Submission to Cemeteries and Crematoria NSW on the Cemetery and Crematorium Operator Code of Practice

CPSA notes that the Code applies to ‘operators’ and that the definition of ‘operator’ excludes funeral directors by implication. However, from a consumer perspective, a funeral is a single transaction and the interment rights, which extend into the future, are defined by that single transaction. While there are transactions that are exclusively between ‘operators’ and consumers, the vast majority of transactions include funeral providers.

This means that at least some of the regulation of ‘operator’ practice by the Code risks being compromised by the lack of regulation by a code of practice for funeral providers. For example, clause 3.2 of the Code (affordability and sustainability) obliges the cemetery or crematorium to offer the consumer affordable and sustainable interment options, the consumer deals with a funeral provider, who is under no obligation to fully itemize the components of the funeral the consumer buys, except where the consumer opts for a ‘basic funeral’ as defined in the relevant Information Standard under the NSW Fair Trading Act 1987. This means that the affordable and sustainable interment option provided by the ‘operator’ offers the funeral director an opportunity to increase their overall mark-up as an alternative to keeping the cost of the funeral to the consumer down.

This criticism can also be applied to Parts 6 and 7 of the Code. In reality, most of the products and service offerings is being done by funeral directors, who are not bound by the sound and fair principles at the basis of Part 7. Funeral directors are expert at pressuring clients and have a vested interest in glossing over the detail of inclusions and exclusions.

The logical conclusion is that an effective Code of Practice is unlikely to eventuate unless funeral directors are bound by the same strictures of the Code, either through a separate code that is consistent with and complementary of the Code or by extending the Cemetery and Crematorium Code of Practice to include funeral directors.

If this were to occur, CPSA points out that Part 5 – Staff capability and skills would be particularly attractive to funeral directors. CPSA does not dispute that staff must be competent or keep up to date with developments in their industry, but funeral directors have been actively lobbying for regulation as laid down in Part 5 to gold-plate their industry and erect barriers-to-entry by means of demanding higher skill levels than are actually required.

This means that funeral directors might not be averse to be included in the definition of ‘operator’ included in the Code. It also means that any requirements for staff qualifications must be explicitly mandated by a regulator, rather than by the industry itself.

CPSA is concerned by clause 9.8, which gives CCNSW the power to request “the contact details of any party involved in any complaint or dispute for the purpose etc etc”. There is an obvious privacy issue here and the way the clause is drafted, would seem to enable CCNSW to insert itself at any point in the complaint process.

In summary, CPSA welcomes the regulatory effort of imposing what eventually will be a mandatory Cemetery and Crematorium Code of Practice, but urges the inclusion of funeral directors.