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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-06-02 Daily Xml
Contents
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Bills

Burial and Cremation (Interment Rights) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (11:02): Obtained leave and introduced a bill for an act to amend the Burial and Cremation Act 2013. Read a first time.

Second Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (11:03): I move:

That this bill be now read a second time.

I rise to introduce the Burial and Cremation (Interment Rights) Bill 2022. This bill amends the Burial and Cremation Act 2013 (the act) to strengthen the ability to enforce interment rights. The government has moved to reintroduce amendments proposed by the Burial and Cremation (Interment Rights) Amendment Bill 2021, which was introduced last year but lapsed at the end of sittings—another bill that was not completed in time and followed through by the government towards the end of the last term.

The new government has taken the step to push this bill through within the first weeks of sitting. It recognises the importance of clarifying the legal status of interment rights and preventing future conflicts such as the situation at the former St Philips and St James Church Cemetery at Old Noarlunga, discussed last year during the debate on the lapsed bill.

While the urgency of this bill has dissipated, the government believes that interment right holders and their families should be better protected and any failure to meet obligations should be the subject of tough penalties. When the 2020-21 bill was being debated last year, I had questions as to whether there should be a central register or some other way for cemeteries and interment rights to be recorded on certificates of title. This is a larger body of work and I have asked the Attorney-General's Department to investigate the plausibility of such reform, noting that there is no immediate urgency for establishing this recording platform given there is already a means to determine whether interment rights exist. If further legislative amendments are appropriate, it will be progressed separately in a subsequent bill.

The bill amends section 13 of the act to provide added protections around cremated remains that have been interred in an interment site in a cemetery or natural burial ground. New section 13(1a) makes it an offence to remove cremated remains from an interment site or re-inter cremated remains that have been removed from an interment site without the consent of the interment right holder or, if the interment right holder has died, their representative or other persons prescribed by the regulations.

A maximum penalty for the offences is $10,000. The offences in new section 13(1a) would not apply where cremated remains have been interred directly into the earth. The offences also do not apply where a relevant authority for a cemetery or natural burial ground removes and re-inters remains to enable the improvement or embellishment of the cemetery or natural burial ground or for maintenance work or repair to be undertaken in respect of the cemetery or natural burial ground.

The bill inserts a new subsection (3) in section 35 of the act to express that any interment right can be enforced against the relevant authority for the cemetery or natural burial ground in respect of which the interment right was issued. The new obligation applies to the person or body responsible for administering the cemetery or natural burial ground, regardless of when the interment right was issued and regardless of whether it was issued by the person or body or some other personal body, i.e. a previous owner.

Failure to comply with the obligation will result in a maximum penalty of $10,000 for an individual or $20,000 for a body corporate. New section 35(6) makes it clear that it is not a defence that the defendant was not aware of the existence of the interment right when they assumed administration of the cemetery or natural burial ground unless the defendant proves that they took reasonable steps to identify interment rights in existence at the time that the defendant assumed the administration of the cemetery or natural burial ground.

The bill also makes a number of technical changes to the act. The bill contains a clarifying amendment to section 38(3)(b) of the act to clarify that the former holder of the interment right has the right to reclaim a memorial from the relevant cemetery authority. The bill makes a minor technical amendment to section 39(1) of the act, which deals with the ownership of memorials, to remove an unnecessary reference to the other place of interment. Interment rights are issued only in respect of interment sites in cemeteries and natural burial grounds, therefore the words 'or other place of interment' are unnecessary.

There is also an amendment to section 42(1)(a)(i) to remove an incorrect reference to an interment site that should be replaced with a reference to an interment right in respect of an interment site. This bill will clarify the legality and enforceability of interment rights so that families can feel protected when they secure interment rights in a cemetery or natural burial ground. Further, the new offences will operate as a deterrent to those who might seek to wilfully ignore or refuse to honour these obligations. I commend the bill to members and seek to insert the explanation of clauses without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Burial and Cremation Act 2013

3—Amendment of section 13—Offences

This clause amends section 13 to create a new offence of removing cremated remains from an interment site in a cemetery or natural burial ground, or re-interring in a cemetery or natural burial ground cremated remains that have been removed from an interment site (or causing, suffering or permitting such acts) while an interment right is in force in relation to the interment site unless authorised to do so by the interment right holder, or if the interment right holder has died, a person referred to in section 35(1).

The proposed maximum penalty for the offence is $10,000. The offence will not apply to cremated remains interred directly in the ground. It will also not apply to the removal or re-interment of cremated remains by a relevant authority for a cemetery or natural burial ground if it is done to enable the carrying out of improvement or embellishment works in the cemetery or natural burial ground, or maintenance or repairs in the cemetery or natural burial ground.

4—Amendment of section 35—Exercise and enforcement of interment rights

This clause amends section 35 to make it clear that an interment right may be enforced against the relevant authority for the cemetery or natural burial ground in respect of which the interment right was issued.

It also makes it an offence for the relevant authority for a cemetery or natural burial ground to fail to comply with its obligations under an interment right issued in respect of the cemetery or natural burial ground. The proposed maximum penalty is $10,000 if the offender is a natural person and $20,000 if the offender is a body corporate.

It will not be a defence to a charge of an offence that the defendant was not aware of the existence of the interment right when the defendant assumed the administration of the cemetery or natural burial ground unless the defendant proves that the defendant took reasonable steps to identify interment rights in existence at the time that the defendant assumed the administration of the cemetery or natural burial ground.

A further provision makes it clear that section 35 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, and regardless of whether the interment right was issued by that person or body or by some other person or body.

5—Amendment of section 38—Re-use of interment sites

This clause amends section 38 so that it refers to the former holder of an interment right where an interment right has expired.

6—Amendment of section 39—Ownership of memorial

This clause makes a minor technical amendment to section 39.

7—Amendment of section 42—Power of relevant authority to dispose of unclaimed memorial

This clause amends section 42 to correct a reference in subsection (1)(a)(i).

Debate adjourned on motion of Hon. N.J. Centofanti.

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