Cemeteries and Crematoria Act 2013 (New South Wales) — Zoe

New South Wales act

Cemeteries and Crematoria Act 2013

In ForceNSW

Jurisdiction

New South Wales

Act Number

105 of 2013

Collection

act

Plain English Summary

8/10 complexity

The Cemeteries and Crematoria Act 2013 sets out rules for managing burial grounds and cremation facilities across New South Wales. It ensures every person has the right to a dignified burial or cremation, with full respect for different religious and cultural traditions so no group is left out. The law requires enough land to be set aside for current and future needs, creates a central government body (Cemeteries and Crematoria NSW) to oversee standards, promote environmentally friendly practices (including natural burials), and keep costs transparent and affordable, especially for those on low incomes. It explains how 'interment rights' work – these are the legal permissions to use a specific burial or cremation spot, which can last forever or for a set renewable period – and covers registering sites, handling old graves, issuing orders to fix problems, and managing Crown land cemeteries under linked rules. Operators must keep detailed records, report performance, follow codes of practice, and face civil penalties for breaches. The Act balances practical land reuse with heritage protection and community consultation.

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Deep Dive

3,122 words · generated 24/04/2026

What it does

The Cemeteries and Crematoria Act 2013 establishes a comprehensive regulatory framework for the interment industry in New South Wales. At its core, s 3 articulates nine objects, ranging from recognising the right of all individuals to dignified interment (s 3(a)) and respecting religious and cultural practices without disadvantage (s 3(b)), through to ensuring equitable access to land (s 3(c)), coherent governance (s 3(d)), operator accountability (s 3(e)), alignment with Crown land management principles (s 3(f)), environmental sustainability including natural and private burials (s 3(g)), transparent cost structures (s 3(h)) and affordability for those of limited means (s 3(i)). These objects must guide the Cemeteries Agency in exercising its functions (s 12(4)).

The Act constitutes Cemeteries and Crematoria NSW as a body corporate and NSW Government agency (ss 6-7), headed by a Chief Executive Officer appointed by the Governor on Ministerial recommendation (s 7A, inserted 2025). The CEO exercises day-to-day management and all decisions (s 8), subject to Ministerial direction except in relation to specific advice, licensing, investigative or enforcement decisions (s 9(1)). Non-delegable functions include land acquisition under s 14 and short-term orders under s 36 (s 11(3)).

Principal functions of the Agency (s 12) include assessing interment needs and developing planning strategies, advising on sustainable space use, promoting environmental practices, developing codes of practice, advising on interment industry schemes, regulating services under those schemes, managing complaints, reviewing industry policies and conducting research. It must prepare and publish a strategic plan within 12 months of constitution (s 12(2)-(3)). Ancillary powers include land acquisition in the public interest with Ministerial consent (s 14, limited to equitable access needs and with financial impact assessment for Crown operators), arrangements with other bodies (s 15) and financial management via the Cemeteries Agency Fund (s 22), funded by appropriations, levies (s 24) and penalties (s 25).

Current sections

Direct links to the current provisions in Cemeteries and Crematoria Act 2013.

206

Official source available

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Sourced from legislation.nsw.gov.au, CC BY 4.0.

Who it affects

The Act primarily affects cemetery and crematorium operators, including Crown cemetery operators (defined in s 71 as Crown land managers or persons responsible under the Crown Land Management Act 2016). Private operators, denominational trusts at Rookwood Necropolis (Part 5 of Schedule 5) and the lessee under the general crematorium lease are directly regulated. The Cemeteries Agency (ss 6-12) and its CEO (ss 7A-9, as amended 2025) exercise oversight, complaint resolution (s 12(1)(f1)) and enforcement.

Funeral directors, funeral funds (within the Funeral Funds Act 1979) and prescribed persons fall within the interment industry definition (s 26) and may be subject to codes (s 28), schemes (s 31) and levies (s 24). Holders of interment rights – whether perpetual or renewable, individual, joint, bequeathed or devolved by intestacy (ss 46-51, 53A) – possess statutory rights to interment, memorials and undisturbed remains (s 46), with obligations to act jointly (s 53A) and rights to compensation on revocation (s 53) or renewal (s 54). Secondary contacts, next-of-kin and representatives of religious/cultural groups are affected by notification requirements (ss 54(6), 55(2), 68B) and consultation on renewal exemptions (s 43C(6)).

The Minister exercises appointment, direction and exemption powers (ss 7A, 9, 14, 72), while local councils, heritage advisory committees (s 69) and the Commonwealth War Graves Commission (transferred provisions in Schedules 4-5) have residual roles. Descendants, public users of registers (s 27(6), s 63(7)) and those of limited means benefit from affordability objects (s 3(i)). NSW Health receives the Register (s 27(7)). Authorised officers (ss 125-127), courts (Local Court for penalties and undertakings, ss 40, 114) and the Tribunal (reviews of improvement notices, s 33(5)) enforce the regime. Ultimately, every individual requiring or planning interment in New South Wales is affected through the guarantee of dignified, equitable access.

Key duties and rights

Operators bear core duties under s 46(1) to permit interment at the identified site, respect cultural/religious practices at grant time, approve memorials (subject to fee under s 46(1A)), leave remains and lawful memorials undisturbed (subject to holder authorisation or statutory exceptions), and deal with disturbed remains culturally appropriately (s 46(3)). Breach of the undisturbed obligation attracts a $27,500 civil penalty (s 46(2)). Record-keeping (s 42, $9,900), performance reporting (s 41, $9,900) and information provision (s 43, $9,900) are mandatory. Register maintenance and timely updates are required (s 63, $2,200 per breach), as is compliance with improvement notices (s 34, $27,500), short-term orders (s 38, $27,500) and mandatory codes/schemes (ss 29(4), 31(3), $27,500). Crown operators must adopt codes of conduct (s 86), strategic plans (s 90), plans of management (s 96) and committee structures (s 103).

