1Adelaide Cemeteries Authority Act 2001

South Australia Adelaide Cemeteries Authority Act 2001 An Act to establish the Adelaide Cemeteries Authority; to provide for the administration and maintenance of Cheltenham Cemetery, Enfield Memorial Park and West Terrace Cemetery; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Adelaide Cemeteries Authority Division 1—Establishment of Authority 4 Establishment of Adelaide Cemeteries Authority 5 Application of Public Corporations Act 1993 6 Functions 7 Powers 8 Special provisions relating to Authority's powers 9 Minister must give notice of certain proposed transactions of Authority 10 Surplus West Terrace Cemetery land to form part of Adelaide Park Lands 11 Common seal and execution of documents Division 2—Board 12 Establishment of board 13 Conditions of membership 14 Vacancies or defects in appointment of directors 15 Remuneration 16 Board proceedings 17 Committees Division 3—Staff 18 Staffing arrangements Part 3—Miscellaneous 19 Adelaide Cemeteries Authority Heritage and Monument Committee 20 Plans of management for Authority cemeteries 22 Ministerial approvals 23 Regulations Schedule 1—Plan of West Terrace Cemetery Schedule 2—Transitional provisions 2 Enfield General Cemetery Trust continues as Adelaide Cemeteries Authority 3 Vesting of West Terrace Cemetery in Authority 4 Application of Real Property Act 5 Continuation of West Terrace Cemetery plan of management Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Adelaide Cemeteries Authority Act 2001. 3—Interpretation (1) In this Act, unless the contrary intention appears— Authority means the Adelaide Cemeteries Authority established under Part 2; Authority cemetery means a cemetery administered by the Authority under this Act; board means the board of directors established as the governing body of the Authority under Part 2; burial of human remains includes placement of the remains in a tomb, mausoleum or vault; director means a member of the board under Part 2; employing authority means the person designated by proclamation as being the employing authority for the purposes of this definition; human remains has the same meaning as in the Births, Deaths and Marriages Registration Act 1996. (2) A proclamation made for the purposes of the definition of employing authority— (a) may apply by reference to a specified person, or by reference to the person for the time being holding or acting in a specified office or position; and (b) may, from time to time as the Governor thinks fit, be varied or substituted by a new proclamation. Part 2—Adelaide Cemeteries Authority Division 1—Establishment of Authority 4—Establishment of Adelaide Cemeteries Authority (1) The Adelaide Cemeteries Authority is established. (2) The Authority— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) is capable of suing and being sued in its corporate name; and (d) has the functions and powers assigned or conferred by or under this Act. 5—Application of Public Corporations Act 1993 The Authority is a statutory corporation to which the provisions of the Public Corporations Act 1993 apply. 6—Functions (1) The Authority's primary functions are— (a) the administration and maintenance of the following as public cemeteries: (i) Cheltenham Cemetery; (ii) Enfield Memorial Park; (iii) West Terrace Cemetery; and (b) the administration and maintenance of any other cemetery established or acquired by the Authority; and (c) the burial or other disposal of human remains in an Authority cemetery; and (d) activities associated with the heritage or historical significance of an Authority cemetery; and (e) any other function assigned to the Authority by or under this or any Act, or by the Minister. (2) The Authority's functions may extend to the following as the Authority thinks fit: (a) activities or services relating to the burial or other disposal of human remains; (b) other activities or services utilising Authority property and buildings. 7—Powers Subject to this Act, the Authority has all the powers of a natural person together with the powers conferred on it under this or any other Act. 8—Special provisions relating to Authority's powers (1) The Authority may not acquire a cemetery or part of a cemetery, or establish a cemetery, without the written approval of the Minister. (2) The Authority may grant a right for burial purposes for any term or in perpetuity. (3) The Authority must not disturb or interfere with a grave within the area delineated and marked Jewish Granted MEM. No. 443 Bk. 42 on the plan of West Terrace Cemetery in Schedule 1 without the written approval of the Board, the Trustees, or the Chief Minister, of the Adelaide Hebrew Congregation Inc. (4) The Authority must not, without the approval of the Minister, use for any other purpose a portion of an Authority cemetery set apart (before or after the commencement of this subsection) for the burial or other disposal— (a) of persons of particular religious denominations; or (b) of members or former members of an arm of the Defence Forces of Australia or of the naval, military or air force of