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CLAUSE NOTES
Burial and Cremation Bill 2019
PART 1 – PRELIMINARY
Clause 1 Short title
Provides that the Act may be called the Burial and Cremation Act 2019.
Clause 2 Commencement
Provides for the commencement of the Act on a day or days to be
proclaimed.
Clause 3 Interpretation
This clause defines certain terms for the purposes of the Act, consistent
with section 3 of the Burial and Cremation Act 2002 (the current Act).
The definition of ‘cremation’ has been expanded to include the reduction
of human remains by a prescribed means (in addition to reduction to ash
by heat or flame). This will allow new or alternative methods to cremation
to be prescribed if necessary.
The definition of ‘monument’ has been expanded to include a structure
that contains cremated remains, in order to support increased protection
of cremated remains throughout the Act.
The term ‘regulated business’ has been adopted to replace ‘prescribed
business’ used under the previous Act, to clarify there is no requirement
for these businesses to be listed under the Regulations.
The term ‘spouse’ (which is used in determining the senior next of kin)
includes the other party to a significant relationship, within the meaning of
the Relationships Act 2003.
Clause 4 Meaning of closed cemetery
This clause defines which cemeteries are closed cemeteries under the Act.
Clarifies that a closed cemetery is still a cemetery for the purposes of the
Act and therefore the provisions that apply to cemeteries also apply to
closed cemeteries.
The equivalent clause is section 29B of the current Act.
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Clause 5 Meaning of fit and proper
This clause outlines what a regulator may take into account in determining
whether a person or entity meets the ‘fit and proper’ person test that is
used by a regulator in determining an application to manage a cemetery or
crematorium or to carry on a regulated business.
This clause replicates the test applied by section 11A(6) of the current Act,
noting that the ‘fit and proper person’ test is now also applied to persons
applying to manage a crematorium or carry on a regulated business.
Clause 6 Meaning of senior next of kin
Sets out the process for determining the senior next of kin. The equivalent
section is set out in section 3B of the current Act. This clause has been
amended to clarify that the executor may be the senior next of kin if
provided for in the Will of the deceased.
Clause 7 Crown to be bound
Requires the Crown to comply with the Act in the same way as any other
person.
Clause 8 Application and non-application of Act
Provides that nothing in this Act can override any other Act.
PART 2 – ADMINISTRATION
Division 1 – Regulator
Clause 9 Regulator
This clause identifies who holds the position of regulator and provides that
different regulators may be appointed for different provisions of the Act.
This clause has been amended from the equivalent provision in the current
Act at section 3A by allowing a different regulator to be prescribed for
different sections of the Act.
Clause 10 Regulator may issue exemptions
This clause provides the regulator with the power to exempt a person
from certain provisions of the Act, and sets out the provisions that the
regulator may not exempt a person from.
The equivalent provision is section 3A(2) of the current Act.
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This section acknowledges the new processes to manage a crematorium
or carry on a regulated business by clarifying that the regulator cannot
exempt a person from obtaining approval (but can exempt from certain
aspects of the approval process).
The previous Act specified that the regulator could not issue an exemption
from section 27L, which imposes the requirement to apply for a certificate
of compliance. This clause applies only to section 54(1) of the new Act,
which means that, while the regulator cannot exempt from the application
for a certificate of compliance, some aspects of the application process
could be waived if reasonable in the circumstances.
Clause 11 Regulator may accept partial compliance in certain circumstances
Allows the regulator to accept that a person has complied with their record
keeping obligations under the Act if a record is incomplete but it is not
possible or reasonable for the person to find the information to complete
the record.
Clause 12 Regulator may delegate
Allows a regulator to delegate the performance of their functions or
exercise of their powers to another person, other than the power of
delegation.
Clause 13 Regulator may issue directions
This clause provides the regulator with the power to issue directions to a
person carrying on a regulated business or managing a cemetery or
crematorium if the regulator is not satisfied that the relevant person or
organisation has complied with the Act. A penalty of up to 100 penalty
units applies for not complying with a direction given by the regulator.
This clause builds on section 49B of the current Act, which allows the
regulator to issue directives to cemetery managers.
Clause 14 Regulator to keep register
Requires the regulator to maintain a register of regulated businesses,
cemeteries and crematoria, and sets out the information that is to be
included in the register, in line with the equivalent sections 27 and 48 of
the current Act.
Subsection (4) supports the regulator to maintain the register by requiring
a person carrying on a regulated business or managing a cemetery or
crematorium to notify the regulator if they become aware that the
information in the register is incorrect, incomplete or missing.
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Subsection (5) allows the register to be kept in any legible form and
requires it to be made available for viewing by members of the public by
any means the regulator considers appropriate.
