ACCCvsMessenger FACTS

Dally Messenger and the ACCC

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Modern Values: The Business of Death
By: Moira Rayner
Wednesday 29 August 2007
Original on New Matilda -also pdf

When someone you love dies, society expects you to arrange two things: a ceremony or rite of passage to honour the deceased person; and the dignified disposal of their body.

The ceremony is the most important part — that is what is remembered, and begins the healing. The ceremony is usually performed by a celebrant or a member of the clergy. The dignified disposal of the body is a funeral director’s job.

What this means is that, when someone you love dies, you should contact a funeral celebrant first. They will arrange for a reputable funeral director to do their part: coming to your home and working with you on a dignified farewell.

But most people go to a funeral director first. The funeral director, usually on the same day, sells the family a pre-set package that includes a recommended celebrant’s fee. That fee is fixed somewhere between $180 and $400. This fee isn’t set by the celebrant. It’s what the funeral director will pay. The funeral director’s fee for the disposal of the body is between $6,000 and $10,000.

The funeral director’s fees to celebrants are low by any standard. They haven’t moved for about a decade. A celebrant’s task is intense, demanding, unpredictable, out-of-hours and, if done properly, takes up to 20-30 hours. A celebrant visits and talks with the family, painstakingly prepares the eulogy, music, poetry and symbols, checking every word with the family and delivers a very personal ceremony with compassionate competence.
The usual fixed fees discourage this level of involvement: sometimes they don’t even cover a celebrant’s out-of-pocket expenses.

On 12 August, Dally Messenger III paid quite a price for saying as much.

You might recognise Messenger’s name if you know your football history, because his grandfather was Australia’s first football superstar and they still name awards and halls of fame after him. His grandson is a smaller luminary: a passionate, pioneering advocate for civil celebrancy — people outside the clergy performing rites and ceremonies for the milestones that matter in secular, but spiritual, lives.

You might also recognise Messenger’s name because he was the guy who, a decade ago, arranged and delivered the huge public funeral for Darren Millane, the star Collingwood AFL player who got thoroughly drunk, got in his car and got killed. Messenger’s moving public ceremony was attended by thousands, made every news story, took a week to organise and, at the end of it, the funeral director paid him 150 bucks.

On 12 August, Dally agreed to settle civil litigation taken by the Australian Competition and Consumer Commission (ACCC) against him and his one-shareholder company in the Federal Court because, at the request of a small group of celebrants, he had signed a letter to Melbourne funeral directors asking them to raise ‘the fixed fee’ — their fixed fee — by $50.

In a mediated settlement he agreed to pay fines and costs of $46,000.

Dally Messenger’s life’s work has been to train and improve the quality of funeral celebrants. His company has negligible assets because the work has not made him rich. He is a 69-year-old age pensioner. His wife and he own the apartment they live in and little else.

Messenger has always argued against fixed fees for funeral celebrants. He did not seek to profit from the letter he signed — although he does believe celebrants should be adequately remunerated because they burn out otherwise. He has always negotiated a fee based on his hourly rate and the time reasonably needed to meet bereaved people’s human and spiritual needs. A memorable funeral ceremony is, surely, worth much more than the flowers.

Funeral directors do not like this approach. Not one has asked Messenger to officiate at a funeral, and he has conducted none, for more than two years.

The Federal Court didn’t hear all this. The judge didn’t have to investigate whether helping funeral celebrants approach funeral directors to up celebrants’ remuneration by 50 bucks limits competition. Of course Messenger agreed to settle the litigation, because the Federal Court’s usual respondents are huge multinationals and fines, penalties and legal fees usually run to hundreds of thousands of dollars. Messenger’s legal fees, however, had to come from his retirement savings or a lamington stall.

The ACCC was set up in 1974 by Senator Lionel Murphy. Its purpose was to stop anti-competitive behaviour, and explicitly to protect ‘the little feller’ from being exploited by the machinations of big business. That was in the public interest.
In recent months, the ACCC has suffered a string of setbacks and losses in its actions against big players. Messenger is not a big player. Graeme Samuel, Chairman of the ACCC, said that the agency had acted on attempted price-fixing in this case because it permitted exploitation of people (the bereaved) when they were ‘at their most vulnerable.’ 

Funeral celebrants are asked by funeral directors — who have already signed up the bereaved family — to arrange a meaningful farewell for their dad, grandma, wife or child, for around $20 an hour. You’d pay more to have your house cleaned.

The ACCC has moved a very long way from its original purposes. And the law has come a long way from Lionel Murphy’s ideal of accessible, affordable justice.

When someone you love dies, ring your funeral celebrant first.

About the author:

Moira Rayner is a freelance writer, lawyer and consultant based in Melbourne.



This time, it's Dally's funeral

Suzanne Carbone and Lawrence Money
May 18, 2007

DALLY Messenger is the name stamped on rugby league's equivalent of the Brownlow Medal. It is also the name being stamped on legal papers that have so far cost Messenger's grandson $20,000 defending himself against the consumer watchdog.

Dally Messenger III is being taken to the Federal Court by Graeme Samuel's ACCC, which claims he tried to induce civil celebrants to price-fix for funeral services.

This followed a letter sent by Messenger, a celebrant, to funeral directors on behalf of his colleagues, asking that their fee be lifted from $350 to $440.

