Cemeteries Act 1986 (Western Australia)

This Act creates a statutory framework for declaring, managing and regulating cemeteries in Western Australia, establishes cemetery boards (or enables local governments to perform the same functions), regulates burials, memorials, funerals and the licensing of funeral directors, and provides financial, planning and enforcement mechanisms relevant to cemetery administration. The long title states the Act is "to provide for the declaration and management of cemeteries, the establishment, constitution and functions of cemetery boards, the licensing of funeral directors, the regulation of burials, the repeal of the Cemeteries Act 1897 and for connected purposes." Key mechanical changes and powers under the Act include:

The Governor may declare land to be a cemetery or close a cemetery (s 4(1)-(2)). The Governor may also vest management in a Board or a local government and transfer care, control and management between them (s 5(1)-(2)).
The Minister appoints cemetery Boards by order (s 7), sets the constitution (3-7 members, up to 7; s 8), and appoints board members (s 8(1)). Schedule 1 prescribes board terms and procedures.
Boards (or local governments when vested with control) manage cemeteries, including setting aside denominational areas (s 23), maintaining safe and orderly grounds (s 24), and establishing burial plots and memorial rules (s 24, 29-33).
Funeral conduct is regulated: funerals at a cemetery must be conducted only by a licensed funeral director for that cemetery or by permit (s 14; licences s 16-19; single‑funeral permits ss 20-21).
A scheme governs rights of burial: Boards grant rights for 25‑year terms (s 25), renewals are available (s 25(2)), assignments and bequests require registration or probate to be effective (s 26).

CrestWestern Australia

Cemeteries Act 1986

Western Australia

Cemeteries Act 1986

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used 2

Part II — Cemeteries

Declaration and closure of cemeteries 4
Vesting of management of cemetery 4
Local governments to perform functions of Board 4

Part III — Establishment and constitution of Boards

Establishment of Boards 6
Constitution of Boards 6
Remuneration and allowances of members 6
Appointment of staff 7

Part IV — Burials and conduct of funerals

Division 1 — Burials of dead bodies

Burials to be in cemeteries or as authorised by Minister 8
Minister may authorise burial 8
Delegation 9

Division 2 — Conduct of funerals

Conduct of funerals 9
Ministers of religion and religious ceremonies 10

Division 3 — Licensing of funeral directors

Licences 10
Applications for licences 10
Suspension and cancellation of licences 11
Application for review of decisions of Board 12

Division 4 — Conduct of funerals by permit holders and Boards

Single funeral permits issued to persons other than funeral directors 12
Single funeral permits issued to funeral directors 13
Board may conduct funeral 13

Part V — Management of cemeteries

Division 1 — Layout and management of cemeteries

Setting apart areas for religious denominations 14
Management of cemeteries 14

Division 2 — Rights of burial

Grant of right of burial 14
Transfer of right of burial 15
Protection of right of burial 15
Surrender of right of burial 16

Division 3 — Control of memorials and other works

Control of memorials 16
Permission for memorials 16
Removal or alteration of unauthorised memorial 16
Removal or alteration of memorial in disrepair 17
Preservation of graves etc. 17
Permission for denominational chapel 18

Division 4 — Redevelopment schemes

Implementation of redevelopment scheme 18
Required action before implementation of redevelopment scheme 18
Submissions 19
Register concerning redevelopment area 20
Memorials in redevelopment area 20

Division 5 — Registers

Board to maintain registers and plans 20
Registers available for inspection 21
Register to be evidence of burials 21

Part VI — Management of closed cemeteries

Vesting control of closed cemetery 22

Part VII — Financial provisions

Application 23
Funds of Board 23
Establishment of accounts 23
Authorised expenditure 24
Estimates 24
Borrowing 24
Banking and investment 25
Financial statements 25
Audit 25
Fees and charges 26

Part VIII — Local laws, by‑laws and regulations

Procedure for local laws and by‑laws 28
Local laws and by‑laws 28
Model local laws 30

56A. Governor may amend or repeal local laws or by‑laws 30

Regulations 31

Part IX — Miscellaneous

Minister may order exhumation 32
Board may authorise exhumation and re‑burial 32
Power to lease or take a lease of land or buildings 32
Provision of housing 32
Wilful damage to memorials etc. 33
Infringement notice 33
Authorised persons 35
Name to be given 35
Repeal 36
Transitional and savings 36

Schedule 1 — Constitution and procedure of Boards

Term of office 37
Vacating office 37
Chairman 37
Meetings 37
Quorum 38
Resolution may be passed without meeting 38
Leave of absence 38
Board to determine own procedures 38

Schedule 2 — Transitional and savings provisions

Division 1 — Provisions for repealed Act

Terms used 39
Existing public cemeteries deemed cemeteries 39
Management by local government authority 39
Trustees to become Board members 39
Existing funeral directors’ licences 40
Grants of right of burial 40
Registers 41
Fees and charges 41
Saving 41

Division 2 — Provision for Local Government Legislation Amendment Act 2019

Authorised persons 41

Notes

Compilation table 43

Editorial changes table 44

Other notes 45

Defined terms

Western Australia

Cemeteries Act 1986

An Act to provide for the declaration and management of cemeteries, the establishment, constitution and functions of cemetery boards, the licensing of funeral directors, the regulation of burials, the repeal of the Cemeteries Act 1897 and for connected purposes.

Part I — Preliminary

1. Short title

This Act may be cited as the Cemeteries Act 1986.

2. Commencement

This Act shall come into operation on a day to be fixed by proclamation.

3. Terms used

(1) In this Act, unless the contrary intention appears —

alleged offender means a person to whom an infringement notice has been given under section 63;

authorised person means a person —

(a) authorised under section 64 to give infringement notices; or

(b) appointed under the Local Government Act 1995 section 9.10(2) for the purposes of section 63;

Board means a cemetery board established under section 7 or deemed to have been established under this Act and in relation to a cemetery means the Board responsible for the care, control and management of that cemetery;

burial, except in the definition of funeral and in sections 11, 12 and 43(2), includes the disposal of ashes of a dead body in a cemetery after cremation;

cemetery means land declared by the Governor to be a cemetery under section 4(1) or deemed to be a cemetery under this Act and so far as the context allows includes a disused burial ground and a closed cemetery;

dead body means the body of a human being who was born alive and also means the body of a child of not less than 28 weeks’ gestation that was still born;

funeral means the burial or cremation of a dead body;

holder in relation to a grant of right of burial includes a person for the time being appearing to the Board to be the holder of that grant;

infringement notice means a notice given under section 63;

licence means a funeral director’s licence issued or deemed to have been issued under Part IV;

member means a member of a Board;

memorial includes headstone, plaque, tombstone, monumental work, inscription, kerbing, enclosure and any other fixture or thing commemorating a grave or the placement of ashes;

redevelopment area means a portion of land in a cemetery which is the subject of a redevelopment scheme or proposed redevelopment scheme under Division 4 of Part V;

right of burial means the right to use a specified area of a cemetery for burial.

(2) Notwithstanding the definition of dead body in subsection (1), a Board may in a particular case deem to be a dead body for the purposes of this Act the body of a child of not less than 20 weeks’ gestation that was still born and where a Board so deems this Act shall apply accordingly.

[Section 3 amended: No. 14 of 1996 s. 4; No. 16 of 2019 s. 96.]

Part II — Cemeteries

4. Declaration and closure of cemeteries

(1) The Governor may by order published in the Gazette declare land described in the order to be a cemetery for the purposes of and subject to this Act.

(2) The Governor may by order published in the Gazette declare a cemetery to be closed and direct that after a time specified in the order burials in the cemetery shall be discontinued wholly or subject to any exception or qualification set out in the order or in any further order made under this subsection.

5. Vesting of management of cemetery

(1) The Governor may by order published in the Gazette vest the care, control and management of a cemetery in a Board or a local government and may by further order, so published, transfer the care, control and management of a cemetery from a Board to a local government or from a local government to a Board.

(2) An order under subsection (1) transferring the care, control and management of a cemetery may include such transitional provisions as are necessary or desirable to effect or facilitate the transfer and in particular may include directions and other provisions for the transfer and vesting of assets and liabilities to enable effect to be given to the order.

[Section 5 amended: No. 14 of 1996 s. 4.]

6. Local governments to perform functions of Board

Where an order is made or is deemed to have been made under section 5 vesting the care, control and management of a cemetery in a local government, the local government shall, subject to this Act and to any necessary modifications, perform and be subject to the duties imposed on Boards under this Act and may exercise the powers conferred on Boards under this Act; and references in this Act to a Board or Boards shall be construed accordingly in relation to such a local government as the case may require.

[Section 6 amended: No. 14 of 1996 s. 4.]

Part III — Establishment and constitution of Boards

7. Establishment of Boards

(1) The Governor may by order published in the Gazette establish a cemetery board to perform with respect to a cemetery, or to more than one cemetery, the functions conferred or imposed on Boards under this Act.

(2) A Board is a body corporate with perpetual succession and a common seal and is capable of —

(a) acquiring, holding and disposing of real and personal property; and

(b) suing and being sued; and

(3) An order under subsection (1) establishing a Board shall state the name by which the Board shall be known.

(4) The Governor may by order published in the Gazette amend the name by which a Board shall be known or dissolve a Board established or deemed to have been established under this section.

8. Constitution of Boards

(1) A Board shall comprise not less than 3 nor more than 7 persons appointed by the Minister.

(2) The provisions of Schedule 1 shall have effect with respect to the constitution and proceedings of a Board.

9. Remuneration and allowances of members

A member shall be paid such remuneration and travelling and other allowances as the Minister from time to time determines on the recommendation of the Public Sector Commissioner.

[Section 9 amended: No. 39 of 2010 s. 89.]

10. Appointment of staff

(1) A Board may appoint such employees, either full time or part time, as it considers necessary to enable it to carry out its functions.

(2) A Board may engage under contract for services such professional and technical and other assistance as it considers necessary to enable it to carry out its functions.

(3) A Board may provide training, facilities and benefits for its employees.

(4) Notwithstanding anything in this section, to the extent that there is in the case of a person who is appointed under subsection (1) to be an employee of a Board and who is a member of the Senior Executive Service within the meaning of the Public Sector Management Act 1994 1 an inconsistency between this Act and that Act that Act shall prevail.

[Section 10 amended: No. 113 of 1987 s. 32.]

Part IV — Burials and conduct of funerals

Division 1 — Burials of dead bodies

11. Burials to be in cemeteries or as authorised by Minister

(1) Subject to subsection (3), a person shall not bury or assist at the burial of a dead body in any place other than a cemetery that is not closed unless the burial is in accordance with the Minister’s authorisation given under section 12 or is permitted under section 4(2).

Penalty: $1 000.

(2) A person who bears or assists in bearing or otherwise conveying a dead body or who directs or procures any such burial or officiates at the burial as a minister of religion, funeral director or otherwise shall be taken for the purposes of subsection (1) to assist at the burial.

(3) Regulations under this Act may prescribe areas of the State to which subsection (1) does not apply.

