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TASMANIA
__________
BURIAL AND CREMATION AMENDMENT BILL
2018
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Sections 3A and 3B inserted
3A. Regulator
3B. Meaning of senior next of kin
6. Section 8 amended (Power to establish crematoria)
7. Section 9 amended (Notification as to proposed management of
crematorium)
8. Section 10 amended (Objection by Director of Local
Government)
9. Section 11 amended (Hearing of objections)
10. Section 11A inserted
11A. Approval of person as cemetery manager
11. Section 19 amended (Duties and powers of cemetery managers)
12. Section 20 amended (Monuments, &c.)
13. Section 21 amended (Requirement to remove monuments)
14. Section 23 amended (Exclusive right of burial)
15. Section 26 repealed
16. Parts 2A and 2B inserted
[Bill 56]-VI
PART 2A - New cemeteries
27A. Approval to establish new cemetery
27B. Application to establish new cemetery
27C. Approval of new cemetery
27D. Refusal to approve new cemetery
27E. Notification of decision to not establish new
cemetery
27F. Notification of first interment at new cemetery
PART 2B - Sale of cemeteries
Division 1 - General
27G. Interpretation
27H. Person must not sell cemetery without approval
27I. Person must not purchase cemetery without approval
Division 2 - Requirements before sale of cemetery
27J. Notification of intention to sell cemetery
27K. Audit required of cemetery proposed to be sold
27L. Application for certificate of compliance in respect
of proposed sale
27M. Issue of certificate of compliance
27N. Refusal to issue certificate of compliance
27O. Notification of decision to not sell cemetery
Division 3 - Sale of cemetery
27P. Cemetery disclosure document
27Q. Implied term in contract of sale for cemetery
27R. Contract continues in certain circumstances
27S. Notification to regulator of sale of cemetery
27T. Effect of sale of cemetery
17. Sections 29 and 30 substituted
29. Closure of cemeteries
29A. Approval or refusal to approve closure of cemetery
29B. Effect of closure of cemetery
29C. Exclusive rights of burial in closed cemetery
30. Closed cemeteries laid out as parks or gardens
18. Section 31 amended (Land no longer required for cemetery)
19. Section 31A inserted
31A. Declaration that land ceases to be cemetery
20. Section 32 repealed
21. Section 33 amended (Cemetery manager to deal with closed
cemetery)
22. Section 35 amended (Land for re-interment to be made
available)
2
23. Section 36 amended (Exhumation and re-interment of human
remains)
24. Section 37 amended (Activities consistent with quiet recreation)
25. Section 38 amended (Exhumation of human remains)
26. Section 49 amended (Unlawfully managing crematorium or
cemetery)
27. Sections 49A, 49B and 49C inserted
49A. Compliance with Act
49B. Regulator may issue directive to cemetery manager
49C. Offences by body corporate
28. Section 50 amended (Offences)
29. Sections 50A and 50B inserted
50A. Offences relating to regulator
50B. Infringement notice offences
30. Section 51A inserted
51A. Regulator may reduce certain time frames
31. Section 54 amended (Regulations)
32. Section 56 inserted
56. Savings and transitional on commencement of Burial
and Cremation Amendment Act 2018
33. Repeal of Act
3
4
BURIAL AND CREMATION AMENDMENT BILL
2018
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
22 November 2018
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Burial and Cremation Act 2002
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Burial and
Cremation Amendment Act 2018.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 56] 5
Burial and Cremation Amendment Act 2018
Act No. of 2018
s. 3
3. Principal Act
In this Act, the Burial and Cremation Act 2002*
is referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by omitting the definition of cemetery
and substituting the following
definitions:
approved form means a form approved
by the regulator;
cemetery -
(a) means -
(i) a place approved
under the Land
Use Planning and
Approvals Act
1993 for the
interment of
human remains
and lawfully used
for the interment
or placement of
human remains; or
(ii) a place, land or
structure, or a
_______________________________________________________________
*No. 4 of 2002
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class of places,
land or structures,
prescribed as a
cemetery; and
(b) includes any other place
that, immediately before
the commencement of this
Act, was lawfully used -
(i) for the interment
of human remains;
or
(ii) as a mausoleum or
any similar
structure which
was suitable for
the placement of
human remains -
but does not include any
land on which there is a
grave as mentioned in
section 41;
(b) by inserting the following definition after
the definition of cemetery manager:
closed cemetery - see section 29B(1);
(c) by inserting the following definitions
after the definition of crematorium
manager:
Director of Local Government means
the Director within the meaning
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s. 4
of the Local Government Act
1993;
Director of Public Health means the
person appointed as the Director
of Public Health under the Public
Health Act 1997;
(d) by inserting the following definition after
the definition of monument:
offer for sale includes display, or
expose, for sale;
(e) by inserting the following definition after
the definition of prescribed business:
regulator - see section 3A(1);
(f) by omitting "Director of Public Health."
from the definition of religious or
cultural practice and substituting
"Director of Public Health;";
(g) by inserting the following definitions
after the definition of religious or
cultural practice:
sell includes any of the following,
whether by wholesale or retail:
(a) barter or exchange;
(b) deal in or agree to sell;
(c) offer for sale;
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(d) supply for, in expectation
of receiving, payment or
consideration;
(e) receive for sale;
(f) dispose of by way of
raffle, lottery or other
game of chance;
(g) offer as a gift, prize or
reward;
(h) give away for any
purpose;
senior next of kin - see section 3B;
spouse includes the other party to a
significant relationship, within
the meaning of the Relationships
Act 2003.
5. Sections 3A and 3B inserted
After section 3 of the Principal Act, the
following sections are inserted in Part 1:
3A. Regulator
(1) For the purposes of this Act, the
regulator is -
(a) the person prescribed as the
regulator for the purposes of this
Act; or
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(b) if no such person is prescribed,
the Director of Local
Government.
(2) Subject to subsection (3), the regulator
may exempt a person from complying
with one or more requirements under
Part 2A or 2B if satisfied that the
exemption -
(a) is reasonable in the
circumstances; and
(b) will not have a negative effect on
the entitlements of another person
under this Act.
(3) The regulator may not exempt a person
from a requirement in any of the
following sections:
(a) section 27A;
(b) section 27B(1) or (5);
(c) section 27H(2);
(d) section 27I;
(e) section 27J(1)(c);
(f) section 27L;
(g) section 27P(3);
(h) section 27Q;
(i) section 27R;
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(j) section 27S;
(k) any other section as prescribed.
3B. Meaning of senior next of kin
(1) For the purposes of this Act, a person is
the senior next of kin in relation to the
human remains of a deceased person,
including human remains that are
reduced to ash, if the person -
(a) immediately before the death of
the deceased person, was the
spouse of the deceased person; or
(b) if there is no person within
paragraph (a) in respect of the
deceased person - the deceased
person's eldest available child,
within the meaning of section
3(13) of the Evidence Act 2001, if
that child has attained the age of
18 years; or
(c) if there is no person within
paragraph (a) or (b) in respect of
the deceased person - the person
with whom, immediately before
the death of the deceased person,
the deceased person had a caring
relationship which was the
subject of a deed of relationship
registered under Part 2 of the
Relationships Act 2003; or
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(d) if there is no person within
paragraph (a), (b) or (c) in respect
of the deceased person - a parent
of the deceased person; or
(e) if there is no person within
paragraph (a), (b), (c) or (d) in
respect of the deceased person -
the eldest available sibling of the
deceased person, if that sibling
has attained the age of 18 years;
or
(f) if there is no person within
paragraph (a), (b), (c), (d) or (e)
in respect of the deceased
person - the personal
representative of the deceased
person; or
(g) if -
(i) there is no person within
paragraph (a), (b), (c), (d),
(e) or (f) in respect of the
deceased person; and
(ii) the deceased person is an
Aboriginal person within
the meaning of the
Aboriginal Lands Act
1995 -
a person who is an appropriate
person according to the customs
and traditions of the community
12
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or group to which the deceased
person belonged; or
(h) if there is no person within
paragraph (a), (b), (c), (d), (e), (f)
or (g) in respect of the deceased
person - a person approved under
subsection (3) by the Director of
Local Government as the next of
kin of the deceased person.
