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This is a Bill, not an Act. For current law, see the Acts databases.
CEMETERIES AND CREMATORIA BILL 2002
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
Cemeteries
and Crematoria Bill 2002
Contents
Page
Part 1.1 Land (Planning and Environment) Act
1991 31
Part 1.2 Coroners Act 1997 31
2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Urban Services)
Cemeteries and
Crematoria Bill 2002
A Bill for
An Act about cemeteries and crematoria
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Cemeteries and Crematoria Act 2002.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act 2001, s 75).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation
Act 2001, s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act 2001, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain
words and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act or in other legislation.
For example, the signpost definition ‘stillborn
child—see the Births, Deaths and Marriages Registration Act
1997, section 4 (1).’ means that the expression ‘stillborn
child’ is defined in that subsection and that the definition applies to
this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act 2001, s 155 and
s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act 2001, s 127 (1), (4) and (5)
for the legal status of notes.
Part
2 Cemeteries and
crematoria
Division
2.1 Operation of cemeteries and
crematoria
(1) The Minister may, in writing, approve codes of practice for cemeteries
and crematoria.
(2) A code of practice may make provision in relation to the following
matters:
(a) burials, exhumations and cremations;
(b) the operation of cemeteries and crematoria;
(c) the design, construction and maintenance of—
(i) buildings, monuments, memorials, tombstones, gravestones, tablets,
monumental inscriptions, mausoleums, vaults and other structures and things
within cemeteries and crematoria; and
(ii) walls, fences, paths, roads, drains and other works of cemeteries and
crematoria;
(d) without limiting paragraph (c), responsibility for the maintenance of
buildings, monuments, memorials, tombstones, gravestones, tablets, monumental
inscriptions, mausoleums, vaults and other structures and things within
cemeteries and crematoria;
(e) the equipment used in cemeteries and crematoria, including its
maintenance;
(f) the grounds of cemeteries and crematoria, including their
maintenance;
(g) the position, depth and maintenance of graves;
(h) the construction of coffins to be placed in vaults;
(i) burial and other rights in relation to cemeteries and
crematoria;
(j) the making and keeping of records about cemeteries and crematoria,
including records of burials, exhumations and cremations, and burial and other
rights in relation to cemeteries and crematoria;
(k) the perpetual care funds of cemeteries and crematoria;
(l) the inspection of cemeteries and crematoria and their
records.
(3) A code of practice approved under this section may apply, adopt or
incorporate a law or instrument, or a provision of a law or instrument, as in
force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or in force at a
particular time, is taken to be a notifiable instrument if the operation of the
Legislation Act 2001, s 47 (5) or (6) is not displaced (see s 47
(7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act 2001.
(4) A code of practice approved under this section is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
6 Guidelines
for exercise of Minister’s powers
(1) The Minister may issue written guidelines about the exercise of any of
the following powers of the Minister:
(a) to approve a purpose for a trust under section 7 (3) (b)
(Establishment of perpetual care trusts);
(b) to prohibit the cremation of stated human remains under section 20 (1)
(Minister or magistrate may prohibit cremation);
(c) to permit a burial under section 22 (Burials to take place only at
cemetery) at a place other than a cemetery.
(2) The Minister must comply with any guideline applying to the exercise
of a power mentioned in subsection (1).
(3) A guideline is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
Division
2.2 Perpetual care
trusts
7 Establishment
of perpetual care trusts
(1) This section applies to each cemetery or crematorium (other than a
private burial ground).
(2) There is established, by this subsection, a trust (the perpetual
care trust) for the cemetery or crematorium.
(3) The perpetual care trust is established for—
(a) the maintenance of the cemetery or crematorium, including, for
example, the maintenance of—
(i) the grounds of the cemetery or crematorium; and
(ii) monuments, memorials, tombstones, gravestones, tablets, monumental
inscriptions, mausoleums, vaults and graves within the cemetery or crematorium;
and
(iii) walls, fences, paths, roads, drains and other works of the cemetery
or crematorium; and
(b) any other purpose approved, in writing, by the Minister.
(4) An approval under subsection (3) (b) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
(5) The trustee of the perpetual care trust is the operator for the time
being of the cemetery or crematorium.
(6) However, if there is no operator, the trustee is the person appointed
as trustee for the perpetual care trust under the Trustee Act 1925 or, if
no-one is appointed as trustee under that Act, the chief executive.