Clause 15 Extension of certain periods relating to applications determined by the
regulator
This clause provides that when a regulator requests information in respect
of an application, the ‘clock stops’ – that is, the time between the request
for information and information being provided does not count towards
the timeframe for determining the application.
Division 2 – Authorised officers
Clause 16 Powers of authorised officers to enter premises
This clause sets out the circumstances and conditions to be met to allow
authorised officers to enter the premises of, or premises associated with, a
regulated business, cemetery or crematorium of the purposes of
determining whether there is or has been a contravention of the Act. This
clause refines section 51 of the current Act by clarifying that a warrant is
required if entering a person’s home.
Clause 17 Collection of evidence by authorised officers
This clause provides powers for authorised officers who enter a premises
for the purposes of this Act to collect evidence.
This clause is based on regulation 59 of the Burial and Cremation Regulations
2015 (the current Regulations).
Clause 18 Retention of records, &c,. by authorised officers
This clause allows a record, document or thing (or a copy) seized under
this Act to be retained for the purposes of an investigation, subsequent
prosecution or investigation under Part 5 of the Coroners Act 1995. A
person otherwise entitled to possession of a record or document retained
by an authorised officer is entitled to a copy.
This clause reflects existing powers in regulation 62 of the current
Regulations.
Clause 19 Authorised officers to not impede business
Requires that authorised officers performing a function or exercising a
power under the Act not unnecessarily impede the operation of a
regulated business, cemetery or crematorium. The equivalent requirement
is currently outlined in regulation 59(3).
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Division 3 – General
Clause 20 Director of Public Health may issue directions
Provides that the Director of Public Health may issue directions if it is in
the interest of public health or public safety to do so, in relation to the
handling and disposal of human remains, carrying on of a regulated business,
the management of a cemetery or crematorium or any other prescribed
manner. A fine of up to 100 penalty units applies for not complying with a
direction, which is increased from the equivalent provision (regulation 4)
of 20 penalty units.
Clause 21 Director of Public Health may delegate
This clause allows the Director of Public Heath to delegate their powers,
other than the power of delegation. The equivalent provision is section 53
of the current Act.
PART 3 – HANLDING OF HUMAN REMAINS
Division 1 – General
Clause 22 Notifications of death
This section sets out the obligation for a person to notify a relevant person
if they reasonably believe another person has died. This section also makes
it clear that this Act and Regulations deal with the processes immediately
after the death of a person.
The equivalent provision is set out in regulation 5 of the current
Regulations.
Clause 23 Unlawful disposal of human remains
This provision imposes a penalty of a fine up to 100 penalty units, a term
of imprisonment not exceeding 2 years, or both, for disposing of human
remains other than in accordance with this Act, any other Act, or any
conditions imposed by the Director of Public Health under Division 3 of
Part 3.
This is in accordance with section 50(1) of the current Act.
Clause 24 Handling of human remains
This clause strengthens the protection of human remains and cremated
remains by ensuring that at all times, they are clearly identifiable, stored in
accordance with any prescribed requirements, kept securely and handled
respectfully.
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A fine applies of up to 50 penalty units, and a further fine not exceeding
5 penalty units in respect of each day during which the offence continues.
This clause strengthens obligations that are set out in the current
Regulations at regulations 35, 36, 54 and 56.
Division 2 – Regulated businesses
Clause 25 Person must be approved to carry on regulated business
This clause provides that a person must not carry on a regulated business
unless they have been approved under the Act, carry on the business in
accordance with the approval, and have not been prohibited under section
23(1) from carrying on a regulated business.
A fine applies of up to 50 penalty units and a further fine not exceeding
5 penalty units in respect of each day during which the offence continues.
This clause amends section 46 of the current Act, which requires a person
intending to carry on a prescribed business to notify the Director of Local
Government (regulator) of their intention.
Clause 26 Approval to carry on regulated business
Outlines the obligation and process to apply for approval to carry on a
regulated business, including the information requirements, application
timeframes and process for a review of the regulator’s decision.
This clause amends section 44 of the current Act, which requires persons
intending to carry on such a business to notify the Director of Local
Government of their intention to do so. This changes the process from a
notification to an application process, in line with the process to become a
cemetery manager. This removes the requirement for the regulator to
lodge an objection in court if the person intending to carry on the business
is not a fit and proper person to do so.
Clause 27 Carrying on regulated business
This clause includes a fine of up to 50 penalty units (and a further fine not
exceeding 5 penalty units in respect of each day during which the offence
continues) if a person carries on a regulated business other than in
accordance with this Act or in a manner which is, or may be, prejudicial to
public health or public safety.
The equivalent provision of the current Act is section 43.
