HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-02-09 Daily Xml
Contents
Xml

Bills

Burial and Cremation (Interment Rights) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 February 2023.)

The Hon. Z.L. BETTISON (Ramsay—Minister for Tourism, Minister for Multicultural Affairs) (12:00): I rise today to speak on the Burial and Cremation (Interment Rights) Amendment Bill. This is a reintroduction of a 2021 bill, which lapsed at the end of parliamentary sittings. I did have the opportunity to speak on the bill at that time, and I am pleased that I have an opportunity to speak on it again. It is identical in relation to amendments to the 2021 bill, except it has no preliminary clause as this is now contained in a new Legislative Interpretation Act 2021. The previous bill received general support, and no amendments were filed, so we are hopeful that this bill will receive similar support.

The bill seeks to address concerns that have arisen over the past few years around issues experienced by the holders of valid interment rights who have difficulties enforcing the rights against a cemetery authority. Specifically, the bill responds to an incident at The Cemetery on the Hill (formerly the St Philip and St James Church) at Old Noarlunga cemetery.

In 2019, the Anglican Diocese of The Murray sold the Old Noarlunga cemetery and church to private operators who reportedly refused to recognise interment rights previously issued by the Anglican Church and disclosed to the purchasers at the time of sale. The new owners reportedly sought additional and inflated payments from consumers to interfamily members for sites that they had already paid for.

Proceedings were commenced in the Supreme Court in the name of the Attorney-General and Commissioner for Consumer Affairs. Another incident occurred where ashes of a deceased were mistakenly removed from an interment site in Lucindale cemetery, and other human remains were buried on the site. Whilst both of these matters have since been settled in principle, they prompted the need to tighten legislation in regard to the protection of interment rights and the severity of penalties.

I am someone who does occasionally like to look at a bit of real estate around the place and, member for Light, it may well interest you that the Gawler River Uniting Church is up for sale. I thought, 'This is an interesting piece.' A little piece of my own history is that I was a member of the Uniting Church of Gawler and parishes, and my father was active as an elder from time to time. As I recall, there were probably more than half a dozen churches in that parish and, of course, many of these churches were established by prominent families in the regions. As church attendances declined, difficult decisions had to be made as to whether churches could continue.

I recall Boyd Dawkins, the father of the former President of the other place, John Dawkins, being a stalwart of that church. I am sure he would be very disappointed that it is not continuing. Of course, John Dawkins is the father of Leah Grantham, who may well be joining us in the other place if the opposition choose to support a woman to replace Stephen Wade. A little bit of South Australian history there. My point is that the Gawler River Uniting Church is up for sale, but it has a cemetery attached. Knowing that I have spoken on this bill before made me consider what the requirement would be to upkeep that, because it is part of the sale.

I was really pleased to see that the church has asked people to put in bids for the church and the cemetery but they will be interviewed by church elders and the church management committee so they understand what their requirements are and what the expectation is for the continual support of the cemetery attached to the church. So this is very timely, this tightening of the legislation, because I think that we will see more churches that are not as active as they used to be being purchased by private owners.

If there are people buried next to the church, the owners need to be aware of the rights of those people and make sure they treat well the families and the generations that have come after the people who have been there. Maybe they see it as a cute place to convert, and that would be good, or maybe they can create an Airbnb, but we must always remember it comes with respect and conditions.

The bill includes offences at clause 2. The bill amends section 13 of the act, introducing an offence to remove cremated remains from an interment site or natural burial ground unless authorised by the holder of the interment right or their personal representative. It imposes a maximum penalty of $10,000, with an exemption provided for when the remains were interred directly in the earth.

Clause 3 focuses on exercise and enforcement of interment rights, meaning that the interment rights can be enforced against the relevant authority for the cemetery or natural burial ground regardless of when or by whom the interment right was issued, offering additional protection. It provides clarification that it is not a defence for a defendant to have been unaware of the existence of an interment right when they assumed administration unless they can prove that they took reasonable steps to identify interment rights in existence when they took over. It is an offence for the authority to fail to comply with its obligations under an interment right, with stiff penalties of $10,000 for an individual or $20,000 for a body corporate in event of a breach.

Clause 4 makes clarifying amendments to section 38(3)(b) of the act to clarify that the former holder of an interment right has a right to reclaim a memorial from the relevant cemetery authority. Clause 5 is about ownership of the memorial. The bill makes minor technical amendments to section 39(1) of the act, which deals with the ownership of memorials, to remove an unnecessary reference to the 'other place of interment'. Interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, therefore the words 'or other place of interment' are unnecessary and have been removed.