(2) For the purposes of a paragraph of
subsection (1), there is no person within
the paragraph in respect of a deceased
person, or a person referred to in the
paragraph is not available, if the person
referred to in that paragraph -
(a) is unable to be contacted after all
reasonable steps to contact the
person have been taken; or
(b) has declined to act as the senior
next of kin for the deceased
person; or
(c) is, in the opinion of a medical
practitioner, unable to perform
adequately, or competently, the
duties of senior next of kin.
(3) For the purposes of subsection (1)(h), the
Director of Local Government may
approve a person as the next of kin of a
deceased person by notifying, in writing,
the person so approved that he or she is
the next of kin of the deceased person.
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6. Section 8 amended (Power to establish crematoria)
Section 8(1) of the Principal Act is amended by
omitting "or cemetery".
7. Section 9 amended (Notification as to proposed
management of crematorium)
Section 9 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "or
cemetery";
(b) by omitting from subsection (2) "or
cemetery";
(c) by omitting from subsection (3)(c) "or
cemetery";
(d) by omitting from subsection (3)(d)
"crematorium or cemetery." and
substituting "crematorium.".
8. Section 10 amended (Objection by Director of Local
Government)
Section 10 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "or
cemetery" first occurring;
(b) by omitting from subsection (1)(a)(ii)
"crematorium or cemetery;" and
substituting "crematorium;";
14
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(c) by omitting from subsection (1)(b)(ii)
"crematorium or cemetery." and
substituting "crematorium.";
(d) by omitting from subsection (2)(a)
"crematorium or cemetery," and
substituting "crematorium,";
(e) by omitting subsection (4).
9. Section 11 amended (Hearing of objections)
Section 11 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "or
cemetery";
(b) by omitting from subsection (3)
"crematorium or cemetery," and
substituting "crematorium,";
(c) by omitting from subsection (3) "or
cemetery" second occurring.
10. Section 11A inserted
After section 11 of the Principal Act, the
following section is inserted in Division 1:
11A. Approval of person as cemetery manager
(1) This section does not apply to a person
managing a cemetery if the person was
managing that cemetery immediately
15
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s. 10
before the commencement of this
section.
(2) A person must not manage a cemetery
unless he or she has been approved under
this section to be the cemetery manager
for the cemetery.
Penalty: Fine not exceeding 50 penalty
units.
(3) A person who proposes to manage a
cemetery must apply to the regulator for
approval to manage the cemetery.
(4) An application under subsection (3) -
(a) is to be in an approved form; and
(b) must be accompanied by -
(i) any information that the
regulator considers
relevant to the
application; and
(ii) the relevant prescribed
fee, if any.
(5) The regulator may only approve a person
as a cemetery manager under this section
if the regulator is satisfied that the person
is -
(a) a fit and proper person to be a
cemetery manager; and
16
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(b) a body corporate with perpetual
succession.
(6) In considering whether a person is a fit
and proper person to be a cemetery
manager, the regulator is to take into
account the following matters:
(a) the capacity, including the
financial capacity, of the
proposed cemetery manager to
maintain the cemetery, to which
the application relates, and the
records of that cemetery;
(b) the capacity of the proposed
cemetery manager to comply with
this Act in respect of the
cemetery to which the application
relates;
(c) whether the proposed cemetery
manager, or any officer of the
proposed cemetery manager, has
any previous experience in the
management and maintenance of
a cemetery and, if so, the details
of that experience;
(d) whether the proposed cemetery
manager, or any officer of the
proposed cemetery manager, has
been found guilty of one of the
following offences within the
immediately previous 10 years,
17
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s. 10
regardless of where the proposed
cemetery manager was convicted:
(i) an indictable offence
where the maximum
penalty for the offence is
a term of imprisonment of
at least 3 months;
(ii) an offence of dishonesty,
fraud, or trafficking,
where the maximum
penalty for the offence is
a term of imprisonment of
at least 3 months;
(e) whether or not any allegations of
misconduct, relevant to the
management or operation of a
cemetery, or crematorium or
prescribed business, have been
made against the proposed
cemetery manager, or any officer
of the proposed cemetery
manager, regardless of the
jurisdiction in which the
allegation was made;
(f) any other prescribed matter;
(g) any other matter, in respect of the
proposed cemetery manager, that
the regulator considers relevant.
(7) After receiving an application under
subsection (3), the regulator may -
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(a) approve the person as the
cemetery manager for the
cemetery; or
(b) refuse to approve the person as
the cemetery manager for the
cemetery; or
(c) request further information from
the applicant and, after receiving
the requested information -
(i) approve the person as the
cemetery manager for the
cemetery; or
(ii) refuse to approve the
person as the cemetery
manager for the cemetery.
(8) If the regulator approves a person as the
cemetery manager under this section, the
regulator, by notice in writing, is to
notify that person of the approval.
(9) If the regulator refuses to approve a
person as the cemetery manager under
this section, the regulator, by notice in
writing, is to notify that person -
(a) of the refusal to approve; and
(b) of the reasons for that refusal; and
(c) that the person has a right to
apply for a review of the decision
to refuse the approval, in
19
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s. 11
accordance with the Magistrates
Court (Administrative Appeals
Division) Act 2001.
(10) A decision of the regulator, under this
section, to refuse to approve a person as a
cemetery manager is a reviewable
decision for the purposes of the
Magistrates Court (Administrative
Appeals Division) Act 2001.
11. Section 19 amended (Duties and powers of cemetery
managers)
Section 19 of the Principal Act is amended as
follows:
(a) by omitting from the penalty under
subsection (1) "10 penalty units" and
substituting "50 penalty units";
(b) by inserting the following subsections
after subsection (1):
(1A) Subject to subsection (1B), a
cemetery manager must ensure
that -
(a) so far as reasonable, a
cemetery under the
control of that manager is
maintained so as to
prevent the cemetery from
falling into disrepair, or
from being defaced or
damaged; and
20
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s. 11
(b) any disrepair or
defacement of, or damage
to, the cemetery is
rectified as soon as
practicable.
Penalty: Fine not exceeding 50
penalty units.
(1B) Subsection (1A) does not apply to
a vault, grave or monument
within a cemetery unless -
(a) the defacement or damage
to the vault, grave or
monument was caused, or
approved, by the cemetery
manager for the cemetery;
or
(b) the cemetery manager for
the cemetery has entered
into an agreement under
section 20(3) in respect of
the vault, grave or
monument.
(c) by omitting from the penalty under
subsection (2) "10 penalty units" and
substituting "50 penalty units";
(d) by omitting the penalty from subsection
(3) and substituting the following
penalty:
Penalty: Fine not exceeding 30 penalty
units and, in the case of a
21
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s. 12
continuing offence, a further fine
not exceeding 5 penalty units for
each day during which the
offence continues.
