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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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BURIAL AND CREMATION BILL

Second Reading

Second reading.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (21:08): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Burial and Cremation Bill 2012 which represents a new era in the regulation of burial and cremation in South Australia.

At present there are a number of Acts and regulations governing different aspects of the industry. For example, burial in council areas and the establishment and management of council operated cemeteries is regulated by Part 30 of the Local Government Act 1934.

The disposal of human remains by cremation is regulated by the Cremation Act 2000 and the Cremation Regulations 2001. The Local Government (Cemetery) Regulations 2010 made under the Local Government Act 1934 govern exhumations, re-interments and the powers of cemetery authorities.

The regulation of privately owned cemeteries, such as church cemeteries, is a different matter. Although the establishment of new 'private' cemeteries is regulated under the Development Act 1993, and their operation is subject to the general law, such as public health legislation, these cemeteries are largely unregulated in terms of cemetery management provisions and length of tenure for interment rights.

The Bill repeals the Cremation Act 2000 and Part 30 of the Local Government Act 1934 in order to create a single comprehensive and consistent regulatory scheme that will cover all cemeteries and crematoria, whether public or private, and better reflect modern technologies, community expectations and industry practice. It is also made clear at the outset that human remains are to be treated at all times with dignity and respect.

CONSULTATION

The review of the legislation governing burial and cremation in South Australia has been underway for many years and has been the subject of two Select Committee inquiries. In 1986, the Select Committee of the Legislative Council on the Disposal of Human Remains tabled its report in Parliament.

In 2003, the Select Committee of the House of Assembly on the Cemetery Provisions of the Local Government Act tabled its report in Parliament. The 2003 Select Committee made a number of recommendations for reform of the legislation governing the industry, including the creation of a single Act, the removal of the 99-year limitation on interment rights in public cemeteries and the creation of a better system for the identification of human remains before disposal.

This Bill is the culmination of work undertaken by the 2003 Select Committee, subsequent consultation by the Government on the Select Committee recommendations, and recent public consultation on a draft Bill.

Valuable contributions on the draft Bill were received from a number of interested parties including the Adelaide Cemeteries Authority, the Cemeteries and Crematoria Association of South Australia, the Australian Funeral Directors Association (SA Branch), the Local Government Association, Centennial Park, the Monumental Masons Association of South Australia, religious groups, the Hon Bob Such MP and government agencies.

Although there was broad support for a single Act to replace the disjointed approach taken by the existing legislation, there were objections to some areas of the draft Bill, including strong objection to the proposal that an interment right run from the date on which remains are first interred and not the date of issue. In light of the concerns raised by respondents, that provision has been amended so that an interment right will commence from the date of issue. Other amendments to the Bill have also been made after careful consideration of all of the submissions received.

DETAILS OF THE BILL

Having a comprehensive and consistent regime for the regulation of burial and cremation that recognises the diversity of the South Australian community is an important aim. This Bill achieves that aim by creating a single Act that builds on existing regulation and industry practice and provides greater transparency for the industry and the community.

I will now outline the key features of the Bill.

The only methods for the disposal of bodily remains contemplated by the current legislation are burial, which can include interment in a mausoleum or vault, and cremation. This has been carried over into the new legislation which makes it an offence to dispose of bodily remains by any other method.

That said, the Government understands that alternatives to cremation, such as resomation which is a water-based cremation process, are gaining popularity overseas and there have been inquiries about bringing these methods into South Australia. Any new method of disposal that is similar to cremation will need to be subject to strict regulatory requirements as the body is completely destroyed preventing any further examination for the purposes of a criminal investigation. What regulation is appropriate, however, is difficult to determine as these new methods are not yet in use in South Australia. The Bill has therefore been drafted so as to allow for any new methods of disposal to be dealt with in the regulations.

The use of natural burial as an alternative to more traditional forms of burial is recognised in the Bill. A natural burial ground is a place where human remains are buried in a shroud or biodegradable coffin and trees, shrubs or flowers are planted as a memorial instead of a headstone.

