Counsel: MS M SHAW QC WITH HER MR D HAINES - Solicitors: DONALDSON WALSH

Counsel: MR S RODER - Solicitors: CARPENTER & ASSOCIATES

[1999] SASC 125

MILLHOUSE J. When this matter came before us, at short notice, we made the decision to dismiss the appeal. We said that we would publish our reasons in due course. My brother Perry has now been kind enough, in a scholarly and lucid way, to commit these reasons to paper. I agree with them.

PERRY J. This is an appeal against an order of Debelle J resolving a dispute as to the place where the body of a deceased person was to be buried.

The deceased was of Aboriginal descent and died on 24 June 1998 aged 37 years. As I understand that there is some reluctance in the Aboriginal cultural tradition about naming a deceased person, I will refrain from doing so. I will refer to him as the deceased.

The plaintiff, Paddy Jones, who is the father of the deceased, wished to have his late son buried at Oodnadatta.

The first defendant, Laurie Marie Dodd, who is the appellant, is the former de facto spouse of the deceased. She is the mother of two children of that relationship, Taryn Dodd and Clayton Dodd. She sought to have the body of the deceased buried at Port Augusta.

The second defendant, a firm of funeral directors, took no active part in the action and agreed to be bound by the outcome.

At first instance Debelle J held that the plaintiff was entitled to the body of the deceased for the purpose of making the burial arrangements, and was therefore at liberty to bury the body at the cemetery at Oodnadatta. He emphasised in his judgment[1]

that he was relying on common law principles, but expressed the view that insofar as Aboriginal law or custom had any application, it was consistent with the relevant common law principles.

8 On 15 July 1998 the appeal was dismissed unanimously. What follows are my reasons for concurring in that decision.

9. The deceased died at or near Walatina Station, near Marla. The evidence suggests that the greater part of the deceased's life was spent living either at Oodnadatta or in nearby areas of the State. During his de facto relationship with Ms Dodd they spent some years together in Port Augusta, although the exact time frame is unclear.

10. At the time of the hearing it had been a period of about ten years since the relationship between the deceased and Ms Dodd ceased, the couple having separated shortly after the birth of the youngest child Clayton. Since the ending of his relationship with Ms Dodd, the deceased visited Port Augusta at least three or four times a year to see their children. It is not disputed that the deceased maintained a strong bond of attachment to them, which they reciprocated.

The evidence before Debelle J consisted of a series of affidavits filed on behalf of both parties. No oral evidence was called. I agree with the observation of Debelle J:

"... even if time had permitted the testing of evidence, this is the kind of dispute where it would be difficult to resolve the conflict in the evidence. Ultimately, it might turn out to be one of those cases where a person has said different things to different people on different occasions or in different sets of circumstances."

In support of the plaintiff's claim, affidavits were filed by Paddy Jones, Mary Jones (a sister of the deceased) and Ms Rose Lester (a cousin of the deceased). Where I refer to statements or evidence of these persons, it may be taken that I am referring to statements appearing in their affidavits.

Paddy Jones states that his late son would have wished to be buried in the "family row", being an area in the cemetery at Oodnadatta. If that was the deceased's wish, it is consistent with what his father deposes to be Aboriginal custom. Paddy Jones stated in his affidavit:

"It is Aboriginal custom that the head of the family is the person empowered to make decisions in respect of family issues and land issues. It is very important in our culture that the deceased is buried in the area so that his spirit can come back in animal form. The area that my late son comes from is the Oodnadatta area. It is important in our culture that my late son be buried in Oodnadatta."

Mary Jones in her affidavit recalled an incident about two months prior to the death of her brother, in which the deceased claimed that he would return to Oodnadatta (he was at Port Augusta at the time) and would never come back to Port Augusta. She says that his intention was to be buried in Oodnadatta.

