Aboriginal Lands (Settlement Point Cemetery) Regulations 2019

The Aboriginal Lands (Settlement Point Cemetery) Regulations 2019 is a Tasmanian statutory rule made under the Aboriginal Lands Act 1995. It establishes a discrete regulatory framework governing the use, management, and protection of the Settlement Point cemetery, being the burial ground depicted in Plan 4806 of the Central Plan Register. The regulations do not create any general law of burial or cemeteries for Tasmania; rather they apply exclusively to this single site, which is Aboriginal land under the parent Act.

Mechanically, the regulations achieve four things. First, they vest the Council (the body responsible for the cemetery under the Act - presumably the Aboriginal Land Council of Tasmania) with administrative control over burials. Regulation 7 requires any person wishing to bury a body to notify the Council and obtain its approval. Approval can only be sought for a deceased person who holds an “exclusive right of burial” - a defined term that covers either a right granted under s 37A of the Act over the unallocated portion of the cemetery, or a right granted by the Council (or previous trustees) before the regulations commenced. The Council must verify entitlement, and if satisfied, may approve the burial subject to any conditions or restrictions it considers appropriate. If not satisfied, it must refuse and give written reasons. This creates a gatekeeping function that may be efficient in preserving limited burial space but also injects administrative discretion into what would otherwise be a private right.

Second, the regulations give the Council authority over monuments. Regulation 8 requires Council permission to erect or place any monument, with a penalty of up to 5 penalty units for non‑compliance. Regulation 9 empowers the Council to order removal or repair of an “unauthorised monument”, being one erected contrary to permission terms or, in the Council’s opinion, unsafe. The Council may act without notice if the monument is a danger to persons or property, and may recover the reasonable cost of removal from the person who erected it. These provisions shift the costs of unsafe or non‑compliant structures from the cemetery to the individual, which aligns private incentives with public safety.

Third, the regulations impose a regime for exhumation that is entirely dependent on public health authority. Under reg 12, the Council may order exhumation only upon the written request of the Director of Public Health, and only on conditions the Director requires. The Director must consult the Council before making the request. After exhumation, the remains must be reburied in the same place if possible, otherwise elsewhere in the cemetery. Unauthorised removal of remains attracts a fine of up to 10 penalty units. Notably, there is no provision for family‑initiated exhumation; the decision is controlled by the state health authority.

Fourth, the regulations create a set of offence provisions (reg 13) that protect the physical integrity of the cemetery and the conduct of ceremonies. It is an offence to damage or interfere with any building, monument, memorial, plant, flower, or token; to hinder a religious or cultural ceremony; to sell anything without Council permission; to carry on a trade or business; or to commit a breach of the peace or behave offensively. The maximum penalty is 10 penalty units for each offence. These provisions give the Council indirect enforcement power, though enforcement would likely need to be by police or local government compliance officers.

Beyond these mechanical rules, the regulations impose positive duties on the Council. Regulation 4 requires the Council to make “adequate provision” for maintenance and improvement out of revenue received from the cemetery. Regulation 5 prohibits the Council from interfering with religious or cultural ceremonies relating to mourning or burial, provided they accord with the rites or practices of the group performing them. Regulation 6 requires the Council to permit an authorised representative of any religious or cultural group free access and to freely exercise ceremonial functions without hindrance or disturbance by the Council or any other person. Regulation 10 mandates a register of burials and a plan of the cemetery. Regulation 11 allows the Council to set reasonable hours for burials.

The regulations are administered by the Department of Communities Tasmania and took effect on 15 April 2019. They are a narrow, site‑specific instrument that does not amend any other law.

The regulations define several key terms that structure the legal framework. The “cemetery” is not a generic category but a specific piece of land: the Settlement Point cemetery shown in Plan 4806 in the Central Plan Register. This is a closed definition - only that surveyed site is the cemetery for the purposes of the regulations. The “unallocated portion of the cemetery” is that part shown bounded by heavy black lines on the same plan, which is the area over which the Council can grant new exclusive rights of burial under s 37A of the parent Act.

