A Class A cemetery trust member is appointed under s. 6A of the Act by the Governor in Council on the recommendation of the minister. Cemetery trust members comprise the cemetery trust board. As a cemetery trust is incorporated, the responsibilities of a cemetery trust member can be likened to those of a company director, such as:
- Acting diligently and prudently in regard to the business of the incorporated entity. The members of a cemetery trust have legal obligations and duties under common law and under the constituting legislation, being the Act and the Regulations, as well as under the Public Administration Act 2004 and all other relevant state and federal legislation. Trust members may wish to seek independent legal advice concerning their responsibilities and potential personal liabilities.
- Disclosing conflicts of interest. Trust members are required to disclose pecuniary interests, or any other interests, which could conflict with the proper performance of their duties.
- Keeping and rendering proper accounts and giving full information when required. This includes meeting the applicable compliance and reporting requirements of both state and federal legislation.
There is an expectation that cemetery trust members will act in good faith, fairly and impartially, with honesty and integrity, and in the best interests of the trust and their community.
The position description for Class A cemetery trust members provides more detail on the duties and responsibilities of the role.
Cemetery trusts and diversity
Current government policy recommends that public entities such as cemetery trusts should be representative of the communities they serve. Opportunities to appoint women, Indigenous Australians, people with a disability, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, trans, gender diverse and intersex people should be actively encouraged.
Cemetery trust chairperson
The role of the chairperson is to lead and assist trust members in understanding their role, and their responsibilities and accountabilities. Chairs are also responsible for ensuring that all trust members are able to actively participate in the governance of the trust.
In order to achieve this, chairs need to facilitate discussions at trust meetings by:
- ensuring that everybody has a say
- managing meetings appropriately
- ensuring that decisions are properly understood and well recorded.
The position description for Class A cemetery trust chairpersons provides more detail on the duties and responsibilities of the role.
The Premier's Circular No 2015/02 on Good Board Governance introduced a requirement for trust chairpersons to maintain a skills matrix. A skills matrix lists all current trust members and identifies the different skills each member brings to the trust. The skills matrix is designed to assist with the recruitment process to fill vacancies by highlighting existing skill gaps.
All chairpersons are expected to keep a copy of the skills matrix on file and keep the document updated as trust membership changes. The Class A skills matrix template can be printed and filled out by hand, or downloaded and completed online.
Class A trust conflict of interest and duty to disclose
A cemetery trust is expected to administer the cemeteries for which it is responsible in an equitable manner for the benefit of the whole community. Where a trust member has a personal interest in the outcome of a decision, it is difficult – if not impossible – for them to be objective in discussion and decision making.
Under clause 9 of schedule 1A of the Act, trust members are required to disclose any interest (direct or indirect) that could conflict with the proper performance of their duties. The chairperson must ensure this disclosure is recorded in the minutes of the meeting at which the conflict is disclosed. A trust member who has disclosed a conflict of interest must not take any further part in the discussion of, or vote on, any matter relating to the conflict of interest.
In addition, the Public Administration Act 2004 requires that members disclose any pecuniary interests or other interests that could conflict with the proper performance of their duties, and details certain procedures to be followed where disclosures occur.
However, over time, a person’s circumstances may change, and a person who did not have a conflict of interest a few years ago may have one now. For this reason, the Appointment and remuneration guidelines require that each cemetery trust member complete a ‘Declaration of private interests’ form each year, and whenever there is a material change in their interests.
Declaration of private interests forms are to be held by the trust and used to identify real or perceived conflicts of interest that could present a risk to the operation of the trust.
A range of other useful governance materials is available from the conflict of interest guidance for organisations and conflict of interest of VPSC’s website.
Cemetery trust members and personal liability
In carrying out a function or power under the Act, a member of a cemetery trust is not personally liable for anything they do or omit to do in good faith. In such instances, liabilities that would result from the actions of individual trust members attach instead to the cemetery trust (refer to s. 16 of the Act).
Free rights of interments for trust members
Trusts do not have the power under the Act to waive the gazetted fee for a right of interment for a trust member or former trust member. If you have any queries about this matter, contact Cemetery Sector Governance Support.