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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-02 Daily Xml
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BURIAL AND CREMATION BILL

Committee Stage

In committee.

(Continued from 11 April 2013.)

Clause 14.

The Hon. S.G. WADE: I move:

Page 14, line 23 [clause 14(1), penalty provision]—Delete 'Imprisonment for 4 years' and substitute:

$10,000 or imprisonment for 2 years

This clause relates to a doctor's requirement to report a death and the consequence of issuing a death certificate in circumstances where the death should have been reported under the Coroners Act 2003. During the opposition's consultation on the bill we received feedback from the Australian Medical Association (South Australia) and the Law Society of South Australia. Both stakeholders made representations to us that the penalties prescribed by clause 14 of the Burial and Cremation Bill 2012 were unduly harsh on medical practitioners. The AMA(SA) considers that:

...a maximum penalty of four years is too high in either the circumstances indicated in 14(1) or 14(2), but particularly in the case of 14(1), which relates to a medical practitioner giving a certificate of death if the death is a reportable death under the Coroners Act.

The AMA(SA) notes that the penalties for a doctor who does not comply with the 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 creates liability for either a $10,000 fine or imprisonment for two years maximum. The amendment standing in my name will make the prescribed penalty consistent with that prescribed by the Coroners Act for a similar offence. The AMA(SA) and the Law Society both support the amendment as it ensures that penalties for similar offences remain consistent. I commend this amendment to the council as it ensures that penalties for like offences remain consistent.

The Hon. G.E. GAGO: The government supports the amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 14, line 24 [clause 14(2)]—Delete 'if' and substitute 'knowing that'

This clause relates to where a medical practitioner gives a certificate of cause of death if they have a direct or indirect interest whether proprietary, pecuniary or beneficial. Clause 14(2) is modelled on section 6(5) of the current Cremation Act, which precludes a medical practitioner from issuing a certificate with respect to cremation if the medical practitioner knows that they have a pecuniary interest in relation to the deceased. The provision in section 14(2) expands upon the existing provisions of the Cremation Act, expanding the scope of benefit or interest considered to include a pecuniary or proprietary interest in the hospital, nursing home or aged-care facility where the person died, and also expanding the provisions to include not only the medical practitioner but their spouse or domestic partner.

The issue of knowledge in the context of, shall we say, the institutional relationship is a challenge. The issue of knowledge in relation to, particularly, interests of your spouse or domestic partner is also a significant expansion of the interests that have been covered. In that context the opposition is very concerned that the key difference between the Cremation Act and this clause is that under the Cremation Act to commit an offence you need to know about the interest, you need to be aware of the relevant interest, but under this bill the government says that you can be guilty of an offence if you have the interest—you do not even need to know of the interest.

These are serious penalties. The penalty here is up to four years' imprisonment and yet, for such a serious offence, the bill seeks to shift the onus of proof from the prosecution to the medical practitioner. The government will say that they are proposing a defence later in the clause but I ask the house: why should a medical practitioner acting in good faith have to prove a reasonableness defence? The AMA argues that:

...protections for medical practitioners under Section 14 of the Burial and Cremation Bill should err on the side of being stronger rather than weaker, as we are confident that in the overwhelming majority of cases in which a medical practitioner might give a certificate of death in prohibited circumstances, it would be a genuine error, in which the medical practitioner was acting in good faith.

The amendment standing in my name seeks to achieve that objective by ensuring that the medical practitioner would only fall foul of the provision if they were not acting in good faith. In a letter to me, the AMA states:

As has been acknowledged, a medical practitioner may not be aware of a possible benefit/interest on the part of themselves or a spouse. For example, provisions in a will may be unknown.

As initially drafted, the Bill places the burden of proof on the medical practitioner to prove that they did not know or could not reasonably be expected to know of the benefit/ interest.

We are unsure of what the term 'property' would encompass in this context, noting that it is not defined in the Bill, and an oversight may occur in such a context as, for example, an item of low financial worth, for example, a pot plant or a family pet requiring a home.

In a small town a medical practitioner based in the town may potentially have business/personal dealings with all patients to a greater or lesser degree eventually.

Further, medical practitioners may have other links, for example, they may serve on charity boards, and a charity may own an aged care facility.

Similarly, a letter from the Law Society dated 1 May states:

4. For the reasons that follow, the Society welcomes the proposed amendments to clause 14 of the Bill.

5. In our submission of 22 January 2013, the Society noted that medical practitioners are already required to promptly report deaths in accordance with s 28 of the Coroners Act 2003 and the maximum penalty for not doing so is $10,000 or imprisonment for 2 years. The Society agreed with the AMA's comment that the maximum penalty of four years is too high, particularly when there are existing laws and penalties that regulate this type of conduct.

If I could pause there, that related to the first amendment. The following statements relate to the amendment the council is now considering:

6. Deleting the word 'if' and replacing it with 'knowing that' improves the operation of clause 14(2) by providing a defence to a medical practitioner, in particular when a medical practitioner is unable to ascertain if there is a pecuniary interest or interest under a will with respect to themselves, their spouse or domestic partner.

7. The Society also notes the following points raised for consideration by the AMA:

a. the term 'property' may be unclear in this context, noting that it is not defined in the Bill;

b. in rural areas, a medical practitioner may potentially have business and/or personal dealings with most of their patients to a greater or lesser degree; and

c. a medical practitioner may have other links to a hospital, nursing home or aged care facility, for example they may serve on a charity board, and the charity may own the hospital, nursing home or aged care facility.

