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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-03-19 Daily Xml
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BURIAL AND CREMATION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 March 2013.)

The Hon. S.G. WADE (16:45): In 1836, whilst South Australia was being founded, the Westminster parliament was grappling with the issue of cemeteries. In the early decades of the 19th century, London was heaving under a population of just over one million people. Inadequate burial space had been put aside, there was a high mortality rate and there was a serious shortage of burial space. Graveyards and burial grounds were crammed in between shops, houses and pubs. There were cases of undertakers dressed as clergy performing unauthorised and illegal burials. Bodies were often wrapped in cheap material and buried amongst other human remains in graves just a few feet deep. Quicklime was often thrown over the body to help speed decomposition so that within a few months the grave could be used again.

The smell from these disease ridden burial places was horrific. They were overcrowded and neglected. Something had to be done, even if only on public health grounds. In 1836 an act of parliament was passed creating the London Cemetery Company and seven new private cemeteries were opened in the countryside around the capital. That same year the South Australian province was established.

In that context it is not surprising that our first cemetery, West Terrace Cemetery, was established a mere six weeks after the proclamation was read at Glenelg in December 1836. Colonel Light allocated this section of the Parklands as cemetery grounds in his original survey. It is estimated that about 500 people were buried here before proper records were even kept. Since then, I understand more than 150,000 people have been buried on the 27.6 hectare site on West Terrace.

Here we are 175 years later, and we have a burial and cremation bill before us. The bill is a significant reform of the regulation of burial and cremation in South Australia. These activities are currently covered by an array of acts and regulations, covering different aspects of the industry. Council operated cemeteries and burial in council areas are regulated by part 30 of the Local Government Act 1934. The Local Government (Cemetery) Regulations 2010 made under the Local Government Act 1934 govern exhumations, reinterments and the powers of cemetery authorities.

Disposal of human remains by cremation is regulated by the Cremation Act 2000 and the Cremation Regulations 2001. Privately owned cemeteries such as church cemeteries are largely unregulated in terms of cemetery management provisions and the length of tenure for interment rights. However, the establishment of new 'private' cemeteries is regulated under the Development Act, general law and public health legislation.

The opposition's view is that the bill is to be welcomed in terms of consolidating the law, making the law more accessible and making the law more comprehensible to South Australians. For a funeral industry that is already operating within national best practice, it provides more consistent coverage and a progressive development of our laws.

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. While a more integrated regime is to be welcomed, it must be acknowledged that it is not exhaustive. For example, Aboriginal remains are accorded special protection under the Aboriginal Heritage Act, sections 20 and 21.

The review of the legislation governing burial and cremation in South Australia was the subject of two select committee inquiries: the 1986 Legislative Council Select Committee on the Disposal of Human Remains, which tabled its report in parliament; and the 2003 House of Assembly select committee. The main recommendations of the 2003 select committee were the creation of a single act regulating burial and cremation, the removal of the 99-year limitation on interment rights in public cemeteries and the creation of a better system of identification of human remains before disposal.

This bill builds on the work of these committees and the consultation since, including consultation on a draft bill. The government has not accepted the recommendation of the select committee that a statutory authority be established to oversee the application and enforcement of the recommendations. The opposition does not disagree.

I commend the government for the constructive engagement with stakeholders and the community to resolve some significant concerns with both the consultation draft bill and the tabled bill. However, there are some concerns remaining which I will address later.

A key recommendation of the 2003 committee implemented by this bill is that the current 99-year limitation on interment rights in public cemeteries be lifted. Interment rights in perpetuity are offered in New South Wales, Queensland and Victoria. Under this bill, cemetery authorities in South Australia will be able to offer perpetual tenure if they wish. They will not be obligated to do so, and I expect that these rights will not be available to all cemeteries and will be relatively expensive.

There is a shortage of available land in the metropolitan area. To offer perpetual tenure on all gravesites is not likely to be either viable nor, for that matter, demanded by all holders. I expect that placement in a country cemetery will continue to be the most affordable option for South Australians seeking perpetual plots. However, for some people, and in particular for members of the Islamic and Jewish faiths, perpetual burial is an important value. I take this opportunity to acknowledge that other aspects of the legislation allow for greater accommodation of the religious sensitivities of our increasingly diverse South Australian community. I warmly welcome that fact.

For example, under current law, a body transported to a cemetery must be in an enclosed container, such as a coffin. That does not accord with the wishes of people from, say, the Muslim community and other people who want a natural burial, where they want the body in a shroud, not in a coffin. I also note and welcome the provision for the offering of closing of cemeteries to the relevant religious groups.