The current 99-year limitation on interment rights in public cemeteries has been removed. Cemetery authorities will be able to offer perpetual tenure if they wish but they will not be obligated to do so and may continue to issue interment rights with limited tenure. This is because for many cemeteries, particularly those in the Metropolitan area where there is a shortage of available land, perpetual tenure on all grave sites is simply not a viable option. Without grave site re-use, not only would the active life of a cemetery be greatly reduced, but perpetual funding would need to be made available for the maintenance of the cemetery.

How and when an interment site can be re-used by a cemetery authority, and the notification and consultation that must occur prior to re-use, has also been clarified in the Bill.

A lack of notice or inappropriate means of communication about the expiry of an interment right can be distressing for families. The Bill imposes a requirement on cemetery authorities pre and post expiry of the interment right. At least 12 months prior to the expiry, a cemetery authority must take reasonable steps to give the holder of the interment right a written notice setting out the rights to renewal and informing the holder that if the interment right is not renewed any memorialisation on the site can be reclaimed from the cemetery authority.

Once the interment right has expired, the cemetery authority is entitled to re-use the site and remove any memorials on the site provided it has given notice of its intention to do so by public advertisement and by written notice to the relatives of the deceased and there is no objection to the re-use or two or more years have passed from the date of the notice and the right has not been renewed within that period.

There is a new requirement for a certificate of identification to be sighted before a person can dispose of bodily remains to provide greater assurance for families that the deceased is being buried in the correct site. This will be in addition to the current requirements that a cremation permit must be issued, and the remains identified, before a cremation can occur.

The Bill provides clarification in regards to processes for burial other than in a cemetery. Requests for burial on private land do occur from time to time, particularly in remote areas and on rural properties where the nearest cemetery may be hundreds of kilometres away or the person has a special connection to the land. The Bill allows this to continue subject to certain requirements being fulfilled, such as obtaining the written approval of the landowner and, if the land is within a council area, the written approval of the council. Other conditions will be able to be specified in the regulations, such as a requirement that the landowner not build or develop within a certain distance of the burial site.

Clear guidelines for the closure of cemeteries and natural burial grounds, and the conversion of cemeteries to park lands or public parks or gardens where it is no longer possible for the cemetery to continue to operate, will be introduced. A cemetery or natural burial ground may be closed if it has become unsuitable for the disposal of human remains or 25 or more years have elapsed since human remains were last interred. Before the closure can occur, the relevant authority must give notice of the proposed closure in a newspaper circulating throughout the State on two separate occasions. The Bill also sets out the procedures for dealing with exercised and unexercised rights of interment in the closed cemetery, including the issuing of any refunds.

The processes for the renewal, surrender, transfer and enforcement of interment rights are clarified in the Bill. A cemetery authority will be obliged to renew an interment right for a minimum of 5 years if the holder of the interment right requests it and has paid the fee fixed by the cemetery authority for the renewal.

Interment rights will be able to be transferred, but a transfer will only become effective once it is registered with the cemetery authority. Further, the Bill provides that if an interment right is transferred, the consideration payable cannot be for more than it would be sold by the cemetery authority. This prevents unscrupulous persons profiteering from grieving families.

If an interment right is no longer wanted, the holder of the interment right has the option of surrendering it to the cemetery authority that issued it and, if the site has not been used, receiving a refund for the surrendered right. As a result of an amendment moved in the other place, the refund will be an amount determined in accordance with the regulations.

The question of who is entitled to enforce or exercise an interment right if the holder of the right has died is also addressed by the legislation. This is currently a significant issue for cemetery authorities and the relevant person can be difficult to determine. The Bill provides that if the holder of the interment right has died, the right can be enforced by the personal representative of the deceased or, if there is no personal representative, a person determined in accordance with the regulations. Where there is no executor or administrator to deal with the interment right the regulations will set out an agreed order of precedence that can be followed by all cemetery authorities. For example, the spouse or domestic partner of the deceased would have first priority followed by the children of the deceased and then other relatives of the deceased in descending order.

Determining who is entitled to ownership of any memorialisation on an interment site has also created problems for cemetery authorities. The current law relating to ownership of memorials is complicated and confusing and relies on complex rules of descent that are part of the common law. In many instances it is not possible to determine ownership of memorials conclusively leaving cemetery authorities unable to deal with memorials attached to an interment site when the interment right expires.