some other country. (5) The Authority must not prevent or interfere with the performance of a ceremony according to the usage of a person's religion in connection with the burial or other disposal of the person's remains. (6) The Authority must allow a minister of a religious denomination for which a portion of an Authority cemetery is set apart to have free access and admission to that portion of the cemetery at all times in order to exercise his or her functions as a minister. (7) The Authority's charter under the Public Corporations Act 1993 must contain specific limitations on the Authority's activities designed to prevent the Authority, through its control of access to Authority cemeteries, from unduly restricting competition in the provision of funeral, floral, monument making or other services, or the supply of goods. 9—Minister must give notice of certain proposed transactions of Authority (1) The Authority must not— (a) sell an Authority cemetery or part of an Authority cemetery; or (b) grant a lease or licence in respect of an Authority cemetery, or part of an Authority cemetery, in order to enable the Authority's primary functions, or a substantial part of the Authority's primary functions, with respect to the cemetery to be performed otherwise than directly by the Authority and its staff; or (c) enter into any partnership, joint venture or other profit sharing arrangement, unless the Minister has approved a proposal for the transaction and has, at least two months before the proposed transaction is entered into— (d) given notice of the proposed transaction in the Gazette and in a newspaper circulating generally throughout the State; and (e) provided a written report on the proposed transaction to the Economic and Finance Committee of the Parliament. (2) Subsection (1) does not apply to the disposal of land comprising or forming part of West Terrace Cemetery that is surplus to the requirements of the Authority. 10—Surplus West Terrace Cemetery land to form part of Adelaide Park Lands The Authority may only dispose of land comprising or forming part of West Terrace Cemetery that is surplus to the requirements of the Authority— (a) with the written approval of the Minister; and (b) by surrender of the fee simple in the land to the Crown; and, on surrender, the land will form part of the Adelaide Park Lands and come under the care, control and management of The Corporation of the City of Adelaide. 11—Common seal and execution of documents (1) The common seal of the Authority must not be affixed to a document except in pursuance of a decision of the board, and the affixing of the seal must be attested by the signatures of two directors. (2) The Authority may, by instrument under its common seal, authorise a director, a person employed under this Act (whether nominated by name or by office or title) or any other person to execute documents on behalf of the Authority subject to conditions and limitations (if any) specified in the instrument of authority. (3) Without limiting subsection (2), an authority may be given so as to authorise two or more persons to execute documents jointly on behalf of the Authority. (4) A document is duly executed by the Authority if— (a) the common seal of the Authority is affixed to the document in accordance with this section; or (b) the document is signed on behalf of the Authority by a person or persons in accordance with an authority conferred under this section. Division 2—Board 12—Establishment of board (1) A board of directors is established as the governing body of the Authority. (2) The board consists of not more than seven directors appointed by the Governor on the nomination of the Minister, of whom— (a) one must be a person with practical knowledge of and experience in local government selected from a panel of three persons nominated by the Local Government Association of South Australia; and (b) the remainder must include— (i) three who together have, in the Minister's opinion, the abilities and experience required for the effective performance of the Authority's business and management obligations; and (ii) one with experience in historical and heritage matters; and (iii) one with experience in religious and community affairs; and (iv) one with management experience in government (other than local government). (3) The Minister must, in nominating persons for appointment to the board, have regard to the need for the Authority, in carrying out its functions, to be sensitive to the cultural diversity of the State. (4) At least two directors must be women and at least two must be men. (5) One director will, on the nomination of the Minister, be appointed by the Governor to chair meetings of the board. 