Cemeteries and Crematoria Act 2003

Part 1—Preliminary

1 Purposes

The main purposes of this Act are—

(a) to provide for the management and operation of cemeteries and crematoria; and

(b) to repeal the Cemeteries Act 1958.

2 Commencement

This Act comes into operation on 1 July 2005.

S. 2A inserted by No. 61/2009 s. 3.

2A Objects

The objects of this Act are to ensure that—

(a) human remains are treated with dignity and respect;

(b) all Victorians have access to cemetery and crematoria services;

(c) cemetery trusts operate effectively and efficiently in accordance with this Act.

3 Definitions

(1) In this Act—

S. 3(1) def. of Aboriginal ancestral remains inserted by No. 11/2016 s. 136.

Aboriginal ancestral remains has the same meaning as in the Aboriginal Heritage Act 2006;

S. 3(1) def. of affected person inserted by No. 16/2021 s. 4.

affected person has the meaning given by section 84A(1);

authorised officer means a person appointed as an authorised officer under Part 13;

bodily remains means a corpse of a human being, including a corpse of a still-born child but does not include—

(a) body parts; or

(b) cremated human remains;

body parts means human tissue or a part of a person where that tissue or part is not part of a corpse and includes foetal remains which are not a still-born child;

building for ceremonies means a building, chapel or other place of worship or commemoration for the use of a particular faith, religion or cultural group;

S. 3(1) def. of cemetery trust substituted by No. 61/2009 s. 4(2).

cemetery trust means a cemetery trust established under Part 2 and includes a Class A cemetery trust and a Class B cemetery trust;

S. 3(1) def. of cemetery trust fee substituted by No. 61/2009 s. 26(b).

cemetery trust fee means a fee or charge or scale of fees and charges set under section 39 and either—

(a) approved under section 40; or

(b) exempt under section 40A from approval under section 40;

cemetery trust rules means rules made by a cemetery trust under section 26;

S. 3(1) def. of Class A cemetery trust inserted by No. 61/2009 s. 4(1).

Class A cemetery trust means a cemetery trust established as a Class A cemetery trust under Part 2 or Schedule 4 or converted under Schedule 3;

S. 3(1) def. of Class B cemetery trust inserted by No. 61/2009 s. 4(1).

Class B cemetery trust means a cemetery trust other than a Class A cemetery trust;

closed cemetery means a cemetery or part of a cemetery to which an order under section 62 applies;

S. 3(1) def. of community advisory committee inserted by No. 61/2009 s. 4(1).

community advisory committee means an advisory committee established by a Class A cemetery trust under section 18D;

S. 3(1) def. of community advisory committee guidelines inserted by No. 61/2009 s. 4(1).

community advisory committee guidelines means guidelines made by the Secretary under section 18G;

S. 3(1) def. of conversion order inserted by No. 61/2009 s. 4(1).

conversion order means an order made under section 9A;

cremated human remains means—

(a) a corpse of a human being (including a corpse of a still-born child) which has been cremated in a crematorium;

(b) body parts which have been cremated in a crematorium;

cremation approval means an approval to cremate bodily remains at a crematorium in a public cemetery granted by the Secretary under section 134;

cremation authorisation means an authorisation to cremate bodily remains granted by a cemetery trust under section 133;

crematorium means a building or structure fitted with appliances for the purposes of cremating bodily remains;

S. 3(1) def. of domestic partner inserted by No. 4/2015 s. 4(2).

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

exhumation licence means a licence to exhume or remove human remains granted by the Secretary under Part 12;

S. 3(1) def. of family member inserted by No. 4/2015 s. 4(2).

family member, in relation to a deceased identified veteran, means—

(a) a spouse or domestic partner of the deceased identified veteran; or

(b) a child of the deceased identified veteran, including a stepchild or an adopted child; or

(c) a parent of the deceased identified veteran;

S. 3(1) def. of fees and charges guidelines inserted by No. 61/2009 s. 26(a).

fees and charges guidelines means guidelines made under section 42A;

S. 3(1) def. of film friendly principles inserted by No. 51/2014 s. 9(Sch. 2 item 1.1).

film friendly principles has the same meaning as in the Filming Approval Act 2014;

S. 3(1) def. of film permit inserted by No. 51/2014 s. 9(Sch. 2 item 1.1).

film permit has the same meaning as in the Filming Approval Act 2014;

S. 3(1) def. of governance committee inserted by No. 61/2009 s. 4(1).

governance committee means a governance committee established by a Class A cemetery trust under section 18B;

human remains means—

(a) bodily remains;

(b) cremated human remains;

(c) body parts;

S. 3(1) def. of indictable offence inserted by No. 16/2021 s. 4.

indictable offence has the meaning given by section 84A(1);

interment means the interring, burial or placing of human remains in a place of interment and, in relation to cremated human remains, includes the interment of those remains whether or not the remains are enclosed in a receptacle;

interment approval means an approval granted by the Secretary under Part 8 to inter bodily remains in a place other than a public cemetery;

interment authorisation means an authorisation granted by a cemetery trust under Part 8 to inter bodily remains in a public cemetery for which the cemetery trust is responsible;

lift and re-position procedure means the procedure described in section 90;

S. 3(1) def. of listed Class B cemetery trust inserted by No. 61/2009 s. 4(1).

listed Class B cemetery trust means a Class B cemetery trust included on a list prepared by the Secretary under section 18K;

memorial means a monument, tombstone, headstone, ledger, cenotaph, plaque or other method of memorialising a deceased person where that memorial is within a public cemetery;

model rules means model rules made in accordance with section 25;

S. 3(1) def. of municipal council amended by No. 9/2020 s. 390(Sch. 1 item 13.1).

municipal council means a Council within the meaning of the Local Government Act 2020;

place of interment means a grave, vault, mausoleum, niche wall or any other structure or plot used for the interment of human remains;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 14.1).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3(1) def. of previous holder inserted by No. 16/2021 s. 4.

previous holder, of a right of interment that is forced to be surrendered under section 84C(2), (3) or (5), has the meaning given by section 84A(1);

public grave means a grave for multiple interments in which more than one person may be interred and in respect of which more than one person may be granted a right of interment that permits one interment only and no re-use of the grave by the holder of the right of interment;

S. 3(1) def. of registered medical practitioner substituted by No. 97/2005 s. 182(Sch. 4 item 7), amended by No. 13/2010 s. 51(Sch item 9).

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

S. 3(1) def. of relevant offender inserted by No. 16/2021 s. 4.

relevant offender has the meaning given by section 84A(1);

S. 3(1) def. of responsible person inserted by No. 16/2021 s. 4.

responsible person, in relation to another person's death, has the meaning given by section 84A(2);

right of interment means a right of interment granted by a cemetery trust in accordance with Part 6;

S. 3(1) def. of Secretary substituted by No. 29/2010 s. 50(1).

Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;

S. 3(1) def. of spouse inserted by No. 4/2015 s. 4(2).

spouse of a person means a person to whom that person is married;

still-born child has the same meaning as it has in the Births, Deaths and Marriages Registration Act 1996;

S. 3(1) def. of transfer amended by No. 4/2015 s. 4(1).

transfer, in relation to a right of interment, means—

(a) sale; or

(b) gift; or

(c) bequest in a will; or

(d) other assignment;

S. 3(1) def. of veteran inserted by No. 4/2015 s. 4(2).

veteran means a person who has performed service or duty within the meaning of the Veterans Act 2005.

S. 3(2) amended by Nos 108/2004 s. 117(1) (Sch. 3 item 27.1), 29/2010 s. 50(2).

(2) If under the Public Administration Act 2004 the name of the Department of Health is changed, a reference in the definition of Secretary in subsection (1) to that Department must, from the date that the name is changed, be treated as a reference to the Department by its new name.

S. 3(3) inserted by No. 4/2015 s. 4(3).

(3) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

S. 3A inserted by No. 51/2014 s. 9(Sch. 2 item 1.2).

3A Filming Approval Act 2014

This Act is filming approval legislation within the meaning of the Filming Approval Act 2014.

Part 2—Cemeteries and cemetery trusts

4 Establishment of public cemeteries

(1) The Governor in Council, by order published in the Government Gazette, may establish a public cemetery.

(2) A public cemetery may only be established on Crown land reserved or deemed to be reserved for the purposes of cemeteries and crematoria under section 4 of the Crown Land (Reserves) Act 1978 or any corresponding previous enactment.

(3) The Order must specify the land in respect of which the public cemetery is established.

S. 4(4) substituted by No. 61/2009 s. 27.

(4) The Governor in Council, by order published in the Government Gazette, may—

(a) change the name of a public cemetery;

(b) include additional reserved Crown land in a public cemetery;

(c) remove any land that has ceased to be reserved for the purposes of a cemetery from a public cemetery;

(d) amend or vary an order made under subsection (1).

5 Establishment of cemetery trusts

(1) The Governor in Council, by order published in the Government Gazette, may establish a cemetery trust.

S. 5(1A) inserted by No. 61/2009 s. 5.

(1A) An order under subsection (1)—

(a) must specify whether the cemetery trust is a Class A cemetery trust or a Class B cemetery trust;

(b) may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of that order;

(c) may include savings, transitional or consequential provisions to facilitate the operation of the order.

(2) A cemetery trust—

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name; and

(d) may acquire hold and dispose of real and personal property; and

(e) may do and suffer all acts and things that a body corporate may by law do and suffer.

(3) The common seal of each cemetery trust must be kept as directed by the trust.

(4) All courts must take judicial notice of the imprint of the common seal on a document and, until the contrary is proved, must presume that the document was properly sealed.

S. 5A inserted by No. 61/2009 s. 6.

5A Conversion of certain regional cemetery trusts to Class A cemetery trusts

Schedule 3 has effect.

S. 5B inserted by No. 61/2009 s. 7.

5B Abolition of certain cemetery trusts and establishment of new Class A cemetery trusts

Schedule 4 has effect.

S. 6 (Heading) amended by No. 61/2009 s. 8(1).

6 Constitution and membership of Class B cemetery trusts

S. 6(1) amended by No. 61/2009 s. 8(2).

(1) A Class B cemetery trust consists of not less than 3 and not more than 11 members appointed by the Governor in Council on the recommendation of the Minister.

S. 6(2) amended by No. 61/2009 s. 8(2).

(2) Despite subsection (1), in the case of a closed cemetery or a historic cemetery park, a Class B cemetery trust which manages that cemetery may consist of one member.

S. 6(3) amended by No. 61/2009 s. 8(2).

(3) Schedule 1 has effect with respect to the membership and procedure of a Class B cemetery trust.

S. 6A inserted by No. 61/2009 s. 9.

6A Constitution and membership of Class A cemetery trusts

(1) A Class A cemetery trust consists of not less than 6 and not more than 9 members appointed by the Governor in Council on the recommendation of the Minister.

(2) In making a recommendation under subsection (1), the Minister must ensure that any appointment contributes to the Class A cemetery trust collectively having the skills and expertise required to perform its functions.

(3) Schedule 1A has effect with respect to the membership and procedure of a Class A cemetery trust.

S. 6B inserted by No. 61/2009 s. 10.

6B Cemetery trusts are Class B cemetery trusts unless order or Act otherwise specifies

On and from the commencement of section 10 of the Cemeteries and Crematoria Amendment Act 2009, a cemetery trust in existence at that commencement is taken to be a Class B cemetery trust unless this Act or any subsequent order made under this Act otherwise specifies.

7 Cemetery trusts do not represent the Crown

A cemetery trust does not represent and is not to be taken to be part of the Crown.

8 Management of public cemeteries

S. 8(1) amended by No. 61/2009 s. 11(1)(a).

(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette—

(a) may appoint—

(i) a cemetery trust to manage one or more public cemeteries;

(ii) a municipal council to manage one or more public cemeteries;

(b) may cancel any appointment made under paragraph (a);

(c) may change the name of a cemetery trust;

S. 8(1)(d) substituted by No. 61/2009 s. 11(1)(b).

(d) may abolish a cemetery trust and transfer all its assets and liabilities to another cemetery trust, a municipal council or to another entity, including the State of Victoria;

S. 8(1)(e) inserted by No. 61/2009 s. 11(1)(b).

(e) may abolish a cemetery trust.

Section 5 provides for the establishment of cemetery trusts.

(2) An order made under this section—

(a) may provide for the transfer of—

(i) assets and liabilities (whether contingent or otherwise);

(ii) duties and obligations in relation to staff;

(iii) duties and obligations under contracts or other arrangements;

(iv) records and registers; and

S. 8(2)(ab) inserted by No. 61/2009 s. 11(2).

(ab) may apply to a single cemetery trust or multiple cemetery trusts; and

S. 8(2)(ac) inserted by No. 61/2009 s. 11(2).

(ac) may provide for—

(i) the appointment of new members to a cemetery trust;

(ii) the removal of members from a cemetery trust; and

(b) may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of that order; and

(c) may include savings, transitional or consequential provisions to facilitate the operation of the order.

(3) If the Governor in Council makes an order under this section, the order takes effect—

9 Effect of order abolishing cemetery trust

On the abolition of a cemetery trust by order under section 8, subject to that order—

S. 9(a) amended by No. 61/2009 s. 12(a).

(a) the cemetery trust is abolished and its members go out of office; and

S. 9(b) amended by No. 61/2009 s. 12(b).

(b) in the case of an order under section 8(1)(d), the cemetery trust, municipal council or other person or body to which the abolished cemetery trust's assets and liabilities are transferred becomes the successor in law to the abolished cemetery trust; and

S. 9(c) amended by No. 61/2009 s. 12(c).

(c) in the case of an order under section 8(1)(d), unless a contrary intention appears, any reference to the abolished cemetery trust in any Act, subordinate instrument, certificate of title, agreement or other document is to be construed as a reference to the cemetery trust, municipal council or other person or body to which the abolished cemetery trust's assets and liabilities were transferred.

S. 9A inserted by No. 61/2009 s. 13.

9A Conversion order—Class A cemetery trust or Class B cemetery trust

(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may convert—

(a) a Class A cemetery trust to a Class B cemetery trust;

(b) a Class B cemetery trust to a Class A cemetery trust.

(2) The Minister must not recommend the making of a conversion order unless satisfied that the order is in the public interest having regard to—

(a) the objects of this Act;

(b) the size or scale of the operations of the cemetery trust;

(c) the services provided, or to be provided, by the cemetery trust;

(d) the communities served, or to be served, by the cemetery trust;

(e) any other matters the Minister considers relevant.

