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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-02-09 Daily Xml
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Bills

Burial and Cremation (Interment Rights) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr FULBROOK (Playford) (15:50): I will continue on from the remarks that I made earlier. While the urgency for this bill has lessened with those particular matters that I referred to having been resolved, the Malinauskas government maintains its resolve that interment right holders and their families should be better protected. Subsequently, any failure to meet obligations should be subject to tough penalties.

To briefly step the house through a number of matters that I consider significant within the bill, section 13 of the act is amended to give added protections around cremated remains that have been interred in an interment site, either within a cemetery or a natural burial ground. An inserted section 13(1a) creates a new offence to remove cremated remains from an interment site or to re-inter cremated remains that have been removed from an interment site without the consent of the interment right holder. If the interment right holder has since died, their representative or others prescribed by regulation would then be needed for consent. These offences will hold a maximum penalty of $10,000 to reflect the gravity of such disrespectful behaviour.

If passed, these new offences created from section 13(1a) will not apply when cremated remains have been interred directly into the earth. Similarly, the offences do not apply in the case where a relevant authority for a cemetery or natural burial ground removes and re-inters remains. This would be done to enable the improvement or embellishment of the cemetery or natural burial ground, for maintenance or repair work to be undertaken in respect of the cemetery or natural burial ground.

The bill also inserts new subsection (3) in section 35 of the act. This will ensure that an interment right can be enforced against the relevant authority for the cemetery or natural burial ground to which interment right was issued. This new obligation applies to the person or body responsible for administering a cemetery or natural burial ground. This is applicable regardless of when the interment right was issued, and regardless of whether it was issued by that person or body or by some other person or body such as the previous owner. Again, a maximum penalty of $10,000 will apply for an individual or $20,000 for a body corporate for any failure to comply with this obligation.

An inserted section 35(6) clarifies that there is no defence in a defendant not being aware of the existence of the interment right when they assumed administration of the cemetery or natural burial ground. The only exception will be if the defendant proves that they took reasonable steps to identify any interment rights present at the time of assuming the administration of the cemetery or the natural burial ground.

As well as these substantive changes and new offences, the bill also makes several technical amendments to the act. The bill contains a clarifying amendment to section 38(3)(b) of the act to make clear that the former holder of an interment right has the right to reclaim the memorial from the relevant cemetery authority. Further, the bill contains a minor technical amendment to section 39(1) of the act relating to ownership of memorials, to remove an unnecessary reference to the phrase 'or other place of interment.' As interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, use of these words is unnecessary in this context.

A further amendment is seen in section 42(1)(a)(i) of the act, to remove an incorrect reference to 'interment site' that should instead be replaced with a reference to 'interment right in respect of an interment site'.

This bill makes some small but important changes to clarify the legality and enforcement of interment rights. It will ensure people and families feel legally protected and secure in their rights when they secure interment rights in a cemetery or natural burial ground. Importantly, these offences will also operate as a deterrent to those who disrespectfully seek to wilfully ignore or refuse to honour those obligations.

In speaking in support of this bill, I would like to acknowledge those who have assisted in developing this important and respectful piece of legislation. It touches on a matter that is sensitive, and I imagine there were many people feeling very raw in the process of the development. I also wish to pass on my thanks to the Attorney-General's staff, particularly Elliette Kirkbride, who has been first-class in helping pull things together for today. I understand she has been working with the Attorney for nine months in her current role and, based on everything that I have seen of her work, I am pretty sure she has a bright future ahead of her.

In noting that this bill is introduced by the Attorney-General in the other place, I also want to thank him for championing the cause behind it. This is a special day for the Attorney-General and I wish to take this opportunity to congratulate him for all that he has done in developing an Aboriginal and Torres Strait Islander Voice to Parliament.

This morning I was required in the chamber for committee work and did not get the chance to witness firsthand historical events unfolding in the other place. For this, I am deeply sorry that I could not be there. Having said that, as an old friend and in noting recent news, I hope I can repay the gesture slightly by reminding some in the media, who I feel should remain nameless, to play the policy and not the man.

