Presentation on theme: "The South Australian Burial and Cremation Act 2013 and Burial and Cremation Regulations 2014 Local Government Association 2014 1."— Presentation transcript:
The South Australian Burial and Cremation Act 2013 and Burial and Cremation Regulations 2014 Local Government Association
Introductions PRESENTERS Robert Pitt Chief Executive Officer of the Adelaide Cemeteries Authority, managers of Enfield Memorial Park, Cheltenham Cemetery, West Terrace Cemetery and Smithfield Memorial Park President Cemeteries and Crematoria Association of S.A. (CCASA) Matthew Morgan Manager Industry and Information Services with Centennial Park Cemetery Authority, managers of Centennial Park Cemetery 2
PROGRAM for TODAY 10.00am to 11.15am - 1 st Session 11.15am to 11.30am - Morning Tea 11.30am – 12.30pm - 2 nd Session 12.30pm -1.00pm - Questions/Lunch/End Housekeeping Phones, Emergency Exits, Toilets. Please feel free to ask questions during the presentation. 3
LEARNING OUTCOMES of TODAY Better understanding of the requirements of the new Burial and Cremation Act 2013; and Burial and Cremation Regulations Setting the Scene History 2.Definitions 3.Establishing a new cemetery and natural burials 4.Required documentation and record keeping requirements. 5.Right of Instruction & mandatory procedures prior to interment. 6.Interment rights and the end of tenure. 7.Closing a cemetery. 8.Summary of key changes. 4
PART1: SETTING THE SCENE 5
Setting the Scene Takamore v Clark and Takamore  6 There is important public interest in the disposal of human remains. This is not only for reasons of public health and decency. The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family.
Burial and Cremation Legislation 2013 Key aim of the new legislation (Act & Regulations) is summed up in Clause 6 of the new Act; “It is the intention of Parliament that human remains be treated at all times with dignity and respect.” Suggest cemeteries also need to treat “remaining humans” at all times with dignity and respect” too. 7
CEMETERIES IN S.A. Database of over 480 cemeteries in South Australia. Estimated overwhelming majority are the responsibility of local government authorities (450 or more?) Nearly all are small local cemeteries in various states of presentation. Many managed by volunteers. From experience, the responsibilities for administering local cemeteries in Councils varies from a long-term dedicated employee to an often changing staff member in administrative/clerical roles. Valued by local communities. Usually a local champion (person or “friends of” group) for the cemetery. Areas of open space for passive recreation & contemplation. Preserve memories. CCASA 74 members; 54 are local, town or regional councils. 8
Setting the Scene: Burial and Cremation Legislation Acts and Regulations The first Act for the Regulation of Cemeteries in South Australia was passed in 1862,but until 1890 it was not an offence to inter a human body in a church or a place other than a public cemetery. In November 1934 the Local Government Act 1934 came into operation, making it an offence to inter a human body in a church or place (other than a public cemetery) within a municipality or in a township in any district (s. 593). This provision was contained in Part 30 of the Act which was not repealed when the Local Government Act 1999 came into effect on 1 January Cremation Act 1891, was reviewed in the late 1990s leading to the enactment of the Cremation Act
Setting the Scene: Burial and Cremation Legislation Select Committees 1983 Select Committee of the Legislative Council on the Disposal of Human Remains in South Australia. 1986 report tabled recommending the consolidation and reform of the fragmented legislation of the State regulating the disposal of human remains, including the administration of cemeteries and crematoria and the management of interment sites and memorials. First draft legislation, the 'Disposal of Human Remains Bill' released for public consultation in 1991 and underwent a long period of extensive consultation but was not proceeded with. 2002 House of Assembly Select Committee reported in 2002 Committee gave more consideration to cemetery preservation issues. Recommended a number of changes that have been incorporated into the new, consolidated legislation, i.e.. removal of limited tenure. 10