(3) A conversion order—

(a) may apply to a single cemetery trust or multiple cemetery trusts;

(b) may change the name of a cemetery trust;

(c) may provide for—

(i) the appointment of new members to a cemetery trust;

(ii) the removal of members from a cemetery trust;

(d) may provide for the transfer of—

(i) assets and liabilities (whether contingent or otherwise);

(ii) duties and obligations in relation to staff;

(iii) duties and obligations under contracts or other arrangements;

(iv) records and registers;

(e) may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of the order;

(f) may include savings, transitional or consequential provisions to facilitate the operation of the order.

(4) A conversion order takes effect—

10 Appointment of an administrator

(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may appoint an administrator to manage a public cemetery.

S. 10(2) substituted by No. 61/2009 s. 14.

(2) The Minister may only make a recommendation referred to in subsection (1) in respect of a public cemetery managed by a Class B cemetery trust if, in his or her opinion—

(a) the public cemetery is being inefficiently or incompetently managed; or

(b) the appointment is necessary to protect the interests of the public; or

(c) the Class B cemetery trust has failed to comply with a direction under section 18 or 50 and that failure justifies the appointment of an administrator; or

(d) after an audit under section 50 or an audit or investigation under section 51 has been conducted into the Class B cemetery trust, the outcome of that audit or investigation justifies the appointment of an administrator.

S. 10(2A) inserted by No. 61/2009 s. 14.

(2A) The Minister may only make a recommendation referred to in subsection (1) in respect of a public cemetery managed by a Class A cemetery trust if, in his or her opinion—

(a) the public cemetery is being inefficiently or incompetently managed; or

(b) the appointment is necessary to protect the interests of the public; or

(c) the Class A cemetery trust has failed significantly to meet its outcomes as specified in its annual plan; or

(d) the Class A cemetery trust has failed to comply with a direction under section 18 and that failure justifies the appointment of an administrator; or

(e) after an audit or an investigation has been conducted under section 51 into the Class A cemetery trust, the outcome of that audit or investigation justifies the appointment of an administrator.

(3) On the appointment of an administrator—

(a) the members of the cemetery trust of the public cemetery cease to hold office; and

(b) the administrator acquires all the functions, powers, immunities and duties of the members of the cemetery trust.

(4) The Governor in Council, by order published in the Government Gazette, may replace an administrator—

(a) with another administrator; or

(b) by declaring that the administration is to end and by appointing members to the cemetery trust in accordance with section 6.

(5) If the Governor in Council makes an order under subsection (4), the administrator who is being replaced ceases to hold office—

S. 11 amended by No. 61/2009 s. 15.

11 Membership of cemetery trust not office of profit

A member of a Class B cemetery trust is not to be taken to hold an office or place of profit under the Crown which would—

(a) prevent the member sitting or voting as a member of the Legislative Council or Legislative Assembly; or

(b) make void the member's election to the Legislative Council or the Legislative Assembly; or

(c) prevent the member continuing to be a member of the Legislative Council or the Legislative Assembly; or

(d) subject the member of the Legislative Council or the Legislative Assembly to liability to a penalty under the Constitution Act 1975.

S. 12 (Heading) amended by No. 61/2009 s. 16(1).

12 Functions of Class B cemetery trusts

S. 12(1) amended by No. 61/2009 s. 16(2).

(1) The functions of a Class B cemetery trust are—

(a) to properly and efficiently manage and maintain each public cemetery for which it is responsible; and

S. 12(1)(b) amended by No. 61/2009 s. 16(2).

(b) to carry out any other function conferred on a Class B cemetery trust by or under this Act or any other Act.

S. 12(2) amended by No. 61/2009 s. 16(2).

(2) In exercising its functions, a Class B cemetery trust must have regard to—

(a) its obligations in relation to funding of the perpetual maintenance of the public cemetery for which it is responsible; and

(b) the cultural and religious values of the community; and

(c) the heritage values (if any) of the public cemetery for which it is responsible.

S. 12A inserted by No. 61/2009 s. 17.

12A Functions of Class A cemetery trusts

(1) The functions of a Class A cemetery trust are—

(a) to properly and efficiently manage and maintain each public cemetery for which it is responsible;

(b) to develop, in accordance with this Act, annual plans and strategic plans for the operation of the trust and to monitor compliance with those plans;

(c) to develop annual business plans, strategies and budgets to ensure the efficient and accountable provision of services under the Act and the long term viability of the cemetery trust;

(d) to establish and maintain effective systems to ensure that—

(i) the services provided by the cemetery trust meet the needs of the communities which it serves; and

(ii) the views of those communities are taken into account;

(e) to oversee the organisational structure of the cemetery trust;

(f) to employ a chief executive officer (by whatever title called) for the effective operation and management of the cemetery trust and each public cemetery for which it is responsible;

(g) to monitor the performance of the chief executive officer;

(h) to ensure there are systems in place to enable effective and accountable risk management, financial management and records management of the cemetery trust;

(i) to provide leadership, assistance and advice as requested to listed Class B cemetery trusts;

(j) to establish committees in accordance with the Act and ensure those committees operate effectively;

(k) to ensure the Secretary is informed as soon as practicable of—

(i) any significant issues of public concern in relation to the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible; or

(ii) any significant risks that affect, or may affect, the cemetery trust or cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible;

(l) to develop or adopt a code of conduct for members of the cemetery trust and for staff of the trust;

(m) to ensure members of the cemetery trust receive adequate training to enable them to meet their obligations as members of the cemetery trust;

(n) to carry out any other function conferred on a Class A cemetery trust by or under this Act or any other Act.

(2) In exercising its functions, a Class A cemetery trust must have regard to—

(a) its obligations in relation to funding of the perpetual maintenance of the public cemetery for which it is responsible; and

(b) the cultural values and religious values (if any) of the community; and

(c) the heritage values (if any) of the public cemetery for which it is responsible; and

(d) the need to ensure that it uses its resources in an effective and efficient manner; and

(e) the need to ensure that public resources across the cemeteries and crematoria sector are used effectively and efficiently.

S. 12B inserted by No. 61/2009 s. 17.

12B Application of Public Administration Act 2004—converted cemetery trusts

Without limiting the operation of Schedule 1A, the Public Administration Act 2004 applies to a cemetery trust (whenever established) that is converted under this Act to a Class A cemetery trust and for that purpose, that Class A cemetery trust is a public entity, but not a small entity, within the meaning of that Act.

S. 13 amended by No. 16/2021 s. 7.

13 General powers of cemetery trusts

Subject to this Act, a cemetery trust may do anything necessary or convenient to enable it to carry out its functions.

14 Powers in respect of more than one cemetery

If a cemetery trust is responsible for the management of more than one public cemetery, the cemetery trust may manage all the cemeteries as if they were one cemetery.

15 Power to delegate

S. 15(1) amended by Nos 16/2021 s. 8(1), 41/2025 s. 3(Sch. 1 item 8).

(1) A cemetery trust may delegate to a member of the trust, the secretary of the trust (by whatever title called) or any other employee of the trust its powers or functions under this Act other than—

(a) a power under section 26 (to make cemetery trust rules); or

(b) a power under Division 2 of Part 3 (powers in respect of land); or

(c) a power under section 21 (power to establish crematoria); or

(d) a power under section 22 (power to establish mausolea facilities); or

(e) a power under section 39 (to fix fees or charges); or

(f) a power under section 45 or 46 (borrowing and investment powers); or

(g) this power of delegation.

S. 15(2) repealed by No. 16/2021 s. 8(2).

(3) A delegation under this section must be in writing.

(4) A cemetery trust must keep—

(a) a copy of any delegation of a power or function under this section; and

(b) a record of all the delegations it has made under this section.

16 Immunity of members of cemetery trust

(1) A member of a cemetery trust is not personally liable for anything done or omitted to be done in good faith—

(a) in the exercise of a power or the carrying out of a function under this Act or the regulations; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the carrying out of a function under this Act or the regulations.

(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a member of the cemetery trust attaches instead to the cemetery trust.

17 Staff and other assistance

(1) A cemetery trust may employ any persons it considers necessary for the purposes of carrying out its functions.

(2) A cemetery trust may engage any professional, technical and other assistance it considers necessary for the purposes of carrying out its functions.

S. 17(3) inserted by No. 61/2009 s. 18.

(3) The terms and conditions of employment or engagement are as determined by the cemetery trust, subject to any guidelines or directions of the Secretary notified to the cemetery trust.

18 Secretary may give directions to cemetery trusts

(1) The Secretary may give directions to a cemetery trust with respect to—

(a) the manner in which the cemetery trust is to manage and maintain any public cemetery for which it is responsible; and

S. 18(1)(ab) inserted by No. 61/2009 s. 19(1).

(ab) the management, operation or governance of the cemetery trust in accordance with this Act; and

S. 18(1)(ac) inserted by No. 61/2009 s. 19(1).

(ac) any matter arising as a result of an audit under section 50 or an audit or investigation under section 51; and

(b) the records to be kept by the cemetery trust; and

(c) the expenditure of funds of the cemetery trust; and

(d) the carrying out of any other function or the exercise of any other power of the cemetery trust under—

(i) this Act or any other Act; or

(ii) the regulations made under this Act (including the model rules) or regulations made under any other Act; or

(iii) cemetery trust rules.

(2) A direction given under this section—

(a) must be in writing; and

(b) may apply to—

(i) an individual cemetery trust; or

(ii) a class of cemetery trusts; or

(iii) all cemetery trusts.

(3) A cemetery trust must comply with a direction applying to it under this section.

S. 18(4) inserted by No. 61/2009 s. 19(2).

(4) A direction given under this section must not—

(a) refer to the cemetery services or crematoria services provided, or proposed to be provided, by a cemetery trust to a particular person; or

(b) refer to a decision made under the Act by a cemetery trust in relation to a particular person; or

(c) refer to a decision by a cemetery trust to employ or engage a particular person; or

(d) require the supply of goods or services to a cemetery trust by any particular person or other entity unless the supply is in accordance with a tender process.

S. 18A inserted by No. 61/2009 s. 20.

18A Secretary to develop policies and plans for cemetery and crematoria sector

(1) For the purposes of long term planning, the Secretary, from time to time, may cause to be developed and prepared policies and plans in relation to the provision of cemetery services and crematoria services.

(2) Policies and plans under subsection (1) may—

(a) apply on a Statewide, regional or local basis; and

(b) apply to—

(i) Class A cemetery trusts; or

(ii) Class B cemetery trusts; or

(iii) both Class A cemetery trusts and Class B cemetery trusts.

Pt 2A (Heading and ss 18B–18Q) inserted by No. 61/2009 s. 21.

Part 2A—Additional requirements for Class A cemetery trusts

S. 18B inserted by No. 61/2009 s. 21.

18B Establishment and functions of governance committees

(1) A Class A cemetery trust—

(a) must establish—

(i) a finance committee; and

(ii) an audit and risk committee; and

(b) may establish any other governance committee as it determines from time to time.

(2) A Class A cemetery trust must establish the governance committees referred to in subsection (1)(a) within 12 months of the Class A cemetery trust becoming a Class A cemetery trust.

(3) A governance committee—

(a) must consider any matters that are referred to it by the Class A cemetery trust; and

(b) may investigate and make any inquiries about any matter referred to it by the Class A cemetery trust; and

(c) must report back to the Class A cemetery trust as required by the cemetery trust; and

(d) must carry out any other functions conferred on a governance committee—

(i) under this Act or any other Act; or

(ii) by the Class A cemetery trust.

(4) Subsection (1)(a)(ii) does not apply to a Class A cemetery trust to which an exemption under the Financial Management Act 1994 with respect to governance committees applies.

S. 18C inserted by No. 61/2009 s. 21.

18C Membership and procedure

(1) The membership of any governance committee is to be determined by the Class A cemetery trust.

(2) Subject to this Act or any other Act which imposes requirements in relation to governance committees, and except as otherwise determined by the Class A cemetery trust, the procedure of any governance committee is to be determined by the committee.

There may be requirements under the Financial Management Act 1994 and other legislation.

S. 18D inserted by No. 61/2009 s. 21.

18D Community advisory committees

(1) For the purpose of liaising with communities to which a Class A cemetery trust provides cemetery or crematoria services, a Class A cemetery trust—

(a) must appoint one community advisory committee; and

(b) may appoint any additional community advisory committees it considers appropriate.

(2) A Class A cemetery trust must establish a community advisory committee referred to in subsection (1)(a) within 12 months of the Class A cemetery trust becoming a Class A cemetery trust.

(3) A Class A cemetery trust must include in its report of operations under Part 7 of the Financial Management Act 1994 a report on the activities of its community advisory committees.

S. 18E inserted by No. 61/2009 s. 21.

18E Functions of community advisory committee

The functions of a community advisory committee are—

(a) to consider any matters that are referred to it by the Class A cemetery trust which established it;

(b) to report to the Class A cemetery trust on those matters;

(c) to raise with the Class A cemetery trust any issues of concern or matters of interest to the community regarding the cemetery or crematoria services provided by the Class A cemetery trust;

(d) to carry out any other functions conferred on it—

(i) under this Act; or

(ii) by the community advisory committee guidelines; or

(iii) by the Class A cemetery trust.

S. 18F inserted by No. 61/2009 s. 21.

18F Membership and procedure of community advisory committees

(1) A community advisory committee consists of the persons appointed by the Class A cemetery trust, having regard to the community advisory committee guidelines.

(2) In appointing a person to a community advisory committee, a Class A cemetery trust must give preference to a person who is not a funeral director or a stonemason or the holder of a similar position.

(3) A community advisory committee may regulate its own proceedings subject to—

(a) this Act; and

(b) any directions of the Class A cemetery trust which established the community advisory committee; and

(c) the community advisory committee guidelines.

S. 18G inserted by No. 61/2009 s. 21.

18G Community advisory committee guidelines

(1) The Secretary must make guidelines for or with respect to community advisory committees, including but not limited to—

(a) the appointment of members of community advisory committees;

(b) the composition, roles and functions of community advisory committees;

(c) the procedure of community advisory committees;

(d) any other matter relating to the operation of community advisory committees.

(2) The Secretary must cause the community advisory committee guidelines—

(3) The community advisory committee guidelines take effect on the date specified in the guidelines.

S. 18H inserted by No. 61/2009 s. 21.

18H Annual meeting

(1) A Class A cemetery trust must hold an annual meeting before 30 December in each calendar year.

(2) An annual meeting is to be open to the public.

(3) At an annual meeting, a Class A cemetery trust must—

(a) report to the public on the operation of that cemetery trust for the preceding financial year; and

(b) make the cemetery trust's most recent annual report available; and

(c) report to the public on the accounts of the cemetery trust; and

(d) report to the public on the activities of any community advisory committee of the cemetery trust.

S. 18I inserted by No. 61/2009 s. 21.

18I Notice of annual meeting

(1) A reasonable time before the date of the annual meeting of a Class A cemetery trust, the cemetery trust must publish a public notice in a newspaper circulating in the relevant area of the holding of the annual meeting of that Class A cemetery trust.