Ms Rose Lester's evidence was that the deceased always regarded himself as an "Oodnadatta boy", meaning that he came from Oodnadatta and that he expected to be buried in Oodnadatta. As a member of the same Aboriginal tribe as the deceased, the Yankintatjara tribe, she confirmed what Paddy Jones maintained to be Aboriginal custom. She also referred to the possibility of "spearing" if that custom was not to be followed. She said:

"In the Aboriginal culture the head of the family is the person who makes the decisions about land issues and family issues especially in respect of connections with the land. It is especially important in our culture that a person is buried in his geographical area so that his spirit can come back in the form of his totem. If Richard is buried in the Port Augusta area then that is an area outside of the geographical area of our tribe. Aboriginal culture would regard him as being lost to his family. If the burial occurs in Port Augusta then tribal law would allow the person who authorised the burial to be speared as he/she did not follow the tribal law."

Ms Lester's evidence that a person who authorised a burial in Port Augusta would be liable to be speared is disputed by Leonard Burton, the Director of Anangu Pitjatjanjara Services and a recognised authority on Aboriginal law and custom. He stated that in Aboriginal law spearing would only occur where a person had killed another.

I agree with Debelle J that it is unnecessary to resolve the dispute as to the circumstances in which spearing might be contemplated. As noted by Debelle J, the undisputed evidence is that according to Aboriginal law and custom, it is important that the deceased be buried in the area in which he lived, so that his spirit could come back to that area.

In her affidavit, the appellant did not refer to Aboriginal custom, but she emphasised the effect of any decision on the children. She detailed the depth of their grief at the passing of their father; their wish that he be buried near them at Port Augusta; and her belief that during the long illness which preceded his death, the deceased said to his children and other friends and relatives on many occasions that he wished to be buried in Port Augusta so as "to be closer to Taryn and Clayton", and so that the children might visit his grave.

Similar evidence is presented in affidavits by the two children.

The remaining affidavits sworn by various relatives and friends of the deceased, tendered on behalf of Ms Dodd, revealed recollections of instances where the deceased is said to have stated a desire to be buried at Port Augusta.

In some of the affidavits it was suggested that the deceased wished the decision as to burial to be made by his children. Other affidavits indicate that the deceased desired to be buried in Port Augusta "so as to be close to Taryn and Clayton".

There is evidence that the deceased was a practising Christian, and did not live as a traditional Aboriginal. This prompted the contention that evidence of Aboriginal law and custom was not relevant.

Vicki Dodd, the eldest sister of Laurie Dodd, gave evidence in her affidavit that the deceased and the two children would often go to church. She stated that:

"[h]e strongly believed in the promise of the word of God, in the Bible, that he would go to a place called Heaven and believed that the children will also be there with him."

The evidence of Arnold Dodd went further than this, stating that the deceased was not a traditional Aboriginal, as he had been brought up in the ways of the white man and showed no interest in the traditional values of his people. I agree with the observations of Debelle J that without further inquiry this evidence is of limited value. The fact that the deceased was thought by some not to be a traditional Aboriginal and that he attended Christian religious services does not, in the circumstances, operate to negate any connection with Aboriginal law and custom.

Debelle J at first instance found that Ms Dodd has no legal right to possession of the body of the deceased for burial. She had not been his de facto spouse for a period of about ten years prior to his death and therefore was not entitled to apply for letters of administration under the Administration and Probate Act 1919. He relied on the proposition said to be expressed in Smith v Tamworth City Council[2]

that in the absence of a surviving husband or wife, the right to burial vests in the next of kin in order of their relationship to the deceased, that is, children of full age, parents, brothers and sisters or more distant kin. He found that because the children were not of full age, being 10 and 11 years respectively, their grandfather, being next in degree of kinship, had the right to decide the funeral arrangements. As will be seen, in my view, Smith v Tamworth City Council, properly understood, is not authority for what I might describe as "the next of kin" rule.

