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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-09 Daily Xml
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Burial and Cremation (Interment Rights) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:20): I move:

That this bill be read a second time.

I am pleased to introduce the Burial and Cremation (Interment Rights) Amendment Bill 2021. This bill strengthens the enforceability of the interment rights issued under the Burial and Cremation Act 2013.

Clause 3 of the bill contains offences which provide protection for cremated remains that have been interred in an interment site. In particular, it makes an offence to remove cremated remains without the consent of the interment right holder or their representative.

With your leave, sir, I seek leave to insert the balance of the second reading in Hansard without my reading it, together with the explanation of clauses.

Leave granted.

A maximum penalty of $10,000 would apply in respect of the offences in clause 3.

The offences would not apply where cremated remains have been interred directly in the ground (or scattered). A relevant authority for a cemetery or natural burial ground can temporarily remove cremated remains where they are in a container, where it is necessary to do so for the improvement or embellishment of the cemetery or for maintenance or repair work to be undertaken.

Clause 4 of the Bill amends section 35 of the Burial and Cremation Act to make it clear that an interment right can be enforced against the relevant authority for the cemetery or natural burial ground in respect of which it was issued.

Mr Speaker, the Government has moved to act after some interment right holders have experienced difficulties in having their rights honoured when the cemetery in which they hold an interment right has changed hands.

There are significant penalties for authorities that fail to comply with their obligations, with maximum penalties for breaching the laws set at $10,000 for an individual or $20,000 for a body corporate.

New section 35(5) makes it abundantly clear that these obligations apply to the person or body responsible for administering a cemetery or natural burial ground, regardless of when the interment right was issued or whether it was issued by a previous person or body responsible for administering the cemetery or natural burial ground.

It is not a defence for a defendant to be unaware of the existence of the interment right when they assumed administration of the cemetery or natural burial ground, unless they can prove that they took reasonable steps to identify interment rights in existence when they took over. Reasonable steps would include things like checking the register of the relevant cemetery or natural burial ground maintained under section 53 to ascertain particulars of interment rights issued by the relevant cemetery authority, checking the plans of the cemetery showing sites where remains are interred and sites set aside for future interments, checking with the former cemetery authority (where possible) to ascertain whether there were any additional interment rights issued that had not been recorded in the register or on the plans, checking with the local council and checking with the church diocese if the cemetery was attached to one of the mainstream churches.

Clauses 5, 6 and 7 contain technical amendments to the Burial and Cremation Act.

Clause 5 contains a clarifying amendment to section 38 of the Act to refer to 'the person who held the interment right immediately before its expiry'. It is that person who has the right to reclaim a memorial from the relevant cemetery authority.

Clause 6 makes a minor technical amendment to section 39 (which deals with ownership of memorials). Interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, so the words 'or other place of interment' are unnecessary and are being removed by this amendment.

Clause 7 amends section 42(1)(a)(ii) to correct an incorrect reference to an 'interment site' that should refer to an 'interment right in an interment site'.

Mr Speaker, the changes in clauses 3 and 4 of the Bill will give people certainty that when they purchase an interment right it will be honoured, and when they place their loved one's cremated remains in an interment site they will remain there unless the interment right holder or their representative consent to their removal. I commend the Bill to Members and I table a copy of the Explanation of Clauses.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Burial and Cremation Act 2013

3—Amendment of section 13—Offences

This clause amends section 13 to create a new offence of removing cremated remains from an interment site in a cemetery or natural burial ground, or re-interring in a cemetery or natural burial ground cremated remains that have been removed from an interment site (or causing, suffering or permitting such acts) while an interment right is in force in relation to the interment site unless authorised to do so by the interment right holder, or if the interment right holder has died, a person referred to in section 35(1).

The proposed maximum penalty for the offence is $10,000. The offence will not apply to cremated remains interred directly in the ground. It will also not apply to the removal or re-interment of cremated remains by a relevant authority for a cemetery or natural burial ground if it is done to enable the carrying out of improvement or embellishment works in the cemetery or natural burial ground, or maintenance or repairs in the cemetery or natural burial ground.

4—Amendment of section 35—Exercise and enforcement of interment rights

This clause amends section 35 to make it clear that an interment right may be enforced against the relevant authority for the cemetery or natural burial ground in respect of which the interment right was issued.

It also makes it an offence for the relevant authority for a cemetery or natural burial ground to fail to comply with its obligations under an interment right issued in respect of the cemetery or natural burial ground. The proposed maximum penalty is $10,000 if the offender is a natural person and $20,000 if the offender is a body corporate.

It will not be a defence to a charge of an offence that the defendant was not aware of the existence of the interment right when the defendant assumed the administration of the cemetery or natural burial ground unless the defendant proves that the defendant took reasonable steps to identify interment rights in existence at the time that the defendant assumed the administration of the cemetery or natural burial ground.

A further provision makes it clear that section 35 applies to the person or body for the time being responsible for the administration of the cemetery or natural burial ground regardless of when the interment right was issued, and regardless of whether the interment right was issued by that person or body or by some other person or body.

5—Amendment of section 38—Re-use of interment sites

This clause amends section 38 so that it refers to the former holder of an interment right where an interment right has expired.

6—Amendment of section 39—Ownership of memorial

This clause makes a minor technical amendment to section 39. The section provides that the holder of an interment right is the owner of any memorial at the interment site to which the interment right relates. Interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, so the words 'or other place of interment' are unnecessary.

7—Amendment of section 42—Power of relevant authority to dispose of unclaimed memorial

This clause amends section 42 to correct a reference in subsection (1)(a)(i).

Debate adjourned on motion of Mr Brown.

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