(2) A public notice published under subsection (1) must state—

(a) the time, date and place of the annual meeting of the Class A cemetery trust; and

(b) that the annual meeting is open to the public.

S. 18J inserted by No. 61/2009 s. 21.

18J Leadership role for Class B cemetery trusts

(1) A Class A cemetery trust must provide leadership, assistance and advice in relation to operational and governance matters relating to cemeteries, as requested, to a listed Class B cemetery trust to which the Class A cemetery trust has been allocated.

(2) Without limiting the matters on which a Class A cemetery trust may provide advice, a Class A cemetery trust may provide a listed Class B cemetery trust with assistance and advice about the following—

(a) record keeping systems suited to the requirements of cemetery trusts;

(b) standard form documentation suitable for cemetery trust purposes;

Standard form contracts of sale for graves and other places of interment, including niches for cremated remains.

(c) tendering and contracting processes and requirements.

S. 18K inserted by No. 61/2009 s. 21.

18K Listed Class B cemetery trusts

(1) The Secretary may prepare a list of Class B cemetery trusts which are eligible to receive leadership, assistance and advice from Class A cemetery trusts.

(2) The Secretary—

(a) must specify in the list prepared under subsection (1) which Class A cemetery trust has the leadership, assistance and advice role in relation to which Class B cemetery trust;

(b) may amend the list as the Secretary considers appropriate by—

(i) adding, varying or deleting names of cemetery trusts from the list; or

(ii) allocating different Class B cemetery trusts to different Class A cemetery trusts.

(3) The Secretary must cause the list prepared under subsection (1)—

(4) The list prepared under subsection (1) takes effect on the date specified in the list.

S. 18L inserted by No. 61/2009 s. 21.

18L Chief executive officer

(1) A Class A cemetery trust must employ a person as the chief executive officer (by whatever title called) of the Class A cemetery trust.

(2) The chief executive officer holds office—

(a) for the period determined by the Class A cemetery trust; and

(b) subject to subsection (3), on the terms and conditions, including remuneration, determined by the Class A cemetery trust.

(3) The Secretary must approve the terms and conditions, including remuneration, of the chief executive officer of a Class A cemetery trust before a person is employed as chief executive officer.

S. 18M inserted by No. 61/2009 s. 21.

18M Chief executive officer's functions

(1) The chief executive officer of a Class A cemetery trust must—

(a) prepare material for the consideration and approval of the cemetery trust, including—

(i) draft annual plans;

(ii) draft strategic plans;

(iii) draft business plans and strategies;

(iv) budgets;

(b) manage the cemetery trust in accordance with any annual plans, strategic plans, business plans and strategies and budgets approved by the cemetery trust;

(c) provide the Class A cemetery trust with relevant and timely information to enable the cemetery trust to fulfil its functions and objectives efficiently and effectively;

(d) ensure the Class A cemetery trust's decisions are implemented efficiently and effectively;

(e) inform the Class A cemetery trust of—

(i) any significant issues of public concern in relation to the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible; or

(ii) any significant risks that affect, or may affect, the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible;

(f) ensure that the resources of the Class A cemetery trust are used effectively and efficiently.

(2) In the exercise of his or her functions, the chief executive officer is subject to the direction of the Class A cemetery trust.

S. 18N inserted by No. 61/2009 s. 21.

18N Annual plans

(1) A Class A cemetery trust must prepare an annual plan for each financial year that specifies—

(a) the objectives, priorities and key performance outcomes to be met by the Class A cemetery trust during the relevant year; and

(b) the performance indicators or other measures against which the Class A cemetery trust's performance is to be assessed and monitored; and

(c) how and when the Class A cemetery trust is to report on its performance in relation to the specified objectives, priorities and key performance outcomes; and

(d) any other matters agreed to by the Minister and the Class A cemetery from time to time.

(2) An annual plan must be consistent with—

(a) the strategic plan of the Class A cemetery trust; and

(b) the guidelines made by the Secretary under section 18P, if any.

(3) A Class A cemetery trust must give a copy of the proposed annual plan to the Secretary on or before 30 September each year for the Secretary's approval.

(4) On the submission of a proposed annual plan under subsection (3), the Secretary may—

(a) approve the annual plan; or

(b) refer the annual plan back to the cemetery trust for amendment in accordance with any comments or directions the Secretary may give.

(5) If the Secretary refers an annual plan back to a Class A cemetery trust under subsection (4)(b), the Class A cemetery trust must—

(a) make the amendments required by the Secretary; and

(b) deliver the completed annual plan to the Secretary within 3 months after it was submitted to the Secretary under subsection (3).

(6) On receipt of a completed annual plan under subsection (5)(b), the Secretary—

(a) may approve the annual plan; or

(b) if the Secretary requires further amendments—

(i) may refer the annual plan back to the Class A cemetery trust; and

(ii) this section applies to that second referral and any subsequent referral, with any necessary modifications.

(7) A Class A cemetery trust must ensure that an approved annual plan for that cemetery trust is available to members of the public on request.

S. 18O inserted by No. 61/2009 s. 21.

18O Strategic plans

(1) A Class A cemetery trust must—

(a) prepare a strategic plan for the management and operation of the cemetery trust and the public cemeteries for which it is responsible; and

(b) submit that strategic plan to the Secretary for approval.

(2) A strategic plan developed by a Class A cemetery trust must be prepared—

(a) at the direction of the Secretary; and

(b) at the time or times determined by the Secretary; and

(c) in accordance with any guidelines prepared by the Secretary under section 18P.

(3) The Secretary may—

(a) approve a strategic plan; or

(b) approve a strategic plan with amendments; or

(c) refuse to approve a strategic plan.

(4) A Class A cemetery trust must advise the Secretary if it wishes to exercise its functions in a manner inconsistent with its approved strategic plan.

(5) A Class A cemetery trust must ensure that an approved strategic plan for that cemetery trust is available to members of the public on request.

S. 18P inserted by No. 61/2009 s. 21.

18P Annual plan and strategic plan guidelines

(1) The Secretary may make guidelines for or with respect to—

(a) the content of annual plans;

(b) the content and timing of strategic plans for Class A cemetery trusts;

(c) any other matters relating to annual plans or strategic plans.

(2) The Secretary must cause the annual plan and strategic plan guidelines—

(3) The annual plan and strategic plan guidelines take effect on the date specified in the guidelines.

S. 18Q inserted by No. 61/2009 s. 21.

18Q Payment of levy

(1) For the purposes of assisting in defraying the costs of administering this Act, making improvements in cemetery trust governance and administration and the provision of services to the community, each Class A cemetery trust must pay an annual levy on its gross earnings as reported in the annual financial statements for that Class A cemetery trust for the previous financial year.

(2) The annual levy payable under subsection (1) is—

(a) 3 per cent; or

(b) if any other amount is fixed for the purposes of this section by the Minister by notice published in the Government Gazette, that amount.

(3) An amount fixed under subsection (2)(b) must not exceed 5 per cent.

(4) The Minister must give each Class A cemetery trust a written notice setting out—

(a) the amount it is required to pay as levy in respect of a specified period; and

(b) the date by which the amount is required to be paid; and

(c) how the payment is to be made.

(5) The Minister must ensure that all amounts paid as levy are paid into the Consolidated Fund.

(6) The Minister must cause the following information to be included in the annual report of operations for the Department of Health under Part 7 of the Financial Management Act 1994 for each financial year—

(a) the total amount paid as levy in that financial year;

(b) the total amount appropriated from the Consolidated Fund for the purposes of this Act for that financial year;

(c) a summary of the matters on which money appropriated from the Consolidated Fund for the purposes of this Act was expended in that financial year and of the amounts expended for those matters.

Part 3—Management of public cemeteries

Division 1—General management powers

19 Power to carry out works in public cemetery

In carrying out its functions under this Act, a cemetery trust may carry out or permit the carrying out of works in a public cemetery for which it is responsible.

20 Setting aside areas

(1) A cemetery trust must set aside areas for the interment of human remains in a public cemetery for which it is responsible.

(2) A cemetery trust may set aside areas for the purposes of managing a public cemetery for which it is responsible.

(3) Without limiting subsection (2), a cemetery trust may set aside areas for—

(a) interment of human remains of persons of a particular religious denomination or faith or community or other group; and

(b) buildings for ceremonies; and

(c) crematoria; and

(d) places of interment or memorials; and

(e) parks, gardens, plantations or other buildings, structures or places that are required for the effective operation or use of the public cemetery.

21 Establishment of a crematorium

(1) With the prior approval in writing of the Secretary, a cemetery trust may establish and operate a crematorium in a public cemetery for which it is responsible.

(2) A cemetery trust must not establish and operate a crematorium in any area set aside for interments of persons of a particular religious denomination or faith or community or other group.

22 Establishment of mausolea facilities

With the prior approval in writing of the Secretary, a cemetery trust may establish mausolea facilities in a public cemetery for which it is responsible.

23 Secretary may revoke approvals

(1) The Secretary may—

(a) revoke an approval of the establishment and operation of a crematorium under section 21; and

(b) direct that cremations be discontinued at a crematorium.

(2) The Secretary may—

(a) revoke an approval of the establishment of mausolea facilities under section 22; and

(b) direct that interments be discontinued at any mausolea facilities.

(3) A revocation under this section must be in writing.

24 Interference with distribution of land

(1) In the management of a public cemetery, a cemetery trust must not interfere directly or indirectly with—

(a) the original distribution of lands or hereditaments made or intended to be made by the deed of grant or other conveyance to and amongst the separate and distinct religious denominations and communions; or

(b) the existing distribution of land to particular community or other groups.

(2) Despite subsection (1), a cemetery trust may apply to the Secretary for approval to alter the existing distribution of land which has been allocated to—

(a) a particular religious denomination or communion; or

(b) a particular community or other group.

(3) If a cemetery trust makes an application under subsection (2), the Secretary must not approve any alteration to an existing distribution of land unless the Secretary is satisfied that—

(a) the re-distribution only relates to clearly identifiable parcels of land, not individual places of interment; and

(b) that the land to which the application relates does not contain any existing interments or pre-existing rights of interment; and

S. 24(3)(c) amended by No. 7/2017 s. 298.

(c) any requirements under the Heritage Act 2017 and the Planning and Environment Act 1987 (as the case requires) have been complied with.

(4) The approval of the Secretary under this section must be given in writing.

25 Model rules

(1) The regulations may prescribe model rules for or with respect to the general care, protection and management of a public cemetery by a cemetery trust.

(2) The model rules apply to all public cemeteries unless—

(a) a cemetery trust makes cemetery trust rules; and

(b) those cemetery trust rules are approved and published in accordance with section 27.

26 Power to make cemetery trust rules

(1) A cemetery trust may make rules for or with respect to the general care, protection and management of a public cemetery for which the cemetery trust is responsible.

(2) Without limiting subsection (1), cemetery trust rules may be made for or with respect to—

(a) the disposition of human remains;

(b) the granting of rights of interment;

(c) the protection of buildings, memorials, structures, parks, gardens, plantations and enclosures;

(d) regulating the behaviour of persons in the cemetery or crematorium to ensure good order and decency;

(e) regulating vehicular traffic in the cemetery;

(f) the position and depth of places of interment which are graves;

(g) the position of places of interment which are vaults and mausolea facilities, the construction of coffins to be put into vaults and mausolea facilities and the covering of vaults and mausolea facilities to prevent the escape of noxious fumes;

(h) conditions to be complied with by persons who conduct interments, cremations or ceremonies in the cemetery;

(i) conditions to be complied with by persons who undertake works in the cemetery;

(j) the hours of opening or operation of the cemetery or crematorium in the cemetery.

(3) Cemetery trust rules may impose a penalty not exceeding 20 penalty units for any contravention of the cemetery trust rules.

(4) Cemetery trust rules—

(a) may be of general or limited application;

(b) may differ according to differences in time, place or circumstance;

(c) may leave any matter or thing to be from time to time determined, approved or dispensed with by the Secretary or a cemetery trust;

(d) may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method, formulated, issued, prescribed or published by any other person, whether—

(i) wholly or partially or as amended by the cemetery trust rules; or

(ii) as formulated, issued, prescribed or published at the time the cemetery trust rules are made or at any time before then; or

(iii) as formulated, issued, prescribed or published from time to time.

(5) Cemetery trust rules may incorporate all or any of the model rules.

(6) A cemetery trust rule—

(a) must not be inconsistent with any Act or statutory rule; and

(b) is inoperative to the extent that it is inconsistent with any Act or statutory rule.

(7) A cemetery trust rule may be inconsistent with the model rules.

27 Approval and publication of cemetery trust rules

(1) A cemetery trust rule does not come into operation until it has been—

(a) approved by the Governor in Council; and

(b) published in the Government Gazette.

(2) A cemetery trust rule is not a statutory rule for the purposes of the Subordinate Legislation Act 1994.

28 Governor in Council may revoke cemetery trust rules

(1) Without limiting section 27 of the Interpretation of Legislation Act 1984, the Governor in Council, by order published in the Government Gazette, may revoke cemetery trust rules.

(2) An order under subsection (1)—

(a) may revoke cemetery trust rules in whole or in part; and

(b) takes effect on the day it is published in the Government Gazette.

(3) If cemetery trust rules are wholly revoked by an order under subsection (1), the model rules apply to the public cemetery for which the cemetery trust is responsible and in respect of which the order is made from the date that the order takes effect.

Division 2—Powers in respect of land

29 Effect of Division

This Division has effect despite anything to the contrary in the Land Act 1958 or the Crown Land (Reserves) Act 1978.

30 Cemetery trust may purchase or acquire land for cemetery

(1) A cemetery trust, with the approval of the Minister, may purchase or acquire land for the purposes of a public cemetery for which it is responsible.

(2) A cemetery trust cannot purchase or acquire land for any other purpose.

(3) The Minister must not approve the purchase or acquisition of the land unless he or she is satisfied that it is necessary or desirable that the land be purchased or acquired for the purposes of the public cemetery.

(4) If the Minister is satisfied that the cemetery trust has sufficient funds available for the purchase or acquisition of land for the purposes of a public cemetery, the Minister may direct the cemetery trust to use its own funds for the purchase or acquisition.

31 Minister may acquire land

The Minister may purchase or compulsorily acquire land for cemeteries and crematoria purposes.

32 Land Acquisition and Compensation Act 1986 applies

(1) The Land Acquisition and Compensation Act 1986 applies to the purchase or compulsory acquisition of land under section 31 and for that purpose—

(a) the Cemeteries and Crematoria Act 2003 is the special Act; and

(b) the Minister is the Authority.

(2) Any land compulsorily acquired by the Minister under section 31—

(a) vests in the Crown under section 24 of the Land Acquisition and Compensation Act 1986 despite anything to the contrary in that section; and

(b) is deemed to be unalienated Crown land.