Setting the Scene: Burial and Cremation Legislation 2013 Acts and Regulations As of 1 February 2014 cemetery and cremation legislation changed. For the cemeteries, the new Burial and Cremation Act 2013 and the Burial and Cremation Regulations 2014 (Gazetted on 23 January 2014) represents first major change/overhaul to cemetery laws since 1934 (80 years). Consolidates cemetery, cremation and burial legislation. On-line at 11
Setting the Scene: Legislative Framework The Legislative Framework - Acts and Regulations Act of Parliament or “Act” is a Bill that has been enacted by Parliament and assented to by the Governor. An Act contains statements and the overarching rules for a particular policy/topic. Matters of detail and operational matters likely to experience frequent change are generally contained in subordinate legislation ie., Regulations. Regulations do not need to be passed by Parliament and assented by the Governor. They are approved by State Cabinet and gazetted prior to coming into law. Therefore, Regulations can be more easily amended over time if required. 12
Burial and Cremation Act 2013 The new Act The Burial and Cremation Act 2013 repeals (replaces) Part XXX of the Local Government Act 1934 and the Cremation Act The former two Acts had a combined total of 21 clauses. The new Burial and Cremation Act 2013 has 66 clauses. New Act presents major changes for establishing cemeteries but not significant changes for managing and operating them. A number of clauses in the new Burial and Cremation Act 2013 have been sourced and copied exactly from the former Local Government Cemetery Regulations
Burial and Cremation Legislation 2013 The new Act Of the 66 clauses in the new Burial and Cremation Act 2013; 10 clauses relate to interment rights which have changed little from the previous Regulations (now elevated into the Act). 10 relate to the power to establish and close cemeteries including natural burial grounds. Establishing a cemetery no longer a Council responsibility. New Act s.19—Establishment of cemeteries, natural burial grounds and crematoria: Subject to this Act, any person may establish a cemetery, natural burial ground or crematorium. 13 clauses relate to offences & exemptions. Fines now up from $200 maximum to $10,000 and 2 years goal. 14
Burial and Cremation Legislation 2013 The new Regulations Clause 66 of the Act states that the Regulations may be made to support the Act. The Burial and Cremation Regulations 2014 repeals (replaces) the Local Government Cemetery Regulations 2010 and the Cremation Regulations The former two sets of Regulations Acts had a combined total of 38 clauses (Regulations). The new Burial and Cremation Regulations 2014 has 36 clauses. Many of the former Regulations are now enshrined in the new Burial and Cremation Act 2013 or have been transposed to the new Regulations. 15
PART 2: DEFINTIONS 16
DEFINITIONS (s. 3 Interpretation in the Act) 17 HUMAN REMAINS includes Bodily remains the whole or part of the body (whatever physical state) but does not include cremated remains, and Cremated Remains bodily remains that have been reduced by cremation; and The remains of a still-born child DISPOSAL of human remains means Cremation of bodily remains; or Burial of bodily remains (including burial at sea); or Placement of bodily or cremated remains in a mausoleum, vault, columbarium or other structure. INTERMENT of human remains means The placement of human remains in a mausoleum, vault, columbarium or other structure designed for the placement of such remains; or The burial in the earth of human remains (directly in the earth or in a container).
