The funeral sector
Other relevant statutes
16.40The legislative obligations described above control the behaviour of funeral service providers in relation to dead bodies. However, in our consultation, we also encountered concern about the commercial activities of funeral service providers. There are currently no statutory obligations specifically relating to commercial activity in this sector, but of course, there are a number of general statutes. We describe some of the key statutes here:
- Fair Trading Act 1986—under this Act, funeral service providers are prohibited from engaging in misleading or deceptive conduct or unfair practices in advertising or representing services or goods.
- Consumer Guarantees Act 1993—under this Act, consumers have certain guarantees when acquiring goods and services from funeral service providers, including that any good supplied is reasonably safe, fit for purpose and otherwise of acceptable quality; and that services are carried out with reasonable care and skill. The Act also provides certain rights of redress for consumers, including a right to cancel the contract.
- Credit Contracts and Consumer Finance Act 2003—where the supply of funeral services fits the description of a credit contract, this Act provides a range of disclosure and other obligations. For example, the lender must disclose the total interest charged under the contract, the annual interest rate and full disclosure of any fees. Consumers have the right to cancel a contract within three days of initial disclosure being made to the consumer. Under recent changes, lenders have to comply with lender responsibility principles, which include making reasonable inquiries to satisfy themselves that borrowers can make repayments without suffering substantial hardship.
- Financial Service Providers (Registration and Dispute Resolution) Act 2008—funeral service providers must be registered as a financial service provider if they offer payment by credit contract; some forms of pre-paid funerals or funeral insurance; or if the funeral service provider gives financial advice. Such funeral service providers must also belong to a dispute resolution scheme.
- Financial Advisers Act 2008—funeral service providers giving financial advice including investment planning or advice about acquiring financial products, such as funeral insurance, may need to be authorised to do so by the Financial Markets Authority, depending on exactly what services they were offering. This Act provides a range of obligations for these circumstances, such as acting with due care and diligence and not misleading or deceiving the client. There are also disclosure obligations about the product or advice; how the adviser is being paid; and whether the adviser has criminal convictions.
- Disputes Tribunal Act 1988—financial disputes with a funeral service provider up to the amount of $15,000 may be dealt with by the Disputes Tribunal under this Act.
- Commerce Act 1986—this Act prevents funeral service providers from engaging in certain behaviour that may substantially lessen competition in the funeral service market. This may have a particular impact on funeral service providers in regions where there are few competitors.