HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-03-05 Daily Xml
Contents
Pdf Xml

BURIAL AND CREMATION BILL

Second Reading

Second reading debate resumed.

Mr PENGILLY (Finniss) (16:12): I would like to make a few brief remarks on this particular bill. The first comment would be: thank heavens it is finally happening. It has been hanging around for time immemorial, I think, since the member for Fisher's committee that dealt with the subject. I pick up on what the member for Heysen said. Apart from the odd IVF bill, we spend a lot of time in this place talking about dying or how to kill people and now we are dealing with burials.

My major point of interest in the bill is burial outside a cemetery or natural burial ground. That is something that I have been dealing with with constituents of mine. Over the past two or three years, I have had a number of people say to me that they wish to have loved ones buried on their properties, whether that be rural properties or other places, but they were concerned that there were impediments put in their way, particularly by local government in the area. I did some work on it and I spoke with the member for Fisher about the requirements of burial outside a cemetery and it was all very simple. I advised my constituents of that and they have taken whatever steps were necessary to accommodate their needs at the time.

However, I am just a little bit worried with the bill that, once again, we are throwing it back on local government. I am concerned that the petty bureaucrats, or some of them, I should say, not all of them, some petty bureaucrats in local government might try to complicate these matters at a time when families are wanting to bury their loved ones and that they will try to hold things up and generally make life difficult for them. I ask that the minister give some thought to that. There are many who would like to see me underground, but I am not going yet.

My understanding is that currently, if you wish to have someone interred on your farm—let us use the word farm—all you need to do is advise the council of where you are burying the particular person and give them the GPS coordinates, and that is it. You do not have to do any more. That is the advice I have been given by the Attorney's office, which precludes a lot of nonsense at a time of grief for many people. Whatever plans we have under this bill to have local government authorities become involved, I ask the minister to keep it simple and not to make it too complicated. From my time in local government—and I think the member for Goyder had a substantial role to play as the keeper of the cemeteries when he was CEO of the council.

Mr Griffiths: I was the curator of cemeteries.

Mr PENGILLY: Something like that. It really is important. To signify the importance of these matters, only a couple of years ago an uncle I never knew—because he died in 1923—had no marked grave. However, I was able to go to the council in Maitland and they gave me the location and I found it, and I intend to do something about that. The fact that the records are kept is most important. Indeed, cemeteries are extremely historical places. I have spent a bit of time walking around some of them for the history of a district in particular. I find them to be fascinating for the history of a place.

By way of example, in my home on Kangaroo Island, at the cemetery in Kingscote there is a family called the Florences who lost a succession of children in one family through diphtheria. They had an enormous run. Just recently, the last surviving member of that family died aged 93. I think five or six of his brothers and sisters died of diphtheria in the early 1900s. I am supportive of the bill but, at the risk of repeating myself, I ask the minister to make sure that nothing gets too complicated in these days of increasing bureaucracy. They seemed to do it pretty well in the past; they buried them in the sandhills behind Emu Bay and all sorts of places, but it is important that we deal with this important subject.

The Hon. P. CAICA (Colton) (16:17): I will not hold the house very long. When I first came to this place, I was fortunate enough to be on the select committee chaired by the member for Fisher. I learned more about cemeteries, burials and the attachment that people have to cemeteries in this state. My mother, who I think is a pretty smart woman and certainly had a reasonably smart son, used to say to me, 'If there's a business you want to get into, get into food because people have to eat, or get into burials because there will always be people that are dying.' Hence, as much as anything else, the intimate attachment that people have with cemeteries, and that has been well articulated by the members that have indicated their support for this bill.

I note also that a lot of the recommendations that came out of the select committee have been adopted in this bill, and I welcome that, along with those of the Natural Resources Committee I think it was that did some work maybe five or six years ago. Of course, those recommendations have also been taken into consideration and incorporated into this bill. One of the issues that came up with me as a local member was the removal of the length of tenure for burials, which resulted in what I think was described as the 'lift and drop'.

Just as important is the loss of important historical information. If we take the Cheltenham cemetery, which was the focus of the concerns that were expressed by my constituents, it was the fact that a lot of information was being lost because people were not renewing those particular grave sites. I spoke to people at the time about making sure that when those headstones were removed (I think put around the perimeter of the cemetery) very accurate records were kept because it is—I won't say a living history because you cannot say that—certainly a history of South Australia since colonisation, which contains very valuable information.

I often stop in the country because, regrettably, I still have a cigarette from time to time. I do not think it is being disrespectful that, when I do stop in the country, I like to stop near a cemetery and walk around and ponder, have a look at the gravestones, and have my little fix. They are a snapshot of our history, whether it be in country areas or here.

One of the things that is a problem in South Australia is the lack of space with respect to cemeteries, and that is why I like some of the innovation techniques that are going to be considered as a result of this bill, and that can only be a good thing. I will not care what happens after I am gone, but it certainly would not be my recommendation to my family that I am buried. I think I will probably get burnt, or I could be chopped up and used for crab bait; however, looking at the Attorney, I think that would probably be illegal.

Ms Chapman interjecting:

The Hon. P. CAICA: Yes, that's it. It seems to me that there is a great opportunity for those people who want to be buried, notwithstanding the fact that it might be some distance away from their loved ones, in country areas where there is a multitude of cemeteries that have, for want of a better term, vacancies; but that is a decision for individuals. I was over at Port Victoria last week, and that is a cemetery with a million-dollar view.

Mr Griffiths: It's a great spot.

The Hon. P. CAICA: Port Vincent? It's beautiful, isn't it? While the councils will eye that little bit of land and think they could make some money out of it, no council would ever contemplate developing such a site because it is a cemetery. I congratulate the Attorney-General for bringing this bill to the house. I think it is a quantum leap forward. I acknowledge the comments made by the speakers. I do not necessarily agree very often, or even at all, with the member for Finniss about his views about the bureaucracy and what might occur subsequently. I am sure we will get things right and—

Mr Griffiths: Shock, horror!