The Bill changes the existing common law position so that a memorial is the personal property of the person who holds the interment right in respect of the interment site where the memorial is situated. This provision will make it easier for the cemetery authority and the public to resolve ownership issues.

The maintenance obligations of an interment right holder has also been clarified. Maintenance of a memorial will be the responsibility of the holder of the interment right unless he or she has entered into an agreement with the relevant authority under which the authority has agreed to maintain the memorial. In addition, if a memorial becomes unsafe, the authority may give the owner a notice requiring them to remove, repair or reinstate the memorial. If the work is not carried out within the time specified the authority may have the work carried out and recover the costs from the owner.

Another feature of the Bill is the record-keeping obligations imposed on the relevant authority for a cemetery or natural burial ground to ensure the preservation and accessibility of historic records when the cemetery or natural burial ground closes.

Any person will be entitled to establish a cemetery, natural burial ground or crematorium, provided they have obtained all necessary approvals under the Development Act 1993 and complied with any other relevant legislation such as the South Australian Public Health Act 2011and the Environment Protection Act 1993.

The Bill gives the relevant authority for a cemetery or natural burial ground general powers for the management and maintenance of the cemetery or natural burial ground, including the power to enlarge, improve or embellish the grounds or facilities or to restrict interments in any part of the grounds. It also imposes certain obligations, including a requirement that the relevant authority have due regard to the customs and needs of the various ethnic and religious communities that may resort to the cemetery or natural burial ground for the disposal of human remains.

This Bill is an important piece of legislation and I commend it to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides for commencement of the measure by proclamation.

3—Interpretation

This clause defines terms used in the measure.

4—Application of Act

This clause provides that the measure does not apply in relation to tissue removed from the body of a deceased person in accordance with the Coroners Act 2003 or the Transplantation and Anatomy Act 1983.

5—Relationship of Act with other laws

This clause makes it clear that the provisions of this measure are in addition to, and do not derogate from, the provisions of any other Act or law.

6—Human remains to be treated with dignity and respect

This clause expresses Parliament's intention that human remains be treated at all times with dignity and respect.

Part 2—Disposal of human remains

Division 1—Disposal by burial or cremation

7—Offence to dispose of human remains except by burial or cremation

This clause makes it an offence to dispose of bodily remains other than by burial (including placement of bodily remains in a mausoleum, vault etc) or cremation and fixes a maximum penalty of $10,000 or imprisonment for 2 years.

8—Offence to dispose of non-cremated human remains except in cemetery or natural burial ground

Subclause (1) prohibits the interment of bodily remains except in a lawfully established cemetery or natural burial ground. A maximum penalty of $10,000 or imprisonment for 2 years is fixed. However, no offence is committed if the person has obtained the approval of the Attorney-General to inter bodily remains in some other place.

Subclause (2) provides that it is permitted to inter bodily remains on land outside a township, Metropolitan Adelaide or in an area defined by the regulations if the person has the permission of the owner of the land, has the approval of the relevant council, and the interment is in accordance with the regulations.

Subclause (3) makes it an offence to bury bodily remains at sea or suffer, cause or permit this to happen, unless the person has the approval of the Attorney-General. A maximum penalty of $10,000 or imprisonment for 2 years is fixed.

This clause supersedes section 593 of the Local Government Act 1934.

9—Offences relating to cremation

Subclause (1) prohibits the disposal of bodily remains by cremation unless it is authorised by a cremation permit issued by the Registrar of Births, Deaths and Marriages. The maximum penalty is $10,000 or imprisonment for 2 years.

Subclause (2) prohibits the disposal of bodily remains by cremation except at a lawfully established crematorium. The maximum penalty is $10,000 or imprisonment for 2 years.

Subclause (3) prohibits the disposal of bodily remains by cremation if the person knows or is aware that a personal representative or parent or child of the deceased objects to this method of disposal (unless the deceased directed by will or other attested instrument that his or her remains be disposed of by cremation). The maximum penalty is $10,000.

Subclause (4) makes it an offence to dispose of bodily remains by cremation in contravention of an order under clause 11. The maximum penalty is $10,000 or imprisonment for 2 years.