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Division 3 – Other handling of human remains
Clause 28 Use of Aboriginal land for Aboriginal cremations
This clause sets out the approval process for Aboriginal cremations on
Aboriginal land (currently provided in section 40 of the current Act). The
person wishing to undertake the cremation must have the approval of the
Director of Public Health and the Aboriginal Land Council of Tasmania.
Subsection (5) clarifies that this Act does not apply to the handling of
cremated remains that are the result of an Aboriginal cremation and are
being handled in accordance with Aboriginal custom.
The equivalent provision is section 40 of the current Act.
Clause 29 Interment of human remains otherwise than in cemetery
This sets out the process for obtaining approval for the interment of human
remains in a place other than a cemetery.
The equivalent provision is section 41 of the current Act.
To ensure this provision is not used as a ‘loophole’ to establish a cemetery
that has not been approved, subsection (4) imposes a new requirement
that a general manager not approve the interment if the land may be
considered a cemetery to which this Act applies.
Clause 30 Exhumation of human remains
Sets out the process for obtaining approval for the exhumation of human
remains from any land, which requires the approval of the Director of
Public Health.
Imposes a penalty of up to 100 penalty units or a term of imprisonment
not exceeding 2 years, or both, if the exhumation is not authorised, or does
not comply with conditions of the approval.
The equivalent provision is section 38 of the current Act.
Clause 31 Reopening of interments
This clause allows a cemetery manager or the Chief Magistrate to authorise
the reopening of a grave (but not exhumation) of a deceased person in
certain circumstances, in line with section 39 of the current Act.
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PART 4 – CEMETERIES
Division 1 – Cemetery managers
Clause 32 Approval of persons as cemetery manager
This clause outlines the process for approval of a person as a cemetery
manager, identifies the matters the regulator may take into consideration
in making a decision whether to approve an application, and describes the
administrative review process.
The equivalent provision is section 11A of the current Act.
This clause amends the current provision by providing that the regulator
may approve a person other than a body corporate (a natural person) as
cemetery manager if the relevant cemetery is currently owned by a natural
person and was also owned by a natural person before the
commencement of the Burial and Cremation Amendment Act 2018. This will
allow cemetery owners who are private individuals to sell their cemetery
(which may contain their home) to a person other than a body corporate.
This clause also clarifies that a person may only be approved as a cemetery
manager if they own the land containing the cemetery, or lease public land.
Clause 33 Cemetery managers to hold cemeteries in trust
Provides that a cemetery manager must hold the land on which the
cemetery is situated, and all documents, in trust for the purposes of the
cemetery. This means that trustee duties apply to the cemetery manager.
The equivalent provision is section 18 of the current Act.
Clause 34 Duties and powers of cemetery managers
Sets out the duties and powers of cemetery managers to:
keep the cemetery in accordance with the Act and so as not to
be prejudicial to public health and safety (the penalty is a fine not
exceeding 50 penalty units and a further fine not exceeding
5 penalty units for each day during which the offence continues);
maintain the cemetery and rectify disrepair or defacement as soon
as practicable (the penalty is a fine not exceeding 50 penalty units);
permit access free of charge at any reasonable time (the penalty is
a fine not exceeding 30 penalty units and a further fine not
exceeding 5 penalty units for each day during which the offence
continues); and
Page 8 of 24
improve the cemetery, restrict interments or take any other action
necessary to manage and maintain the cemetery.
This equivalent provision is section 19 of the current Act. This clause
amends the existing provision by adding a defence in proceedings for failing
to provide access if the person was refused access because of their
behaviour or previous behaviour.
Clause 35 Religious and cultural ceremonies and original distributions
Provides that a cemetery manager must not hinder or disturb the
performance of any religious or cultural ceremony related to the interment
of human remains and must permit a representative of any religious or
cultural group to exercise their religious or cultural practice. A fine not
exceeding 20 penalty units may apply for non-compliance (an increase from
10 penalty units in the current Act.
This clause also provides that any variation to the original division or
allocation of a cemetery made in accordance with any trust, must be in
accordance with the Variation of Trusts Act 1994. A fine not exceeding 20
penalty units may apply for non-compliance.
The equivalent provision is section 22 of the current Act.
Clause 36 Cemetery managers to ensure application of revenue of cemeteries
Subsection (1) requires cemetery managers to make adequate provision
out of any revenue received to defray the costs of establishing the
cemetery, and for its maintenance and management.
Subsection (2) requires a cemetery manager to ensure that money taken
for the future maintenance of vaults and monuments are dealt with as
capital money as if the manager were a trustee. A fine of up to 50 penalty
units applies (this is a new penalty).
The equivalent provision is section 25 of the current Act.
Clause 37 Owner of land taken to be cemetery manager in certain circumstances
This clause provides, for the avoidance of doubt, that where no other
cemetery manager is in place for the cemetery, the landowner is the
cemetery manager.