27 There is no property in a dead body, that is to say, it is incapable of being owned by anyone.[3]

28 Before the Married Women's Property Acts, a husband was obliged to pay the reasonable funeral expenses of his deceased wife[4] in a style appropriate to the husband's rank and fortune.[5]

29 But since the emancipation of women has progressed to the stage where they may own separate property, if a woman leaves an estate sufficient to pay for her funeral expenses, her husband is no longer liable to pay for them.[6]

30 When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative, that is, if there is a will, the executor or executrix named in the will.[7]

31 On the other hand, if a person does not have the means to pay for burial and dies in someone else's home, the occupier has a duty to cover the body and convey it to a place for burial. As Lord Denman CJ said in 1840:

"It should seem that the individual under whose roof a poor person dies is bound by it to carry the body decently covered to the place of burial: he cannot keep him unburied, nor do anything which prevents Christian burial: he cannot, therefore, cast him out so as to expose the body to violation, or to offend the feelings or endanger the health of the living: and for the same reason he cannot carry him uncovered to the grave."[8]

32 What was said in the old cases which deny any property in a dead body is subject to the qualification recognised by the High Court of Australia in Doodeward v Spence.[9] In that case, it was held that in certain circumstances the law would protect lawful possession of a corpse or body parts.[10]

33 Interesting though the old cases are, those to which I have referred so far do not shed any direct light on the question in this case. The issue here is upon what principles does the Court determine, as between competing claims by family members, none of whom is the surviving spouse of the deceased, who has the right to possession of the body for the purpose of burial, the deceased having died intestate?

34 Relying on Meir v Bell, a decision of Ashley J in the Victorian Supreme Court,[11] which was not cited to Debelle J, Mrs Shaw QC for the appellant contended that the question should be resolved in accordance with the wishes of the person best placed to obtain an order for administration in intestacy of the estate of the deceased.

35 Applying that proposition to this case, she argued that under s72G(c) of the Administration and Probate Act 1919, the children are entitled to the whole of the estate of the deceased, and are his nearest next of kin. Were they not minors, they would be entitled to a grant of administration of his estate. That would be so, as the plaintiff falls outside the definition of "putative spouse" for the purposes of the Family Relationship Act 1975,[12] and accordingly does not qualify under the rules of intestacy for any share in the distribution of the deceased's estate.[13] The order of priority for a grant of administration in intestacy follows the English practice, in that the highest priority is accorded the person with the greatest interest, which under R 32.01 of the Probate Rules 1998, in this case, would be the children. But having regard to R 42.01 of the Probate Rules, given that the children are minors, those entitled to the grant are:

"... both parents of the minor jointly or ... one parent with the consent of the other or ... the statutory or testamentary guardian or any guardian appointed by a court of competent jurisdiction."

36 For the purposes of that rule, the plaintiff is the statutory guardian of the children.[14]

37 In my opinion, that argument wrongly elevates the approach found to be convenient in some cases, namely, that burial rights be accorded a person in a position to apply for a grant of letters of administration in intestacy, to a rigid proposition or principle of law.

38 It is true that in Meir v Bell Ashley J seemed to be suggesting that such an approach was the only appropriate approach in such cases. He said:

"... in the context of persons who have died intestate, the approach has been to identify as best as is possible the person who is a potential administrator and to treat that person in the same way as if he or she had been appointed executor; that is, so that the decision of that person as to place of burial prevails ....."[15]

"I consider it to be entirely understandable and appropriate that a court should approach a matter such as the present by seeking to identify a person with the best claim in law [to be appointed administrator] to [have] the responsibility of making burial arrangements."

It is clear from an observation which he makes later in the judgment that he treats this approach as being a matter of firm principle. After referring to what he regards as the inconvenience of having to have regard to the emotional, cultural and other matters which often colour the attitude of surviving members of the family, he observes:[17]

"It follows from what I have said and I should make it clear that the manner of resolution of a problem such as the present must be consistent. The body of principle to which I have referred requires it. There cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters religious, cultural, or of some other description." (emphasis added)

In the first place, with great respect to Ashley J, in my view, the authorities do no more than support the view that in some cases such an approach may be appropriate, but that there is no principle of universal application which compels such an approach in all cases. Furthermore, again with great respect, I cannot accept that it is right to reject consideration of emotional, spiritual and cultural factors when they are present, however inconvenient it may be to do so in the short time which is commonly available to decide these cases.

