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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-05-16 Daily Xml
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BURIAL AND CREMATION BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 15 May 2013.)

Amendments Nos 1 to 6:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

Motion carried.

Amendment No. 7:

The Hon. J.R. RAU: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Clause 34, page 23, lines 16 and 17 [clause 34(2)]—Delete 'of an amount determined in accordance with the regulations' and substitute:

equal to the current fee payable for an interment right of the same kind, less a reasonable fee—

(a) for administration and maintenance costs; and

(b) for costs involved in the establishment of the cemetery or natural burial ground,

determined in accordance with the regulations

I will speak very briefly on this and explain the situation. This bill passed in the other place on 14 May. I am happy to accept the majority of amendments made in the other place; however, I do not agree with Amendment No. 7, which relates to clause 34 of the bill. Clause 34 of the bill sets out refund rights of a consumer when an interment right is surrendered to the relevant authority that issued it. In other words, somebody has for example purchased a plot at a cemetery, they have that right for a period of time and then they decide for whatever reason that they do not wish to keep it.

The Hon. P.F. Conlon: Would that be a case of them losing the plot?

The Hon. J.R. RAU: Indeed, they would ultimately lose the plot! In losing the plot, they would require, or reasonably expect, to receive some compensation for having lost the plot. There is a question as to how that compensation is calculated. There were many possibilities. Is it calculated by reference to the original price which might have been paid, and that could have been many years ago and, obviously affected by inflation and various other things or, should it be measured by reference to the current price for a comparable plot? And, if it is measured by reference to a current price of a comparable plot, should there be the capability of some deductions to be made from that price, to take into account administrative arrangements and such, like on the part of the cemetery authority?

The Hon. P.F. Conlon: The plot has thickened!

The Hon. J.R. RAU: The member for Elder observes that the plot has thickened. Anyway, we will get off that train for a minute. Clause 34 of the bill sets out these refund rights and, so, the clause is intended to help people whose circumstances change and they need to return their unexorcised internment right. The government consulted on this clause and, in response to concerns from industry, included reductions to include administration and maintenance costs. Following further consultation with industry, the government agreed to reduce the consumer's refund further, but recognised that more time was needed to come up with a sensible and fair formula for calculating establishment costs that the industry was happy with.

The effect of the amendment made in the other place is that the relevant authority for a cemetery or natural burial ground would be able to reduce a person's refund amount by a reasonable fee to cover administration and maintenance costs, as well as costs involved in the establishment of the cemetery or natural burial ground—potentially double-dipping. The amendment in the other place does not restrict how one calculates the term 'establishment costs'.

The government is extremely concerned that there may not be anything left over for the consumer at all after all of the deductions. If the establishment costs are too large a percentage of the refund, it could easily negate the benefit of the refund altogether. Without a clear method for calculating these costs, this amendment as it stands would introduce uncertainty and possibly unfairness for the consumer.

The term 'establishment costs' needs to be defined. There are various options for calculating establishment costs such as using a sliding scale to calculate the refund similar to that method used in Victoria, or capping refunds at a percentage amount. However, these methods need to be tried and tested before inserting them into the legislation, which is why they are best placed in the regulations.

This amendment will ensure that the substance of what was agreed to in the other place remains in the legislation but allows for a suitable method of calculating establishment costs to be developed in consultation with industry. The government provides the outcome that the industry wanted and ensures greater protections for consumers. The government is happy to consult with members of this place and the other place in relation to the regulations, and I undertake that we will do so.

The CHAIR: The Attorney has spoken in opposition to Amendment No. 7 from the Legislative Council, and has moved his own alternative amendment.

Ms CHAPMAN: Thank you for that guidance, Mr Chairman. I propose to make some comments in relation to all of the amendments and then I will address the government's amendment. I do not know if the Attorney has indicated whether he is proposing to consent to Amendment Nos 8 and 9. I am assuming, from what he said earlier, he will be.

The CHAIR: We will do that chronologically. So there will be two more to deal with after this.

The Hon. P.F. Conlon: What about numerically?

The CHAIR: We can do it numerically as well.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: I thank the Attorney for confirming that all other amendments from the Legislative Council will be consented to by the government. That is the position of the opposition. I just wish to make this general comment. In the space of the last 15 minutes, we have received three bills from the other place. One has been the subject of almost verbal abuse by the government during question time today about the audacity of the Legislative Council making amendment to a legislation that they put up. They seem to have taken it—

The Hon. J.R. RAU: Mr Chair—

The CHAIR: You have a point of order?

The Hon. J.R. RAU: I do have a point of order. The house has got some very important business to deal with today and the honourable member is not saying anything of any relevance to clause 6 or whatever it was—

The CHAIR: Seven.

The Hon. J.R. RAU: Clause 34 of this bill. It would be helpful if there is an agreement or a disagreement, if the honourable member could tell us about it so we can just understand what the position is. What is being traversed now is not relevant.

The CHAIR: It would be helpful if the deputy leader did deal with amendment no.7 from the Legislative Council and the substitute amendment from the deputy Premier.

Ms CHAPMAN: I am happy to do that. I will refer to my other comments when we come to amendment No. 8. In relation to amendment No. 7, the Attorney has set out essentially the history of attempting to resolve a formula as to how a refund would apply for basically an area that is no longer required. I think it is fair to say that in the years during which this bill has been developed, there has been considerable effort from all parties to try to resolve the matter.

What is so puzzling is why, after all this time, there has not been some attempt to deal with a process. We heard from the Attorney just a few minutes ago that Victoria and other states use different formulas; they are able to do this, it is not that difficult. Most complex refunds are worked out in relation to refunds from nursing homes when people go into them and they have a sliding scale or they have a refund under a certain percentage formula for a number of years. This surely is not that difficult that we have to come back, and instead of the government accepting the amendment from the Legislative Council which is to say leave it to the regulations as such, they now want to add some structure but then still leave the detail in the regulations.

I just cannot understand how a government has not been able to resolve this issue and be able to deal with it. We will have a look at it. You have thrown this back as something that you want to then be, I think, particularly picky on and not resolve it. I do not know whether it is some sort of grandstanding about whether or not you will accept the Legislative Council's amendments. It just seems absolutely pathetic.

I place that on the record. This could have been resolved, it should have been resolved. Other jurisdictions do it. If this government does not have the wit to be able to work out how you give a refund for an unused plot, I just simply cannot understand how they can deal with the big picture. In any event, we will have a look at it between houses and if it is the only way to resolve this matter so that the stakeholders can have it dealt with, then we will then consent to it.

Motion carried.

Amendments Nos 8 and 9.

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 8 and 9 be agreed to.

Motion carried.

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