Dally Messenger III and the ACCC: Lawyer and author Moira Rayner explains the true position.
Modern Values: The Business of Death
By: Moira Rayner
First published in New Matillda
Wednesday 29 August 2007
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.
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