33 Land purchased or acquired vests in Crown

Subject to section 32(2), on the acquisition of any land purchased or acquired by a cemetery trust or the Minister under this Division, that land vests in the Crown as unalienated Crown land.

34 Land permanently reserved

On the acquisition of any land purchased or acquired by a cemetery trust or the Minister under this Division that land is deemed to be permanently reserved under section 4 of the Crown Land (Reserves) Act 1978 for cemeteries and crematoria purposes.

35 References to acquiring authority

Section 54 of the Transfer of Land Act 1958 applies in relation to the purchase or acquisition of land by a cemetery trust or the Minister under this Division as if the Crown were the acquiring authority for the purposes of that section.

36 Power to grant licences over cemetery land

(1) Subject to this section, a cemetery trust may grant a licence to enter and use any part of the land in a public cemetery for which it is responsible or any building on that land for any purpose approved by the Minister.

(2) The Minister must not give approval under this section unless he or she is satisfied that the licence is for a purpose that is not detrimental to the purpose for which the land is reserved.

(3) A licence granted under this section—

(a) must be for a period not exceeding 3 years; and

(b) is subject to the terms and conditions determined by the cemetery trust and approved by the Minister.

37 Power of trusts to lease cemetery land

(1) Subject to this section, a cemetery trust may grant a lease of any land in the public cemetery for which it is responsible for any purpose approved by the Minister.

(2) The Minister must not give approval under this section unless he or she is satisfied that the purpose for which the lease is to be granted is not detrimental to the purpose for which the land is reserved.

(3) A lease granted under this section—

(a) must be for a specified term not exceeding 21 years; and

(b) is subject to any covenants, exceptions, reservations, terms and conditions that are determined by the cemetery trust and approved by the Minister.

38 Registrar of Titles to amend Register

The Registrar of Titles must make any recordings in or amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of any provision of this Division.

Division 3—Financial powers

39 Power to fix fees and charges for services

(1) A cemetery trust, from time to time, may fix fees and charges or a scale of fees and charges for its services.

(2) In fixing fees and charges under this section, a cemetery trust must have regard to—

(a) the costs of operating and managing the public cemetery; and

S. 39(2)(ab) inserted by No. 61/2009 s. 28(1).

(ab) the fees and charges guidelines, if any; and

(b) the need to provide for the maintenance of the public cemetery in perpetuity.

(3) A cemetery trust may fix different fees and charges for different cases or classes of cases.

S. 39(4) amended by No. 61/2009 s. 28(2).

(4) Fees and charges fixed by a cemetery trust under this section must be approved by the Secretary under section 40, unless they are exempt under section 40A.

40 Secretary to approve fees and charges

(1) On fixing a fee or charge or scale of fees and charges under section 39, a cemetery trust must notify the Secretary of those fees and charges.

S. 40(2) amended by No. 61/2009 s. 29.

(2) The Secretary may approve or disapprove a fee or charge or scale of fees and charges fixed under section 39 in whole or in part, unless they are exempt under section 40A.

S. 40A inserted by No. 61/2009 s. 30.

40A Secretary may exempt certain fees and charges from approval

(1) The Secretary may exempt specified fees and charges or scales of fees and charges from being approved under section 40 if, in the Secretary's opinion, there is no public benefit in those fees and charges being approved.

(2) An exemption under subsection (1) may—

(a) specify individual fees and charges or scales of fees and charges which do not require approval under section 40;

(b) specify fees and charges or scales of fees and charges by class;

(c) be of general or limited application;

(d) differ according to differences in time, place or circumstance;

(e) apply to all cemetery trusts, specified cemetery trusts or specified classes of cemetery trusts;

(f) apply to all public cemeteries, specified public cemeteries or specified classes of public cemetery.

(3) The Secretary—

(a) must cause an exemption under subsection (1) to be published in the Government Gazette; and

(b) may publish the exemption under subsection (1) on the Internet.

(4) An exemption under subsection (1) takes effect on the date of publication in the Government Gazette or such later date as is specified in the exemption.

41 Secretary to publish notice of approval

(1) If the Secretary approves a fee or charge or a scale of fees and charges under section 40, the Secretary must cause a notice of that approval to be published in the Government Gazette.

(2) A fee or charge or scale of fees and charges does not take effect until notice of the Secretary's approval is published in the Government Gazette.

42 Secretary to publish fees and charges on the Internet

(1) If the Secretary approves a fee or charge or a scale of fees and charges under section 40, the Secretary must cause those fees and charges to be published on the Internet.

(2) Nothing in this section prevents a cemetery trust publishing their fees and charges or scale of fees and charges by any other additional means.

S. 42A inserted by No. 61/2009 s. 31.

42A Fees and charges guidelines

(1) The Secretary may make guidelines for or with respect to fees and charges fixed by cemetery trusts for services.

(2) The guidelines may include, but are not limited to, processes and methodologies to be applied by a cemetery trust and matters it must take into account.

(3) The Secretary—

(a) must cause the fees and charges guidelines to be published in the Government Gazette; and

(b) may publish the fees and charges guidelines on the Internet.

(4) The fees and charges guidelines take effect on the date of publication in the Government Gazette or such later date as is specified in the guidelines.

43 Fees and charges to increase by CPI

(1) This section only applies—

(a) to a cemetery trust fee which is $50.00 or more; and

S. 43(1)(b) amended by No. 42/2005 s. 3(1)(a), substituted by Nos 61/2009 s. 32(1)(a), 44/2014 s. 33(Sch. item 6(1)).

(b) if the CPI for the last reference period in the calendar year preceding the calendar year in which a declaration under subsection (2) is made is more than the CPI for the last reference period in the preceding calendar year.

S. 43(1A) inserted by No. 61/2009 s. 32(2).

(1A) This section does not apply to a cemetery trust fee to which an exemption under section 40A applies.

S. 43(2) amended by No. 61/2009 s. 32(1)(b).

(2) Not later than 1 March each year, the Secretary must declare that cemetery trust fees to which this section applies are, by force of this section, increased in accordance with this section.

S. 43(2A) inserted by No. 42/2005 s. 3(2).

(2A) A declaration under subsection (2) may provide that this section does not apply to—

(a) a specified cemetery trust or specified cemetery trusts;

(b) specified cemetery trust fees of cemetery trusts generally;

(c) specified cemetery trust fees of a specified cemetery trust or specified cemetery trusts.

(3) A declaration under subsection (2)—

(a) is to be made by notice published in the Government Gazette; and

(b) takes effect on 1 July in the year in which it is made; and

S. 43(3)(c) substituted by No. 42/2005 s. 3(1)(b).

(c) applies to cemetery trusts and cemetery trust fees in accordance with the declaration.

S. 43(4) substituted by No. 61/2009 s. 32(3). amended by No. 44/2014 s. 33(Sch. item 6(2)).

(4) A cemetery trust fee to which this section applies is increased by an amount calculated in accordance with the following formula—

View image in the official source

where—

A is the relevant cemetery trust fee as at 1 February in the calendar year in which the declaration under subsection (2) is made;

B is the CPI for the last reference period in the calendar year preceding the calendar year in which the declaration under subsection (2) is made;

C is the CPI for the last reference period in the calendar year preceding the calendar year referred to in B last published by the Australian Bureau of Statistics before the date on which the declaration under subsection (2) is made.

S. 43(5) substituted by No. 61/2009 s. 32(3).

(5) A cemetery trust fee increased in accordance with this section must be rounded to the nearest 5 dollar unit.

A CPI adjusted fee of $1923 is rounded to $1925. A CPI adjusted fee of $1922 is rounded to $1920.

S. 43(6) repealed by No. 44/2014 s. 33(Sch. item 6(3)).

(7) In this section—

Australian Statistician has the same meaning as it has in the Australian Bureau of Statistics Act 1975 of the Commonwealth;

S. 43(7) def. of CPI amended by No. 61/2009 s. 32(4)(a), substituted by No. 44/2014 s. 33(Sch. item 6(4)).

CPI means the all groups consumer price index for Melbourne in original terms published by the Australian Bureau of Statistics.

S. 43(7) def. of relevant year repealed by No. 61/2009 s. 32(4)(b).

44 Waiver or reduction of fees or charges

A cemetery trust must not waive or reduce any fees or charges that would otherwise be payable to it under this Act except on the grounds of extreme hardship or other special circumstance.

45 Investment powers

(1) Subject to the direction of the Minister, a cemetery trust may invest its money in any manner it sees fit.

(2) The Minister may give written directions as to how a cemetery trust is to invest its money.

(3) A direction under subsection (2) may—

(a) apply to—

(i) an individual cemetery trust; or

(ii) a class of cemetery trusts; or

(iii) all cemetery trusts.

S. 45(3)(b) amended by Nos 108/2004 s. 117(1) (Sch. 3 item 27.1), 29/2010 s. 50(3).

(b) provide that any matter may be determined, approved or dispensed with by the Secretary or any employee or employees or class of employees employed under Part 3 of the Public Administration Act 2004 in the Department of Health.

46 Borrowing powers

(1) A cemetery trust may borrow money to enable it to perform its functions and exercise its powers under this Act.

(2) A cemetery trust—

(a) must not borrow money unless the prior approval of the Treasurer has been obtained; and

(b) must comply with any conditions imposed by the Treasurer in that approval.

S. 47 amended by No. 9/2020 s. 390(Sch. 1 item 13.2).

47 Payments for private streets

A cemetery trust may pay to a municipal council a contribution towards the cost of the construction and maintenance of any private street adjoining or abutting a cemetery for which the trust is responsible if that street is or was constructed pursuant to the Local Government Act 2020 or any corresponding previous enactment.

Division 4—Accounts and reports

48 Application of Division

This Division does not apply to—

S. 48(a) repealed by No. 61/2009 s. 33.

(b) a municipal council which is responsible under this Act for the management of a public cemetery.

49 Cemetery trust to keep accounts and records

(1) A cemetery trust must keep proper accounts and records of its financial affairs.

S. 49(2) amended by No. 61/2009 s. 34.

(2) In the case of a Class B cemetery trust that
is not a cemetery trust to which the Financial Management Act 1994 applies, the accounts and records required to be kept under subsection (1) must contain the particulars required by the Secretary.

(3) The financial year of a cemetery trust is the year ending 30 June.

50 Auditing of accounts and records

S. 50(1) amended by No. 61/2009 s. 35(1).

(1) If directed to do so by the Secretary, a Class B cemetery trust must have its accounts and records audited by a registered company auditor.

S. 50(2) amended by No. 61/2009 s. 35(1).

(2) If a Class B cemetery trust does not receive a direction under subsection (1) in respect of a financial year, the cemetery trust must have its accounts and records—

(a) verified by a statutory declaration—

(i) by at least 3 members of the cemetery trust; or

(ii) if there are less than 3 members of the cemetery trust, by all members of that trust; or

(b) audited by a registered company auditor.

S. 50(3) inserted by No. 61/2009 s. 35(2).

(3) A Class B cemetery trust must comply with a direction given under this section.

S. 51 amended by No. 61/2009 s. 36(a).

51 Secretary may ask for investigation

If the Secretary believes it is appropriate to do so, the Secretary may request the Auditor-General or a registered company auditor or other appropriate person—

(a) to audit the accounts and records of a cemetery trust; or

S. 51(b) amended by No. 61/2009 s. 36(b).

(b) to conduct an investigation into the financial affairs of a cemetery trust; or

S. 51(c) inserted by No. 61/2009 s. 36(c).

(c) to conduct a performance audit of a cemetery trust—

(i) to determine whether the trust is complying with the Act; or

(ii) to investigate any aspect of the trust's governance, management or operations.

S. 51A inserted by No. 61/2009 s. 37.

51A Secretary to determine terms of reference and other matters

(1) Before any audit or investigation is conducted under section 51, the Secretary must—

(a) determine the terms of reference of the audit or investigation, including any particular objectives or issues to be addressed;

(b) determine the reporting requirements, including when a final report of the audit or investigation is to be given to the Secretary;

(c) specify in writing to a person requested to conduct the audit or investigation under section 51—

(i) the terms of reference for the audit or investigation; and

(ii) the reporting requirements.

(2) The Secretary must notify a cemetery trust which is to be audited or investigated under section 51 of—

(a) the terms of reference for the audit or investigation; and

(b) the name of the person requested to conduct the audit or investigation.

S. 51B inserted by No. 61/2009 s. 37.

51B Auditor's authority

(1) The Secretary must issue to a person requested to conduct an audit or investigation under section 51 written evidence of that person's authority to conduct that audit or investigation.

(2) A person requested by the Secretary to conduct an audit or investigation under section 51 must produce his or her authorisation for inspection if asked to do so during the exercise of a power under this Division.

S. 51C inserted by No. 61/2009 s. 37.

51C Powers of auditors

(1) A person conducting an audit or investigation of a cemetery trust under section 51 may, at any reasonable time, enter any premises of the cemetery trust (other than residential premises) for the purposes of the audit or investigation and may—

(a) inspect any records of the cemetery trust;

(b) copy or make extracts of any relevant records of the cemetery trust;

(c) ask questions of any person—

(i) employed or engaged by the cemetery trust (whether in a paid or honorary capacity); or

(ii) who is a member of the cemetery trust.

(2) A person referred to in subsection (1)(c) must cooperate with a person conducting an audit or investigation of a cemetery trust under section 51, to the extent that the person is capable of doing so.

(3) Without limiting subsection (2), a person conducting the audit or investigation who enters any premises of a cemetery trust under this section may direct a person referred to in subsection (1)(c)(i) or (ii) to—

(a) produce a document or part of a document that is in the person's possession or control;

(b) operate equipment to access information from that equipment;

(c) answer any questions put by the person conducting the audit or investigation.

S. 51D inserted by No. 61/2009 s. 37.

51D Report to Secretary

A person conducting an audit or investigation under section 51 must report to the Secretary in accordance with any requirement under section 51A(1)(b).

S. 51E inserted by No. 61/2009 s. 37.

51E Confidentiality requirements

(1) Except to the extent necessary to perform any official duties or to perform or exercise any power or function under this Act or any other Act, a person who is, or at any time has been, a person conducting an audit or investigation under section 51 must not, either directly or indirectly—

(a) make a record of, or divulge or communicate to any person, any information that is, or was acquired by the person by reason of being, or having been, a person conducting an audit or investigation under section 51; or

(b) make use of any such information for any purpose other than the performance of official duties or the performance or exercise of that function or power.

1. 100 penalty units.