One area of ongoing concern is in relation to the surrender of interment rights. If an interment right is no longer wanted and the site has not been used, the original section 34(2) of the bill entitled the holder of the interment right to the option of surrendering it to the cemetery authority that issued it and required the relevant cemetery authority to refund to the former rights holder of a surrendered unexercised right of interment the amount which is equal to the current fee payable for that interment right, less a reasonable fee for administration and maintenance costs.

It is noteworthy that, in the event of a cemetery closing, unexercised interment right holders are entitled to 'a refund equal to the current fee payable with the holder of such an interment right'. That is dealt with under section 24(7). The Cemeteries and Crematoria Association of South Australia has argued that section 34(2) should provide to allow for a cemetery authority to deduct a proportion of the establishment costs of the cemetery from the refund on the basis that the original proposal did not allow adequate cost recovery.

The Attorney moved amendments in the House of Assembly which allow refund amounts to be determined in accordance with the regulations. I am informed that stakeholders welcome the fact that the refund amount will not be specified in the bill, but I would warn them that their joy could be short-lived. If left to regulation, the government could simply impose exactly the same formula by regulation.

While stakeholders would have preferred the refund requirement to have been removed entirely, I do accept that they are happy with the regulations, if you like, as a halfway house. The Attorney asserted in the other place that it is a complex matter that he and his advisers have been unable to resolve. He says that he does not want the passage of the bill to be held up as they try to resolve this. He has given an undertaking on the record that his intention is that the matter will be the subject of thorough consultation before a regulation is made. I make the point that this bill has already been the subject of thorough consultation.

The range of issues resolved thus far show that there is goodwill between the government and the industry, yet, in spite of that goodwill, a resolution on this issue has not been achieved at this point. So I ask the government: on what basis does it consider that a resolution can be achieved by consultation leading to a regulation? Why does the government think that the matter no longer warrants a statutory provision?

The opposition is more inclined to the government's original position, that is, that this is a matter appropriate for statutory provision. Rather than handball a hot potato to the executive to resolve and enact by regulation, the opposition considers that the parliament should consider the issue and try to find a workable way forward.

Similarly, the Cemeteries and Crematoria Association of South Australia argues that the transitional provisions of the bill will allow the holders of unexercised interment rights granted before the bill's enactment to take advantage of section 34(2) and that this will create a huge financial burden on cemeteries. I am advised that one leading cemetery could be liable for up to $19 million in refunds on its 7,000 sites if the refund was at the current rate without deductions. I indicate that the opposition seeks to explore the issue of retrospectivity with a view to considering amendments. We would welcome the government's comments at the second reading stage.

Members will not be surprised that I indicate our concern in relation to section 63, a section which abrogates the privilege against self-incrimination. This clause essentially places an obligation on persons to answer questions or produce documents that would otherwise incriminate them but makes the person liable for a penalty if they fail to do so or, in providing it, give false or misleading information. The opposition is very cautious about moves against this privilege. We have supported such moves in the past but only where there are strong policy grounds to do so.

Following questions from the honourable member for Bragg in another place—in relation to whether anyone in the industry or stakeholders was consulted, whether anyone asked for this provision or whose idea was it—the Attorney-General said:

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

Later in his remarks the Attorney says:

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

I make no reflection on parliamentary counsel. The point I am trying to highlight by that quote is that where the opposition actually looks for strong policy grounds for abrogating the principle against self-incrimination, apparently in this instance it was not policy grounds, it was a drafting suggestion which was then incorporated. I assure the council that the opposition remains concerned about maintaining the privilege against self-incrimination unless there are good grounds to do so. We would like comments from the government as to whether it is in fact necessary in this case.

I also indicate opposition concerns in relation to the penalty on medical practitioners in relation to certification of death. The Law Society of South Australia and the Australian Medical Association have made submissions in relation to section 14 of the bill which prohibits the issuing of certificates of cause of death in certain circumstances or where the medical practitioner has an interest.

The associations argue that the penalties contained in the proposed section are too high and that at least part of the conduct is already regulated by the Coroners Act and the Births, Deaths and Marriages Registration Act. The AMA argues that the maximum penalty of imprisonment for four years for not complying with the section is too high. Additionally, the AMA argues that doctors should be protected from failing to comply with section 14 if their failure is due to administrative oversight or was done in good faith.

The AMA notes that the penalties for a doctor who does not comply with similar requirements under the Births, Deaths and Marriages Registration Act 2002 faces a maximum penalty of a $1,250 fine and noncompliance with the Coroners Act 2003 creates liability for either a $10,000 fine or imprisonment for two years. I would appreciate the views of the government on this issue at the conclusion of the second reading stage. In conclusion, I look forward to further consideration of the bill and commend the bill to the council.

