Legislative Council: Thursday, September 08, 2022



Burial and Cremation (Interment Rights) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 June 2022.)

The Hon. J.E. HANSON (11:28): As my staff, no doubt, are sitting at the moment wondering how they are going to get my speech down to me, I will try not to make too many puns about the nature of going over old ground, because I know the bill has been around for a while. Come on, Sim. I am just about out of material, mate.

The Hon. T.A. Franks: Don't keep us guessing. Are you supporting the bill?

The Hon. J.E. HANSON: We will have to wait for my speech. I am sure it will not be long.

The PRESIDENT: The Hon. Ms Franks, interjections are out of order. Do not harass the member.

The Hon. J.E. HANSON: It is almost like waiting for other things to arrive, isn't it? Hasn't that been a feature of this morning? Burials and cremations: what do you think, Attorney-General? They are good, right?

The PRESIDENT: I am not sure you need the Attorney-General's help at the moment.

An honourable member interjecting:

The Hon. J.E. HANSON: Let's go with maybe another member. Are we able to do that or have I already been called on?

The PRESIDENT: The Hon. Mr Hanson, if you sit, that is it. We cannot—

The Hon. J.E. HANSON: Sadly, Attorney-General, I have to keep going.

The Hon. T.A. FRANKS: Mr President, in desperation, I draw attention to the state of the house.

Members interjecting:

The Hon. J.E. HANSON: I do not think you heard that, Mr President, so I am just going to kick off.

The PRESIDENT: Unfortunately, I did. Attention has been drawn to the state of the house.

Members interjecting:

The PRESIDENT: We have a quorum, it is all good. The Hon. Mr Hanson, it would be terrific if you could now continue.

The Hon. J.E. HANSON: Thank you, and what a comprehensive speech it is, as I look over it, Mr President. I rise to speak slowly on the Burial and Cremation (Interment Rights) Amendment Bill 2022. The importance of the bill, other than the previous comments already made, is the reintroduction of an amendment proposed to the Burial and Cremation (Interment Rights) Amendment Bill, which we introduced last year but which lapsed at the end of sitting, is an unfortunate fact that we are now seeking to step up and step through on.

In our state, as previous members have already alluded to in debate, we have an automatic right of perpetuity relating to interment rights, which are generally limited up to terms of an amount of 99 years. Although this allows for flexibility and an ability to reinter remains, we know that people have had difficulties when trying to enforce these interment rights, and indeed I think this was highlighted at the St Philip and St James church cemetery in Old Noarlunga, which has led to a number of people seeking changes to the act.

That makes the amendment to this bill particularly important, as it seeks to clarify the legal status of those interment rights and prevent future conflict. Grieving families deserve to have their rights protected and any failure to meet those obligations should be subject to the types of tough penalties that we are seeking to amend and create in the amendments we have put forward today.

In rising to speak on the Burial and Cremation (Interment Rights) Amendment Bill, I think we have started to step back towards those rights being assured to people who are in scenarios where the legal status of interment rights is somewhat up for question. I think the steps that we have taken should make sure that those rights are paramount going forward. I look forward to the bill passing this place.

The Hon. R.P. WORTLEY (11:33): I am glad I have the opportunity to speak about the Burial and Cremation (Interment Rights) Amendment Bill. Unlike other states, such as Victoria, which have automatic right of perpetuity, interment rights in South Australia are generally limited to 50 or 99 years. While there is flexibility and the ability to reinter remains, it has also raised difficulty for people seeking enforced valid interment rights and there is no automatic assumption that interment rights are perpetual.

I had a personal experience with this where my grandfather had been buried for about 40 or 50 years. I went to his grave on Father's Day and there was a notice on there basically advising that if I had not contacted the authorities at the time and paid a further sum of money, the remains would be removed and put somewhere.

It did not actually say where they were going to put them, but at the time I thought it was quite a violation of how I believe my grandfather should have been left. After a lot of work, I managed to pay for another 50 years. Whilst this is a different situation, I know firsthand how I felt violated by the fact that someone I had known in my younger years had the potential of being removed from the grave and placed somewhere else. I think it is very important that people have the right to feel confident and safe that the remains of their loved ones are treated with respect.