(2) Subsection (1) does not preclude a person from—

(a) producing a document to a court in the course of criminal proceedings; or

(b) divulging or communicating to a court in the course of any criminal proceedings any matter or thing coming under the notice of the person in the performance of official duties or in the performance or exercise of a power referred to in subsection (1); or

(c) producing a document or divulging or communicating information that is expressly authorised or permitted by any Act to be produced, divulged or communicated; or

(d) producing a document or divulging or communicating information with the prior consent of—

(i) the person to whom it relates; or

(ii) if that person has died, with the consent of the senior available next of kin of that person.

(3) In this section, court includes any board, tribunal or person authorised to receive evidence.

52 Report to Secretary on operations and accounts

(1) A cemetery trust must submit a report in respect of the exercise of its powers and functions under this Act in relation to any public cemetery for which it is responsible to the Secretary for each financial year in respect of which it manages that cemetery.

(2) A report under subsection (1) must be in a form and contain the particulars required by the Secretary including—

(a) particulars of accounts and records kept by the cemetery trust under section 49; and

(b) particulars relating to the operation of the public cemetery and any crematorium in the public cemetery for which the cemetery trust is responsible.

(3) A cemetery trust must submit a report under this section for each financial year to the Secretary on or before 1 September in the following financial year.

S. 52A inserted by No. 61/2009 s. 38.

52A Class A cemetery trust—operational report

A Class A cemetery trust must include in its report of operations under Part 7 of the Financial Management Act 1994 particulars relating to the operation of the public cemetery and any crematorium in the public cemetery for which the Class A cemetery trust is responsible.

Division 5—Management by municipal councils

53 Municipal council may manage public cemetery

Except as otherwise provided in this Act, if a municipal council is responsible under this Act for the management of a public cemetery, this Act applies in respect of that public cemetery and municipal council as if the municipal council were a cemetery trust responsible for the management of that public cemetery.

54 Limits on power to delegate

S. 54(1) amended by No. 9/2020 s. 390(Sch. 1 item 13.3).

(1) Despite anything to the contrary in the Local Government Act 2020, a municipal council is not authorised under that Act to delegate a power or function set out in paragraphs (a), (b), (c), (d), (e) or (g) of section 15(1).

(2) Despite section 15(2), a municipal council is not authorised to delegate its power or function to approve an application for a lift and re-position procedure to any person other than—

S. 54(2)(a) substituted by No. 9/2020 s. 390(Sch. 1 item 13.4).

(a) if a delegated committee of the kind referred to in the Local Government Act 2020 is established under section 63 of that Act and any functions, duties or powers of a municipal council under this Act have been delegated to that delegated committee under the Local Government Act 2020, the members of that delegated committee; or

(b) a person approved by the Secretary for the purposes of this section.

55 Borrowing and investment powers of councils

If a municipal council is responsible under this Act for the management of a public cemetery—

(a) sections 45 and 46 do not apply; and

S. 55(b) amended by No. 9/2020 s. 390(Sch. 1 item 13.5).

(b) the Local Government Act 2020 applies in respect of the borrowing and investment powers of that council in the management of the public cemetery.

S. 56 amended by No. 9/2020 s. 390(Sch. 1 item 13.5).

56 Use of council funds

If a municipal council is responsible under this Act for the management of a public cemetery, the Local Government Act 2020 applies in respect of funds or money received by that council in the management of the public cemetery.

57 Report to Secretary

(1) A municipal council which is responsible under this Act for the management of a public cemetery must submit a report in respect of the exercise of its powers and functions under this Act to the Secretary for each financial year in respect of which it manages that cemetery.

(2) A report under subsection (1) must be in a form and contain the particulars required by the Secretary including—

S. 57(2)(a) amended by No. 9/2020 s. 390(Sch. 1 item 13.5).

(a) particulars of any accounts and records kept under the Local Government Act 2020 to the extent that they relate to the exercise of any powers and functions under this Act; and

(b) particulars of any audit of those accounts; and

(c) particulars relating to the operation of the public cemetery and any crematoria in the public cemetery for which the municipal council is responsible.

S. 58 amended by Nos 61/2009 s. 43, 9/2020 s. 390(Sch. 1 item 13.6).

58 Secretary may inspect accounts and records

For the purpose of section 105 of the Local Government Act 2020, the Secretary or any person authorised by the Secretary is authorised to inspect the accounts and records of a municipal council.

Part 4—Cemetery records

59 Cemetery trust to keep records

A cemetery trust must ensure that, for each public cemetery for which it is responsible, records containing the prescribed information are kept in respect of—

(a) interments; and

(b) places of interment; and

(c) cremations; and

(d) rights of interment.

60 Can the public inspect records?

(1) Subject to this Part, a cemetery trust must make the information in the records required to be kept under this Part available for inspection by any person at the public cemetery for which that cemetery trust is responsible at any reasonable time for historical or research purposes.

(2) A cemetery trust may charge a fee or fees for the reasonable costs incurred in providing the information sought or copies or extracts of information from the records required to be kept under this Part.

The Public Records Act 1973 also provides for the keeping and inspection of public records.

61 Records as evidence

(1) A record required to be kept under this Part is evidence in any proceedings of the interments, places of interment, cremations or rights of interment appearing in that record.

(2) A copy or extract from a record kept under this Part by a cemetery trust and sealed by that cemetery trust is evidence in any proceedings of the interments, places of interment, cremations or rights of interment appearing in that copy or extract.

Part 5—Closure of public cemeteries and historic cemetery parks

Division 1—Closure of public cemeteries

62 Order closing public cemetery

The Governor in Council, by order published in the Government Gazette, may close a public cemetery or part of a public cemetery if—

(a) there has been no interment of human remains at the public cemetery or in that part of the public cemetery for at least 25 years; and

(b) the cemetery trust responsible for the public cemetery has not granted a right of interment in relation to that cemetery or part of the cemetery for at least 25 years.

63 Effect of order closing public cemetery

(1) On the making of an order under section 62—

(a) the public cemetery or part of the public cemetery to which the order applies is closed; and

(b) no further interments are permitted at the closed cemetery, regardless of whether there are any existing rights of interment in relation to the closed cemetery.

(2) Subject to this Act, the regulations, the model rules or the cemetery trust rules (if any), members of the public may visit a closed cemetery.

64 What happens to rights of interment in a closed cemetery?

(1) The holder of an unexercised right of interment at a closed cemetery may request—

(a) a refund based on the cemetery trust fee payable for the same type of right of interment immediately before the closure of the cemetery, less the relevant cemetery trust fee for administration from the cemetery trust which is responsible for managing the closed cemetery; or

(b) the Secretary to direct the cemetery trust which is responsible for managing the closed cemetery to grant the holder a right of interment in another cemetery for which that cemetery trust is responsible either free of charge or at a reduced rate.

(2) A request under subsection (1) must be made in writing.

(3) If the Secretary receives a request under subsection (1)(b), the Secretary, in his or her absolute discretion, may direct a cemetery trust to grant to the person making the request a new right of interment in another cemetery for which that cemetery trust is responsible either free of charge or at a reduced rate.

(4) A cemetery trust must comply with a direction under subsection (3).

S. 64A inserted by No. 61/2009 s. 39.

64A Order reopening closed cemetery

(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may reopen a closed cemetery or part of a closed cemetery.

(2) The Minister must not make a recommendation under subsection (1) unless he or she is satisfied that it is in the public interest to reopen the closed cemetery or part of the closed cemetery.

(3) An order under subsection (1) may be made in respect of—

(a) a public cemetery or part of a public cemetery closed under section 62; or

(b) a cemetery, burial ground or place of burial discontinued under section 44 of the Cemeteries Act 1958, as in force immediately before its repeal or under any corresponding previous enactment.

(4) An order under subsection (1) may be subject to any conditions that the Governor in Council thinks fit.

(5) An order under subsection (1) must not be made in respect of a historic cemetery park.

S. 64B inserted by No. 61/2009 s. 39.

64B Effect of order reopening a closed cemetery

On the making of an order under section 64A—

(a) the closed cemetery or closed part of the public cemetery to which the order applies is reopened; and

(b) the cemetery trust responsible for managing the closed cemetery or closed part of the cemetery becomes the cemetery trust responsible for managing the reopened public cemetery or reopened part of the cemetery; and

(c) the reopened public cemetery or reopened part of the cemetery is a public cemetery or part of a public cemetery for the purposes of this Act; and

(d) subject to the order under section 64A, this Act, the regulations, the model rules or the cemetery trust rules (if any), the cemetery trust may permit interments at the reopened public cemetery or reopened part of the public cemetery.

Division 2—Historic cemetery parks

65 Definitions

In this Division—

approval to convert means an approval authorising the conversion of an eligible cemetery to a historic cemetery park given by the Minister under section 67;

eligible cemetery means—

(a) a closed cemetery; or

(b) a public cemetery to which an order under section 93 discontinuing the granting of rights of interment applies;

historic cemetery park means an eligible cemetery or part of that cemetery which is converted to parkland, whether or not any of the memorials are removed;

previous holder in relation to a right of interment, means the person who was the holder of the right of interment immediately before it was cancelled under this Division.

66 Application to Minister to approve conversion to a historic cemetery park

(1) A cemetery trust responsible for the management of an eligible cemetery may apply to the Minister for an approval to convert the cemetery or part of the cemetery to a historic cemetery park.

(2) An application under subsection (1) must include—

(a) a plan of the area proposed to be converted; and

(b) a conservation management plan of the area proposed to be converted; and

(c) details of the proposed conversion; and

(d) details of consultation undertaken with relevant agencies, faiths, religions, cultural groups, holders of rights of interment and the public.

67 Minister may approve conversion to historic cemetery park

(1) The Minister, after considering an application under section 66, may—

(a) approve the application; and

(b) authorise the cemetery trust of the eligible cemetery to convert the cemetery to a historic cemetery park.

(2) An approval to convert must be in writing.

(3) An approval to convert may be granted subject to conditions relating to—

(a) the disposition of any memorials or structures in the eligible cemetery; and

(b) the maintenance of the area to be converted; and

(c) any matters relating to heritage considerations; and

(d) any matters relating to consultation undertaken with relevant agencies, faiths, religions, cultural groups, holders of rights of interment and the public; and

(e) any other matters the Minister thinks necessary or convenient to provide for in the public interest.

(4) If an approval to convert has been given in respect of the whole or any part of an eligible cemetery, the cemetery trust responsible for the management of that cemetery must not permit any further interments in the area to which the approval to convert applies.

68 Rights of interment cancelled

On the giving of an approval to convert in respect of an eligible cemetery, any right of interment existing in relation to the area to which the approval to convert applies is cancelled.

69 Cemetery trust to notify holders of rights of interment

As soon as practicable after a cemetery trust is given an approval to convert, the cemetery trust must take all reasonable steps to notify in writing all holders of rights of interment in the area to which the approval to convert applies that—

(a) the cemetery trust has an approval to convert the eligible cemetery to a historic cemetery park; and

(b) the holder of the right of interment may—

(i) approve the removal of any memorial to which the right of interment applies; and

(ii) take the memorial from the cemetery if the holder so wishes; and

(c) the right of interment has been cancelled.

70 Cemetery trust to prepare plan of existing places of interment

(1) Before removing any memorials under this Division, a cemetery trust which has been given an approval to convert must—

(a) prepare a plan of all the memorials in the area to which the approval to convert applies and which are to be removed; and

(b) record any inscriptions on memorials which are to be removed.

(2) The plans and records made under subsection (1) are to be made available to the public for inspection by the cemetery trust managing the historic cemetery park if the records are kept by that trust.

The Public Records Act 1973 also provides for the keeping and inspection of public records.

71 Cemetery trust may remove memorials

(1) A cemetery trust may remove any memorials or other structures in the area to which an approval to convert applies.

(2) A cemetery trust may dispose of any memorial or other structure removed under subsection (1) as it sees fit and must do so in a respectful and appropriate manner.

72 What happens if a right of interment is cancelled under this Division?

(1) If an unexercised right of interment is cancelled under this Division, the previous holder of that right of interment may request that the cemetery trust—

(a) pay to the holder a refund based on the current cemetery trust fee payable for the same type of right of interment, less the relevant cemetery trust fee for administration; or

(b) grant a right of interment to an alternative place of interment in a public cemetery for which the cemetery trust is responsible instead of paying the refund.

(2) Subject to subsection (3), on receiving a request under this section, a cemetery trust must comply with the request.

(3) If a request is made under subsection (1)(b) and the cemetery trust is not responsible for another public cemetery, the Secretary may direct another cemetery trust to provide a new right of interment in a public cemetery for which that cemetery trust is responsible to the previous holder free of charge or at a reduced fee.

(4) A request under this section must be made in writing.

Part 6—Rights of interment in a public cemetery

Division 1—Rights of interment generally

73 Cemetery trust may grant right of interment

(1) A cemetery trust may grant to any person a right of interment in a public cemetery for which it is responsible for payment of the relevant cemetery trust fee.

(2) A right of interment may be granted subject to any conditions that the cemetery trust specifies in the right of interment.

74 How long does a right of interment last?

(1) Subject to subsection (2), a right of interment is perpetual.

(2) A right of interment for the interment of cremated human remains is for the period specified at the time it is granted and may be either—

(a) perpetual; or

(b) for 25 years from the date it is granted unless it is extended in accordance with this Part.

S. 74(3) inserted by No. 16/2021 s. 9.

(3) When granting a right of interment to a person for a period of 25 years, a cemetery trust must offer a perpetual right of interment to the person.

75 What types of rights of interment can be granted?

A cemetery trust may grant the following types of rights of interment in a public cemetery for which it is responsible—

(a) a right of interment for interring human remains in a particular place of interment;

(b) a right of interment for interring human remains in a public grave.

76 Right of interment may be allocated or unallocated

(1) A right of interment may be—

(a) an allocated right of interment for a particular place of interment in a public cemetery; or

(b) an unallocated right of interment in a public cemetery.

(2) An unallocated right of interment may be specific to a certain class of places of interment in the public cemetery or to a specific part of the public cemetery to which the right of interment applies.

(3) If an unallocated right of interment is granted, the cemetery trust must allocate a place of interment of the type (if any) specified in the right of interment at the time of the first exercise of that right of interment.

(4) On an unallocated right of interment being first exercised, it becomes an allocated right of interment in respect of that place of interment.

(5) This section does not apply to a right of interment for interring human remains in a public grave.

77 Entitlements of right of interment for interring human remains

(1) A holder of a right of interment for interring human remains in a particular place of interment—

(a) may inter human remains at that place of interment; and

(b) may establish or alter a memorial at that place of interment; and

(c) if the human remains are cremated human remains in a receptacle, may remove those remains from the place of interment; and

(d) if the human remains are body parts, may remove those body parts from the place of interment.

(2) A holder of a right of interment for interring human remains in a public grave—

(a) may inter human remains in a public grave in the cemetery; and

(b) may place or alter a memorial on the public grave.