DEFINITIONS personal representative of a deceased person means a person aged 18 years or more who is — (a)the executor of the estate of the deceased person or, if there is more than 1 executor, 1 of the executors acting with the permission of all the other executors; or (b)the administrator of the estate of the deceased person 18
DEFINITIONS CLOSE RELATIVE of a deceased person means— ( a)a spouse or domestic partner of the deceased; or (b )a child of the deceased of or over the age of 18 years; or (c)a parent of the deceased; or (d) a brother or sister of the deceased of or over the age of 18 years; or (e)if the deceased person was an Aboriginal person or Torres Strait Islander—a person who is an appropriate person according to the tradition or custom of the community to which the deceased person belonged; 19
DEFINITIONS Interment Site means— a mausoleum, vault, columbarium or other structure in which human remains are interred; or a site in which human remains are buried; 20
DEFINITIONS Interment Right means; An interment right issued under this Act by the relevant cemetery authority for a cemetery or natural burial ground. Recommend the term “interment right” be used in documentation and in language instead of “lease”, “licence” or “grant”. Different legal interpretations. 21
DEFINITIONS Natural Burial of human remains means burial in the ground — (a)without preparation of the remains using chemical preservatives; and (b)by containment of the remains only in a shroud or biodegradable coffin. 22
DEFINITIONS Lift and Deepen Procedure means a procedure that consists of— (a)opening an interment site; and (b)recovering any human remains interred in the site; and (c)deepening or otherwise enlarging the interment site; and (d)re ‑ interring the existing human remains in the place of interment, whether contained in a receptacle or not, so as to provide space for additional interments in the site; 23
PART 3: ESTABLISHING A NEW CEMETERY & NATURAL BURIALS 24
ESTABLISHING A NEW CEMETERY & NATURAL BURIALS 25 Division 1—Establishment of cemeteries, natural burial grounds and crematoria s19—Establishment of cemeteries, natural burial grounds and crematoria Subject to this Act, any person may establish a cemetery, natural burial ground or crematorium. Previous legislation did not exclude privately owned cemeteries
ESTABLISHING A NEW CEMETERY & NATURAL BURIALS 26 Formerly s585 of Part XXX of the Local Government Act 1934 stated; “The Council must, if of the opinion that there is no adequate provision (whether within or outside the area) for the burial of persons dying within the area, make such provision by the establishment of a public cemetery. This obligation no longer applies.
ESTABLISHING A NEW CEMETERY & NATURAL BURIALS 27 s20—Power of councils to establish and manage public mortuaries A council may establish and manage public mortuaries for the temporary repose of bodily remains prior to their disposal. s21—Establishment of mausolea within cemeteries The relevant authority for a cemetery may, on its own initiative or on application by any person, establish mausolea within the cemetery. s22—Designation of natural burial grounds within cemeteries The relevant authority for a cemetery may set apart any part of the cemetery as a natural burial ground. s23—Power to set apart part of cemetery or natural burial ground for particular religions The relevant authority for a cemetery or natural burial ground may set apart any part of the cemetery or natural burial ground for the interment of human remains in accordance with the customs and practices of a particular religion.
Natural Burials – Wirra Wonga Established 2009 Since establishment 62 sites sold 4% of burials at EMP & 2% of total Authority burials.
Conditions No chemical preservatives during embalming process. Body encased in simple shroud or biodegradable casket. Remains returned to the earth to decompose naturally. No individual memorials permitted. Each grave planted with a tree or shrub from the Folland reserve native plant species list. Wirra Wonga will ultimately become a rich, diverse and self- sustaining ecosystem.
QUESTION: CAN YOU BE BURIED OUTSIDE A DESIGNATED CEMETERY? 30
BURIAL OUTSIDE A DESIGNATED CEMETERY 8—Offence to dispose of bodily remains except in cemetery or natural burial ground (1)Subject to subsection (2), a person must not, without the approval of the Attorney ‑ General, inter bodily remains, or cause, suffer or permit bodily remains to be interred, except in a lawfully established cemetery or natural burial ground.subsection (2) Maximum penalty: $ or imprisonment for 2 years. (2)A person may inter bodily remains in a prescribed area on land outside a cemetery or natural burial ground with the permission of the owner of the land and— (a)in the case of land within a council area— (i)with the approval of the council for the area in which the land is situated; and (ii)in accordance with the regulations; or (b)in any other case—in accordance with the regulations. 31
BURIAL OUTSIDE A DESIGNATED CEMETERY (4) In this section— prescribed area means— an area outside a township or Metropolitan Adelaide; or an area defined by the regulations. 32
BURIAL OUTSIDE A DESIGNATED CEMETERY Births, Deaths and Marriages Registration Variation Regulations 2013—Variation of regulation 10—Particulars of death to be included in the Register (2) If the deceased's remains were interred in a prescribed area outside a cemetery or natural burial ground, the entry to be made in the Register as to the place of disposal must include— (a) the address of the property where the deceased's remains were interred; and (b) the certificate of title reference for the property; and (c) the GPS coordinates of the interment site; 33
BURIAL OUTSIDE A DESIGNATED CEMETERY 8—Offence to dispose of bodily remains except in cemetery or natural burial ground (3) A person must not, without the approval of the Attorney ‑ General, dispose of bodily remains by burial at sea, or cause, suffer or permit bodily remains to be disposed of by burial at sea. Maximum penalty: $ or imprisonment for 2 years. 34
PART 4: DOCUMENTATION & RECORD KEEPING 35
PART 4: DOCUMENTATION & RECORD KEEPING 36 SECTION 30 of the ACT ISSUE OF INTERMENT RIGHTS - if you agree to inter you MUST issue an interment right as previously detailed in the definition. BEFORE ISSUING AN INTERMENT RIGHT to a person the authority must give the person a written Plain English Statement (PES) that Includes all the information required in the interment right; and Sets out the rights and responsibilities of the authority and the relatives of the deceased in relation to any memorial (including any unclaimed memorial) to the deceased person; and Specifies the cost of the interment right; and Specifies any option for periodic payment for the interment right Note that it is the rights of the relatives to a memorial which the Act says is the property of the interment right holder; and be careful regarding periodic payment for the interment right as once the interment has taken place what are your options for debt collection?