This important bill amends the Burial and Cremation Act 2013 and has been introduced in response to incidents that have exposed difficulties with the existing legislation. Of course, one incident was the 2019 sale of the Old Noarlunga cemetery and church to private operators by the Anglican Diocese of The Murray.

We have also seen grieving families asked to pay high fees to have the remains of their loved ones moved to a different location. Despite these families having paid for the right to inter and memorialise their deceased family members, cemetery operators instructed them to pay or face the prospect of leaving their loved ones without a memorial. I think everyone here would have to acknowledge the fact that this is not the way that we expect our loved ones to be treated after they pass on. The behaviour shows a stark disrespect for generally accepted norms of consumer protection.

The bill seeks to enforce and protect interment rights by amending section 19 of the Burial and Cremation Act 2013 to create an offence of removing remains from interment or a natural burial ground unless by the holder of the interment right or their personal representatives. The creation of this offence will provide a significant deterrent against removing or disturbing human remains, to ensure the protection of interred persons.

I am sure many people in this chamber have experienced the sort of violation that one believes happens when the remains of their loved ones are not treated in a very respectful way, so I urge the council to support the bill.

The Hon. C. BONAROS (11:37): I rise to speak on behalf of SA-Best on the Burial and Cremation (Interment Rights) Amendment Bill. An earlier version of the bill, as we have heard, passed this place in September last year under the previous government. I understand the only minor tweak that has been made takes into account the newly enacted Legislation Interpretation Act 2021.

The bill, as we know, seeks to amend the Burial and Cremation Act 2013 primarily in response to the issues created following the sale of the decommissioned Church of St Philip and St James at Old Noarlunga in 2019. Five months after the sale of the property, operation of the 170-year-old cemetery and associated trust account funds were transferred to the new owners, following which allegations began to arise that the new owners were refusing to honour the interment rights previously issued by the Anglican diocese and had sought additional payments from rights holders.

The former Attorney initiated proceedings in the Supreme Court on behalf of about 20 rights holders concerning existing and future interment sites, and I understand an agreement has since been made between the parties. Perhaps our Attorney can enlighten us about the matter's finalisation subject of course to any legal qualifications.

The bill seeks to amend section 13 of the act to create an offence for the unauthorised removal of remains from an interment site or natural burial ground with some exceptions, such as where scattered ashes have become part of the soil or where the relevant authority removes and reinters remains due to maintenance or repair work. An example of that could be where cremated remains are placed in a memorial wall and the wall requires repair or replacement. It also seeks to express the enforcement of interment rights against the relevant authority of a cemetery or burial ground, with penalties ranging from $10,000 for individuals and $20,000 for body corporates, regardless of the original issuer.

I note that the bill does provide a defence if the defendant was unaware of the existence of interment rights and are able to prove that they took reasonable steps to identify their existence at the time of assuming administration. The Attorney flagged the possibility of the establishment of a central registrar or other mechanisms for recording rights on titles during the committee stage of the previous replica bill, and foreshadowed situations where the existence of burial grounds may not be apparent; for example, on pastoral lands. I understand the government is looking to deal with this potentially in a separate bill at a later date and I am keen to see how that evolves and any time frames around that legislation.

I will take this opportunity to highlight that interment rights under the Burial and Cremation Act are the subject of a disallowance motion before this place as well, an issue I have had discussions about with the Attorney-General's team in the context of this bill and I know is under further consideration. Those regulations came into operation in January of this year and they provide a schedule of the maximum percentage of the current fees for an interment right which may be deducted for costs at a date of surrender, having consideration for the number of years which have expired since the interment right was issued.

The fees that are operational now are determined by a formula based on the number of years since issue, unexpired portion remaining and current fee payable for a similar right. I am no mathematician by any stretch of the imagination, but I can tell you that the practical effect is that the owner of a right purchased 30 years ago would not be paid its current day value or even close to it today, and the cemetery authority would, in a sense, be repurchasing a right at a significantly discounted rate to then be able to onsell it for today's value. If there is one thing I do know with some certainty, it is that gravesites are not cheap; they are, indeed, very expensive, and each year the prices increase.