(3) The holder of a right of interment must obtain the approval of the cemetery trust before exercising any of the powers referred to in subsection (1) or (2).

(4) On the application of a holder of a right of interment to exercise any of the powers referred to in subsection (1)(c) or (d), the cemetery trust may—

(a) authorise the exercise of that power; and

(b) impose such terms and conditions on the exercise of that power as the cemetery trust thinks fit.

78 Exercising a right of interment

(1) A right of interment is exercised if, in accordance with this Act—

(a) human remains are interred at the place of interment to which the right of interment applies; or

(b) the holder of the right of interment creates a memorial at that place of interment.

S. 78(2) substituted by No. 16/2021 s. 10.

(2) Subject to subsection (3), a right of interment that is held by more than one person must be exercised jointly.

S. 78(3) inserted by No. 16/2021 s. 10.

(3) If right of interment is held by more than one person, and one or more of the holders of the right of interment are unable to be found after diligent inquiries, the following rules apply—

(a) the holders of the right of interment who can be found after diligent inquiries may jointly exercise the right of interment;

(b) if only one holder of the right of interment can be found after diligent inquiries, that holder may exercise the right of interment.

Division 2—Transfer and surrender

79 Can a right of interment be transferred to another person?

(1) Subject to this Part, a right of interment may be transferred to another person.

(2) If a person is the sole holder of a right of interment, the person may transfer that right of interment for consideration which does not exceed the current cemetery trust fee payable for the same type of right of interment in the public cemetery for which that cemetery trust is responsible, less the cemetery trust fee for the recording by the cemetery trust of the transfer of that right of interment.

80 Transfer of right of interment must be recorded

(1) A person to whom a right of interment is transferred must—

(a) notify in writing the cemetery trust which is responsible for the public cemetery to which the right of interment applies of that transfer; and

(b) pay the relevant cemetery trust fee for the recording by the cemetery trust of the transfer of that right of interment.

(2) The transfer of a right of interment is not effective and the right of interment cannot be exercised by the new holder of the right of interment until the transfer is recorded by the cemetery trust.

81 Offence to receive certain consideration for right of interment

A person must not receive any consideration for or in connection with the transfer or use of a right of interment except—

(a) in accordance with section 79(2); or

(b) as a refund from a cemetery trust under this Act.

S. 82 (Heading) amended by No. 16/2021 s. 11(1).

82 Surrender to cemetery trust of unexercised right of interment

S. 82(1) substituted by No. 16/2021 s. 11(2).

(1) An unexercised right of interment may be surrendered to the cemetery trust which granted it—

(a) by the sole holder of the unexercised right of interment; or

(b) if the unexercised right of interment is held by more than one person, by all of the holders of that right of interment acting jointly.

(2) On the surrender of a right of interment to a cemetery trust under subsection (1)—

S. 82(2)(a) amended by Nos 61/2009 s. 40, 16/2021 s. 11(3).

(a) the cemetery trust must pay to the holder or holders a refund based on the current cemetery trust fee payable for the same type of right of interment less the relevant cemetery trust fee for administration and any maintenance costs; and

S. 82(2)(b) amended by No. 16/2021 s. 11(4).

(b) the person or persons surrendering the right of interment have no further entitlements or responsibilities under that right of interment.

S. 83 (Heading) amended by No. 16/2021 s. 12(1).

83 Surrender to cemetery trust of exercised right of interment

S. 83(1) substituted by No. 16/2021 s. 12(2).

(1) An exercised right of interment may be surrendered to the cemetery trust which granted it—

(a) by the sole holder of the exercised right of interment; or

(b) if the exercised right of interment is held by more than one person, by all of the holders of that right of interment acting jointly.

S. 83(2) substituted by No. 61/2009 s. 41(1).

(2) On the surrender of a right of interment to a cemetery trust under subsection (1)—

S. 83(2)(a) amended by No. 16/2021 s. 12(3).

(a) subject to subsection (2A), the cemetery trust must pay to the holder or holders a refund based on the current cemetery trust fee payable for the same type of right of interment less—

(i) the relevant cemetery trust fee for administration and any maintenance costs; and

(ii) the restoration costs, if any; and

S. 83(2)(b) amended by No. 16/2021 s. 12(4).

(b) the person or persons surrendering the right of interment have no further entitlements or responsibilities under that right of interment.

S. 83(2A) inserted by No. 61/2009 s. 41(1), amended by No. 16/2021 s. 12(5).

(2A) No refund is payable to a person or persons surrendering a right of interment to a cemetery trust under subsection (1) if, at the time of the surrender, human remains are interred at the place of interment to which the surrendered right of interment applied.

(3) If a right of interment is surrendered to a cemetery trust under this section, the cemetery trust may—

(a) remove any memorial on the place of interment to which the surrendered right of interment applied; and

S. 83(3)(b) substituted by No. 61/2009 s. 41(2).

(b) if there are no human remains interred in the place of interment to which the surrendered right of interment applied, grant a right of interment in respect of the place of interment to which the surrendered right of interment applied—

(i) for interring human remains in a public grave; or

(ii) for interring human remains in that place of interment.

84 Surrender to cemetery trust of right of interment—more than one holder

(1) The holder of a right of interment who is not the sole holder of that right of interment may surrender that person's entitlement in the right of interment by notifying the cemetery trust in writing.

(2) On the surrender of an entitlement in a right of interment under subsection (1)—

(a) no refund is payable by the cemetery trust to the person surrendering the entitlement in the right of interment; and

(b) the person surrendering the entitlement in the right of interment has no further entitlements or responsibilities under that right of interment.

Note to s. 84 inserted by No. 16/2021 s. 13.

If a right of interment is held by more than one person and all holders cannot jointly agree to surrender an unexercised right of interment under section 82 or an exercised right of interment under section 83, a holder who is not the sole holder may surrender their entitlement in the right of interment under this section, but will not be entitled to a refund.

Pt 6 Div. 2A (Heading and ss 84A-84K) inserted by No. 16/2021 s. 5.

Division 2A—Variation or forced surrender of right of interment in certain circumstances

S. 84A inserted by No. 16/2021 s. 5.

84A Interpretation

(1) In this Division—

affected person means a person who is directly and adversely affected by—

(a) an indictable offence committed by a relevant offender; or

(b) the death of a person, if there is a responsible person in relation to the death;

indictable offence means an indictable offence against a law of the Commonwealth, a State or a Territory;

previous holder, of a right of interment that is forced to be surrendered under section 84C(2), (3) or (5), means the person whose right of interment is surrendered;

relevant offender means a person convicted on or after 1 July 2005 of an indictable offence (whenever committed), if—

(a) the appeal period for the conviction has expired; or

(b) an appeal lodged during the appeal period for the conviction has been finally determined;

(2) For the purposes of this Act, a person is a responsible person in relation to another person's death if—

(a) on or after 1 July 2005, the person has been found by a coroner, under the Coroners Act 2008 or under a corresponding law of a State or a Territory, to have been responsible (however described) for the death; and

(b) the person was themselves deceased at the time of the finding of the coroner.

S. 84B inserted by No. 16/2021 s. 5.

84B Application for variation or forced surrender of right of interment

(1) Subject to this Division, an affected person, or a person acting on behalf of an affected person, may apply to the Secretary for—

(a) the variation of a right of interment held by another person; or

(b) the forced surrender of a right of interment held by another person to the cemetery trust that granted it.

(2) An application under subsection (1) must relate to a right of interment held by a person that was granted to the person, or transferred to the person, on or after 1 July 2005.

(3) If more than one person holds a right of interment, an application under subsection (1) may relate to the right of interment held by any one or more of those persons.

(4) An application under subsection (1) need not specify a preference as between the variation of the right of interment to which the application relates and its forced surrender.

(5) If an application under subsection (1) specifies a preference as between the variation of the right of interment to which the application relates and its forced surrender—

(a) the application may also specify that if the Secretary proposes not to decide the application in accordance with that preference, the applicant consents to the Secretary deciding the application as if it had not indicated a preference; or

(b) if the application does not so specify, the person who made the application may change that preference by written notice given to the Secretary before the application is decided.

S. 84C inserted by No. 16/2021 s. 5.

84C Variation or forced surrender of right of interment where indictable offence or coronial finding of responsibility

(1) This section applies if an application has been made under section 84B(1) for—

(a) the variation of a right of interment held by another person; or

(b) the forced surrender of a right of interment held by another person to the cemetery trust that granted it.

(2) The Secretary may decide to vary the holder's right of interment, or force the surrender of the holder's right of interment to the cemetery trust that granted it, if—

(a) the holder is a relevant offender or a relative or associate of a relevant offender (whether the relevant offender is alive or deceased); and

(b) the Secretary is satisfied, having regard to the matters specified in sections 84D(2) and (4), that—

(i) due to the commission of the indictable offence of which the relevant offender has been convicted, the exercise of the right of interment by the holder would cause significant harm, pain or suffering to an affected person; and

(ii) it is appropriate to vary or force the surrender of the holder's right of interment.

(3) The Secretary may decide to vary the holder's right of interment, or force the surrender of the holder's right of interment to the cemetery trust that granted it, if—

(a) the holder is a relative or associate of a responsible person in relation to another person's death; and

(b) the Secretary is satisfied, having regard to the matters specified in 84D(3) and (4), that—

(i) due to the responsible person's role in the other person's death, the exercise of the right of interment by the holder would cause significant harm, pain or suffering to an affected person; and

(ii) the Secretary is satisfied it is appropriate to vary or force the surrender of the holder's right of interment.

Section 84 deals with the effect of the decision if the person is not the sole holder.

(4) The Secretary may decide to force the surrender of a right of interment under subsection (2) or (3) only if the Secretary is satisfied that it would not be possible to vary the right of interment in a way that would adequately prevent that further significant harm, pain or suffering to an affected person.

(5) The Secretary may decide to force the surrender of a right of interment under this subsection, without being satisfied as mentioned in subsection (2)(b) or (3)(b), if—

(a) the Secretary previously varied the right of interment under subsection (2) or (3); and

(b) after giving the holder of the right of interment a reasonable opportunity to comment, the Secretary is satisfied that the holder of the right of interment has failed to comply with the right of interment as varied, including by contravening a condition.

S. 84D inserted by No. 16/2021 s. 5.

84D Matters to which Secretary must have regard

(1) This section specifies the matters to which the Secretary must have regard for the purposes of being satisfied as mentioned in sections 84C(2)(b) or (3)(b), as the case requires.

(2) If the holder of the right of interment concerned is a relevant offender, or a relative or associate of a relevant offender, the Secretary must have regard to the following matters—

(a) the nature, level and seriousness of the indictable offence of which the relevant offender was convicted;

(b) the opinion of any affected person of whom the Secretary is aware;

(c) the opinion of the relevant offender and, if the holder of the right of interment is a relative or associate of the relevant offender, the opinion of the relative or associate;

(d) the detriment that may be caused to the relevant offender and, if the holder of the right of interment is a relative or associate of the relevant offender, to the relative or associate, including any mitigating circumstances;

(e) the matters set out in subsection (4).

(3) If the holder of the right of interment concerned is a relative or associate of a responsible person in relation to the death of another person, the Secretary must have regard to the following—

(a) the coroner's findings as to the circumstances of the death of the other person and the nature of the responsible person's responsibility for the death of the other person;

(b) the opinion of any affected person of whom the Secretary is aware;

(c) the opinion of the relative or associate;

(d) the detriment that may be caused to the relative or associate, including any mitigating circumstances;

(e) the matters set out in subsection (4).

(4) In all cases the Secretary must have regard to the following—

(a) the proximity of plots;

(b) whether or not human remains have already been interred;

(c) the availability of alternative arrangements for the relevant offender, responsible person or relative or associate of the relevant offender or responsible person, as the case requires;

(d) prescribed matters, if any;

(e) any other matters that the Secretary considers are relevant.

S. 84E inserted by No. 16/2021 s. 5.

84E Variation may involve imposition of conditions on right of interment

(1) Without limiting the way in which a right of interment may be varied under section 84C(2) or (3), the Secretary may impose conditions on the right of interment for or with respect to the following—

(a) the interment of human remains at the place of interment to which the right of interment applies;

(b) the establishment or alteration of a memorial at the place of interment;

(c) the removal of cremated human remains or body parts from the place of interment;

(d) the transfer of the right of interment to another person;

(e) the providing or withholding of consent to the exhumation of interred bodily remains.

(2) A variation of a right of interment, whether by the imposition of a condition or otherwise, may expressly or impliedly override a provision of this Act or the regulations.

S. 84F inserted by No. 16/2021 s. 5.

84F Date of effect and notification of decision

(1) A decision by the Secretary to vary or force the surrender of a right of interment under section 84C(2), (3) or (5)—

(a) takes effect on the date specified in the decision; and

(b) has effect despite anything to the contrary in this Act or the regulations.

(2) The Secretary must notify the following persons of a decision to vary or force the surrender of a right of interment under section 84C(2), (3) or (5)—

(a) the applicant for the variation or forced surrender;

(b) in the case of a forced surrender, the previous holder of the right of interment;

(c) if the right of interment is held by more than one person, the other persons who remain holders of the right of interment;

(d) the cemetery trust responsible for the place of interment to which the right of interment applies.

S. 84G inserted by No. 16/2021 s. 5.

84G Compliance with varied right of interment

The holder of a right of interment that has been varied under section 84C(2) or (3), including by the imposition of conditions—

(a) must exercise the right of interment as varied; and

(b) must not contravene (whether by act or omission) any condition of the right of interment as varied.

A failure to exercise the right of interment as varied, including because of a contravention with any conditions imposed, may result in the forced surrender of the right of interment: see section 84C(5).

S. 84H inserted by No. 16/2021 s. 5.

84H Effect of forced surrender of right of interment if there are human remains interred

(1) This section applies if—

(a) the Secretary makes a decision under section 84C(2), (3) or (5) to force the surrender of a right of interment held by a person; and

(b) on the date of effect of the decision, there are human remains interred at the place of interment to which the right of interment applies.

(2) The previous holder of the right of interment has no further entitlements or responsibilities under that right of interment on and after the date of effect of the decision.

(3) On the date of effect of the decision, the cemetery trust responsible for the place of interment—

(a) becomes the sole holder of the right of interment if there are no persons who on that date hold a right of interment in relation to the place of interment; or

(b) becomes a holder of the right of interment jointly with any persons who on that date hold a right of interment in relation to the place of interment.

(4) A cemetery trust that becomes the holder of a right of interment under this section—

(a) may exercise the rights of a holder of a right of interment under this Act with or without the consent of any other holders of the right of interment; and

(b) is not required to perform the obligations of a holder of a right of interment under this Act, including but not limited to obligations under the following—

(i) section 104;

(ii) section 106;

(iii) a provision prescribed by the regulations.