12. Section 20 amended (Monuments, &c.)
Section 20 of the Principal Act is amended by
omitting subsection (3) and substituting the
following subsections:
(3) A person and the cemetery manager of a
cemetery may agree, in writing and on
payment, by the person, of a fee fixed by
the cemetery manager, that the cemetery
manager is to maintain a vault, grave or
monument within the cemetery according
to the terms of the agreement.
(4) A cemetery manager of a cemetery that
contains a vault, grave or monument that
is the subject of an agreement made
under subsection (3) must comply with
the terms of that agreement.
Penalty: Fine not exceeding 50 penalty
units.
13. Section 21 amended (Requirement to remove
monuments)
Section 21 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "who
erected or placed the monument, require
22
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s. 13
him or her" and substituting "responsible
for the monument, require the person";
(b) by inserting the following subsection
after subsection (1):
(1A) For the purposes of this section, a
person is the person responsible
for a monument if -
(a) the person has entered
into an agreement with
the cemetery manager
under section 20(3) in
respect of the monument;
or
(b) if there is no agreement
under section 20(3) in
respect of the monument
and the monument is
intended to commemorate
a single deceased person,
the person is the senior
next of kin of the
deceased person; or
(c) if there is no agreement
under section 20(3) in
respect of the monument
and the monument is
intended to commemorate
more than one deceased
person, the person -
(i) is the senior next
of kin of a
23
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Act No. of 2018
s. 13
deceased person
commemorated by
the monument;
and
(ii) has been
determined by the
regulator as the
person responsible
for the monument.
(c) by inserting in subsection (2)(a)
"responsible for the monument" after
"person";
(d) by inserting the following paragraph after
paragraph (a) in subsection (2):
(ab) the cemetery manager is the
person responsible for the
maintenance of the monument by
virtue of an agreement under
section 20(3) in respect of the
monument; or
(e) by omitting from subsection (2)(b) "who
erected or placed the monument" and
substituting "responsible for the
monument";
(f) by omitting paragraph (c) from
subsection (2) and substituting the
following paragraph:
(c) render the monument safe or, if it
is not reasonable in the opinion of
the cemetery manager to render
24
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s. 13
the monument safe, take the
monument down and remove it;
and
(g) by omitting from subsection (2)(d) "who
erected or placed the monument" and
substituting "responsible for the
monument";
(h) by inserting the following subsection
after subsection (2):
(2A) Subsection (2)(d) does not apply
in respect of a monument if -
(a) an agreement has been
entered into under
section 20(3) in respect of
the monument; and
(b) the terms of the
agreement require the
cemetery manager to bear
the cost of rendering the
monument safe, or taking
the monument down and
removing it, in
accordance with this
section.
(i) by inserting the following subsection
after subsection (3):
(4) As soon as practicable after a
cemetery manager takes a
monument down and removes it
25
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s. 14
under subsection (3), the
cemetery manager must -
(a) notify the person
responsible for the
monument; and
(b) if an agreement is in place
under section 20(3) in
respect of the monument
and the terms of that
agreement meet the
requirements of
subsection (2A)(b), re-
erect the monument at no
charge to the person
responsible for the
monument.
14. Section 23 amended (Exclusive right of burial)
Section 23 of the Principal Act is amended as
follows:
(a) by omitting subsections (3) and (4) and
substituting the following subsections:
(3) If it is impracticable for a
cemetery manager to inter any
human remains in an interment
plot or portion of a cemetery in
accordance with an exclusive
right of burial, the cemetery
manager must, with the consent
of the holder of the right and
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s. 14
without further charge, grant to
the holder of the right -
(a) an exclusive right of
burial in another plot or
portion of the cemetery;
or
(b) an exclusive right of
burial in another cemetery
if so agreed with the
manager of that other
cemetery.
(4) If the holder of an exclusive right
of burial does not consent, as
required under subsection (3), to
a new grant of an exclusive right
of burial, the matter is to be
referred to arbitration under the
Commercial Arbitration Act 2011
as if there were a request for the
dispute to be referred to
arbitration under that Act.
(b) by inserting the following subsection
after subsection (5):
(6) A cemetery manager must fulfil a
valid exclusive right of burial,
held by a person, that is in force
in respect of the cemetery
managed by the cemetery
manager unless -
(a) another exclusive right of
burial is granted to the
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s. 15
person under
subsection (3); or
(b) the cemetery manager has
been notified in writing
by the holder of the
exclusive right of burial,
or his or her legal
representative, that -
(i) the exclusive right
of burial is
terminated; or
(ii) the holder of the
exclusive right of
burial has been
interred other than
in accordance with
the exclusive right
of burial.
Penalty: Fine not exceeding 50
penalty units.
15. Section 26 repealed
Section 26 of the Principal Act is repealed.
16. Parts 2A and 2B inserted
After section 27 of the Principal Act, the
following Parts are inserted:
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s. 16
PART 2A - NEW CEMETERIES
27A. Approval to establish new cemetery
(1) A person must not establish a cemetery
for the interment or disposal of human
remains unless the establishment of that
cemetery has been approved by the
regulator under this Part.
Penalty: Fine not exceeding 50 penalty
units.
(2) For a new cemetery to be established
under this Part for the interment or
disposal of human remains, the person
who intends to establish the cemetery
must be -
(a) responsible for the management
of the cemetery; and
(b) approved under section 11A as
the cemetery manager for the
cemetery.
27B. Application to establish new cemetery
(1) If a person intends to establish a
cemetery for the interment or disposal of
human remains, the person must apply to
the regulator for approval to establish the
cemetery.
(2) An application to the regulator under
subsection (1) -
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(a) is to be in an approved form; and
(b) must be accompanied by -
(i) an application under
section 11A for the person
intending to establish the
cemetery to be approved
as the cemetery manager
for the cemetery; and
(ii) any other information that
the regulator considers
relevant to the
application; and
(iii) the relevant prescribed
fee, if any.
(3) Before determining an application under
subsection (1), the regulator may
consider one or more of the following
matters in respect of the application:
(a) the location, and condition, of the
land on which the cemetery is
proposed to be established;
(b) whether the proposed cemetery
may be prejudicial to public
health or public safety;
(c) any other matter that the regulator
considers relevant to determining
the application.
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(4) After receiving an application under
subsection (1), the regulator may -
(a) approve the establishment of the
cemetery subject to any
conditions that he or she thinks
fit; or
(b) refuse to approve the
establishment of the cemetery; or
(c) request further information from
the applicant and, after receiving
the requested information -
(i) approve the establishment
of the cemetery subject to
any conditions that he or
she thinks fit; or
(ii) refuse to approve the
establishment of the
cemetery.
(5) Despite subsection (4), the regulator may
only approve an application under that
subsection in respect of a proposed
cemetery if the person intending to
establish the cemetery has been approved
under section 11A as the cemetery
manager for the proposed cemetery.
(6) If the regulator has not determined an
application under subsection (4) within
60 days after receiving the application,
the regulator is to provide the applicant
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with such information as to the status of
the application as the regulator thinks fit.
27C. Approval of new cemetery
(1) If the regulator approves an application
under section 27B(4), the regulator is to
issue to the applicant a written approval
to establish the cemetery to which the
application relates.
(2) An approval to establish a cemetery
issued under subsection (1) is to -
(a) be in an approved form; and
(b) specify any conditions imposed in
respect of the approval.
