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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-14 Daily Xml
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Statues Amendment (Aboriginal Ancestral Resting Places) Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (12:44): Obtained leave and introduced a bill for an act to amend the Births, Deaths and Marriages Registration Act 1996 and the Burial and Cremation Act 2013. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (12:45): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Aboriginal Ancestral Resting Places) Bill 2021. This bill represents an important step of ensuring that thousands of Aboriginal ancestral remains can finally be respectfully laid to rest.

As members will be aware, in the aftermath of European settlement in South Australia, and Australia more broadly, the remains of many Aboriginal people were taken, generally without consent, for scientific study, medical examination, museum display and other purposes. This is no longer considered acceptable and there is a worldwide push to repatriate such remains to the places from whence they came, wherever possible.

Over half of all uninterred Aboriginal ancestral remains in Australia are held in South Australia. The vast majority—the skeletal remains of approximately 4,600 individuals—are held by the South Australian Museum as part of its extensive human biology collection. The museum now also holds some remains formerly held by other South Australian institutions.

In December 2018, the Museum adopted a policy to manage and repatriate the remains in its collection so that they can be respectfully laid to rest. Where the provenance of the remains is known, the Museum's policy is to hand them over to the contemporary Aboriginal traditional owners of the relevant area. It is then a matter for the traditional owners to determine where and when the remains should be buried.

Legally it is clear that the Burial and Cremation Act 2013 applies to the disposal of all human remains in this state, including the burial of Aboriginal ancestral remains. Under the Burial and Cremation Act it is an offence to inter bodily remains other than in a lawfully established cemetery or natural burial ground without the approval of the Attorney-General. The act requires certain information pertaining to the identity of the deceased, cause of death and so forth to be provided prior to the disposal of the remains. This is very difficult, if not impossible, in the case of Aboriginal ancestral remains.

I am advised that without amendments to the act the process for repatriation of remains will be administratively slow and complex. Several thousand exemptions would need to be given to allow for the interment of repatriated remains without the usual identification requirements under the act. This would impose an unnecessary burden on traditional owners who, having finally had the remains of their ancestors returned to them, wish to respectfully bury those remains in a timely manner and without further difficulty.

With this foremost in our minds, the government has prepared this bill to make special provisions for the interment of Aboriginal ancestral remains. The bill amends the Burial and Cremation Act 2013 and the Births, Deaths and Marriages Registration Act 1996 to insert new provisions enabling the interment of Aboriginal ancestral remains in areas known as 'Aboriginal ancestral resting places'. The primary amendments are to the Burial and Cremation Act so I will discuss these first. Then I will deal with the consequential amendments to the Births, Deaths and Marriages Registration Act.

Part 3 of the bill amends the Burial and Cremation Act. Clause 20 replaces section 19 of that act to allow for any person to establish an Aboriginal ancestral resting place in the same way that any person can establish a cemetery, natural burial ground or crematorium. Clause 21 provides that a cemetery authority may set apart any part of the cemetery as an Aboriginal ancestral resting place.

Alternatively, a resting place could be established as a standalone area by or with the consent of the owner of land. A person or body would have to assume the role of 'relevant authority' in order to fulfil the responsibilities that apply under the Burial and Cremation Act and other relevant legislation. Other legislative requirements, such as development approvals, would also have to be met.

Pursuant to clause 9(12) of the bill, it will be up to persons of a prescribed class to certify that remains are Aboriginal ancestral remains in order for them to be dealt with under the provisions in this bill. The regulations will provide for certificates to be given by appropriately qualified persons, most likely from the South Australian Museum and Forensic Science SA, or the Minister for Aboriginal Affairs.

In addition to allowing the creation of resting places, clause 11 of the bill allows remains that have been certified to be Aboriginal ancestral remains to be buried on private land with the consent of the landowner and the local council, or within a national park, reserve, wilderness protection area or zone, with the consent of the person or body responsible for administering the park, reserve or wilderness area and the local council, if there is one.