DOCUMENTATION & RECORD KEEPING 37 SECTION 30 of the ACT (Cont) An interment right may provide for such numbers of interments at the site that the authority considers is within the capacity of the site. AN ITERMENT RIGHT OBLIGES the authority –To permit the interment of the remains of the person to whom it relates at the site identifies in, or determined in accordance with, the interment right; and –To permit a memorial to the deceased person to be erected at the site with the approval of the authority and in accordance with the interment right; and –To leave the remains undisturbed at the site for as long as the interment right remains in force; and –To leave any memorial to the deceased lawfully erected at the site, with the permission of the relevant authority, undisturbed (provided the interment right remains in force and the memorial is kept in good repair). –The authority may, at the request of the interment right holder, carry out a lift and deepen for the purpose of interring additional human remains.
DOCUMENTATION & RECORD KEEPING 38 REGISTER OF INTERMENT RIGHTS SECTIONS 37 and 53 of the ACT –The relevant authority must keep a register of all interment rights issued by the authority, –The authority must record in the register the location of and number allocated to, or a description of, each site in the cemetery in respect of an interment right has been issued. REGULATION 36(1) –The full name and address of the interment right holder; –If the interment right identifies the person or persons whose remains may be interred pursuant to the interment right – the full names of the persons; –If the interment right identifies the site at which the remains may be interred – the location of the interment site; –The period for which the interment right has been issued.
DOCUMENTATION & RECORD KEEPING 39 REGISTER OF INTERMENTS SECTION 53(1)(a) 53(1b)(iii) of the ACT and REGULATION 36(3) –The relevant authority must keep a register that, i.Identifies (as far as possible) persons whose remains are interred in the cemetery; and ii.Identifies the site in which the remains of each such person are interred; and iii.Records exhumations of human remains interred in the cemetery. –The register must also include details if each interment and re-interment a)The name of the deceased person whose remains are interred b)The age of the deceased person at the date of death c)The address of the last place of residence of the deceased prior to death d)The date of interment or re-interment e) the location of the interment site and number (if any) allocated to the site f)Whether the remains were bodily or cremated remains
DOCUMENTATION & RECORD KEEPING 40 REGISTER OF INTERMENTS SECTION 53(1)(a) 53(1b)(iii) of the ACT and REGULATION 36(3) g)In the case of bodily remains – i.Whether the remains were interred or re-interred in a coffin, other receptacle or in a shroud only; and ii.Whether the remains were interred or re-interred within a mausoleum or vault; and iii.The depth at which the remains were interred or re-interred h)In the case of cremated remains – whether the remains were interred or re-interred in a cinerary urn or other container or directly in the earth; i)In the case of remains interred or re-interred in a mausoleum or vault i.The location of the mausoleum or vault in the cemetery; and ii.If there is more than one compartment – the compartment in which the remains were interred; and iii.If the remains were interred in a vault – A.The number allocated to the vault ; and B.The depth of cover between the highest point of the vault and the surface of the ground.