In clause 6, there is also an amendment to section 42(1)(a)(i) to remove an incorrect reference to 'an interment site'. This should be replaced with a reference to 'an interment right in respect of an interment site'. This bill will clarify the legality and enforceability of interment rights so that families can feel protected when they secure interment rights in a cemetery or natural burial ground. Further, new offences will operate as a deterrent to those who might seek to wilfully ignore and refuse to honour these obligations.

When speaking about this bill last year, I talked about my own personal experience being the daughter of funeral directors, or undertakers as they were known, in a small country town. My connection to the knowledge of what happens when you support someone who has experienced the death of a loved one is quite strong, and the role that a funeral director plays is quite significant. Deciding where a family member is buried can sometimes be complex and at other times quite straightforward. The decision of whether it will be a burial or cremation can also be complex.

In my role as Minister for Multicultural Affairs, the issue about interment rights, burials and cremations has come up several times with many different communities. Of course, we have people from 200 different countries living in South Australia, and their own culture and their own religion leads them to have a variety of discussions on their needs. I was very pleased when the Adelaide Cemeteries Authority provided a briefing to the South Australian Multicultural Commission on 14 October last year, regarding its public consultation in regard to its plan of management from 2023 to 2028. It is required that they consult on this plan of management as part of the Adelaide Cemeteries Authority Act.

ACA, as they are called, manage and maintain the Cheltenham Cemetery, Enfield Memorial Park, Smithfield Memorial Park and West Terrace Cemetery. They also provide assistance to a number of local councils with their ongoing cemetery management needs. Some aspects of the plan that they must address are:

the retention or removal of existing headstones;

re-use of burial sites;

the scale and character of new memorials or monuments; and

planting and nurturing of vegetation in cemeteries.

It is timely for this legislation to pass to also provide some clarity and consistency in the progression of the ACA plan of management. The conversation with the Multicultural Commission detailed how ACA are engaging with our diverse community to provide culturally appropriate end-of-life needs for specific faiths and multicultural communities to ensure the dead and those whom they leave behind are treated with the dignity and respect they deserve, in a culturally sensitive way.

Just recently I attended the Chin community's opening of a particular section in the Smithfield Memorial Park. They had been working with ACA for some time to work out what would be appropriate to honour people who have passed and to find a peaceful spot for their community to feel connected to loved ones.

Recently, a historic agreement was signed between ACA and the Islamic Society of South Australia to establish the state's largest Muslim cemetery in South Australia at Smithfield Memorial Park. As part of the agreement between the parties, the Islamic Society will purchase an initial 1,000 plots over five years in return for a 50-year peppercorn lease agreement for land to build a prayer room and a washroom. The new facilities will ensure that Islamic burial and funeral traditions are upheld. Smithfield Memorial Park has the capacity to make available up to 10,000 plots for our Muslim community, which will address its long-term needs.

I know many other of our diverse communities have also entered into agreements with ACA around culturally appropriate interment and cremation end-of-life arrangements, which differ substantially across communities. It is very important that, whatever the background, the interment rights of our deceased are respected and that appropriate protections and penalties are in place legislatively to ensure all South Australians are assured their loved ones are secure once they have passed on.

Many of us do not spend a lot of time thinking about the issue of burial and cremation, but when we are called upon to do so we want assurance and certainty that those rights will be protected. Some might think that this bill is just a little bit of fix up and that it is parliament's role to do so, but I think it goes deeper than that. It is a recognition of the change in some of our oldest institutions and churches that are taking a different pathway forward.

Many times when I look at these churches, I think about the communities that put their money together when they were newly here in South Australia, many of them arriving, just like my relations, back in the early days of the colony. Building a church was incredibly important. They would have contributed together to put money to build usually a fairly small building, so that they could get to it, maybe walk to it. Obviously, they did not have the ability to travel long distances with cars at that point.

What I see is the same desire in our newer communities. They might have come here as humanitarian migrants, as international students or as skilled migrants, but when they come here they also work together and put money aside, as a community, to build their place of worship. We see that repeated with every wave of migration. What it gives people is a place of peace and connectivity, and we see that these opportunities often are a real focus for communities. They bring them together, they work out what they would like to do, they work out the best location for it to be, and that is what they build it on.

Although they were not churches, our Italian community have more than 20 community centres that they built, and often with their own hands. Using their own trades and skills and experience, they built them over time. We see this repeated through our new community groups. They often invite us to know what the pathway is and the journey that they will be on. While coming together is incredibly important, what they do for loved ones when they pass on is just as important, and this bill goes a long way to giving that certainty to people in the future. I commend the bill to the house.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (12:15): I rise to speak also to this Burial and Cremation (Interment Rights) Amendment Bill, which will amend the Burial and Cremation Act 2013 to address issues experienced by the holders of valid interment rights who have had difficulty enforcing those rights against a cemetery authority. In doing so, I note that this bill reintroduces the series of amendments from the 2021 bill that lapsed at the end of the sitting of the last parliament.