So, two of the key stakeholders, both the medical and the legal in relation to this provision believe that the current practice of the legislation—in other words, to only create an offence where a medical practitioner issues a certificate knowing of the existence of an interest—should be maintained and we are supported by the AMA and the Law Society in that view. I commend this amendment to the house.

The Hon. G.E. GAGO: We were of the understanding that you were going to withdraw these two amendments, but that is okay. This amendment is consequential to amendment [Wade-3] 2 and the government is going to oppose that. This amendment also introduces a subjective element into the offence. It would require the prosecution to prove that the doctor had actual knowledge of a pecuniary or property interest rather than it being a defence to the charge. The government opposes amendment [Wade-3] 2.

An honourable member interjecting:

The Hon. G.E. GAGO: I know, but they relate. [Wade-3] 2, we believe, is consequential to [Wade-2] 2 so that is why I am coming in on [Wade-3] 2. The government will be opposing amendment [Wade-3] 2 because it prefers its alternative amendment to clause 14(3). It may be that there is a need to recommit this clause depending on the outcome of the [Wade-3] 2 amendment and the amendment filed in my name as amendment [1] 2.

The Hon. S.G. WADE: If it might assist the council, this amendment was filed on 11 April and the amendment that the minister is referring to—[Wade-3] 2—was tabled yesterday, I think. They are not consequential; they are unrelated. I do not intend to move [Wade-3] 2. I intend to pursue this amendment, as I have since the middle of April.

Again, to assist the council, I do appreciate that obviously in the one clause it does interrelate. They are freestanding issues. Perhaps it might be slightly disorderly but I suppose we are all on the same clause and I can comment on another part of the same clause. Perhaps I might make my comment about why I will not be pursuing [Wade-3] 2 and that might help clarify the situation.

The AMA is concerned that clause 14(2) will create an unnecessary burden for medical practitioners, particularly medical practitioners operating in rural and regional locations with only one single doctor or practice. I raised the opposition's concerns with the government by letter and in my second reading contribution.

As a result of those consultations we worked on both an alternative defence and also a form of authorisation. The two options, as I saw them, were that we could give medical practitioners a greater assurance that they were not breaching the law by allowing them to go to a magistrate and have the magistrate agree that in all the circumstances it was appropriate to issue the certificate. That is what [Wade-3] 2 would have done.

The other option was to persist with the defence. The government has a defence in the bill itself. I filed an alternative defence. The government, the AMA and the opposition had discussions—shall we say multilaterally—which involved both the AMA and the Chief Magistrate. The preference that came out of those discussions was for a defence for non-metropolitan medical practitioners as proposed by the government's proposed 14(3)(a) which is government amendment set [2] 1.

On the basis of that consensus, if you like, the opposition will defer and support that but we believe that this shifting of the onus of proof is a completely separate issue. The cremation bill had a 'knowing that' provision. We believe that the burden of proof should stay where it is and that basically people should not be at risk by, in good faith, issuing a certificate without knowing that they have an offending interest.

The Hon. D.G.E. HOOD: If I can just comment on the amendment that has been moved [Wade-2] 2—as I understand it, Family First supports the amendment.

Amendment carried.

The ACTING CHAIR (Hon. Carmel Zollo): The Hon. Mr Wade will not be moving amendment [Wade-2] 3, because it is consequential, is that correct?

The Hon. S.G. WADE: I will not be moving amendment [Wade-2] 3 but, considering that the committee has felt inclined to support the 'knowing that', it is my view—and I am happy to pause for the minister to consult, as required—that in supporting the government amendment [AgriFoodFish-2] 1, consistent with the decision in relation to subclause (2), it would be appropriate for us to delete 3(b); 'knowing that' has been maintained so there is no need for a reasonableness defence.

The Hon. I.K. HUNTER: I move:

Page 14, lines 33 to 37 [clause 14(3)—Delete subclause (3) and substitute:

(3) It is a defence to a charge of an offence against subsection (2)—

(a) if the defendant proves that—

(i) the death occurred outside Metropolitan Adelaide; and

(ii) no other medical practitioner was reasonably available, within 24 hours after the death, to give the certificate; and

(iii) the defendant complied with any requirements prescribed by the regulations in relation to the certificate; or

I only wish to move amendment No.1 one as far as subclause (3)(a) and not move (3)(b), as I understand it has been made redundant by an amendment that has just been carried. This is the government's alternative amendment to [Wade-3] 2. The government accepts that the current defence at clause 14(3) ought to be broadened to contemplate medical practitioners in rural areas, and accordingly has filed an alternative amendment to this clause to take such circumstances into account.

This amendment was born out of the concerns raised by the AMA that sole practitioners in remote locations may experience difficulty in finding another medical practitioner to give a certificate of cause of death if there are no doctors available in nearby towns. Accordingly, the government's amendment limits the defence for doctors in rural areas. Further, this amendment aims to give the profession certainty by specifying a reasonable time period beyond which the defence applies. It is also envisaged that the regulations require a medical practitioner to declare their pecuniary or property interests if they do issue a certificate of cause of death.

The Hon. S.G. WADE: As I indicated, the opposition will support this. It is the consensus of the consultation, and I thank the government for participating in that dialogue. It will mean that these provisions are more workable for people living beyond metropolitan Adelaide.

Amendment carried; clause as amended passed.

Clauses 15 to 23 passed.

Clause 24.