12. Minister may authorise burial

The Minister may authorise the burial of a dead body in a place other than a cemetery where —

(a) the burial is to take place on land that is reserved under the Land Administration Act 1997 for the purpose of burials but is not a cemetery; or

(b) the Minister is satisfied that the burial is to take place in an area that is visibly set apart for and distinguishable as a burial place.

[Section 12 amended: No. 31 of 1997 s. 141.]

13. Delegation

(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him delegate to a specified person or to the person for the time being holding a specified office the function conferred on the Minister by section 12.

(2) An authorisation given for the purposes of section 12 by a delegate under subsection (1) has the same force and effect as if it had been given by the Minister.

(3) Where a person purports to perform a function as a delegate under subsection (1), it shall be presumed, unless the contrary is established, that the person is duly authorised by delegation under that subsection to perform the function.

(4) Where the Minister has delegated a function to a person the Minister may give directions to the delegate with respect to the performance of that function.

Division 2 — Conduct of funerals

14. Conduct of funerals

(1) Subject to subsection (2), a person shall not conduct a funeral at a cemetery unless that person is the holder of —

(a) a funeral director’s licence issued under this Act in respect of that cemetery by the Board responsible for the care, control and management of that cemetery; or

(b) a permit issued under this Act in respect of a particular funeral at that cemetery by the Board responsible for the care, control and management of that cemetery.

Penalty: $1 000.

(2) Subsection (1) does not apply to the conduct of a funeral at a cemetery by or on behalf of the Board responsible for the care, control and management of that cemetery.

15. Ministers of religion and religious ceremonies

(1) A minister of religion of any denomination for which part of a cemetery is set apart shall at all reasonable times have free access to that part of the cemetery.

(2) A Board shall not by local law or by‑law or otherwise interfere directly or indirectly with the performance of any religious ceremony at a funeral, except in the case of a ceremony that is offensive having regard to the standards of decency and propriety that are generally acceptable in the community.

[Section 15 amended: No. 14 of 1996 s. 4.]

Division 3 — Licensing of funeral directors

16. Licences

A funeral director’s licence —

(a) is valid for the conduct of funerals at the cemetery or cemeteries specified in the licence; and

(b) is valid for such period not exceeding one year from the day on which the licence is issued as the Board determines, unless the licence is sooner suspended or cancelled; and

17. Applications for licences

(1) An application for a funeral director’s licence in respect of a cemetery shall be made to the Board responsible for the care, control and management of the cemetery in the manner required by the Board and shall be lodged with the Board together with the appropriate fee.

(2) An applicant who satisfies the Board that the applicant —

(a) is of good repute and is fit to hold a funeral director’s licence; and

(b) has suitable facilities and equipment for handling and storing dead bodies and conducting funerals,

shall be entitled to be issued with a funeral director’s licence.

(3) The Board, or a person authorised by resolution of the Board for the purpose, may at any reasonable time inspect the facilities and equipment of an applicant for or the holder of a funeral director’s licence and the applicant or holder shall take all reasonable steps to facilitate an inspection authorised by this subsection.

Penalty: $500.

18. Suspension and cancellation of licences

(1) A Board may, by notice in writing delivered to the holder of a licence, cancel or suspend the licence if —

(a) the licence was issued erroneously or in consequence of a false or fraudulent document, statement or representation; or

(b) the fee for the licence is due and unpaid; or

(c) the holder of the licence is convicted of an offence against this Act or any local law or by‑law made under this Act; or

(d) the Board is no longer satisfied in relation to the holder of the licence with respect to the matters referred to in section 17(2).

(2) If a licence is cancelled or suspended under this section, the person to whom the licence was issued shall deliver the licence to the Board within such period as may be specified in the notice referred to in subsection (1).

Penalty: $500.

[Section 18 amended: No. 14 of 1996 s. 4.]

19. Application for review of decisions of Board

(1) Where a Board —

(a) refuses an application for a licence; or

(b) cancels or suspends a licence,

the Board shall notify in writing the applicant or the person to whom the licence was issued of its decision and of the reasons for that decision.

(2) An aggrieved applicant or person whose licence has been cancelled or suspended may apply to the State Administrative Tribunal for a review of the decision of the Board.

[Section 19 amended: No. 55 of 2004 s. 102.]

Division 4 — Conduct of funerals by permit holders and Boards

20. Single funeral permits issued to persons other than funeral directors

(1) Subject to this section, a Board may issue a permit to any person, other than the holder of a funeral director’s licence, for the conduct at a cemetery of a funeral of a person named in the permit.

(2) An application for a permit under this section shall be made in the manner required by the Board and lodged with the Board together with the appropriate fee.

(3) A permit issued under this section shall have effect subject to any conditions prescribed by local law or by‑law and to any further conditions that may be attached by the Board in the particular case and set out in the permit.

[Section 20 amended: No. 14 of 1996 s. 4.]

21. Single funeral permits issued to funeral directors

(1) Subject to this section, a Board may issue a permit to a person who is the holder of a funeral director’s licence issued by another Board for the conduct at a cemetery under the care, control and management of the firstmentioned Board of a funeral of a person named in the permit.

(2) An application for a permit under this section shall be made in the manner required by the Board and lodged with the Board together with the appropriate fee.

(3) In determining an application made by a funeral director under this section, a Board is not required to inquire into the matters referred to in section 17(2).

22. Board may conduct funeral

A Board may conduct a funeral at a cemetery for the care, control and management of which it is responsible.

Part V — Management of cemeteries

Division 1 — Layout and management of cemeteries

23. Setting apart areas for religious denominations

A Board may set apart an area of a cemetery to be used only for burials of persons of a particular religious denomination and the Board may from time to time vary the boundaries of any area so set apart.

24. Management of cemeteries

(1) A Board shall —

(a) set aside areas of a cemetery for burials; and

(b) preserve and maintain a cemetery in a safe, clean and orderly condition.

(2) A Board may —

(a) set aside areas of a cemetery for and provide crematoria, chapels, parks, gardens, landscaping, buildings and other works for the effective operation of a cemetery; and

(b) provide office accommodation for administration of the cemetery and other buildings and areas for the use and convenience of employees of the Board or persons visiting the cemetery; and

(c) acquire and dispose of plant, machinery, vehicles, equipment, fittings and other things which are necessary or convenient for the efficient operation of the cemetery.

Division 2 — Rights of burial

25. Grant of right of burial

(1) A Board may grant to a person for a term of 25 years the right of burial in a specified area of a cemetery and the right to place a memorial on that area.

(2) Where the holder for the time being of a grant of a right of burial applies to the Board for the renewal of the grant the Board shall renew the grant for a further term of 25 years.

(3) A right of burial granted under this section shall be subject to such conditions as may be prescribed by local law or by‑law.

(4) A right of burial granted under the Cemeteries Act 1897 or renewed under subsection (2) may, if the Board and the holder for the time being of the grant agree, be renewed from time to time for a further term not exceeding 25 years in the case of any one renewal.

[Section 25 amended: No. 14 of 1996 s. 4.]

26. Transfer of right of burial

(1) A right of burial granted to a person under this Act may be assigned by the holder in his lifetime or bequeathed by will.

(2) An assignment of a right of burial shall have no effect until it is produced to the Board for registration and when so registered shall have priority over any other assignment that may subsequently be produced to the Board.

(3) The bequest of a right of burial shall have no effect until the probate of the will by which the right of burial passes is produced to the Board and the Board shall make an appropriate entry in the register upon which the bequest shall have priority over any assignment that may subsequently be produced to the Board.

27. Protection of right of burial

Before any burial is permitted to take place in a specified area which is the subject of a grant of right of burial, the Board must be satisfied that the holder of the right has consented or would not object to the burial taking place.

28. Surrender of right of burial

The holder of a right of burial granted under this Act may surrender the right to the Board upon which all rights and obligations under the right shall terminate.

Division 3 — Control of memorials and other works

29. Control of memorials

A Board shall control the kinds of memorial permitted in a cemetery and may impose different requirements for different areas of a cemetery.

30. Permission for memorials

(1) A person who wishes to place or erect a memorial in a cemetery shall apply to the Board specifying the proposed location, design and materials of which the memorial is to be composed and the Board may approve or, if the Board considers the location to be incorrect or the proposed memorial to be inappropriate or indecorous or contrary to a local law or by‑law, refuse the application.

(2) A person shall not place or assist in placing or erecting a memorial in a cemetery without the permission of the Board.

Penalty: $500.

(3) A person shall not alter or add to, or assist in the alteration of or addition to or removal of, a memorial in a cemetery without the permission of the Board.

Penalty: $500.

[Section 30 amended: No. 14 of 1996 s. 4.]

31. Removal or alteration of unauthorised memorial

(1) If a memorial in a cemetery is placed or erected or altered without the permission of the Board or, although placed, erected or altered with such permission, is placed, erected or altered contrary to the local laws or by‑laws or other requirements or conditions of the permission of the Board, the Board may give a written notice to the holder of the right of burial or other person who has caused the memorial to be so placed, erected or altered requiring that holder or other person within 28 days from receiving the notice to remove the memorial from the cemetery or to alter it in the manner specified in the notice to the satisfaction of the Board.

(2) If the holder of a right of burial or other person to whom a notice is given under subsection (1) refuses to or otherwise fails to comply with the terms of the notice, the Board may remove or alter the memorial and may recover from that holder of a right of burial or other person the costs of the removal or alteration as a debt in a court of competent jurisdiction.

[Section 31 amended: No. 14 of 1996 s. 4.]

32. Removal or alteration of memorial in disrepair

(1) If a memorial in a cemetery is, in the opinion of the Board, in need of repair or is in such a state of disrepair that repairs are not feasible, the Board may give a written notice to the holder of the relevant right of burial requiring that person within 28 days from receiving the notice to repair the memorial to the satisfaction of the Board or to remove the memorial from the cemetery, as the case may require and as specified in the notice.

(2) If the holder of a right of burial to whom a notice is given under subsection (1) refuses to or otherwise fails to comply with the terms of the notice, the Board may cause the memorial to be repaired or removed from the cemetery and may recover from that holder of a right of burial the costs of the removal or repair as a debt in a court of competent jurisdiction.

33. Preservation of graves etc.

A Board may preserve graves, memorials and records which are, in the opinion of the Board, of historical significance.

34. Permission for denominational chapel

If the members of a religious denomination desire, at their own expense, to build and maintain a chapel in a cemetery and the plans and specifications of the proposed chapel are approved by the Board, the Board may permit the chapel to be built in such part of the cemetery as the Board may determine.

Division 4 — Redevelopment schemes

35. Implementation of redevelopment scheme

(1) Subject to the prior approval of the Minister, a Board may, in accordance with and subject to this Division, implement a scheme for the redevelopment of a portion of the land within a cemetery which has been used for burials so that the land may be further used for one or more of the purposes of a cemetery provided for by this Act.

(2) A scheme of the kind referred to in subsection (1) is referred to in this Act as a redevelopment scheme.