(3) On receipt of an approval to establish a
cemetery issued under subsection (1), the
person who was issued the approval may
establish the cemetery in accordance with
the approval so issued.
(4) On receipt of an approval to establish a
cemetery issued under subsection (1), the
person who was issued the approval must
publish, in the prescribed manner, a
notice containing the prescribed
information in relation to the cemetery so
approved.
Penalty: Fine not exceeding 20 penalty
units.
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(5) A decision of the regulator, under
section 27B(4), to impose a condition on
an approval is a reviewable decision for
the purposes of the Magistrates Court
(Administrative Appeals Division) Act
2001.
27D. Refusal to approve new cemetery
(1) If the regulator refuses, under
section 27B(4), to approve the
establishment of a cemetery, the
regulator is to notify the applicant in
writing of -
(a) the refusal; and
(b) the reasons for that refusal; and
(c) the applicant's right to apply for a
review of the decision to refuse
the approval, in accordance with
the Magistrates Court
(Administrative Appeals Division)
Act 2001.
(2) A decision of the regulator, under
section 27B(4), to refuse to approve the
establishment of the cemetery is a
reviewable decision for the purposes of
the Magistrates Court (Administrative
Appeals Division) Act 2001.
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27E. Notification of decision to not establish new
cemetery
If a person publishes a notice under
section 27B in respect of his or her
intention to establish a new cemetery and
the person no longer intends to establish
the new cemetery, the person must notify
the regulator of that fact as soon as
practicable after making the decision to
not establish the cemetery.
Penalty: Fine not exceeding 20 penalty
units.
27F. Notification of first interment at new
cemetery
Within 30 days after interring or placing,
in a proposed cemetery approved under
this Part, the first human remains in that
cemetery, the cemetery manager for the
cemetery must notify, in an approved
form, the regulator of the interment, or
placing, of those human remains.
Penalty: Fine not exceeding 20 penalty
units.
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PART 2B - SALE OF CEMETERIES
Division 1 - General
27G. Interpretation
In this Part -
certificate of compliance, in respect of
a sale, means the certificate
issued for that sale under
section 27M(1);
contract, in relation to a cemetery,
means an agreement to sell the
cemetery, regardless of whether
the contract is -
(a) formal or informal; or
(b) express or implied; or
(c) for consideration or not;
proposed purchaser means a person
who -
(a) has entered into a contract
in respect of the sale of
all, or any portion, of a
cemetery; and
(b) on the completion of the
contract, will transfer
ownership of all, or any
portion, of the cemetery
into the person's name.
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27H. Person must not sell cemetery without
approval
(1) A person must not offer for sale all, or
any portion, of the cemetery unless a
certificate of compliance has been issued
in respect of the proposed sale.
Penalty: Fine not exceeding 20 penalty
units.
(2) A person must not sell a cemetery to
another person, unless -
(a) a certificate of compliance has
been issued in respect of the
proposed sale; and
(b) he or she is satisfied that the
proposed purchaser has been
approved under section 11A as
the cemetery manager for the
cemetery.
Penalty: Fine not exceeding 100 penalty
units.
27I. Person must not purchase cemetery without
approval
A person must not purchase all, or any
portion, of a cemetery unless the person
has been approved under section 11A as
the cemetery manager for the cemetery.
Penalty: Fine not exceeding 100 penalty
units.
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Division 2 - Requirements before sale of cemetery
27J. Notification of intention to sell cemetery
(1) If a person intends to sell all, or any
portion, of a cemetery, the cemetery
manager for the cemetery must -
(a) publish, in the prescribed manner,
a notice in accordance with
subsection (2) in respect of the
cemetery manager's intention to
sell the cemetery; and
(b) notify, in writing, each person
who holds an exclusive right of
burial, in respect of the cemetery,
that is yet to be fulfilled of the
cemetery manager's intention to
sell the cemetery; and
(c) apply to the regulator in
accordance with section 27L for a
certificate of compliance in
respect of the proposed sale.
(2) A notice to be published under
subsection (1)(a) -
(a) is to contain the prescribed
information; and
(b) must clearly identify, in a
prescribed manner, the cemetery,
or portion of the cemetery, that is
intended to be sold; and
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(c) must -
(i) state that the cemetery
manager intends to sell
the cemetery, or portion
of the cemetery, specified
in the notice; and
(ii) state that any person who
has any information in
respect of the records of
the cemetery that are
required to be kept under
this Act, or any exclusive
right of burial granted in
respect of the cemetery,
may provide that
information to the
cemetery manager; and
(iii) specify the contact
information for the
cemetery manager; and
(iv) specify the period during
which information may be
provided under
subparagraph (ii).
(3) As soon as practicable after publishing a
notice in accordance with subsection (2),
the cemetery manager must give the
regulator a copy of the notice so
published.
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27K. Audit required of cemetery proposed to be
sold
If a person intends to sell all, or any
portion, of a cemetery, the cemetery
manager for the cemetery is to ensure
that an audit is undertaken, in accordance
with section 49A(1), in respect of the
cemetery within 6 months of the
publication of the notice under
section 27J(1)(a) in respect of the
proposed sale.
27L. Application for certificate of compliance in
respect of proposed sale
(1) After publishing a notice under
section 27J(1)(a) in respect of the
proposed sale of all, or any portion, of a
cemetery, the cemetery manager for the
cemetery must apply to the regulator for
a certificate of compliance in respect of
the proposed sale.
(2) An application to the regulator under
section 27J(1)(c) -
(a) is to be in an approved form; and
(b) must be accompanied by -
(i) a copy of the notice
published in accordance
with section 27J(1)(a) in
respect of the proposed
sale; and
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(ii) a copy of an audit,
undertaken as required
under section 27K; and
(iii) a copy of any information
provided under
section 27J(2)(c) in
respect of the cemetery;
and
(iv) any other information that
the regulator considers
relevant to the
application; and
(v) the relevant prescribed
fee, if any.
(3) Before determining an application under
subsection (1), the regulator may
consider one or more of the following
matters in respect of the application:
(a) the location and condition of the
cemetery, or portion of the
cemetery, proposed to be sold;
(b) whether, at the time of the
application, the cemetery, the
records of the cemetery and the
maintenance of the cemetery
comply with the requirements of
the Act;
(c) whether the proposed sale of the
cemetery may be prejudicial to
public health or public safety;
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(d) any other matter that the regulator
considers relevant to determining
the application.
(4) After receiving an application under
subsection (1), the regulator may -
(a) approve the application subject to
any conditions that he or she
thinks fit; or
(b) refuse to approve the application;
or
(c) request further information from
the relevant cemetery manager
and, after receiving the requested
information -
(i) approve the application
subject to any conditions
that he or she thinks fit; or
(ii) refuse to approve the
application.
(5) If the regulator has not determined an
application of a cemetery manager under
subsection (4) within 60 days after
receiving the application, the regulator is
to provide the cemetery manager with
such information as to the status of the
application as the regulator thinks fit.
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27M. Issue of certificate of compliance
(1) If the regulator approves an application
of a cemetery manager in accordance
with section 27L(4), the regulator is to
issue to the cemetery manager a
certificate in respect of the proposed sale.
(2) A certificate of compliance issued under
subsection (1) -
(a) is to be in an approved form; and
(b) is to specify any conditions
imposed on the certificate.
(3) A certificate of compliance issued under
subsection (1) has effect -
(a) for such period as is specified in
the certificate of compliance; or
(b) if no period is specified in the
certificate of compliance, for the
period of 12 months immediately
following its issue.