For cemeteries that have faith-based sections, this is particularly topical. If there was real estate available—and this is a terrible way to describe this—in cemeteries that you could buy up, then plots would be one of them that should be on top of the list because the prices each year go up by a lot. To buy a plot today compared to buying one in 10 years' time, or 10 years previously, there is a huge financial difference in the amount that is payable. In fact, I know that many particularly faith-based sections of cemeteries offer those for sale at today's rates so that people can save themselves those funds into the future.

I think they would be horrified to think that if for whatever reason they were to have to surrender one of those rights, they would be doing so at the discounted rates that those regulations would have apply. That is an issue, as I said, that has caused an erosion of rights, caused by the introduction of regulations, and one that will certainly be the subject of further discussion.

Just in terms of those discussions, though, I understand the Attorney, in relation to the regulations themselves, has undertaken to review that situation as it exits, given that they came into effect in January this year, and given the disallowance motions that exist, and has made various commitments to provide a more fair and equitable way to deal with this situation, subject to much more extensive and appropriate consultation. I think that is a good step by the Attorney and certainly one that I hope can be addressed, given that we are now looking at having further changes made when it comes to burial and cremations more generally.

Finally, it is no secret that my colleague the Hon. Frank Pangallo has been heavily consulting on legislative reform of the funeral industry for over a year now on issues that are also related to burial and cremation. I make those points because there are clearly other issues than those that are addressed in this bill that remain outstanding and absolutely warrant further attention and consideration.

I am pleased the government has now indicated that it is open to considering those issues with a view to landing somewhere much more suitable than where we are now and I look forward to further consultation with his department and stakeholders on that front and the introduction of a new bill and more regulations that better address the current situation. With those words, I indicate our support for the current bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:45): I would like to place on the record my thanks to all members who made contributions on this bill. As I indicated, and other members have mentioned during the course of the debate on this bill, this is an important bill that addresses a need that has arisen.

Often in this place when a certain incident comes to light it shines a light on the need that is there, but it is not just for that one particular occasion that it is needed. It draws our attention to what might and often is a wider problem that we have. This came to light, as members have mentioned, as a result of the situation of the former St Philip and St James church cemetery at Old Noarlunga.

Although the urgency has dissipated with further action that has occurred, and I know the honourable member was interested in an update, my understanding is that it is not finalised, but I would welcome the honourable member maybe at clause 1 asking a further question, when I might have some better and further particulars that I can provide to the chamber about that. The issue still remains that interment rights are an important issue for people. It is often at a time when people are dealing with loved ones who have passed away and there are heightened emotions that come into play, and it is a very important issue for many families.

As the Hon. Connie Bonaros points out, the surrendering and the buying back of interment rights is an issue that I know much more about now than I knew six months ago. How those work is an important thing. It is not lost on me and many of us here that, when you are dealing with things like burials, it is very personal and an emotional issue to many people.

If I can get some more information as well, I might perhaps expand at clause 1 on some of the issues that have been faced in terms of the surrender and the buying back of those interment rights, some of the work that we are looking at and some of the nuances, because it is not straightforward. I will try to get some more information at clause 1 about that as well. With that, I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: The minister just alluded to the same matter that gave rise to this bill and where those agreements are at. My understanding was that, despite the fact that proceedings had been initiated in the Supreme Court on behalf of those 20 right holders, there has been an agreement between parties, or the parties are in the process of reaching an agreement. I was seeking some clarification about where that matter is at in terms of finalisation.

The Hon. K.J. MAHER: We covered some of this during the second reading debate, but by way of background, in 2020 the Anglican Diocese of The Murray sold the former Church of St Philip and St James and cemetery at Old Noarlunga to private operators who reportedly—and it was quite widely reported—refused to properly recognise interment rights previously issued by the Anglican Church, which disclosed, I am informed, at the time of the sale of the church the interment sites. The new owners reportedly sought additional and inflated payments from consumers to inter family members in sites they had already paid for.

Proceedings were commenced in the Supreme Court in the name of the Attorney-General and Commissioner for Consumer and Business Services. I am informed that those proceedings have been settled in principle. My further update is that they were adjourned to allow the other side to take instructions and it is back today. There might be breaking news later today about, hopefully, a finalisation of this matter, if we can.

The Hon. R.A. SIMMS: Just a few minor matters of clarification for the Attorney-General. At section 13(1)(c), is there any requirement that notice be given to the interment holder before maintenance is carried out that would require the temporary removal of remains?