At that time, we were contending with serious and also urgent issues relating to the Old Noarlunga Cemetery. Whilst I note that proceedings relating to the recognition of interment rights previously issued by the Anglican Church and disclosed to the purchasers at the time of the sale of the former Church of St Philip & St James have since settled in principle, it remains really important that these amendments are made to ensure rights protection and to ensure appropriate penalties for anyone who does not uphold those rights.

In relation to clause 2, this bill seeks to amend section 13 of the act, introducing an offence to remove cremated remains from an interment site or natural burial ground unless authorised by the holder of the interment right or their personal representative, unless the remains were interred directly into the earth. Clause 3 provides that interment rights can be enforced against the relevant authority for the cemetery or natural burial ground, regardless of when or by whom the interment right was issued.

This confirms that it is not a defence for a defendant to be unaware of the existence of the interment right when they assumed administration, unless they can prove that they took reasonable steps to identify interment rights in existence when they took over. It will also mean that it is an offence for an authority to fail to comply with its obligations under an interment right, with the maximum penalty for an individual being $10,000, or body corporate $20,000.

Clauses 4, 5 and 6 provide for technical amendments regarding ownership of memorials and other minor drafting matters. This bill, if passed, will see interment rights properly enforced against the relevant authority, and it will create new offences if those rights are not upheld. It should be noted that these new offences will not apply to cremated remains interred directly in the earth or when removal is approved for site maintenance.

Irrespective of your cultural background, religion or nationality, the burial of a loved one or that of their remains is sacrosanct. Wherever one might be interred, that place forever holds special significance for the family and loved ones of the deceased, and the mere thought of the burial plot being disturbed is unfathomable to those loved ones. It is therefore vital that there are significant deterrents to those who would seek to disturb the remains of a deceased person.

Currently, as the law stands, it is a civil offence to move human remains. However, under these changes, it will become a criminal offence to do so. There may be people in the community, possibly even in this house, who think that this bill slightly overreaches given the relatively small number of graves involved. However, with population growth and subsequent increases in housing development, some of which could lie potentially on former graveyards and church sites, this bill is indeed very much needed.

It is absolutely fundamental that human remains are accorded the reverence and respect that they deserve. It is also important that any contracts that deal with the burial arrangements for a loved one are honoured. The issues that arose at the decommissioned church in Old Noarlunga have rightly brought this issue to a head. I am so glad that these issues have progressed.

I bring up the feelings expressed in recent years that capture the anguish of those families who were affected and why this legislation is important. One man said the contract his family signed when burying a family member's ashes still had 38 years remaining when it was dislocated. He told the Messenger South back in February 2021:

We were in disbelief when we saw the stickers everywhere and it's had a severe emotional impact for us. I think they should be honouring the leases that stand and honouring it as a cemetery…Some of the gravestones in there are of historical significance and shouldn't be tampered with, full stop.

Like many other families in the southern suburbs, the man would have been shocked to arrive at the cemetery to visit his loved one, only to be greeted by an impersonal sign stating, 'The lease for gravesite has expired.' As I mentioned before, this is despite the contract clearly stating that it had 38 years remaining.

There were also of course difficulties for the new owner, who bought the cemetery and church in late 2018 and is restoring the site. He told Messenger Souththat the burial leases were transferred to him at the time of purchase and that he had to rely simply on signage and newspaper advertisements in order to contact the families. He told the newspaper that he would honour the leases of plots with ashes for 25 years, and 50 years for burial sites. In response, the diocese claimed it had fulfilled its obligations under the act for the transfer of leases at the point of sale, saying, 'Our expectation has always been that the existing leases would be honoured by the new owner in accordance with the legislation.' The quote continues:

As from settlement the new owner was obligated to permit the interment of remains of the person to whom the interment rights relate and to leave the remains undisturbed at the interment site for as long as the interment rights remain in force.

Again, I am so pleased that there has been agreement in principle reached, given the predicament that scores of southern suburbs families found themselves in.

Besides the obvious trauma this caused to those whose loved ones' graves have been disturbed, it also raises issues about the preservation of history. This church's foundation stone was laid in 1850. A number of people around the southern community at that time were buried there. The Old Noarlunga cemetery was also a site of cooperation between different Christian denominations, including having a Catholic caretaker for the last 20 years of the Protestant church's life. That is significant, and I think it should be valued, preserved and enriched.