Division 2 – Cemeteries generally
Clause 38 Interments within cemeteries
Requires a person to obtain the permission of the cemetery manager
before interring human remains in a cemetery (the penalty is a fine not
exceeding 50 penalty units).
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This clause also amends the exiting equivalent provision (regulation 30) to
clarify what it means for a cemetery to be closed, by providing that a
cemetery manager may not grant permission for an interment in a closed
cemetery (the penalty is a fine not exceeding 50 penalty units).
Clause 39 Monuments, &c.
Allows a cemetery manager to permit a vault to be made, grave to be dug,
monument to be erected on payment of a fee. Provides that the cemetery
manager may determine its position.
Subsection (3) allows a cemetery manager to agree in writing, and on
payment, to maintain a vault, grave or monument. Subsection (4) requires
a cemetery manager comply with the agreement, and a fine not exceeding
50 penalty units may apply for failing to do so (a new penalty), in addition
to any remedies that may be applicable under contract law.
The equivalent provision is section 20 of the current Act.
Clause 40 Removal of certain monuments in cemeteries
This clause outlines the process a cemetery manager must take to notify
an appropriate person when a monument is placed contrary to the terms
of the permission or is unsafe, and the circumstances in which a cemetery
manager would be required to render the monument safe or may remove
it.
This provision replicates section 21 of the current Act.
Clause 41 Exclusive rights of burial
This clause provides that a cemetery manager may grant an exclusive right
of burial to inter human remains in a specified plot or portion of a
cemetery.
A fine of up to 20 penalty units applies if the cemetery manager fails to
provide the applicant with a certificate of exclusive right of burial, and a fine
of up to 50 penalty units if the cemetery manager refuses to fulfil a valid
exclusive right.
This clause also sets out the resolution process if a cemetery manager is
not able to grant the holder of the right the interment plot specified on the
certificate.
The equivalent provision is section 23 of the current Act.
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Clause 42 Notifications of possible cemetery
This clause requires a person who discovers that their land contains a
cemetery that is not on the register kept by the regulator to notify the
regulator. This supports the regulator to maintain an accurate register of
cemeteries, and differs from the requirements in clause 14 as it applies to
any person who discovers a cemetery on their land, not just a person who
has been approved as a cemetery manager. A fine of up to 10 penalty units
applies for failing to notify the regulator.
Division 3 – New cemeteries
Clause 43 Approval required to establish new cemetery
This clause requires a person to obtain approval from the regulator to
establish a cemetery (a fine of up to 50 penalty units applies if approval is
not obtained) and clarifies that the person establishing the cemetery must
also be approved as the cemetery manager and responsible for the
management of the cemetery.
This provision replicates section 27A of the current Act.
Clause 44 Application to establish new cemetery
Sets out the application process for a person to establish a new cemetery,
including the process for a review of the regulator’s decision.
This provision replicates section 27B of the exiting Act.
Clause 45 Approval of new cemetery
This clause specifies how an approval to establish a new cemetery is to be
issued and that the regulator may impose conditions on the approval. A
decision to impose conditions is reviewable.
This clause requires the cemetery manager to publish a notice containing
the prescribed information in relation to the approved cemetery.
This provision replicates section 27C of the exiting Act.
Clause 46 Refusal to approve new cemetery
Requires the regulator to provide reasons for a refusal to approve the
establishment of a new cemetery and notify the applicant of their right for
a review of the decision.
This provision replicates section 27D of the exiting Act.
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Clause 47 Notification of decision to not establish new cemetery
Requires a person who publishes a notice of their intention to establish a
cemetery to notify the regulator if they no longer intend to establish the
cemetery (a fine of up to 20 penalty units applies).
This provision replicates section 27E of the exiting Act.
Clause 48 Notification of first interment at new cemetery
Requires a cemetery manager to notify the regulator within 30 days of the
first interment at a new cemetery (a fine of up to 20 penalty units applies).
This provision replicates section 27F of the exiting Act.
Division 4 – Sale of cemeteries
Subdivision 1 – General
Clause 49 Interpretation
This clause defines certain terms for the purposes of Division 4.
This provision replicates section 27G of the exiting Act.
Clause 50 Person must not sell cemetery without approval
This clause requires a person selling a cemetery to obtain approval,
ensuring the regulator and prospective purchaser can be satisfied that the
cemetery is compliant with the Act (or identify non-compliance).
Subsection (1) imposes a penalty for offering a cemetery for sale without
the relevant approval (certificate of compliance) being issued (a fine of up
to 20 penalty units applies).
Subsection (2) imposes a penalty for selling a cemetery without a certificate
of compliance being issued and the cemetery manager being approved in
accordance with the Act (a fine of up to 100 penalty units applies).
The equivalent provision is set out in section 27H of the exiting Act.