36. Required action before implementation of redevelopment scheme

Before a Board implements a redevelopment scheme, the Board shall —

(a) prepare and make available for public inspection a plan of the redevelopment area showing the development proposed under the redevelopment scheme and indicating all existing burial plots within that area; and

(b) take all reasonable steps to inform all holders of rights of burial in the redevelopment area of their right to object to the redevelopment scheme; and

(c) not less than 12 months before the date proposed for the implementation of the redevelopment scheme, cause to be placed in a prominent position in the redevelopment area, a notice of the intention to redevelop the area containing information as to where the plans of the redevelopment scheme may be inspected and stating that persons may make written submissions to the Board with respect to the redevelopment scheme; and

(d) not less than 3 months before the date proposed for the implementation of the redevelopment scheme, cause to be published at least once in a newspaper circulating in the district served by the cemetery a notice of intention to implement the redevelopment scheme containing information as to where the plans of the redevelopment scheme may be inspected and stating that persons may make written submissions to the Board with respect to the redevelopment scheme.

37. Submissions

(1) A Board shall give careful consideration to every submission received by the Board with respect to a proposed redevelopment scheme.

(2) A Board shall not proceed under a redevelopment scheme with the redevelopment of a specified area that is subject to a right of burial during the unexpired period of the right if the holder of the right objects.

(3) A Board may take into consideration any submissions with respect to the proposed redevelopment scheme received from any person and may modify the scheme accordingly.

(4) A Board shall forward a proposed redevelopment scheme and all submissions made thereon to the Board together with modifications to the scheme proposed by the Board (if any) to the Minister and the Minister may —

(a) approve the redevelopment scheme; or

(b) approve the redevelopment scheme with such modifications as are directed by the Minister; or

38. Register concerning redevelopment area

(1) Before a Board implements a redevelopment scheme, the Board shall prepare a register of all burials within the redevelopment area, including details of the names and descriptions of the deceased persons and the location of the burial in every case and the details of all legible inscriptions on memorials and their location in the redevelopment area.

(2) A register prepared under subsection (1) shall be kept by the Board with the registers required to be kept under Division 5.

39. Memorials in redevelopment area

Where a Board redevelops a portion of the land within a cemetery the Board shall erect a memorial showing the names and such other details as the Board considers appropriate of deceased persons buried in the redevelopment area.

[Section 39 amended: No. 8 of 2009 s. 27.]

Division 5 — Registers

40. Board to maintain registers and plans

(1) A Board shall establish and maintain —

(a) a register containing details of all burials in the cemetery, including details of the names and descriptions of the deceased persons and details of the location of the burial in every case; and

(b) a register of all grants of right of burial in the cemetery, including details of the assignments or bequests of grants.

(2) A Board shall keep and maintain plans showing the location of all burials registered under subsection (1).

(3) A register maintained under this Act may be kept or prepared —

(a) by making entries in or on a bound or loose‑leaf book; or

(b) by recording or storing the particulars required by this Act to be entered in the register by means of a mechanical, electronic or other device, but so that the particulars so recorded or stored will remain in the form in which they were originally recorded or stored and will be capable of being reproduced in written form in the English language.

41. Registers available for inspection

(1) A Board shall make all registers kept under this Act available for inspection by members of the public at times and places set by the Board and shall on request make available copies of extracts from any register.

(2) A Board may charge a fee for the inspection of a register or for providing an extract from or certified copy of an extract from a register.

42. Register to be evidence of burials

A register of burials maintained by a Board in accordance with this Act and every document purporting to be a copy of an extract from such a register and to be certified as a true copy of an extract by or on behalf of a Board shall be admissible in evidence in any court or before any person acting judicially and shall be evidence of a burial referred to in the register or copy.

Part VI — Management of closed cemeteries

43. Vesting control of closed cemetery

(1) The Governor may, by order published in the Gazette, vest the care, control and management of a cemetery closed under the Cemeteries Act 1897 or this Act, in a Board or other person.

(2) Every closed cemetery the care, control and management of which is vested in a Board under subsection (1) shall be deemed to be a cemetery for the purposes of this Act, but no burial may be permitted in the cemetery except in accordance with section 4(2) or with the written approval of the Minister under section 12.

Part VII — Financial provisions

44. Application

(1) Sections 46, 48, 51 and 52 do not apply to a Board which is a statutory authority for the purposes of the Financial Management Act 2006 and the Auditor General Act 2006.

(2) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of a Board which is a statutory authority for the purposes of those Acts.

(3) Notwithstanding section 6, the functions conferred or imposed on Boards by sections 46, 48, 49, 51 and 52 do not apply with respect to a local government in which the care, control and management of a cemetery is vested under section 5.

[Section 44 amended: No. 14 of 1996 s. 4; No. 77 of 2006 Sch. 1 cl. 22.]

45. Funds of Board

The funds available to a Board to enable it to perform its functions under this Act are —

(a) moneys from time to time appropriated by Parliament for that purpose; and

(b) moneys received by a Board by way of fees or charges; and

(d) moneys otherwise paid to or made available to a Board.

46. Establishment of accounts

A Board shall —

(a) do all things necessary to ensure that —

(i) all moneys received are properly brought to account; and

(ii) all payments by the Board are correctly made and properly authorised; and

(iii) adequate control is maintained over the assets of or in the custody of the Board and over the incurring of liabilities by it;

and

(b) cause to be kept proper accounts and records of its transactions and affairs in such manner as the Minister may from time to time direct.

47. Authorised expenditure

A Board may authorise funds to be expended for the performance of any of the functions of the Board under this Act or any other purpose approved by the Minister.

48. Estimates

If the Minister so directs, a Board shall cause annual estimates of its financial operations in respect of the performance of its functions under this Act to be —

(a) prepared under such headings and in such manner as the Minister directs; and

(b) submitted to the Minister not later than a date specified by the Minister.

49. Borrowing

A Board may borrow money for the performance of its functions under this Act by —

(a) obtaining advances from a bank on overdraft or on security of any of the Board’s property, including fees or charges; or

(b) the issue of any securities approved by the Treasurer.

50. Banking and investment

(1) A Board may open and operate bank accounts.

(2) A Board may invest any moneys held by it as trust funds may be invested under Part III of the Trustees Act 1962.

[Section 50 amended: No. 1 of 1997 s. 18.]

51. Financial statements

(1) A Board shall cause to be prepared in respect of each financial year ending on 30 June financial statements, in such form as the Minister may from time to time approve, comprising —

(a) a statement of financial transactions of the Board for the financial year; and

(b) a statement of the financial position of the Board at the end of the financial year; and

(c) such financial statements other than those referred to in paragraphs (a) and (b) as the Minister from time to time directs,

and shall forthwith submit those financial statements to the Auditor General for audit and to the Minister.

(2) The financial statements referred to in subsection (1) shall —

(a) present fairly the financial transactions of the Board for the financial year to which they relate; and

(b) present fairly the financial position of the Board at the end of the financial year.

52. Audit

On receiving the financial statements submitted to him under section 51, the Auditor General shall examine and audit the accounts and records of the financial transactions of the Board and shall —

(a) forthwith draw the attention of the Minister and the Board to any irregularity disclosed by that audit that is in the opinion of the Auditor General, of sufficient importance to justify him so doing; and

(b) report to the Minister and to the Board on —

(i) whether or not in his opinion the financial statements are based on proper accounts and records; and

(ii) whether or not in his opinion the financial statements are properly drawn up in accordance with the relevant generally accepted accounting standards so as to present fairly the financial transactions of the Board for the period under review and the financial position at the end of that period; and

(iii) whether or not in his opinion the controls exercised by the Board are adequate to provide reasonable assurance that the receipt, expenditure and investment of moneys and the acquisition and disposal of assets have been lawful and proper; and

(iv) such other matters arising out of the financial statements as the Auditor General considers should be reported.

53. Fees and charges

(1) A Board may by resolution set fees and charges for any of the following purposes —

(a) issuing a funeral director’s licence; and

(b) issuing a single funeral permit; and

(d) a grant or renewal of a grant of a right of burial; and

(e) permission to erect new or additional memorials and for supervising such work; and

(f) cremation; and

(g) conducting a funeral; and

(h) inspection of registers and issue of extracts or certified copies therefrom; and

(i) registration of the assignment or bequest of a right of burial; and

(j) exhumation; and

(k) maintenance of graves; and

(l) extraordinary services provided for funerals; and

(m) disposal of ashes; and

(n) the provision of memorials; and

(o) any other purpose necessary for the effective administration of this Act.

(2) A fee or charge set by a resolution under subsection (1) shall not come into effect until not less than 14 days’ notice of the fee or charge has been given in the Gazette.

(3) Fees and charges set under this section shall be payable to the Board and recoverable as a debt in a court of competent jurisdiction.

(4) The Minister may, by order published in the Gazette, amend or revoke a fee or charge set by a Board under this section if the Minister considers the fee or charge to be unreasonable.

Part VIII — Local laws, by‑laws and regulations

[Heading amended: No. 14 of 1996 s. 4; No. 57 of 1997 s. 29(1).]

54. Procedure for local laws and by‑laws

(1) A Board that is a local government may make local laws in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 for the purposes specified in section 55.

(2) A Board that is not a local government may make by‑laws for the purposes specified in section 55 and is to make them in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 as if the Board was a local government making local laws.

[Section 54 inserted: No. 14 of 1996 s. 4.]

55. Local laws and by‑laws

(1) A Board may make local laws or by‑laws, as the case may be, that are necessary or convenient for the purposes of this Act and in particular for any of the following purposes —

(a) prescribing types of memorials permitted in different areas of a cemetery; and

(b) prescribing the location, dimensions and preparation of graves; and

(d) prescribing specifications and materials for coffins for burials and cremations; and

(e) prescribing methods for the disposal of ashes of cremated bodies in a cemetery; and

(f) prescribing requirements for the burial and covering of coffins; and

(g) for the protection of memorials and the land and property of a Board; and

(h) regulating the grant of rights of burial; and

(i) regulating the maintenance of areas for burials and empowering a Board to enter into an agreement with the holder of a right of burial for the maintenance of an area at the expense of such holder; and

(j) regulating, subject to the provisions of the Cremation Act 1929, the operation of any crematorium used by a Board; and

(k) convening and regulating meetings of a Board; and

(l) for the conduct of funerals, including the conduct of funerals by a Board; and

(m) prescribing the procedures of a Board with respect to applications for and issue of licences, permits and permissions; and

(n) regulating the entry to and use of vehicles in a cemetery; and

(o) regulating the manner of payment and the receipt of fees and charges; and

(p) providing that contravention of a local law or by‑law constitutes an offence and providing for penalties not exceeding a fine of $500 and if the offence is a continuing one to a further fine not exceeding $20 for every day or part of a day during which the offence has continued; and

(q) prescribing offences for the purposes of sections 63 and 64 by setting out the offences or by reference to the provisions contravention of which constitutes the offences and in respect of each such offence prescribing the modified penalty, or different modified penalties according to the circumstances by which the offence is attended, applicable if the offence is dealt with under those sections, but so that no such modified penalty exceeds $50; and

(r) generally for the doing of all such acts and things as are or may be necessary or convenient for the effective administration of a cemetery.

