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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-04-10 Daily Xml
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BURIAL AND CREMATION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 March 2013.)

The Hon. J.A. DARLEY (17:39): I rise very briefly to speak on the Burial and Cremation Bill which repeals the Cremation Act and part of the Local Government Act in order to create a single comprehensive regulatory scheme that will cover all cemeteries and crematoria.

I understand that this bill has been a long time in the making and that there is broad support for a single act to replace the approach taken by existing legislation. That said, there are also a number of objections to some of the proposals which are still being addressed by way of amendments. I am still rather intrigued that this bill has not been the subject of much more noise and it does make me wonder how extensive the public consultation process has been.

Whilst I support the intent of the bill, I have sought clarification from the minister's office with respect to a couple of matters that, on first reading, stood out to me as potentially problematic. Those issues include the provisions relating to cemeteries being closed and subsequently converted to parklands or gardens and the removal of the 99-year limitation on interment rights.

In relation to the first issue, the bill provides that a cemetery may be closed if it has become unsuitable for the disposal of human remains or 25 years or more have elapsed since human remains were last interred. Before the closure can occur, the relevant authority must give notice for the proposed closure by way of advertising in the newspaper on two separate occasions.

In terms of unexercised rights of interment, the bill proposes that the relevant authority may, by agreement with the holders, discharge the interment rights and give the holders a refund or offer them a new interment right free of charge in another cemetery. It is this aspect of the bill that I am most concerned about. There are many instances where a couple, a mother or father and child, or siblings, pass away many years apart. This is particularly so for parents who have the most difficult and unenviable task of burying their own child. In those situations it would be normal for parents to want to be buried together or alongside their child when their time comes. This bill has the potential to prevent this from happening.

I think most people in this situation would not care less about being issued a refund or offered an alternative burial site in another cemetery. I know I would not. All they would want is to be able to carry out what was first envisaged by them when they entered their agreement with the cemetery. Whilst the ability to have the already deceased person's remains exhumed and relocated to another cemetery in order to be laid to rest together may be an option for some, it would not be acceptable to many, particularly if they are of certain cultural or religious beliefs. I acknowledge that if a cemetery has been lawfully consecrated according to the rights or practices of a particular religious group, the owners of the land are obliged to offer the closed cemetery or burial ground as a gift to that group.

Further, the government has proposed an amendment that would require councils to provide the minister with details of any representations or submissions made to the council in respect of the closure. These are both steps in the right direction, but they do not, in my view, go far enough. Again, in the instance of parents who have buried their child or a partner who has lost their spouse, they may have no religious affiliations, but morally and ethically they may still strongly object to not being buried with their loved one or disturbing their loved one's final resting place.

Twenty-five years is not in the grand scheme of things a long time. Perhaps what ought to be reviewed is that time period. I understand that while similar provisions apply under the current act, none of our cemeteries have ever been converted to parklands, but I would be interested to know how many cemeteries these provisions could affect. Can the minister advise an estimate of the number of unexercised interment rights that could be refused burial on the basis that 25 years have passed since the last interment? Where cemeteries are closed and subsequently converted to parklands or gardens, there is also the question of what happens to any memorials that are removed or replaced as opposed to being relocated.

In addition, I do not think that providing an inventory for public inspection goes far enough. I think that some sort of plaque, list or map ought to be erected at the park itself so that people are able to locate where their loved ones are buried. During my discussions with the minister's office, I suggested that perhaps GPS tracking technology could be used to map out individual gravesites when a cemetery is earmarked for closure and conversion to parklands. Since then, I have been advised by the minister's office that basically that technology is not sophisticated enough to pinpoint individual gravesites within a metre or so of each other.

The Hon. S.G. Wade: Technology might be improving.

The Hon. J.A. DARLEY: Sure. I would be grateful if the minister could elaborated on this a little further. The second issue relates to the 99-year limitation on interment rights. Under the bill, 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 a limited tenure of five years.

I am pleased to see that the bill contains transitional provisions so that any interment rights granted before the commencement of the relevant provisions will be taken to have been granted under this act but, overall, I am still concerned about the uncertainty this bill would create, particularly when dealing with an issue as sensitive as death. As I said at the outset, I agree with having a single comprehensive regulatory regime for burial and cremation, and I do not intend to stand in the way of that. However, I think that it is important that consideration is given to the factors highlighted in order to ensure that we get the bill right.