"Dally can't believe the injustice of it," said an insider. "He actually spoke against the fee rise at the meeting where other celebrants voted in favour. He was chairman. They wanted the fee lifted but Dally says celebrants should charge by the hour instead.

"They decided to send a begging letter to the funeral directors and he put his name to it because he was not directly involved any more. He has not done a funeral for two years. The funeral parlours have black-listed him because he charges by the hour."

Messenger told Diary he could not comment publicly on the case. He confirmed that he was due to attend mediation next month.

Diary understands other Victorian celebrants have chipped in to help 69-year-old Messenger with his legal costs, but he is still well out of pocket.

One celebrant told Diary: "It's outrageous. The more decent funeral directors accepted the request and pay the higher fee. But someone else complained to the ACCC. Dally tried to find out who it was through (freedom-of-information laws) but they won't release the details. And because the case is in the Federal Court, you need a QC. Dally needs top legal advice. It costs a fortune and he's an old-age pensioner."



Celebrant faces charges over fixing funeral costs
Chantal Rumble
March 30, 2007
A GRANDSON of the late Australian rugby star Dally Messenger is facing charges in the Federal Court of attempting to fix the price of civil funeral ceremonies in Melbourne.

The Australian Competition and Consumer Commission alleges that Dally Messenger III, 69, tried to induce fellow civil celebrants to increase their fees and fix them at $440 per service.

The allegations stem from a "Best Practice Funerals Conference" hosted by Mr Messenger in Parkville in 2005, and attended by about 60 celebrants.

Mr Messenger, who founded the Melbourne-based International College of Celebrancy, called on the other celebrants to support a fee rise. The move was seconded and he wrote to all Victorian funeral directors to inform them of the new, fixed fee.

Mr Messenger, who has been a celebrant for 33 years, said yesterday he had been acting on behalf of funeral celebrants who were "the most exploited people in the whole funeral industry".

Civil funeral celebrants are typically subcontracted and paid by funeral directors, who charge a set fee for full funeral services. Mr Messenger, who has not conducted a ceremony since last May, said he wanted directors to increase their client fees so they could pay celebrants more.

He described the work — traditionally done for a donation by a parish priest or minister — as exhausting, and said all celebrants, civil and religious, deserved better remuneration.

But the ACCC says Mr Messenger's actions amount to price fixing and contravene the Competition Code of Victoria. It has taken the matter to the Federal Court seeking an injunction to stop Mr Messenger and his company, Dally M Publishing and Research, from repeating the conduct. It is also seeking an order for the company to implement a trade practices compliance program, pay a fine and cover the ACCC's costs.

ACCC chairman Graeme Samuel declined to comment. The matter has been listed for a directions hearing in the Federal Court on April 20.




Laughing all the Way to the Bank

Please note in the article below how

Invocare's shares (ie White Lady Funerals, Le Pine, Simplicity Funerals etc- 151 locations and 12 crematoria)

have increased 200% in the last three years. This occured in the same issue of the AFR as the report on D.Messenger.

Governments' powers have gone too far, says ex-judge


RETIRING Federal Court judge Ron Merkel has sharply criticised the coercive power amassed by government departments at federal and state level, saying Australians should ask themselves if their political masters deserve their trust.

Mr Merkel, who retires from the court today, said the tightening of security and detention laws designed to fight what the Government called the war on terrorism had given the bureaucracy "unprecedented power".

"I think the pendulum has swung too far in terms of the power of the executive Government of Australia. I have no doubt about that," he said.

"It is the recent anti-terrorist laws that have given the greatest expansion of power.

"In detention, control orders, access to information, telephone interception, surveillance devices and retrieving information, the Government's powers have gone further than we have ever gone before, but I think you would find the checks and balances on its exercise are much more difficult to be comfortable about.

"The move to granting ever expanding coercive power to the executive arms of state and federal governments, to be exercised behind closed doors and without public scrutiny, carries with it grave risks to the democratic values we are trying to defend," Mr Merkel said. "One must have serious concern as to whether the political hierarchy is deserving of the kind of trust and integrity that the public are entitled to expect of them in administering that power."

Mr Merkel is retiring after 10 years on the bench and will return to the bar to act for a range of public interest groups. He has a longstanding interest in Aboriginal affairs, and plans to advise and eventually litigate in a push for an Australian charter on human rights.

But he is concerned that governments are increasingly intruding on basic rights, such as the right to be let alone and not be unduly interfered with by government actions.

He said the bureaucracy was no longer independent of the political leaders of the day, and increasingly was less accountable to the public.

Ministers' political advisers had garnered enormous power, buffering the contact between ministers and their departments and shepherding the information flow, so that "pragmatism has overridden independence", he said.

lIThe culture that led us to .place so much trust in the independent and impartial use
of executive power in this country has changed. The world of ministers is dominated by their own political advisers."

He said there was no longer security of tenure for departmental heads, so they did not
assess actions solely on .their .
merits, but also considered whether they were helpful or harmful to the political interests of the day.
Mr Merkel said the AWB kickbacks affair was. "another example of where public confidence in the executive arm of government has certainly been knocked around".
He suggested courts should have greater powers to review the coercive actions of government, and that people targeted by those actions or their legal representatives should be made aware of the case against them and be allowed to respond effectively.
He suggested the Government set up a security ombudsman who could investigate alleged misuse of power, and a parliamentary security committee to examine if the powers are in line with the risks.