10—Cremation permits

This clause empowers the Registrar to issue cremation permits authorising the disposal of bodily remains by cremation. It sets out who may make an application for a cremation permit, how the application is to be made, the documents required to support an application and the powers of the Registrar to refuse an application.

11—Power of Attorney-General, State Coroner or magistrate to prohibit disposal by cremation

This clause empowers the Attorney-General, the State Coroner and magistrates to make orders prohibiting the disposal of the remains of particular deceased persons by cremation.

Division 2—Documents to be provided before disposal of human remains

12—Documents to be provided before disposal of human remains

This clause requires a certificate of identification to be sighted and prescribed details relating to it to be recorded before bodily remains can be disposed of. Failure to comply with these requirements constitutes an offence punishable by a maximum fine of $10,000 or imprisonment for 2 years.

A person must also sight a partial certificate of cause of death, a disposal authorisation or an authorisation granted by the Minister or the Registrar, and must record the prescribed particulars relating to the certificate or authorisation before disposing of bodily remains. The maximum penalty for failing to do so is a fine of $10,000 or imprisonment for 2 years.

However, these requirements does not apply if a cremation permit has been issued for disposal by cremation

Division 3—Opening of interment sites, exhumation and re-interment

13—Offences

This clause regulates the opening of graves, the exhumation and removal of bodily remains and the re-interment of bodily remains. These activities require the approval of the Attorney-General. A maximum penalty of $20,000 or imprisonment for 4 years is fixed for engaging in such activities without approval.

However, it is not an offence to open an interment site to inter additional bodily remains if the existing remains there are cremated remains. In the case of non-cremated remains it is not an offence to open a site if additional remains can be interred without disturbing the existing remains or if a lift and deepen procedure is carried out in accordance with the regulations.

The clause also requires a relevant authority for a cemetery or natural burial ground to ensure that existing bodily remains are re-interred at a greater depth or dealt with in accordance with the regulations. The maximum penalty for not doing so is $10,000 or imprisonment for 2 years.

Division 4—Miscellaneous

14—Prohibition on giving certificate of cause of death in certain circumstances

This clause makes it an offence for a medical practitioner to give a certificate of cause of death if the death is reportable under the Coroners Act 2003. A maximum penalty of imprisonment for 4 years is fixed. The clause also prohibits a medical practitioner giving such a certificate if—

he or she, or his or her spouse or domestic partner, has a pecuniary or proprietary interest in the hospital, nursing home or aged care facility where the person died; or

he or she, or his or her spouse or domestic partner, has a pecuniary interest in the death of the person under a policy of life insurance or superannuation; or

he or she, or his or her spouse or domestic partner, is entitled to a benefit in the form of property under a will or intestate distribution.

A maximum penalty of imprisonment for 4 years is fixed but there is a defence if the defendant can prove that he or she did not know, and could not reasonably be expected to know, that he or she, or his or her spouse or domestic partner (as the case may be) had such a pecuniary or proprietary interest, or was entitled to such a benefit.

15—Handling, storage and transport of human remains

This clause requires compliance with the provisions of the regulations relating to the handling, storage and transport of human remains. A maximum penalty of $10,000 or imprisonment for 2 years is fixed.

16—Authority to inter at particular site

This clause makes it an offence to inter human remains in a particular interment site other than those of a deceased person entitled to be interred at that site. A maximum penalty of $10,000 is fixed.

17—Religious and other ceremonies not to be interfered with etc

This clause makes it an offence for a relevant authority to prevent or interfere with religious or cultural ceremonies in connection with the disposal of human remains in a cemetery, natural burial ground or crematorium unless necessary to protect the health or safety of any person. A maximum penalty of $10,000 is fixed. The clause also requires a relevant authority to allow a member of the clergy of a religion for which a portion of a cemetery or natural burial ground is set apart to have free access and admission to that area to exercise religious functions. A maximum penalty of $5,000 is fixed.

18—Disposal of unclaimed cremated human remains

This clause requires a relevant authority for a crematorium to ensure that cremated remains are released only to the person to whom the cremation permit authorising the disposal of the remains was issued or a person authorised by that person. A maximum penalty of $10,000 is fixed. However, if cremated remains are not claimed within 6 months the relevant authority can dispose of them as it thinks fit.