The Hon. J.A. DARLEY: I move:

Page 16, line 22 [clause 24(1)(b)]—Delete '25' and substitute '50'

This amendment is very straightforward. It replaces the reference in clause 24 from 25 to 50 years. In practical terms, this means that a cemetery may be closed if 50 years or more have elapsed since human remains were last interred. The amendment does not prevent a cemetery from being closed if it has become unsuitable for the disposal of human remains.

As I mentioned in my contribution on the second reading of the bill, the reason for this amendment relates mainly to the fact that cemeteries with unexercised interment rights potentially could be closed and converted to parks under the bill. The only requirement would be to provide the holder of an interment right with either a refund or offer of a new interment right free of charge in another cemetery. There are, as I mentioned previously, many instances where family members or loved ones pass away many years apart. In many, if not most, instances the intention is that those families members will eventually be buried together. The bill has the potential of preventing this practice happening.

I acknowledge that this provision exists under the current legislation and that to date it has never been used. However, that is not to say that it will not be used in the future. Twenty-five years is not a long time. As such, I am suggesting that this be replaced with a 50-year time frame which, in the circumstances, seems more appropriate. This would provide people with a bit more comfort, especially when dealing with such a sensitive issue.

The minister may recall that during the second reading debate I asked questions relating to the GPS tracking of gravesites in cemeteries that are earmarked for closure. I was subsequently advised by the minister's office that, basically, technology is not sophisticated enough to pinpoint individual gravesites within a metre or so of each other and that this would be too expensive a process.

Since that time, I have had advice from the Surveyor-General, who indicates that it is possible to pinpoint a gravesite using GPS to within less than a centimetre and that a plan could be prepared for a cemetery the size of Cheltenham Cemetery, for example, within approximately one week. Will the minister give a commitment to further seriously consider this issue, given the advice of the Surveyor-General?

The Hon. S.G. WADE: I do remember the honourable member mentioning GPS but what purpose would it serve in the context of this amendment? What would you use the GPS for? Is it to allow you to convert to a park and still know where the grave was?

The Hon. J.A. DARLEY: The amendment is to do with changing the 25 years to 50 years but, in looking at the GPS situation, it seemed appropriate for me to mention it, or get a commitment from the government at this stage.

The Hon. I.K. HUNTER: The government agrees with Mr Darley that 25 years is certainly not a very long time at all, and we will therefore be supporting the honourable member's amendment. In relation to the GPS, it may well be true that you can actually track a location within one centimetre but I suspect the degree of technical expertise, and perhaps the cost associated with that, as compared to a broader tracking situation, may be prohibitively expensive; but we will undertake to have another look at that, given the advice the Hon. Mr Darley mentions.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Page 16, after line 35 [clause 35]—After subclause (4) insert:

(4a) A council that proposes to close a cemetery or natural burial ground for which it is the relevant authority must provide the Minister with details of any representations or submissions made to the council in respect of the proposed closure.

Clause 24 allows for the closure of a cemetery or a natural burial ground by the relevant authority if the land becomes unsuitable for the disposal of human remains after 50 years or more have elapsed—with the amendment Mr Darley has moved being successful, I expect—since human remains were last interred and sets out certain requirements in respect of that proposed closure. For example, a council cemetery cannot be closed unless notice of the proposed closure has been given on two separate occasions in a newspaper circulating throughout the state and in the Government Gazette and the minister has approved the closure.

The purpose of this amendment is to address a concern raised in the other place about the operation of clause 24 of the bill. In particular, although the bill requires the minister to approve the closure of a council cemetery after the requisite notice has been given, there is no requirement that the relevant authority, that is, the council, notify the minister of any objections or comments that they received about the proposed closure. The government believes that there is merit in providing a requirement in the legislation that the minister, prior to approving the closure, be made aware of the nature and extent of any representations or submissions that the relevant authority may have received in relation to the proposed closure. This amendment will address that concern.

Amendment carried; clause as amended passed.

Clauses 25 to 33 passed.

Clause 34.

The Hon. S.G. WADE: I move:

Page 23, lines 16 and 17 [clause 34(2)]—Delete 'of an amount determined in accordance with the regulations' and substitute:

equal to the current fee payable for an interment right of the same kind, less a reasonable fee—

(a) for administration and maintenance costs; and

(b) for costs involved in the establishment of the cemetery or natural burial ground

Section 34(2) of the bill requires the relevant cemetery authority to refund to the former rights holders 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. The Cemeteries and Crematoria Association of South Australia recognises that the most:

...favourable option regarding refunds for unexercised interment rights is that no refunds be made at all. However, following discussions with the government the Cemeteries and Crematoria Association of South Australia recognises that a refund will apply and that the Cemeteries and Crematoria Association of South Australia's position is that any refund should take into account costs involved in the establishment of a cemetery or natural burial ground.

The association is right in the sense that both the government and the opposition are supporting the establishment of a refund right. What we will be considering as we debate this clause is first of all: what are the appropriate allowances to the current fee in terms of setting the value of that refund and should it be retrospective? CCASA has accepted that a refund is coming, but CCASA argues that clause 34(2) should be amended to allow the cemetery authority to deduct a portion of the establishment costs of the cemetery from the refund. That is what the opposition amendment seeks to achieve. CCASA is of the view that the amendment will substantially address their concerns on this aspect of the clause.