13—Conditions of membership (1) A director will be appointed for a term, not exceeding four years, specified in the instrument of appointment and will, at the expiration of a term of appointment, be eligible for reappointment. (2) However, the term of office of a retiring director will continue until he or she is reappointed or a successor is appointed (as the case may be). (3) The Governor may remove a director from office on the recommendation of the Minister. (4) The Minister may recommend the removal of a director on any ground that the Minister considers sufficient. (5) The office of a director becomes vacant if the director— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or (e) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (f) is removed from office under subsection (3). 14—Vacancies or defects in appointment of directors An act of the board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a director. 15—Remuneration A director is entitled to be paid from the funds of the Authority such remuneration, allowances and expenses as may be determined by the Governor. 16—Board proceedings (1) A quorum of the board consists of four directors. (2) The director appointed to chair meetings of the board will preside at each meeting of the board at which he or she is present. (3) In the absence of the director appointed to chair meetings of the board, a director chosen by the directors present at the meeting will preside. (4) A decision carried by a majority of the votes cast by directors at a meeting is a decision of the board. (5) Each director present at a meeting of the board has one vote on any question arising for decision and, if the votes are equal, the director presiding at the meeting may exercise a casting vote. (6) A conference by telephone or other electronic means between directors will, for the purposes of this section, be taken to be a meeting of the board at which the participating directors are present if— (a) notice of the conference is given to all directors in the manner determined by the board for the purpose; and (b) each participating director is capable of communicating with every other participating director during the conference. (7) A proposed resolution of the board becomes a valid decision of the board despite the fact that it is not voted on at a meeting of the board if— (a) notice of the proposed resolution is given to all directors in accordance with procedures determined by the board; and (b) a majority of the directors expresses concurrence in the proposed resolution by letter or by facsimile transmission or other electronically transmitted written communication setting out the terms of the resolution. (8) The board must have accurate minutes kept of its proceedings. (9) Subject to this Act, the board may determine its own procedures. 17—Committees (1) The board may establish such committees (including advisory or subcommittees) as the board thinks fit. (2) The membership of a committee will be determined by the board and may, but need not, consist of, or include, directors. (3) The procedures to be observed in relation to the conduct of the business of a committee will be— (a) as determined by the board; (b) insofar as a procedure is not determined under paragraph (a), as determined by the committee. Division 3—Staff 18—Staffing arrangements (1) The employing authority may employ staff to perform functions in connection with the operations or activities of the Authority. (2) The terms and conditions of employment of a person under subsection (1) will be determined by the employing authority. (3) A person employed under this section will be taken to be employed by or on behalf of the Crown (but will not be employed in the Public Service of the State unless brought into an administrative unit under the Public Sector Act 2009). (4) The employing authority may direct a person employed under this section to perform functions in connection with the operations or activities of a public sector agency specified by the employing authority (and the person must comply with that direction). (5) The employing authority is, in acting under this section, subject to direction by the Minister. (6) However, no Ministerial direction may be given by the Minister relating to the appointment, transfer, remuneration, discipline or termination of a particular person. (7) The employing authority may delegate a power or function under this section. (8) A delegation under subsection (7)— (a) must be by instrument in writing; and (b) may be made to a body or person (including a person for the time being holding or acting in a specified office or position); and (c) may be unconditional or subject to conditions; and (d) may, if the instrument of delegation so provides, allow for the further delegation of a power or function that has been delegated; and (e) does not derogate from the power of the employing authority to act personally in any matter; and (f) may be revoked at any time by the employing authority. (9) A change in the person who constitutes the employing authority under this Act will not affect the continuity of employment of a person under this section. (10) The Authority must, at the direction of the Minister, the Treasurer or the employing authority, make payments with respect to any matter arising in connection with the employment of a person under this section (including, but not limited to, payments with respect to salary or other aspects of remuneration, leave