The Hon. P. CAICA: What's that, not agreeing with the member for Finniss?

Mr Pengilly: Well, it probably won't last.

The Hon. P. CAICA: No; I said I didn't agree with you. I am sure we will get things right. I do not hold the bureaucracy at the same level of contempt as the member for Finniss because I think our bureaucrats and our Public Service do an outstanding job, and quite often it will be the instructions we give them that probably make it more complex than otherwise might be the case. I welcome this bill. I think it is a great leap forward.

I want to acknowledge the member for Fisher and the work he has done over many, many years. He has been like a dog not wanting to let go of a bone, or, if he did, only to get a better grip. I think with respect to burials, cemetery provisions and that very important aspect of one's life—that is, death—it will be far better managed for the benefit of those who are left behind in South Australia. I commend the bill to the house and congratulate the Attorney-General for the work he has done.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:24): Can I commence by thanking all members. It is refreshing, actually, to have so many members contribute to a debate on a bill. One of the interesting things I have discovered in the period of time that I have been here is that every now and again we have a piece of legislation that seems to dissolve party-political allegiances and we have people speaking in a direct fashion about issues of concern to all of us as citizens without being particularly affected by what you might call ideology or party-political concerns, and this is one of those refreshing debates. It is interesting that those debates tend to be things to do with 'hatching, matching or dispatching', but, anyway, that is just an observation.

I just wanted to run through a few things about this and pay tribute where it is due. The member for Fisher, of course, is the person who deserves a serious accolade for this piece of work. Without his persistence and fortitude, we may not be at the point we are at now, so I would like to place on record my sincere appreciation—and, I am sure, everyone's sincere appreciation—for the amount of work and the fortitude that the member for Fisher has shown.

The bill before this house is the culmination of work undertaken in 2003 by a select committee into cemetery provisions of the Local Government Act (which I believe the member for Fisher was instrumental in driving), subsequent consultation by the government on the select committee recommendations and then a two-month public consultation on a draft bill.

The result is a comprehensive and consistent regulatory scheme that covers all cemeteries, natural burial grounds and crematoria in South Australia and that better reflects modern technologies, industry practice and community expectations. As the bill was introduced just prior to the parliamentary break last year, industry bodies and other interested parties were able to provide further comments on amendments to the bill over the break.

On the whole, respondents, including the Cemeteries and Crematoria Association of South Australia, Centennial Park and the South Australian Division of the Australian Funeral Directors Association, were very supportive of the bill. However, the industry did raise a few concerns with me, such as a need for greater clarity around the definition of the term 'human remains', the requirements for identification to be carried out prior to burial and the transitional provisions relating to interment rights.

I have considered these submissions and have had government amendments drafted to address these concerns which, obviously, we will deal with in committee, but, briefly, so that there is given an overall picture, I can just say that these amendments will first of all provide for a refund for the surrender of an interment right, to be determined in accordance with the regulations. This will allow me to consult further with the industry on the best way to address their concerns without holding up the passage of the bill.

There are contending views out there about whether or not it would be possible—or, indeed, likely—for a person to try to corner the market, so to speak, in interment rights and thereby make profits and bank interment rights and that sort of thing. Whilst I do not believe I have been presented with any evidence of that conduct going on, it is something that I think we need to at least turn our minds to. However, in so doing, I do not want us to hold up the bill. I think it is reasonable for us to get on with the bill and we can turn our minds to that particular, perhaps not very likely, problem in the context of regulations.

The second amendment is the definition of an 'unexercised interment right' for the purposes of clause 34 of the bill, so that it means:

a current interment right under which—

(a) human remains are yet to be interred; and

(b) a memorial is yet to be erected.

That just adds more definition and clarity to that concept. The third is to insert a definition of 'bodily remains' and to make consequential amendments to other definitions and provisions of the bill to provide for greater clarity for the industry and the public.

The fourth amends clause 12 to make it crystal clear that the requirement for an identification process to be carried out prior to a cremation has been retained in this bill. The fifth is to amend the transitional provisions so that it refers to all interment rights issued prior to the commencement of the schedule, irrespective of whether there is an interment or not.

The Local Government Association has expressed general support for the bill. I note, for the record, that the Local Government Association has three remaining concerns in relation to record-keeping obligations—and I suspect that might be a matter to which the member for Finniss referred—the costs of mediation when a cemetery is closed, and the role of authorised persons. The LGA is concerned that some council cemeteries may have difficulty complying with the record-keeping requirements, as many cemeteries, particularly older heritage-listed cemeteries, may not have accurate or comprehensive records of the kind required by the bill.

Cemetery records are important in order to preserve the historical records and heritage of this state and ensure that current and future records are maintained to a certain standard. The requirement to keep records, registers and plans is not new. Council cemeteries are already required, under the Local Government (Cemetery) Regulations 2010, to keep these records. Similar recordkeeping requirements have been in place in earlier versions of regulations as far back, to my understanding, as 1944.

The main change to the recordkeeping requirements is a significant increase in the penalty from $200 under the current regulations to $5,000 under the bill. The increase in the bill brings these penalties into line with other similar offences on the statute books. I note that the $5,000 is a maximum penalty reserved for the most serious breaches of the act. Where a cemetery is acting in good faith and has legitimate reasons for noncompliance, the court will take those into account when determining an appropriate penalty, I should say, in the event of there being a prosecution which, again, is probably not highly likely.

The Local Government Association has also sought clarification on the role of authorised officers and whether they will be expected to handle or examine bodies. Authorised officers may exercise such of the powers as set out in clause 59 of the bill as are reasonably required for the administration and enforcement of legislation. For example, an authorised officer may seek to inspect crematorium premises to ensure that the crematorium has the correct processes in place for handling or storing bodies prior to cremation.