It must be accepted that there is other authority in favour of leaving the decision to the administrator or person entitled to apply for administration. For example, in Brown v Tullock,[18]

"Unfortunately, although one assumes this sort of problem arises not infrequently, there is no law which enables a court to give directions as to how the body of a deceased person should be disposed of. There are decisions of the court which say that it is the duty of an executor to dispose of the body of the person of whose will he is the executor. There is no decision of the court relating to the position of an administrator, and as to whether a person who will be entitled to administration is in the same position as an executor. Probably that it is because an executor draws his title from a will in which the deceased has expressed his wishes. If there is no will, the title of an administrator is derived only from an order of the court accepting that person's claim to administration. Accordingly, neither the coroner, nor anybody else, can presume conclusively that a particular person will be granted administration. However, as I say, in the present case it would seem that, because she is likely to be the sole beneficiary, the second defendant must inevitably be granted administration. In these circumstances, it seems to me that it must be left to the second defendant to decide where the deceased is to be buried."

In that case, the plaintiff was the brother of the deceased, and the second defendant, who was accorded burial rights, had been in a de facto relationship with the deceased for at least two and a half years before his death. It will be seen from the passage which I have cited from Waddell CJ's judgment that there was no previous decision of the court which threw any light on the matter. But it could not be said that in coming to the decision which he did, he was identifying any rigid principle, as opposed to what seemed to be the best practical solution in the circumstances.

In another decision by a judge in the Equity Division of the Supreme Court of New South Wales, namely, Smith v Tamworth City Council,[19]

Young J addressed the question in the context of a dispute between the biological parents of the deceased person and the deceased's adoptive parents who had erected a headstone on the grave the title to which was registered in the name of one of them. The biological parents sought an order compelling the council which controlled the cemetery to transfer the plot to them in order for them to erect a headstone of their own choosing.

44 Strictly, the case concerned the rights of the parties to the grave, rather than the question as to how competing claims to exercise the right of burial was to be resolved. Young J found that the right to erect a headstone was the right of the person who owns the burial plot, in this case the adoptive mother. Apart from recognising the right of the biological parents to have access to the grave, Young J dismissed the action.

45 But in the course of his judgment, Young J made an exhaustive analysis of the authorities on the right of burial. After referring to ecclesiastical law cases, he turned to decisions of the common law courts.[20] Following his analysis of the authorities,[21] he comes to a conclusion expressed in these terms:

"It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, [In the Estate of Slattery,[22]

] the person with the largest interest will normally be the person who is the one expected to bury the body." (emphasis added)

46. I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

47. I have already referred to Debelle J's view that the principle was that the right of burial applied to the next of kin, in order of their relationship to the deceased.

48. Although support for that proposition was recognised by Young J to be found in passages which he cites from The Law of Cadavers by Percival E. Jackson,[23]

I do not read his judgment as endorsing that approach, given the fact that when Young J comes to summarise his conclusions, as will have been seen from the passage from his judgment which I have quoted above, he regards the authorities as favouring the view that the right of burial follows "interest", and accordingly, the "person with the largest interest will normally be the person who is the one expected to bury the body".

49 Here, given that there was little or no estate of the deceased, I think that the respondent is right in suggesting that there is unlikely ever to be an application for administration, despite the valiant effort by Mrs Shaw QC to suggest otherwise.

50 Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.

51 In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

52 It is true that in Calma v Sesar and Anor,[24] Martin J, after referring to "... matters relating to burial in a homeland and the profession of the Roman Catholic faith" observed:[25]

"... issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except insofar as they reflect a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values."

