetary Units Act 2004 for the calculation and annual fixation of the unit value. Thus, the financial burden of paying an infringement penalty falls on the alleged offender if an infringement notice is issued and they elect to pay or are required to pay under the infringement regime set out in the Act.

Who decides: the Regulations designate offences as capable of being dealt with via the infringement process established by the Act (s 81A). The Regulations do not themselves name the enforcement agency, authorised officers, or the procedural steps for issuing an infringement notice; those procedural and enforcement details are managed by the Funerals Act 2006 (the enabling Act) and any administrative instruments made under it. The Regulations therefore alter the enforcement options available to the decision-makers under the Act (for example, to issue infringement notices rather than prosecute), but which official actors exercise that option is governed by the Act and its administrative practices rather than by these Regulations.

Who gains and who bears costs: these Regulations concentrate the short-term administrative benefit on enforcement authorities by enabling them to use the infringement notice regime (as authorised by s 81A of the Act) for the listed offences. The costs are borne by persons committing the listed offences who may be required to pay the prescribed infringement penalties in penalty units (calculated in dollars in accordance with the Monetary Units Act 2004 and the Sentencing Act 1991). Because the Schedule lists multiple provisions with differing penalty unit levels, the financial exposure varies by which section is contravened. The Regulations also affect legal and compliance advisers, who must consult both the Act and these Regulations to advise clients on exposure to infringement penalties.

The Regulations themselves do not create substantive duties beyond prescribing that a contravention of the specified provisions of the Funerals Act 2006 is an infringement offence and attaching a penalty expressed in penalty units. Consequently, the substantive duties and rights implicated arise principally from the underlying provisions of the Act that the Schedule cites. For example, a breach of s 10(1) or s 28(5) of the Act is an actionable statutory contravention whose legal duties and any defences are set out in the Funerals Act 2006; the Regulations simply make those contraventions capable of being dealt with by way of an infringement under s 81A.

Rights created or affected by these Regulations are procedural and monetary. By prescribing an offence as an infringement offence for the purposes of s 81A(1) (reg 6(1)), the Regulations enable the procedural pathway in the Act for the issuance of infringement notices. This typically entails an option to pay an infringement penalty instead of facing prosecution in court, though the precise procedural consequences and any choices available to an alleged offender (for example, electing to contest the matter) are matters governed by the Act’s infringement scheme rather than by the Regulations themselves. Reg 6(2) fixes the infringement penalty in penalty units, which, under the Sentencing Act 1991 and Monetary Units Act 2004, is converted into a monetary amount; the explanatory details provide the conversion approach and the 2021 unit value of $181.74.

Duty-holders therefore have two practical obligations arising from these Regulations: to comply with the substantive duties in the referenced sections of the Funerals Act 2006 to avoid being the subject of an infringement notice; and, if issued an infringement notice for one of the listed offences, to address the notice according to the Act’s infringement procedure, which may include payment of the prescribed penalty. The Regulations do not specify grace periods, review rights, or timeframes for payment; those procedural rights and duties remain in the Act.

Administratively, the Regulations impose a duty on the Treasurer under the Monetary Units Act 2004 to fix the value of a penalty unit for future financial years (Monetary Units Act 2004 s 5 as referenced in the explanatory details), and on relevant publication authorities to publish the value in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. The explanatory details also instruct that amounts may be rounded to the nearest dollar.

Finally, the Regulations’ revocation of the 2011 instrument (reg 4; Endnotes) creates a transitional or replacement effect: duty-holders and rights-holders must switch to the new Schedule and penalty levels from the commencement date, thereby altering which offences are treated as infringement offences and the quantum of the infringement penalty where there is any change.

The Regulations prescribe infringement penalties expressed in penalty units for each listed offence; they do not themselves create enforcement mechanisms beyond enabling the operation of the Act’s infringement regime. The Schedule sets the penalty units per item: items 1-4 and 14 are 1.25 penalty units; items 5-12 and 15-19 are 5 penalty units; item 13 (an offence against s 28(5) of the Act) is 10 penalty units. Regulation 6(2) states these are the prescribed infringement penalties for the purposes of s 81A(3) of the Act.

The explanatory details make clear how those penalty units translate into monetary sums. The Sentencing Act 1991 provides the statutory definition of a penalty unit; the Monetary Units Act 2004 s 7 requires the number of penalty units to be multiplied by the current value of a penalty unit to compute the monetary amount. The explanatory details state the value of a penalty unit for the financial year commencing 1 July 2021 is $181.74 and that calculated amounts may be rounded to the nearest dollar. The Monetary Units Act 2004 s 5 (cited in the explanatory details) requires the Treasurer to fix the value of a penalty unit for future financial years and to publish that value in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. That annual fixation mechanism means the monetary amount of each listed infringement penalty will vary year to year in line with the Treasurer’s determination.