It is not expected that an authorised officer appointed by the council would have to handle or examine bodies. The bill defines an 'authorised officer' as a police officer or a person appointed by the minister or by a council as an authorised officer under the act. There is no requirement in the bill that a council appoint authorised officers and it is not my intention to appoint council officers as authorised officers unless requested to do so.

The Local Government Association is also concerned with the mediation provision which states that, if the relevant authority cannot reach an agreement with the holder of an unexercised interment right, in relation to discharging the right, then the authority may refer the matter to mediation, the cost of which will be borne by the authority. Mediation only becomes an issue if the authority cannot reach an agreement with the holder of an interment right to discharge the right.

I consider that, as the interment right holder ultimately has little voice in whether or not a cemetery is closed, the costs of mediation should be borne by the authority. In other words, it would be the authority attempting to close the cemetery which would precipitate the issue in the first place. The Local Government Association has sought assurances from the government that it will be consulted on the development of regulations. I am happy to put on record that I will consult with the association on the draft regulations.

I thank members for their support of the bill and look forward to further consideration of the bill and the government amendments in committee. Can I say that, as is commonly the case when we go into committee, unless other members are particularly concerned to do so, I would not expect the committee to behave in an overly formal way, provided that the contributions are not repetitive. I would hope we can, I guess, focus on the matters that require further exposition.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 2 passed.

Clause 3.

The Hon. J.R. RAU: I move:

Page 4, after line 11 [clause 3]—After the definition of authorised officer insert:

bodily remains means the whole or any part of a human body (whatever its physical state may be) but does not include the whole or any part of a human body that has been cremated;

Page 5—

Line 3 [clause 3, definition of cemetery, (a)]—Delete 'human'

Line 31 [clause 3, definition of cremated human remains]—Delete 'human' first occurring

Line 31 [clause 3, definition of cremated human remains]—

Delete 'human' second occurring and substitute 'bodily'

Line 33 [clause 3, definition of cremation]—Delete 'human' and substitute 'bodily'

Line 37 [clause 3, definition of crematorium]—Delete 'human' and substitute 'bodily'

Page 6—

Line 5 [clause 3, definition of disposal, (a)]—Delete 'the' and substitute 'bodily'

Line 6 [clause 3, definition of disposal, (b)]—Delete 'the' and substitute 'bodily'

Line 7 [clause 3, definition of disposal, (c)]—Delete 'the' and substitute 'bodily or cremated'

Line 15 [clause 3, definition of exhumation]—Delete 'non-cremated human' and substitute 'bodily'

Line 19 [clause 3, definition of human remains]—Before 'includes' insert 'means bodily remains

Line 21 [clause 3, definition of human remains, (b)]—Delete 'human' and substitute 'bodily'

Page 7—

Line 6 [clause 3, definition of mausoleum]—Delete 'human'

Page 8—

Lines 14 and 15 [clause 3, definition of unexercised interment right]—Delete the definition

Line 19 [clause 3, definition of vault]—Delete 'human'

Amendments carried; clause as amended passed.

Clauses 4 to 6 passed.

Clause 7.

The Hon. J.R. RAU: I move:

Page 9—

Lines 4 and 5 [clause 7(1)]—

Delete 'human' wherever occurring and substitute in each case 'bodily'

Line 8 [clause 7(2), definition of burial]—Delete 'non-cremated human' and substitute 'bodily'

Amendments carried; clause as amended passed.

Clause 8.

The Hon. J.R. RAU: I move:

Page 9, lines 13, 14, 17, 26 and 27 [clause 8(1), (2) and (3)]—Delete 'non-cremated human' wherever occurring and substitute in each case 'bodily'

Amendment carried; clause as amended passed.

Clause 9.

The Hon. J.R. RAU: I move:

Page 9, lines 34 and 35 and page 10, lines 1, 2, 5, 6, 11 and 12 [clause 9(1), (2) and (3)]—Delete 'human' wherever occurring and substitute in each case 'bodily'

Amendment carried; clause as amended passed.

Clause 10.

The Hon. J.R. RAU: I move:

Page 11, line 23 [clause 10(6)(b)(iv)]—Delete 'human'

Amendment carried; clause as amended passed.

Clause 11 passed.

Clause 12.

The Hon. J.R. RAU: I move:

Page 12—

Lines 14 and 15 [clause 12(1)]—Delete 'dispose of human remains, or cause, suffer or permit human remains to be disposed of' and substitute:

cremate or inter bodily remains, or cause, suffer or permit the cremation or interment of bodily remains

Lines 19 and 20 [clause 12(2)]—Delete 'dispose of human remains, or cause, suffer or permit human remains to be disposed of' and substitute:

cremate or inter bodily remains, or cause, suffer or permit the cremation or interment of bodily remains

Line 27 [clause 12(3)]—Delete 'Subsections (1) and (2) do' and substitute 'Subsection (2) does'

Amendments carried.

The Hon. R.B. SUCH: I just wanted to raise an issue. I am not speaking against this amendment and I may not be at precisely the right one.

The CHAIR: Which one is it, member for Fisher?

The Hon. R.B. SUCH: I will take whatever one we are on now.

The CHAIR: We are on clause 12.

The Hon. R.B. SUCH: Yes. I have raised previously with the minister the issue of viewing remains, which is now required for burial. I do not know whether the minister or his people have been able to look at the possibility of tagging a body at the same time that the death certificate is issued, so that people who may not wish to view the body are going to be forced to do so.

It is a personal thing; we know that some people have viewings, but it has been put to me that some people do not want to be put in a situation where they have to view the deceased. That could be overcome by placing a non-removable tag around the ankle, as I believe is done in parts of the United States, and that tag stays with the body forever.