I look forward to receiving clarification from the minister in relation to the points I have raised, and I also look forward to the committee stage debate. If I have the support, I will move to amend the provisions that relate to the closure of cemeteries so that they reflect a more appropriate time frame.

The PRESIDENT: The Hon. Mr Brokenshire will be heard in silence.

The Hon. R.L. BROKENSHIRE (17:46): Thank you, Mr President. This will not be a long second reading speech but, given that I talk slowly, it will take a few moments. I rise on behalf of Family First to support the second reading of the bill. From our perspective, one of the important aspects is the success of part of the Jayden's Law campaign embodied in this bill, which I will come to.

I thank the Hon. Stephen Wade for a good history lesson on cemeteries and his contribution on aspects of the bill. Burial and cremation have spiritual significance for many South Australians of various religious backgrounds. Anecdotally, I understand that cremations are increasingly popular, which to some extent will reduce the need for earth for burial in the future.

I want to talk about the removal of rights in criminal law. Family First shares the concerns the Hon. Stephen Wade has about self-incrimination in clause 59 of the bill, which relates to powers of authorised officers. Honourable members should look at every bill containing powers for authorised officers. Clause 59(1)(g) provides that authorised officers have the following power:

...require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters;

Further to what the Hon. Mr Stephen Wade has said, it is not just an abrogation of the privilege against self-incrimination; it is an abrogation of the right to silence. I iterate the Hon. Mr Stephen Wade's concerns about the evidence for why we need this. We reserve our right to reject parts of clauses 59 and 61, subject to what the government says during the committee stage.

With respect to Jayden's Law, I put on the record that Family First has discussed with the government how to implement some of the desires of the Jayden's Law campaign. As my colleagues would know, Tarlia Bartsch from Port Lincoln lost her unborn child to stillbirth before 20 weeks (19 weeks, from memory) and has sought recognition in the form of a birth certificate. There is a bill before the parliament to debate that matter.

In the context of burial rights, the campaigners want some assurance that they will have the right to bury the remains of their child. Anecdotally, cemeteries are accepting the remains of children who have not met the legal definition of stillborn child, that is, after 20 weeks gestation. Clause 29 of the bill provides that 'human remains includes the remains of a human foetus (other than a still-born child)'. We welcome that and congratulate the government for making it clear at law that cemeteries can receive those remains. I understand from a briefing I had with the Cemeteries Authority's CEO that in practice it does occur in any case, but it is good to put it in legislation.

Members have received lobbying on natural burial which we are sympathetic to and we will consider that at committee stage. In relation to graves in perpetuity, the Hon. Mr Stephen Wade has spoken about accepting the 2003 committee recommendations on abolishing 99-year limitations on interment rights, bringing us into line with other states. We have some facts on this issue to illustrate the merits of that arrangement.

The Adelaide Cemeteries Authority has discontinued 546 plots in the Cheltenham Cemetery due to non-payment of lease fees and none in Enfield Memorial Park, West Terrace Cemetery or Smithfield Memorial Park. They note that 30 per cent of those plots in the Cheltenham Cemetery never had a headstone erected. With the number of lease renewals required at Cheltenham Cemetery now up to 7,639 for 2013—up from 6,438 in 2010—only 42 renewals have been paid, which equates to just 5.49 per cent.

Enfield Memorial Park has 3,023 lease renewals due but only 25 were paid this year to date, and historically the renewal levels have tracked down in the last three years from 11.31 per cent to 6.23 per cent. West Terrace Cemetery has 19,000 expired leases but, at most, 29 were paid in any given year in the last four. Those figures demonstrate that there is merit in perpetual leases as very few are being renewed in practice, and I am told that in practice the cemeteries are not looking to enforce it.

Plots can of course be re-used by exhuming the remains, repositioning them deeper at what the cemeteries call the dedicated ossuary level, then burying someone else on top. I conclude my remarks with the cemetery for the south and I place on record that Family First desire, and will continue to put effort into seeing, a cemetery planned and erected somewhere in the south. People want to see that occur.

I met with the Cemeteries Authority after obtaining the information I have referred to under FOI, and I am comfortable with their policy on these matters. With those comments and some concerns about the powers that exceed police powers, we support the second reading and reserve our options to support amendments to the bill during the committee stage.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:52): I thank honourable members for their contributions in this debate. I note that there have been some very important questions asked and I look forward to the minister coming back at clause 1 on another day to answer those questions. With that, I commend the bill to the house.

Bill read a second time.

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