[Section 55 amended: No. 14 of 1996 s. 4; No. 57 of 1997 s. 29(2).]

56. Model local laws

(1) The Governor may cause to be prepared and published in the Gazette model local laws the provisions of which a local law or by‑law made under this Act may adopt by reference, with or without modification.

(2) Model local laws have no effect except to the extent that they are adopted.

(3) The Governor may, by notice published in the Gazette, amend a model local law published under this section.

(4) An amendment to a model local law does not affect any local law or by‑law that adopted the model local law before the amendment but the amendment may be adopted by a further local law or by‑law.

[Section 56 inserted: No. 14 of 1996 s. 4.]

56A. Governor may amend or repeal local laws or by‑laws

(1) The Governor may make a local law to amend the text of, or repeal, a local law or by‑law.

(2) Subsection (1) does not include the power to amend a local law or by‑law to include in it a provision that bears no reasonable relationship to the local law or by‑law as in force before the amendment.

(3) The Minister is to give a Board notice in writing of any local law that the Governor makes to amend the text of, or repeal, any of the Board’s local laws or by‑laws.

(4) A local law made under this section is to be taken, for all purposes, to be a local law or by‑law made by the Board which made the local law or by‑law that is amended or repealed.

(5) Section 3.17 of the Local Government Act 1995 does not apply in relation to local laws made under this Act.

[Section 56A inserted: No. 14 of 1996 s. 4.]

57. Regulations

The Governor may make regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

Part IX — Miscellaneous

58. Minister may order exhumation

The Minister may in writing order the exhumation of a body and the re‑burial or disposal of the ashes after cremation of the body in accordance with this Act and may further order how and by whom the costs of the exhumation, re‑burial or disposal shall be met.

59. Board may authorise exhumation and re‑burial

A Board may in writing authorise the exhumation of a body buried in the cemetery and the re‑burial or disposal of the ashes after cremation of the body in that cemetery.

60. Power to lease or take a lease of land or buildings

For any of the purposes of this Act, a Board may let or lease land or all or part of any building and may acquire a tenancy or lease of land or all or part of any building.

61. Provision of housing

A Board may —

(a) erect, purchase, take on lease or tenancy or otherwise acquire land, houses or other dwelling units for the accommodation of employees of the Board; and

(b) require employees to pay a rental for the occupation of accommodation and deduct amounts of rental from the remuneration payable to employees; and

(c) sell or otherwise dispose of land, houses or dwelling units no longer required for providing accommodation for employees.

62. Wilful damage to memorials etc.

A person who wilfully and unlawfully destroys or damages any memorial or any property in a cemetery commits an offence.

Penalty: $1 000.

[Section 62 amended: No. 50 of 2003 s. 43(2).]

63. Infringement notice

(1) An authorised person who has reason to believe that a person has committed an offence against a local law or by‑law with respect to a cemetery that is prescribed to be an offence that may be dealt with under this section may, at or within 30 days after the time the offence is believed to have been committed, give to that person a notice in the prescribed form informing him that if he does not wish to be prosecuted for the alleged offence in a court he may, within 21 days after the giving of the notice, pay to a person specified in the notice, not being the person giving the notice, the amount of money specified in the notice as being the modified penalty for that offence.

(2) A person given an infringement notice may decline to be dealt with under this section and, if the modified penalty is not paid within the period specified in the notice, or within such further time as may, whether before or after the expiry of that period, be allowed by a prescribed person, the person given the notice is deemed to have declined to be dealt with under this section.

(3) An infringement notice may, whether or not the modified penalty has been paid, be withdrawn, at any time within 28 days after the giving of the notice, by the sending of a notice, in the prescribed form, signed by a prescribed person, to the alleged offender advising the alleged offender that the infringement notice has been withdrawn, and, in that event, the amount of any modified penalty that has been paid shall be refunded.

(4) Where a modified penalty has been paid pursuant to an infringement notice and the notice has not been withdrawn as provided by subsection (3) proceedings shall not be brought against any person with respect to the offence alleged in the notice.

[Section 63 amended: No. 14 of 1996 s. 4; No. 84 of 2004 s. 80.]

64. Authorised persons

(1) An employee of a Board may be authorised in writing signed by the chairman of the Board to give infringement notices.

(2) A Board must give to each person authorised under subsection (1) an identity card that —

(a) on the front of the card, sets out —

(i) the name and official insignia of the Board; and

(ii) the name of the person; and

(iii) a recent photograph of the person;

and

(b) on the back of the card, specifies that the person is authorised to give infringement notices.

(3) A person authorised under subsection (1) must —

(a) carry their identity card at all times when performing functions under this Act; and

(b) produce their identity card for inspection when required to do so by a person to whom the authorised person has given or is about to give an infringement notice.

(4) References in this section to a Board do not include a Board that is a local government.

[Section 64 amended: No. 16 of 2019 s. 97.]

65. Name to be given

(1) A member or an employee of a Board who finds a person committing an offence, or who on reasonable grounds suspects a person of having committed an offence, against this Act may require the alleged offender to provide true and complete details of his name and residential address.

(2) A person who fails or refuses to provide true and complete details of his name and residential address on being required to do so under subsection (1) commits an offence and is liable to a fine of $500.

66. Repeal

The Cemeteries Act 1897 is repealed.

67. Transitional and savings

(1) Schedule 2 has effect.

(2) Except as otherwise provided in Schedule 2, nothing in that schedule affects any saving provided for by the Interpretation Act 1984.

Schedule 1 — Constitution and procedure of Boards

[s. 8]

[Heading amended: No. 19 of 2010 s. 4.]

Term of office

Except as otherwise provided by this Act, a member shall hold office for such term not exceeding 5 years as is specified in his instrument of appointment, and may from time to time be reappointed.

Vacating office

The office of a member becomes vacant if —

(a) he resigns his office in writing signed by him and delivered to the Minister; or

(b) he is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(d) he is absent, except on leave granted by the Board, from 3 consecutive meetings of the Board of which he has had notice.

[Clause 2 amended: No. 18 of 2009 s. 14.]

Chairman

The Minister may appoint one of the members of the Board to be chairman or may direct the members to appoint one of their members to be chairman.

Meetings

(1) At a meeting of the Board the chairman shall preside but where the chairman is absent from a meeting, the members present shall appoint one of them to preside at that meeting.

(2) At any meeting of the Board, the chairman or other member presiding shall have a deliberative vote and in the case of an equality of votes shall also have a casting vote.

(3) A Board shall cause accurate minutes to be kept of the proceedings at its meetings.

Quorum

At any meeting of the Board a majority of the members constitute a quorum.

Resolution may be passed without meeting

A resolution in writing signed or assented to by letter, telegram or telex by each member shall be as valid and effectual as if it had been passed at a meeting of the Board.

Leave of absence

A Board may grant leave of absence to a member on such terms and conditions as it thinks fit.

Board to determine own procedures

Subject to this Act and to local laws or by‑laws made under this Act, a Board shall determine its own procedures.

[Clause 8 amended: No. 14 of 1996 s. 4.]

Schedule 2 — Transitional and savings provisions

[s. 67]

[Heading amended: No. 19 of 2010 s. 4.]

Division 1 — Provisions for repealed Act

[Heading inserted: No. 16 of 2019 s. 98(1).]

Terms used

In this Division —

commencement day means the day fixed under section 2 as the day on which this Act comes into operation;

repealed Act means the Cemeteries Act 1897.

[Clause 1 amended: No. 16 of 2019 s. 98(2).]

Existing public cemeteries deemed cemeteries

Places appointed as public cemeteries by proclamation of the Governor under section 5 of the repealed Act and disused burial grounds deemed to be cemeteries by reason of section 41B of the repealed Act shall on the commencement day be deemed to be cemeteries for the purposes of and subject to this Act.

Management by local government authority

Where immediately before the commencement day a local government authority is the sole trustee of a public cemetery (having been so appointed under section 10 of the repealed Act), the care, control and management of the cemetery shall on the commencement day be deemed by order under section 5 to have been vested in the local government authority for the purposes of and subject to this Act.

Trustees to become Board members

Where immediately before the commencement day persons (other than a local government authority) are the trustees of a public cemetery (having been so appointed under section 10 of the repealed Act) —

(a) the care, control and management of the cemetery shall on the commencement day be deemed to have been vested by order under section 5 in a Board for the purposes of and subject to this Act; and

(b) the body corporate incorporated under section 10A of the repealed Act shall on the commencement day continue as a body corporate and be deemed from that day to have been established as a cemetery board by order under section 7 for the purposes of and subject to this Act under the name of the “ Cemetery Board” (the word “Cemetery” being preceded by the name of the cemetery for which the trustees were appointed); and

(c) the trustees holding office immediately before the commencement day shall be deemed to have been appointed to be members of the Board for a term of 12 months beginning on the commencement day.

Existing funeral directors’ licences

(1) Where immediately before the commencement day a person holds a funeral director’s licence valid in respect of a public cemetery and issued to the person under by‑laws made under the repealed Act by the trustee or trustees of that cemetery, the licence shall be deemed to be a funeral director’s licence issued to that person under section 17 and valid for the conduct of funerals at the cemetery or cemeteries specified in the licence.

(2) A funeral director’s licence deemed to have been issued by virtue of subclause (1) shall be valid, unless it is sooner suspended or cancelled under section 18, for the term for which it was issued, except that it shall not in any case be valid for a term longer than 12 months from the commencement day.

Grants of right of burial

Nothing in this Act shall affect a right of burial in a cemetery granted under the repealed Act, except that in the case of such a right granted in perpetuity or for an indefinite term or for a term extending more than 25 years after the commencement day, the right shall be varied by virtue of this clause so that the right expires on a day 25 years after the commencement day.

Registers

The registers of burials and grants of right of burial kept under sections 19 and 21 of the repealed Act shall be deemed to form part of the registers required to be kept under section 40(1)(a) and (b) respectively.

Fees and charges

Where immediately before the commencement day fees and charges are prescribed in respect of a cemetery by by‑laws made under the repealed Act, the fees and charges shall on the commencement day be deemed to be set by resolution by the Board under and subject to section 53.

Saving

All acts, matters and things that immediately before the commencement day were in existence or in operation under the repealed Act shall, in so far as is consistent with this Act, subsist and enure as if at the time they originated or were done this Act had been in operation and they had originated or been done thereunder.

Division 2 — Provision for Local Government Legislation Amendment Act 2019

[Heading inserted: No. 16 of 2019 s. 98(3).]

Authorised persons

(1) This clause applies to a person who, immediately before the day on which the Local Government Legislation Amendment Act 2019 section 97 comes into operation, was a person authorised under section 64(1) by a Board that is a local government.

(2) The person is taken to be an authorised person appointed under the Local Government Act 1995 section 9.10(2) for the purposes of section 63 on the terms and conditions that were applicable to the person’s authorisation under section 64(1) immediately before the day referred to in subclause (1).