It is probably an appropriate time to pause because the government and the industry have been in discussion on a number of issues for some time, and to the government's credit—do not hold me to these numbers—if there were six issues when the bill went into the house, since the bill has made its way to this council, five of the six issues have been resolved, so I commend the government for its positive engagement with the industry, but this one has proved to be a hard nut and so what has the government's response been? The government's response has been to try to put it off to another day.

The bill, as amended by the government in the House of Assembly, provides that the refund amounts will be determined in accordance with the regulations. Now, that is not a statement of principle, that is an IOU for a resolution some day in the future. It is fair to say that the stakeholders are willing to accept that, that they will, if you like, chance their luck with negotiations with the government. But, as I often say in this parliament, we have the responsibility to give the greatest respect to stakeholders, particularly when it comes to legislation, particularly when it comes to the balance between statute and regulations. I believe that we, as legislators, have the responsibility to maintain good practice, so I ask the Legislative Council: are we happy to have such important provisions left in the regulations?

I would like to point out that clearly the government thought the issue was important enough to be in the legislation because that is where they put it. They did not put it there with this bill before the parliament. It was actually there from the earliest draft bill that was put out for consultation. It is my understanding that, due to industry response to the formulation in the draft, the government then proposed the formula which was in clause 34 of the bill when it was tabled in the House of Assembly, and that provided for the allowance for administration and maintenance costs.

The industry says, 'Well, that is a good start, but we also want you to allow for establishment costs,' and that is what is in our amendment. I believe that the fact that the government wants to leave this to the regulations is an attempt to try to bypass the parliament. It does not want the parliament to wrestle with some of these issues. I do not think that is appropriate. I actually think parliament is a good place to resolve these sorts of discussions.

The fact of the matter is that in a regulation-based context, a stakeholder might find themselves with very little room to move and the parliament is left in the invidious situation of disallowing all the regulation or letting the regulation pass.

The amendment standing in my name addresses the concerns of CCASA. It provides that the sum of the refund for the unexercised rights, determined to be the current fee payable for an interment right of the same kind, less the reasonable fee for both the administration of maintenance costs and the costs involved in the establishment of the cemetery or natural burial ground.

The government has argued to me that the phrase 'costs involved in the establishment of a cemetery or burial ground' is ambiguous and too hard to define. My response is that it is no less difficult than defining a reasonable fee for administration and maintenance. Administration of acts involve complexity, and I certainly believe that that is an appropriate place for regulations. Regulations may well define what sort of processes can be taken to determine those two elements.

However, as the government originally proposed in the consultation bill and as it originally proposed by putting it in the bill that was tabled in the other place, this is a clause that should be in the bill, and I believe that it is our responsibility to strike the right balance. I commend this amendment to the committee because I think it does strike the right balance between enabling adequate cost recovery for the cemetery authorities and giving the consumer an ability to get a fair refund.

The Hon. I.K. HUNTER: The government of course opposes this amendment and seeks the concurrence of the committee in opposing it. Clause 34 of the bill sets out refund rights when an interment right is surrendered to the relevant authority that issued it. As a result of amendments in the other place, the clause now provides that the relevant authority will be able to reduce any refund by an amount determined in accordance with the regulations.

Previously the provision provided that the amount could be reduced by a reasonable amount to cover administration and maintenance costs. This provision was amended following further discussion with the industry, as the Hon. Mr Wade has outlined. On their remaining concerns, in particular there were some concerns that a greater reduction beyond administration and maintenance costs should be able to be recouped upon the surrender of the interment right. The government is happy to consult further with industry to develop a workable scheme for calculating refunds for the surrender of an interment right, however, it does not believe that it is just a simple matter of amending the provision to allow for the inclusion of establishment costs in the calculation of a refund, as proposed by the Hon. Mr Wade.

The method for calculating establishment costs is unclear, thus it could be interpreted very broadly and applied inconsistently across the industry. This could potentially negate the benefit of a refund. Currently refunds for surrendered interment rights are left to the discretion of the cemetery authority. The government believes that the legislation needs to strike a balance between protecting the interests of consumers and allowing cemeteries to retain a reasonable proportion of any refund in order to cover their costs.

The government believes that the approach taken in the current provision, which was discussed with industry representatives, as accepted by the Hon. Mr Wade, is a sensible approach that allows further consultation to occur on the best method for calculating refunds without holding up the passage of the bill, and that is the important point.

The stakeholders agree with the approach the government is taking. The stakeholders have been happy with our consultation thus far. The Hon. Mr Wade has congratulated the government for resolving five of the six outstanding problems and, of course, we have undertaken to work on the last outstanding issue with industry. They have given their indication that they are happy to accept that proposal.

I am advised that those representatives are pleased with the consultation that has happened and are happy to accept that we will work on this outstanding issue for the solution to be found in the regulation process. So I ask the committee to oppose the amendment.

The Hon. S.G. WADE: To ensure that the minister's words cannot be interpreted to misrepresent the view of the association, I would like to specifically quote from a letter from the Cemeteries and Crematoria Association of South Australia, dated 10 April and signed by Bruce Nankivell on its behalf. It states:

In discussions we have pointed out that we would prefer the detail on this matter to be within the bill but understand the government is keen to progress the bill without it being held up on this one issue.

I do not dispute that the industry is happy to pursue a regulation approach, because they fear that this arrogant government would disrespect the parliament and not even try to get a resolution within the parliamentary process. I would suggest to this parliament that every time the government has a too-hard issue it wants to stick it in the regulations and take, if you like, post-bill consultation as a surrogate for parliament. We might as well abolish ourselves.