So many community members find much pleasure in discovering their family history. There are many who now turn to Ancestry.com to discover connections. There are others who have spent many years researching the journeys of their forebears. In my family, I have an aunt, Dianne Beaumont, who is the finder, keeper and generous sharer of those stories. Dianne spent much of her working life as an archivist with State Library Victoria, where she developed extraordinary research skills that have ensured the discovering of more about our family history and that it is robust with many an anecdote, story or compelling tale included.

Whilst there are many methods that Dianne has deployed, I know that some of her research over the years has been conducted through viewing church records and through literally walking through cemeteries in different corners of the world to view gravestones and discover more. It is from Dianne's painstaking work that I learned more about being a direct descendent on two sides of brave families who fought for fairness at Eureka Stockade.

The Eureka Stockade, as we know, was a seminal moment in our history which helped forge our egalitarian society, when, on 30 November 1854, miners from all corners of the world who had gathered in Ballarat, Victoria, raised the Southern Cross flag at Bakery Hill and built a stockade at the Eureka digging located nearby. The miners were fed up with the then colonial government's efforts to prise them from the goldfields with ever-increasing licence fees. At least 22 miners and six colonial soldiers were killed in the rebellion that is credited for its role in helping to forge the democracy we enjoy today.

One relative at Eureka hailed from County Clare in Ireland, and the other one from Poland, or Prussia, as it was then. One particular story that Dianne has ensured lives is that of Andreas Samuelewski who was renowned as being very, very tall and very, very thin. On hearing the constabulary knock on the door, after being on the frontline of the battle, he was able to hide upright in the chimney of their home. Andreas survived, as did the Irish Canny family, who went on to farm potatoes in and around Ballarat for many years.

Dianne's work has also given us more information about the Polish family, information that I am very proud of. The Samuelewski family, Andreas and Louise, and their first children, arrived in Australia in 1848 with a Jesuit priest, and were amongst those helping forge a strong Catholic community in the Clare Valley, particularly around Sevenhill. Following their time there, with all of their wares in a small cart, the family walked from Clare to the goldfields of Ballarat to build their lives there. Tragically, along the way, one of their daughters was sexually assaulted. The records of the trial of her assailant were also found by Dianne.

The Samuelewski's story of courage, family connection, love and hope in the face of the most horrific circumstances continues to inspire. Parts of it, of course, cause sadness, as does the story of a later descendent, Lillian. Lillian was born on 15 June 1886, at Canning Street, Carlton, Victoria, the tenth and last child, and sixth daughter, of Charles Beaumont and Alvina Samuelewski. From the age of 26 to the age of 82, Lillian spent almost all of her days in institutions in and around Beechworth, diagnosed late in her life with, at the time, largely misunderstood schizophrenia. Dying alone in an institution, her grave was not marked until Dianne and her sister Rosemary rectified that sorry situation by purchasing a plaque and headstone to ensure that Lillian and her life was remembered.

I could spend much more time reflecting on what I have learned from Dianne, and more recently from discovering some of my father's records of the Danes and the English and, indeed, from having the privilege of travelling to Scotland with my husband's family, which includes their accomplished family historian, Danny Wright, who took us also to a number of cemeteries and gravesites, interspersed by a number of glasses of Scotland's finest whisky.

I do not have time to do so adequately but do say that I am very grateful for Dianne's work. Understanding your family's history is really important to understanding your identity and the struggles and opportunities your ancestors faced, and of understanding more about community, life, change and truth. Dianne has blessed us all by improving our understanding on all of those fronts. What is also important about Dianne's work for this debate is the place that her viewing of church records, cemeteries and headstones have played in garnering information that has progressed our understanding.

We all have fascinating stories in our family histories that serve to inspire and intrigue us. Often, researchers like my aunt, rely on information on tombstones and other cemetery records to fill in the gaps of their familial histories. Cemeteries, in general, provide us with a connection to our past and we must ensure they are preserved for future generations.

With these amendments, stronger and clearer laws and penalties will be in place to ensure that there are ongoing protections that respect the sanctity of graves. I commend the bill to the house.

Mr TEAGUE (Heysen) (12:30): I indicate that I am the lead speaker for the opposition and I indicate the opposition's support for the bill in this second reading debate. I will be brief in circumstances where, of course, this bill is legislation prepared by the previous government and introduced in the last parliament in the middle of 2021.

I will be all the more brief and perhaps reiterate that Swedish word that I am so glad now is familiar to Hansard: äntligen. We are here and finally I hope that we can deal with the disposition of this debate promptly today, reintroduced, as it was, in the other place in June last year. I thank the Attorney in the other place for promptly reintroducing the bill in June last year.