[Clause 10 inserted: No. 16 of 2019 s. 98(3).]

dline

Notes

This is a compilation of the Cemeteries Act 1986 and includes amendments made by other written laws. For provisions that have come into operation, or versions that include editorial changes made under the Legislation Act 2021 Part 3, see the compilation table. For provisions affected by editorial changes see the editorial changes table.

Compilation table

Short title	Number and year	Assent	Commencement
Cemeteries Act 1986	102 of 1986	12 Dec 1986	s. 1 and 2: 12 Dec 1986; Act other than s. 1 and 2: 1 Jul 1987 (see s. 2 and Gazette 12 Jun 1987 p. 2319)
Acts Amendment (Public Service) Act 1987 s. 32	113 of 1987	31 Dec 1987	16 Mar 1988 (see s. 2 and Gazette 16 Mar 1988 p. 813)
Local Government (Consequential Amendments) Act 1996 s. 4	14 of 1996	28 Jun 1996	1 Jul 1996 (see s. 2)
Trustees Amendment Act 1997 s. 18	1 of 1997	6 May 1997	16 Jun 1997 (see s. 2 and Gazette 10 Jun 1997 p. 2661)
Acts Amendment (Land Administration) Act 1997 s. 141	31 of 1997	3 Oct 1997	30 Mar 1998 (see s. 2 and Gazette 27 Mar 1998 p. 1765)
Statutes (Repeals and Minor Amendments) Act 1997 s. 29	57 of 1997	15 Dec 1997	15 Dec 1997 (see s. 2(1))
*Reprint of the Cemeteries Act 1986* as at 3 Apr 2002** (includes amendments listed above)
Sentencing Legislation Amendment and Repeal Act 2003 s. 43	50 of 2003	9 Jul 2003	15May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 17 3	55 of 2004	24 Nov 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 80	84 of 2004	16 Dec 2004	2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Financial Legislation Amendment and Repeal Act 2006 Sch. 1 cl. 22	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 2: The Cemeteries Act 1986* as at 25 May 2007** (includes amendments listed above)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 27	8 of 2009	21 May 2009	22 May 2009 (see s. 2(b))
Acts Amendment (Bankruptcy) Act 2009 s. 14	18 of 2009	16 Sep 2009	17 Sep 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 4	19 of 2010	28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Public Sector Reform Act 2010 s. 89	39 of 2010	1 Oct 2010	1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
*Reprint 3: The Cemeteries Act 1986* as at 6 May 2016** (includes amendments listed above)
Local Government Legislation Amendment Act 2019 Pt. 4 Div. 3	16 of 2019	5 Jul 2019	7 Nov 2020 (see s. 2(b) and SL 2020/212 cl. 2)
Cemeteries Act 1986 with editorial changes as at 14 Jun 2024

Editorial changes table

The Legislation Act 2021 Part 3 authorises the Parliamentary Counsel to make editorial changes to laws. This power cannot be used to change the effect of a law. If an editorial change is made to a law, the law has effect as if the change had been made by another law that amended the law and commenced on the day on which the change is made.

To see the editorial changes included in a version of a law, see the compare document for that version on the WA Legislation website.

Provision/s affected	*Authorising provision of Legislation Act 2021* Part 3**	Effective date of change
s. 3(1)	s. 34	14 Jun 2024

Other notes

1 Under the Public Sector Management Act 1994 s. 112(1), a reference to the Public Service Act 1978 is to be read as a reference to the Public Sector Management Act 1994. The reference was changed under the Reprints Act 1984 s. 7(3)(g).

2 The Courts Legislation Amendment and Repeal Act 2004 Sch. 2 cl. 8 was deleted by the Criminal Law and Evidence Amendment Act 2008 s. 77(13).

3 The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

alleged offender 3(1)

authorised person 3(1)

Board 3(1)

burial 3(1)

cemetery 3(1)

commencement day Sch. 2 cl. 1

dead body 3(1)

funeral 3(1)

holder 3(1)

infringement notice 3(1)

licence 3(1)

member 3(1)

memorial 3(1)

redevelopment area 3(1)

repealed Act Sch. 2 cl. 1

right of burial 3(1)

Western Australia

Cemeteries Act 1986

Western Australia

Cemeteries Act 1986

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used 2

Part II — Cemeteries

Declaration and closure of cemeteries 4
Vesting of management of cemetery 4
Local governments to perform functions of Board 4

Part III — Establishment and constitution of Boards

Establishment of Boards 6
Constitution of Boards 6
Remuneration and allowances of members 6
Appointment of staff 7

Part IV — Burials and conduct of funerals

Division 1 — Burials of dead bodies

Burials to be in cemeteries or as authorised by Minister 8
Minister may authorise burial 8
Delegation 9

Division 2 — Conduct of funerals

Conduct of funerals 9
Ministers of religion and religious ceremonies 10

Division 3 — Licensing of funeral directors

Licences 10
Applications for licences 10
Suspension and cancellation of licences 11
Application for review of decisions of Board 12

Division 4 — Conduct of funerals by permit holders and Boards

Single funeral permits issued to persons other than funeral directors 12
Single funeral permits issued to funeral directors 13
Board may conduct funeral 13

Part V — Management of cemeteries

Division 1 — Layout and management of cemeteries

Setting apart areas for religious denominations 14

The Act defines and organises a limited set of legal categories and mechanisms that structure cemetery governance and operations. The most salient concepts in the text are:

Cemetery and closed cemetery: Land declared by the Governor (s 4(1)) or deemed to be a cemetery under the Act, including disused burial grounds and closed cemeteries (s 3(1)). A closed cemetery remains subject to the Act when vested in a Board but generally closed to new burials unless expressly authorised by the Minister or under s 4(2) (s 43(2)).
Board: A cemetery board established by the Governor to care for and manage one or more cemeteries; a Board is a body corporate with perpetual succession and a common seal, capable of holding property and suing/being sued (s 7). Where the Governor vests a local government with care and control, that local government performs Boards' functions under s 6.
Right of burial: A property‑like right to use a specified area in a cemetery for burial and to place a memorial (s 25(1)). Rights are granted for terms of 25 years (s 25(1)) and can be assigned or bequeathed but assignments and bequests require registration or probate to be effective (s 26).
Licence and permit regimes: A funeral director’s licence authorises the holder to conduct funerals at specified cemetery/cemeteries for up to one year, non‑transferable (s 16). Boards may issue single‑funeral permits to non‑licensed persons for a named funeral (s 20) and to licensed funeral directors licensed by other Boards (s 21).
Local laws/by‑laws and model local laws: Boards may make local laws (if they are local governments) or by‑laws (if not local governments) for cemetery regulation, including memorial specifications, coffin specifications, funerals and fee procedures (ss 54-55). The Governor may publish model local laws for adoption (s 56) and may amend or repeal a Board’s local laws (s 56A).
Redevelopment scheme: A statutory procedure for repurposing burial land within a cemetery for other cemetery uses, involving plan preparation, notice (12 months on‑site plus 3 months newspaper), a register of burials in the area, an opportunity for submissions and Ministerial approval (ss 35-39).
Registers and evidentiary status: Boards must maintain registers of burials and grants of rights, keep plans, and make registers available for public inspection (ss 40-41). Registers, and certified copies, are admissible as evidence of the burials they record (s 42).
Enforcement tools and civil remedies: Criminal penalties are specified for unauthorised burials, conducting funerals without licence/permit, unauthorised memorial placement or alteration, wilful damage, and refusal to provide name/address when required (ss 11, 14, 30, 62, 65). Boards may issue notices to remove or repair unauthorised or disrepair memorials and recover costs as a debt in court (ss 31-32). There is also an infringement notice procedure for prescribed by‑law offences with modified penalties and an authorised person regime (ss 63-64).
Financial and governance controls: Boards may set fees and charges for a wide range of services (s 53), borrow (s 49), and must maintain accounts and submit audited financial statements (ss 46, 51-52), subject to the Financial Management Act where the Board is a statutory authority (s 44).

Several definitional nuances materially affect the application of these concepts. For example, in most places the Act defines "burial" to include disposal of ashes after cremation (s 3(1)), though the definition is qualified as not applying in the definition of "funeral" and in specific provisions (s 3). Also, the Act allows a Board in a particular case to treat a stillborn of not less than 20 weeks’ gestation as a "dead body" for the Act’s purposes (s 3(2)).

Together, these concepts allocate decision rights (Governor, Minister, Boards/local governments), set property parameters for burial rights, create entry barriers and procedural requirements for funeral service providers, and establish documentation and public‑disclosure duties (registers and plans) that underpin cemetery land use and possible redevelopment.

The Act affects five broad groups of actors and certain categories within them, with distinct duties, entitlements and compliance obligations.

Boards and local governments. Boards established under s 7, and local governments in which care, control and management have been vested (s 5-6), are the primary duty‑holders. Boards set fees (s 53), make local laws or by‑laws (ss 54-55), issue licences and permits for funerals (ss 16-22), maintain registers (s 40), enact redevelopment schemes (ss 35-39, subject to Ministerial approval), employ authorised persons to issue infringement notices (s 64), and can recover costs for removal or repair of memorials (ss 31-32). Financial responsibilities include maintaining proper accounts (s 46), preparing financial statements and submitting them to the Auditor General (s 51), and borrowing under s 49.
Funeral directors and permit holders. Persons seeking to conduct funerals must hold a funeral director’s licence for the cemetery or a single‑funeral permit issued by the Board (s 14). Licences are subject to suitability determination and the applicant must show good repute and appropriate facilities (s 17); licences are non‑transferable (s 16(c)) and valid for up to one year (s 16(b)). Permits allow non‑licensed persons to conduct a particular funeral (s 20) and allow out‑of‑area licensed funeral directors to act with a permit (s 21).
Holders of rights of burial and families of deceased persons. Holders receive a grant of right of burial for 25 years (s 25(1)); renewals are available (s 25(2)). Assignments and bequests require registration or probate to be effective (s 26). Before a new burial is permitted in a specified area subject to a grant, the Board must be satisfied that the holder consents or would not object (s 27). Redevelopment can affect rights but the Board must not redevelop an area subject to an unexpired right of burial if the holder objects (s 37(2)).
General public and visitors. The public is entitled to inspect registers of burials and rights of burial kept by Boards (s 41(1)), subject to fees the Board may charge (s 41(2)). The public is also affected by local laws and by‑laws that a Board may make regulating cemetery behaviour, memorials, vehicle access, coffins and crematoria (s 55). Those who damage memorials or property face criminal penalties (s 62).
Ministers, Governor, and Ministerial/administrative delegates. The Minister has specific powers that directly affect other actors: authorising burials outside cemeteries (s 12), delegating that authority (s 13), approving redevelopment schemes (s 37(4)), ordering exhumations and specifying cost allocation (s 58), and amending Board fees in the Gazette if a fee is unreasonable (s 53(4)). The Governor declares cemeteries and closures and vests management (ss 4-5) and may publish model local laws (s 56) or amend/repeal local laws (s 56A).