DOCUMENTATION & RECORD KEEPING 41 REGISTER OF MEMORIALS SECTION 53(1)(b)(ii) of the ACT and REGULATION 36(2) –The relevant authority must keep a register of memorials erected that includes details a)The size of the memorial b)The type of memorial c)The names or names inscribed on the memorial d)Any epitaphs and other inscriptions on the memorial e) the location of the memorial in the cemetery
DOCUMENTATION & RECORD KEEPING 42 REGISTER OF MEMORIALS PLAN OF THE CEMETERY SECTION 53(1)(c)of the ACT –The relevant authority must keep plan of the cemetery that shows i.Each site at which human remains are interred; and ii.Each site set aside for the interment of human remains.
DOCUMENTATION & RECORD KEEPING 43 REGISTER OF CREMATIONS SECTION 53(3) of the ACT and REGULATION 36(4) –The relevant authority for a crematorium must keep prescribes records of cremations carried out at the crematorium that includes a)The name and gender of the deceased person whose bodily remains were cremated; b)The age of the deceased person at the date of death c)The particulars set out in the certificate of identification relating to the deceased person whose bodily remains were cremated; d)The full name and address of the person to whom the cremation permit was issued e) The date on which the cremation took place f)The date on which the cremated remains were collected and the identity of the person who collected them; g)If known by the authority – the manner of disposition of the cremated remains. Regulation 36(5) keeps the identity of living people (interment right holder, personal representative and cremation applicant) private.
DOCUMENTATION & RECORD KEEPING 44 REGISTERS TO BE AVAILABLE FOR INSPECTION SECTION 53(4) and (5) of the ACT –The registers kept by a relevant authority must be made available for inspection by members of the public during ordinary office hours on payment of a fee fixed by the authority –A relevant authority must, at the request of an authorised person, produce a register kept by the authority under this section for inspection by that authorised person. Section 53 of the Act does not come into force until August This gives authorities who do not have registers of this kind in place to get their house in order. Penalties of $5,000 exist under each subsection. Electronic register may be sufficient so long as a print out can be supplied – it would be dangerous to allow the public to have unfettered access to an electronic record.
PART 5: RIGHT OF INSTRUCTION & MANDATORY PROCEDURES PRIOR TO INTERMENT 45
RIGHT OF INSTRUCTION & MANDATORY PROCEDURES PRIOR TO INTERMENT (refer to r32 on Page 13 of Regulations) s35 the Act—Exercise or enforcement of interment rights (1)If the holder of an interment right has died, the interment right may be exercised or enforced by— (a)the personal representative of the deceased; or (b)if there is no personal representative—a person determined in accordance with the regulations. (r32) (2)If an interment right is held by more than 1 person, it may be exercised or enforced jointly or severally. Useful clause – formerly defined under 16 th century English common law and not clear – now clarified. s36—Interment right not required for scattering of cremated remains 46
IDENTIFICATION Identification of Deceased now required for burial as well as cremation. – Major change but consistent and reduces risk of interment error. s12 in the Act (2) Subject to this section, a person must not cremate or inter bodily remains, or cause, suffer or permit the cremation or interment of bodily remains, unless he or she has seen— (a)a partial certificate of cause of death; or (b)a disposal authorisation; or (c)an authorisation to dispose of human remains granted by the Minister or the Registrar under this section, And has recorded the prescribed particulars relating to the certificate or authorisation. Key challenge for some Councils – cemetery authority must witness and record partial certificate or disposal authorisation prior to interment. Not always been the case. 47
TRANSPORTATION OF REMAINS Transportation of remains – no changes for cemeteries (1) A person must not transport, or cause, suffer or permit the transportation of, bodily remains within a cemetery or natural burial ground unless— (a) the remains are contained in a coffin or other rigid container from which no bodily discharges, contaminants or infectious substances may escape; or (b)the remains are— (i)affixed or otherwise secured to a rigid base to prevent movement; and (ii)contained within a shroud or other wrapping from which no bodily discharges, contaminants or infectious substances may escape. Stricter guidelines for secure transport outside cemeteries 49