It passed the other place in September last year and so, let's face it, it is high time that this important set of amendments in relation to the reliability and enforceability of interment rights is now secured. I take the opportunity to be clear: one cannot overstate the personal, emotional, family and historical significance of ensuring certainty in this space. It also has practical financial consequences if there is to be an arm wrestle in relation to existing interment rights. It is important that there is certainty and integrity in this space.

If I address just one provision in the course of these remarks that are very much rehearsing what has gone before, the new section 35(5), which is included in clause 3 of the bill, will now make it abundantly clear that the responsibility for the administration of cemetery or natural burial ground continues; that is, regardless of when the right was issued and regardless of whether or not the right was issued by that person or some other person. Let's be clear: let there not be any uncertainty in relation to interment rights in the future. I commend the bill to the house once again. I seek for its speedy passage through this house.

The Hon. A. MICHAELS (Enfield—Minister for Small and Family Business, Minister for Consumer and Business Affairs, Minister for Arts) (12:33): I also rise to speak in support of the Burial and Cremation (Interment Rights) Amendment Bill 2022. I am pleased that the opposition are supporting the bill in its quick passage through parliament.

The bill amends the Burial and Cremation Act 2013 to address issues experienced by holders of valid interment rights who have had difficulties enforcing their rights against the Cemeteries Authority. It also addresses issues with the unauthorised removal of cremated ashes. As the member for Heysen just mentioned, the bill includes the same amendments as the 2021 amendment bill, which lapsed at the end of the last parliament.

The government recognises the importance of clarifying the legal status of interment rights and preventing future conflicts. I share with the house two examples: in 2019, the Anglican Diocese of the Murray sold the Old Noarlunga cemetery and church to private operators who reportedly refused to recognise the interment rights they had previously been issued by the Anglican Church.

These interment rights had been disclosed to the purchasers at the time of sale, as I believe has been made public, yet it was reported in the media that families attending the cemetery began finding lease expiry stickers on the plaque and the headstones, which I imagine would have been really quite distressing at the time. One person asserted that the lease for their family member's ashes plot had 38 years remaining when they found that expiry sticker, which would have been quite a shock to that family.

The new owners of the church and cemetery reportedly sought additional and inflated payments from grieving families who had already paid to inter deceased members. There was another family that claimed a lease they had purchased only in 2017 for $600 would require another 25-year lease for their family member's remains and it would cost an additional $2,900. Proceedings in relation to this matter were commenced in the Supreme Court in the name of the Attorney-General and the Commissioner for Consumer Affairs, and I understand the parties have reached an in-principle settlement.

In another case, ashes were reportedly removed from an interment site without approval after the Naracoorte Lucindale Council mistakenly allowed other human remains to be buried on the same site. Again, thankfully for the family involved in this matter, this has also been settled. It highlights the need for the amendments in this bill. We quite rightly place a very high value on the remains of our deceased family members and loved ones.

Cultures around the world have many different rituals when it comes to how we treat the remains of members of our family and members of our community. As a proud Cypriot, I can tell you that the word 'cemetery' is actually derived from the Greek word 'koimitirion', which means 'sleeping place'. I will assist Hansard with how that is spelt shortly. As a Greek Orthodox Christian, my traditions around grieving will differ significantly from many in this chamber. As an Orthodox Christian, following the death of a loved one, we traditionally enter a 40-day mourning period where the practice is to avoid social gatherings and only wear black clothing. For some very traditional people, including my mother, since the passing of my father she has worn nothing but black clothing for the last 12 or 13 years and will continue that until she passes.

While I acknowledge my traditions are different to most people here, I have come to learn in my time as member for Enfield that many of the multicultural groups in my electorate have significantly different practices to me. The Enfield electorate is actually home to the beautiful gardens that make up the Enfield Memorial Park. Its beautifully manicured gardens are a really green oasis in our electorate and it has been specifically designed to cater for our wonderful multicultural community. It highlights the different ways communities care for the remains of family members.

Interment rights are vitally important and a loss of those rights can cause deep distress for families when they lose treasured family members. The Enfield Memorial Park acknowledges this and offers a 25-year grace period for tenures of more than 50 years, so the tenure on the site will not start until an interment takes place or 25 years after purchase. The cemetery offers a range of options, including the Enfield Mausoleum, and the Cascade Gardens, which provides a welcoming space for small gatherings and quiet reflection.