This clause amends the existing provision to clarify that a person may ‘offer
to sell’ their cemetery before a certificate of compliance is issued. This
allows cemetery managers to participate in pre-sale negotiations with
prospective purchasers without contravening the Act.
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Clause 51 Person must not purchase cemetery without approval
Ensures that cemeteries are only purchased by suitable entities by providing
that a person must not purchase a cemetery unless they are approved
under section 33 of the Act (a fine not exceeding 100 penalty units applies).
This provision replicates 27I of the current Act.
Subdivision 2 – Requirements before sale of cemetery
Clause 52 Notification of intention to sell cemetery
This provision helps to ensure the records of the cemetery are up to date
and that relevant persons are aware of the sale process by requiring a
cemetery manager to publish a notice of intention to sell the cemetery.
This provision replicates 27J of the current Act.
Clause 53 Audit required of cemetery proposed to be sold
Requires the cemetery manager to ensure an audit of the cemetery is
undertaken before the cemetery is sold.
This provision replicates 27K of the current Act.
Clause 54 Application for certificate of compliance in respect of proposed sale
Provides the application process for a certificate of compliance, which must
be obtained by a cemetery manager before a cemetery can be sold.
This provision replicates section 27L of the current Act.
Clause 55 Certificate of compliance
Sets out the process for the regulator to approve a certificate of
compliance, including the form, what it should contain and that the decision
of the regulator to impose a condition is a reviewable decision.
This provision replicates section 27M of the current Act.
Clause 56 Refusal to issue certificate of compliance
Sets out the information the regulator must provide to the applicant if a
decision is made not to issue a certificate of compliance.
This provision replicates section 27N of the current Act.
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Clause 57 Notification of decision to not sell cemetery
Ensures the regulator is aware that a sale process that has commenced will
not be proceeding by requiring a person to notify the regulator if a notice
of intention to sell is published but a decision is made not to proceed with
the sale of the cemetery (a fine of up to 20 penalty units applies).
This provision replicates section 27O of the exiting Act.
Subdivision 3 – Sale of cemetery
Clause 58 Cemetery disclosure document
Ensures the prospective purchaser is aware of their obligations by requiring
a cemetery manager intending to sell a cemetery to provide the proposed
purchaser under a contract for sale with a cemetery disclosure document,
setting out their responsibilities under the Act and details of the cemetery.
A fine of up to 100 penalty units applies for knowingly providing false or
misleading information in a cemetery disclosure document.
This provision replicates section 27P of the current Act.
Clause 59 Implied term in contract of sale for cemetery
This clause is an additional safeguard to ensure the processes for the sale
of a cemetery are followed, by providing that it is an implied term in a
contract for sale of a cemetery that the purchaser if approved under the
Act – if the purchaser is not approved, the contract is not valid.
This provision replicates section 27Q of the current Act.
Clause 60 Contract continues in certain circumstances
This clause ensures that a contract for sale for a cemetery does not end
due to the contract not being completed if this is due to length of time
that it may take to determine an application to become a cemetery
manager.
This provision replicates section 27R of the exiting Act.
Clause 61 Notification to regulator of sale of cemetery
This clause supports the regulator to keep the register accurate and
ensures the cemetery manager is known to interested persons by requiring
the new owner of a cemetery to notify the regulator of the transfer of
ownership, notify each person who holds an exclusive right of burial, and
publish a notice in relation to the change of ownership. A fine of up to 20
penalty units applies.
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This provision replicates section 27S of the current Act.
Clause 62 Effect of sale of cemetery
Subsection (1) clarifies that, on transfer of ownership of the cemetery, the
owner is the new cemetery manager.
Subsections (2) and (3) provide further protection from the unauthorised
sale of cemeteries by setting out that the Recorder of Titles must not
register a transfer under the Act unless the Recorder is satisfied that the
sale occurred in accordance with the Act.
This provision replicates section 27T of the current Act.
Division 5 – Closure of cemeteries
Clause 63 Closure of cemeteries for reasons of public health or public safety
This clause allows the general manager of a council or the Director of
Public Health to close a cemetery for reasons of public health or public
safety, and require the cemetery manager to take action to address the
issue. A fine of up to 100 penalty units applies for not complying with the
notice.
The equivalent provision is section 28 of the current Act.
Clause 64 Intention of cemetery manager to close cemetery
This clause sets out the requirements for a cemetery manager to close a
cemetery, including publishing a notice of intention and the information to
be included, and the application process for applying to the regulator for
approval to close the cemetery.
The equivalent provision is section 29 of the current Act.
Clause 65 Approval or refusal to approve closure of cemetery
Sets out the process for the regulator to approve or refuse to approve the
closure of a cemetery, including the information that is to be provided to
the applicant.
This provision replicates section 29A of the current Act.