Who pays. Costs are distributed across actors depending on the provision: Boards may charge fees (s 53) and recover costs of memorial removal/repair from holders of rights as debts (ss 31(2), 32(2)). The Minister may order costs of exhumation and re‑burial to be met by specified persons (s 58). Boards fund operations through parliamentary appropriations, fees and charges, borrowing and other receipts (s 45). If a Board is a local government, certain financial obligations under ss 46, 48, 51 and 52 do not apply (s 44(3)), shifting audit and reporting obligations into the local government regime.

Who decides. The Act concentrates many discretionary decisions with the Governor (declaration, vesting, closure), the Minister (burial authorisations out of cemeteries, redevelopment approvals, exhumation orders, fee amendments and model law publication), and Boards (licensing, permits, fee schedules, local laws, memorial approvals and removal). This distribution establishes both central oversight and decentralised operational choice.

Behaviour changes the Act intends to shape. Formal documentation of burial rights, licensing and permit regimes for funerals, and register transparency aim to standardise cemetery operations. Redevelopment rules and memorial controls create predictable procedures for altering cemetery land , which will change how holders of rights and Boards plan long‑term maintenance, memorialising and land use.

Concentrated impacts will fall on Boards (administrative duties, financial and regulatory functions), funeral directors (licensing, inspections), and holders of burial rights (term limits, registration formalities, redevelopment exposure). The public gains access to registers and statutory remedies for unauthorised works, while the Minister and Governor retain high‑level land and exhumation powers.

This section summarises statutory duties and rights that generate direct compliance requirements or confer legally actionable entitlements.

Duties of Boards and local governments

Establish and maintain burial registers and plans: Boards must maintain a register of all burials and of grants of right of burial, and plans showing burial locations (s 40(1)-(2)). Registers may be electronic but must be reproducible in written English (s 40(3)).
Make registers available and provide extracts: Boards must allow public inspection at set times and places and may charge fees for inspection or certified copies (s 41(1)-(2)).
Manage cemetery layout and upkeep: Boards must set aside burial areas and preserve and maintain a cemetery in a safe, clean and orderly condition (s 24(1)(a)-(b)).
Control memorials and burial practices: Boards control kinds of memorials, may prescribe different requirements by area (s 29), must process memorial permission applications (s 30) and may issue notices requiring removal or alteration of unauthorised memorials, with cost recovery powers (ss 31-32).
Licence and permit functions: Boards decide on funeral director licences (s 17), can inspect facilities (s 17(3)), suspend or cancel licences (s 18), and issue single‑funeral permits (ss 20-21). Boards must notify in writing applicants and licensees of refusals or cancellations and give reasons; aggrieved persons may seek review via the State Administrative Tribunal (s 19).
Redevelopment obligations: Before implementing redevelopment, Boards must prepare and publish plans, inform right‑holders, place on‑site notices at least 12 months before implementation and publish newspaper notices at least 3 months prior, consider submissions and prepare a register of burials in the redevelopment area (ss 36-38). The Board must forward the proposed scheme and submissions to the Minister for approval (s 37(4)).
Financial controls and reporting: Boards must properly account for receipts and payments, maintain asset and liability controls and keep accounts in the manner directed by the Minister (s 46). They must prepare financial statements for each financial year and submit them to the Auditor General and the Minister unless the Board is a statutory authority governed by the Financial Management Act (s 44(1)-(2); ss 51-52). Boards may set fees by resolution but must give 14 days’ Gazette notice before they come into effect (s 53(2)).

Duties of funeral directors and permit holders

Licensing requirements: Applicants for licences must prove good repute and fitness to hold a licence and have suitable facilities and equipment for handling dead bodies and conducting funerals (s 17(2)). Licence holders must comply with conditions and deliver licences to the Board if suspended or cancelled (s 18(2)).
Inspections: Applicants and licence holders must facilitate Board inspections (s 17(3)); failure attracts a penalty of $500.

Rights of holders of burial rights and families

Right of burial: Boards may grant a right of burial for 25 years and the right to place a memorial (s 25(1)). Holders have a right to seek renewal (s 25(2)).
Transfer and bequest: Rights can be assigned or bequeathed, but assignments have effect only upon registration with the Board; a bequest requires production of probate before the Board makes an entry (s 26(2)-(3)).
Protection from burial without consent: The Board must be satisfied that the holder consents or would not object before permitting any burial in a specified area that is subject to a grant (s 27).
Redevelopment protection: A Board may not proceed to redevelop an area subject to a right of burial during the unexpired period of the right if the holder objects (s 37(2)).

Individual and public rights and obligations

Public registers as evidence: Registers and certified copies are admissible as evidence of burials (s 42).
Access for ministers of religion: Ministers of religion of denominations for which part of a cemetery is set apart have free access at all reasonable times (s 15(1)); Boards must not interfere with performance of religious ceremonies except where offensive (s 15(2)).
Compliance with local laws/by‑laws: The public must obey local laws/by‑laws made under ss 54-55; Boards may prescribe offences with penalties (s 55(p)-(q)).

Enforcement duties and checks

Reporting and notification duties: Boards must give written reasons for refusal, suspension or cancellation of licences and provide the mechanism for review (s 19).
Infringement notice system: Boards may authorise employees to give infringement notices (s 64), and the infringement regime sets time limits and refund/withdrawal processes (s 63).
Ministerial oversight: The Minister may amend or revoke Board‑set fees published in the Gazette if considered unreasonable (s 53(4)), and must approve redevelopment schemes (s 37(4)).

These duties create administrative obligations (register keeping, consultation, notices, fees, audits), regulatory entry points for funeral services (licences, inspections), and property‑style mechanics for burial rights (grant, renewal, transfer, registration). Rights of holders are qualified: the 25‑year default term and the need for registration/probate for effecting transfers or bequests are functional constraints on the property character of "right of burial" (ss 25-26; Sch 2 cl 6 addresses older perpetual grants).

The Act blends criminal sanctions, civil remedies, administrative sanctions and an infringement notice system to enforce compliance with its rules. The statutory architecture lists specific monetary penalties, provides for licence suspension and cancellation, enables cost recovery, and sets out an infringement process for specified local law offences.

Criminal penalties and offences

Unauthorised burials: A person must not bury a dead body other than in a cemetery unless authorised by the Minister or permitted under s 4(2) (s 11(1)). Penalty: $1,000 (s 11).
Unauthorised conduct of funerals: Conducting a funeral at a cemetery without a licence or permit is an offence. Penalty: $1,000 (s 14(1)).
Unauthorised memorial works: Placing or erecting a memorial without the Board’s permission is an offence. Penalty: $500 (s 30(2)). Altering or removing a memorial without permission also attracts $500 (s 30(3)).
Refusal to provide name and address: A person who fails when required to give true and complete details of name and residential address commits an offence, liable to $500 (s 65(2)).
Wilful and unlawful damage: Wilfully and unlawfully destroying or damaging a memorial or property in a cemetery is an offence with a penalty of $1,000 (s 62).

Administrative sanctions

Licence suspension/cancellation: Boards can suspend or cancel funeral director licences for reasons including fraud, unpaid fees, conviction for offences under the Act or local law, or where the Board is no longer satisfied with the licensee’s fit and proper status (s 18(1)(a)-(d)). Cancellation/suspension notices require the holder to deliver the licence within a specified period (s 18(2)). Penalty for non‑compliance with licence surrender: $500 (s 18(2)).
Notices to remove or repair memorials: Where a memorial is unauthorised or in disrepair, the Board may give 28 days’ written notice and then remove or repair and recover costs if the holder does not comply (ss 31(1)-(2), 32(1)-(2)).

Civil remedies and cost recovery

Recovery as debt: Costs of removal or repair of memorials are recoverable from the holder as a debt in a court of competent jurisdiction if the holder fails to comply with a Board’s notice (ss 31(2), 32(2)). Fees and charges set by Boards are recoverable as debts (s 53(3)).
Debts and priority of registered assignments: Assignments of rights take effect only on registration (s 26(2)), which affects priority and enforceability in civil recovery contexts.

Infringement notice regime

By‑law offences may be prescribed as infringement notice offences with specified modified penalties not exceeding $50 (s 55(q)). An authorised person may issue an infringement notice up to 30 days after the time the offence is believed to have been committed (s 63(1)). The alleged offender may pay the modified penalty within 21 days to avoid prosecution (s 63(1)). The notice can be withdrawn within 28 days and paid amounts refunded (s 63(3)). If paid and not withdrawn, no prosecution for the same offence shall be brought (s 63(4)).
Authorised persons: Employees of a Board may be authorised in writing by the Board chairman to give infringement notices; Board‑authorised persons must carry identity cards and produce them (s 64(1)-(3)). Note the textual qualification that references to “Board” in s 64 exclude Boards that are local governments (s 64(4)), and Schedule 2 deals with persons authorised under local government transitional provisions (cl 10).

Oversight and review

Right of review: An aggrieved applicant or licence‑holder may apply to the State Administrative Tribunal for review of a Board’s decision to refuse, suspend or cancel a licence (s 19(2)). Boards must provide written notification and reasons for refusal, suspension or cancellation (s 19(1)).
Ministerial amendment of fees: The Minister may amend or revoke a fee or charge set by a Board and published in the Gazette if the fee is considered unreasonable (s 53(4)). This is a direct executive check on Boards’ fee‑making power.
Evidentiary facilitation: Registers maintained under the Act and certified copies are admissible in evidence, which aids enforcement and proof in court or administrative proceedings (s 42).

Scope and limits on enforcement

Local law penalties: Boards may prescribe offences in local laws/by‑laws with penalties up to $500 and daily fines for continuing offences up to $20 per day (s 55(p)). Modified penalty limits for infringement processing are capped at $50 (s 55(q)).
Limits on who may issue infringement notices: s 64 sets out the authorisation and identity card regime for Board employees (but excludes Boards that are local governments from that section per s 64(4)). The Local Government Act provides for appointment of authorised persons for local governments (s 3(1) definition cross‑referencing).

Implementation and practical enforcement implications

Enforcement predominantly relies on Board capacity: Boards carry out inspections (s 17(3)), give notices (ss 31-32), and, in practice, must pursue civil recovery in courts for unpaid costs (s 31(2)). That requires administrative resourcing, legal capability and willingness to litigate.
The infringement regime provides a lower‑cost pathway for many by‑law contraventions, but the capped modified penalties (s 55(q)) limit the financial deterrent and may influence enforcement choices.
Ministerial powers to amend fees and approve redevelopment create additional administrative control points that can be used as corrective mechanisms or delay points in contentious matters (ss 53(4), 37(4)).

Overall, enforcement under the Act is a mixed toolbox combining criminal fines, administrative notices with cost recovery, adjudicative review via the State Administrative Tribunal, and an infringement notice regime for by‑law offences. The effectiveness of enforcement depends materially on Board resourcing, the availability of civil enforcement mechanisms, and Ministerial oversight.