(7) The perpetual care trust is taken to be a charitable trust established
for public charitable purposes.
(8) The regulations may declare that expenditure of a particular kind or
for a particular purpose is, or is not, expenditure for the maintenance of a
cemetery or crematorium.
(9) Subsection (3) (a) has effect subject to any regulations made for
subsection (8).
8 Determination
of trust percentage
(1) The Minister must, for each cemetery or crematorium, determine the
percentage (the perpetual care trust percentage) of each amount
received by the operator for a burial, interment of ashes or memorialisation at
the cemetery or crematorium that is to form part of the perpetual care trust of
the cemetery or crematorium.
(2) The perpetual care trust percentage determined for the cemetery or
crematorium must be the percentage that the Minister considers necessary to
ensure that there are sufficient funds in the perpetual care trust so that the
cemetery or crematorium will be adequately maintained.
(3) The Minister must tell the operator the perpetual care trust
percentage determined.
(4) The Minister may, by written notice to the operator of a cemetery or
crematorium, require the operator to give the Minister stated information or
documents that the Minister reasonably needs to make a determination under this
section.
(1) The operator of a cemetery or crematorium must, for each cemetery or
crematorium the operator manages, open and maintain a trust account (a
perpetual care fund) with an authorised deposit-taking institution
(ADI) under a title that includes the name of the cemetery or
crematorium and the words ‘perpetual care fund’.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) Within 2 business days after opening the perpetual care fund, the
operator must tell the chief executive in writing of the name of the ADI with
which the perpetual care fund is maintained, the branch (if any) where the fund
is maintained, the account number (if any) and the title of the
account.
Maximum penalty: 20 penalty units.
(3) If a change is made in the ADI with which the perpetual care fund is
maintained, the branch where the fund is maintained or the account number or
title, the operator (or, if there is no operator, the trustee of the perpetual
care fund) must, within 2 business days after the change, tell the chief
executive in writing of the new ADI, branch or account number or
title.
Maximum penalty: 20 penalty units.
10 Payments
into perpetual care fund
(1) This section applies if the operator of a cemetery or crematorium
receives an amount for a burial, interment of ashes or memorialisation at the
cemetery or crematorium.
(2) The perpetual care trust percentage of the amount forms part of the
perpetual care trust of the cemetery or crematorium.
(3) As soon as possible after the end of the named month in which the
operator receives the amount, the operator must pay into the perpetual care fund
of the cemetery or crematorium the perpetual care trust percentage of the
amount.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
11 Protection
of perpetual care funds
(1) An amount credited to the perpetual care fund of a cemetery or
crematorium is not available for payment of debts of the operator of the
cemetery or crematorium and is not liable to be attached or taken in execution
to satisfy a judgment against the operator.
(2) This section does not apply to debts incurred by the operator in the
maintenance of the cemetery or crematorium or for a purpose approved by the
Minister under section 7 (3) (b).
12 Provisions
applying to authorised deposit-taking institutions
(1) This section applies to an ADI with which a perpetual care fund of a
cemetery or crematorium is maintained.
(2) The ADI is not obliged to control or supervise transactions of the
perpetual care fund or how amounts withdrawn from the account are
applied.
(3) The ADI must not, in relation to any liability of the operator of the
cemetery or crematorium or anyone else to the ADI, have or obtain any recourse
or right, whether by way of settlement, counterclaim, charge or otherwise
against an amount credited to the perpetual care fund.
(4) This section does not relieve the ADI from any liability it may have
apart from this section.
13 Accounts
and records for perpetual care funds
(1) The operator of a cemetery or crematorium must keep accounts and
records for—
(a) amounts received by the operator for burials, interment of ashes and
memorialisations at the cemetery or crematorium; and
(b) amounts paid into the perpetual care fund of the cemetery or
crematorium; and
(c) amounts withdrawn from the perpetual care fund and the purposes for
which the amounts are applied.
Maximum penalty: 20 penalty units.
(2) The operator must—
(a) keep the accounts and records at the operator’s principal place
of business in the ACT, or at another place with the written approval of the
chief executive; and
(b) keep the accounts and records in a way that they can be conveniently
and properly audited; and
(c) keep the accounts and records for at least 7 years after they are
made.
Maximum penalty: 20 penalty units.