The Hon. J.R. RAU: In answer to that: my understanding is that it is contemplated that we would be able to deal with that matter in the regulations. I do not actually have any particular objection to it, but I think we should specifically talk with the people who are involved in the process—whether that is the medical profession, the funeral directors, or whoever it might be—to make sure that what we put in regulation is not something that is unreasonably burdensome. But, I take the honourable member's point, and the answer is: regulations are capable of producing that outcome, and we intend to have discussions about the regulations.

The Hon. R.B. SUCH: Just one other point on the same clause: this bill was not specifically set up to deal with licensing of undertakers. Currently, in South Australia, you do not have to have a licence, or there is no requirement to meet any particular standards in handling the deceased. Attorney, I am not sure whether that can be dealt with by regulation, or whether that would be something that would come under business and consumer affairs. I think most people would be surprised to realise that anyone can grab a vehicle and start transporting human remains.

Ms Chapman: It is not a highly sought-after occupation.

The Hon. R.B. SUCH: No, but, I know in the past people have been transported in a Morris Minor—that is no reflection on British motoring ability or engineering. I just wonder whether that is a matter for a different act altogether, or whether, by regulation, it could be dealt with as a consequence of this bill.

The Hon. J.R. RAU: I am advised that no, it is not in this legislation, and it is not capable of being dealt with in this legislation. I do not believe that we have actually even consulted anybody about that. So, whilst there may be some merit in that, I think it might well be the case, even though we are not talking about a licensing regime here—but, under the Australian consumer law, there is an obligation imposed upon anyone who is providing goods or services to a consumer.

I am not sure whether the fact that the consumer is actually dead stops you from doing that, because perhaps the consumer is your relatives—I would hope so. But, in that context, under the Australian consumer law, there are a whole bunch of guarantees about fitness for purpose, reasonable description of services and goods, implied warranties and so forth.

I think the answer is that, under the consumer law, there is not a total absence of assistance for people who might feel that they have not been properly dealt with by these people. Because we have not had a conversation at any stage about licensing, it is not contained in this bill, and I would not be looking at contemplating licensing without there being a very thorough discussion with affected parties about the impact of licensing.

Clause as amended passed.

Clause 13.

The Hon. J.R. RAU: I move:

Page 13—

Lines 16, 17, 19 and 21 [clause 13(1)(b) and (c)]—

Delete 'non-cremated human' wherever occurring and substitute in each case 'bodily'

Lines 27 and 30 [clause 13(2)(b)]—

Delete 'non-cremated' wherever occurring and substitute in each case 'bodily'

Line 36 [clause 13(4)]—Delete 'non-cremated human' and substitute 'bodily'

Page 14—line 12 [clause 13(7), definition of human remains]—Delete 'human remains includes' and substitute 'bodily remains and human remains include—'

Amendments carried; clause as amended passed.

Clauses 14 to 19 passed.

Clause 20.

The Hon. J.R. RAU: I move:

Page 16, line 3 [clause 20]—Delete 'human' and substitute 'bodily'

Amendment carried; clause as amended passed.

Clauses 21 to 23 passed.

Clause 24.

The Hon. J.R. RAU: I move:

Page 18, after line 20 [clause 24]—After subclause (16) insert:

(17) In this section—

unexercised interment right means a current interment right under which human remains are yet to be interred.

Amendment carried.

Mr GRIFFITHS: I do have a question on clause 24, if I may. I note and indeed you spoke earlier about the fact that the regulations are still to be developed, but it talks about notices and then having to comply with regulations. My question is: notices are publicised 18 months or 9 months before hand (I think they were the times that were quoted), but what level of recognition has to be paid to those comments that might come in?

The Hon. J.R. RAU: I am advised that clause 24(3) provides for a method by which the notice is given—namely, circulating it through a newspaper or in a gazette—and a time period has been mentioned. It is true that there is no impediment on the authority proceeding even in the face of objection by people who may respond but, as with all of these things, it is a balancing act whereby, if there was a good reason to seek to make such an application, and I imagine it would not be made lightly, then it would be a matter for the authority to take any feedback into account.

It is actually a very interesting point, because it goes back to one of the questions that was asked earlier about the funding of any mediation that might be necessary because the party protesting is not the one that initiates the process. The party protesting is a person who is feeling themselves aggrieved by the process, so it would only be reasonable that, given that they are actually on the receiving end of something they do not wish to see happen, it should not be at their cost that they seek to mediate the issue when someone else is in a much more powerful position to influence the outcome.

Mr GRIFFITHS: I thank the minister for his response. I respect the fact that you or a person acting in your position has to be consulted as part of the decision to close a cemetery or a natural burial ground, but you are relying upon the provision of all information. I suppose I might be seeing the worst case scenario here, but I am concerned that a position as put by a family member is not relayed through the cemetery through to you or the minister acting in your role. There does not appear to be any right of appeal on this. It just seems that, once the minister's authority has been given, notice has been published and the decision has been taken, there does not appear to be a right of review opportunity.

The Hon. J.R. RAU: There are several separate points here. The first one is that, in respect of a council cemetery, the minister has a role: in respect of a private, or non-council, cemetery, the minister does not. To create a right of appeal would actually mean that the objector became a participant directly in the process. I think it is a fairly large step to take to move an objector into that position because you could have that individual, in effect, holding the authority to ransom over their capacity to slow things down, or persist with court action.

The member for Goyder has actually raised a very important point which had not occurred to me before, which is that there is nothing explicitly in the legislation presently that requires the minister, upon making that decision, to be notified of the nature or extent of feedback. Whilst I do not think it would be wise to change the provision so that the objector had a formal legal right, I do think there is merit in providing a requirement that the minister, prior to making the minister's decision, is made aware of—I am thinking of the words off the top of my head here—the nature and extent of any feedback that comes in. If the honourable member is happy to do so, rather than hold us up now, I am happy to try to formulate an appropriate additional provision which we can deal with between here and the other place.