We have seen time and time again that the government has undermined this council. I am reminded of another bill on the Notice Paper, which I appreciate would be disorderly of me to refer to in detail; but there is another bill on this Notice Paper where basically it is a shell. We have an ISV in draft regulations coming which actually gives content to it.

The Hon. I.K. HUNTER: Point of order, Madam Chair. The honourable member knows that he is out of order. He should come back to the clause that we are debating.

The Hon. S.G. WADE: It is exactly on this clause because the issue is whether or not hard issues should be debated by the parliament or should be left to the bullyboy government which arrogantly says to an industry body—

The ACTING CHAIR (Hon. Carmel Zollo): The honourable member—

The Hon. S.G. WADE: No, excuse me, I am entitled to have my say, and what I am saying is that the government is refusing to debate this issue in the parliament and wants to leave it to regulations. Well, that is not what we do with hard issues. We do not believe that stakeholders should be told: 'Unless you accept the bill as it stands you won't get the bill.' We saw it in real estate; we are seeing it again.

The Hon. I.K. HUNTER: Where do I go with this? The Hon. Mr Wade makes wild accusations that this is an attempt to bypass the parliament. Of course it is not. Regulations will be dealt with by this chamber as they always are. Regulations stand or fall on the support of this council and, indeed, the other place. So, the parliament will come back and have another say on these issues. This is no attempt at all. What we are trying to do is to proceed with this bill, working in good faith with industry, which they have accepted.

The Hon. D.G.E. HOOD: Family First has no reason to doubt that the government is having reasonable negotiations with the body concerned, but we do feel, as I think is evidenced by the letter that the Hon. Mr Wade read to the chamber, and certainly our discussions with the association indicate that they would prefer that this matter be in the bill. I do not have a copy of the letter, but the Hon. Mr Wade has just read out a letter from the body explaining that, and for that reason we are inclined to support the amendment.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. Franks, T.A.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Wade, S.G. (teller)
NOES (6)
Finnigan, B.V. Hunter, I.K. (teller) Kandelaars, G.A.
Maher, K.J. Wortley, R.P. Zollo, C.
PAIRS (2)
Dawkins, J.S.L. Gago, G.E.

Majority of 5 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 23, after line 17—After subclause (2) insert:

(2a) Subsection (2) does not apply in relation to an interment right granted before the commencement of this section.

CCASA—which, as members will remember from the last discussion, is the Cemeteries and Crematoria Association of South Australia—argues that the bill will allow the holders of unexercised interment rights granted before the bill's enactment to take advantage of section 34(2) and this will create a significant financial burden on cemeteries. CCASA submits that section 34(2) allowing for compensation should only apply with respect to unexercised rights purchased after the commencement of the act.

I pause to remind the council that the opposition and the government were together on the basic issue that a refund right is appropriate. CCASA still would prefer not to have a refund right. Where the government and the opposition part company is in relation to retrospectivity. In other words, should a consumer right apply to people who bought their rights some time ago and that was not part of the original deal?

Some of the larger cemeteries have made representations to the opposition that this provision would mean they would need to find up to $19 million to cover the potential liability that these retrospective provisions create. Mr Bryan Elliott, the chief executive officer of the Centennial Park Cemetery Authority contends that clause 34 would:

...change the contractual obligations entered into between the cemetery and the interment rights holder...placing an imposition on the Authority that did not previously exist and if actioned by those who have unexercised interment rights at Centennial Park could have significant cash flow implications for Centennial Park.

Of the proposed amendment, he says, 'removing the retrospectivity of this particular clause would alleviate the concerns of Centennial Park'.

The Hon. I.K. Hunter interjecting:

The Hon. S.G. WADE: Sure. The minister invited me to reflect on the historical development of cemeteries in South Australia. As members will recall from my second reading contribution, the first cemetery was on West Terrace and was established merely six weeks after the colony was established.

In relation to this refund right, once they have minimised the impact of other costs, the only way that the cemeteries could cover the potential liability is by increasing fees resulting in current consumers paying more. The government want us to conceive of this refund as a consumer right but what they are proposing to do, by having this element of retrospectivity, means that future consumers will be bearing the cost of an unexpected bonus or refund right to consumers of the past. We do not believe that it is appropriate to have retrospectivity as a matter of principle, but doubly so when you are asking South Australians of the future to pay for additional rights of South Australians of the past.

It is my understanding of how these refunds are dealt with and calculated currently is that it is left to the discretion of each cemetery. The Centennial Park Cemetery Authority, for example, has been reluctant to give refunds to holders of interment rights whether they have been exercised or not but a number of other authorities have quite well-developed refund policies. They will continue to operate and the consumers of the past will continue to have access presumably to the same informal arrangements that they have had in the past.

My amendment will retain the status quo for interment rights issued before the commencement of the act. All my amendment seeks to do is to ensure that the consumer who achieves a refund under clause 34 does so after the commencement of the act; it removes the retrospective element.

Again, Mr Nankivell, on behalf of the Cemeteries and Crematoria Association of South Australia, has endorsed the amendment stating:

The removal of retrospectivity from this clause gives surety to cemetery operators moving forward. In achieving this it removes the potential for considerably large unfunded liability and the subsequent detrimental consequences to the community.

Mr Nankivell's letter of 10 April 2013 repeats again the association's support for this amendment as it limits 'refunds from applying to interment rights issued after the commencement of this bill'. We recognise the need to be fair and equitable to all concerned and I, as well as industry bodies, contend that the amendment standing in my name strikes the right balance. I commend the amendment to the council.