Part 3—Cemeteries, natural burial grounds and crematoria

Division 1—Establishment of cemeteries, natural burial grounds and crematoria

19—Establishment of cemeteries, natural burial grounds and crematoria

This clause allows the establishment of cemeteries, natural burial grounds and crematoria by any person.

20—Power of councils to establish and manage public mortuaries

This clause authorises councils to establish and manage public mortuaries. It supersedes section 585(3) of the Local Government Act 1934.

21—Establishment of mausolea within cemeteries

This clause authorises relevant authorities to establish mausolea within their cemeteries.

22—Designation of natural burial grounds within cemeteries

This clause authorises relevant authorities to set apart natural burial grounds within cemeteries.

23—Power to set apart part of cemetery or natural burial ground for particular religions

This clause authorises relevant authorities to set apart areas within cemeteries or natural burial grounds for the interment of human remains in accordance with the customs and practices of particular religions. It supersedes section 591A of the Local Government Act 1934.

Division 2—Closure and conversion of cemeteries and natural burial grounds

24—Closure of cemeteries and natural burial grounds

This clause allows cemeteries and natural burial grounds to be closed if they become unsuitable for the disposal of human remains or if at least 25 years have elapsed since the last interment of human remains. The clause sets out requirements for notice to be given before a cemetery or natural burial ground is closed and makes it an offence punishable by a maximum fine of $10,000 or imprisonment for 2 years to inter human remains after the closure or to knowingly disturb human remains interred in a closed cemetery or natural burial ground. This clause supersedes section 587 of the Local Government Act 1934.

If there are unexercised interment rights, the relevant authority may, by agreement with the holders, discharge the interment rights and give the holders a refund or a new interment right free of charge in another cemetery or natural burial ground. In relation to interment rights which have been exercised, the relevant authority may, by agreement with the holders, discharge the interment rights and issue new interment rights free of charge or move human remains to another interment site and transfer any memorial to the new site.

If the relevant authority and holder of an interment right cannot agree, the relevant authority can refer the matter to an independent party for mediation.

The relevant authority is required to make an inventory of memorials before demolishing, removing, relocating or replacing any grave or memorial. The inventory must be made available for public inspection. A maximum fine of $2 500 is fixed for a failure to do so.

25—Dedication of closed council cemeteries as park lands

This clause provides that if a closed cemetery is on land held on trust by a council or includes dedicated land under the care, control and management of a council, the council may petition the Minister to have the trust determined and have the land dedicated as park lands. If a closed cemetery is dedicated as park lands, the council may remove, relocate or replace memorials. This clause supersedes section 588 of the Local Government Act 1934. If the closed cemetery is or forms part of a State heritage place this clause will not apply and the provisions of the Heritage Places Act 1993 will apply instead.

26—Conversion of closed cemeteries into public parks or gardens

This clause allows the conversion of closed non-council cemeteries into public parks or gardens. It creates an offence of knowingly disturbing human remains interred in a converted cemetery and fixes a maximum penalty of $10,000 or imprisonment for 2 years.

The relevant authority may remove, relocate or replace memorials.

If the closed cemetery is or forms part of a State heritage place this clause will not apply and the provisions of the Heritage Places Act 1993 will apply instead.

27—Powers of relevant authorities in relation to closed cemeteries

This clause provides that the relevant authority for a closed cemetery may, for the purpose of converting the cemetery into park lands or a public park or garden—

construct roads and pathways on the land; and

erect or construct buildings or structures on the land; and

construct on or under the land any vault or other structure as a repository for human remains that are not to be removed from the cemetery for interment elsewhere; and

erect lighting, seating and any other infrastructure or public amenity; and

take such other action as the relevant authority thinks fit for laying out the land as park lands or a public place or garden.

28—Obligations of relevant authorities on closure of cemeteries etc

This clause requires relevant authorities to notify the Registrar of the closure of a cemetery or natural burial ground. It requires relevant authorities to notify the Registrar and the Environment Protection Authority of the closure of a crematorium. It also requires relevant authorities to forward records to the Libraries Board of South Australia if a cemetery, natural burial ground or crematorium is closed. The maximum penalty for failing to comply with these requirements is $5,000.