Mr GRIFFITHS: In relation to unexercised interment rights, I note you talk about agreement being necessary and, if that is not reached, I think the term was an independent party is used for mediation. Where does the independent party come from? Is it the same group of people that has been asked by the Small Business Commissioner to register an interest as being mediators, or is it a different level of person?

The Hon. J.R. RAU: Again, that is a very good question. The provision provides that the minister of the day can provide guidelines in relation to the selection of the mediator, which I guess means the answer to the question lies in something not dissimilar to regulations but it would be in the form of guidelines issued by the minister. If it were me, I would be making certain requirements such as the individual is not in any way associated with any of the parties, has no conflict of interest, is perhaps even somebody who has undertaken a prescribed course as a mediator, or something of that nature. I am confident we can deal with that issue as a policy document.

Mr GRIFFITHS: The reason I raise this is because of some level of personal knowledge. Say, for example, you have a family that took out a family lease 50 years ago, then one child has reached an older age and they might need it, and that sort of thing. It causes a lot of concern within families. They approach the council CEO, if we can use him as an example, in an effort to sort things out. It is not perfect.

I commend the minister on the fact that the bill tries to think of every scenario and it tries to determine an outcome based on that, but I am concerned that there is still an uncertainty that might exist because, no matter how hard you try, and use an independent mediator for mediation, an agreement will not be reached so a decision needs to be made about it—I understand that, also. While every effort is made with monuments, and even remains, to move them to an alternative place that the family might be supportive of, it is going to be very difficult, practically, to manage at a local level, I would have thought. That is why I have asked that question about the party themselves and the level of mediation, but you have explained it with the regulations.

Ms CHAPMAN: I thank the member for questions relating to clause 24, it clarified a couple of matters. The situation, as I understand it, is this: you are giving structure to a process where a cemetery or natural burial ground is to be closed, with the expectation that any human remains that are interred are to be respected, and there are serious penalties, obviously, if they are knowingly disturbed without proper authority, and that if there is a closure that there is an obligation on the authority to provide to anyone who has an existing unexercised interment right a plot somewhere else: essentially, if part of a burial ground or cemetery is to be closed down they can have a new plot within the part that is going to remain open. All of that is to be at the cost of the authority.

Essentially, if human remains are to be dug up and re-buried that any memorial they have has to be relocated, all at the cost of the authority, in other words, the complainants (presumably the relatives or descendents) would be assured of having some respect given to their lost relative, or deceased person. Secondly, that if they have an unexercised right that at least they will have a space somewhere else. That is as I understand the process that has been put in place.

The mediation aspect is one which, as you have pointed out, is of some concern to the relevant authority representative, namely the LGA, which is likely to have members that are going to bear the cost of this.

The Hon. J.R. RAU: But only if they are closing down the cemetery.

Ms CHAPMAN: Yes, I understand that. The whole section, I think, is relating to the closure of the cemetery. What I do not understand is, under clause (11):

If a cemetery or natural burial ground closed under this section has been lawfully consecrated according to the rites or practices of a particular religious or ethnic group—

(a) the owners of the land must offer the closed cemetery or natural burial ground as a gift to that group; and

(b) the relevant authority must not, unless the gift is refused by the group, demolish, remove, relocate or replace any grave in the cemetery or natural burial ground.

What is the gift? Does the whole of the ground have to be gifted over? I do not quite understand the extent of this gift.

The Hon. J.R. RAU: This was intended to accommodate various, probably, minority faiths, I guess you could say. Members may be aware that those of the Jewish faith have certain views about interment which are particular to their religious beliefs, the same can be said of people of the Islamic faith, and the intention was that in the event of such a closure occurring if there was some particular denomination or precinct (perhaps I could put it that way) of the burial ground that the people of that denomination, or their current leadership, should be given an opportunity to be made aware of what was going on and if they wished, in effect, to become the custodians of that land, or that property.

For example, members might be aware that there is a discrete precinct at Centennial Park for Jewish burials. There is another area for people of the Muslim faith. Each of those particular parts of the cemetery have certain characteristics that are particular to the requirements of that faith. It is a matter of respect for the views of these groups.

Whilst it is more likely than not that the groups that would be most concerned about these matters would be, for example, members of the Jewish or Islamic communities, they are not necessarily the only ones. We obviously would not want to have some discriminatory provision here which excluded—for example, if members of one of the more numerous groups had a view that they should not be able to have their view heard and only the minority group should. The point I am trying to make is that it is not all about numbers, it is about the group having a particular depth of feeling about the place.

Ms CHAPMAN: I suppose what I am really trying to identify is, where it says it has been 'lawfully consecrated according to the rites', do I assume then that if the archbishop of the Catholic church had gone down and exercised some blessing over the whole of the Catholic division at Centennial Park that the Catholic church would be entitled to receive that section as a gift, which of course may be a very substantial portion of the whole of the Centennial Park area.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: I have not noticed it in this act, but it may be somewhere else, as to what is to be—

The Hon. J.R. RAU: Sorry, just understand it from this point of view: how can we in all fairness say that those of the Catholic persuasion should be less able to take advantage of such a provision than those of the Buddhist, Hindu, Jewish or Islamic persuasion? I think one has to have a rule that is capable of being applied to everyone. The likelihood perhaps of some of the more mainstream or conventional faiths wanting to take advantage of these things is possibly less, but to discriminate amongst faiths on the face of the bill would invite all sorts of obvious difficulties, which is not necessary, particularly given how relatively infrequent this type of event is.