The Hon. M. PARNELL: I might just take this opportunity to ask the mover of this amendment some questions so that I can be sure I understand how it works. As I understand it, the duration of interment rights under clause 31 is either for a specified period or 'in perpetuity'. The effect of the government's proposed clause 34(2) is that on the surrender of an unexercised interment right the relevant authority must give a refund of an amount determined in accordance with the regulations.

Putting those two things together, if someone, for example, paid a lot of money for an 'in perpetuity' right and then decided—within a couple of months, for example—that they did not want to get buried there at all and in fact they came up with some different plan, do I understand that the Hon. Stephen Wade's amendment would effectively mean that that person would not be able to get any refund unless the cemetery had a voluntary policy of refunds?

The Hon. S.G. WADE: I thank the honourable member for his question because I did not mean to confuse the issue. All I was trying to say was that for those consumers who bought their rights before the commencement of the act, the status quo will continue and if there is a cemetery policy it would apply. There is not a right for an 'in perpetuity' at the moment anyway. In relation to 'in perpetuity' after the commencement of the act, it would be the current fee for that right at that cemetery, less the administration and establishment costs at the relevant cemetery.

The Hon. M. PARNELL: I might just explore it further. Leaving aside the 'in perpetuity', if someone has bought the right to be buried somewhere for a fixed period (I do not know, say 20 years) and let's say within the first year they decide that they no longer want to exercise that right, then why would it be fair for them not to get a refund if the cemetery could then sell that same bit of dirt to someone else and therefore make a double profit?

The Hon. S.G. WADE: My understanding of my amendment—and if it is delivering something different I am more than happy to seek further advice—is that it returns to the situation that the government started with, which is that there would be a refund right. Where the government and I differ is as to whether the refund right should have one or two deductions. The government wants a deduction merely for administration and maintenance; I want there to be a further deduction for the costs of the establishment of the cemetery or natural burial ground as requested by the industry.

In terms of the 'must', it stays. The 'must' that is in the government bill applies; certainly it is my understanding that my amendment maintains the mandatory nature of the provision of the refund. What I am deleting is the phrase 'of an amount determined in accordance with the regulations' and I am inserting a, shall we say, enhanced version of the government's original statutory formula.

The Hon. I.K. HUNTER: The government opposes the amendment. The effect of this amendment is to provide that the requirement to give a refund will not apply in relation to an interment right that is granted before the commencement of this section. That is my advice; it certainly would after the commencement, but not prior.

As noted during the debate on the honourable member's previous amendment, although refunds for a surrendered interment right are currently left at the discretion of the cemetery authority, the government believes that interment right holders should be entitled to some refund if they wish to surrender their interment right. For example, if a person gets married or divorced or moves interstate, perhaps, they may wish to be buried in a different cemetery. I also note that the industry appears prepared to accept the refund provision provided they can retain a reasonable amount for costs already incurred, as I mentioned in the previous debate.

It would appear unfair to the general public to say that a person who purchased an interment right one day, one month or even many years prior to the legislation commencing should not be able to avail themselves of the same rights to a refund as those who purchased an interment right the day after the new legislation commenced, particularly when the other provisions relating to interment rights would apply to everyone.

For example, under the new provisions a cemetery authority will be required to give notice that an interment right is expiring and to also undertake further consultation with family members prior to the re-use of an interment site. These provisions will apply to interment rights issued prior to the commencement of the legislation, as one of the aims of the bill is to ensure that cemetery practices are consistent across the industry and that family members are aware of their rights and obligations.

Further, having this provision apply to some but not all interment rights places an additional administrative burden on cemeteries, as it requires them to differentiate between interment rights that were granted prior to the commencement of the legislation and rights that were granted post legislation. The government believes that the refund provisions should apply to current as well as future interment rights and for these reasons the amendment is opposed.

The Hon. R.L. BROKENSHIRE: Can I ask the minister to further expand on the comment I thought I heard, where there was some condition that the cemeteries were happy provided they got some, was it commission or reimbursement? I could not quite understand what the minister was referring to there.

The Hon. I.K. HUNTER: My advice is that this question goes back to our previous debate on the last amendment that was carried by this place. It goes to the question of reasonable costs that have already been incurred by the cemetery around, for example, maintenance issues, administration costs. Their desire is to keep a part of that to reimburse them, if you like, for those costs they have already incurred.

The Hon. R.L. BROKENSHIRE: So what check and balance is there to ensure that a cemetery does not say 'Those costs are 100 per cent'? What check or balance would there be to ensure that that did not occur?

The Hon. I.K. HUNTER: I am not sure that any adjudicating authority, be it a court or whatever, would accept that as being a reasonable amount for costs already incurred.

The Hon. R.L. BROKENSHIRE: My question is to the shadow minister. I understand he mentioned a figure of $19 million that some cemeteries, or maybe even just Centennial Park, was it—

The Hon. S.G. Wade: I didn't name them, but that was the one.

The Hon. R.L. BROKENSHIRE: Right; there was a cost of $19 million. Whilst Family First did quite a lot of homework on this bill, we have had no representation with respect to that, and I wonder if the shadow minister might be able to expand on how they see a significant, massive cost of $19 million.