(1) As soon as practicable after the end of each financial year, the
operator of a cemetery or crematorium must have the accounts and records
mentioned in section 13 audited by a person who is a registered company auditor
within the meaning of the Corporations Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) The operator must give the auditor’s report and the audited
accounts to the chief executive as soon as practicable after the end of the
financial year to which the report relates.
Maximum penalty: 20 penalty units.
Division
2.3 Improvement
notices
(1) The chief executive may give the operator of a cemetery or crematorium
a notice under this subsection if—
(a) the chief executive believes on reasonable grounds that this Act has
been, or is being, contravened in relation to the cemetery or crematorium;
and
(b) the contravention is not an offence against this Act.
Note A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including any approved codes of
practice (see Legislation Act 2001, s 104).
(2) The notice under subsection (1) must—
(a) state the contravention and the reasons for the belief; and
(b) invite the operator to make written representations, within a stated
period of not less than 14 days, why the operator should not be required to end
the contravention, remedy the consequences of the contravention or
both.
(3) If, after considering any written representations made by the operator
within the stated period, the chief executive is satisfied on reasonable grounds
that the operator should be required to end the contravention, remedy the
consequences of the contravention or both, the chief executive may give the
operator a notice under this subsection (an improvement
notice).
(4) The improvement notice—
(a) must require the operator to end the contravention, remedy the
consequences of the contravention, or do both, within a stated time;
and
(b) may state the action that the operator must take to comply with the
notice; and
(c) if the notice requires the operator to end the contravention—
must state that failure to end the contravention, without reasonable excuse,
within the stated time is an offence; and
(d) if the notice requires the operator to remedy the consequences of the
contravention—must state that, if the operator fails to remedy the
consequences, within the stated time, the chief executive may arrange for action
to be taken to remedy the consequences and that the operator will be liable for
the cost of taking the action.
16 Penalty
for failing to end contravention
The operator of a cemetery or crematorium must not, without reasonable
excuse, fail to end a contravention of this Act in accordance with an
improvement notice.
Maximum penalty: 50 penalty units.
17 Chief
executive may take action to remedy consequences of
contravention
(1) If the operator of a cemetery or crematorium fails to remedy the
consequences of a contravention of this Act in accordance with an improvement
notice or any additional time allowed by the chief executive, the chief
executive may arrange for the action that the chief executive considers
necessary or desirable to remedy the consequences to be taken by or on behalf of
the Territory.
(2) The cost of any action taken under this section is a debt payable by
the operator to the Territory.
Division
2.4 Offences about burials and
cremations
18 Person
must not bury or cremate human remains without permit
(1) A person must not bury human remains at a cemetery unless the burial
is authorised by a permit given by the operator of the cemetery under the
regulations.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person must not cremate human remains at a crematorium unless the
cremation is authorised by a permit given by the operator of the crematorium
under the regulations.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) Subsection (2) does not apply to human remains if the chief health
officer has given a public health direction under the Public Health Act
1997 requiring the cremation of the remains.
19 Operator
not to allow burial or cremation without permit etc
(1) The operator of a cemetery or crematorium must not allow human remains
to be buried or cremated at the cemetery or crematorium unless the burial or
cremation is authorised by a permit given by the operator under the
regulations.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply to human remains if the chief health
officer has given a public health direction under the Public Health Act
1997 requiring the cremation of the remains.
(3) The operator of a cemetery or crematorium must not give a permit under
the regulations authorising a burial or cremation at the cemetery or crematorium
unless the requirements of the regulations for the giving of the permit are
complied with.
Maximum penalty: 50 penalty units.
20 Minister
or magistrate may prohibit cremation
(1) The Minister, a magistrate, or a special magistrate under the
Magistrates Court Act 1930, may, by written notice given to the operator
of a crematorium, prohibit the cremation of stated human remains either
absolutely or until stated conditions are complied with.
(2) The operator must not cremate the human remains
unless—
(a) the notice is revoked; or
(b) the stated conditions have been complied with.
Maximum penalty: 50 penalty units.
21 Exhumation
of human remains
(1) A person must not exhume human remains buried in a cemetery
except—
(a) under a warrant under the Coroners Act 1997; or
(b) with written permission of the chief health officer under this
section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) The chief health officer may give written directions about the
exhumation of human remains.
(3) A direction under subsection (2) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act 2001.
(4) A person must not contravene a direction of the chief health officer
under subsection (2).