The most important property concept is “exclusive right of burial”. This is defined in two limbs. The first limb covers an exclusive right to be buried in the unallocated portion granted under s 37A of the Act. The second limb covers an exclusive right to be buried elsewhere in the cemetery granted by the Council or by the previous trustees before the commencement of these regulations (15 April 2019). This means there are pre‑existing rights that predate the regulations, and newly created rights only in the unallocated portion. The term “exclusive” is significant: it is a property‑like entitlement to a particular burial plot, not merely a licence. However, the regulations do not define the exact nature of the right - whether it is a freehold, leasehold, or statutory right - only that it is “exclusive”. This ambiguity could be important if disputes arise over competing claims.

The “authorised representative” of a religious or cultural group is a person authorised by the “appropriate authority” of that group to exercise spiritual or ceremonial functions in connection with burial of the dead. The phrase “appropriate authority” is not defined, leaving the Council to determine whether a particular person has been properly authorised. This gives the Council some interpretive leeway but also creates uncertainty for groups that may have contested leadership or informal structures. The authorised representative is the key beneficiary of reg 6, which mandates free access and freedom to exercise functions without interference.

The “Director of Public Health” is the person appointed under s 6 of the Public Health Act 1997. This officer has a controlling role in exhumations under reg 12; the Council may only act on the Director’s written request. The Director also sets conditions and may supervise exhumation work.

A “monument” is broadly defined to include a tombstone, plaque, tablet, cenotaph, or any other structure or object intended to commemorate a deceased person. This is deliberately wide to capture anything placed with commemorative intent, not just traditional headstones. The regulations treat monuments as subject to Council permission (reg 8) and removal if unauthorised or unsafe (reg 9). The breadth of the definition means that even temporary or informal commemorative objects could fall within the regulatory net.

The regulations directly affect four categories of persons and entities.

First, the Council (the Aboriginal land management body) is the primary addressee of the duties and powers under the regulations. It must maintain the cemetery, not interfere with religious ceremonies, permit access for authorised representatives, process burial requests, keep a register, set hours, manage monuments, and coordinate exhumations with the Director of Public Health. The Council bears the administrative and financial burden of compliance, including the cost of maintaining the register, monitoring monuments, and enforcing prohibitions. It also faces the risk of legal challenge if it fails to perform these duties or exercises its discretions unreasonably.

Second, persons holding an exclusive right of burial are directly affected. These are individuals (or perhaps families) who have a property right to be buried in a specific plot. They may wish to exercise that right for themselves or for a deceased family member. Under reg 7, a burial can only occur if the deceased is “entitled to burial under an exclusive right of burial”. This means that if no exclusive right exists, no burial is possible, even if the deceased had strong cultural or familial ties to the cemetery. The regulations do not create any residual right of burial for persons without an exclusive right. This restricts the use of the cemetery to those with documented entitlements, potentially excluding Aboriginal community members who lack formal rights. The requirement to provide details of the exclusive right (reg 7(2)(b)(viii)) places an evidentiary burden on the person requesting burial. If the right was granted before the regulations and is poorly documented, proving entitlement may be difficult.

Third, religious and cultural groups that perform ceremonies at the cemetery are affected. Their authorised representatives have a statutory right of free access and to exercise ceremonial functions without hindrance (reg 6). The Council must not interfere with such ceremonies (reg 5). However, these rights are contingent on the ceremony being “in accordance with the rites or practices of the religious or cultural group performing the ceremony”. This leaves the Council (and ultimately a court) to determine what constitutes an authentic rite or practice. Groups with evolving or contested traditions may face scrutiny. The regulations do not create a private right of action for aggrieved groups; enforcement of regs 5 and 6 would likely need to be by way of an administrative law challenge or, theoretically, a criminal prosecution for hindering under reg 13(d).

The regulations impose specific duties primarily on the Council, with lesser duties on other persons. The Council’s duties are as follows. Under reg 4, the Council must make adequate provision for maintenance and improvement out of any revenue received in respect of the cemetery. This is a continuing financial duty; the Council cannot divert cemetery income to other projects without first meeting maintenance needs. Under reg 5, the Council must not interfere with religious or cultural ceremonies that relate to mourning or burial and are in accordance with the group’s rites or practices. This is a negative duty of non‑interference, broadly drafted. It would likely prevent the Council from imposing time limits, noise restrictions, or location requirements that substantially interfere with ceremonies. Under reg 6, the Council must permit an authorised representative free access and the ability to freely exercise functions without hindrance or disturbance from the Council or any other person. This is a positive duty to facilitate access, not merely refrain from blocking it. The duty extends to preventing disturbance by third parties, which may require the Council to police the cemetery during ceremonies.