The Hon. K.J. MAHER: I am advised that the provision does not require that notice be given to an interment right holder in relation to improvement works. Under section 43 of the Burial and Cremation Act 2013 a relevant authority has a number of general powers, including the power to undertake works to improve or embellish the cemetery, natural burial ground or crematorium.

The Hon. R.A. SIMMS: A final question of clarification: if the bill passes, what are the implications for provisions under other acts in relation to Aboriginal ancestral resting places?

The Hon. K.J. MAHER: My advice is that it does not impact on that. I know that a bill, which has lapsed, was introduced in the last session of parliament in relation to that. I also note that, I think, just last week legislation passed in the Northern Territory about Aboriginal and traditional burial grounds. My colleague and good friend Chansey Paech, the Attorney-General in the Northern Territory, passed their bill, and I will certainly be liaising with my colleagues in the Northern Territory to see what application that might have to South Australia, but my advice is that, as far as this bill goes, it does not have any effect in relation to that area.

The Hon. C. BONAROS: I might start with some confirmation from the Attorney in the context of what I raised during the second reading debate. There is ongoing work being done in this area, of there potentially being a central register or mechanism for recording rights on titles. This had been foreshadowed previously; for instance, particularly where they apply to pastoral lands and the like.

The Hon. K.J. MAHER: I know that, when this bill was before us during the last term of parliament, these were certainly questions I was very interested in when I had a different role, that of asking questions at briefings. It is certainly ongoing work within the department to see how those aspects of a property might be better reflected in the instruments that hold themselves out to the world as the nature and the obligations forming part of that property.

The Hon. C. BONAROS: Given that we have the benefit of the Attorney here, in terms of the regulations that have come into operation as of 1 January this year and concerns that have been raised by stakeholders in relation to those, based on the formula that is to be used when you have unexpired portions and current fees payable for interment rights, perhaps this might be an opportunity to provide some clarity around any changes to those regulations or, indeed, the policy behind that in the context of the discussions that we have had on this bill.

The Hon. K.J. MAHER: It is certainly an area that I did not know as much about as I have come to learn, particularly from the good work of the Legislative Review Committee in inquiring more about regulations that predate my time in this role. Certainly, the issue of interment rights and the terms of those rights is something that is important. The honourable member, in her second reading contribution, noted that these are an expensive thing that people deal with. Part of the human experience is that you have to deal with death and what follows it, which is often the need to find a resting place for loved ones. It is something that many people have to deal with at some stage in their lives.

I might give a bit of background before I talk about what we are looking at, at the moment. There are fixed-term interment rights. Fixed-term rights allow remains to be interred for a set period; for example, 50 years. At the end of that period, the right holder must decide whether to renew the right or to allow the right to be reused. My information is that, when it is reused, the general process is that all skeletal remains are carefully recovered from the site, placed within a box and reinterred at a lower depth in the same site or stored in the cemetery as per the regulations that apply.

Interment rights can be bought pre-needed—that is, before the person to be buried has died—and they typically come with a grace period. The fixed-term right will not commence until the remains are interred on site or until the grace period expires, whichever occurs earlier.

The valuation regulations addressed an issue where an interment right holder would receive what was considered an excessive refund. I am advised that a key contributing factor to this problem is that the formula to determine the fees on a fixed-term rate is based on the number of years left on the fixed term. A right that has a grace period attached to it will have the same number of years left for the purposes of the formula, whether it is one day or 15 years into the grace period, since it only takes into account the years left on the substantive fixed term. This can cause an excessive refund, as the formula operates as if the cemetery has spent no time maintaining the site during the grace period, even after a substantial period of time has passed.

The current solution under the variation regulations was to cap how many years left on the fixed term can be considered when calculating that refund, so capping this will reduce the refunds in some instances. I am informed this is aimed not to disadvantage a right holder if surrender occurs after a substantial portion of the grace period has passed.

For example, consider a 50-year burial right with a 25-year grace period surrendered at the end of the grace period. Under the old formula, the right holder's refund could take into account all 50 years left, operating in effect as if there had not been that 25 years of maintenance that was the grace period, whereas under the varied formula it would only take into account 30 years left.