These Regulations do not specify who is authorised to issue infringement notices or the process for issuing, serving, withdrawing or disputing an infringement notice; those procedural and enforcement details sit in the Act (section 81A and related provisions) and administrative practice. The Regulations therefore affect enforcement choices by giving enforcement authorities the option of using an infringement notice process (where the Act allows) instead of court prosecution. The Act’s provisions referred to in reg 6 and the administrative framework will determine whether an accepted infringement payment avoids conviction, whether payment is recorded as an admission, and whether the issuing agency retains discretion to prosecute despite the availability of an infringement notice. None of those procedural effects are set out in these Regulations.

The instrument also contains a revocation of the 2011 Regulations (reg 4). That revocation is material to enforcement because it means the earlier set of infringement mappings and penalties no longer applies from the commencement date; enforcement agencies and regulated parties must therefore apply the Schedule in these 2021 Regulations after 25 July 2021. The Endnotes record the making date (6 July 2021) and the commencement date (25 July 2021). The Regulations are subject to statutory sunset, expiring on 6 July 2031 unless remade, potentially necessitating a fresh instrument to continue the infringement scheme beyond that date.

These Regulations operate as a subordinate instrument under the Funerals Act 2006 (reg 2: made under s 82 of the Act) and are expressly connected to several other statutes through cross-reference and operational dependency.

First, the Regulations rely on the Funerals Act 2006 for their legal effect: reg 6 prescribes offences "for the purposes of section 81A(1) of the Act" and prescribes infringement penalties "for the purposes of section 81A(3) of the Act". Therefore the procedural mechanics of issuing, contesting and recording infringement notices are determined by the Act’s s 81A and related provisions. The Regulations do not alter substantive criminal definitions in the Act; they only change which of those offences can be handled as infringements and the penalty quantum in penalty units.

Second, the Regulations interact with the Sentencing Act 1991 in relation to penalty units. The explanatory details expressly state that the Regulations provide penalties by reference to penalty units within the meaning of s 110 of the Sentencing Act 1991. That cross-reference sets the unit as the statutory vehicle for specifying the scale of an infringement penalty.

Third, the Regulations interact with the Monetary Units Act 2004 in two ways. The explanatory details direct that penalties set in penalty units are to be converted to a dollar amount by multiplying the number of penalty units by the value of a penalty unit in accordance with s 7 of the Monetary Units Act 2004. They also note that the value of a penalty unit for future financial years is to be fixed by the Treasurer under s 5 of the Monetary Units Act 2004 and that the value must be published in accordance with that Act prior to the financial year. This means the monetary effect of the Regulations is dynamic and linked to executive determinations made under the Monetary Units Act 2004.

Fourth, Endnotes reference the Subordinate Legislation Act 1994 for the sunset mechanism: the Regulations will sunset ten years after the day of making (6 July 2031) by operation of s 5 of the Subordinate Legislation Act 1994. This interaction imposes a statutory time limit on the Regulations’ life unless remade.

Fifth, the Endnotes discuss interpretative consequences under the Interpretation of Legislation Act 1984 (ILA). They note that the ILA s 54A authorises style changes, and that ILA provisions govern the treatment of headings, notes, punctuation and provision numbers as integral to the statutory rule. These interpretative rules affect how the Regulations are read and cited, particularly in legal drafting and litigation.

Finally, the Regulations revoke the earlier Funerals (Infringements) Regulations 2011 (S.R. No. 71/2011) (reg 4; Endnotes), which changes the subordinate law landscape,where the 2011 instrument previously prescribed infringement offences and penalties, the 2021 Regulations now do so. Any transitional or consequential interaction with other instruments is not set out in the Regulations themselves and would need to be checked against the revoked instrument and the Act.

This version of the Funerals (Infringements) Regulations 2021 is labelled Version No. 001 and, per the Endnotes, contains no amendments made by statutory rules, subordinate instruments or Acts (Endnotes, Table of Amendments). The Endnotes also state there are no amendments not in operation (section 3 of Endnotes), so this Version as at 25 July 2021 is the operative text without pending changes recorded in the instrument’s endnotes.

Regulation 4 expressly revokes the Funerals (Infringements) Regulations 2011 (S.R. No. 71/2011). The Explanatory Details explicitly identify S.R. No. 71/2011 as the revoked instrument. The practical consequence is that the 2011 instrument no longer governs which offences under the Act are treated as infringement offences or what the infringement penalties are from the commencement date of the 2021 Regulations.