r17—Interment of name plate with human remains (1) A person must not inter, or cause, suffer or permit the interment of, bodily remains in a cemetery or natural burial ground unless a name plate made of a durable material with the surname, at least 1 given name and the date of the death of the deceased engraved, printed or stamped on it in a manner approved by the designated Minister is— (a) in the case of remains interred in a coffin—affixed to the coffin; or (b) in the case of remains interred without a coffin—placed on top of the remains. Interment can occur in a shroud. Coffin not required. S44 in Act recognises multicultural rights. (2) A person must not inter, or cause, suffer or permit the interment of, cremated remains in a cemetery or natural burial ground unless a name plate made of a durable material with the surname, at least 1 given name and the date of the death of the deceased engraved, printed or stamped on it in a manner approved by the relevant authority for the cemetery or natural burial ground is affixed to the outside of, or placed within, the receptacle that contains the remains. (3) Subregulation (2) does not apply in relation to the interment of cremated remains in the earth without a container. 50
DEPTH OF INTERMENT No change in requirements from previous Regulations r15—Depth of interment (1) A person must not inter, or cause, suffer or permit the interment of, bodily remains in a cemetery or natural burial ground so that any of the remains are at a depth of less than 1 metre from the surface of the ground. (2) Subregulation (1) does not apply to the interment of bodily remains in a mausoleum or vault in accordance with regulation 18.Subregulation (1) regulation 18 51
LIFT & DEEPEN and EXHUMATION R11 and s13(2)(b) of the Act. Lift and deepen now defined (s3 Act) and recognised – potentially will become nationally used industry terminology Exhumation is defined in the Act as the the removal of bodily remains from a mausoleum, underground vault or other structure. Division 3, s13 requires the approval of the Attorney General for an exhumation and to seek the view of the respective cemetery authority. The AG must also “make a reasonable attempt to ascertain the views of the surviving close relatives of the deceased person.” 52
PART 6: INTERMENT RIGHTS AND END OF TENURE 53
Burial and Cremation Legislation Interment Rights and End of Tenure 54 DURATION OF INTERMENT RIGHTS SECTION 31 –The authority may issue an interment right a)For the period specified in the interment right; or b)In perpetuity (New Act removes limited tenure of 99 years) RENEWAL OF INTERMENT RIGHTS SECTION 32 and REGULATION 30 –The authority must on application by the interment right holder and payment of the renewal fee fixed by the authority, renew the interment right for a period of not less than 5 years. –Subject to the regulations, the authority must, at least 12 months before an interment right is due to expire, take reasonable steps to give the holder of the interment right a written notice in a form approved by the Minister - a)Setting out the rights of renewal; b)If the interment right is not renewed that any memorial it may be reclaimed from the authority i.That if the interment right is not renewed reuse may occur ii.The cost to renew.
Burial and Cremation Legislation Interment Rights and End of Tenure 55 RENEWAL OF INTERMENT RIGHTS SECTION 32 and REGULATION 30 (Cont) –If –a person other than the person to whom the interment right was originally issued applies for the renewal of the interment right; and –The applicant has not previously renewed that interment right the authority must give the applicant a Plain English Statement TRANSFER OF INTERMENT RIGHTS SECTION 33 –An interment right may be transferred but a)The consideration payable for the transfer must not exceed the current fee payable for an issue of an interment right of the same kind; and b)The interment right may contain conditions limiting the right of transfer to persons who adhere to a particular religion or group. –The Minister may set aside the first provision to a class as determined –A transfer does not take effect until it is recorded by the authority in its register of interment rights.
Burial and Cremation Legislation Interment Rights and End of Tenure 56 SURRENDER OF INTERMENT RIGHTS SECTION 34 and REGULATION 31 –The interment right holder may surrender the interment right to the authority that issued it. –On the surrender of an unexercised interment right, the authority must give a refund to the former interment right holder equivalent 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. an unexercised interment right means a current interment right under which a)Human remains are yet to be interred; and b)A memorial is yet to be erected This means that if an interment has occurred or a memorial erected then it has been exercised. The calculation of the refund differs whether the licence was for a fixed term or in perpetuity. Consult with your finance department for the interpretation and calculation.