However, and this often happens when you have to have restrictions of a formula in place, it could also sometimes operate to disadvantage the right holder. The example I have outlined just now assumes that the surrender occurs after a lengthy grace period. However, you might consider if the right holder surrenders the right quite soon after they bought it, such that the cemetery in question had very little maintenance costs during that time.

For example, if a person bought a grave with a 50-year tenure and a 20-year grace period, as the example I gave before, in July 2022, it would cost at the time somewhere around $9,950. That price is based on the Adelaide Cemeteries Authority pricing guide from a few months ago, in July 2022. If they surrendered it just 11 months later, under the former regulations they would be entitled to a refund of $7,462, with the cemetery keeping 25 per cent of that original fee. Under the new variation regulations they would be refunded $4,478, meaning the cemetery has kept over 50 per cent of that original fee. Such a substantial reduction in the refund might be seen as not justified in this scenario, and the underlying issue is that neither the old nor the new formula directly takes grace periods into account.

Further, I have been advised, that in some cases the cap creates arbitrary differences between individual purchasers' outcomes. An example of that might be a scenario where two purchasers each buy a right and surrender it several years later—still during that grace period. For example, one person bought a 50-year right affected by the cap, and one bought a 25-year right not affected by the cap. For the 50-year right, if for example the original purchase price was $10,000, a refund, assuming a 5 per cent price increase, might be $4,725, meaning the percentage of the original purchase price returned would be 47.25 per cent.

But in the similar scenario where there is a 25-year right purchased for $5,000, a refund, again assuming a 5 per cent price increase, would be $3,935.70, which would see the percentage of the original price returned at 78.7 per cent. So there is a big difference between 47 per cent and 78 per cent, which as I said leads to what look like unjust outcomes for two people in very similar circumstances, yet the purchaser of that 50-year right regains a very significant lower percentage of their original purchase price simply because they bought a longer and, at the time, more expensive right.

These same sorts of problems and considerations do not arise in relation to perpetual interment rights. They do not have a grace period and, under both the old and the new method, the refund is directly linked to the number of years since purchase, so it bears some rational relationship to the amount of time that the site has been maintained. The variation regulations did not change the overall system, but adjusted the scale in relation to these.

In my view, the refund system for perpetual rights is not nearly such a pressing concern. I note in particular that perpetual interment rights are uncommon. I am advised that prior to 1 February 2014 perpetual interment rights were not allowed in public cemeteries, and even since their introduction they are overall not offered or used often. For example, I am informed that the Adelaide Cemeteries Authority does not offer them at all.

I can inform the chamber that I have instructed my department to review the refund model to ascertain whether there might be a more suitable system that can be developed in relation to those fixed-term interment right refunds, with a view to striking that right balance between consumers and cemetery authorities and properly taking into account the key factors at play. This work is being developed in consultation with the cemetery authorities, local government and the Law Society.

It is tricky, but I am sure there is a way we can look at it that has a look at that balance. As the examples pointed out, under the old system it led to significant inequities. We will address that in the new system, where we look at two people in two very similar scenarios. Where one person buys a 50-year right and another person buys a 25-year right—the same sort of values, one being, in the example, $10,000 and one being $5,000—there is a very substantial difference in the refund that is available.

As I said, it is an area that I now know much more about than I thought I would ever need to, but I do appreciate the Legislative Review Committee looking at this. I think it is an example of where the checks and balances we have in our system are working very well, that it can be reviewed by the Legislative Review Committee looking at how this works, looking at the equity of how our schemes work.

I am very pleased that we are having a further look at trying to find a way that balances the legitimate expectations of consumers not to be treated vastly differently, but also takes into account the legitimate expectations of cemeteries and cemetery authorities, which have maintained a plot and are not having it used and need to cover their reasonable costs in doing that. It is an area that is now undergoing further work.

The Hon. C. BONAROS: I think that certainly provides a lot of clarity for the record and perhaps for the benefit of other members in terms of the burial and cremation regulations and how they fit within the scheme of this legislation in the broader context. I do not actually have a question. I just want to thank the Attorney for the body of work he has done to ensure that this issue, which has been raised by stakeholders—it is certainly something that has been raised with me and something that I debated in the context of this debate—is actually now being addressed, hopefully with a fairer and more equitable outcome.

Clause passed.

Remaining clauses (2 to 6) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:10 to 14:15.