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(5) A person may apply to the chief health officer for permission to
exhume human remains buried in a cemetery.
(6) The chief health officer may give the permission if satisfied that it
would not be contrary to the interests of public health to grant the
permission.
(7) If the chief health officer refuses to give the permission, the chief
health officer must give the applicant written notice of the refusal and the
reasons for it.
22 Burials
to take place only at cemetery
A person must not bury human remains other than at a cemetery unless the
person has the written permission of the Minister.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
23 Cremations
to take place only at crematorium
A person must not cremate human remains other than at a
crematorium.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
24 Cremation
to conceal an offence
A person must not cremate human remains with intent to conceal the
commission of an offence.
Maximum penalty: 500 penalty units, imprisonment for 5 years or
both.
(1) A doctor must not, for the regulations, give a certificate about the
death of a person if a coroner must hold an inquest into the manner and cause of
death of the person under the Coroners Act 1997.
Maximum penalty: 10 penalty units.
Note The Coroners Act 1997, s 13 states the circumstances in
which a coroner must hold an inquest into the manner and cause of death of a
person.
(2) A doctor must not, for the regulations, give a certificate about the
death of a person if the doctor knows—
(a) that the doctor has a financial interest in the person’s death
under a life insurance policy; or
(b) that the doctor has a right or expectancy to property of any kind on
the person’s death.
Maximum penalty: 50 penalty units.
(3) In this section:
doctor includes a doctor who is a medical referee under the
regulations.
Part
3 The cemeteries
board
Division
3.1 Establishment and
functions
26 Establishment
of board
(1) There is an Australian Capital Territory Public Cemeteries
Board.
(2) The board—
(a) is a corporation with perpetual succession; and
(b) may have a common seal; and
(c) may sue and be sued in its corporate name; and
(d) may acquire, hold and dispose of property.
27 Functions
of board etc
(1) The functions of the board are to effectively and efficiently manage
public cemeteries and crematoria for which the board has been appointed as the
operator by the Minister.
Note A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see Legislation Act 2001, s 196 and dict, pt 1, def of
entity).
(2) The board must operate on a sound financial basis.
28 Ministerial
directions to board
(1) The Minister may give written directions to the board about the
exercise of its functions.
(2) Before giving a direction, the Minister must—
(a) tell the board about the proposed direction; and
(b) give the board a reasonable opportunity to comment on the proposed
direction; and
(c) consider any comments made by the board.
(3) The Minister must present a copy of a direction given under this
section to the Legislative Assembly within 6 sitting days after it is
given.
(4) The board must comply with a direction given to it under this
section.
(5) For the Trade Practices Act 1974 (Cwlth), this Act
authorises—
(a) the giving of a direction under this section; and
(b) the doing of, or the failure to do, anything by the board to comply
with a direction under this section.
29 Reports
to Minister by board
(1) In addition to any other reports that the board is required to make
under this Act or any other Territory law, the board must give the Minister the
reports the Minister requires.
(2) A report under this section must be prepared in the form, and be based
on the accounting or other policies or practices, (if any) that the Minister
requires.
30 Providing
information to Minister by board
The board must give the Minister any information about its operations that
the Minister requires.
Division
3.2 Members of
board
(1) The board consists of not less than 3, and not more than 12, members
appointed by the Minister.
Note 1 For the making of appointments (including acting
appointment), see Legislation Act 2001, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act 2001, s 7 (3)) and an
appointment may be made by naming a person or nominating the occupant of a
position (see s 207).
Note 3 Certain Ministerial appointments require consultation with a
Legislative Assembly committee and are disallowable (see Legislation Act
2001, pt 19.3.3).
(2) The Minister must appoint a member to be the chairperson and another
member to be deputy chairperson.
32 Term
of appointment of members
A member must not be appointed for a term of longer than 3 years.
Note A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act 2001, s 208
and dict, pt 1, def of appoint).
33 Ending
of appointment of members
The Minister may end the appointment of a member—
(a) for misbehaviour or physical or mental incapacity; or
(b) if the member—
(i) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with creditors or makes an
assignment of remuneration for their benefit; or
(ii) is absent from 3 consecutive meetings without reasonable excuse;
or
(iii) contravenes section 40 (Disclosure of interest by members) or 41
(Members to be honest etc).
Note A person’s appointment also ends if the person resigns
(see Legislation Act 2001, s 210).