The Endnotes record the dates relevant to the instrument’s lifecycle. The Regulations were made on 6 July 2021 by the Governor in Council under s 82 of the Funerals Act 2006 and came into operation on 25 July 2021 (Endnotes). The Endnotes also record the statutory sunset: the Regulations will sunset 10 years after the day of making, on 6 July 2031, pursuant to s 5 of the Subordinate Legislation Act 1994. That sunset is automatic unless a remaking or other statutory action occurs to extend or replace the instrument.

No amendment history beyond revocation of the earlier 2011 Regulations is recorded in the instrument or Endnotes. The Explanatory Details provide an operational detail: the value of a penalty unit for the 2021-22 financial year is $181.74 and is to be multiplied by the penalty units specified in the Schedule, with the calculated amount rounded to the nearest dollar. For future years the Treasurer fixes the penalty unit value under the Monetary Units Act 2004 s 5 and must publish it in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. Any future amendment to the penalty units or the offences that are prescribed as infringement offences would be achieved by a later statutory rule amending this instrument or by amendment to the Funerals Act 2006 itself.

The Regulations’ text and Endnotes do not record any litigation history. There are no cases cited in the instrument, and the Endnotes do not list judicial challenges, declaratory proceedings, or references to court decisions concerning these Regulations. The instrument is a statutory rule; the Endnotes provide administrative and interpretative context but no litigation narrative.

For practitioners, that absence means one should not assume settled judicial interpretations of the interaction between these Regulations and the Act from the instrument alone. Any litigation involving the operation of the infringement regime as applied to the listed offences would require examination of the Funerals Act 2006 (particularly s 81A and adjacent procedural provisions) and any case law that has considered s 81A, the exercise of discretion to issue infringement notices, or the consequences of paying an infringement (for example whether payment results in no conviction or an admission). None of that case law is referenced in the text provided.

If a practitioner needs the adjudicated meaning of specific provisions of the Funerals Act 2006 as they interact with the infringement scheme, the instrument compels consulting reported decisions that interpret the Act or general doctrine on infringement notice schemes, none of which are supplied in the Regulations. The Regulations themselves only set which offences can be dealt with as infringements and the penalty units attached; procedural and evidentiary questions that commonly generate litigation,such as service and form of infringement notices, challenge mechanisms, and the effect of payment,are matters the Act governs and which litigation would have to address through case law, if any exists.

Finally, because these Regulations revoke the 2011 instrument, if litigation arose under the earlier instrument there could be transitional issues depending on timing; the instrument does not include transitional provisions or references to extant proceedings. Practitioners should therefore check court records and the Funerals Act for any decisions relating to infringement notices under either the 2011 or 2021 Regulations.

The Regulations are short and tightly focused, but there are several practical pitfalls to note because the instrument defers critical content to other statutes and administrative processes.

1. The Regulations do not reproduce the substantive offence text. The Schedule cites provisions of the Funerals Act 2006 (for example, s 10(1), s 28(5), s 24(1)-(5)), but the Regulations do not state what conduct those provisions prohibit or require. A regulator, adviser or defendant must consult the Act to understand whether an incident falls within a listed infringement offence. The Schedule alone is insufficient to determine the factual scope of the offence.

2. Monetary conversion is dynamic. Penalties are expressed in penalty units. The explanatory details give the 2021-22 value of a penalty unit as $181.74, but the Monetary Units Act 2004 s 5 requires the Treasurer to fix the unit’s value for each financial year and to publish it before 1 June in the prior financial year. That means the dollar amount of every prescribed infringement penalty will change year to year. Failure to use the correct year’s unit value will produce incorrect dollar figures.

3. Rounding rule. The explanatory details instruct rounding to the nearest dollar after multiplication. That is a small but concrete arithmetic step that can slightly alter final amounts and must be applied consistently.

4. The Act contains the infringement mechanics. Reg 6 invokes s 81A of the Funerals Act 2006 to make offences infringeable, but the Regulations do not specify the procedural consequences of an infringement notice, such as whether payment avoids conviction, what timeframes apply for payment, or how to contest a notice. Those procedural rights and limitations are in the Act. Users who rely solely on the Regulations may misunderstand their options.

5. Revocation effect. The 2011 Regulations are revoked (reg 4). If there were legacy enforcement practices, penalties or transitional arrangements under the 2011 instrument, the 2021 Regulations do not set out transitional arrangements. Practitioners should not assume continuity of penalty quantum or enforceability without checking whether any administrative transition was adopted by the enforcement agency.

6. Sunset clause. The Endnotes state the Regulations will sunset on 6 July 2031. If the instrument is not remade before that date, the prescription of these offences as infringement offences and the attached penalty levels will lapse, potentially affecting enforcement practice and requiring legislative action to continue infringement-based enforcement.