Under reg 7, the Council has a duty to approve a burial request if satisfied the deceased is entitled to an exclusive right of burial. The approval may be subject to conditions the Council considers appropriate. The duty is to approve, but with discretion over conditions. If not satisfied, the Council must refuse and give written reasons. This creates a procedural right for the applicant to receive reasons, which is a minimum requirement of procedural fairness. However, there is no right of appeal or review specified in the regulations, so an aggrieved applicant would need to rely on general administrative law remedies. Under reg 10, the Council must keep a register of burials and a plan of the cemetery. This duty supports the integrity of burial records and assists in verifying future entitlement claims. Under reg 11, the Council must determine reasonable hours for burials. “Reasonable” is undefined, but the Council must form a view based on factors such as safety, light, and community custom.

The Council has powers in addition to duties. It may make enquiries to verify burial entitlement (reg 7(3)), impose conditions on burial approval (reg 7(4)), permit monuments subject to terms (reg 8(1)), and order removal of unauthorised monuments (reg 9(2)). It may also act without notice if a monument is dangerous (reg 9(4)), and recover costs of removal from the person who erected it (reg 9(3)(b)). The Council may, on the written request of the Director of Public Health, determine that remains be exhumed and impose conditions (reg 12). These powers are discretionary: the Council may, but is not required to, exercise them.

The regulations create two penalty levels. Erecting or placing a monument without Council permission (or contrary to permission terms) attracts a fine not exceeding 5 penalty units (reg 8(2)). Removing a body or human remains from the cemetery otherwise than under a valid exhumation determination attracts a fine not exceeding 10 penalty units (reg 12(7)). All of the offences listed in reg 13 also carry a maximum penalty of 10 penalty units per offence. Regulation 13 contains seven offences: removing, damaging, defacing or interfering with any building, monument, memorial or other fixture or structure; damaging, defacing or interfering with any part of the grounds, including plants, flowers or tokens; removing any plants or flowers growing in the cemetery; hindering or disturbing a religious or cultural ceremony relating to burial of human remains; selling anything without permission; carrying on, promoting or advertising a trade, profession or business without permission; and committing a breach of the peace or nuisance, or otherwise behaving offensively.

These are all strict liability offences: none of the provisions include a mental element such as “knowingly” or “intentionally”. This means a person can be convicted even if they did not know the prohibition existed or did not intend to cause harm. The penalty is a fine only; no imprisonment is provided for any offence. The maximum fine for 10 penalty units in Tasmania as at 2025 is approximately $2,000, but the exact value depends on the current penalty unit rate set under the Penalty Units and Other Penalties Act 1987. For 5 penalty units (r 8(2)), the maximum is about $1,000.

Enforcement mechanisms beyond criminal prosecution include the Council’s civil power to remove unauthorised monuments and recover costs (reg 9(3)(b)). The Council may take down and remove a monument or make it safe, and then recover the reasonable cost from the person who erected it. This is a debt‑based remedy, enforceable in a court of competent jurisdiction. The Council may also act without notice if the unauthorised monument appears to be a danger to persons or property (reg 9(4)). This power allows the Council to act summarily to mitigate safety risks, but it could also be exercised pre‑emptively on the Council’s subjective assessment of danger. There is no requirement to consult or give reasons before acting without notice.

The regulations do not specify who has standing to initiate prosecutions. It is likely that the Council could refer matters to police, or the Department of Communities Tasmania could prosecute. There is no offence provision for failing to comply with the Council’s duties (e.g., failing to maintain the cemetery under reg 4, or failing to permit access under reg 6). These duties are likely enforceable only by way of judicial review or, potentially, a complaint to the Ombudsman. The regulations do not create a statutory cause of action for breach of statutory duty. This means that an individual whose rights under reg 6 are breached cannot sue for damages; they would need to seek an injunction or declaration via judicial review.