The Hon. S.G. WADE: I would clarify the claim: Centennial Park was not claiming that the $19 million would be caught up tomorrow if this right was accorded, but my understanding is that it was its calculation that, if everybody with an interment right as at the passage of this bill exercised that right (it is not going to happen), its estimate is that it would be $19 million. Whatever is the figure, we know it is no more than $19 million for Centennial Park, but if this legislation passes as the government wants it, Centennial Park would need at its next board meeting to start making arrangements for allowances for what could be a reasonably foreseeable set of refund rights that people might exercise.

Since Centennial Park has been raised, and since the suggestion has again been made that the industry is happy with retrospectivity, let me quote from a letter from Centennial Park to me dated 18 April 2013. I will read two pithy paragraphs, as follows:

Your proposed amendment removing the retrospectivity with this clause would alleviate the concerns of Centennial Park.

Later in the letter it goes on to say:

Retrospectivity of the clause is of concern to Centennial Park and we wish to continue with all parties to minimise the impact on Centennial Park, while recognising the need to be fair and equitable to all concerned.

We believe that it is fair and equitable that this bill, consistent with the practice of this parliament, not have retrospective effect. If people buy a right, under this new legislation, built into the fee they pay will be an allowance for any provision that needs to be made for future refunds. We believe this is a bit like a tax going forward. It is not a tax—I appreciate that—but it means that authorities can make financial arrangements for those going forward, and people who had an interment right before the passage of this legislation are not being disadvantaged: they bought those sites with those rights. They are not being taken away, but why should future consumers pay higher costs so that people with rights that predated this legislation can have rights for which they did not pay?

The CHAIR: The Hon. Mr Brokenshire wanted some clarification: the Hon. Mr Wade, you are saying that $19 million is like an unfunded liability?

The Hon. S.G. Wade: Yes, it is effectively an unfunded liability.

The Hon. R.L. BROKENSHIRE: I ask the minister, based on the shadow minister's answer, whether he could advise the house whether the government received or had any consultation with Centennial Park on the basis of concerns it may have had regarding potentially a $19 million unfunded liability?

The Hon. I.K. HUNTER: My advice is that indeed advice was received by the government from Centennial Park, but it needs to be understood—and I think the Hon. Mr Wade made clear that he did not wish to exaggerate the situation—that $19 million would only apply if every single person who was eligible exercised their right to surrender their interment rights. That is the only time you would come up with a figure of $19 million.

With regard to people being disadvantaged or not, the Hon. Mr Wade did not use the phrase, but it is caveat emptor. There will be a disadvantage: the disadvantage will be for a customer who bought a right prior to the bill being commenced, be it a day, a week or a fortnight prior to the bill's commencement, compared with someone who buys it two days after. There will be two classes of individual set up if you support the Hon. Mr Wade's amendment.

The Hon. R.L. BROKENSHIRE: For the purposes of the public record, with something that could be horrendous on any business—and, let us face it, Centennial Park is still a business—can the minister advise the house whether, based on his answer, the government feels there is no significant risk to Centennial Park because, hypothetically, you could have a situation where, as the shadow minister raised, the $19 million was called on all at once; practically it probably would not happen. Even if it was, say, $4 million, $5 million or $1 million, does the government have any concerns that this could cause a very difficult financial situation for a trust like the Centennial Park Trust?

The Hon. I.K. HUNTER: In response to the honourable member's question, referring to a document that I have before me from Centennial Park itself, they advise that it has been calculated that a full-based refund would be of the order of $19 million but they then go on to say, given that they will be allowed to provide for a refund based on costs per year of a right less standard administration fees and other costs, the total amount would be of the order of $14 million. If they were allowed to keep another portion of that (which I think a previous amendment has now allowed them to), the cost would come down even further.

So, hypothetically, in the worst case scenario, the total cost could be somewhere in the order of slightly less than $14 million but, as the honourable member said, practicably and probably, that is never going to happen. The trust would have to make some business decision about what the regular surrender right is going to be and the rate of that. We would suggest it is not going to be huge, and I am sure they can build that into their business case if they have not already done so, anyway. They will need to provide for that unfunded liability, and that is all it is.

The Hon. S.G. WADE: I am disturbed at the direction the discussion is taking. This parliament, and Westminster parliaments around the world, have been very cautious about retrospective provisions. It is a bit like saying, 'Should we worry if the federal budget next week provides a retrospective tax to try to speed up the funding of NDIS?' and then members in the Senate are having a discussion about whether or not it is sustainable.

That is not what retrospectivity is about. Retrospectivity is about fairness and it is about saying the law today is the law today, live by it and you will be fine. This says that we are actually going to give a retrospective bonus—and I appreciate it is a bonus rather than a detriment—but why should future consumers be asked to fund a bonus to previous purchasers of interment rights? Retrospectivity needs to be a principle to be maintained, not a discussion as to the relative financial strength of two different sets of consumers.

In terms of the government's view of whether or not the financial impact on Centennial Park is a worry, I think that is rather academic. What we do know is that the people who are running Centennial Park think it is a worry. They will set their financial bearings, presumably, with a five and 10-year strategic plan—presumably, not getting ready for the next unfunded liability to be pushed on them by the government and, presumably, running a tight ship. Then the government says, 'It's not 19, thank God, it's only something less than 14.'