Clause 66 Effect of closure of cemetery
This clause sets out that upon closure, a cemetery manager must provide
records to the State Archivist, and outlines the changes that may be made
to the cemetery upon closure.
The equivalent provision is in section 29B of the current Act.
Page 15 of 24
Clause 67 Exclusive rights in closed cemetery
Outlines the process for dealing with exclusive rights of burial in a closed
cemetery.
The equivalent provision is in section 29C of the current Act.
Clause 68 Approval required to take certain actions in closed cemeteries
Outlines the process for a cemetery manager to undertake certain actions
in a closed cemetery, including laying the cemetery out as a park or garden
or to demolish or remove graves.
This clause clarifies the process in section 30 of the current Act.
Clause 69 Performance of certain actions in closed cemeteries
Provides detail on the things that a cemetery manager may do in a closed
cemetery, subject to approval under section 69.
This clause clarifies the process in sections 30 and 33 of the current Act.
Clause 70 Removal of human remains, monuments, &c., in closed cemeteries
Requires a cemetery manager to publish a notice before removing a grave,
monument or vault in a closed cemetery, what the notice is to contain and
that they must comply with a request of the senior next of kin of the
deceased to reinter remains at another cemetery.
The equivalent provision is section 34 of the current Act.
Clause 71 Regulator may reduce certain time frames in respect of closed
cemeteries
This clause allows the regulator, on application, to reduce the default time
period of 100 years since the last interment before the actions outlined in
section 70 can occur. As these actions can only occur in a closed cemetery,
the time frame could not be reduced to less than 50 years since the last
interment.
This provision replicates section 51A of the current Act.
Division 6 – Land ceases to be cemetery
Clause 72 Certain land ceases to be cemetery
Outlines the circumstances in which land ceases to be a cemetery and the
procedures for dealing with land that is no longer a cemetery.
The equivalent provision is section 31 of the current Act.
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Clause 73 Declaration that land is not cemetery
This clause allows the regulator to declare that land that contains human
remains is not a cemetery if, before the commencement of the Act, the
land was being used for another purpose other than a cemetery, or if
burials have occurred on the land without it being intended to establish a
cemetery (such as family burials on private property).
The regulator may place conditions on the declaration, and the owner of
the land must notify prospective purchasers that a declaration has been
made and any conditions applied by the declaration (a fine of up to 100
penalty units applies).
The equivalent provision is section 31A of the current Act.
PART 5 – CREMATORIA AND CREMATED REMAINS
Division 1 – Crematorium manager
Clause 74 Person must be approved to manage crematorium
This clause provides that a person must not manage a crematorium unless
they have been approved (and not prohibited from managing a
crematorium) under the Act, are managing the crematorium in accordance
with the Act.
A fine of up to 50 penalty units applies, and a further 5 penalty units for
each day an offence continues.
The equivalent provision is section 49 of the current Act.
Clause 75 Approval to manage crematorium
Sets out the process for a person to apply to the regulator for approval to
manage a crematorium, including the things the regulator may take into
account and the process for issuing the approval and right for a review of
the regulator’s decision.
This clause amends section 9 of the current Act, which requires persons
carrying on a prescribed business to notify the Director of Local
Government (regulator) of their intention to do so.
Clause 76 Duties and powers of crematorium managers
Sets out the duties of crematorium managers to keep the crematorium in
good order, in accordance with the Act and so as to not be prejudicial to
public health or public safety. A fine of up to 50 penalty units applies, and
a further 5 penalty units for each day an offence continues.
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This clause also introduces a penalty if the crematorium manager fails to
keep prescribed records, of up to 50 penalty units.
This clause also outlines the powers of cemetery managers to improve the
crematorium or take reasonable action for its responsible management.
Division 2 – Crematoria generally
Clause 77 Power to establish crematoria
This clause clarifies that any person may establish a crematorium, in line
with the provisions of this Act or any other law that may apply.
The equivalent provision is section 8 of the current Act.
Clause 78 Equipment and apparatus
This clause imposes a penalty if the crematorium’s equipment and
apparatus does not comply with the requirements of this and any other
Act of up to 50 penalty units and a further 5 penalty units for each day an
offence continues.
The equivalent provision is section 13 of the current Act.
Clause 79 Identification of deceased persons before cremation
This clause (currently set out in regulation 53) requires the manager of a
crematorium to ensure that a deceased person is properly identified before
being accepted for cremation (a fine of up to 50 penalty units applies) and
not cremated unless the identity of the deceased person has been
confirmed as prescribed (a fine of up to 50 penalty units applies).
Clause 80 Access to crematoria
Requires a crematorium manager to permit any person access free of
charge at any reasonable time to visit a monument erected on the premises
of the crematorium. A fine of up to 30 penalty units applies, and up to a
further 5 penalty units for each day an offence continues.