Division 3—Interment rights

29—Interpretation

This clause defines human remains for the purposes of this Division as including the remains of a human foetus.

30—Issue of interment rights

This clause deals with the issue of interment rights. It requires a relevant authority to first give a person a plain English statement setting out the matters required to be specified in the interment right. The clause sets out the obligations of a relevant authority in relation to an interment right.

31—Duration of interment rights

This clause provides that an interment right may be issued for any term or in perpetuity.

32—Renewal of interment rights

This clause confers an automatic right of renewal of an interment right for a period of not less than 5 years. A relevant authority must, at least 12 months before an interment right is due to expire, take reasonable steps to give the holder notice setting out the right of renewal and informing the holder of certain matters, including the right to reclaim a memorial if the interment right is not renewed. The maximum penalty if a relevant authority fails to comply is $5,000.

33—Transfer of interment rights

This clause provides that interment rights are transferable.

34—Surrender of interment rights

This clause provides that interment rights may be surrendered.

35—Exercise or enforcement of interment rights

This clause provides that if the holder of an interment right has died, the right may be exercised or enforced by a personal representative of the deceased, or if there is no personal representative, by a person determined in accordance with the regulations. If an interment right is held by more than 1 person it may be exercised or enforced jointly or severally.

36—Interment right not required for scattering of cremated remains

This clause provides that an interment right is not required to scatter cremated remains in a cemetery or natural burial ground.

37—Register of interment rights

This clause requires the relevant authority for a cemetery or natural burial ground to keep a register of all interment rights issued by it and specifies what records must be made. The maximum penalty for failing to do so is a fine of $5,000.

38—Re-use of interment sites

This clause permits relevant authorities to re-use interment sites in relation to which interment rights have expired. It sets out the requirements for notice which must be given prior to doing so.

Division 4—Memorials

39—Ownership of memorial

This clause provides that for the purposes of the law of this State, a memorial to a deceased person in a cemetery, natural burial ground or other place of interment is the personal property of the person who holds the interment right in respect of the interment site where the memorial is situated. However, a relevant authority may deal with and dispose of a memorial in a cemetery or natural burial ground in accordance with this measure.

40—Duty to maintain memorial

This clause makes the holder of an interment right in respect of an interment site in a cemetery or natural burial ground responsible for the maintenance of a memorial at that site unless he or she has entered into an agreement with the relevant authority under which the relevant authority has agreed to maintain the memorial.

41—Power to require repair, removal or reinstatement of memorial

This clause empowers a relevant authority to give the owner of a memorial that has become unsafe notice requiring the owner to repair, remove or reinstate the memorial. If the owner fails to carry out the work required the relevant authority can have it carried out and recover the cost from the owner. If a memorial becomes unsafe and urgent action is required, the relevant authority is not required to give notice and can go ahead and carry out the required works and recover the cost from the owner. However the powers conferred by this clause cannot be exercised if the relevant authority has itself agreed to maintain a memorial.

42—Power of relevant authority to dispose of unclaimed memorial

This clause allows a relevant authority to dispose of memorials that are unclaimed after notice has been given in accordance with the clause. It applies where 2 or more years have passed since an interment right has expired or since a cemetery is dedicated as park lands or converted into a public park or garden. The clause requires a relevant authority to keep prescribed records of memorials disposed of by it. The maximum penalty for failing to do so is a fine of $5,000.

Division 5—Miscellaneous

43—General powers of relevant authority

This clause provides that a relevant authority for a cemetery, natural burial ground or crematorium may—

enlarge the cemetery, natural burial ground or crematorium; and

improve or embellish the cemetery, natural burial ground or crematorium; and

restrict interments in any part of the cemetery or natural burial ground, except as may be required by interment rights granted before the commencement of this measure; and

take any other action that the relevant authority considers necessary or desirable for the proper management and maintenance of the cemetery, natural burial ground or crematorium.

44—Multicultural needs to be recognised

This clause provides that a relevant authority for a cemetery or natural burial ground must, in the establishment, administration, extension or improvement of the cemetery or natural burial ground, have due regard to the customs and needs of the various ethnic and religious communities that resort to the cemetery or natural burial ground for the disposal of human remains.