(4) On receipt of a certificate of compliance
issued under subsection (1), the cemetery
manager, or any other person, may offer
for sale all, or any portion, of the
cemetery that is the subject of the
certificate of compliance.
(5) A decision of the regulator, under
section 27L(4), to impose a condition on
a certificate of compliance is a
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reviewable decision for the purposes of
the Magistrates Court (Administrative
Appeals Division) Act 2001.
27N. Refusal to issue certificate of compliance
(1) If the regulator refuses an application of
a cemetery manager in accordance with
section 27L(4), the regulator is to notify
the cemetery manager in writing of -
(a) the refusal; and
(b) the reasons for that refusal; and
(c) the cemetery manager's right to
apply for a review of the decision
to refuse the application, in
accordance with the Magistrates
Court (Administrative Appeals
Division) Act 2001.
(2) A decision of the regulator, under
section 27L(4), to refuse an application is
a reviewable decision for the purposes of
the Magistrates Court (Administrative
Appeals Division) Act 2001.
27O. Notification of decision to not sell cemetery
If a person publishes a notice under
section 27J(1)(a) in respect of his or her
intention to sell all, or a portion, of a
cemetery and the person no longer
intends to sell the cemetery, the person
must notify the regulator of that fact as
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soon as practicable after making the
decision to not sell the cemetery.
Penalty: Fine not exceeding 20 penalty
units.
Division 3 - Sale of cemetery
27P. Cemetery disclosure document
(1) A cemetery manager intending to sell all,
or any portion, of a cemetery under this
Part must ensure that the proposed
purchaser under a contract for sale of the
cemetery receives a document disclosing
the information specified in
subsection (2) -
(a) if the contract is in writing, at
least 48 hours before the contract
is entered into; or
(b) if the contract is not in writing, at
least 48 hours before ownership
of all, or any portion, of the
cemetery is transferred in
accordance with the contract.
Penalty: Fine not exceeding 50 penalty
units.
(2) A document disclosing information
under subsection (1) is to be in an
approved form and include the following
information:
(a) a statement -
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(i) that, on the transfer of the
ownership of the
cemetery, the proposed
purchaser is the cemetery
manager for the cemetery;
and
(ii) specifying the obligations
under this Act that would
apply to the proposed
purchaser as cemetery
manager for the cemetery;
(b) the number of persons who have
been granted one of the following
rights, in respect of the cemetery,
that is yet to be fulfilled:
(i) an exclusive right of
burial;
(ii) a grant in fee of an
interment plot;
(iii) a grant for a term of an
interment plot;
(c) the number of agreements under
section 20(3) in force in respect
of a vault, grave or monument
within the cemetery and the
obligations imposed on the
cemetery manager of the
cemetery under the agreement;
(d) the provisions made in respect of
the cemetery, in accordance with
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section 25, for the purposes
specified in that section;
(e) a statement that, on the transfer of
the ownership of the cemetery,
the purposed purchaser is
required to fulfil each of the
rights specified in paragraph (b),
or the agreements referred to in
paragraph (c), in respect of the
cemetery, whether or not the
person holding the right was
included in the number of persons
provided under that paragraph;
(f) a statement that the audit
performed in respect of the
cemetery, as required under
section 27K, is available to the
proposed purchaser as specified;
(g) any other prescribed information.
(3) A cemetery manager must not knowingly
provide false or misleading information
to a proposed purchaser under this
section.
Penalty: Fine not exceeding 100 penalty
units.
27Q. Implied term in contract of sale for cemetery
It is an implied term in each contract for
the sale of all, or any portion, of a
cemetery under this Part that, before the
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ownership of the cemetery can be
transferred under the contract, the
proposed purchaser must be approved
under section 11A as the cemetery
manager for the cemetery.
27R. Contract continues in certain circumstances
If -
(a) a contract for the sale of all, or
any portion, of a cemetery to
which this Part applies has been
entered into by a proposed
purchaser; and
(b) the proposed purchaser has
applied under section 11A to be
approved as the cemetery
manager for the cemetery and
that application has not been
determined before ownership of
the cemetery is to be transferred
under the contract -
the contract is taken to have remained in
force until the application under
section 11A has been determined under
that section and, if the application has
been approved, the contract has been
settled, unless the contract is earlier
terminated by either party in accordance
with the contract.
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27S. Notification to regulator of sale of cemetery
Within 30 days after ownership of all, or
any portion, of a cemetery has been
transferred in accordance with a contract
to which this Part relates, the new owner
of the cemetery under the contract must -
(a) notify, in an approved form, the
regulator of the transfer of the
ownership; and
(b) notify, in writing, each person
who holds an exclusive right of
burial, in respect of the cemetery,
that is yet to be fulfilled that the
new owner is now the cemetery
manager of the cemetery; and
(c) publish, in the prescribed manner,
a notice containing the prescribed
information in relation to the sale
of the cemetery.
Penalty: Fine not exceeding 20 penalty
units.
27T. Effect of sale of cemetery
(1) On transfer of the ownership of all, or
any portion, of a cemetery in accordance
with a contract to which this Part relates,
the person who is the owner of the
cemetery after the transfer is the
cemetery manager for the cemetery.
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(2) The Recorder, within the meaning of the
Land Titles Act 1980, must not register a
transfer, under that Act, involving a
cemetery to which this Part applies
unless the Recorder is satisfied that -
(a) the sale of the cemetery, to which
the transfer relates, was approved
under section 27L(4); and
(b) the person to whom the
ownership of the cemetery is to
be transferred was approved
under section 11A as the
cemetery manager for the
cemetery.
(3) For the purposes of subsection (2) -
(a) evidence that the regulator has
approved the person, to whom the
ownership of the cemetery is to
be transferred, under section 11A
as the cemetery manager for the
cemetery is evidence that the sale
of that cemetery was approved
under section 27L(4); and
(b) the Recorder, within the meaning
of the Land Titles Act 1980, may
rely on the written notice of the
regulator under section 11A(8),
approving the person as the
cemetery manager for the
cemetery, as evidence of the
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matters referred to in paragraph
(a).
17. Sections 29 and 30 substituted
Sections 29 and 30 of the Principal Act are
repealed and the following sections are
substituted:
29. Closure of cemeteries
(1) If, for a period of 50 years or more, no
interments have taken place in a
cemetery or portion of a cemetery and
the cemetery manager wishes to close the
cemetery or that portion of the cemetery,
the cemetery manager is to -
(a) cause a notice of intention to
close all, or any portion, of the
cemetery to be published in
accordance with subsection (2);
and
(b) apply to the regulator in
accordance with subsection (4)
for approval to close all, or any
portion, of the cemetery.
(2) A notice to be published under
subsection (1)(a) -
(a) is to contain the prescribed
information; and
(b) must clearly identify, in a
prescribed manner, the cemetery
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or portion of the cemetery that is
proposed to be closed by the
cemetery manager; and
(c) must -
(i) contain a statement that
any of the following
persons may provide that
information, or make a
submission, to the
cemetery manager:
(A) a person who has
any information in
respect of the
records of the
cemetery that are
required to be kept
under this Act;
(B) the holder of an
exclusive right of
burial granted in
respect of the
cemetery;
(C) a person with the
intention of
having his or her
human remains
interred at the
cemetery;
(D) a person who has
entered into an
agreement under
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section 20(3) in
respect of a vault,
grave or
monument in the
cemetery;
(ii) specify the contact
information for the
cemetery manager; and
(iii) specify the period during
which information may be
provided under
subparagraph (i); and
(d) must be published in the
prescribed manner at least 60
days, but not more than 365 days,
before the cemetery manager
applies to the regulator under
subsection (1)(b) for approval to
close the cemetery or portion.
(3) As soon as practicable after publishing a
notice in accordance with subsection (2),
the cemetery manager must give the
regulator a copy of the notice so
published.
(4) An application under subsection (1)(b)
for approval to close a cemetery or
portion -
(a) is to be in an approved form; and
(b) must specify -
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(i) the number of exclusive
rights of burial granted in
respect of the cemetery
that are yet to be fulfilled;
and
(ii) the number of agreements
under section 20(3) in
force in respect of a vault,
grave or monument
within the cemetery; and
(iii) the provisions made in
respect of the cemetery, in
accordance with
section 25, for the
purposes specified in that
section; and
(c) must be accompanied by -
(i) a copy of the notice
published in accordance
with subsection (2) in
respect of the proposed
closure; and
(ii) a copy of any information
provided, or submission
made, in accordance with
subsection (2)(c) in
respect of the cemetery;
and
(iii) a copy of the records of
the cemetery required to
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be kept under
section 19(2); and
(iv) any other information that
the regulator considers
relevant to the
application; and
(v) the relevant prescribed
fee, if any.
(5) Before determining an application under
subsection (1)(b), the regulator may
consider any one or more of the
following matters in respect of the
application:
(a) the cultural and historical value
of the cemetery, including
whether the cemetery contains
graves of persons of historical or
cultural significance to the
community;
(b) whether the proposed closure of
the cemetery may be prejudicial
to public health or public safety;
(c) any other matter that the regulator
considers relevant to determining
the application.
(6) At least 60 days, but no later than 120
days, after receiving an application under
subsection (1)(b), the regulator must -
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(a) approve the application subject to
any conditions that he or she
thinks fit; or
(b) refuse to approve the application;
or
(c) request further information from
the relevant cemetery manager in
respect of the closure and, after
receiving the requested
information -
(i) approve the application
subject to any conditions
that he or she thinks fit; or
(ii) refuse to approve the
application.
(7) A decision of the regulator, under
subsection (6), to impose a condition on
an approval, or to refuse an application,
is a reviewable decision for the purposes
of the Magistrates Court (Administrative
Appeals Division) Act 2001.
29A. Approval or refusal to approve closure of
cemetery
(1) If the regulator approves an application
under section 29(6), the regulator is to
notify the cemetery manager in writing
of -
(a) the approval; and
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(b) any conditions to which the
approval is subject; and
(c) any other prescribed matter.
(2) On receipt of a notification under
subsection (1), the cemetery manager -
(a) must notify, in the prescribed
manner, any holder of an
exclusive right of burial that the
cemetery is to be closed and that
the cemetery manager intends to
discharge that exclusive right in
accordance with section 29C; and
(b) subject to any conditions
specified in the notification, may
proceed to close the cemetery and
exercise the powers conferred by
section 29B in respect of the
cemetery.
(3) If the regulator refuses to approve an
application under section 29(6) for the
closure of a cemetery, the regulator is to
notify the cemetery manager in writing
of -
(a) the refusal; and
(b) the reasons for that refusal; and
(c) the cemetery manager's right to
apply for a review of the decision
to refuse the application, in
accordance with the Magistrates
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Court (Administrative Appeals
Division) Act 2001.
29B. Effect of closure of cemetery
(1) For the purposes of this Act, a cemetery
is a closed cemetery if -
(a) the cemetery was closed before
the commencement of section 16
of the Burial and Cremation
Amendment Act 2018; or
(b) the cemetery was closed under
section 28; or
(c) the cemetery was approved to be
closed under section 29A.
(2) For the avoidance of doubt, a closed
cemetery is still a cemetery for the
purposes of this Act unless otherwise
dealt with under this Act.
(3) On the closure of a cemetery under this
Act, the cemetery manager must forward
to the State Archivist, as soon as
practicable, all prescribed records
relating to the closed cemetery.
Penalty: Fine not exceeding 50 penalty
units.
(4) On being forwarded under
subsection (3), the records of a cemetery
vest in the Crown.
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(5) Subject to any conditions imposed under
section 29A and any approval given
under section 51A, the cemetery manager
of a closed cemetery may do one or more
of the following in respect of the closed
cemetery if at least 100 years have
passed since the last interment has taken
place in the closed cemetery:
(a) if there is a tombstone showing
the name of the person buried
there, remove kerbs, railings and
other monuments, shrubs, marble
chips and other adornments and
cover the area with grass, leaving
only the tombstone;
(b) if there is a monument other than
a tombstone -
(i) treat the monument as if it
were a tombstone and act
in accordance with
paragraph (a); or
(ii) remove the monument
and re-erect it in another
portion of the cemetery,
with or without any kerbs,
railings or other
adornments, and cover the
area with grass, having
first set a stone showing
who was buried there and
where the former
monument is to be found.
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29C. Exclusive rights of burial in closed cemetery
(1) If a person holds an exclusive right of
burial in respect of a closed cemetery or
a portion of a cemetery that is closed, the
cemetery manager for the closed
cemetery or portion must, with the
agreement of the holder of that right -
(a) grant the holder of the right -
(i) an exclusive right of
burial in another plot or
portion of the cemetery;
or
(ii) an exclusive right of
burial in another cemetery
if so agreed with the
manager of that other
cemetery; and
(b) move to the plot or portion so
agreed any human remains,
coffin, vault, monument or other
thing in or on the plot or portion
in respect of which the original
exclusive right of burial was held.
(2) If there is no agreement between the
cemetery manager and the holder of an
exclusive right of burial as required
under subsection (1), the matter is to be
referred to arbitration under the
Commercial Arbitration Act 2011 as if
there were a request for the dispute to be
referred to arbitration under that Act.
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(3) The cemetery manager must pay the
costs of an arbitration under
subsection (2).
(4) For the purpose of this section, the Public
Trustee may represent the holder of an
exclusive right of burial if it appears that
the cemetery manager, after diligent
inquiry, cannot find the holder.
30. Closed cemeteries laid out as parks or
gardens
(1) Subject to section 51A, if at least 100
years have passed since the last interment
has taken place in a closed cemetery, the
cemetery manager of the closed cemetery
may apply, in writing, to the regulator for
approval to lay out the closed cemetery
as a park or garden for use as a place of
quiet recreation only.
(2) At least 3 months before applying to the
regulator under subsection (1), the
cemetery manager -
(a) must publish, in a daily
newspaper circulating in the
municipal area in which the
cemetery is situated, a notice
specifying his or her intention to
lay out the cemetery as a park or
garden; and
(b) is to provide a copy of a notice
published under paragraph (a) to
the regulator.
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(3) On receipt of an application under
subsection (1), the regulator may -
(a) approve the application subject to
any conditions that he or she
thinks fit; or
(b) refuse the application; or
(c) ask the cemetery manager for
further information in respect of
the application and -
(i) approve the application
subject to any conditions
that he or she thinks fit; or
(ii) refuse the application.
(4) Subject to any conditions imposed under
subsection (3), and to subsection (5), if
the regulator approves an application
under subsection (1) -
(a) the cemetery manager may lay
out the closed cemetery as a park
or garden, for use as a place of
quiet recreation only, as so
approved; and
(b) sections 35 and 36 extend to a
closed cemetery laid out as a park
or garden under paragraph (a).
(5) A cemetery manager must not take any
action under subsection (4)(a) in respect
of the closed cemetery, or portion of the
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closed cemetery, that has been lawfully
consecrated according to the rites or
practices of a religious or cultural group,
unless -
(a) the cemetery manager has offered
that cemetery, or portion, as a gift
to that group; and
(b) the group has not accepted the
gift within the 12-month period
immediately after the offer of the
gift was made to the group.
Penalty: Fine not exceeding 100 penalty
units.
18. Section 31 amended (Land no longer required for
cemetery)
Section 31 of the Principal Act is amended as
follows:
(a) by omitting from subsection (6)
"Director of Local Government" and
substituting "regulator";
(b) by omitting from subsection (7)
"Director of Local Government" and
substituting "regulator".
19. Section 31A inserted
After section 31 of the Principal Act, the
following section is inserted in Division 2:
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31A. Declaration that land ceases to be cemetery
(1) The regulator may declare, by notice
published in the Gazette, that land that
contains human remains is not a
cemetery for the purposes of this Act.
(2) A declaration may only be made under
subsection (1) in respect of land if, in the
opinion of the regulator -
(a) the land was, on the
commencement of this section,
being used for a purpose other
than as a cemetery or
crematorium; and
(b) the land had been used for that
purpose, or another purpose other
than as a cemetery or
crematorium, for at least 50 years
before the commencement of this
section; and
(c) the purpose for which the land is
being used is not consistent with
the use of the land for a cemetery
or crematorium.
(3) Subsection (2)(b) does not apply in
respect of a cemetery if the regulator is
satisfied that it is in the interests of the
public to make a declaration under
subsection (1) even though the land has
not been used for another purpose for the
period specified in that paragraph.
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(4) A declaration under subsection (1) -
(a) may be made by the regulator on
his or her own initiative or on the
application of the owner of the
land; and
(b) may be subject to any conditions
that the regulator considers
appropriate.
(5) As soon as practicable after making a
declaration under subsection (1), the
regulator, by written notice to the owner,
is to -
(a) state that a declaration has been
made under this section in respect
of land; and
(b) specify each condition that
applies in respect of the
declaration.
(6) The owner of land that is the subject of a
declaration under this section must
comply with any conditions of the
declaration.
Penalty: Fine not exceeding 100 penalty
units.
(7) If the owner of land that is the subject of
a declaration under this section intends to
sell that land, the owner of the land must
notify each prospective purchaser of the
land -
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(a) that a declaration under this
section has been made in respect
of the land; and
(b) of the conditions that apply in
respect of the declaration, if any.
Penalty: Fine not exceeding 100 penalty
units.
(8) A decision of the regulator to not make a
declaration under this section in respect
of land, or to impose a condition on a
declaration under this section, is a
reviewable decision for the purposes of
the Magistrates Court (Administrative
Appeals Division) Act 2001.
20. Section 32 repealed
Section 32 of the Principal Act is repealed.
21. Section 33 amended (Cemetery manager to deal
with closed cemetery)
Section 33(2) of the Principal Act is amended by
omitting "this Division" and substituting "this
Part".
22. Section 35 amended (Land for re-interment to be
made available)
Section 35 of the Principal Act is amended by
omitting "At" and substituting "Subject to any
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conditions imposed on a closed cemetery or the
closure of a cemetery under this Act, at".
23. Section 36 amended (Exhumation and re-interment
of human remains)
Section 36 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsections:
(1) Subject to sections 38 and 51A
and any conditions imposed on a
closed cemetery or the closure of
a cemetery under this Act, if at
least 100 years have passed since
the last interment has taken place
in a closed cemetery -
(a) all rights of any person in,
or to -
(i) any human
remains interred in
the cemetery or
any grave,
monument or
vault; and
(ii) any prescribed
records showing
details and
locations of
interments, graves
and monuments -
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are vested in the cemetery
manager; and
(b) the cemetery manager
may demolish and remove
any grave, monument or
vault, and reverently
exhume and re-inter any
human remains.
(1A) A cemetery manager must not
take any action under
subsection (1) in respect of the
closed cemetery, or closed
portion of the cemetery, that has
been lawfully consecrated
according to the rites or practices
of a religious or cultural group,
unless -
(a) the cemetery manager has
offered that cemetery, or
portion, as a gift to that
group; and
(b) the group has not
accepted the gift within
the 12-month period
immediately after the
offer of the gift was made
to the group.
Penalty: Fine not exceeding 100
penalty units.
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(b) by omitting from the penalty under
subsection (2) "5 penalty units" and
substituting "50 penalty units".
24. Section 37 amended (Activities consistent with quiet
recreation)
Section 37(1) of the Principal Act is amended by
omitting "section 29" and substituting
"section 29A".
25. Section 38 amended (Exhumation of human
remains)
Section 38(3) of the Principal Act is amended by
omitting the penalty and substituting the
following penalty:
Penalty: Fine not exceeding 100 penalty units or a
term of imprisonment not exceeding 2
years, or both.
26. Section 49 amended (Unlawfully managing
crematorium or cemetery)
Section 49 of the Principal Act is amended by
omitting "10 penalty units" and substituting "50
penalty units".
27. Sections 49A, 49B and 49C inserted
After section 49 of the Principal Act, the
following sections are inserted in Part 6:
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49A. Compliance with Act
(1) The regulator may request, in writing to a
cemetery manager, that the cemetery
manager do one or more of the
following:
(a) undertake an audit, as prescribed,
of the cemetery to ensure that the
cemetery manager and the
cemetery comply with this Act;
(b) provide such information that the
regulator considers necessary to
ensure that -
(i) the cemetery manager is
complying, and has
complied, with this Act;
and
(ii) the cemetery being
managed by the cemetery
manager, and the records
in respect of that
cemetery, comply with
this Act.
(2) A cemetery manager who receives a
written request under subsection (1) must
comply with the written request within
the period specified in the request.
Penalty: Fine not exceeding 20 penalty
units.
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49B. Regulator may issue directive to cemetery
manager
(1) If the regulator is not satisfied that a
cemetery manager has complied with this
Act, the regulator may issue a written
directive to the cemetery manager
specifying the steps to be taken by the
cemetery manager to ensure compliance
with this Act.
(2) A cemetery manager who receives a
written directive under subsection (1)
must comply with the written directive
within the period specified in the
directive.
Penalty: Fine not exceeding 100 penalty
units.
49C. Offences by body corporate
(1) If a body corporate contravenes a
provision of this Act, a person who is
concerned in, or takes part in, the
management of the body corporate is
taken to have contravened that provision.
(2) It is a defence in proceedings in respect
of a contravention referred to in
subsection (1) for a person to prove
that -
(a) the body corporate contravened
the provision without the person's
knowledge; or
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(b) the person was not in a position
to influence the conduct of the
body corporate in relation to the
contravention; or
(c) the person, if in such a position,
attempted to prevent the
contravention by the body
corporate.
(3) A person may be convicted of a
contravention of a provision of this Act
whether or not the body corporate has
been convicted of its contravention.
(4) Nothing in this section affects the
liability of a body corporate for an
offence committed by it against a
provision of this Act.
28. Section 50 amended (Offences)
Section 50 of the Principal Act is amended as
follows:
(a) by omitting the penalty from subsection
(1) and substituting the following
penalty:
Penalty: Fine not exceeding 100 penalty
units or a term of imprisonment
not exceeding 2 years, or both.
(b) by inserting the following subsection
after subsection (3):
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(4) A person must not remove a
monument from a cemetery
otherwise than in accordance with
this Act.
Penalty: Fine not exceeding 50
penalty units.
29. Sections 50A and 50B inserted
After section 50 of the Principal Act, the
following sections are inserted in Part 6:
50A. Offences relating to regulator
(1) A person, in providing any information,
statement, application or document to the
regulator under this Act, must not -
(a) provide it knowing it to be false
or misleading; or
(b) omit any matter knowing that
without that matter the
information, statement,
application or document is false
or misleading.
Penalty: Fine not exceeding 50 penalty
units.
(2) Subsection (1)(a) does not apply to a
person if, at the time the person provides
the information, statement, application or
document, or as soon as practicable after
becoming aware that the information or
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document provided is false or
misleading, the person -
(a) informs the regulator that the
information, statement,
application or document is false
or misleading; and
(b) indicates the respects in which it
is false or misleading; and
(c) provides the regulator with any
correct information that is in the
person's possession or control;
and
(d) provides the regulator with any
information that the person has
concerning who else may have
the correct information,
statement, application or
document.
(3) If the regulator has imposed a condition
under this Act, a person to whom that
condition applies must comply with the
condition.
Penalty: Fine not exceeding 50 penalty
units.
50B. Infringement notice offences
(1) In this section -
infringement offence means an
offence against this Act or the
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regulations made under this Act
that is prescribed by the
regulations to be an infringement
offence.
(2) The Director of Local Government, or a
person authorised by the Director of
Local Government, may issue and serve
an infringement notice on a person if he
or she reasonably believes that the person
has committed an infringement offence.
(3) An infringement notice may not be
served on an individual who has not
attained the age of 16 years.
(4) An infringement notice -
(a) is to be in accordance with
section 14 of the Monetary
Penalties Enforcement Act 2005;
and
(b) is not to relate to more than 3
offences.
(5) The regulations -
(a) may prescribe, for infringement
offences, the penalties payable
under infringement notices; and
(b) may prescribe different penalties
for bodies corporate and
individuals.
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30. Section 51A inserted
After section 51 of the Principal Act, the
following section is inserted in Part 6:
51A. Regulator may reduce certain time frames
(1) A cemetery manager of a closed
cemetery may apply to the regulator to
take an action specified in section 29B,
30 or 36 even though less than 100 years
has passed since the last interment has
taken place in the closed cemetery.
(2) An application under subsection (1) -
(a) is to be in an approved form; and
(b) must be accompanied by the
relevant prescribed fee.
(3) After making an application under
subsection (1), the cemetery manager is
to -
(a) publish a notice in accordance
with subsection (5) in respect of
the closed cemetery; and
(b) on the expiry of the period
specified in the notice in
accordance with
subsection (5)(c)(iii), provide a
copy of the notice, and any
responses to the notice, to the
regulator.
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(4) For the avoidance of doubt, any
information provided to the regulator
under subsection (3)(b) is part of the
application to which the information
relates.
(5) A notice to be published under
subsection (3)(a) -
(a) is to contain the prescribed
information; and
(b) must clearly identify -
(i) the closed cemetery to
which it relates; and
(ii) the action specified in
section 29B, 30 or 36 that
is intended to be taken in
respect of the cemetery;
and
(c) must -
(i) contain a statement that
any lineal descendants of
a person interred in the
closed cemetery may
provide the cemetery
manager with a response
in respect of the intended
action; and
(ii) specify the contact
information for the
cemetery manager; and
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(iii) specify the period during
which any responses may
be made.
(6) Before determining an application under
subsection (1), the regulator may
consider any one or more of the
following matters in respect of the
application:
(a) the cultural and historical value
of the cemetery, including
whether the cemetery contains
graves of persons of historical or
cultural significance to the
community;
(b) whether the intended action may
be prejudicial to public health or
public safety;
(c) any other matter that the regulator
considers relevant to determining
the application.
(7) After receiving the information specified
in subsection (3)(b) in respect of an
application under subsection (1), the
regulator is to -
(a) approve the application subject to
any conditions that he or she
thinks fit; or
(b) refuse to approve the application;
or
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(c) request further information from
the relevant cemetery manager in
respect of the closure and, after
receiving the requested
information -
(i) approve the application
subject to any conditions
that he or she thinks fit; or
(ii) refuse to approve the
application.
(8) If the regulator approves an application
under subsection (1), the cemetery
manager may, subject to any conditions
imposed on the approval, take the
intended action even though less than
100 years has passed since the last
interment has taken place in the closed
cemetery.
(9) A decision of the regulator, under
subsection (6), to impose a condition on
an approval, or to refuse an application,
is a reviewable decision for the purposes
of the Magistrates Court (Administrative
Appeals Division) Act 2001.
31. Section 54 amended (Regulations)
Section 54(2) of the Principal Act is amended by
inserting after paragraph (q) the following
paragraph:
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(qa) provide for a prescribed person to enter
cemeteries and crematoria to undertake
such measures as are required for
compliance with the Act, and for the
recovery of costs for such measures; and
32. Section 56 inserted
After section 55 of the Principal Act, the
following section is inserted in Part 6:
56. Savings and transitional on commencement
of Burial and Cremation Amendment Act
2018
(1) In this section -
Part 2B commencement day means
the day on which section 16 of
the Burial and Cremation
Amendment Act 2018
commences;
proposed cemetery manager means a
person who -
(a) within the month before
the section 11A
commencement day, had
notified the Director of
Local Government under
section 9(2) of the
person's intention to
manage a cemetery; and
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(b) on the section 11A
commencement day -
(i) was not the
cemetery manager
of the cemetery; or
(ii) was not prohibited
under section 11
from managing
the cemetery;
section 11A commencement day
means the day on which section
10 of the Burial and Cremation
Amendment Act 2018
commences;
section 29 commencement day means
the day on which section 17 of
the Burial and Cremation
Amendment Act 2018
commences.
(2) On and after the section 11A
commencement day, this Act applies to a
proposed cemetery manager as if the
amendments contained in sections 7, 8, 9
and 10 of the Burial and Cremation
Amendment Act 2018 had not
commenced.
(3) If, before the Part 2B commencement
day -
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(a) a person has entered into a
contract to purchase a cemetery;
and
(b) as a result of that contract, a
person has notified the Director
of Local Government, under
section 9(2), of the person's
intention to manage the cemetery;
and
(c) the contract for the purchase of
the cemetery has not been
completed -
this Act applies to the sale of the
cemetery as if the amendments contained
in section 16 of the Burial and
Cremation Amendment Act 2018 had not
commenced.
(4) If, before the Part 2B commencement
day -
(a) a person has entered into a
contract to purchase a cemetery;
and
(b) there has been no notification to
the Director of Local
Government, under section 9(2),
of who is to manage the cemetery
after the purchase is complete;
and
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(c) the contract for the purchase of
the cemetery has not been
completed -
sections 27H and 27P, and Division 2 of
Part 2B, do not apply to the sale of the
cemetery in accordance with the contract.
(5) If, at least 3 months before the section 29
commencement day, a cemetery manager
has given notice to the Director of Local
Government under section 30(2) of the
cemetery manager's intention to lay out
the cemetery as a park or garden, this Act
applies to the laying out of the cemetery
as a park or garden as if the amendments
contained in section 17 of the Burial and
Cremation Amendment Act 2018 had not
commenced.
33. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which all of the
provisions of this Act commence.
82 Government Printer, Tasmania