S. 84I inserted by No. 16/2021 s. 5.

84I Effect of forced surrender of right of interment if no human remains are interred

(1) This section applies if—

(a) the Secretary makes a decision under section 84C(2), (3) or (5) to force the surrender of a right of interment held by a person; and

(b) on the date of effect of the decision, there are no human remains interred at the place of interment to which the right of interment applies.

(2) The previous holder of the right of interment has no further entitlements or responsibilities under that right of interment on and after the date of effect of the decision.

(3) On the date of effect of the decision, the cemetery trust responsible for the place of interment—

(a) becomes the sole holder of the right of interment if there are no persons who on that date hold a right of interment in relation to the place of interment; or

(b) becomes a holder of the right of interment jointly with any persons who on that date hold a right of interment in relation to the place of interment.

(4) A cemetery trust that becomes the holder of a right of interment under this section—

(a) may exercise the rights of a holder of a right of interment under this Act with or without the consent of any other holders of the right of interment; and

(b) is not required to perform the obligations of a holder of a right of interment under this Act, including but not limited to obligations under the following—

(i) section 104;

(ii) section 106;

(iii) a provision prescribed by the regulations.

(5) A cemetery trust that becomes the sole holder of a right of interment under subsection (3)(a) must pay to the previous holder or previous holders of the right of interment a refund based on the current cemetery trust fee payable for the same type of right of interment less—

(a) the relevant cemetery trust fee for administration and any maintenance costs; and

(b) the restoration costs, if any.

(6) A cemetery trust that becomes the sole holder of a right of interment under subsection (3)(a) may—

(a) remove any memorial on the place of interment; and

(b) grant a right of interment under section 73 in respect of the place of interment—

(i) for interring human remains in a public grave; or

(ii) for interring human remains in that place of interment.

S. 84J inserted by No. 16/2021 s. 5.

84J Operation of variation or forced surrender where holder not the sole holder

If the Secretary makes a decision to vary or force the surrender of a right of interment held by a person who is not the sole holder of the right of interment, the variation or forced surrender does not apply to the entitlements of the other holders of the right of interment, unless the Secretary decides to vary or force the surrender of the rights of the other holders.

S. 84K inserted by No. 16/2021 s. 5.

84K Form of applications and notifications

If the regulations prescribe a form for the making of an application or the giving of a notification under this Division, the application or notification must be in the prescribed form.

Division 3—Conversion of limited rights of interment

85 Cemetery trust to offer to convert 25 year limited right of interment

(1) At least 12 months before the expiry of a right of interment for interring cremated human remains for 25 years, the cemetery trust responsible for the public cemetery to which the right of interment applies must take reasonable steps to notify the holder of that right of interment that the right of interment will expire at the end of 25 years after it was granted.

(2) A notification under subsection (1) must advise the holder of the right of interment that—

(a) under section 87, the holder may request the cemetery trust to—

(i) extend the right of interment for a further 25 years; or

(ii) convert the right of interment to a perpetual right of interment; and

S. 85(2)(b) amended by No. 4/2015 s. 5(1)(a).

(b) unless the right of interment relates to cremated human remains of a deceased identified veteran, if the right of interment is not extended or converted to a perpetual right of interment, the cemetery trust may—

(i) remove interred cremated human remains from their current place of interment; and

(ii) dispose of those cremated human remains within the cemetery grounds; and

S. 85(2)(b)(iii) amended by No. 4/2015 s. 5(1)(b).

(iii) remove any memorial relating to those cremated human remains; and

S. 85(2)(c) inserted by No. 4/2015 s. 5(2).

(c) in the case of a right of interment that relates to cremated human remains of a deceased identified veteran, if that right is not extended or converted to a perpetual right of interment, the cemetery trust may—

(i) leave those interred cremated human remains undisturbed in perpetuity and convert the right of interment to a perpetual right of interment; or

(ii) remove those interred cremated human remains from their current place of interment and re-inter them at another location within the cemetery grounds and—

(A) remove any memorial at the current place of interment; and

(B) re-establish the memorial at the location of the re-interment or establish a new equivalent memorial at that location.

(3) A notification under subsection (1) must be in writing.

S. 86(1) amended by No. 4/2015 s. 6(2) (ILA s. 39B(1)).

86 Cemetery trust may remove cremated human remains and memorial

(1) Subject to subsections (2) and (3), if a cemetery trust has given notification under section 85 and no action has been taken by the holder of the right of interment within the time limits specified by the cemetery trust, the cemetery trust may—

(a) remove the interred cremated human remains from their current place of interment; and

(b) dispose of those cremated human remains within the cemetery grounds; and

(c) remove any memorial relating to those cremated human remains.

S. 86(2) inserted by No. 4/2015 s. 6(2).

(2) Subject to subsection (3), if a cemetery trust has given notification under section 85 and no action has been taken by the holder of the right of interment within the time limits specified by the cemetery trust, the cemetery trust may—

(a) leave those interred cremated human remains undisturbed; or

(b) convert the right of interment to a perpetual right of interment.

S. 86(3) inserted by No. 4/2015 s. 6(2).

(3) If a cemetery trust has given notification under section 85 and no action has been taken by the holder of the right of interment within the time limits specified by the cemetery trust and the interred cremated remains are those of a deceased identified veteran, the cemetery trust may—

(a) leave those interred cremated human remains undisturbed in perpetuity and convert the right of interment to a perpetual right of interment; or

(b) remove those interred cremated human remains from their current place of interment and re-inter them at another location within the cemetery grounds and—

(i) remove any memorial at the current place of interment; and

(ii) re-establish the memorial at the location of the re-interment or establish a new equivalent memorial at that location.

S. 86(4) inserted by No. 4/2015 s. 6(2).

(4) Subject to subsection (5), if a cemetery trust removes cremated human remains of a deceased identified veteran from a place of interment and re-inters those cremated human remains under subsection (3)(b), the cemetery trust may—

(a) remove from their current place of interment—

(i) any cremated human remains that were interred in the same place of interment as the cremated human remains of the deceased identified veteran; or

(ii) any cremated human remains of a family member of the deceased identified veteran that were interred in a place of interment in the vicinity of the place of interment of the cremated human remains of the deceased identified veteran; and

(b) re-inter those cremated human remains—

(i) at the location where the cremated human remains of the deceased identified veteran are re-interred; or

(ii) at another location within the cemetery grounds that is in the vicinity of the location where the cremated human remains of the deceased identified veteran are re‑interred in a manner that is similar to that in which they were originally interred; and

(c) remove any memorial at the current place of interment of the cremated human remains of the family member; and

(d) re-establish the memorial at the location of the re-interment or establish a new equivalent memorial at that location.

S. 86(5) inserted by No. 4/2015 s. 6(2).

(5) A cemetery trust must not take any action under subsection (4) unless, in relation to any right of interment that relates to the current place of interment of cremated human remains referred to in subsection (4)(a)—

(a) the cemetery trust has given—

(i) notification under section 85, in the case of a 25 year limited right of interment; or

(ii) written notification to each holder of the right of interment affected and sought the consent of each holder to the removal of the remains, in the case of a perpetual right of interment; and

(b) no action has been taken by the holder of the right of interment within the time limits specified by the cemetery trust.

S. 86(6) inserted by No. 4/2015 s. 6(2).

(6) If a cemetery trust re-inters cremated human remains under subsection (3) or (4), the right of interment that applies to the new place of interment is a perpetual right of interment.

S. 86A inserted by No. 4/2015 s. 7.

86A Cemetery trust holds certain rights of interment relating to cremated human remains of deceased identified veterans

(1) If a cemetery trust converts a right of interment to a perpetual right under section 86(3)(a) in relation to cremated human remains of a deceased identified veteran—

(a) the right of interment is held by the cemetery trust; and

(b) the cemetery trust is responsible for the maintenance of that place of interment and any memorial at that place of interment.

(2) If a cemetery trust removes interred cremated human remains from their current place of interment and re-inters those remains under section 86(3)(b) or (4)—

(a) the right of interment that applies to the new place of interment at which those cremated human remains are re-interred is held by the cemetery trust; and

(b) the cemetery trust is responsible for the maintenance of that place of interment and any memorial at that place of interment.

87 Conversion or extension of a 25 year limited right of interment

(1) The holder of a right of interment for interring cremated human remains for 25 years may request the cemetery trust to—

(a) extend the right of interment for a further 25 years; or

(b) convert the right of interment to a perpetual right of interment.

(2) A request under subsection (1)—

(a) must be in writing; and

(b) may be made at any time before the expiry date of the right of interment; and

(c) must be accompanied by the relevant cemetery trust fee.

(3) On receiving a request under subsection (1), the cemetery trust must—

(a) extend the right of interment for a further 25 years, if the request is a request referred to in subsection (1)(a); or

(b) convert the right of interment to a perpetual right of interment, if the request is a request referred to in subsection (1)(b).

(4) A right of interment extended or converted under this section applies to the same place of interment as the original right of interment.

Division 4—Lift and re-position procedure

88 Application to carry out lift and re-position procedure

S. 88(1) amended by No. 61/2009 s. 42(1).

(1) For the purposes of the re-use of a place of interment by the holder of a right of interment, the holder of the right of interment, or a person acting on behalf of that holder, may apply to the cemetery trust responsible for the public cemetery to which that right of interment applies for approval to carry out a lift and re-position procedure at the place of interment to which the right of interment applies.

(2) An application under subsection (1) must—

S. 88(2)(ab) inserted by No. 61/2009 s. 42(2).

(ab) in the case of an application made by a person acting on behalf of a holder of a right of interment, include a written authorisation from that holder for the person to act on the holder's behalf; and

(b) be accompanied by the relevant cemetery trust fee.

89 Cemetery trust may approve or refuse application

(1) On receiving an application under section 88, a cemetery trust, in accordance with this section, may—

(a) approve the carrying out of a lift and re‑position procedure; or

(b) refuse to approve the carrying out of a lift and re-position procedure.

(2) A cemetery trust must not approve the carrying out of a lift and re-position procedure if it considers that the lift and re-position procedure would be inappropriate for any of the following reasons—

(a) in the case of an interment in the ground, the nature of the soil prevents or hinders the carrying out of a lift and re-position procedure; or

(b) a lift and re-position procedure would be impractical or impossible because the place of interment cannot be sufficiently deepened; or

(c) the physical state of the human remains in the place of interment; or

(d) in the case of a mausoleum, the chamber is not able to accommodate additional human remains; or

(e) religious, cultural, health or safety considerations.

(3) If the existing human remains interred in a place of interment are bodily remains, a cemetery trust must not approve the carrying out of a lift and re-position procedure unless those remains have been interred in that place of interment for least 10 years.

(4) An approval under this section must be in writing.

90 Approval to carry out lift and re-position procedure without exhumation licence

(1) A cemetery trust which has approved an application for a lift and re-position procedure may authorise a person, without an exhumation licence—

(a) to open a place of interment; and

(b) to lift any existing human remains which are interred in the place of interment; and

(c) to deepen or enlarge the place of interment if necessary; and

(d) to reposition the existing human remains in the place of interment, whether contained in a receptacle or not, so as to provide space for further interments in that place of interment.

(2) Without limiting the manner in which a lift and re‑position procedure is carried out, for the purposes of subsection (1)(d), a person may remove human remains from any receptacle and place them in another receptacle.

Division 5—Cancellation and discontinuance

91 When can a cemetery trust cancel a right of interment?

(1) A cemetery trust may cancel a right of interment in a public cemetery for which it is responsible if—

(a) the right of interment has never been exercised; and

(b) the holder of the right of interment cannot be found after diligent inquiries.

(2) A cemetery trust must not cancel a right of interment referred to in subsection (1) until the end of at least 25 years after the original grant of the right of interment.

(3) At least 14 days before cancelling a right of interment, a cemetery trust must publish notice of its intention to do so in a daily or weekly newspaper circulating generally in the area in which the public cemetery to which the right of interment applies is located.

92 What happens if a right of interment is cancelled?

If a cemetery trust cancels a right of interment in accordance with section 91, the cemetery trust, on the request of a person who can establish to the satisfaction of the cemetery trust that he or she was the previous holder of that right of interment, may—

(a) pay to that person a refund based on the current cemetery trust fee payable for the same type of right of interment less the relevant cemetery trust fee for administration; or

(b) grant to that person a right of interment in respect of another place of interment at the cemetery to be determined by the cemetery trust on the payment of the relevant cemetery trust fee fixed for the purposes of this paragraph.

93 Order discontinuing granting rights of interment

(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may direct a cemetery trust to discontinue the granting of rights of interment in a public cemetery for which the cemetery trust is responsible.

(2) An order under subsection (1) may—

(a) provide for discontinuing the granting of rights of interment in the whole of a public cemetery or specified parts of a public cemetery;

(b) be subject to any exceptions, exemptions or qualifications in respect of discontinuing the granting of rights of interment as are specified in the order.

94 Effect of order discontinuing granting rights of interment

On the making of an order under section 93—

(a) a cemetery trust must not grant any new rights of interment in respect of the area of the public cemetery to which the order applies; and

(b) no further interments are permitted in the area of the public cemetery to which the order applies, unless the interment is pursuant to—

(i) a right of interment which was granted before the making of the order; or

(ii) an exception, exemption or qualification specified in the relevant order.

Part 7—Memorials, places of interment and buildings for ceremonies

Division 1—Memorials and places of interment

95 Offence to desecrate memorials

(1) Except in accordance with this Act, a person must not wilfully break open, damage, desecrate or destroy a memorial.

(2) Nothing in this section prevents a cemetery trust from carrying out any function under this Act.

96 Offence to desecrate places of interment

(1) Except in accordance with this Act, a person must not wilfully break open, damage, desecrate or destroy a place of interment.

(2) Nothing in this section prevents a cemetery trust from carrying out any function under this Act.

Division 2—Cemetery trust approvals

97 Definition of *place of interment* limited

In this Division and Division 3, place of interment does not include a grave or a plot for the interment of human remains unless otherwise stated.

98 Application for establishment or alteration of memorials and places of interment

(1) A person may apply to the cemetery trust responsible for the management of a public cemetery for approval to establish or alter—

(a) a memorial; or

(b) a place of interment in the cemetery.

(2) An application must be accompanied by—

(a) the relevant cemetery trust fee; and

(b) a plan or design of the memorial or place of interment proposed to be established or altered; and

(c) if the application relates to a memorial or place of interment for which there is a right of interment, the written consent of the holder of the right of interment.