There is also the Buddhist Garden, designed in the Buddhist tradition using principles of feng shui. It is a really calm and peaceful place for remembrance and was blessed with holy dews to make it pure land. We also have the Wirra Wonga ground, which offers natural, environmentally sustainable burial options. Wirra Wonga is the Kaurna term for 'bush grave'. The intent of this area is that the land be returned to natural bush. There is also the Wisteria Garden, which is an area designated for the Vietnamese Catholic community and contains a beloved statue of Our Lady of the Boat People. The community gathers each year at this place for an All Souls Day service to burn incense and pray.

There is also a dedicated section for the South Australian Hazara community. I have spoken many times in this place about how the Hazara community is an important and growing community in the Enfield electorate, and that is reflected in the Enfield Memorial Park by designating a place that meets their cultural needs. I also look forward to the redevelopment work of the Enfield Memorial Park being finished as well because that will offer significant improvement to the space in our electorate.

As I mentioned, there are different cultures that all honour their dead in different ways. The common thread is the deep and enduring sense of loss that we all feel following the death of a loved one. That is why we are seeking to address the issues this bill will resolve. We believe that interment right holders and their families should be better protected and any failure to meet obligations should be subject to tough penalties.

The Burial and Cremation (Interment Rights) Amendment Bill 2022 amends section 13 of the Burial and Cremation Act 2013, introducing an offence to remove cremated remains from an interment site or natural burial ground unless authorised by the holder of the interment right or their personal representative unless the remains were interred directly into the earth, with a maximum penalty now of $10,000.

The offences in the new section 13(1a) would not apply where cremated remains have been interred directly into the earth. The offences also do not apply where a relevant authority for a cemetery or natural burial ground removes and reinters remains to enable the improvement or embellishment of the cemetery or natural burial ground or for maintenance work or repair to be undertaken in respect of that cemetery or burial ground.

Clause 3 provides that interment rights can be enforced against the relevant authority for the cemetery or natural burial ground regardless of when or by whom the interment right was issued. This bill will ensure that it is an offence for an authority to fail to comply with its obligations under an interment right, with a maximum penalty of $10,000 for an individual or $20,000 for a body corporate. It will not be a defence for someone to claim to be unaware of the existence of the interment right when they assumed administration, unless it can be proved that they took reasonable steps to identify those interment rights in existence when they took over.

Clause 4 provides an amendment to section 38(3)(b) of the act to clarify that the former holder of the interment right has the right to reclaim the memorial from the relevant cemetery authority.

Clause 5 of the bill makes minor technical amendments to section 39(1) of the act, which deals with ownership of the memorials, to remove an unnecessary reference to the other place of interment. Interment rights are issued only in respect of interment sites at cemeteries and natural burial grounds, therefore the words 'or other place of interment' are unnecessary.

Clause 6 amends subsection 42(1)(a)(i) to remove an incorrect reference to the interment site that should be replaced with a reference to an interment right in respect of an interment site.

This bill will clarify the legality and enforceability of interment rights so that families can feel protected when they secure interment rights in a cemetery or natural burial ground. Further, the new offences will operate as a deterrent to those who might seek to wilfully ignore or refuse to honour these obligations.

In addition to the provisions contained in this bill, I also understand that the Attorney-General is exploring the plausibility of further reform to consider whether there should be a central register or some other way for cemeteries and interment rights to be recorded on certificates of title. This was a matter that was raised in the 2021 debate on this same amendment bill. If further legislative amendments are appropriate, I understand that they will be progressed separately in a subsequent bill.

This bill seeks to make vital amendments to the Burial and Cremation Act 2013 that will strengthen the ability to enforce interment rights and to avoid conflicts and emotional distress, such as those I have mentioned earlier about the Old Noarlunga cemetery and Naracoorte Lucindale Council. It is critically important that we respect and protect as best we can South Australian families and their loved ones and particularly protect their loved ones' remains and that is why I commend this bill to the house.

S.E. ANDREWS (Gibson) (12:43): I rise to speak on the Burial and Cremation (Interment Rights) Amendment Bill. There are few guarantees in life but one of them is that it will come to an end at some point, hopefully after a long and fulfilling life, and when it does we all want to be treated with the same respect we hopefully received in our lifetime. Sadly, not all families are able to guarantee their loved one's peace once they are no longer with us due to the actions of some cemetery authorities who are not properly respecting the loved ones in their care.

This bill amends the Burial and Cremation Act 2013 to address issues experienced by the holders of valid interment rights who have had difficulties enforcing their rights against a cemetery authority. Additionally, it addresses the issue of the unauthorised removal of cremated ashes. This bill is almost identical to the 2021 bill that received support across the house, and I hope this sensible bill does as well. Labor is once again getting the job done to support our community.