The Act is written to interact with multiple existing statutes, administrative regimes and historical instruments. The principal cross‑references and interaction points in the text are the following:

Land Administration Act 1997. The Minister may authorise burials on land reserved under the Land Administration Act for burial purpose that is not a cemetery (s 12(a)). This ties burial authorisations outside declared cemeteries to the land reservation framework under the Land Administration Act (s 12).
Local Government Act 1995. The Act expressly contemplates Boards that are local governments and provides that such Boards may make local laws under the Local Government Act’s processes (s 54(1)), and that where a local government is vested with care, control and management of a cemetery, references to a Board shall be construed accordingly (s 6). The definition of “authorised person” also cross‑references appointment under the Local Government Act (s 3(1) definition of authorised person).
Financial Management Act 2006 and Auditor General Act 2006. Section 44(1) provides that ss 46, 48, 51 and 52 do not apply to a Board which is a statutory authority for the purposes of the Financial Management Act 2006 and the Auditor General Act 2006. If a Board is a statutory authority under those Acts, the financial administration, audit and reporting provisions of those Acts apply to the Board (s 44(2)). This creates an alternative financial governance regime for certain Boards and imposes a different audit/reporting architecture in that case.
Trustees Act 1962. Boards may invest moneys held by them as trust funds in the manner that trust funds may be invested under Part III of the Trustees Act 1962 (s 50(2)). This limits investment options to the trustee prudent investor standard and trustee investment powers under that Act.
Cremation Act 1929. Boards may make local laws related to the operation of crematoria, "subject to the provisions of the Cremation Act 1929" (s 55(j)). That means crematoria regulation operates within the separate legislative framework governing cremation.
State Administrative Tribunal Act 2004. Section 19 allows aggrieved applicants or licence holders to apply to the State Administrative Tribunal (SAT) for review of Board decisions to refuse, cancel or suspend licences. The compilation notes include references to the SAT conferral and transitional provisions (see compilation notes and reprints), indicating that SAT review is the statutory avenue for administrative remedy.
Repealed Cemeteries Act 1897 and transitional law. Schedule 2 expressly carries forward certain arrangements from the repealed 1897 Act, deems existing public cemeteries to be cemeteries under this Act, preserves existing trusteeship arrangements by transforming trustees into Board memberships in defined ways, deems existing funeral directors’ licences to be licences under the new Act for defined terms, imports registers and fees into the new framework, and converts perpetual or indefinite rights of burial granted under the repealed Act into fixed 25‑year terms measured from commencement day (Sch 2 cl 6, cl 7, cl 5, cl 8). These transitional rules materially affect property expectations arising under the old legislation.
Local Government Legislation Amendment Act 2019 transitional provisions. Schedule 2 Division 2 contains a saving for persons authorised under s 64 immediately before the 2019 amendments, taking them as authorised under the Local Government Act s 9.10(2) for s 63 purposes on the same terms and conditions (Sch 2 cl 10). That reflects the statutory interaction to preserve authorisations made under the old s 64 for local government contexts.
Evidence and court procedure. Section 42 provides that registers maintained by Boards and certified extracts are admissible evidence in courts or before persons acting judicially. This interacts with evidence law practice by making Board registers formal evidence of burials without separate foundation steps.
Interpretation Act and other Acts. The compilation notes and inserted editorial references show that other later Acts modify references or provide interpretive direction (e.g. Public Sector Management Act, Reprints Act cross‑references noted in compilation). The Act itself relies on administrative law principles when describing delegations (s 13) and when invoking statutory review (s 19).

Practical frictions and interaction points

Where a Board is a statutory authority the Financial Management Act and Auditor General Act supplant some financial sections here (s 44). That creates divergent compliance paths and potentially different resourcing and audit obligations depending on Board status.
The interface with local government law (s 54) enables Boards that are local governments to use established local law procedures, but the Act retains special provisions such as s 56A which gives the Governor power to amend or repeal Board local laws and provides that section 3.17 of the Local Government Act 1995 does not apply in relation to local laws made under this Act (s 56A(5)), producing distinct procedural consequences.
The redevelopment scheme procedure (ss 35-39) sits alongside private property considerations and probate/assignment requirements in ss 25-26: redevelopment cannot proceed over an unexpired right of burial where the holder objects (s 37(2)), but legacy rights converted by Schedule 2 (Sch 2 cl 6) mean some formerly perpetual rights are limited to 25 years, altering the legal landscape for redevelopment.
The Ministry’s power to order exhumation and apportion costs (s 58) interacts with the Board’s power to authorise exhumations in a cemetery (s 59), setting out parallel routes that may involve other statutes (for example, land laws or public health laws) in practice.

In short, the Act is designed to operate within a web of administrative, land, trust, local government and evidence law regimes. Compliance and litigation strategies must pay close attention to which statutory overlay (Financial Management Act, Local Government Act, Trustees Act, Cremation Act) applies to a given Board or activity.

The Act has been amended multiple times since assent in 1986. The compilation table in the provided text lists the sequence and some content references. The mechanical amendment history visible in the Act text and compilation table is as follows.

Original enactment and commencement

Cemeteries Act 1986 (No 102 of 1986) assented 12 December 1986; the Act came into operation in stages, with sections 1 and 2 on 12 December 1986 and the rest on 1 July 1987 (compilation table).

Key amending Acts and dates (selection from compilation table and in‑text amendment notes)

Acts Amendment (Public Service) Act 1987 (No 113 of 1987), s 32: amendments commenced 16 March 1988 (compilation table).
Local Government (Consequential Amendments) Act 1996 (No 14 of 1996), s 4: significant amendments came into effect 1 July 1996; the Act’s text shows multiple amendments attributed to No 14 of 1996 (for example, s 3 amended; insertion of s 54; Schedule 1 heading amendment). This amending Act appears to have introduced or clarified the provisions dealing with local government performing Board functions (s 6), local laws or by‑laws procedure (s 54) and other governance adjustments.
Trustees Amendment Act 1997 (No 1 of 1997), s 18: amendments commenced 16 June 1997; cross‑reference in s 50 notes Trusts Act investment rules apply (s 50(2)).
Acts making various editorial and consequential amendments in 1997 and later.
Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No 8 of 2009), s 27: amendments came into effect 22 May 2009 (compilation table).
Acts Amendment (Bankruptcy) Act 2009 (No 18 of 2009), s 14: amendments commenced 17 September 2009, reflected in Schedule 1 cl 2(b) referencing bankruptcy as a ground for vacating office.
Public Sector Reform Act 2010 (No 39 of 2010), s 89: amendment date 1 December 2010 (compilation table), cited in s 9 remuneration change.
Financial Legislation Amendment and Repeal Act 2006 (No 77 of 2006) Schedule 1 cl 22: amendments effective 1 February 2007 (compilation table), producing s 44 adjustments to reference Financial Management Act and Auditor General Act.
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (No 55 of 2004): amendments effective 1 January 2005 included conferral of jurisdiction on SAT for reviews (reflected in s 19 and compilation notes).
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No 84 of 2004) s 80, Sentencing Legislation Amendment and Repeal Act 2003 and others made consequential amendments affecting penalties and procedure in the Act.
Local Government Legislation Amendment Act 2019 (No 16 of 2019): provisions took effect 7 November 2020; Schedule 2 Division 2 contains transitional saving for authorised persons and the in‑text amendments show s 3 amended by No 16 of 2019 s 96 and s 64 amended s 97 (see in‑text amendment notes).

Editorial changes

The compilation includes an entry for editorial changes made under the Legislation Act 2021 Part 3, with an editorial change effective 14 June 2024 to s 3(1). The Act’s notes state the Parliamentary Counsel may make editorial changes that do not alter substance.

Provisions visibly amended in the text

s 3 shows amendment notes referencing No 14 of 1996 and No 16 of 2019 (s 96) , the definitional structure changed over time.
s 44 contains textual amendments noting relationship to Financial Management Act and Auditor General Act and a 1996 amendment (No 14 of 1996 s 4).
s 18, s 30 and other provisions have in‑text amendment notes referencing No 14 of 1996.
Schedule 1 heading was amended by No 19 of 2010 s 4.

Transitional measures

Schedule 2 implements transitional arrangements for the repeal of the Cemeteries Act 1897, converting trusteeships, licences and rights of burial into the new regime and specifically varying perpetual rights to 25‑year terms measured from commencement day (Sch 2, cl 6). Division 2 of Schedule 2 addresses the Local Government Legislation Amendment Act 2019 saving for authorised persons (cl 10).

What the amendment record implies in operational terms

The 1996 local government amendments (No 14 of 1996) inserted major procedural material enabling Boards to operate as local governments and to make local laws under the Local Government Act regime (s 54 inserted and s 55 altered). That change moves some cemetery governance into local government processes and confers by‑law/policy latitude.
The 2004-2005 amendments that interact with the State Administrative Tribunal integrated administrative review into the local administrative justice system (s 19), shifting dispute resolution away from traditional courts for licensing decisions.
The 2006 financial amendments (No 77 of 2006) introduced an opt‑in to the Financial Management Act framework for Boards that are statutory authorities, changing audit and reporting obligations.
The 2019 local government amendments adjusted authorisation processes for enforcement officers and preserved transitional authorisations (Sch 2 cl 10).

This is a textual history drawn from the Act’s compilation table and in‑text amendment notes rather than a statement of policy change beyond the amendments reflected in the legislation itself.

The text provided contains no judicial decisions or cases that interpret the Cemeteries Act 1986. The Act itself identifies administrative review and evidentiary pathways which shape contestation channels, but it does not cite or summarise any litigation. Relevant procedural interaction points for dispute resolution and litigation (as set in the Act) are:

State Administrative Tribunal review: An aggrieved applicant or licence holder may apply to the State Administrative Tribunal (SAT) for review of a Board’s decision to refuse, cancel or suspend a licence (s 19(2)). That provision creates the statutory right of administrative review for licensing decisions; any litigation history would therefore principally proceed through SAT if parties pursue review rather than judicial proceedings.
Civil recovery in courts: Boards are expressly authorised to recover costs of removal or repair of memorials as a debt in a court of competent jurisdiction (ss 31(2), 32(2)). That creates a civil litigation avenue for enforcement against holders who fail to comply with removal/repair notices; case law on these debts could be relevant but none is included in the provided text.
Evidence admissibility: The Act provides that registers and certified copies are admissible in evidence before any court or person acting judicially (s 42). That evidentiary rule will simplify proof of burial and rights in any litigation but again the text does not identify cases applying the rule.
Criminal prosecutions: The Act prescribes offences and penalties (e.g., unauthorised burials s 11, unauthorised memorial works s 30, wilful damage s 62). The text does not list prosecutions or reported decisions on penalties or sentencing under the Act.

Because the source contains no cases, the Litigation history section must be understood as absence of named judicial authorities in the instrument itself. Practitioners should search Western Australian case law databases for decisions applying the Act: likely focal points will be SAT decisions on licensing, local court decisions on recovery of debt for memorial removal and prosecutions for offences under the Act or under local laws/by‑laws made pursuant to s 55. The Act’s express procedural signposts (s 19 SAT pathway; ss 31-32 civil recovery; s 42 evidentiary presumption) identify where litigation is most likely to arise, and those are the routes that any litigation history would involve.