entitlements, superannuation contributions, taxation liabilities, workers compensation payments, termination payments, public liability insurance and vicarious liabilities). (11) The Authority does not have the power to employ any person. (12) The Authority may, under an arrangement established by the Minister administering an administrative unit, make use of the services or staff of that administrative unit. (13) In this section— public sector agency has the same meaning as in the Public Sector Act 2009. Part 3—Miscellaneous 19—Adelaide Cemeteries Authority Heritage and Monument Committee (1) The Minister will establish the Adelaide Cemeteries Authority Heritage and Monument Committee. (2) The Committee will consist of not less than three, nor more than five, members appointed by the Minister, of whom— (a) one must be a director; and (b) the remainder must include persons who together have, in the Minister's opinion, the abilities and experience required for the effective performance of the Committee's functions. (3) The members of the Committee will hold office on such terms and conditions as the Minister thinks fit. (4) The Committee has the following functions: (a) to advise the Authority on heritage and historical matters relating to Authority cemeteries; (b) to advise the Authority on activities associated with the heritage or historical significance of Authority cemeteries; (c) to advise the Authority on the establishment and implementation of policies relating to monuments, headstones and memorials; (d) any other function assigned to the Committee by or under this Act, or by the Minister or the Authority. (5) Subject to this section, the Committee may determine its own procedures. (6) The Committee must submit to the Authority for inclusion in each annual report of the Authority a report prepared by the Committee on its operations during the financial year to which the report relates. (7) A report submitted to the Authority under subsection (6) must be included in the relevant annual report of the Authority in unaltered form. 20—Plans of management for Authority cemeteries (1) The Authority must, in accordance with this section— (a) prepare plans of management for each Authority cemetery; and (b) present the plans at public meetings convened by the Authority. (2) Plans of management must be prepared and presented as follows: (a) the first plan must cover a five year period and be prepared and presented within 18 months after the commencement of this section; (b) subsequent plans must cover subsequent five year periods and each plan must be prepared and presented at least six months before it is to take effect. (3) A plan of management for a cemetery must take into account the heritage and historical significance of the cemetery and establish policies relating to the following matters: (a) retention or removal of existing headstones; (b) re-use of burial sites; (c) the scale and character of new memorials or monuments; (d) planting and nurturing of vegetation in the cemetery. (4) In preparing a plan of management for a cemetery, the Authority must consult with the relevant local government council, the administrative unit of the Public Service responsible for State heritage matters and other persons who, in the opinion of the Authority, have a particular interest in the management of the cemetery. (5) The Authority must, at least 30 business days before the date of a public meeting to be convened under this section, in a newspaper circulating generally throughout the State, publish a notice— (a) of the date, time, place and purpose of the meeting; and (b) of the place, determined by the Minister, where the plan of management may be inspected, without charge and during normal office hours, during the period of 30 business days immediately prior to the meeting. (6) A plan of management for an Authority cemetery must, if the cemetery is, or includes, a State heritage place (within the meaning of the Development Act 1993), be approved by the Minister before it takes effect. (7) The Authority may amend a plan of management at any time during the course of the five year period covered by the plan (and, in that event, the amendment must be presented at public meetings convened by the Authority and subsections (4), (5) and (6) will apply to the amendment process in the same way as to the initial preparation of a plan of management). (8) The Authority must keep a copy of each current plan of management available for inspection by members of the public, without charge and during normal office hours, at a place determined by the Minister. 22—Ministerial approvals (1) An approval given by the Minister under this Act may be— (a) specific or general; and (b) conditional or unconditional. (2) An approval given by the Minister may be varied or revoked by the Minister at any time. 23—Regulations (1) The Governor may make regulations for the purposes of this Act. (2) The regulations may apply other specified regulations (with or without modifications) to an Authority cemetery. Schedule 1—Plan of West Terrace Cemetery