In clause 2, the bill amends section 13 of the act, introducing an offence to remove cremated remains from an interment site or natural burial ground unless authorised by the holder of the interment right or their personal representative, unless the remains were interred directly in the earth, with a maximum penalty of $10,000. This will hopefully prevent acts like the Lucindale Cemetery case.

Clause 3 provides that interment rights can be enforced against the relevant authority for the cemetery or natural burial ground, regardless of when or by whom the interment right was issued. This, and the next section, will prevent incidences like the Old Noarlunga case.

Next, it is not a defence under the act for the defendant to be unaware of the existence of the interment right when they assumed administration, unless they can prove that they took reasonable steps to identify interment rights in existence when they took over. It is an offence for an authority to fail to comply with its obligations under an interment right, with maximum penalties of $10,000 for an individual or $20,000 for a body corporate.

Clauses 4, 5 and 6 provide for technical amendments regarding ownership of memorials and other minor drafting matters. I will highlight clause 4, which is a clarifying amendment to section 38(3)(b) of the act, to clarify that the former holder of the interment right has the right to reclaim a memorial from the relevant cemetery authority.

This is a bill that protects the rights of families from unauthorised removal of cremated ashes, and ensures that interment rights holders can enforce their rights. Additionally, it provides peace of mind for the community that their family members will not be subject to additional and inflated payments by cemetery authorities for sites they have already paid for. I commend this bill to the house.

Ms SAVVAS (Newland) (12:46): I, too, would like to speak to the Burial and Cremation (Interment Rights) Amendment Bill which, like many of the amendment bills in the Attorney-General's portfolio that have been before us in the house recently, seeks to provide greater protections and comforts to South Australians who have lost loved ones.

I would like to speak to the case of the Old Noarlunga cemetery, which in many ways influenced this amendment. The Cemetery on The Hill, as it is now known, was previously owned by the Anglican Diocese of the Murray, who made the decision to sell the Old Noarlunga cemetery and St Philip and St James Church to private operators.

Those private operators refused to recognise the interment rights that had previously been issued by the Anglican Church, despite them being disclosed to the purchasers at the time of sale. The new owners of the cemetery sought additional payments from consumers to inter their family members, despite said interments having already been paid for. Proceedings then commenced in the Supreme Court and today we are seeking to offer greater protections for cases like this arising in the future.

I would also like to speak to the case at the Lucindale Cemetery, where ashes were reportedly removed from an interment site without approval after the Naracoorte Lucindale Council mistakenly allowed other human remains to be buried on the same site. Since the time last year when the bill first came into the other place, these cases have both settled in principle, but it is still our position that these protections should be legislated to offer greater protections to both the families of loved ones who manage the family burial sites, but it is also protection for those human remains themselves.

The amendments to the act will address issues experienced by the holders of valid interment rights, who have had difficulties enforcing their rights against a cemetery authority in the past, and also addresses the issue of unauthorised removal of cremated ashes providing greater certainty for individuals about the protection of their final resting place.

The specific offences amend section 13 of the act by introducing an offence to remove cremated remains from an interment site or natural burial ground unless authorised by the holder of the interment right or their personal representative, unless those remains were interred directly in the earth. The maximum penalty is $10,000, which sends a firm message to cemetery authorities to take greater care and show greater respect for cremated remains at their sites. We know that this is particularly important for many people, for cultural and religious reasons, and for whom cremated remains hold particular religious significance.

I know in my own blended family we are a combination of Irish Catholics, Greek Orthodox, Russian Orthodox, Serbian Orthodox and Baptists. The member for Enfield mentioned the mourning traditions specifically of the Greek Orthodox community. I am in some ways very much an anomaly within my own family, with respect to religious tradition, as a Greek and Yugoslav Catholic. I know very well the differences in cultures relating to mourning traditions, even within cultures, community groups and families themselves. For example, after the passing of my grandfather there were a number of relatives who partook in the 40-days mourning period, as per Greek Orthodox tradition, where myself, as a Catholic, chose not to.

For my mixed family alone, with a significant mix of European heritage, there are a number of differences relating to burial and memorial arrangements of loved ones. It is very much not uncommon for me when visiting Enfield cemetery or Centennial Park to enter and exit multiple different sections of the cemetery, depending on the denomination of the relative in question.

Clause 3 in the amendment provides that interment rights can be enforced against the relevant authority for the cemetery or natural burial ground, regardless of when or by whom the interment right was issued. This, of course, provides greater protections for those purchasing cemeteries and those selling the sites as well. The clause prescribes that it is not a defence for the defendant to be unaware of the existence of said interment right when they assumed administration, unless they can prove that they took reasonable steps to identify interment rights in existence when they took over.