Note: this section does not invent cases or outcomes. To assemble a litigation history one must consult judicial and tribunal records external to the statutory text provided.

The Act contains text and transitional provisions that create practical pitfalls and non‑obvious legal effects. Practitioners, cemetery managers, funeral service providers and rights‑holders should be alert to the following concrete points grounded in the text.

Right of burial is not perpetual by default. The statutory default grant term is 25 years (s 25(1)). Schedule 2 cl 6 converts pre‑existing perpetual or indefinite rights granted under the repealed 1897 Act so they expire 25 years after the commencement day. Parties with expectations of perpetual burial rights under older instruments should verify whether Schedule 2 has altered their term and the associated renewal processes (s 25(2)).
Transfers and bequests are conditional on registration or probate. An assignment or bequest has no legal effect against the Board until the assignment is produced and registered (s 26(2)) or probate is produced and the bequest entered (s 26(3)). This means possession or informal agreements do not bind the Board until registration; priority between competing assignments is determined by the order of registration (s 26(2)).
Licence non‑transferability limits business exit options. Funeral director licences are not transferable (s 16(c)). That prevents licence‑based consolidation by assignment and creates friction for sellers of funeral businesses who rely on licence portability. Buyers may need to reapply for a licence (s 17), triggering fit and proper and facilities assessments and a potential licensing gap.
Administrative discretion and central oversight. The Minister and Governor retain a wide set of reserve powers: declaring and closing cemeteries (s 4), vesting and transferring care and control (s 5), approving redevelopment schemes (s 37(4)), ordering exhumation with directions on cost allocation (s 58), and amending Board fees in the Gazette if unreasonable (s 53(4)). These powers can delay Board projects or reallocate costs, and parties affected by redevelopment or exhumation may face administrative decisions without immediate judicial review (though SAT review applies to licence decisions (s 19)).
Redevelopment requires long notice and registers; rights‑holder objections halt redevelopment. A redevelopment scheme has strict procedural steps: 12 months’ on‑site notice, 3 months’ newspaper notice, preparation of registers and careful consideration of submissions (ss 36-38). Crucially, a Board must not redevelop an area if a holder of an unexpired right objects (s 37(2)). Boards must therefore invest in accurate registers and thorough notice procedures; failure to do so can stall redevelopment and create liability.
Fees are Board‑set but Ministerially reviewable. Boards set fees by resolution and must publish 14 days’ notice in the Gazette before fees take effect (s 53(1)-(2)). The Minister can amend or revoke a Board fee if considered unreasonable (s 53(4)). That introduces uncertainty for Boards setting fees that might be later adjusted by the Minister.
Infringement penalty caps and enforcement choices. Local laws/by‑laws may designate contraventions as infringement notice offences with modified penalties not exceeding $50 (s 55(q)). The capped modified penalty may be an insufficient deterrent for some conduct, shifting enforcement emphasis to prosecution or civil recovery where allowed. Boards must choose enforcement pathways aware of limited modified penalties for by‑law offences.
Identity card and authorised person limitations for local governments. Section 64 requires Boards to provide identity cards to authorised employees issuing infringement notices, but s 64(4) states references in the section to "Board" do not include a Board that is a local government. Schedule 2 cl 10 preserves persons authorised under the old s 64 in local government contexts by deeming them authorised persons under the Local Government Act (see transitional provision). Practically, the regime differs for local government‑managed cemeteries, so enforcement training and authorisation paperwork must follow the Local Government Act rather than s 64 alone.
Registers are public and admissible in evidence. Registers must be publicly available for inspection (s 41(1)) and are admissible in court as evidence of burials (s 42). This increases transparency but also requires data accuracy; mistakes in the register can have evidentiary consequences and may affect rights to burial and redevelopment decisions.
Exhumation powers and cost allocation. The Minister may order exhumation and may specify how and by whom costs are to be met (s 58). Boards may also authorise exhumation in a cemetery (s 59). Parties contemplating exhumation should carefully check which authority is acting and whether the Minister has specified cost allocation; this is not an automatic Board power in every case.
Penalties and criminal liability for non‑compliance. Several offences have non‑trivial fines ($500-$1,000: ss 11, 14, 30, 62, 65). For corporate or organisational actors, these fines can be an operational risk, and associated reputational risk follows for funeral service providers and cemetery managers.
Local law creation and Governor power to amend. Boards can make local laws/by‑laws (s 55), and the Governor may publish model local laws (s 56) and even amend or repeal a Board’s local laws (s 56A). Boards must therefore be prepared for external amendment of their regulatory regimes and should carefully align local laws with Ministerial guidance.

Each of these points flows directly from specific provisions in the Act; practical responses must be drafted in light of these statutory mechanics rather than general policy interpretation.

This section sets out a practical, section‑referenced checklist and risk‑mitigation guidance for Boards, local governments, funeral directors, and holders of burial rights to meet statutory obligations and reduce enforcement risk.

For Boards and local governments (management entities)

Establish registers and plans immediately and maintain accuracy. Comply with s 40(1)-(3): create a register of all burials and of grants of rights; keep plans showing locations; ensure electronic records are reproducible in written English. Prepare procedures for onboarding legacy records (Sch 2 cl 7).
Publish inspection availability and fee schedules for registers. Meet s 41 obligations to make registers available for public inspection and set and publish fees for extracts or certified copies if charging (s 41(1)-(2)).
Set and publish fees properly. Any fees or charges set by resolution must have at least 14 days’ Gazette notice before coming into effect (s 53(1)-(2)). Track fee resolutions and ensure they are legally published in the Gazette. Expect possible Ministerial amendment if fees are considered unreasonable (s 53(4)).
Implement robust financial controls and audit processes. Comply with s 46 for accounts and s 51-52 for financial statements and audit. If the Board is a statutory authority under the Financial Management Act, apply FMA/Auditor General Act procedures instead (s 44(1)-(2)).
Design clear licensing procedures and inspection protocols. For licence applicants, require demonstration of good repute, fitness and suitable facilities (s 17(2)). Conduct inspections in accordance with s 17(3) and document findings. Provide written reasons for refusals, suspensions or cancellations and set out review rights under s 19.
Administer memorial approvals and enforcement. Require written applications specifying location, design and materials before any memorial is placed (s 30(1)). If unauthorised works occur, issue written notices within 28 days for removal or alteration (s 31(1)) and proceed with removal and debt recovery only if non‑compliance persists (s 31(2)). For memorials in disrepair, issue repair or removal notices under s 32 and recover costs if necessary (s 32(2)).
Prepare redevelopment schemes carefully. Before implementing a redevelopment scheme, prepare a public plan, inform right‑holders and place on‑site notices at least 12 months prior and publish a newspaper notice at least 3 months prior (s 36). Keep a register concerning the redevelopment area detailing names, burial locations and inscriptions (s 38). Consider submissions seriously (s 37(1)-(3)) and obtain Ministerial approval (s 37(4)). Monitor rights holders’ positions; redevelopment cannot proceed over an unexpired right if the holder objects (s 37(2)).
Authorise infringement officers correctly. If the Board is not a local government, issue written authorisations for employees to give infringement notices and provide identity cards per s 64(1)-(3). For Boards that are local governments, use the Local Government Act appointment process (see s 3(1) definition and Sch 2 cl 10 for transitional arrangements).
Maintain policies for exhumation and leasing. When exhumation is requested, determine whether the Minister or Board has power in the instance (ss 58-59); document cost allocation orders. Boards may lease land or buildings, provide housing and manage tenancies (ss 60-61); implement proper tenancy and asset management arrangements.

For funeral directors and applicants

Meet licence standards and prepare documentation. Demonstrate good repute and suitable facilities/equipment per s 17(2). Apply in the manner required by the Board and include the required fee (s 17(1)-(2)).
Facilitate inspections. Be prepared for Board inspections at reasonable times and take steps to facilitate inspections (s 17(3)). Non‑compliance carries a penalty ($500) and may jeopardise licensing (s 17(3), 18).
Understand licence limits. Licences are valid only for the cemetery(ies) specified and for up to one year; they are non‑transferable (s 16). For conduct at other cemeteries, apply for single‑funeral permits under ss 21-22.

For holders of rights of burial and families

Register transfers and bequests promptly. Ensure assignments are produced to the Board and registered to be effective (s 26(2)). For bequests, produce probate and ensure the Board makes the appropriate entry (s 26(3)).
Track renewal dates and renewal procedures. Rights are typically 25 years (s 25(1)); apply for renewal as required; Boards must renew where a holder applies (s 25(2)).
Monitor redevelopment notices and submit objections timely. Boards must place notices and permit submissions; holders should act promptly on notices, and an objection can prevent redevelopment where rights are unexpired (s 36-37).

For anyone interacting with memorials, funerals or burials

Obtain Board permission before placing, altering or removing memorials. Applications must specify location, design and materials (s 30(1)-(3)). Avoid breaching prohibitions under s 30 to reduce risk of fines.
Comply with local laws/by‑laws. Check the Board’s local laws and by‑laws for specific memorial specifications, coffin materials, grave dimensions, vehicle access and other restrictions (s 55). Note that local law offences may have infringement notice options with capped modified penalties (s 55(q)).
Keep records to support claims. Because registers are admissible as evidence (s 42), keep contemporaneous documentary evidence (purchase receipts, licences, probate) to establish rights and priorities.

Risk management and compliance resourcing

Budget for notice and consultation costs. Redevelopment triggers long notice periods and publication costs (s 36); include these costs in project planning.
Legal contingency for recovery and disputes. Expect to pursue civil recovery in court for unpaid memorial removal/repair costs (ss 31-32). Boards should budget for legal costs and prepare documentation for enforcement.
Ensure audit readiness. Maintain accounting systems that can produce the financial statements required by the Minister (s 51) and support Auditor General audit (s 52) unless the Board follows the Financial Management Act regime (s 44).
Training and documentation for authorised officers. Implement procedures for authorised persons to issue infringement notices and to produce identity cards where required (s 64). For local government Boards, confirm the correct authorisation route under the Local Government Act.

Checklist summary (quick reference)

Registers and plans in place and accurate (s 40).
Fees resolved, gazetted and monitored for Ministerial amendment risk (s 53).
Licence application and inspection protocols documented (ss 16-18).
Memorial approval and enforcement templates and 28‑day notice forms ready (ss 30-32).
Redevelopment process mapped, with public notice timelines and sample submissions handling (ss 35-38).
Financial controls, accounting and audit systems established (ss 46, 51-52).
Infringement authorisations and identity cards issued (s 64) or Local Government Act procedures followed for local government Boards.
Exhumation decision trees and cost allocation templates (ss 58-59).
Transfer/bequest registration checklists and probate handling procedures (s 26).

Following these steps, with operational templates tied to the specific sections cited, will materially reduce statutory non‑compliance risks and prepare organisations for likely enforcement and review processes.

Deep Dive

What it does

Current sections