"The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the court resolve the argument in a practical way, paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency." (emphasis added)

53. In my opinion, proper respect and decency compel the courts to have some regard to what Martin J there refers to as "spiritual or cultural values", even if the evidence as to the relevance of such considerations in a particular case may be conflicting.

54. This is not to say that the court should have regard to expressions of pure emotion or arbitrary expressions of preference.

55. At the end of the day, pragmatic features of the case, such as those which were regarded by Martin J as decisive in Calma v Sesar have their place. But despite the difficulty of doing so in cases where there are conflicts in the evidence and a limited opportunity to resolve the conflicts, the court must nonetheless proceed as best it can to pay due regard to whatever cultural or spiritual factors arise.

56. To do so is consistent with various international instruments. It is an accepted principle that international law constitutes a legitimate influence upon the development of the common law as well as an aid to the construction of statutes where ambiguity exists.

[26] Where possible, common law principles should be defined in terms harmonising with relevant principles of international law.

57 The "right to freedom of thought, conscience and religion" is a fundamental human right, embodied in the principal human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR).[27]

"... freedom, either individually or in community with others ..... to manifest his religion or belief in worship, observance, practice...."[28]

"In those states in which ethnic, [or] religious minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion ....".[29]

59 Reference may be made to the Draft Declaration on the Rights of Indigenous Peoples.[30] This instrument recognises the special rights of indigenous peoples, constituting the "minimum standards (necessary) for the survival, dignity and well-being of the indigenous peoples of the world".[31] Of particular significance for present purposes is the direct acknowledgment of the "right to the repatriation of human remains" as inherent to the right "to manifest, practice ... their religious traditions, customs and ceremonies".[32] The draft may properly be regarded as indicating the direction in which international law is developing, given that the draft has been put forward by a working group comprising representatives of many different jurisdictions.

60 True it is that the international instruments to which I have referred have as their primary application the protection of the rights of living persons. But it seems to me that common considerations of decency and respect for human dignity should lead those responsible for the burial of a corpse to recognise, and where possible give effect to, the cultural, spiritual and religious beliefs, practices and traditions of the deceased. Furthermore, for similar reasons, an appropriate degree of sensitivity and respect should be accorded the feelings of the surviving members of the deceased's family.

61 One must, of course, give due weight to the views expressed by the deceased's children.

62 Various international law instruments buttress and support the common law emphasis on the desirability of recognising and protecting the best interests of the child. Article 3(1) of the Convention on the Rights of the Child[33] provides:

"In all actions concerning children, undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". (emphasis added).

63 In Minister for Immigration and Ethnic Affairs v Teoh,[34] Mason CJ and Deane J state:

"The concluding words of Article 3(1) [of the Convention] are 'the best interests of the child shall be a primary consideration'. The article is careful to avoid putting the best interests of the child as the primary consideration ; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount weight."

Here, the views put forward by the appellant on behalf of the deceased's two children have been carefully considered, both by Debelle J and by this Court. But they are not to be regarded as determinative of the issue. They must be balanced against the other considerations, more particularly relevant Aboriginal cultural and spiritual values.

In my opinion, Debelle J, with respect to him, erred in basing his conclusion on the approach which finds expression in the following passage from his judgment, to the exclusion of other relevant factors:

"In this case the children are aged 10 and 11 years respectively. They are not of full age, thus the next in degrees of kinship at common law as distinct from kinship in Aboriginal customary law, is the father of the deceased. He therefore has the right to the body for the purpose of conducting the burial. I will therefore make an order permitting the plaintiff to bury his deceased son." (emphasis added)

Although Debelle J later refers to what he describes as "the rules of Aboriginal customary law" and states that a similar conclusion would be reached by reference to those rules, it is clear that his decision is pivoted upon what he regards as an appropriate application of common law principles to the exclusion of considerations stemming from the deceased's aboriginality.

In any event, as I have explained, the common law principles, to the extent that they may be relevant, have regard to the extent of interest in the estate and eligibility to apply for a grant of letters of administration in intestacy, rather than on "kinship". But as I have explained, such so-called principles are no more than a convenient method of approach to some cases, rather than a hard and fast rule. Furthermore, that approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.

In all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.

In this case, those factors should be given appropriate weight, given that they were emphasised by the deceased's father. According to the evidence, which in this respect was unchallenged, the views of the head of the family should prevail in such matters.

For these reasons, which differ somewhat from those reached by Debelle J, I would nonetheless uphold his decision.

Likewise, these considerations led me to concur in the dismissal of the appeal.

NYLAND J. For the reasons expressed by Perry J, I also concurred in the dismissal.

2. [1997] NSWSC 197; (1997) 41 NSWLR 680 at 691-693.

3_._ Williams v Williams (1882) 20 Ch D 659 per Kay at 663; R v Sharpe [1856] EngR 24; (1856-1857) Dears & B 160; 169 ER 786.

4. Bradshaw v Beard [1862] EngR 615; (1862) 12 CB(NS) 342; 142 ER 1175, Ambrose v Kerrison [1831] EngR 149; (1858) 10 CB 777; 131 ER 307. And see Bertie v Lord Chesterfield 9 Mod 31.

5. Jenkins v Tucker [1788] EngR 272; (1788) 1 H.Bl 90, 125 ER 55.

6. Rees v Hughes [1946] 1 KB 517 per Scott LJ at 525-6:

"... all the original reasons, which made the common law put on the husband the public duty of burying his deceased wife, have wholly ceased to operate ... Cessante ratione legis, cessat ipsa lex."

7. Blackstone's Commentaries (10th Ed) Bk II Ch 33 p.508. See also Garrow and Willis Law of Wills and Administration (3rd ed 1960) Butterworths, p.559, citing Murdoch v Rhind [1945] NZGazLawRp 61; [1945] NZLR 425:

"The executor has both the right and duty of disposal of the body of the testator, and it is for him to say how and where the body is to be disposed of."

Furthermore, the executor has absolute priority of reimbursement out of the estate; Edwards v Edwards 2 C and M 612 per Parke B at 615. See also Robertson v Pinegrove Memorial Park Ltd (1986) ACLD 496.

8. R v Marriott and Ors [1838] EngR 679; (1840) 12 Ad & E 35; 113 ER 723. This reference, and the other historical references which I have so far made, are extracted from the paper delivered at a seminar conducted by the Law Society of South Australia The Will of Donors, September 1994, of which I was the author.

9. [1908] HCA 45; (1908) 6 CLR 406.

10. See ibid Griffith CJ 414 with whom Barton J agreed, Higgins J dissenting.

11. 3 March 1997 (unreported). See Butterworths Unreported Judgments BC 9700457.

13. See the Administration and Probate Act 1919 ss4 and 72G.

14. See the definition of "statutory guardian" in Rule 3.01(ii) and s12 of the Guardianship of Infants Act 1940.

15. Ibid at 4 citing Brown v Tullock (1992) 7 BPR 15101

19. [1997] NSWSC 197; (1997) 41 NSWLR 680.

21. He refers to R v Stewart [1840] EngR 1003; (1840) 12 Ad & E 773 at 778; [1840] EngR 1003; 113 ER 1007 at 1009, R v Fox [1841] EngR 1003; (1841) 2 QB 246; 114 ER 95, Williams v Williams (1882) 20 Ch D 659, R v Gwynedd County Court; Ex parte B [1992] 3 All ER 317, Robertson v Pinegrove Memorial Park Ltd (1986) 7 BPR 15097, Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273, Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446, Brown v Tullock (1992) 7 BPR 15101, Burnes v Richards (1993) 7 BPR 15104, Warner v Levitt (1994) 7 BPR 15110, and a number of cases on the separate question of property in a corpse, including in that respect Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1996] 4 All ER 474, Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, Pierce v Proprietors of Swan Point Cemetery 10 RI 227; 14 Am Rep 6678 (1872) at 677, Polhemus v Daly 296 SW 442 at 444 (1927). He also refers to The Law of Cadavers, Prentice [1956] SydLawRw 8; (1956) 2 Sydney Law Review 109, P.W. Young The Exclusive Right to Burial (1965) 39 ALJ 50 and G. Pawlowski Dead Bodies as Property (1996) 146 NLJ 1828.

22. [1909] NSWStRp 76; (1909) 9 SR (NSW) 577; 26 WN (NSW) 116.

23. Prentice-Hall Inc NY (1937), cited in (1997) 41 NSWLR at 686-687, and at 693.

24. [1992] NTSC 17; (1992) 2 NTLR 37.

26. Katinyeri v The Commonwealth [1998] HCA 22; (1998) 72 ALJR 722 at 745 per Gummow and Hayne JJ, Mabo v Queensland [No.2] (1992) 175 CLR 1 at 42, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306, 321, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

27. United Nations Treaty Series, vol 999, p 171. Entered into force on 23 March 1976. Australia became a signatory to the Covenant on 18 December 1972, and ratified it on 13 August 1980. This incorporates to a significant degree the Universal Declaration on Human Rights (1948).

28. Article 18(1) International Covenant on Civil and Political Rights, based on the Universal Declaration of Human Rights Article 18.

29. Article 27 International Covenant on Civil and Political Rights

30. Prepared between 1985 and 1993 by an Independent Working group on Indigenous Populations ('The WGIP'), in consultation with indigenous representations and government observers: UN Doc E/CN/Sub 2/1985/2, Ann II. The text was adopted in August 1994 by the Sub-Committee on the Prevention of Discrimination and Protection of Minorities UN Doc E/CN 4/Sub 2/1994/2/Add I. It is currently under consideration by the inter-governmental working group of the Commission of Human Rights ('CHR').

31. Article 42 Draft Declaration on the Rights of Indigenous Peoples

32. Article 13 Draft Declaration on the Rights of Indigenous Peoples

33. See United Nations Convention on the Rights of the Child UNGA Doc A/Res/44/25 (12 December 1989). Ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991.

34. [1995] HCA 20; (1995) 183 CLR 273 at 289.

[2] [1997] NSWSC 197; (1997) 41 NSWLR 680 at 691-693.

[3] Williams v Williams (1882) 20 Ch D 659 per Kay at 663; R v Sharpe [1856] EngR 24; (1856-1857) Dears & B 160; 169 ER 786.

[4] Bradshaw v Beard [1862] EngR 615; (1862) 12 CB(NS) 342; 142 ER 1175, Ambrose v Kerrison [1831] EngR 149; (1858) 10 CB 777; 131 ER 307. And see Bertie v Lord Chesterfield 9 Mod 31.

[5] Jenkins v Tucker [1788] EngR 272; (1788) 1 H.Bl 90, 125 ER 55.

[6] Rees v Hughes [1946] 1 KB 517 per Scott LJ at 525-6:

"... all the original reasons, which made the common law put on the husband the public duty of burying his deceased wife, have wholly ceased to operate ... Cessante ratione legis, cessat ipsa lex."

[7] Blackstone's Commentaries (10th Ed) Bk II Ch 33 p.508. See also Garrow and Willis Law of Wills and Administration (3rd ed 1960) Butterworths, p.559, citing Murdoch v Rhind [1945] NZGazLawRp 61; [1945] NZLR 425:

"The executor has both the right and duty of disposal of the body of the testator, and it is for him to say how and where the body is to be disposed of."

Furthermore, the executor has absolute priority of reimbursement out of the estate; Edwards v Edwards 2 C and M 612 per Parke B at 615. See also Robertson v Pinegrove Memorial Park Ltd (1986) ACLD 496.

[8] R v Marriott and Ors [1838] EngR 679; (1840) 12 Ad & E 35; 113 ER 723. This reference, and the other historical references which I have so far made, are extracted from the paper delivered at a seminar conducted by the Law Society of South Australia The Will of Donors, September 1994, of which I was the author.

[9] [1908] HCA 45; (1908) 6 CLR 406.

[10] See ibid Griffith CJ 414 with whom Barton J agreed, Higgins J dissenting.

[11] 3 March 1997 (unreported). See Butterworths Unreported Judgments BC 9700457.

[13] See the Administration and Probate Act 1919 ss4 and 72G.

[14] See the definition of "statutory guardian" in Rule 3.01(ii) and s12 of the Guardianship of Infants Act 1940.

[15] Ibid at 4 citing Brown v Tullock (1992) 7 BPR 15101

[19] [1997] NSWSC 197; (1997) 41 NSWLR 680.

[21] He refers to R v Stewart [1840] EngR 1003; (1840) 12 Ad & E 773 at 778; [1840] EngR 1003; 113 ER 1007 at 1009, R v Fox [1841] EngR 1003; (1841) 2 QB 246; 114 ER 95, Williams v Williams (1882) 20 Ch D 659, R v Gwynedd County Court; Ex parte B [1992] 3 All ER 317, Robertson v Pinegrove Memorial Park Ltd (1986) 7 BPR 15097, Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273, Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446, Brown v Tullock (1992) 7 BPR 15101, Burnes v Richards (1993) 7 BPR 15104, Warner v Levitt (1994) 7 BPR 15110, and a number of cases on the separate question of property in a corpse, including in that respect Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1996] 4 All ER 474, Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, Pierce v Proprietors of Swan Point Cemetery 10 RI 227; 14 Am Rep 6678 (1872) at 677, Polhemus v Daly 296 SW 442 at 444 (1927). He also refers to The Law of Cadavers, Prentice [1956] SydLawRw 8; (1956) 2 Sydney Law Review 109, P.W. Young The Exclusive Right to Burial (1965) 39 ALJ 50 and G. Pawlowski Dead Bodies as Property (1996) 146 NLJ 1828.

[22] [1909] NSWStRp 76; (1909) 9 SR (NSW) 577; 26 WN (NSW) 116.

[23] Prentice-Hall Inc NY (1937), cited in (1997) 41 NSWLR at 686-687, and at 693.

[24] [1992] NTSC 17; (1992) 2 NTLR 37.

[26] Katinyeri v The Commonwealth [1998] HCA 22; (1998) 72 ALJR 722 at 745 per Gummow and Hayne JJ, Mabo v Queensland [No.2] (1992) 175 CLR 1 at 42, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306, 321, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[27] United Nations Treaty Series, vol 999, p 171. Entered into force on 23 March 1976. Australia became a signatory to the Covenant on 18 December 1972, and ratified it on 13 August 1980. This incorporates to a significant degree the Universal Declaration on Human Rights (1948).

[28] Article 18(1) International Covenant on Civil and Political Rights, based on the Universal Declaration of Human Rights Article 18.

[29] Article 27 International Covenant on Civil and Political Rights

[30] Prepared between 1985 and 1993 by an Independent Working group on Indigenous Populations ('The WGIP'), in consultation with indigenous representations and government observers: UN Doc E/CN/Sub 2/1985/2, Ann II. The text was adopted in August 1994 by the Sub-Committee on the Prevention of Discrimination and Protection of Minorities UN Doc E/CN 4/Sub 2/1994/2/Add I. It is currently under consideration by the inter-governmental working group of the Commission of Human Rights ('CHR').

[31] Article 42 Draft Declaration on the Rights of Indigenous Peoples

[32] Article 13 Draft Declaration on the Rights of Indigenous Peoples

[33] See United Nations Convention on the Rights of the Child UNGA Doc A/Res/44/25 (12 December 1989). Ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991.

[34] [1995] HCA 20; (1995) 183 CLR 273 at 289