7. No enforcement agency named. The Regulations do not identify who issues infringement notices. That detail is important for service, internal review processes and who receives payments. It is determined by the Funerals Act 2006 and agency policies.

8. Precision of citation. The Schedule lists certain sub-sections (for example, s 24(1)-(5)). Those are treated in the Schedule as separate items and attract identical penalty units (5 penalty units each for s 24 subparagraphs). A reader must pay attention to the exact sub-section cited when determining exposure.

9. Small penalty-unit fractions. Some prescribed penalties are fractional penalty units (1.25). Depending on valuation and rounding, small fractions may generate unusual dollar amounts once multiplied and rounded. Practitioners should apply the multiplication and rounding rules precisely.

10. No note on multiple offences or stacking. The Regulations do not state whether multiple infringements attract cumulative penalty units or whether payment of one infringement may affect liability for others. That matter must be resolved by reference to the Act and enforcement policy.

Recognising these “gotchas” directs users to consult the Act, the Monetary Units Act 2004, the Sentencing Act 1991, and any relevant administrative guidance or policies from enforcement authorities before advising clients or making compliance decisions.

Compliance work under these Regulations is largely about two tasks: (1) preventing commission of the substantive offences listed in the Schedule; and (2) managing responses if an infringement notice is issued. The Regulations make plain that the listed provisions of the Funerals Act 2006 are subject to the infringement notice pathway (reg 6), but they do not set out substantive obligations or procedural remedies. Therefore compliance advice must be integrated with the Funerals Act 2006 and applicable administrative practice.

Concrete steps:

1. Map the Schedule to the Act. Identify each Schedule item (for example s 10(1), s 24(3), s 28(5)) in the Funerals Act 2006 and extract the full statutory text and any statutory defences. The Regulations alone do not disclose the elements of each offence. A compliance program must be built around the Act’s substantive obligations.

2. Quantify exposure. For each potential contravention, note the penalty units assigned in the Schedule and convert to dollars using the current penalty unit value. For the 2021-22 year the explanatory details state the unit is $181.74; for future years obtain the Treasurer’s published value under the Monetary Units Act 2004 s 5 and apply s 7 multiplication and rounding to the nearest dollar. Keep this calculation template current in compliance manuals and client advisories.

3. Understand procedural options under the Act. Since reg 6 operates by reference to s 81A of the Act, determine from the Act who is authorised to issue infringement notices, the timeframes for payment, the effect of payment on conviction, and the processes for contesting an infringement. Draft templates and workflows (who in the organisation manages receipt and response to notices) aligned to those procedures.

4. Update internal policies after commencement and revocation. The 2011 Regulations were revoked (reg 4). Ensure corporate policies and compliance checklists reflect the Schedule and penalty levels in the 2021 Regulations effective from 25 July 2021. Confirm whether the enforcement agency issued transitional guidance after revocation; if not, adopt a conservative approach by applying the new Schedule.

5. Training and communications. Train front-line staff and compliance officers about the specific statutory duties in the Act corresponding to the Schedule items. Because infringement penalties can be issued without court proceedings, staff responsible for operational compliance should be aware of conduct likely to attract an infringement notice and the internal steps for rectification or escalation.

6. Record-keeping. Maintain robust records that can be used to contest or mitigate an infringement. If an infringement notice is issued, the organisation will need contemporaneous evidence of compliance efforts, permits, licences or other documentation relevant to the Act’s provisions.

7. Monitor the Treasurer’s annual penalty unit notices. To maintain accurate financial risk assessments, a compliance calendar should include the Treasurer’s annual determination under the Monetary Units Act 2004 s 5 and the publication deadline of 1 June in the preceding financial year. Update penalty schedules and client advice promptly when a new unit value is published.

8. Check for regulatory guidance. Because the Regulations do not name the issuing authority or set procedural detail, seek any administrative guidance, protocols or enforcement policies published by the responsible regulator under the Funerals Act 2006 that explain the use of infringement notices for the listed offences.

9. Prepare dispute escalation paths. Given the possibility of contesting an infringement or requesting internal review, identify legal counsel, litigation funds and dispute-resolution pathways early. The Regulations do not specify contest procedures; these are contained in the Act and administrative rules.

10. Watch for sunset and legislative change. Because these Regulations will sunset on 6 July 2031 unless remade (Endnotes), include a monitoring task to track any remaking or amendment of the Regulations or the Funerals Act 2006 that could re‑classify offences or change penalty levels.

In short, compliance requires coupling the Schedule in these Regulations with the full text of the Funerals Act 2006, maintaining an accurate conversion from penalty units to dollars under the Monetary Units Act 2004, embedding procedural steps under s 81A in internal response plans, and updating all materials in response to the Treasurer’s annual penalty unit determination.