While I digress, our parliament should be a contest of ideas and it is pleasing that on this matter the government and opposition are one on the need to see this passed. In what I hope is a day full of praise for the Attorney-General, his staff and departments, I commend this bill and other historical work unfolding around us in the house.

Ms HOOD (Adelaide) (15:56): I rise to speak on the Burial and Cremation (Interment Rights) Amendment Bill 2022. This bill makes amendments to the Burial and Cremation Act 2013 to provide South Australians with greater protections around the enforcement of interment rights. I am pleased to say this government is getting on with the job and finishing what the previous government did not by reintroducing the amendments proposed by the Burial and Cremation (Interment Rights) Amendment Bill 2021 which unfortunately did not pass in 2021, having lapsed at the end of the parliamentary sitting.

This government acknowledges the importance of clarifying and strengthening the legal status of interment rights and preventing future conflicts such as those in the media at the former Church of St Philip and St James cemetery at Old Noarlunga, which was a central point of discussion during debate on the 2021 bill.

Despite the urgency of this bill now subsiding, those with particular interment right disputes since resolved, this government maintains that interment rights holders and their families should be better protected into the future, and any failure to meet related legal obligations should be subject to tough penalties.

To talk briefly to the substance of the bill, section 13 of the act is amended to give added protections around cremated remains that have been interred in an interment site, either within a cemetery or at a natural burial ground. Inserted section 13(1a) creates a new offence to remove cremated remains from an interment site or to re-inter cremated remains that have been removed from an interment site without the consent of the interment right holder or, if the interment right holder has died, their representative or other persons prescribed by the regulations.

These offences will hold a maximum penalty of $10,000 in order to reflect the gravity of such behaviour that is both disrespectful and unsettling to families having their rights disrupted. These new offences created from section 13(1a) would not apply, however, where cremated remains have been interred directly into the earth. Similarly, the offences do not apply in the case where a relevant authority for a cemetery or natural burial ground removes and re-inters remains to enable the improvement or embellishment of the cemetery or natural burial ground or for maintenance or repair work to be undertaken in respect of the cemetery or natural burial ground.

The bill also inserts a new subsection (3) in section 35 of the act to ensure that an interment right can be enforced against the relevant authority for the cemetery or natural burial ground in respect of which the interment right was issued. This new obligation applies to the person or body responsible for administering a cemetery or natural burial ground, regardless of when the interment right was issued and regardless of whether it was issued by that person or body or some other person or body such as a previous owner. Again, a maximum penalty of $10,000 will apply for an individual or $20,000 for a body corporate for any failure to comply with this obligation.

A new section 35(6) clarifies that there is no defence in a defendant not being aware of the existence of the interment right when they assumed administration of the cemetery or natural burial ground, unless that defendant proves that they took reasonable steps to identify any interment rights being present at the time the defendant assumed the administration of the cemetery or natural burial ground.

As well as the substantive changes and new offences, the bill also makes some purely technical amendments to the act. The bill contains a clarifying amendment to section 38(3)(b) of the act to make clear that the former holder of any interment right has the right to reclaim a memorial from the relevant cemetery authority.

Further, the bill contains a minor technical amendment to section 39(1) of the act relating to ownership of memorials to remove an unnecessary reference to the phrase 'or other place of interment'. As interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, use of the words 'or other place of interment' is unnecessary in this context. A further amendment is seen in section 42(1)(a)(i) of the act to remove an incorrect reference to an 'interment site' that should instead be replaced with a reference to 'interment right in respect of an interment site'.

This bill makes some small but important changes to clarify the legality and enforceability of interment rights in order for people and families to feel legally protected and secure in their rights when they secure interment rights in a cemetery or natural burial ground. Importantly, these new offences will also operate as a deterrent to those who disrespectfully might seek to wilfully ignore or refuse to honour those obligations.

I am eager to see these protections being enforced in order to better protect the people of South Australia. With those comments, I commend the bill to the house.

Mr ODENWALDER: Sir, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:03): I rise to close debate on the second reading of the Burial and Cremation (Interment Rights) Amendment Bill 2022. I wish to thank everyone who has contributed to this, as well as the office of the Attorney-General for the preparation of the work we have been able to benefit from in this debate.

Bill read a second time.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:04): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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