Burial and Cremation Legislation Interment Rights and End of Tenure 57 EXERCISE OR ENFORCEMENT OF INTERMENT RIGHTS SECTION 35 and REGULATION 32 –If the interment right holder has died, the interment right may be exercised or enforced by – a)The personal representative of the deceased; or b)If there is no personal representative by the spouse or domestic partner of the deceased; or If there is no surviving spouse or domestic partner – by the eldest living relative in the following descending order – i.A child ii.A grandchild or great-grandchild iii.A brother or sister; iv.A parent; v.A grandparent; vi.An aunt or uncle; vii.A nephew or niece; viii.A cousin; ix.Any other blood relative The definition of a relative of a deceased person means a person aged 18 years or more there is no mention of legally capable.
Burial and Cremation Legislation Interment Rights and End of Tenure 58 RE-USE OF INTERMENT SITES SECTION 38 and REGULATION 33 –Subject to the Act, if an interment right expires, the relevant authority may – a)Re-use the interment site; and b)Remove any memorial to a deceased person erected on or at the site. –The authority must not act to re-use unless - a)It has given notice of its intent to re-use by public advertisement in a newspaper circulating throughout the state; and b)It has taken reasonable steps to give written notice of its intent to re-use to the personal representative of the deceased or 1 or more relatives of the deceased; and If there is more than one deceased in the site with more than one personal representative you may have to write to them all. In any situation the issue is whether you know of any relative of the deceased and there whereabouts.
Burial and Cremation Legislation Interment Rights and End of Tenure 59 RE-USE OF INTERMENT SITES SECTION 38 and REGULATION 33 (Cont) c)Either – i.The personal representative or relative of the deceased has informed the relevant authority that there is no objection on the part of the relatives to the re-use of the interment site; or ii.2 years have elapsed from the date on which notice of intent to re- use was given under b) and the interment right has not been renewed. –The advertisement or notice referred to in this section must a)Set out the rights to renewal of the interment right; and b)Informs the personal representative or relative of the deceased that the owner of the memorial (the interment right holder) may reclaim the memorial; and c)To reiterate part c) above It should be noted that under Regulation 12 any remains found while preparing a site for re-use can be placed lower at the site or transferred to an Ossuary if they cannot go lower in the interment site.
Burial and Cremation Legislation Interment Rights and End of Tenure 60 MEMORIALS SECTION 39 to 41 –The memorial is the personal property of the interment right holder irrespective of when the memorial was erected (i.e. even before 1st February 2014). –So long as the authority follows the Act and Regulations it may dispose of a memorial –The interment right holder has the obligation to maintain the memorial or may contract the authority to do so –If the memorial become unsafe the authority may give notice to repair the memorial to the interment right holder to carry out repairs –If the repairs are not done the authority may do the repairs and then recover the cost from the interment right holder. –If the matter is urgent the authority may act to repair the memorial on the grounds of safety and then seek to recover the cost
Burial and Cremation Legislation Interment Rights and End of Tenure 61 MEMORIALS SECTION 42 and REGULATION 34 If - a)2 years or more have elapsed i.Since an interment site has expired; or ii.Since a cemetery was dedicated as parklands or converted into a public park or garden; and b)A memorial to the deceased is situated at the interment site or elsewhere in the cemetery; and c)The authority has given notice of its intention to remove and dispose of the memorial – i.By public advertisement in a newspaper circulating throughout the State; and ii.By written notice affixed to the memorial; and d)The authority has taken reasonable steps to give written notice to the owner of the memorial of its intention to remove and dispose of the memorial; and e)Six months has elapsed since notice under the section and the memorial is not claimed.
Burial and Cremation Legislation Interment Rights and End of Tenure 62 MEMORIALS SECTION 42 and REGULATION 34 (Cont)- The authority may remove the memorial from the cemetery and dispose of it as it thinks fit. ̶ If the memorial is disposed of by the authority it must keep prescribed records in relation to the memorial that must include – a)A digital photograph of the memorial that shows -– i.Any inscription on the memorial; and ii.The design of the memorial; and b)Particulars of the previous location of the memorial within the cemetery; and c)If not evident from the digital photograph – details of the materials from which the memorial was made.