The regulations are made under the Aboriginal Lands Act 1995 (the parent Act) and derive their legal force from that Act. The most important interaction is with s 37A of that Act, which appears to empower the grant of exclusive rights of burial in the unallocated portion. The regulations define “exclusive right of burial” by reference to that section, so the two instruments must be read together to understand the scope of the right. The regulations do not create any new rights to burial; they regulate the exercise of existing rights. Any person asserting a right to burial must point to either a s 37A grant (post‑commencement) or a pre‑commencement grant by the Council or previous trustees. If the parent Act were amended to change s 37A, the regulations would need to be adjusted.

The Public Health Act 1997 is directly engaged through the role of the Director of Public Health. Regulation 12 gives the Director a gatekeeping function over exhumations. The Director’s powers and duties under that Act (including the power to require conditions) govern how the Council proceeds. Additionally, the Director may have concurrent powers under the Public Health Act to order exhumations for public health reasons independent of these regulations, but the regulations create an additional procedural step: the Director must make a written request to the Council, and the Council must then make a determination. The regulations also require the Council to consult the Director about conditions, and to carry out exhumation in accord with any requirements of the Director. This creates a co‑regulation model where health authority and land council must coordinate.

The regulations interact with general common law principles regarding burial rights and duties. At common law, there is a right of sepulture - the right of an executor or family to have the deceased buried in a particular place if a right exists. The regulations modify that common law right by requiring Council approval and proof of exclusive right. They also override any common law right to exhume remains without lawful authority; reg 12 makes it an offence to remove remains except in accordance with a determination. The common law also recognises a duty on cemetery authorities to maintain burial grounds. The regulations codify that duty for this cemetery in reg 4, but do not specify the standard of care. The common law may imply a higher standard if the Council’s maintenance is inadequate.

The regulations may interact with the Tasmanian Planning Provisions or local planning schemes if the cemetery is subject to planning controls. However, the regulations make no reference to planning law. The Council’s ability to permit monuments or determine exhumations might be subject to heritage or land use approvals under other legislation. The regulations do not exempt the Council from obtaining any necessary permits under the Land Use Planning and Approvals Act 1993. Similarly, the Offence provisions in reg 13 may overlap with criminal offences under the Police Offences Act 1935 (e.g., breach of the peace) or the Criminal Code (e.g., property damage). The regulations do not exclude the operation of other laws, so a person who damages a monument could theoretically be charged both under reg 13(a) and under s 273 of the Criminal Code (unlawful damage). The penalty levels are low enough that prosecutors would likely choose the criminal charge if higher penalties are sought.

As at the version provided (the version in force on 12 April 2026), no amendments have been made to the original regulations. The regulations were notified in the Gazette on 9 April 2019 and commenced on 15 April 2019. They were made by the Governor in Council under the Aboriginal Lands Act 1995. The text shows no amendment notices, no substituted provisions, and no repealed provisions. This suggests that the regulations have remained unchanged for seven years. The parent Act may have been amended in that time (not indicated), but the regulations have not been updated. This stability could reflect a lack of controversy or simply low administrative attention. Future amendments might be needed if the Plan 4806 is superseded, if new exclusive burial rights are granted beyond the unallocated portion, or if the relationship with the Director of Public Health is altered.

The source material does not mention any litigation concerning these regulations. No cases are cited in the text, and no case notes or judicial interpretations are provided. Given the regulations are narrow in scope and location, and have been in force since 2019, it is likely that no significant court challenges have occurred. This could be because the cemetery is not heavily used, because disputes are resolved informally, or because the cost of litigation outweighs the stakes. The regulations’ grant of wide discretion to the Council may actually discourage litigation, as the chances of success on judicial review are low if the Council can show it considered relevant matters and did not act unreasonably. The lack of an appeal mechanism within the regulations also channnels any grievances to the Tasmanian Civil and Administrative Tribunal or the Supreme Court, but no reported proceedings have been identified. Potential future disputes could arise over contested exclusive burial rights, the reasonableness of conditions imposed on burials, or the propriety of monument removal without notice.

Several features of the regulations could trip up practitioners or non‑specialists.

First, the definition of “exclusive right of burial” is limited to two sources. If a person claims a right from any other source (e.g., a customary right or a right granted after commencement but not under s 37A), it is not an “exclusive right of burial” for the purposes of reg 7. The Council cannot approve a burial for such a person. This could inadvertently exclude Aboriginal community members who have long‑standing family associations with the cemetery but have never been granted a formal exclusive right. The regulations do not provide a mechanism for acquiring new exclusive rights outside the unallocated portion; only the unallocated portion can be the subject of new grants under s 37A. The rest of the cemetery is effectively closed to new burials unless a pre‑existing right is transferred or inherited, and the regulations are silent on transferability or inheritance.

