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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-04-11 Daily Xml
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BURIAL AND CREMATION BILL

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: Members raised a number of questions during the second reading stage of this legislation, and I would like to address the issues that I am able to before we move on to debating individual clauses. This bill has been subjected to considerable public consultation, firstly, by two select committees into the burial and cremation industry and, secondly, by the government.

A draft bill was released for a two-month consultation in May-June last year, and a copy of the bill and explanatory notes were sent to major industry bodies, government departments and other interested parties. These documents were also placed on the Attorney-General's Department website so that any other interested party could make a submission. Further consultation also occurred during the drafting process and on the introduced bill. I also note that in the other place the industry has been very supportive of this bill and has welcomed the government's commitment to engage with them on this important piece of legislation.

The Hon. Mr Wade asked the government to comment on some particular aspects of the bill. His concerns related to the surrender provision and the retrospectivity of that provision, the penalties for medical practitioners in relation to certificates of death, and the self-incrimination provision. I note that the Hon. Mr Brokenshire has also raised similar concerns about self-incrimination.

In the other place an amendment was made to the bill which allows refund amounts to be determined in accordance with the regulations. This amendment was in response to further concerns from the industry about the introduced bill, that the ongoing viability and future development of cemeteries would be at risk if a portion of the establishment costs, which are part of the original costs of the site, could not be recouped upon the surrender of an interment right.

The government's concern with simply amending the clause to allow for a further reduction for establishment costs, is that the term 'establishment costs' could be interpreted very broadly. This could potentially defeat the intention behind the section, which is aimed at striking a balance between protecting the interests of consumers and protecting the interests of cemeteries to ensure that they do not become insolvent.

The government is considering options on how best to achieve this, including whether it might be possible to structure the refund so that a percentage is returned to the former holder after the interment right has been re-sold. As noted in the other place, it is a potentially complicated issue but one that the government believes can be resolved in the regulations after further consultation with the industry so that the passage of the bill is not delayed any further, an approach, I might add, that the industry is very happy with.

As the existence of grave sites and the purchase of interment rights is not a new phenomenon, some of the provisions in this bill will apply to current interment right holders who purchased an interment right prior to the legislation coming into force. Otherwise, if it were only to apply to future interment right holders issued after the commencement of the legislation much of the bill, including provisions relating to the re-use of grave sites and consultation requirements upon expiry of interment rights, would have no practical implication for years to come.

The self-incrimination provision was inserted into the bill because the government recognises the importance of the need to obtain information in relation to serious issues, such as the unauthorised destruction of human remains and the mishandling of human remains. However, in fairness to the person providing the information, clause 63 restricts the use to which the information could be put. Consequently, clause 63 provides that where a person is required to answer a question or provide a copy of a document or information under the act, that the answer document or information is not admissible in evidence in proceedings against the person for an offence, other than proceedings in relation to the making of a false or misleading statement of declaration. Therefore, clause 63 aims to strike a balance between the common law privilege against self-incrimination and the fact that there is a public interest in investigations being able to obtain sufficient information to investigate breaches of the act.

The Hon. Mr Wade also raises the concerns of the South Australian branch of the Australian Medical Association in relation to the penalties in clause 14 of the bill. Clause 14 reflects current provisions in the Cremation Act 2000, so they are not obligations for medical practitioners. Section 6(4) of that act prohibits a doctor from certifying that a deceased died from natural causes if the state Coroner or police are required to be notified of the death under the Coroners Act; that is, if it is a reportable death. Section 6(5) of the act prohibits a doctor from issuing a certificate of cause of death if the doctor stands to benefit financially from the death.

A medical practitioner who issues a certificate of death holds great responsibility and great power in their hands. If a death certificate is issued stating that the deceased died of natural causes, when suspicious circumstances are present, it allows for a cremation permit to be obtained to destroy the body, which would put the body beyond the reach of a police investigation and the associated evidence.

Therefore, the government considers that there is a strong public interest in creating this strong deterrent to prevent medical practitioners from misusing that power and aiding in the cover-up of crime, for instance. The increase in the maximum penalty for the offence in clause 14(1) is consistent with the penalty for the offence in clause 14(2). If a medical practitioner's breach of clause 14 is the result of an administrative oversight or there are other mitigating factors present then the court will take that into account in determining an appropriate penalty. Further, it is important to note that four years imprisonment is the maximum penalty and is reserved for the most serious breaches of the act.

The Hon. John Darley also sought clarification on matters relating to the closure of cemeteries and their conversion to public parks or gardens. Provisions regulating the closure of a council cemetery are currently set out in section 587 of the Local Government Act 1934, which provides that a cemetery or part of a cemetery may be closed if it is considered no longer suitable for burial purposes. Section 588 further provides that a closed cemetery may be dedicated as parklands. In respect of private cemeteries, such as those operated by religious groups, how the cemetery can be closed and the procedures that must be followed is not regulated.