45—Power to restrict interments in any part of cemetery or natural burial ground

This clause empowers relevant authorities to may restrict interments in any part of a cemetery or natural burial ground (but not so as to breach the terms of an interment right).

46—Neglected cemeteries and natural burial grounds

This clause provides that if a cemetery or natural burial ground is in a neglected condition or fails to comply with the requirements of this measure, the council or designated Minister may give the relevant authority a notice requiring work to be carried out to remedy the condition of neglect or comply with the requirements. If the work is not carried out as required by the notice, the council or Minister can have the work carried out and recover the cost of doing so as a debt from the relevant authority. This clause supersedes section 589 of the Local Government Act 1934.

47—Right of review

This clause gives a relevant authority the right to apply to the District Court for a review of a decision of a council or Minister under clause 46. On a review the Court can confirm or reverse the decision and make consequential and ancillary orders and directions.

48—Power of councils to accept conveyance of cemetery or natural burial ground land from trustees

This clause allows a council to accept the conveyance of a cemetery or natural burial ground that is on land held on trust. However, a council must not accept a conveyance if under the trusts on which the council will hold the cemetery or natural burial ground, the use of the cemetery or natural burial ground is confined to the interment of the remains of deceased persons who belonged to a particular religion. This clause supersedes section 591 of the Local Government Act 1934.

49—Power of councils to assume administration of cemeteries and natural burial grounds

This clause empowers councils to assume the administration of a cemetery or natural burial ground if there is no existing relevant authority for the cemetery or natural burial ground, if the relevant authority is unknown and not reasonably ascertainable, or if the relevant authority for the cemetery or natural burial ground agrees to transfer it to the council. This clause supersedes section 590 of the Local Government Act 1934.

50—Public access to cemeteries, natural burial grounds and crematoria

This clause provides that a relevant authority must allow a person access, free of charge, at any reasonable time, to a cemetery, natural burial ground or crematorium—

for the purpose of visiting graves or monuments or conducting or attending a funeral or religious service; or

for any other legitimate non-commercial purpose.

A maximum penalty of $5,000 is fixed for a failure to comply.

If the relevant authority for a cemetery, natural burial ground or crematorium has reason to suspect that a person has committed, is committing or is about to commit an offence in the cemetery, natural burial ground or crematorium, the relevant authority may require the person to leave the cemetery, natural burial ground or crematorium. A person who fails to comply commits an offence punishable by a maximum fine of $2 500.

51—Disposal of surplus cemetery land etc

This clause authorises relevant authorities to dispose of surplus land comprising or forming part of a cemetery or natural burial ground provided that they first discharge unexercised interment rights and give the former holders a refund or issue new interments rights free of charge in another cemetery or natural burial ground.

52—Disposal of land after closure of cemetery etc

This clause provides that if a cemetery or natural burial ground has been closed in accordance with this measure and all human remains and memorials have been removed, the relevant authority may deal with the land in the ordinary course of commerce.

53—Registers, records and plans to be kept by relevant authorities

This clause sets out the registers and records which must be kept by relevant authorities and fixes a maximum penalty of $5,000 for non-compliance.

Part 4—Miscellaneous

54—Minister responsible for Crown Land Management Act 2009 to facilitate exercise of powers, functions and duties under this Act

This clause provides that if a power, function or duty under this measure is to be exercised or performed in relation to land that is dedicated land under the Crown Land Management Act 2009 or is subject to a Crown condition agreement under that Act, the Minister responsible for the administration of that Act must take such action under that Act as may be necessary or expedient to facilitate the exercise or performance of the power, function or duty under this measure.

55—Exemptions

This clause empowers the Minister to grant exemptions from specified provisions of this measure and makes it an offence for a person to contravene a condition of an exemption. The maximum penalty for a contravention is $10,000.

56—Power of Public Trustee to act on behalf of holder of interment right etc

This clause allows the Public Trustee, at the request of a relevant authority, to act on behalf of the holder of an interment right or owner of a memorial if reasonable attempts by the relevant authority to ascertain or locate the holder or owner fail. However, the Public Trustee is not required to assume any financial responsibility on behalf of the holder of an interment right or the owner of a memorial.

57—Approvals and authorisations

This clause requires approvals and authorisations of the Attorney-General or State Coroner under this measure to be in writing and allows conditions to be included. It makes it an offence for a person to contravene, or fail to comply with, a condition of an approval or authorisation. The maximum penalty is $10,000 or imprisonment for 2 years.

58—Authorised officers

This clause provides for the appointment of authorised officers by the Minister and councils.

59—Powers of authorised officers

This clause sets out the powers of authorised officers.

60—Hindering etc persons engaged in administration of Act

This clause makes it an offence punishable by a maximum $10,000 fine for a person to—

without reasonable excuse hinder or obstruct an authorised officer or other person engaged in the administration of this measure; or

fail to answer a question put by an authorised officer to the best of the person's knowledge, information or belief; or

produce a document or record that the person knows, or ought to know, is false or misleading in a material particular; or

fail without reasonable excuse to comply with a requirement or direction of an authorised officer under this measure; or

use abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or

falsely represent, by words or conduct, that the person she is an authorised officer.

61—False or misleading statement

This clause makes it an offence to make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided under this measure. The maximum penalty is $10,000 or imprisonment for 2 years

62—Statutory declarations

This clause provides that if a person is required to furnish information to the Minister or the Registrar, the Minister or the Registrar may require that the information be verified by statutory declaration and, in that event, the person will not be taken to have furnished the information as required unless it has been verified in accordance with the requirements of the Minister or the Registrar.

63—Self-incrimination

This clause provides that if a person is required to answer a question or to produce, or provide a copy of, a document or information under this measure and the answer, document or information would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless answer or produce, or provide a copy of, the document or information, but the answer, document or information will not be admissible in evidence against the person in proceedings for an offence other than proceedings in respect of the making of a false or misleading statement or declaration.

64—Offences by body corporate

Subclause (1) provides that if a body corporate is guilty of an offence against clause 9, each member of the governing body of and the manager of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the member proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

Subclause (2) provides that if a body corporate is guilty of any other offence against this Act, each member of the governing body of the body corporate and the manager of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

(a) the member or manager knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

(b) the member or manager was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

(c) the member or manager failed to exercise due diligence to prevent the commission of the offence.

Subclause (3) specifies the offences that are excluded from the operation of subclause (2).

65—Service

This clause sets out the methods by which notices and other documents may be served.

66—Regulations

This clause empowers the Governor to make regulations.

Schedule 1—Repeals, related amendments and transitional provisions

Part 1—Repeals

1—Repeal of Cremation Act 2000

This clause repeals the Cremation Act.

Part 2—Related amendments

Division 1—Preliminary

2—Amendment provisions

This clause is formal.

Division 2—Amendment of Adelaide Cemeteries Authority Act 2001

3—Amendment of section 8—Special provisions relating to Authority's powers

This clause amends section 8 to allow the Adelaide Cemeteries Authority to grant burial rights for any term or in perpetuity. Currently burial rights can only be issued for terms of up to 99 years.

4—Repeal of section 21

This clause repeals section 21 which provides that section 586 of the Local Government Act 1934 does not apply to an Authority cemetery. This measure repeals section 586 so section 21 is redundant.

Division 3—Amendment of Births, Deaths and Marriages Registration Act 1996

5—Amendment of section 4—Definitions

This clause inserts a definition of cremated remains.

6—Repeal of section 50A—Documents to be provided before disposal of remains

This clause repeals section 50A which is no necessary because this measure sets out the documents that must be provided before human remains can be disposed of.

Division 4—Amendment of Local Government Act 1934

7—Repeal of Part XXX

This clause repeals Part XXX of the Act which deals with cemeteries.

Division 5—Amendment of Transplantation and Anatomy Act 1983

8—Amendment of section 34—Regulations for the control etc of schools of anatomy

This clause makes a minor semantic amendment.

Part 3—Transitional provisions

9—Transitional provision relating to existing interment rights

This clause makes a transitional provision with respect to the term of existing interment rights.

Debate adjourned on motion of Hon. T.J. Stephens.


At 21:09 the council adjourned until Thursday 7 March 2013 at 11:00.


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