The Hon. R.P. WORTLEY (16:59): I rise to address the Burial and Cremation Bill. This bill repeals both the Cremation Act 2000 and sections 585 to 596 of the Local Government Act 1934. The bill envisages a single regulatory framework that will cover all public and private cemeteries and crematoria. This is the result of many years of work—the work of two select committees and a number of government agencies, and a range of interested parties, among them representatives of peak bodies related to cemeteries and crematoria, funeral directors, local government, monumental masons and religious organisations, as well as individuals.

While the bill acknowledges the wisdom of previous legislation in that it contemplates disposal of human remains by burial, which encompasses placement of the remains in a vault or mausoleum, or by cremation, it also it looks ahead to the increasing interest in alternatives to burial and cremation. Burial requires land, and land is rare and costly; preservatives and other chemicals and materials used in and/or near the remains can affect the watertable; and grave and cemetery maintenance is expensive. Cremation, meanwhile, uses enormous volumes of non-renewable energy.

According to The Economist, published on 16 September 2010, a study conducted in 2007 for Centennial Park found that cremations produced the equivalent of 160 kilograms of carbon dioxide per body. A cemetery burial emits a mere 39 kilograms, but maintenance (for instance, mowing lawns and the like) makes the ultimate carbon footprint of burial bigger than cremation. Both tend to make extravagant use of coffins made from valuable hardwoods, such as oak and mahogany, and also unpleasant chemicals abound.

A paper published in the Journal of Environmental Health in 2008 warned about the public health risks of certain chemicals leaking from cemeteries into groundwater. I will not quote further from this article, which goes into considerable and quite fascinating detail about burial and cremation by-products. It does seem likely, though, that, given the community's increasing concern about climate change and the risks of environmental impacts on our air, water and soil, some of these new methods may well be introduced in our lifetime.

Briefly, they include water cremation (also known as alkaline hydrolysis), which uses potassium hydroxide at low temperatures to break down the body; and ecological burial, where the body is frozen, vibrated and reduced to powder, which is buried in mulch-forming layers of soil to become compost within a year.

The beauty of the bill before us is that it allows the introduction of these and other new technologies to be managed by way of regulation, which I consider to be extremely forward thinking. Other measures within the bill include:

a new discretion for cemeteries to offer perpetual tenure on grave sites, as well as limited tenure rights; currently limited to 99 years;

new identification requirements prior to the disposal of human remains;

clarification of the processes for natural burial and for burial other than in a cemetery;

clarification of guidelines for the closure of cemeteries or natural burial grounds and their conversion to public open space;

clarification of the processes around renewal, surrender, transfer and enforcement of interment rights, including the exercise or enforcement of an interment right if the rights holder has died;

clarification of the ownership of any memorial on an interment site and of the maintenance responsibilities of a rights holder; and

the conferral on a cemetery or natural burial ground of powers of management and maintenance, as well as obligations, among them being to recognise the customs and requirements of ethnic and religious communities in disposing of their dead.

Of course, accurate record keeping is a paramount concern when it comes to the disposal of human remains, whatever the method. Customs, rituals and practices around dying and death are part of our history, just as much as the exploits of the living.

Just last year, in my capacity as minister for local government, I was able to take an extensive tour of the Pere Lachaise Cemetery in Paris. It is estimated that a million people visit the cemetery every year to visit the graves of cultural icons such as Edith Piaf, Oscar Wilde and, of course, Jim Morrison. This influx of visitors, combined with the very limited amount of land remaining for new burials, poses some real challenges for the Paris authorities. This gave rise to some very interesting discussions about the management of such an area but also caused me to reflect on the fact that the graves reflect their era—from the simple resting place of the poor to the gothic graves of the 19th century and the stunning art deco of Oscar Wilde's tomb.

I considered too how much the graves provided a narrative of French history. Just as an example, the decision to bury all people together reflects a longstanding view that citizenship, rather than adherence to a particular religion, is the chief determinant of core French identity. I gather that Napoleon Bonaparte, who ordered the opening of the cemetery in 1804, reputedly said that 'every citizen has a right to be buried regardless of race or religion'.

As the population of Paris becomes more diverse, French authorities are under increasing pressure to introduce separate sections for different religions and faiths, something that we here in South Australia have encompassed since the start of the colony. Our cemeteries have Afghan, Anglican, Buddhist, Catholic, Islamic, Jewish, Lutheran, Orthodox and Quaker sections. They are laid out with what appears to us to be admirable acceptance and liberalism for their times. As I said when I addressed the Australian Cemeteries and Crematoria Association Conference in October last year:

Along with our use of cemeteries and crematoria to provide a crucial service, we need to accept our responsibility in acting as custodians of these places.

This bill takes up these responsibilities in a careful and forward-thinking fashion and I commend its terms and its intentions to the chamber.

Debate adjourned on motion of Hon. K.J. Maher.

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