34 Conditions
of appointment of members generally
A member holds the position on the conditions not provided by this Act that
are decided by the Minister.
Division
3.3 Proceedings of
board
35 Time
and place of meetings
(1) Meetings of the board are to be held at the times and places it
decides.
(2) However, the board must meet at least once every 3 months.
(3) The chairperson—
(a) may at any time call a meeting of the board; and
(b) must call a meeting if asked by the Minister or at least
2
members.
(4) The chairperson must give the other members reasonable notice of the
time and place of a meeting called by the chairperson.
36 Presiding
member at meetings
(1) The chairperson presides at all meetings at which the chairperson is
present.
(2) If the chairperson is absent, the deputy chairperson
presides.
(3) If the chairperson and the deputy chairperson are both absent, the
member chosen by the members present presides.
Business may be carried on at a meeting of the board only if not less than
½ the number of members appointed are present.
(1) At a meeting of the board each member has a vote on each question to
be decided.
(2) A question is to be decided by a majority of the votes of the members
present and voting but, if the votes are equal, the member presiding has a
casting vote.
39 Conduct
of meetings etc
(1) The board may conduct its proceedings (including its meetings) as it
considers appropriate.
(2) The board may hold meetings, or allow members to take part in
meetings, by telephone, closed-circuit television or another form of
communication.
(3) A member who takes part in a meeting under subsection (2) is taken to
be present at the meeting.
(4) If—
(a) all members agree, in writing, to a proposed resolution; and
(b) notice of the resolution is given under procedures decided by the
board;
the resolution is a valid resolution of the board, even though it was not
passed at a meeting of the board.
(5) The board must keep minutes of its meeting.
40 Disclosure
of interest by members
(1) This section applies to a member if—
(a) the member has a direct or indirect financial interest in an issue
being considered, or about to be considered, by the board; and
(b) the interest could conflict with the proper exercise of the
member’s functions in relation to the board’s consideration of the
issue.
(2) As soon as practicable after the relevant facts come to the
member’s knowledge, the member must disclose the nature of the interest to
a meeting of the board.
(3) The disclosure must be recorded in the board’s minutes and,
unless the board otherwise decides, the member must not—
(a) be present when the board considers the issue; or
(b) take part in a decision of the board on the issue.
(4) Any other member who also has a direct or indirect financial interest
in the issue must not—
(a) be present when the board is considering its decision under subsection
(3); or
(b) take part in making the decision.
41 Members
to be honest etc
In the exercise of his or her functions as a member, a member must exercise
the degree of honesty, care and diligence that is required to be exercised by a
director of a company in relation to the affairs of the company.
42 Arrangements
for staff
(1) The board may arrange with the chief executive to use public servants
in the administrative unit under the chief executive’s control.
(2) The Public Sector Management Act 1994 applies to the management
by the board of public servants the subject of an arrangement under subsection
(1).
(3) This division does not limit the board’s power to employ people
who are not public servants.
(1) The operator of a cemetery or crematorium may apply to the
administrative appeals tribunal for review of any of the following
decisions:
(a) a determination under section 8 (Determination of trust percentage) in
relation to the cemetery or crematorium;
(b) if the operator is given an improvement notice under section 15 that
requires the operator to remedy the consequences of a contravention of this
Act—the decision;
(c) a decision not to allow additional time under section 17 to remedy the
consequences of a contravention of this Act;
(d) a refusal under section 22 to permit a burial at a place other than a
cemetery.
(2) An applicant for permission to exhume human remains buried in a
cemetery may apply in writing to the administrative appeals tribunal for review
of a decision of the chief health officer under section 21 (Exhumation of human
remains) to refuse to give the permission.
44 Notification
of reviewable decisions
(1) A person who makes a decision mentioned in section 43 must give
written notice of the decision to—
(a) for a decision mentioned in section 43 (1) (a) to (c)—the
operator of the cemetery or crematorium; or
(b) for a decision mentioned in section 43 (1) (d)—the person who
asked for permission to bury human remains other than at a cemetery;
or
(c) for a decision mentioned in section 43 (2)—the applicant for
permission to exhume the human remains.
(2) The notice must be in accordance with the requirements of the code of
practice in force under the Administrative Appeals Tribunal Act 1989,
section 25B (1).
45 Acts
and omissions of representatives
(1) In this section:
representative means—
(a) for a corporation—an executive officer, employee or agent of a
corporation; or
(b) for an individual—an employee or agent of the
individual.
state of mind, of a person, includes—
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(2) This section applies to a prosecution for any offence against this
Act.