I appreciate it is highly unlikely there will be significant drawings, but the fact of the matter is there will be some impact. How do we know that, amongst the collection of crematoria and cemeteries operating in South Australia, the viability of a cemetery or crematorium is not going to be fatally damaged by these sorts of unfunded liabilities being foisted onto them? It is all well and good to talk about Centennial Park being a strong facility, but there are some very small cemeteries, including private sector cemeteries. These are not public authorities; they are not going to fall back on the government like the State Bank. There are private sector people who are running crematoria and cemeteries in South Australia. As a matter of principle, this parliament has been very reluctant to engage in retrospective provisions. I would urge the committee to support what is a simple amendment. It just says today the law changes.

The Hon. I.K. HUNTER: The Hon. Mr Wade talks about the principles of retrospectivity and fairness. Well, goodness gracious, we are not talking about criminal offences here. We are not talking about taxation provisions, and if we want to talk about fairness, let us talk about what the impact is going to be on an individual customer who buys a plot one day before the commencement of this act compared with someone who buys a plot two days later. They will be treated in a different class for the simple ease of operation of the bill. The cemeteries, I would imagine, much prefer to deal with everybody as being in the same class.

An honourable member: It's not what they tell us; it's not what they tell you.

The Hon. I.K. HUNTER: I am not so sure about that. If they deal with everybody as being in the same class, they do not have to keep two different sets of administrative books for when you bought your plot or when you did not. Really, this is not high rocket science. This is talking about fairness as it applies to individuals and we say that the people who buy their plots now should have the same rights as the people who buy their plots after the commencement of the act. It is that simple.

An honourable member interjecting:

The Hon. I.K. HUNTER: As I understand it—I am being advised, I am not a lawyer—the question is about balance of rights to individuals versus industry. It is standard consumer law practice, I understand, as it would apply to other industries. That might be the point that the Hon. Mr Parnell was about to make.

The Hon. M. PARNELL: I think I have probably heard enough to be able to put the Greens' position on the record with this. Certainly the Hansard over the last seven years has shown that the Greens have rarely supported retrospectivity, but we do need to explore this retrospectivity in a little bit of detail because normally retrospectivity is abhorrent because there are winners and losers, and the unfairness of it that the Hon. Stephen Wade talked about is what leads us to not supporting retrospective legislation.

It seems to me that this is a retrospective consumer protection measure as the minister has pointed out, so the question would be: what is the unfairness that would be visited upon the cemetery owners on someone handing back and asking for a partial refund for their right to be buried in a certain spot? The amendment that this council has just supported of the Hon. Stephen Wade says that the cemetery is allowed to deduct from the refund an amount for administration, maintenance and the establishment of the place in the first place. That formula having been applied will be cost neutral to the cemetery. What they will lose is any potential profit that was built into the system.

The other thing to bear in mind, as those of us who have looked at the demography of this state know, is that there is a baby boom and the traditional pyramid of age profile in this country and in this state—Hansard can't see my pyramid, sorry—used to be a very big base peaking with a very small number of people over the age of 100. That pyramid profile in this country now looks more coffin shaped as the baby boomers work their way up through the age profile. What that says to me is that if at a place like Centennial Park someone does try to hand back their right to be buried, they will get a partial refund as set out in the legislation and Centennial Park probably has got a great queue of people lining up to then go and buy that spot and they can sell it again because these interment rights do not wear out. That patch of dirt is still going to be a patch of dirt.

It seems to be that, whilst the Hon. Stephen Wade is correct and we would normally be loathe to support retrospectivity, there is no real loser here. The winner is the person who does get a bit of money back because, as the honourable minister said, their personal circumstances might have changed or they might have moved interstate. What value is there in having a plot waiting for you in Victoria if you have already moved to Queensland, and you might have lived in Queensland for 10 years?

I think we do not need to support the Hon. Stephen Wade's amendment, but I certainly congratulate him for putting it forward and for helping us have this debate, but I cannot see that the evil that he seeks to overcome is such that we need to disadvantage some of these people who would benefit from the bill as the government has drafted it. They would get some refund if they decided to hand back their plots.

The Hon. S.G. WADE: I will be brief.

The CHAIR: You are not going to be talking about demographic shapes, are you?

The Hon. S.G. WADE: No, I am actually geometrically challenged, so I will not follow the Hon. Mark Parnell's lead on that. However, just to briefly disagree with the Hon. Mark Parnell, even if one was to assume that it was cost neutral in terms of the running costs of cemeteries, the fact of the matter is that cemeteries will now need to make provision for refunds that they would not previously have had to make. That will impact on their financial operations and that cost will be passed on to the consumer. It will be passed on to future consumers. So the people who will suffer most clearly here are future consumers who are being asked to fund new rights of people who did not have them when they first entered their contract.

I will also make the side point that I believe legislation such as this—giving refund rights to future consumers—will have, shall we say, a drag effect, a moral effect, a precedent effect. One would expect to see a more generous set of informal arrangements for past consumers. I believe that that will lead to better outcomes for them in any event, but still, they will be benefits that they have not paid for. The rules change when this act passes and I believe it is fair that this clause be passed to ensure that the provisions do not have a retrospective effect.

The Hon. R.L. BROKENSHIRE: I was interested to hear both sides of the debate, which is why I asked a certain amount of questions. To my knowledge we did not receive any representation from Centennial Park, or any other cemetery for that matter, on this particular clause. Having summed it up after listening to the debate, we will not be supporting this amendment.

The Hon. J.A. DARLEY: I would like to thank the Hon. Stephen Wade and the Hon. Mark Parnell for their explanation. I will not be supporting the amendment.

Amendment negatived; clause as amended passed.

Progress reported; committee to sit again.

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