Ms CHAPMAN: For the sake of the record, I am not in any way suggesting that there ought to be some discrimination between particular faiths, but I am struggling a bit with how this will apply. Whilst any group, provided they could in some way be identified as a religious or ethnic group—it is fairly general, that is all, and I am not saying it should be narrowed. I simply make the point that really they are entitled to a gift of what may be quite a substantial area of a cemetery that is going to be closed. All they have to do is establish that that section 'has been lawfully consecrated'. There is no definition as to what that means. Does it mean a blessing by the archbishop or that there has to be some defined process? That may change, obviously, between different faiths or different groups, but there is nothing that helps us in the act that I can see.

The Hon. J.R. RAU: Bear in mind that we are going from the quite unlikely to the extremely unlikely—point number one. The number of times that these applications will be made will be very few and far between I would imagine. When they are made, we are in all probability dealing with reasonably longstanding communities by reason of the fact that they have actually gone to the trouble of negotiating with the authority concerned at some point in the past and having had set aside for them a discrete segment of the cemetery. In reality, I think we are dealing with relatively few potential areas as it is.

The last thing is that the idea of us trying to prescribe what consecration might mean between faiths might lead us down to a very complex series of things. As the member for Bragg would know just from her experience as an officer of the court, there are any number of ways a person might be sworn in to give their evidence. I just feel a little concerned that we might wind up having regulations explaining exactly what particular apparatus was used on the day and whether the appropriate bells and the smoke and all that sort of thing was present. I do not think we really want to get into that space.

I think we should just leave it at that, and in the event of there being some issue, then somebody has been given a reasonable direction as to what the parliament means, and that can be dealt with at the time. Otherwise, we get into this horrible business of having to decide. For all I know, if you are a Sunni you may have a completely different method of consecrating, for want of a better word, a burial ground from if you are a Shiite or if you are a Druze, or if you are an Orthodox Jew, or whatever. I do not think it is wise or helpful for us to get ourselves into those doctrinal elements. We are simply trying to convey something as a statement of our intention, which I think we have to, to some degree, trust future generations to be able to apply with common sense.

Ms CHAPMAN: I raise it, Attorney, because unlike the rest of this provision, which has a lot of provisions for where things may occur, this is a 'must'. This is not just an 'if'; maybe if it is a reasonable thing to do and all the circumstances or some discretion of someone like a minister or yourself to make the determination: this is an obligation to hand over the property which may be a significant swathe of the total asset. I just make that point. I am not sure whether or not this is something that is regulated in some other legislation. I have not seen it, but then I have not followed this type of legislation at all before. Is there any other precedent for this type of thing? Are there any other applications that are similar?

The Hon. J.R. RAU: I do not think there is, but can I come at this from another angle. Comparative religion is not my long suit, but I am advised that, for example, people of the Jewish faith have a very particular view about being buried once and for all, in other words, in perpetuity. There is a whole bunch of reasons for that which are particular to their beliefs. That leads to certain views that they might hold about what should happen if in effect a burial ground with Jewish people in it in a dedicated section were to be decommissioned. They would wish and they would actively take over the care and control of that decommissioned section. They would not want it to be possible for that not to be offered to them for that reason. That is a matter, I am advised, of very strong conviction for that particular community.

In respecting that conviction, which I do and which this bill does, it would be unreasonable for us to not anticipate the possibility that another community may have a similar conviction and should be excluded from consideration by reason of our bill being so particular that it narrowed its compass to, for example, just those people of the Jewish faith. I think if we tamper with this we will be inviting fairly strong representations particularly from that community, though not necessarily only from that community, about how strongly they feel about this matter, and I would urge members to respect that and just move on.

Clause as amended passed.

Clauses 25 to 30 passed.

Clause 31.

Mr GRIFFITHS: Clause 31 is relatively short and I know many people have spoken about in perpetuity beyond the previous 99-year agreement that was in place. Why have you not set any form of minimum period through this bill when it comes to what the expectation of government is? Especially when I read clause 32, where it talks about a renewal of the interment right being for not less than five years, that concerns me as a matter of principle.

The Hon. J.R. RAU: I have to say that that is entirely my fault, because I thought that putting in a minimum period might be misconstrued by people and the industry as my advocating a standard period.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, and it struck me that if I put it in the bill and the parliament passed the bill which said, say, 25 years, we would be mistakenly sending the message to everybody in the community that we, as a parliament, thought that, after 25 years, everyone was fair game and you could dig them up. That is certainly not a message I want to get out there because it is not what I believe, and I think many people actually out there who have not had to deal with this themselves are under the mistaken impression that everything is in perpetuity.

I was torn between trying to shock everybody into reality by saying '25 years' but I thought that by doing that, what I might actually do is encourage people who are presently offering longer leases to reduce the term to this so-called new default position of 25 and, in effect, cause nothing but difficulty. Instead, what we have done is relied upon the position that each person, when negotiating for an interment right, must be made aware of the term and the conditions upon which that term is to be renewed at the time of taking that interment right. We are relying I guess on 'Caveat emptor'—buyer, beware—but we are also requiring that the buyer be placed in a position where they have the relevant information.

I know why the report recommended a number, but it just occurred to me that it actually might be paradoxically unhelpful, which is why there is no number in there. The other thing of course is that by putting a number in there, we necessarily start mucking around with people's business models. The member for Goyder and I may think that a cemetery that operates on the basis of a five-year term is a pretty crummy business model and a pretty crummy cemetery, but it may be that somebody wants to get out there and offer that appalling—from my point of view—service and people are happy to sign up for it because they just want to have a five-year stay and then they do not mind what happens.

I think there would be very few people who would go for that business model but to impose 25 or 50 years or any other number—99 years—is another matter. There are already people out there who have made business plans going forward for some time on the basis of whatever their current procedures are. To overlay some heavy hand from here saying, maybe you would have a grandfather provision that said, 'Anything that is already arranged stays as is,' but presumably their business model was not intended to finish sometime in the middle of 2013 and have the rules changed on them.

For all those reasons, I thought it was more prudent to actually leave that particular thing alone but rely on the provider of the service having to make full disclosure of what was on offer at the time the interment right was purchased.