The equivalent provision is section 15 of the current Act.
Clause 81 Religious and cultural ceremonies
Provides that a crematorium manager must not hinder or disturb the
performance of any religious or cultural ceremony related to the cremation
of human remains and must permit a representative of any religious or
cultural group to exercise their religious or cultural practice. A fine not
exceeding 20 penalty units may apply for non-compliance.
The equivalent provision is section 16 of the current Act.
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Clause 82 Closure of crematoria for reasons of public health or public safety
This clause allows the Director of Public Health or general manager of a
council to close a crematorium for reasons of public health or public safety,
including requiring the manager to take action to resolve the issue. A fine
applies for not complying with the terms of the notice, of up to 100 penalty
units.
The equivalent provision is section 14 of the current Act.
Clause 83 Duties of crematorium managers on closure of crematoria
This clause requires that, upon closure of the crematorium, the manager
notify the regulator and forward records to the State Archivist. A fine of
up to 50 penalty units applies.
Division 3 – Cremated remains
Clause 84 Monuments containing cremated remains
This clause increases protection for cremated remains that have been
placed in a monument (for example, a columbarium or similar structure).
If a monument contains cremated remains, it is reasonable to expect access
be provided, and payment has been made for the remains to be placed
there then the person in charge of the monument must:
provide access (a fine of up to 30 penalty units applies and a further
fine of up to 5 penalty units each day an offence continues); and
unless consent is provided, notify the senior next of kin at least
three months before moving or removing cremated remains from
the monument, and move the remains in a respectful manner (a
fine of up to 20 penalty units applies).
Clause 85 Exclusive rights to all or part of monument
This clause increases protection for cremated remains by providing that a
person may apply for an exclusive right to inter cremated remains in a
monument, and the terms on which the person in charge of a monument
may grant the right.
A fine of up to 20 penalty units if the person in charge of a monument fails
to provide the applicant with a certificate of exclusive right, and a fine of
up to 50 penalty units if the person in charge of the monument does not
fulfil the right.
This clause also sets out the resolution process if the person in charge of
the monument is not able to grant the holder their exclusive right.
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Clause 86 Closure of monument
Sets out the process for a person responsible for a monument to deal with
exclusive rights if that person is no longer allowing cremated remains to be
placed in the monument, and the process to resolve any disputes.
PART 6 – MISCELLANEOUS
Clause 87 Compliance with Act
This clause expands on section 49A of the current Act (which applies only
to cemetery managers) by allowing the regulator to request a cemetery
manager, crematorium manager or person carrying on a regulated business
to undertake an audit of their business or to provide information to the
regulator so that the regulator can ensure compliance with the Act. A fine
of up to 20 penalty units applies.
Clause 88 Liability of body corporates
This clause outlines the circumstances in which a person who takes part in
the management of a body corporate may be liable for an offence by the
body corporate. This provision ensures there is individual responsibility,
however persons would not be liable for an offence if the contravention
happened without that persons knowledge or they were not in a position
to influence, or able to prevent, the contravention.
This provision replicates section 49C of the current Act.
Clause 89 Liability of owners of place, land, structure
This clause outlines the circumstances in which a landowner may be liable
for an offence by a cemetery manager, crematorium manager or person
carrying on a regulated business. The landowner must have a direct or
indirect ability to control or influence the use of the place. Defences apply
where the contravention happened without the person’s knowledge and
the person was not in a position to influence or prevent the contravention.
Clause 90 False or misleading information
This clause imposes a penalty of up to 50 penalty units for intentionally
providing false or misleading information in providing any information,
application or document under this Act (or omitting information).
The equivalent clause is sections 50A(1) and (2) of the current Act.
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Clause 91 Failure to comply with conditions
This clause provides that a fine of up to 50 penalty units applies for failing
to comply with a condition imposed by a regulator under this Act.
The equivalent clause is section 50A(3) of the current Act.
Clause 92 Obstruction of authorised officers
This clause creates an offence of obstruction or hindering an authorised
officer (or person assisting an authorised officer) in the exercise of a power
or function under the Act. A fine of up to 50 penalty units applies.
This clause also requires a person to comply with a lawful request of an
authorised officer, produce records or provide reasonable assistance to an
authorised officer. A fine of up to 50 penalty units applies.
The equivalent provision is regulation 60 of the current Regulations.
Clause 93 Orders preventing management of certain organisations
This clause allows the court to order a person not carry on a regulated
business, or manage a cemetery or crematorium. A fine of up to
100 penalty units applies, or a term of imprisonment up to 2 years, or both.
The equivalent provisions are sections 50(2) and (3) of the current Act.
Clause 94 Infringement notice offences
This clause allows infringement notices to be issued (to persons 16 years
or older) for offences under the Act. Infringement offences and the
penalties payable may be prescribed by the regulations.