In the case of Noarlunga, these rights were provided and disclosed, but this also does put a positive onus on the purchaser to actively seek that information. It is an offence in the clause for an authority to fail to comply with its obligations under an interment right, with a maximum penalty for individuals of $10,000 or for body corporates of $20,000.

Clause 4 also refers to the re-use of interment sites and amends section 38(3)(b) of the act to clarify that the former holder of the interment right has the right reclaim a memorial from the relevant cemetery authority.

Clause 5 relates to the ownership of memorials and makes an amendment to the act which deals with the ownership of memorials, removing unnecessary references to the other place of interment. Interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds and therefore the reference to the other place of interment is unnecessary.

Clause 6 also relates to the power of a relevant authority to dispose of an unclaimed memorial, which removes an incorrect reference to an interment site that should be replaced with a reference to an interment right in respect of an interment site.

This bill will clarify the legality and enforceability of interment rights so that families can feel protected when they secure interment rights in a cemetery or natural burial ground. It is our belief that these new offences will operate as a deterrent to those who might seek to either wilfully ignore or refuse to honour the obligations. These changes are incredibly important, we believe, for the protection of families, cemetery owners, purchasers and, of course, the remains of those no longer with us. I commend the bill.

The Hon. A. PICCOLO (Light) (12:54): I rise to speak in support of this amendment bill, the Burial and Cremation (Interment Rights) Amendment Bill. One of the things people get really emotional about is burial places. It is obviously a time of grief when people bury members of their family or friends. While that grief goes away, the connection to that place and also to that person is very important, so when those places are in some way interfered with, it does generate a lot of emotion and grief again. That is right across many cultures and people with different faiths, and people with no faith. People do see places where people are buried or interred as places of sanctity; in other words, they are places that need to be held in a great deal of respect.

It is unfortunate that some people choose to sometimes interfere with burial places, which does cause people quite a bit of grief. From time to time, we hear about places that have been vandalised. Members of the family and members of the community are quite rightly saddened, and at times outraged, by that behaviour.

It speaks to us as human beings that we wish to respect the generations before us, because we accept that it is often the sacrifice of those generations before us that actually allows us to live in the way in which we do now, and we are the envy of the world. So when these things happen, they do generate a lot of discussion.

What this bill does, very importantly—and I will not cover all the different bits and pieces; they have been covered very well by the previous speaker and also the minister who introduced the bill to this place—is it helps protect the rights held by persons who are buried or interred at a site.

As mentioned by the Minister for Multicultural Affairs, an increasing number of churches are being sold as congregations diminish, particularly in rural areas where the churches are often adjoined to a cemetery or a place of burial. When those churches are sold by the various church organisations, often the cemetery goes with the church site itself. That creates quite a number of issues about what happens to the person who has been buried there—not only from the point of view of immediate family but also from a historical point of view because cemeteries are a great place to understand the history of an area. This bill helps to protect those rights and to ensure that those people who have rights to those sites maintain them.

This issue came up just recently, because there is a church in my own electorate on the market. The Uniting Church at Gawler River is on the market. I did get a request from a person saying, 'Well, actually, I've got family members buried there. I'm concerned about what's going to happen to them if the place is sold.' The Minister for Multicultural Affairs has indicated that the Uniting Church, who are selling this particular place, are going to interview the people who seek to purchase it—I think that is a great initiative—and try to bind them, through some contractual arrangements, to make sure the site is looked after.

That is great, but that is only a contract between the church and this purchaser. If that purchaser then sells it, that actually will not necessarily bind the next purchaser. This act ensures the protection of those rights in perpetuity for those people, irrespective of what the purchaser says or does or does not do. For that reason, I support the bill because it provides some assurances to those people who have loved ones buried in sites that are no longer cemeteries.

The ACTING SPEAKER (Ms Stinson): We have only a few moments left, so I suppose I might leave it to the will of the house as to whether someone would like to seek leave to adjourn or whether the member for Playford would like to speak.

Mr FULBROOK (Playford) (12:58): I rise to speak on the Burial and Cremation (Interment Rights) Amendment Bill 2022. This bill amends the Burial and Cremation Act 2013 to strengthen the ability to enforce interment rights. I am pleased this government is finishing what its predecessors could not and has moved to reintroduce those amendments proposed by the Burial and Cremation (Interment Rights) Amendment Bill 2021. This unfortunately did not pass and then lapsed at the end of sitting at the last parliament.

The Malinauskas government recognises the importance of clarifying the legal status of interment rights by preventing future conflicts like the situation at the former St Philip and St James Church Cemetery at Old Noarlunga. Although it precedes me in this place, I understand that it was discussed in 2021 during debate of the lapsed bill. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

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