(3) If it is relevant to prove a person’s state of mind about an act
or omission, it is enough to show—
(a) the act was done or omission made by a representative of the person
within the scope of the representative’s actual or apparent authority;
and
(b) the representative had the state of mind.
(4) An act done or omitted to be done on behalf of a person by a
representative of the person within the scope of the representative’s
actual or apparent authority is taken to have been done or omitted to be done
also by the person, unless the person establishes that reasonable precautions
were taken and appropriate diligence was exercised to avoid the act or
omission.
(5) An individual who is convicted of an offence cannot be punished by
imprisonment for the offence if the individual would not have been convicted of
the offence without subsection (3) or (4).
46 False
or misleading statements
A person must not, for or in relation to this Act—
(a) state anything to the chief executive, a doctor, the operator of a
cemetery or crematorium, or anyone else, that the person knows is false or
misleading in a material particular; or
(b) omit from a statement made to the chief executive, a doctor, the
operator of a cemetery or crematorium, or anyone else, anything without which
the statement is, to the person’s knowledge, misleading in a material
particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act 2001 contains provisions about the
making of determinations and regulations relating to fees (see pt 6.3)
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and
presented to the Legislative Assembly, under the Legislation Act
2001.
(1) The Minister may, in writing, approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act 2001.
49 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act 2001.
(2) The regulations may make provision in relation to—
(a) the protection of cemeteries and crematoria; and
(b) the conduct of cemeteries and crematoria; and
(c) permits for burials and cremations; and
(d) certificates by doctors required for permits for burials and
cremations; and
(e) any matter about which provision may be made by a code of
practice.
(3) The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units
for offences against the regulations.
Part
5 Transitional
matters
Division
5.1 Assets and liabilities of former
trustees
50 Meaning
of former trustees for pt 5
In this part:
former trustees means The Trustees of the Canberra Public
Cemeteries set up under the Cemeteries Act 1933 (repealed),
section 6.
51 Vesting
of assets and liabilities of former trustees in board
(1) The assets and liabilities of the former trustees vest in the
board.
(2) If an asset, right or liability that vests in the board is mentioned
in a contract, agreement or arrangement, a reference in the contract, agreement
or arrangement to the former trustees is, in relation to anything happening or
to happen in relation to the asset or liability after the vesting of the asset
or liability in the board, a reference to the board.
52 Evidentiary
certificate for vested assets and liabilities
(1) The chief executive may certify that an asset or liability has vested
in the board under section 51.
(2) A certificate under subsection (1) is evidence of the matters it
states.
53 Registration
of changes in title to certain assets
(1) This section applies if—
(a) a registrable asset vests in the board under
section 51 (Vesting of assets and liabilities of former trustees in board);
and
(b) the board gives the registering authority
for the asset a certificate under section 52 (Evidentiary certificate for vested
assets and liabilities) for the asset.
(2) The registering authority must make the entries in the appropriate
register kept by the registering authority, and do anything else necessary or
desirable to be done, to reflect the vesting of the asset in the
board.
(3) The evidentiary value of a register mentioned in this section is not
affected by—
(a) the making of an entry under this section; or
(b) the failure to make an entry under this section; or
(c) the failure by the board to give a certificate to the registering
authority for a registrable asset.
(4) In this section:
registering authority, for a registrable asset, means the
person who, under Territory law, is required or permitted to enter particulars
about the ownership of the asset in a register.
registrable asset means an asset, including an interest in
land, particulars of the ownership of which are required or permitted under
Territory law to be entered in a register.
54 Proceedings
and evidence in relation to vested assets and liabilities
(1) This section applies in relation to an asset or liability that vests
in the board under section 51 (Vesting of assets and liabilities of former
trustees in board).
(2) If a proceeding had been begun in relation to the asset or liability
before it vested in the board and the former trustees are a party to the
proceeding, the board is substituted for the former trustees as a party to the
proceeding.
(3) If a proceeding could have been begun by or against the former
trustees in relation to the asset or liability before it vested in the board,
the proceeding may be begun by or against the board.
(4) The Limitation Act 1985 applies to a cause of action that
accrued to or against the former trustees in relation to the asset or liability
as if the cause of action had accrued to or against the board when it accrued to
or against the former trustees.
(5) The court or other entity in which a proceeding is begun or continued
by or against the board in relation to the asset or liability may give
directions about the conduct of the proceeding.
(6) Any evidence that would have been admissible for or against the former
trustees is admissible for or against the board.
(7) In this section:
proceeding includes a right of appeal or review (including a
right of review under the Ombudsman Act 1989) or any other civil
proceeding.
55 Transitional
regulations
(1) The regulations may prescribe savings or transitional matters
necessary or convenient to be prescribed because of the enactment of this
Act.
(2) In particular, the regulations may provide—
(a) that a permit for burial obtained under the Canberra Public
Cemeteries Regulations 1939 is taken to be a burial permit given under the
regulations under this Act; or
(b) that an approval under the Cremation Act 1966 of an application
for the cremation of a body is taken to be a cremation permit given under the
regulations under this Act.
(3) Regulations mentioned in subsection (2) have effect for all purposes,
including division 2.4 (Offences about burials and cremations).
56 Modification
of pt 5’s operation
The regulations may modify the operation of this part to make provision in
relation to any matter that, in the Executive’s opinion, is not, or is not
adequately, dealt with in this part.
This part expires 1 year after it commences.
The following Acts are repealed:
Cemeteries Act 1933 No 29
Cremation Act 1966 No 10.
59 Repeal
of subordinate laws
The Canberra Public Cemeteries Regulations 1939 made on 30 June
1939 are repealed.
Schedule 1 amends the Acts mentioned in that schedule.
Schedule
1 Consequential amendments of other
laws
(see s 60)
Part
1.1 Land (Planning and Environment)
Act 1991
insert
cemetery includes crematorium.
substitute
5
|
cemetery or burial ground
|
1 to provide for the interment or cremation of human remains and the
interment of the ashes of human remains
|
Part
1.2 Coroners Act
1997
substitute
12 General functions and jurisdiction of
coroner
(1) A coroner has the functions and jurisdiction given by this Act or any
other Territory law.
(2) Except as otherwise provided by this Act, a coroner also has all the
functions and jurisdiction that were vested in a coroner immediately before the
commencement of the Coroners Act 1956.
(see s 3)
Note 1 The Legislation Act 2001 contains definitions and
other provisions relevant to this Act.
Note 2 In particular, the Legislation Act 2001, dict, pt 1,
defines the following terms:
• appoint
• authorised deposit-taking institution
• chief executive
• chief health officer
• contravene
• exercise
• function.
ADI–see section 9 (1).
board means the Australian Capital Territory Public
Cemeteries Board.
bury includes inter human remains in a vault.
cemetery means a public cemetery, private cemetery or private
burial ground.
chairperson means the chairperson of the board.
code of practice means a code of practice approved under
section 5.
crematorium means a public crematorium or private
crematorium.
deputy chairperson means the deputy chairperson of the
board.
exhume includes remove human remains from a vault.
human remains means the body, or part of the body, of a dead
person (including a stillborn child), but does not include cremated human
remains.
improvement notice—see section 15 (3).
maintain includes alter, remove, renew and repair.
member means a member of the board, and includes the
chairperson and the deputy chairperson.
memorialisation means the erection of a memorial for a dead
person.
operator, of a cemetery or crematorium, means the person who
manages the cemetery or crematorium.
perpetual care fund—see section 9.
perpetual care trust—see section 7 (2).
perpetual care trust percentage—see section 8 (1)
(Determination of trust percentage).
private burial ground means an area of unleased Territory
land reserved under the Territory plan as a burial ground.
private cemetery means land leased for the purposes of a
cemetery or for the purposes of a cemetery and crematorium.
private crematorium means land leased for the purposes of a
crematorium or for the purposes of a cemetery and crematorium.
public cemetery means unleased Territory land reserved under
the Territory plan for use as a cemetery or for use as a cemetery and
crematorium.
public crematorium means unleased Territory land reserved
under the Territory plan for use as a crematorium or for use as a cemetery and
crematorium.
stillborn child—see the Births, Deaths and Marriages
Registration Act 1997, section 4 (1).
Endnotes
Republications of amended laws
1 For the latest republication of amended laws, see
www.legislation.act.gov.au.
Penalty units
2 The Legislation Act 2001, s 133 deals with the meaning of offence
penalties that are expressed in penalty units.
© Australian Capital Territory
2002
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