Offences & Closing a Cemetery 63
AUTHORISED OFFICERS s58 Act —Authorised officers (1)The Minister may appoint a person to be an authorised officer for the purposes of this Act. (2)A council may appoint as an authorised officer a specified officer or employee of the council, or an officer or employee of the council of a specified class. s59 of the Act defines the powers of authorised officers; 64
OFFENCES S7, 8 and 9 state offences relating to disposal other than cremation or burial and offences relating to these processes. S64 worth reviewing – “each member of the body corporate is guilty of an offence … Regulations 22 to 25 set out the need for cemeteries to be securely fenced, dangerous driving and prohibited activities. 65
CLOSING A CEMETERY s24 to 28 in the Act set out the requirements for closing a cemetery or natural burial ground. Subject to this section, the relevant authority for a cemetery or natural burial ground may close the cemetery or natural burial ground if— (a)the cemetery or natural burial ground is or has become unsuitable for the disposal of human remains; or (b)50 or more years have elapsed since human remains were last interred in the cemetery or natural burial ground. and………in the case of a cemetery or natural burial ground for which a council is the relevant authority—the Minister has approved the closure. The requirements of s and disposal requirements in s51 and 52 are rigorous and comprehensive and include but are not limited to prescribed community consultation processes preservation of monuments, retention of cemetery records. Seek to close a cemetery at your own peril!!!!! 66
SUMMARY OF CHANGES In the new Act Main changes or new elements in the Burial and Cremation Act 2013; Definitions Removes 99 year limit for grants of interment. Perpetual leases now possible, but ACA undecided Certificate of identification required for burial now as well as cremation. Ownership of memorial clarified – previously not clear The authority must accept a renewal fee from the interment right holder for no less than five years Burial outside gazetted (designated) cemetery Compulsory refund (major impact for cemetery authorities) Register of cemetery records and plans (from August 2014) Authorised officers 10 relate to the power to establish and close cemeteries including natural burial grounds. No longer Council responsibility. 13 clauses relate to offences, exemptions. Fines now up from $200 maximum to $10,
SUMMARY OF CHANGES In the new Regulations Of the 38 Regulations, the majority are the same or have the same intent as previous legislation. Main changes are; Definitions (Regulation 3) Bodily remains not to be removed from place of death until identified and tagged (Regulation 5) – issue for FDs and medical practitioners. I.D. of bodily remains prior to burial. (Regulation 7) Potential issue for some Councils. Document to be provided prior to disposal (Regulation 9) FD to forward certificate of I.D. (Regulation 10) Removal of remains to ossuary (Regulation 12) Transport of remains (Regulation 12 – minor) Retention of nameplate (Regulation 21) Surrender of interment right (unexercised) (Regulation 31 & Schedule 1) Exercise of Enforcement of Interment Right (Regulation 32) Now law. Disposal of memorial (Regulation 33) Registers and records (Regulation 36) Cremation Forms – no longer in Regulations – designed & issued by BDM 68 a
FORMS TO BE CHANGED Plain English Statement (to include new or renewal of interment right) Rights of Interments (“Grant Documents” – some Councils don’t issues these – they must) Burial Booking Sheets Pre-Paid Certificates Monumental Mason’s Permits CCASA seeking to develop generic forms for use throughout S.A. Issue for funeral directors with plethora of forms. CCASA Information Day 2014, Friday April 11 th. 69 a
Burial and Cremation Legislation 2013 We need to; Work through issues and enquiries Work with Funeral Directors and BDM to resolve issues to ensure there is no distress or delays for families and loved ones. Record issues for follow up – anything that is patently not working will be referred for discussion with the Minister for amending. Review forms to comply with the new legislation. Documents and forms required to be reviewed. CCASA can help 70 a
Burial and Cremation Legislation 2013 ……..QUESTIONS? 71