This would not be a formal resting place under the act, rather simply a burial of ancestral remains. It would no longer be necessary for an exception to be obtained from the Attorney-General under the act for such a burial, as is currently the case when the identity of the person to be buried is not known. As Aboriginal ancestral remains are skeletal, they can be buried on private land within metropolitan Adelaide or townships with the consent of the landowner and relevant local council and in compliance with the regulations.

Wherever they are interred, Aboriginal ancestral remains must be left undisturbed in perpetuity. This is only fitting given the disrespectful treatment to which they have previously been subjected. Provision is made in clauses 12 and 13 for the cremation of Aboriginal ancestral remains, although burial is likely to be preferred in most instances. Currently, the Burial and Cremation Act does not allow interred remains to be exhumed, other than with the consent of the Attorney-General.

Clause 15, amending section 13 of the act, provides that in the case of Aboriginal ancestral remains, before approving an exhumation, the Attorney-General must consult with the relevant authority for the resting place and the minister responsible for administering the Aboriginal Heritage Act 1988. Outside of a resting place, the Attorney-General must consult with the minister responsible for the Aboriginal Heritage Act before making such a decision.

Clause 16 inserts new section 13A in the act. This provision is of general application. It makes it an offence to break open, damage, deface, desecrate or destroy an interment site or to improperly or indecently interfere with or cause any indignity to human remains unless authorised under the Burial and Cremation Act or any other act or law. The maximum penalty is two years' imprisonment.

Clause 17 amends section 17 of the act to ensure that cultural practices and ceremonies for burials or reburials of ancestral remains must be allowed by the authority for a cemetery or resting place. Clause 24 inserts a new subdivision 2 in part 3, division 3 of the act, dealing with the issue of interment rights. It provides that where a resting place is located within a cemetery, the authority responsible for the cemetery may issue interment rights to provide for the interment of Aboriginal ancestral remains.

These interment rights would remain in force in perpetuity and the relevant authority for the cemetery would be obliged to leave the ancestral remains undisturbed in perpetuity. Interment rights could be transferred or, if unexercised, could be surrendered. A register of interment rights must be kept by the relevant authority for the cemetery.

Clause 26 amends the existing requirement that relevant authorities must have due regard to the customs and needs of the various communities that may resort to the area for disposal of human remains, so as to include Aboriginal ancestral resting places. Clause 22 inserts new part 3, division 2A providing for the closure of resting places if they become full or unsuitable for the interment of remains.

Notice of the proposed closure would be required to be given to the public twice—18 and nine months before the proposed closure—as well as to any relevant recognised Aboriginal representative body constituted under the Aboriginal Heritage Act, and the minister responsible for Aboriginal affairs at least 18 months before the proposed closure. Once the resting place is closed, remains cannot be disturbed except as authorised by the act, the Attorney-General or the state Coroner. A penalty of $10,000 or two years' imprisonment would apply.

Clause 29 inserts new section 49A, which sets out the power of councils to assume administration of Aboriginal ancestral resting places. It essentially reproduces the current powers in the act for councils to step in and assume administration of cemeteries and natural burial grounds, but with some important differences. First, the approval of the Attorney-General would be needed before a council could take over administration of a resting place. A council could only step in if there is no existing relevant authority for the resting place, if the relevant authority is unknown and not ascertainable, or if the relevant authority agrees to transfer its responsibilities to the council.

Where a council proposes to assume the administration of resting place, it must give notice to any recognised Aboriginal representative body for the area in accordance with the regulations. It must also observe the terms of any trust affecting the administration or use of the Aboriginal ancestral resting place unless the Supreme Court relieves it from the obligation to do so.

Clause 30 amends section 50 to extend the general requirements in the act for members of the public to have free access to cemeteries and natural burial grounds to resting places. However, where a resting place is situated within a reserve, wilderness protection area or wilderness protection zone, the usual park entry fee would still apply. Existing section 50(2) is amended to provide that anyone suspected of committing or being about to commit an offence in a resting place can be required by the relevant authority to leave the resting place.

Clause 31 inserts new subsection (2a) in section 53. It requires a relevant authority for an Aboriginal ancestral resting place to keep a register and a plan in respect of the resting place. The register must identify each site in which Aboriginal ancestral remains are interred, record any exhumations and contain the particulars prescribed by regulation. The plan must show each site at which Aboriginal ancestral remains are interred and each site set aside for the interment of such remains. A maximum penalty of $5,000 applies for failure to comply with this provision.

New section 53(6) is of general application and requires that where the ownership or administration of a cemetery, Aboriginal ancestral resting place or natural burial ground is transferred, the transferor must ensure that the registers and plan kept in relation to the cemetery, resting place or natural burial ground are transferred to the new owner or administrator. A maximum penalty of $5,000 applies for failure to do so.

Section 55 of the act currently allows the minister to grant exemptions from specified provisions of the act. Clause 32 of the bill amends section 55 to allow the minister to delegate the power to grant exemptions by instrument in writing, either absolutely or conditionally. Such a delegation would not derogate from the minister's ability to act in any matter and would be revocable at will. The amendments to the Births, Deaths and Marriages Registration Act 1996 in part 2 of the bill are consequential on the amendments to the Burial and Cremation Act already discussed.

Clause 4 adopts the definitions of certain terms as they appear in the Burial and Cremation Act, in order to ensure consistency between the two acts. Clause 5 amends section 38 regarding the notification funeral directors are required to give to the Registrar of Births, Deaths and Marriages to clarify that the requirement in that section does not apply to the disposal of Aboriginal ancestral remains. This is because the identity details that are normally notified are not ascertainable in relation to Aboriginal ancestral remains.

Instead, new part 6A is inserted. Section 39A provides that a funeral director or other person who arranges for the disposal of Aboriginal ancestral remains must, within seven days after disposal, give the registrar a written statement containing prescribed particulars about the place and manner of disposal and any other information required by regulation. In turn, the registrar is required to give a written statement regarding the disposal of the remains to the minister responsible for the Aboriginal Heritage Act.

Clause 7 of the bill amends section 40 of the Births, Deaths and Marriages Registration Act to require the registrar to maintain a register of the disposal of Aboriginal ancestral remains as notified under section 39A. That register must contain the particulars of each disposal notified under section 39A.

Overall, the measures in this bill are designed to provide a regime to facilitate the respectful interment of Aboriginal ancestral remains, either within existing cemeteries or natural burial grounds, or in standalone resting places. Greater flexibility has been included for burials on private land or within parks, reserves and wilderness areas, provided consent is obtained.

Once buried, remains will be left to rest in perpetuity, protected by the provisions in the act and bolstered by the additional protection afforded by new section 13A. Suitable provision has been made for the recording and registration of these interments, wherever they occur, so as to reduce the risk of any further disturbance and to allow interested persons, such as traditional owners and the minister administering the Aboriginal Heritage Act, to keep track of where ancestral remains have been interred.

I commend the bill to members and seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Births, Deaths and Marriages Registration Act 1996

4—Amendment of section 4—Interpretation

This clause amends section 4 to insert and update a number of definitions.

5—Amendment of section 38—Notification by funeral director etc

This clause amends section 38 to disapply it to the disposal of Aboriginal ancestral remains.

6—Insertion of Part 6A

This clause inserts a new Part consisting of section 39A.

Part 6A—Notification of disposal of Aboriginal ancestral remains

39A—Notification by funeral director etc

Proposed section 39A requires a funeral director or other person who arranges for the disposal of Aboriginal ancestral remains to give the Registrar of Births, Deaths and Marriages a written statement of the prescribed particulars of the place and manner of disposal and any information required by the regulations within 7 days after the disposal. The proposed maximum penalty for non-compliance is $1,250.

7—Amendment of section 40—The Register

This clause amends section 40 to require the Registrar to maintain a register of disposal of Aboriginal ancestral remains notified under section 39A that contains the particulars of each disposal notified under that section.

Part 3—Amendment of Burial and Cremation Act 2013

8—Amendment of long title

This clause amends the long title to include reference to the establishment, administration and closure of Aboriginal ancestral resting places.

9—Amendment of section 3—Interpretation

This clause inserts a number of definitions and amends and replaces existing definitions.

Aboriginal ancestral resting place is defined to mean a place set aside for the interment of Aboriginal ancestral remains (including remains that have been cremated).

The clause inserts a definition of inter to clarify that the term includes re-inter, and expands the definition of relevant authority to define the relevant authority for an Aboriginal ancestral resting place.

The clause inserts a provision stating that, for the purposes of the Burial and Cremation Act 2013 and any other Act or law, the bodily remains of a deceased Aboriginal person are Aboriginal ancestral remains if a person of a prescribed class has, in accordance with the regulations, given a certificate certifying that, in the opinion of that person, the remains are Aboriginal ancestral remains.

10—Substitution of section 5

This clause substitutes section 5.

5—Relationship of Act with other laws

This section provides that the provisions of the Burial and Cremation Act are in addition to, and do not derogate from, the provisions of certain specified Acts and any other Act or law.

11—Amendment of section 8—Offence to inter bodily remains except in cemetery, natural burial ground or Aboriginal ancestral resting place

This clause amends section 8 to allow Aboriginal ancestral remains to be interred in lawfully established Aboriginal ancestral resting places or on land (outside a cemetery or natural burial ground) in Metropolitan Adelaide, a township or prescribed area with the permission of the landowner and the approval of the relevant council (if any) and in accordance with the regulations, or if the land is within a reserve, wilderness protection area or wilderness protection zone, with the permission of the person or body for the time being responsible for the management of the reserve, wilderness protection area or wilderness protection zone, and with the approval of the council and in accordance with the regulations.

12—Amendment of section 10—Cremation permits

This clause amends section 10 to allow the Registrar of Births, Deaths and Marriages to issue a cremation permit for the cremation of Aboriginal ancestral remains without the documents usually required to be provided to the Registrar (i.e. medical certificate of cause of death or disposal authorisation from the Coroner).

13—Amendment of section 12—Documents to be provided before disposal of bodily remains

This clause amends section 12 so that the cremation or interment of Aboriginal ancestral remains can take place without the need for the sighting of various documents and the recording of details of them (i.e. certificate of identification, partial certificate of cause of death, disposal authorisation from the State Coroner, the Minister or the Registrar).

14—Substitution of heading to Part 2 Division 3

This section substitutes a new heading to Part 2 Division 3.

Division 3—Offences related to interment sites and human remains

15—Amendment of section 13—Opening of interment sites, exhumation and re-interment

This clause amends section 13 so that before the Attorney-General gives an approval under the section in relation to Aboriginal ancestral remains interred in an Aboriginal ancestral resting place, the Attorney-General must consult with the relevant authority for the Aboriginal ancestral resting place and with the Minister responsible for the administration of the Aboriginal Heritage Act 1988.

16—Insertion of section 13A

This clause inserts a new section.

13A—Desecration of interment sites and human remains

Proposed section 13A makes it an offence for a person to—

(a) wilfully break open, damage, deface, desecrate or destroy an interment site; or

(b) improperly or indecently interfere with, or offer any indignity to, human remains (whether or not interred).

The proposed maximum penalty is imprisonment for 2 years.

The offence does not prevent an act that is authorised by or under the Burial and Cremation Act or any other Act or law.

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

This clause amends section 17 so that it applies to Aboriginal ancestral resting places as well as to cemeteries and natural burial grounds.

18—Amendment of heading to Part 3

This clause amends the heading to Part 3 so that it captures Aboriginal ancestral resting places as well as cemeteries and natural burial grounds.

19—Amendment of heading to Part 3 Division 1

This clause amends the heading to Part 3 Division 1 so that it captures Aboriginal ancestral resting places as well as cemeteries and natural burial grounds.

20—Substitution of section 19

This clause substitutes section 19.

19—Establishment of cemeteries, other burial grounds and crematoria

The substituted section provides for the establishment of Aboriginal ancestral resting places as well as cemeteries, natural burial grounds and crematoria.

21—Substitution of section 22

This clause substitutes section 22.

22—Designation of Aboriginal ancestral resting places and natural burial grounds within cemeteries

The substituted section provides for the designation of areas within cemeteries as Aboriginal ancestral resting places, just as relevant authorities for cemeteries can currently set aside areas within cemeteries as natural burial grounds.

22—Insertion of Part 3 Division 2A

This clause inserts a new Division dealing with the closure of Aboriginal ancestral resting places.

Division 2A—Closure of Aboriginal ancestral resting places

28A—Closure of Aboriginal ancestral resting places

Proposed new section 28A enables the relevant authority for an Aboriginal ancestral resting place to close the resting place (with the approval of the Minister) if—

(a) the capacity of the resting place to hold human remains has become exhausted; or

(b) the resting place has for any other reason become unsuitable for the disposal of human remains.

The section requires notice of a proposed closure to be given in a newspaper circulating throughout South Australia on 2 occasions. It also requires notice to be given to the Recognised Aboriginal Representative Body (if any) for the area in which the Aboriginal ancestral resting place is situated.

Notice must also be given to the Minister responsible for the Aboriginal Heritage Act at least 18 months before the date of the proposed closure.

A relevant authority that proposes to close an Aboriginal ancestral resting place must provide the Minister with details of any representations or submissions made to the relevant authority in respect of the proposed closure.

Once an Aboriginal ancestral resting place is closed, a person commits an offence if the person disposes of human remains in the resting place. The proposed maximum penalty is $10 000 or imprisonment for 2 years. The same maximum penalty is proposed for the offence of knowingly disturbing human remains interred in a closed Aboriginal ancestral resting place except as may be authorised by the Act, the Attorney-General or the State Coroner.

23—Insertion of heading

This clause designates the existing contents of Part 3 Division 3 as Subdivision 1 dealing with interment rights for cemeteries and natural burial grounds.

Subdivision 1—Interment rights (cemeteries and natural burial grounds)

24—Insertion of Part 3 Division 3 Subdivision 2

This clause inserts Subdivision 2 dealing with interment rights for Aboriginal ancestral resting places established within cemeteries.

Subdivision 2—Interment rights (Aboriginal ancestral resting places within cemeteries)

38A—Issue of interment rights

Proposed section 38A requires a relevant authority for a cemetery that agrees to the interment of Aboriginal ancestral remains in an Aboriginal ancestral resting place within the cemetery to issue an interment right for interment right.

Before doing so, the relevant authority must give the person a statement in plain English setting out the rights and responsibilities of the respective parties in relation to any memorial erected in the resting place, the cost of the interment right and any options for periodic payment.

An interment right may provide for the interment of such Aboriginal ancestral remains in the Aboriginal ancestral resting place as the relevant authority considers to be within the capacity of the resting place to hold.

If an interment right is issued, then, subject to the Act, it obliges the relevant authority—

(a) to permit the interment of Aboriginal ancestral remains in the Aboriginal ancestral resting place in accordance with the interment right; and

(b) to permit memorials to be erected in the Aboriginal ancestral resting place with the approval of the relevant authority and in accordance with the terms of the interment right; and

(c) to leave Aboriginal ancestral remains interred in the Aboriginal ancestral resting place undisturbed in perpetuity; and

(d) to leave any memorials in the Aboriginal ancestral resting place lawfully erected in the resting place, with the permission of the relevant authority, undisturbed (provided that the memorials are kept in good repair).

An interment right in respect of an Aboriginal ancestral resting place may be issued to a natural person or a body corporate.

38B—Duration of interment rights

Proposed section 38B provides that an interment right issued in respect of an Aboriginal ancestral resting place within a cemetery remains in force in perpetuity.

38C—Transfer of interment rights

Proposed section 38C provides that an interment right issued in respect of an Aboriginal ancestral resting place may be transferred but—

(a) the consideration payable for the transfer of the interment right must not exceed the current fee payable for the issue of an interment right of the same kind; and

(b) the interment right may contain conditions limiting the right of transfer to persons of a specified class.

A transfer of an interment right will not take effect until it is recorded by the relevant authority in its register of interment rights.

38D—Surrender of interment rights

Proposed section 38D will allow the holder of an unexercised interment right relating to an Aboriginal ancestral resting place to surrender the interment right to the relevant authority that issued it and be given a refund equal to the current fee payable for an interment right of the same kind, less a reasonable fee for administration and maintenance costs and for costs involved in the establishment of the Aboriginal ancestral resting place (determined in accordance with the regulations). An unexercised interment right is one under which no human remains have been interred.

38E—Exercise or enforcement of interment rights

Proposed section 38E provides that if the holder of an interment right issued in respect of an Aboriginal ancestral resting place has died or no longer exists, the interment right may be exercised or enforced by a person of a class determined in accordance with the regulations.

38F—Register of interment rights

Proposed section 38F requires a relevant authority for a cemetery to keep a register of interment rights issued by the relevant authority in respect of any Aboriginal ancestral resting place within the cemetery.

25—Amendment of section 43—General powers of relevant authority

This clause amends section 43 to add references to Aboriginal ancestral resting places.

26—Amendment of section 44—Multicultural needs to be recognised

This clause amends section 44 to add references to Aboriginal ancestral resting places.

27—Amendment of section 46—Neglected cemeteries, Aboriginal ancestral resting places and natural burial grounds

This clause amends section 46 to add references to Aboriginal ancestral resting places.

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

This clause amends section 49 to correct a reference.

29—Insertion of section 49A

This clause inserts a new section.

49A—Power of councils to assume administration of Aboriginal ancestral resting places

Proposed section 49A allows a council to assume the administration of an Aboriginal ancestral resting place (with the approval of the Minister) if—

(a) there is no existing relevant authority for the Aboriginal ancestral resting place; or

(b) the relevant authority for the Aboriginal ancestral resting place is unknown and is not reasonably ascertainable; or

(c) the relevant authority for the Aboriginal ancestral resting place agrees to transfer it to the council.

Before assuming the administration of an Aboriginal ancestral resting place, a council will be required to give notice of its intention to do so to the Recognised Aboriginal Representative Body (if any) for the area in which the Aboriginal ancestral resting place is situated.

If a council assumes the administration of an Aboriginal ancestral resting place, it will be required to observe the terms of any trust affecting the administration or use of the resting place, except to the extent that the Supreme Court relieves it from the obligation to do so.

30—Amendment of section 50—Public access to cemeteries, other burial grounds and crematoria

This clause amends section 50 to add references to Aboriginal ancestral resting places. It also amends the section to make it clear that subsection (1) does not prevent the charging of fees for entry to a reserve, wilderness protection area or wilderness protection zone within which an Aboriginal ancestral resting place is situated and does not relieve any person from an obligation to pay a fee for entry to a reserve, wilderness protection area or wilderness protection zone.

31—Amendment of section 53—Registers, records and plans to be kept by relevant authorities

This clause amends section 53 to require a relevant authority for an Aboriginal ancestral resting place to keep a register identifying interments, recording exhumations and containing prescribed particulars of matters specified the regulations, and to keep a plan of the Aboriginal ancestral resting place showing each site where remains are interred and each site set aside for interments. The proposed maximum penalty for non-compliance is $5 000.

The clause also inserts a new provision to require the registers and plans kept under section 53 in relation to a cemetery, Aboriginal ancestral resting place or natural burial ground to be transferred to the new owner or administrator if there is a change of ownership or administration of a cemetery, Aboriginal ancestral resting place or natural burial ground. The proposed maximum penalty for non-compliance is $5 000.

32—Amendment of section 55—Exemptions

This clause amends section 55 to allow the Minister to delegate the Minister's power to grant exemptions.

33—Amendment of section 59—Powers of authorised officers

This clause amends section 59 so that the powers of authorised officers extend to Aboriginal ancestral resting places.

34—Amendment of section 65—Service of notices and other documents

This clause amends section 65 to allow the service of notices and other documents to be given by email and other methods prescribed by the regulations.

35—Amendment of section 66—Regulations and fee notices

This clause amends section 66 to allow regulations to be made in relation to Aboriginal ancestral resting places and to allow fees for the purposes of the Act to be prescribed by the Minister by fee notice under the Legislation (Fees) Act 2019.

Debate adjourned on motion of Hon. R.P. Wortley.

Sitting suspended from 12:58 to 14:15.

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