Mr GRIFFITHS: I thank the minister for the detailed response. I respect the fact that you are putting responsibility with the local authority to determine an appropriate time and, therefore, they are responsible to their community and the people who they will serve for advertising that and accepting either positive or negative feedback that comes from that.

Is there a requirement though that you, as a responsible minister, are actually supplied with information from each of these authorities about the time that they determine, to consider whether it is too short? Is there still a tick that is required by you? If a local authority is prepared to go out there and say they want it to be 10 years and that will be it, is there some form of action by a local community that could come back via you?

The Hon. J.R. RAU: No, I have not set myself or any future minister up as the watchdog of plots. I think what we envisaged was a free and open market in plots, where people can shop around, or 'plot around', and try to find the best deal that suits them. To give an example, somebody might be prepared to trade off proximity to have a longer term. So, somebody might say, 'I have lived all my life in Adelaide, but I know that, if I go to Centennial Park, I am only going to get a certain amount of time for my money.

I realise my family probably will not be out there every day anyway, eventually. Is it going to make a big difference if I arrange something at Kadina, where I might be able to get perpetual tenure?' or whatever the case might be. I do not know what is offered in Kadina, but let us assume that was up. Then, on the rare occasion when the 'rellies' want to come around and say hello, they will probably spend a few dollars on the Copper Coast as well, so it is a win-win for everybody.

But disclosure is important. Disclosure is very, very important. As I said before too, the consumer law means that, if they make false representations in any of those documents, and they say things to people that are incorrect, then they can be in quite a lot of trouble. Clauses which are deemed to be unfair clauses in a consumer contract can be struck out under the Australian Consumer Law.

It might well be that, quite independent of this, if you put in something that says you can only bury someone for six months—I am being silly here—under the Australian Consumer Law, you could say, 'Look, that is clearly an unfair contract. It is not fit for purpose and so forth.' So, no, we have not brought in that big regulation role: we are trying to leave it to people and the authorities to work out.

Clause passed.

Clauses 32 and 33 passed.

Clause 34.

The Hon. J.R. RAU: I move:

Page 23—

Lines 16 to 18 [clause 34(2)]—Delete:

'equal to the current fee payable for an interment right of the same kind, less a reasonable fee for administration and maintenance costs' and substitute:

of an amount determined in accordance with the regulations

After line 19 [clause 34]—After subclause (3) insert:

(4) In this section—

unexercised interment right means a current interment right under which—

(a) human remains are yet to be interred; and

(b) a memorial is yet to be erected.

Amendments carried.

Ms CHAPMAN: The amendment to clause 34(2) will place the amount of the refund to be determined in accordance with the regulations. I think the Attorney was, in his response on the second reading, indicating that he did not want the passage of the bill to be held up and we would try to resolve this through regulation.

This is an area of concern, of course, because there is this obligation for the relevant authority to pay an amount equivalent to the current fee payable for an interment right. I do not know what the going rates are for plots or double stacks or anything else. I do not know that, I am not familiar with it at all, but, now that we are going to create this sort of new obligation, is there some example that you can give us as to how this will be calculated, what the valuation of a site is and the like?

The Hon. J.R. RAU: The honourable member asks a really good question, because I have spent some time with those who have advised me and we have been round and round the mulberry bush on this one, and we have thought about how it could be calculated. First of all, I give the undertaking again, on the record, that my intention is that we do nothing about this without thorough consultation, because it does need to be subject to consultation.

The second thing is that there is a number of different ways you can look at it. On the one hand you could say, 'Why should the person who holds the interment right receive any more for the right than they actually paid for it 20 years ago?' So, you paid $100 for it 20 years ago, and you only paid $100, so why shouldn't you get $100 back? That is one way of looking at it. Another way of looking at it is saying, 'Look; when you paid $100 for it 20 years ago, you could have spent that same $100 on another plot here, and you would still have that plot, but that plot is now worth $1,000, and for you to move from where you were to where you need to go, you have lost $900 by reason of no fault of your own.'

That is another way of looking at it. Another way of looking at it would be to say that you treat it more like some sort of transferrable right or something. There is any number of possible ways of doing it. I did not want to create some sort of unrealistic cost barrier to the authority which felt constrained to make these closures but, by the same token, bear in mind that the person who holds the interment right is an innocent party in the whole process—a passive participant—and they do not have any choice in whether the closure occurs.

Sorry; I was talking about the closure, but the surrender provisions are the same thing, and there may be any number of reasons why the surrender occurs. This is where my comment about profiteering comes in because, in a very peculiar world, you could have somebody who decides they are going to buy up all these rights, and instead of investing in the stock market, they are going to invest in plots, and then they will sit back for a few years, and wait until the plot market is so tight that it goes through the roof—it is supply and demand.

Mrs Geraghty: Like city car parking.

The Hon. J.R. RAU: No, let us not go there. I think the Bunker Hunt brothers tried at one stage to corner the silver market, and they came very close to doing it. Imagine somebody decided they wanted to make this sort of manipulative assault into the plot market; would you want them, by reason of that sort of ploy, to basically be able to extract money out of cemetery authorities or, not directly, from other people who needed the plots and, in effect, extort them by cornering the market?

I do not know how realistic that is and I have never heard of it happening. I have asked people in the department and they have never heard of it happening but, clearly, if you are dealing with supply and demand, and you are dealing with a scarce product, and you are dealing with the value of the product, how you actually structure the regulation of the surrender value of the product is potentially significant.

Another idea occurred to me. It is not meant to be ironic, but it often applies in relation to retirement villages where you buy a licence, in effect, and you might pay, say, $100,000 for your licence, and the condition is that eventually when you no longer wish to stay there because you move on for whatever reason, the licence is surrendered to the licensor. The licensor then paints the place up and then issues a new licence to a new licensee at what is then the market rate minus a percentage for their trouble. In that sort of thing, there would still be some ongoing return to the authorities.