Second, the Council’s power to impose conditions on burial approval (reg 7(4)) is unlimited as a matter of text. The Council may impose “the conditions and restrictions it considers appropriate”. This could include conditions about the type of coffin, the depth of burial, the timing, the use of concrete vaults, or even payment of fees. There is no requirement that conditions be reasonable or proportionate. While administrative law would imply a duty to not act unreasonably, the discretion is very broad and could be used to restrict burials in ways that frustrate cultural practices. The Council is not required to give reasons for conditions, only for refusals (reg 7(6)).

Third, the exhumation regime (reg 12) cannot be initiated by family members, the Council, or even the Director of Public Health alone. The Director must make a written request. There is no mechanism for a family to seek an exhumation for cultural, religious, or forensic reasons. If the Director refuses to make a request, the process stops. The regulations also require reburial in the same place if possible. This could create problems if the original burial site is required for another purpose or if the remains need to be moved to a different cemetery.

Fourth, the offence of “remove any plants or flowers that are growing in the cemetery” (reg 13(c)) is absolute. This could criminalise a mourner who picks a flower as a keepsake, or a gardener who weeds. There is no exception for reasonable conduct. Similarly, the prohibition on selling anything without permission (reg 13(e)) could catch a child selling lemonade or a charity selling raffle tickets, unless the Council has given permission. The prohibition on advertising a trade or business (reg 13(f)) could apply to a funeral director placing a small sign near the gate. These provisions give the Council a discretionary enforcement power that could be used arbitrarily.

For the Council, compliance requires a systematic approach. The Council should develop internal procedures for each regulatory function. For maintenance (reg 4), the Council should maintain a financial account that tracks revenue from the cemetery (e.g., fees for burials, monument permissions, if any) and ensures that a sufficient proportion is applied to maintenance and improvement. “Adequate provision” is undefined, but the Council should document its decisions on spending to show it has considered the condition of the cemetery and the needs of users. Regular inspections and a maintenance schedule should be recorded.

For religious and cultural ceremonies (regs 5 and 6), the Council should adopt a policy of non‑interference. This means not imposing time limits, noise restrictions, or location constraints that would substantially impair a ceremony. The Council should also ensure that its staff and contractors do not hinder authorised representatives. The Council should maintain a list of recognised religious and cultural groups and verified authorised representatives, and update it when new authorisations are provided. The Council should respond promptly to requests for access from authorised representatives, and should not demand justification beyond the representative’s authorisation.

For burial requests (reg 7), the Council should establish a standard application form that collects all the information listed in reg 7(2)(b)(i)‑(ix). The Council must also request “any further information the Council reasonably requires”. The Council should develop a process for verifying the exclusive right of burial. This may involve checking its own register, the plan, and any historical records. If the right was granted by previous trustees, the Council may need to search archival records. The Council should document its enquiries and the basis for its satisfaction or non‑satisfaction. If satisfied, the Council must approve the request but may impose conditions. The Council should state the conditions clearly in the approval notice. If not satisfied, the Council must give written reasons. The reasons should be specific enough to allow the applicant to understand why and to remedy any deficiency (e.g., by providing further evidence of the right). The Council should maintain a decision register.

For monuments (reg 8), the Council should publish guidelines for permission, including the necessary application information, fees (if any), and standard conditions. The Council should process applications promptly and keep a record of permissions granted, including the terms and conditions. For unauthorised monuments (reg 9), the Council should first identify whether a monument is unsafe or erected contrary to terms. The Council should consider obtaining a structural safety assessment before forming an opinion of unsafety. If a monument is unauthorised, the Council should give written notice to the person who erected it, requiring removal or repair within a reasonable time. The Council should attempt to locate that person using reasonable steps (e.g., checking records of permissions, contacting known next of kin, advertising). If the person cannot be found or fails to comply, the Council may act. The Council should document its attempts to find the person. If acting without notice (emergency), the Council should document why the monument appears to be a danger and take photographs. Cost recovery should be pursued only after invoicing and, if necessary, through a court.