Topic 5: Licensing of funeral directors and monumental masons

Background

Topic 5A: Funeral directors

The Cemeteries Act provides that a funeral director must be licensed by the cemetery authority responsible for the care, control and management of the cemetery at which they wish to conduct funerals. A funeral director’s licence is issued for a period not exceeding one year. A cemetery authority may also issue a funeral director who already holds a licence issued by another cemetery authority with a single funeral permit to conduct the funeral of a person named in the permit.

A cemetery authority may also issue a single funeral permit to any person who is not a licensed funeral director. The MCB reports that while there are many enquiries for ‘DIY’ funerals from people who are not licensed funeral directors, very few of these enquiries result in an application for a single funeral permit.

In granting a funeral director’s licence or a single funeral permit, a cemetery authority must be satisfied that an applicant is of good repute and is fit to hold a funeral director’s licence, in addition to having suitable facilities and equipment for handling and storing dead bodies and conducting funerals. It is currently up to a cemetery authority to determine what evidence and supporting information an applicant is required to submit with their application and the decision of a cemetery authority to determine whether an applicant meets the criteria to be granted a licence or permit. A cemetery authority has the power to inspect the facilities and equipment of an applicant or holder of a funeral director licence. The Cemeteries Act also provides for the suspension and cancellation of licences, with review provisions.

Industry self-regulation occurs to some extent by those funeral directors who are members of AFDA and comply with a Code of Conduct, Code of Ethics and Prepaid Funerals Standard⁹. The AFDA aims to enhance and promote professional funeral standards and advance the knowledge, quality and performance of funeral industry professionals. Membership is voluntary and re-accreditation is required every 3 years. Members are required to complete a statutory declaration to confirm their compliance to the AFDA’s Codes and Standard. In 2021, about 74% of funerals in WA were conducted by funeral directors who are members of the AFDA, and most AFDA members in WA are located in the Perth metropolitan area.

The MCB conducts approximately 12,000 funerals per year. According to MCB estimates, this number accounts for about 80% of the State’s (WA) funerals. In order to conduct a funeral at MCB cemeteries, a funeral director must hold a licence to conduct a funeral or a single funeral permit issued by the MCB. Funeral directors issued with an annual licence must adhere to the provisions of the MCB Funeral Director Licence Code of Conduct (MCB Code of Conduct),¹⁰ which includes matters such as legislative obligations, professional conduct, care of the deceased, mortuary facilities, National Police Clearance and relevant insurances. Any breach of the MCB Code of Conduct may result in the cancellation, suspension or non-renewal of the funeral director’s licence. The MCB has advised that it receives a low number of complaints from the public about funeral directors, with most complaints being resolved directly with the funeral director. The MCB may also refer relevant matters to the Consumer Protection division of DMIRS.

Statistics provided by the DMIRS indicate that between 1 November 2016 and 31 October 2021, 246 enquiries and 50 complaints relating to funerals were received, with 31.7% of the enquiries and 52% of the complaints in relation to funeral directors. The key issues raised were billing and costs, as well as due care and skill.

Funeral directors in WA who are providing prepaid funeral contracts must comply with the Fair Trading (Prepaid Funerals Code of Practice) Regulations 2020 (Prepaid Funerals Code of Practice), administered by DMIRS¹¹. Additionally, the Department of Health has published guidelines developed in conjunction with the funeral industry which set out the minimum requirements expected of the funeral industries regarding preparation of the deceased for burial or cremation.

Topic 5B: Monumental masons

There is no provision under the Cemeteries Act requiring monumental masons to be licensed, and there is no active masons’ association in WA. However, cemetery authorities may make local laws or by-laws which require monumental masons to be licensed and which set out the circumstances in which a monumental mason’s licence may be cancelled. Cemetery authorities may also issue a permit to carry out monumental works on a particular grave.

Monumental masons who are licensed by the MCB are required to comply with a Code of Conduct which includes qualifications, adherence to legislation, policy and procedures, Australian Standards, professional conduct, National Police Clearance, workwear and relevant insurances. The MCB assesses each application for compliance with standards, issues a work permit and assesses the work upon completion.

DMIRS has advised that 30% of the 50 complaints received between 1 November 2016 and 31 October 2021 related to headstone and monumental works conducted by monumental masons.

Other jurisdictions

Funeral directors/providers

The Northern Territory has a similar licensing scheme to Western Australia. Under the Cemeteries Act 1952 (NT), funeral directors are required to apply for a licence with the relevant cemetery Board to operate in those cemeteries. Each cemetery Board has their own processes in place to determine how applications are assessed.

In Victoria, funeral providers¹³ are required to be registered with Consumer Affairs Victoria and there is a publicly available list of funeral providers in Victoria. Obligations of a funeral director under the legislation include:

• offering a basic funeral service for a burial or cremation
• to produce a clear and legible funeral goods and service price list and a coffin price list
• providing a statement of funeral costs to a customer prior to entering into an agreement for the provision of goods or funeral services.

Funeral directors also have obligations in relation to the provision of pre-paid funeral contracts and establishing a procedure for dealing with customer complaints. Funeral directors who fail to comply with such obligations are subject to penalties under the legislation.

In Queensland, funeral directors can voluntarily adopt the Queensland Funeral Industry Code of Conduct to demonstrate that they are committed to best practice¹⁴. The code is based on a shared commitment by the members of the funeral industry to the guiding principle of ethical and responsible behaviour. While commitment to the Code is voluntary, certain practices must be complied with under the legislation.

In Tasmania, funeral businesses must apply to the Director of Local Government to be a regulated business and comply with relevant legislation.

In the Australian Capital Territory (ACT), the Cemeteries and Crematoria Code of Practice 2020 was made under the Cemeteries and Crematoria Act 2020 (ACT), which outlines the operating requirements that apply to all cemeteries and crematoria in the ACT, whether public or private.

Funeral directors do not need a licence, specific training or qualifications to operate in New South Wales.

Monumental masons

Licensing and permit arrangements of monumental masons in other jurisdictions vary.

In Victoria, the legislation provides that a cemetery trust must assess all applications to establish or alter a memorial or place of interment. It does not directly require the licensing of stonemasons.

In all other jurisdictions, licensing requirements for monumental masons are not prescribed in the relevant legislation. However, most cemetery authorities have by-laws or policies which require all work carried out on monuments to be conducted by a monumental mason who holds a licence to work in that cemetery. Those cemeteries may also maintain a register or list of authorised monumental mason companies who are authorised to operate in those cemeteries.