There are a number of ways we can do this. Because it is potentially complicated, and because you could have ratbags in there trying to muck around with the system, I did not want to hold up the whole bill on the basis of us not having that nutted out, but it is something that we are going to have to talk about with the industry and the LGA.

Clause as amended passed.

Clause 35 passed.

Clause 36.

The Hon. J.R. RAU: I move:

Page 23, line 29 [clause 36]—Delete 'human'

Amendment carried; clause as amended passed.

Clauses 37 to 50 passed.

Clause 51.

The Hon. J.R. RAU: I move:

Page 29, after line 35 [clause 51]—After subclause (2) insert:

(3) In this section—

unexercised interment right means a current interment right under which human remains are yet to be interred.

Amendment carried; clause as amended passed.

Clauses 52 to 62 passed.

Clause 63.

Ms CHAPMAN: This is a self-incrimination clause, which is not uncommon in the government's legislation. This clause essentially places an obligation on persons to answer questions or produce documents that would otherwise incriminate them, but makes the person liable for a penalty if they fail to do so or, in providing it, give false or misleading information. It is consistent with other legislation where authorised officers are appointed for various reasons under acts.

The Attorney has said that he has no intention to appoint authorised officers at this point, on the basis that the police would ordinarily be involved in carrying out the protection of bodies that might, for example, be suspected of being unlawfully destroyed, etc. However, my question on this self-incrimination clause is: did anyone in the industry, or stakeholders who were consulted, ask for this and, if not, whose idea was it?

The Hon. J.R. RAU: I thank the honourable member for the question. It was not asked for by the industry. It is something that was put in as part of the drafting exercise on the basis that we are talking here about potentially extremely sensitive issues (the unauthorised destruction of human remains), and I think, on balance, it was thought that finding an answer to some of those questions was of sufficient importance to have such a provision.

Ms CHAPMAN: I assume then that the person responsible for asking for this was you?

The Hon. J.R. RAU: No, I did not explicitly ask for it. Parliamentary counsel does fascinating things: 99 per cent of the time, they are fabulous. As far as I know, not every minister asks for every single word that we get, so this is part of the mystery—you have identified part of the mystery. I do not think that it is a bad thing to have in there, but I did not explicitly ask for it. I do not believe anybody explicitly asked for it. My understanding is that it is a pretty standard sort of—

Ms Chapman: Well, it is under your government.

The Hon. J.R. RAU: I can honestly say that I have never turned my mind to that particular matter and now, having done so, I do not see any particular mischief being created by it.

Clause passed.

Clauses 64 to 66 passed.

Schedule 1.

The Hon. J.R. RAU: I move:

Page 37, line 26 [Schedule 1, Part 2, clause 5, inserted definition of cremated remains]—Delete "means cremated human remains as defined" and substitute:

has the same meaning as

Page 38, lines 10 to 20 [Schedule 1, Part 3, clause 9]—Delete clause 9 and substitute:

9—Transitional provision relating to interment rights

An interment right granted before the commencement of this Schedule will be taken to be an interment right granted under this Act (as if this Act had been in force when the interment right was granted) and—

(a) if the interment right was granted in perpetuity—the presumptive interment right will be taken to have been granted in perpetuity;

(b) if the interment right was granted for a fixed term—the presumptive interment right will be taken to have been granted for the same term;

(c) in any other case—the presumptive interment right will be taken to have been granted for a term prescribed by the regulations.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:31): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:31): I just wish to make a few comments. During the second reading, I outlined some concerns of the opposition in respect of the bill, and I am pleased to see that some of those have been covered by amendments presented today by the Attorney.

In essence, the amendments flow from further submissions received from the Cemeteries and Crematoria Association of South Australia Inc. who viewed the bill that had been tabled late last year. In particular, they made five recommendations to amend clauses 3, 34(2), 24(7) and 12(3). These have been generally covered, so I thank Mr Bruce Nankivell as president of CCASA for his assessment of the bill and for the submission and at least on his say so being sufficient to persuade the Attorney to act. So, we are pleased about that.

The amendments, I might say, arrived just today, and I am a little bit concerned about that. Although the Attorney may have only given consideration recently to this report from mid-January—I appreciate the time of the year, of course; it may be that it only came to his attention—both the Hon. Stephen Wade and I received correspondence today that had been dated last Friday. I would ask that, in future, if the Attorney does have amendments (and we welcome them) and if it is clear that this is going to be the first bill up in the legislative week (and in this case it was approved last Friday) that somehow or other he instruct his office to make sure that we have them a little earlier. In this situation it is not a contentious matter, and I think with most of these, as I tried to read through them as we received them today, there is no ill flowing from it. But we would appreciate that.

Finally, I note that the glorious outcome of this bill is that it seems that my great-grandmother Sarah Snelling is a relative of the Minister for Health and it seems as though we actually, in some way or other, have some earlier relative who is common. We have not yet identified that. I have given high commendation in this house before to Mrs Lucia Snelling for her excellent statements on the appalling public transport in this state. I have even offered the Minister for Health an application for membership of the Liberal Party to be handed on to her, given her extraordinary contribution.

I am actually very pleased that it may be that we have common ancestors, because I would certainly look to his government for support in ensuring that the private cemetery on the property at Snellings Beach is protected in the future. It is the resting place, of course, of not only my ancestors but, it seems, those of the Minister for Health. In any event, it is a very early memorialisation ground for some of the earliest descendants of settlers in the South Australian colony. With those few remarks, I indicate that we will be supporting the bill and reserve possible amendment in the Legislative Council in the areas I have previously identified.

Bill read a third time and passed.


At 17:37 the house adjourned until Wednesday 6 March 2013 at 11:00.


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT