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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-07 Daily Xml
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Burial and Cremation (Interment Rights) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 August 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:29): I rise to indicate that the opposition is broadly supportive of this legislation. The bill seeks to amend the Burial and Cremation Act 2013 to address issues faced by the holders of valid interment rights who have had difficulties enforcing their rights against a cemetery authority. This bill clarifies that such rights may be enforced against the relevant authority and also creates various new offences. In most instances a cemetery authority is the owner of the land.

Over the past few decades changes in population levels, church attendance and church incomes, amongst other factors, have seen increasing numbers of churches being decommissioned, deconsecrated and sold for residential or commercial use. Where a cemetery is attached, the new owner becomes the cemetery authority unless there is another body that is responsible for its administration. The increasing number of churches and cemeteries that are now owned by people or organisations with no specific background or experience in managing cemeteries may lead to greater issues surrounding misunderstanding or noncompliance with obligations and laws.

Under the proposed bill the relevant authority for an interment site must comply with their obligations. This was previously possibly civilly enforced, but this bill is proposing criminal sanctions. The maximum penalty for noncompliance with such an obligation is $10,000 for a natural person and $20,000 for a body corporate.

The bill proposes a new offence of removing cremated remains from or reinterment of cremated remains in a cemetery or a natural burial ground. An offence is also proposed should a person or a body corporate cause, suffer or permit such an act, and the maximum penalty for these offences is $10,000. Notably, these interment and removing offences do not apply to cremated remains interred directly into the earth or where authorised or removed by the relevant authority for approved site maintenance purposes.

We are told this bill has been created in particular as a result of some specific issues from Old Noarlunga sites, where problems were experienced with interment rights holders at the Saint Philip and Saint James Church cemetery. The foundation stone for this church was laid in 1850, just 14 years after the official start of the European colony of what we now know as South Australia. In recent years, after a decline in its congregation, the church was decommissioned and spent some years on the market before a new owner purchased the site.

Media reports and in particular an Advertiser article in February this year explained how the new owners had allegedly refused to honour interment rights issued by the Anglican diocese when it owned the site. Reportedly, some rights holders were consequently forced to repurchase rights at inflated prices, despite their leases having not expired. This, I am sure, would have been an incredibly difficult and emotional event for families, who were having to fight an uphill battle against a potentially noncompliant authority on behalf of their deceased loved ones. This bill seeks to prevent this occurring or at least minimise its occurrence in the future.

Notably, it is not a defence for a defendant to claim they were unaware of the existence of interment rights when they assumed the administration of the cemetery or natural burial ground. The exception to this is if they can prove they took reasonable steps to identify such rights in existence at the time they took over.

We are told by the Attorney-General's Department that targeted consultation has occurred around the bill and has received general support from various groups, including relevant cemetery authorities and associations. We will have a number of questions during the committee stage, but it is an increasingly important issue, both for people with loved ones who may be buried in sites and, importantly, for potential buyers of the increasing number of cremation sites or churches that come onto the market. Particularly, we will be asking questions in the committee stage around a register of such sites and how both sellers and potential buyers can identify this easily.

The Hon. R.A. SIMMS (17:33): I want to rise on behalf of the Greens to add our voice in support of this legislation. This is, as the Hon. Kyam Maher has said, a very important piece of reform. Indeed, I can only imagine how traumatic it would be for members of our community who have seen remains being interfered with or moved around or interment rights not being honoured. That would be a deeply traumatic thing.

We know that, when you are going through a period of grief or a loss of a loved one, the last thing that you want is a level of uncertainty or ambiguity about what might be happening with your loved one's remains, so we certainly welcome the government taking this action. I will be watching the debate with interest in the committee stage. I would also be interested in the responses to some of the questions that the Hon. Kyam Maher has indicated that he will be raising on behalf of the Labor Party. For our part in the Greens, we will be supporting the legislation.

The Hon. R.I. LUCAS (Treasurer) (17:35): I thank honourable members for their contribution to the second reading of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I just have a couple of general questions, and clause 1 is probably the best place to do it. We have been told this arose particularly out of the former Anglican Church at Old Noarlunga. Is the Treasurer able to outline for the benefit of the committee what it is that was alleged to have occurred at the former Anglican Church in Old Noarlunga that gave rise to this bill?

The Hon. R.I. LUCAS: In broad terms, as I understand it, the new operators of the cemetery, when asked by a family member in relation to the burial of a particular family member, did not agree that there were any interment rights that existed. Their position was that there would have to be the purchase of a new burial site. I think that is a very general description of the nature of the dispute. There were a number of complaints, but that is the nature of the dispute, I guess, as one example.

The Hon. K.J. MAHER: Should we pass the bill that is before the committee at the moment, will the new offences created relate to what you have described in Old Noarlunga?

The Hon. R.I. LUCAS: Are they retrospective?

The Hon. K.J. MAHER: Yes, retrospective, or, if you do not recognise the interment right next week after it passes, they are not retrospective in that sense because it is the continuing behaviour into the future. Whether by retrospective effect or by the continuation of the behaviour of not recognising the interment rights being a prospective offence, is it intended that this will remedy the particular situation at the old Anglican Church in Old Noarlunga?

The Hon. R.I. LUCAS: My advice is that it is possible that it will cover the sort of circumstances the honourable member has outlined. I am advised that section 35(5) is the appropriate section, which says:

This section applies to the person or body for the time being responsible for the administration of the cemetery or natural burial ground regardless of when the interment right was issued—

is the operative phrase—

and regardless of whether the interment right was issued by that person or body or by some other person or body.

There obviously would be legal issues and maybe legal disputes over the issue, but 35(5) outlines a framework where it may well be possible to resolve the sorts of issues to which the honourable member has referred.

The Hon. K.J. MAHER: Just to check on that in relation to the question, where in the past these rights were not properly recognised, this bill can apply to those; that is, people can be prosecuted for not recognising the rights in the past as a result of this bill?

The Hon. R.I. LUCAS: Again, I cannot really add too much more, other than saying it is possible. There may well be legal argument about it with differing legal views being expressed, but the way it has been drafted is to potentially cover the sets of circumstance to which the honourable member has referred, and it is possible that that could result.

The Hon. K.J. MAHER: In the case where, for example—and I think this may have been the issue in the case in Old Noarlunga—the new owners have denied the interment rights and essentially have held a family member to ransom and got them to pay for new interment rights, in the past can the owner of the burial ground be prosecuted, even though the family may have stumped up for a new interment right?

The Hon. R.I. LUCAS: As much as I would like to be able to give the member a black and white answer to that, my advice is that I am just not in a position to give the member a definitive answer to that question. I cannot rule it in or rule it out. I guess it will be an issue that, should the legislation be passed in the form that is there, there is a framework within which some of these issues might be able to be resolved, but there may well be continuing legal dispute about what it actually means.

The Hon. C. BONAROS: I have a couple of questions in relation to the offences and in relation to clause 6 of the bill. In relation to the offences specifically, there are effectively two exemptions from the criminal penalties in 13(1b). It says in subsection (1a) that you cannot remove remains, but that does not apply in relation to cremated remains interred directly in the earth. Can someone explain that to me? Is it common practice, or practice at all, for the removal or reinterment of cremated remains for the upkeep of a cemetery? Is that normal practice now?

The Hon. R.I. LUCAS: Just on the first question, my advice is that if cremated remains are put directly into the soil they just become part of the soil.

The Hon. C. BONAROS: Is that scattering them?

The Hon. R.I. LUCAS: Yes. They become part of it, and therefore that is why that is drafted that way. Perhaps the honourable member could better explain the second question.

The Hon. C. BONAROS: (1c) says that (1a) does not apply to the removal or reinterment of cremated remains in a cemetery or natural ground, and it goes on to say where those works are being undertaken 'for the improvement or embellishment of the cemetery or natural burial ground, or the maintenance of repair' of that ground. I am just wondering if it is practised now, that if those things are being done we would be removing remains from the ground for embellishment or improvement or maintenance or anything else that is listed there.

The Hon. R.I. LUCAS: Let me provide some advice and the honourable member can indicate whether there are further questions. I am told yes. For example, cremated remains are often placed in a memorial wall. In certain circumstances, the memorial wall starts to crumble and therefore the cremated remains are removed, and in some circumstances the memorial wall might be renovated, improved, replaced or whatever it might happen to be, and then the cremated remains might be placed back in a new memorial wall or in a renovated memorial wall.

The Hon. C. BONAROS: When we say 'natural burial ground', would that extend to, for instance, a memorial wall?

The Hon. R.I. LUCAS: I am not sure that I actually understand this, but I am advised that, to answer the first part of the question, it is unlikely to apply in a natural burial ground, but if it did this provision allows for maintenance and whatever else it allows for, maintenance or repair of anything in or part of it. The advice seems to be that it is unlikely to occur.

The Hon. C. BONAROS: I am asking the question—perhaps I can put it this way: when I am buried, I do not want anyone digging me up, and so that is why I am asking the question. It is a selfish question, if you like, but I am trying to read that in the context of clause 6, which actually removes 'place of interment'. I would have thought something like a memorial wall would be a place of interment, as opposed to a natural burial ground. Maybe I am wrong; I am just trying to get some clarity. The natural burial ground is in the ground?

The Hon. R.I. LUCAS: Yes.

The Hon. C. BONAROS: I am just trying to understand in what circumstances it would be feasible to dig up someone's remains, that have not been scattered, from the soil.

The Hon. R.I. LUCAS: I am learning marginally more about burials and cremations. I am advised that there are possibly two sets of circumstances. That is, if someone is cremated and buried in some sort of container into the natural burial ground—not in a memorial wall—there may well be a set of circumstances where later on their partner in life wants to be buried with them. So you might dig up the first dead partner and dig and bury deeper. The person who is not cremated but gets buried might be buried and then the cremated remains in a container might go in above the partner's remains, so that they share the area.

The second example is where, I assumed cremated remains went into a container, but in some circumstances cremated remains can be buried in a natural burial ground. They just go into the soil and they become part of the soil. If that is the circumstance, if the honourable member was choosing that particular option, there might not be any way of preventing someone digging up your cremated remains if they have just become part of the natural soil, the natural burial ground in that particular area, if it is going to be maintained in some way.

The Hon. C. BONAROS: For the record, I will never be cremated. I understand about being interred directly into the ground and I also understand that in a natural burial, where we have a gravesite and a partner or another family member or whoever it may be passes, we dig up the earth and we place the other coffin inside, but that is never for the embellishment or improvement of the cemetery, that is simply to bury the other person.

I am curious as to why we talk about the embellishment or improvement of the cemetery as opposed to—is it just me not understanding that? The reason I am particularly curious is that I am wondering why we remove the words 'other place of interment' from the definition further down.

The Hon. R.I. LUCAS: If I can just return to the earlier question which is about embellishment and what work that does, I am advised that that may well be just putting borders or garden pots around, so embellishment in that particular sense. My adviser did not hear the last question in relation to one particular phrase so if the honourable member could just repeat it.

The Hon. C. BONAROS: I am wondering why in clause 6 we are actually removing or changing the definition from 'cemetery, natural burial ground or other place of interment' to 'cemetery or natural burial ground'. Why are we getting rid of 'other place of interment'?

The Hon. R.I. LUCAS: I am advised that it was a drafting issue. The view was that the two phrases 'cemetery or natural burial ground' covers the field and 'other place of interment' does not add anything extra so it was therefore deemed to be, from a drafting viewpoint, superfluous, and counsel advised to remove it because it did nothing.

The Hon. K.J. MAHER: For people who might be buying land that includes a cemetery, where does one go to find the public register for where cemeteries are located? If you are buying a decommissioned church or land, where would you go to search to find what your obligations are?

The Hon. R.I. LUCAS: I am advised that under section 53 there are requirements to keep a register—by each relevant authority—and that they must be made available for inspection by members of the public during ordinary office hours. You would go to the cemetery during ordinary office hours and you could inspect the register there. I am advised that under section 37 there is a register of interment rights. The section I have just referred to is a register of all the records but my advice is that in both cases you go to the cemetery and inspect them during ordinary office hours—that is the advice.

The Hon. K.J. MAHER: I thank the Treasurer for his answer. If it is a cemetery attached to a Lutheran church, for example, that has been decommissioned for four or five years and it may have been on the market for a couple of years and you are looking to buy it, where do you actually go to look at what rights—

The Hon. R.I. LUCAS: If there is no office, you mean?

The Hon. K.J. MAHER: If there is no office because it has been closed for five years. It might help if I clarify this. If the church itself is no longer operating—there is no office associated with the church, it has not been operating for five or 10 years but there is still the cemetery there that is being kept pursuant to the rights that those interred there have—and you are a potential buyer, where can you go to understand what your rights are if there is no office attached to it?

The Hon. R.I. LUCAS: What your rights are?

The Hon. K.J. MAHER: What the potential obligations are and the rights of those interred if you are a potential buyer.

The Hon. R.I. LUCAS: These questions are getting increasingly complex in terms of our ability to be able to respond to what ifs. The advice I have is, if you are going to close a cemetery, there are various procedures under the existing—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: If you are saying it is not operating for 10 years then—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: If the church is not there then there is no-one there operating it, so it cannot therefore be operating. If the church is closed for 10 years and there is no office there, then there is no-one running the cemetery so, in those circumstances, there are requirements for operators of cemeteries to transfer their ownership to somebody else and therefore the records would go possibly to local government or something like that, but I cannot give a definitive black-and-white answer for all the hypotheticals that the honourable member is asking of me, I am afraid.

The Hon. K.J. MAHER: This might be a much easier, straightforward question: is there a central register somewhere in South Australia that any member of the public can go to to see, on a piece of land, what—

The Hon. R.I. LUCAS: The answer is no.

The Hon. K.J. MAHER: Is there a mechanism that appears on a certificate of title that forewarns a potential buyer when there are obligations associated with a piece of land? If there is an encroachment or an easement or a mortgage, it will be registered generally on a certificate of title. If land is being sold and it has interment rights associated with it, how is a buyer warned of those in terms of documentation?

The Hon. R.I. LUCAS: Again, my advice is, if someone is purchasing a cemetery, he or she or they are inheriting the responsibilities and requirements of that cemetery, so I assume they would get the register and all that entails. I am not sure whether the honourable member is envisaging other sale options, but if you are purchasing a cemetery you would inherit the responsibilities of the previous cemetery owner.

The Hon. K.J. MAHER: What I am getting at is, for example, you are purchasing a rural property that had some thousands of acres.

The Hon. R.I. LUCAS: A rural property?

The Hon. K.J. MAHER: Yes, somewhere in a remote area perhaps that has, as part of thousands and thousands of acres, a cemetery. How does the buyer absolutely know that they are inheriting these obligations?

The Hon. R.I. LUCAS: Is the honourable member asking a question regarding a pastoralist running their own cemetery without being licensed?

The Hon. K.J. MAHER: No. Often when you buy land or even a big church property, you are not buying just the cemetery. I do not think anyone sets out to buy a cemetery. They are buying the land or the building that has a cemetery as a part of it. In very large properties, where it might not be obvious—because there are 50 gravestones right next to a church—that there are interment rights somewhere on that property, is there no mechanism to check a central register or no mechanism for these obligations that are going to be passed to you with the property you are purchasing to be recorded on the title? I had assumed there would be something on the title, as other obligations are.