The equivalent provision is section 50B of the current Act.
Clause 95 Regulations
This clause sets out the matters which may be dealt with by regulations
under this Act.
The equivalent provision is section 54 of the current Act.
Clause 96 Savings and transitional provisions
This is a formal clause giving effect to the savings and transitional provisions
set out in Schedule 1.
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Clause 97 Administration of Act
This is a formal clause assigning administration of the Act to the Minster for
Local Government and Department of Premier and Cabinet until provision
is made under section 4 of the Administrative Arrangements Act 1990.
The equivalent provision is section 55 of the current Act.
Clause 98 Legislation repealed
This is a formal clause repealing the legislation listed in Schedule 2 upon
commencement of this Act.
SCHEDULE 1 – SAVINGS AND TRANSITIONAL PROVISIONS
PART 1 - PRELIMINARY
Clause 1 Interpretation
This clause defines certain terms for the purposes of Schedule 1.
Clause 2 Regulated businesses
This clause provides that a prescribed business under the Burial and
Cremation Act 2002 is a regulated business under this Act.
Clause 3 Burial and Cremation Regulations 2015
This clause provides that the Burial and Cremation Regulations 2015 remain
in force upon the commencement of this Act. This clause will apply until
new Regulations are made under this Act.
PART 2 – APPOINTMENTS AND ADMINISTRATION
Clause 1 Register
This clause transitions the cemetery register held under the Burial and
Cremation Act 2002 by providing that it is held to meet the requirements
of the register required to be kept under this Act.
Clause 2 Authorised officers
This clause transitions authorised officers under the former Act to be
authorised officers under this Act.
Clause 3 Authorisations, directions and declarations
This clause provides that authorisations, directions and declarations issued
under the former Act remain in force as if they were issued under this Act.
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Clause 4 Exclusive rights of burial
This clause provides that exclusive rights of burial issued under the previous
Act are considered exclusive rights of burial under this Act.
PART 3 – APPROVALS AND PERMISSIONS
Clause 1 Approved forms
This clause provides that forms approved under the previous Act are taken
to be an approved form for the equivalent provision of this Act.
Clause 2 Exemptions by regulator
Any exemptions issued by the regulator under the previous Act continue
to apply as if they had been issued under the new Act.
Clause 3 Aboriginal cremations
Permission given for an Aboriginal cremation under the previous Act
applies as if it had been granted under this Act.
Clause 4 Interments other than in cemeteries
This clause provides that interments other than in cemeteries under the
previous legislation are considered interments other than in cemeteries
under this Act.
Clause 5 Approvals of senior next of kin
Any person approved as a senior next of kin under the previous Act is
taken to have been approved under this Act.
Clause 6 Approvals as cemetery manager
Any person approved as a cemetery manager under the previous Act is
taken to be approved under this Act.
Any applications to become a cemetery manager that are underway
continue as if they had been made under this Act.
Clause 7 Approvals as crematorium manager
Any person approved as a crematorium manager under the previous Act
is taken to be approved under this Act.
If a notifications to become a crematorium manager is made before the
commencement day, the objection process under the former Act applies,
and if no objection is made by the Director of Local Government, that
person is a crematorium manager.
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Clause 8 Persons approved to carry on prescribed business
Any person approved to carry on a prescribed business under the previous
Act is taken to be approved to carry on a regulated business under this
Act.
If a notifications to become a crematorium manager is made before the
commencement day, the objection process under the former Act applies,
and if no objection is made by the Director of Local Government, that
person is a crematorium manager.
Clause 9 Applications and approvals, &c,. relating to new cemetery
An application to establish a cemetery provided under the previous Act is
taken to be an application made under the equivalent provisions of this
Act. An approval issued under the previous Act is also taken to be an
approval issued under the equivalent provisions of this Act.
Clause 10 Applications and approvals, &c,. relating to sale of cemeteries
Any documents issued, actions taken or agreements entered into for the
sale of a cemetery under the previous Act are taken to have occurred
under the equivalent provision of this Act.
Clause 11 Applications and approvals, &c,. relating to closure of cemeteries
Any documents or approvals issued or actions taken in relation to the
closure of a cemetery under the previous Act are taken to have occurred
under the equivalent provision of this Act.
Clause 12 Applications and approvals, &c,. relating to reduction in certain time
frames
If a person has applied for a reduction in certain timeframes under the
previous Act that application applies as if it had been made under this Act.
Any approval for a reduction in certain timeframes issued under the
previous Act continues to apply.
SCHEDULE 2 – LEGISLATION REPEALED
This clause repeals the Burial and Cremation Act 2002 and the Burial and
Cremation Amendment Act 2018, as this Act replaces that legislation.
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