Clauses 24 and 25 of the bill expand on the current requirements, setting out the steps that must be followed before any cemetery or natural burial ground can be closed and converted into parklands. These provisions ensure that if a cemetery does have to close for whatever reason, all parties know what their rights and obligations are.

A cemetery or natural burial ground may be closed if it becomes unsuitable for burial or if 25 or more years have elapsed since human remains were last interred. However, before the cemetery or natural burial ground can be closed, notice of the proposed closure must be given on two separate occasions, the first being at least 18 months before the proposed closure, and the closure of the council cemetery must be approved by the minister.

Clause 24 also sets out the procedures for dealing with unexercised and exercised interment rights within the closed cemetery. The honourable member has queried whether this could mean that a family member could no longer be buried with another family member. It is possible that any existing cemetery may be closed, thereby preventing a person from being buried with their spouse or child or some other family member. That occurs currently. However, there are steps that must be taken before a cemetery can be closed and converted into parklands, which would allow such considerations to be taken into account.

First, closure of a council cemetery must be approved by the minister. I intend to move an amendment to ensure that the responsible minister is made aware of any objections to the proposed closure before any approval can be given. Second, if the cemetery is closed, the cemetery authority may come to an agreement with the holder of the interment right to move any remains interred in the closed cemetery to another cemetery administered by a relevant authority, thereby allowing family members to still be interred together. Third, subclause (11) provides that if a cemetery or natural burial ground has been lawfully consecrated according to the rights or practices of a particular religious or ethnic group, the owners of the land must offer the closed cemetery or natural burial ground as a gift to that group. This allows those groups to take over the custodianship of that part of the cemetery if they wish.

The Hon. Mr Darley also asked for 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. The major cemetery operations in Adelaide would be the only ones from which this information would be easily obtained, and they are still conducting interments on a weekly if not daily basis. Those cemeteries that have not had interments for at least 25 years would be small council cemeteries or private cemeteries and the information sought would not, I think, be readily available, particularly where record-keeping has been erratic.

The Hon. Mr Darley also questioned what happens to any memorials that are removed or replaced when a cemetery is closed and converted into parklands and whether GPS tracking technology could be used to map out individual graves so that a plaque or map of some kind could be erected at the park itself in order for people to locate where their loved ones are buried.

Clause 42 of the bill sets out the powers of a relevant authority to dispose of a memorial. For example, if two or more years have elapsed since a cemetery was dedicated as parklands or converted into a public park or garden, the relevant authority may remove the memorial and dispose of it as it thinks fit provided that it has given notice of its intention to remove and dispose of the memorial by public advertisement, written notice affixed to the memorial, written notice to the owner of the memorial, and six months have elapsed since the authority gave such notice.

The question of GPS mapping was raised with industry representatives. It is my understanding that, although advanced GPS tracking can be accurate to within centimetres these days, unless the cemetery has detailed records of grave locations, it would require considerable resources to locate all of the graves in a cemetery and then map them using GPS technology. Even then, if the record-keeping has been erratic, you may only be able to identify that a person is buried at a particular location but not who that person is.

The Hon. T.A. FRANKS: I have a question on clause 1. When the government put forward this definition of 'natural burial', why did it not include a clause to specify a single depth burial?

The Hon. G.E. GAGO: The bill does not regulate whether or not a gravesite should be for a single burial or allow for multiple burials in one gravesite. It is up to the relevant authority of the cemetery or natural burial ground to make that determination, provided they comply with the requirements in the regulations about the depth of those interments in the earth.

For example, under the current cemetery regulations, any remains interred in the cemetery are at a depth of less than one metre from the surface of the ground, unless the remains are interred in a vault. Requiring there to be a minimum level of earth above the last burial—whether it be one burial or three—is a public health and safety issue. At the moment, it is set at one metre; however, the government is happy to consider submissions on whether this requirement should be changed during the drafting of the regulations.

Clause passed.

Clauses 2 to 11 passed.

Clause 12.

The Hon. G.E. GAGO: I move:

Page 12, line 12—Delete 'human' and substitute 'bodily'

This is simply a technical amendment to replace the term 'human' with the term 'bodily' in the heading of part 2, division 2 of the bill so that the heading is consistent with the amendments made in the other place to address industry concerns about the definition of the term 'human remains' and its use throughout the bill.

Amendment carried; clause as amended passed.

Clause 13 passed.

Progress reported; committee to sit again.

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