The Hon. R.I. LUCAS: I do not know whether I can provide a black-and-white response to the honourable member. One would assume that if it has been a licensed or registered cemetery over the years in some way it has been recorded somewhere, but there is no central register of interment rights, to answer the honourable member's earlier question. That has not existed and does not exist. I think, on the honourable member's question, if you are purchasing a church with a cemetery next to it together with other land attached to it, then you will know about it. His original question was: if you buy large properties of rural land and there happens to be—

The Hon. K.J. Maher: Where it might not be as obvious that there is.

The Hon. R.I. LUCAS: But again, if you are operating a cemetery then you would imagine that someone in the local council area, or wherever it is, would be aware that there was a cemetery that was operating in that particular area. I do not know that I can be any more definitive in response to the member's questions than I have been.

The Hon. K.J. MAHER: I thank the Treasurer for that. It does go to highlight a concern we have with this. We are now creating criminal offences arising out of rights that someone might not be aware of. I would have thought when we are moving into the criminal space, knowing that these are part of a property would have been an important element, but I understand the government has obviously turned their mind to it and elected not to have it registered on titles or not to have a central register, even though they are creating criminal offences. If that is what the government wishes to do, that is their choice to proceed that way.

The Hon. R.I. LUCAS: All I can say is we have inherited a system that your government presided over for 16 years, so if this was a major issue that exercises the mind of the Leader of the Opposition he could have turned his mind to it at some time over the last 16 years. Putting that to the side, the only other general piece of advice I can give is that I am advised that the Land and Business (Sale and Conveyancing) Act requires a vendor to disclose things about the land. So if you are purchasing land there are some general requirements, evidently, under that act which require you as the vendor to disclose certain things about your land. Whether that covers a hidden, secret cemetery sitting somewhere on a big rural property or not, I do not know, but it may well be argued that it could.

The Hon. K.J. MAHER: Is the Treasurer suggesting that the failure to disclose could give rise to a defence to the criminal offence that this act is creating?

The Hon. R.I. LUCAS: Sorry, what is the question, again?

The Hon. K.J. MAHER: A failure to disclose gives rise to a defence against the criminal offence this legislation is creating; is that the suggestion?

The Hon. R.I. LUCAS: I am told under new section 35(6), in the example where a local government took over a cemetery from a church, which is not an uncommon example, I am told, it would be a defence for the local government in that case, if they took reasonable steps to identify interment rights in existence and those rights were not identified to the local government—that is, to the purchaser or the person or body that takes over the operation—that is a defence for them in relation to the provisions of the act. That is, they took reasonable steps to try to identify interment rights. If they were not identified to them by either a deliberate act or accident or the people who previously operated it just did not know, then that is a defence in this example to the local government.

The Hon. K.J. MAHER: I would like to sum up. I know we are creating new criminal offences that have not existed before and I think it is a fundamental principle that we regulate behaviour but we make sure people are aware of what it is they may be transgressing.

I would have thought that it would have been sensible, if we are creating criminal offences, to have at least some sort of central register or some way for these things to be recorded on titles, but that is not what the government has elected to do. I will put on the record here that I suspect this may cause further problems not having thought of that but this is how the government has chosen to do it. If those further problems arise, be it on the government's head.

I would like to, in finishing on clause 1—and I do not have any questions on any of the other clauses—pay tribute to the member for Kaurna in whose electorate the former Old Noarlunga Anglican Church resides. I note that the member for Kaurna, Chris Picton, has, I understand, had numerous correspondence with the Attorney-General and I suspect that is what gave rise to this bill, however poorly thought out some aspects of the bill may be. That is what the government has chosen to do but I congratulate the member for Kaurna on raising this issue.

The Hon. R.I. LUCAS: All I can say is the Leader of the Opposition can either move amendments to the bill if he chooses or we can look forward with interest, as we come up to a state election, to a properly costed policy from the opposition which indicates that they will establish a central register of all cemeteries and interment rights in the state. He and they can put that to the voting public.

Clause passed.

Remaining clauses (2 to 7) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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