99 Cemetery trust may approve or refuse the application

(1) After considering an application made under section 98, a cemetery trust—

(a) may approve the application; or

(b) may refuse the application if it is satisfied that—

(i) the memorial or place of interment would be unsafe, dangerous or not of a sufficiently permanent nature; or

(ii) the establishment or alteration of the memorial or place of interment would be incompatible with the general nature and standard of surrounding memorials or places of interment or would not be sufficiently in keeping with the nature and character of the public cemetery; or

(iii) the establishment or alteration of the memorial or place of interment would not comply with the model rules or the cemetery trust rules (if any); or

(iv) the establishment or alteration of the memorial or place of interment does not comply with the prescribed requirements; or

(c) may refuse the application for any other reason that the cemetery trust thinks fit.

(2) An approval under this section may be granted subject to—

(a) a condition that the memorial or place of interment be erected or placed in the position determined by the cemetery trust; and

(b) any other terms and conditions which the cemetery trust thinks fit.

(3) A cemetery trust may cancel an approval under this section if the terms and conditions of the approval have not been complied with.

(4) A cemetery trust must make a decision on an application made under section 98—

(a) within 45 days after the receipt of the application, if sufficient information has been provided with the application; or

(b) if the cemetery trust has requested further information because sufficient information was not provided with the application, within 45 days after the cemetery trust has received the further information.

100 Cemetery trust may remove memorials or places of interment

(1) A cemetery trust may require a person to remove or alter a memorial or place of interment in a public cemetery if that person—

(a) has established or altered, or caused to be established or altered, the memorial or place of interment in the public cemetery without the approval of the cemetery trust under section 99; or

(b) has failed to comply with any term or condition to which the approval of the cemetery trust under section 99 was subject.

(2) If a person to whom subsection (1) applies fails or refuses to remove or alter the memorial or place of interment, the cemetery trust may—

(a) remove the memorial or place of interment and dispose of it as it sees fit; or

(b) remedy the failure to comply.

(3) A cemetery trust may recover the costs of taking action under subsection (2) from the person referred to in subsection (1) as a debt recoverable in a court of competent jurisdiction.

101 Approval for establishment or alteration of a building for ceremonies

(1) A person who is a member or representative of any faith, religion or cultural group may apply to the cemetery trust responsible for the management of a public cemetery for approval to establish or alter a building for ceremonies in the public cemetery.

(2) An application must be accompanied by—

(a) the relevant cemetery trust fee; and

(b) a plan or design of the building for ceremonies proposed to be established or altered.

102 Cemetery trust may approve or refuse the application

(1) After considering an application made under section 101, a cemetery trust—

(a) may approve the application; or

(b) may refuse the application if it is satisfied that—

(i) the building for ceremonies would be unsafe, dangerous or not of a sufficiently permanent nature; or

(ii) the establishment or alteration of the building for ceremonies would be incompatible with the general nature and standard of surrounding structures, memorials or places of interment or would not be sufficiently in keeping with the nature and character of the public cemetery; or

(iii) the establishment or alteration of the building for ceremonies would not comply with the model rules or the cemetery trust rules (if any); or

(iv) the establishment or alteration of the building for ceremonies does not comply with the prescribed requirements; or

(c) may refuse the application for any other reason that the cemetery trust thinks fit.

(2) An approval under this section may be granted subject to—

(a) a condition that the building for ceremonies be erected or placed in the position determined by the cemetery trust; and

(b) any other terms and conditions which the cemetery trust thinks fit.

(3) A cemetery trust may cancel an approval under this section if the terms and conditions of the approval have not been complied with.

103 Cemetery trust may remove building for ceremonies

(1) A cemetery trust may require a person to remove or alter a building for ceremonies in a public cemetery if that person—

(a) has established or altered, or caused to be established or altered, the building for ceremonies without the approval of the cemetery trust under section 102; or

(b) has failed to comply with any term or condition to which the approval of the cemetery trust under section 102 was subject.

(2) If a person to whom subsection (1) applies fails or refuses to remove or alter the building for ceremonies, the cemetery trust may—

(a) remove the building for ceremonies and dispose of it as it sees fit; or

(b) remedy the failure to comply.

(3) A cemetery trust may recover the costs of taking action under subsection (2) from the person referred to in subsection (1) as a debt recoverable in a court of competent jurisdiction.

Division 3—Maintenance of memorials, places of interment and buildings for ceremonies

104 Duty to maintain memorial or place of interment or buildings for ceremonies

(1) The holder of a right of interment in respect of a place of interment within the meaning of section 3 in a public cemetery must maintain or cause to be maintained any memorial at that place of interment in a safe and proper condition.

(2) The holder of a right of interment in respect of a place of interment within the meaning of section 97 in a public cemetery must maintain or cause to be maintained that place of interment in a safe and proper condition.

(3) A person responsible for the establishment or alteration of a building for ceremonies approved under Division 2 in a public cemetery must maintain or cause to be maintained that building for ceremonies in a safe and proper condition.

105 What is meant by a safe and proper condition?

Without limiting this Part—

(a) a memorial or place of interment is not in a safe and proper condition if—

(i) it is in a state likely to cause physical danger to any person; or

(ii) noxious fumes are escaping from that memorial or place of interment; and

(b) a building for ceremonies is not in a safe and proper condition if it is in a state likely to cause physical danger to any person.

106 Powers of a cemetery trust—memorials and places of interment

(1) If a cemetery trust believes that a memorial or place of interment is not in a safe and proper condition, the cemetery trust, by notice in writing, may require the holder of the right of interment in respect of that memorial or place of interment—

(a) to make the condition of the memorial or place of interment safe and proper; or

(b) to carry out the repairs specified in the notice.

(2) Before giving a notice under subsection (1) in respect of a place of interment, a cemetery trust may require the holder of the right of interment to open the place of interment for examination.

(3) If the holder of the right of interment fails to open the place of interment when required under subsection (2), the cemetery trust may open and examine the place of interment.

(4) If the holder of the right of interment fails to comply with the notice under subsection (1) within 14 days of its receipt, the cemetery trust may—

(a) repair the memorial or place of interment to which the notice relates; or

(b) with the consent of the Secretary, take down, remove and dispose of any memorial or place of interment.

107 Powers of a cemetery trust—buildings for ceremonies

(1) If a cemetery trust believes that a building for ceremonies is not in a safe and proper condition, the cemetery trust, by notice in writing, may require the person responsible for the establishment or alteration of that building for ceremonies—

(a) to make the condition of the building for ceremonies safe and proper; or

(b) to carry out the repairs specified in the notice.

(2) If the person responsible for the establishment or alteration of that building for ceremonies fails to comply with the notice under subsection (1) within 14 days of its receipt, the cemetery trust may—

(a) repair the building for ceremonies to which the notice relates; or

(b) with the consent of the Secretary, take down, remove and dispose of the building for ceremonies.

108 Recovery of costs and expenses

A cemetery trust may recover from the holder of the right of interment in respect of a memorial or a place of interment or the person responsible for the establishment or alteration of a building for ceremonies (as the case requires) the costs and expenses of—

(a) opening and examining a place of interment;

(b) repairing a memorial, place of interment or building for ceremonies;

(c) taking down and removing any memorial, place of interment or building for ceremonies—

as a debt recoverable in a court of competent jurisdiction.

109 What if the holder of right of interment or responsible person cannot be found?

(1) If the cemetery trust believes that a memorial or place of interment is not in a safe and proper condition and the cemetery trust is unable to find the holder of the right of interment for that memorial or place of interment, the cemetery trust may—

(a) in the case of a place of interment—

(i) open and examine the place of interment; and

(ii) repair the place of interment; or

(b) in the case of a memorial—

(i) repair the memorial; or

(ii) with the consent of the Secretary, take down, remove and dispose of the memorial.

(2) If the cemetery trust believes that a building for ceremonies is not in a safe and proper condition and the cemetery trust is unable to find the person responsible for that building for ceremonies, the cemetery trust may—

(a) repair the building for ceremonies; or

(b) with the consent of the Secretary, take down, remove and dispose of the building for ceremonies.

110 Cemetery trust may repair or maintain from other funds

(1) If a cemetery trust is unable to find the holder of the right of interment for any memorial or place of interment, the cemetery trust may maintain, repair or restore any memorial or place of interment if the cemetery trust—

S. 110(1A) inserted by No. 16/2021 s. 14.

(1A) If, under section 84C, a cemetery trust becomes the sole holder of a right of interment, or becomes a holder of a right of interment other than as the sole holder and is unable to find any of the other holders after diligent inquiries, the cemetery trust may maintain, repair or restore the place of interment if the cemetery trust—

(2) If a cemetery trust is unable to find the person responsible for a building for ceremonies, the cemetery trust may maintain, repair or restore any building for ceremonies if the cemetery trust—

S. 110A inserted by No. 4/2015 s. 8.

110A Cemetery trust may establish, repair or maintain memorial or place of interment of deceased identified veterans

Despite section 110, a cemetery trust may use cemetery trust funds or other funds for the purposes of—

(a) the maintenance, repair or restoration of any memorial or place of interment of cremated human remains of any deceased identified veteran; or

(b) the establishment of any memorial in relation to any deceased identified veteran equivalent to any memorial it replaces.

111 Cemetery trust may enter agreements to maintain memorials and places of interment

(1) A cemetery trust may enter into an agreement with a holder of a right of interment in the public cemetery for which the cemetery trust is responsible to maintain a memorial or place of interment which the holder of the right of interment would otherwise be responsible to maintain.

(2) An agreement under subsection (1)—

(a) must be for a limited term not exceeding 10 years; and

(b) may be renewed for a further term not exceeding 10 years.

112 Cemetery trust may sell and supply memorials

A cemetery trust may sell and supply memorials.

Part 8—Interment of bodily remains

Division 1—Interment generally

113 Bodily remains interred for perpetuity

Subject to this Act, bodily remains interred in a public cemetery are interred for perpetuity.

114 Unlawful interment

A person must not inter bodily remains in a place other than a public cemetery unless the Secretary has granted an interment approval for that interment.

115 Offence to inter bodily remains in public cemetery without interment authorisation

A person must not inter bodily remains in a public cemetery unless the cemetery trust responsible for that public cemetery has granted an interment authorisation for that interment.

Division 2—Interment authorisations

116 Application for interment authorisation

(1) A person who wishes bodily remains to be interred in a public cemetery may apply to the cemetery trust responsible for that public cemetery for an interment authorisation.

(2) An application for an interment authorisation must be in the prescribed form.

(3) An application for an interment authorisation must be accompanied by one of the following—

(a) a notice under section 37(2) of the Births, Deaths and Marriages Registration Act 1996; or

S. 116(3)(b) substituted by No. 77/2008 s. 129(Sch. 2 item 4.1).

(b) a copy of an order made by a coroner under section 47 of the Coroners Act 2008 releasing the body of the deceased to a specified person; or

(c) if the deceased died in another State or Territory of the Commonwealth or overseas, a document corresponding to a notice under section 37(2) of the Births, Deaths and Marriages Registration Act 1996 from the jurisdiction where the deceased died; or

S. 116(3)(ca) inserted by No. 16/2021 s. 15.

(ca) if the deceased died in another State or Territory of the Commonwealth or overseas, a document corresponding to an order made by a coroner under section 47 of the Coroners Act 2008 releasing the body of the deceased to a specified person from the jurisdiction where the deceased died;

(d) if the interment authorisation is for a still-born child—

(ii) if the still-birth occurred in another State or Territory of the Commonwealth or overseas, a document corresponding to a notice of still-birth under the Births, Deaths and Marriages Registration Act 1996 from the jurisdiction where the still-birth occurred; or

(e) a statutory declaration made by the person arranging the interment stating that, owing to special circumstances, it is not possible to produce the required documents referred to in paragraphs (a), (c) or (d) (as the case requires).

(4) If a cemetery trust grants an interment authorisation where the application for the interment authorisation was accompanied by a statutory declaration referred to in subsection (3)(e), the cemetery trust must notify the Secretary in writing of that fact.

(5) If an application for an interment authorisation relates to a place of interment for which a right of interment exists, the cemetery trust may require the applicant to produce evidence to the satisfaction of the trust that the holder of the right of interment has consented to the application.

117 Offence to make false statement in application for interment authorisation

A person must not make a false statement in an application for an interment authorisation.

118 Grant of interment authorisation

A cemetery trust must not grant an interment authorisation unless the cemetery trust is satisfied that the requirements of this Division have been met in relation to the application for the interment authorisation.

119 Conditions on interment authorisation

An interment authorisation may be granted on such conditions as the cemetery trust thinks fit.

120 Offence to fail to comply with interment authorisation

A person to whom an interment authorisation is granted must not fail to comply with any condition of that interment authorisation.

1. 120 penalty units or 12 months imprisonment or both.

Division 3—Interment approvals

121 Application for interment approval for interment other than in a public cemetery

(1) A person who wishes bodily remains to be interred in a place other than a public cemetery may apply to the Secretary for an interment approval.

(2) An application for an interment approval must be—

(a) in the prescribed form; and

S. 121(2)(b) amended by No. 42/2005 s. 4.

(b) accompanied by the prescribed fee (if any).

(3) An application for an interment approval must be accompanied by one of the following—

(a) a notice under section 37(2) of the Births, Deaths and Marriages Registration Act 1996; or

S. 121(3)(b) substituted by No. 77/2008 s. 129(Sch. 2 item 4.2).

(b) a copy of an order made by a coroner under section 47 of the Coroners Act 2008 releasing the body of the deceased to a specified person; or

(c) if the deceased died in another State or Territory of the Commonwealth or overseas, a document corresponding to a notice under section 37(2) of the Births, Deaths and Marriages Registration Act 1996 from the jurisdiction where the deceased died; or

(d) if the interment approval is for a still-born child—

(ii) if the still-birth occurred in another State or Territory of the Commonwealth or overseas, a document corresponding to a notice of still-birth under the Births, Deaths and Marriages Registration Act 1996 from the jurisdiction where the still-birth occurred; or

(e) a statutory declaration made by the person arranging the interment stating that, owing to special circumstances, it is not possible to produce the required documents referred to in paragraphs (a), (c) or (d) (as the case requires).

122 Offence to make false statement in application for interment approval

A person must not make a false statement in an application for an interment approval.

123 Grant of interment approval

(1) The Secretary must not grant an interment approval unless the Secretary is satisfied that the requirements of this Division have been met in relation to the application for the interment approval.

(2) An interment approval must—

124 Conditions on interment approval

(1) An interment approval may be granted on such conditions as the Secretary thinks fit.

(2) Without limiting subsection (1), the conditions on an interment approval may include conditions relating to—

(a) the minimum size of the land on which the interment is to take place; and

(b) the depth of the interment; and

(c) the standards of construction for any monument or vault on the land on which the interment is to take place.

125 Offence to fail to comply with interment approval

A person to whom an interment approval is granted must not fail to comply with any condition of that interment approval.

1. 120 penalty units or 12 months imprisonment or both.