The Cemeteries Agency must maintain the public Register (s 27), develop codes (s 28, with concurrences for health, funeral funds and fair trading matters), prepare strategic plans (s 12(2)), assess needs (s 12(1)(a)), promote sustainability (s 12(1)(c)) and manage complaints (s 12(1)(f1)). It may issue improvement notices (s 33), short-term orders (s 36), accept undertakings (s 39) and levy general or special contributions (s 24, with CPI adjustment and anti-cross-subsidy rules).

Rights holders enjoy exclusive interment and memorial rights (s 46(1)), bequeathal (s 49) or intestacy transmission (s 50), joint survivorship (s 51), renewal rights (s 54(3)), compensation on perpetual revocation (s 53: alternative site or half-fee equivalent) and register amendment on devolution (ss 49(3), 50(3)). Holders may prohibit memorial works via no-works notices (s 70H) and must act jointly unless s 66A applies (s 53A). Cultural/religious groups gain consultation on renewal exemptions affecting their areas (s 43C(6)) and input into codes (s 28(4)).

Authorised officers hold entry, search, seizure, questioning and direction powers (ss 130-135), subject to identification (s 127). The public holds inspection rights over the Register (s 27(6)) and operator registers (s 63(7)). No compensation is payable for authorised conversions or divestments under transferred provisions (Schedule 4 cl 15; Schedule 5 cl 5, cl 11, cl 20).

Penalties and enforcement

The Act relies heavily on civil penalties rather than criminal offences. Maximum civil penalties range from $2,200 (register offences under ss 27(5), 63(1),(5),(6),(9),(12)) to $9,900 (reporting under ss 41-43) and $27,500 for core breaches (undisturbed remains s 46(2), improvement notice non-compliance s 34, short-term order breach s 38, scheme/code non-compliance ss 29(4), 31(3), renewal exemption breach s 43D, memorial works prohibition breach s 70E(6)). Criminal offences are limited: obstructing authorised officers (s 137, 100 penalty units), impersonation (s 138, 100 penalty units), unauthorised interment without order (s 67(1), 250 penalty units) and conduct in cemeteries (s 70, 25 penalty units).

Enforcement is by the Agency or authorised officers (s 121). Civil penalty proceedings must commence within 12 months of contravention or Agency awareness (s 114(1)), with Local Court determining appropriate penalty having regard to nature, loss, circumstances and prior conduct (s 114(3)). Infringement notices for listed provisions (s 124(8)) allow payment of one-fifth the maximum as an alternative (s 124(3)). Enforceable undertakings (s 39) may be accepted and enforced by Local Court with compliance, disgorgement or compensation orders (s 40). Improvement notices precede civil obligation (s 33), with Agency remediation at cost (s 35). Short-term orders provide urgent interim control (s 36).

Penalty proceeds feed the Cemeteries Agency Fund up to $250,000 (or regulated maximum) per financial year, with excess to Consolidated Fund (s 25). Authorised officers may require information/records (s 134), state name/address (s 135) and exercise search warrant powers (s 131, applying Law Enforcement (Powers and Responsibilities) Act 2002). Self-incrimination is no excuse for documents but limited use immunity applies to answers (s 136). Personal liability protection exists for good-faith acts (s 141). Transferred provisions preserve historical no-compensation rules (Schedule 4 cl 15).

How it interacts with other laws

Section 5 is the pivotal interaction provision. Nothing in the Crown Land Management Act 2016 prevents authorised use of reserves for Act purposes (s 5(1)); where both Acts provide for the same function, only the Cemeteries Act applies (s 5(2)); and in prescribed inconsistencies the Cemeteries Act prevails (s 5(3)). Crown cemetery expressions take their Crown Land Management Act meaning (s 4(3)). The Act does not affect listed statutes – Aboriginal Land Rights Act 1983, Fair Trading Act 1987, Funeral Funds Act 1979, Heritage Act 1977, National Parks and Wildlife Act 1974, Public Health Act 2010, Biodiversity Conservation Act 2016 – except as expressly provided (s 5(4)). Concurrence of relevant Ministers is required for schemes or codes impacting their portfolios (ss 28(2), 31(4)).

Public health regulations govern exhumations and infectious disease memorials (s 66; s 55(3)(c)). Heritage and environmental planning laws are preserved (note to Part 4 Div 8; s 69(2) heritage advisory committee advice). The Interpretation Act 1987 supplies definitions and statutory corporation powers (ss 4 note, 6 note). Government Sector Finance Act 2018 governs Agency investments (s 23). Real Property Act 1900 enables recording of cemeteries (s 139A, inserted 2025). Subordinate Legislation Act 1989 consultation applies to schemes (s 32(2)). Fines Act 1996 covers penalty notices (s 111). Civil and Administrative Tribunal Act 2013 governs reviews (s 33(5) note). Probate and Administration Act 1898 informs bequests (s 49(5)).

Transferred provisions from repealed Acts (Schedules 4-5) integrate historical conversion, vesting and management rules, while savings (Schedule 3) preserve pre-2013 rights as statutory interment rights (cl 2-7 of Part 2) and 2025 amendments (Part 3 of Schedule 3) continue certain negotiations and applications under old rules. Information exchange with NSW Health, Fair Trading, Local Government and others is authorised despite privacy laws (s 140). IPART investigation of costs (s 145) interacts with competition and pricing regulation.

Gotchas

Most practitioners miss that s 4(2) deems every reference to a “cemetery” or “cemetery operator” to include crematoria and partial operators unless contrary intention appears – radically broadening licensing, register and reporting obligations. Renewable interment rights expire irrevocably if not renewed before term end (s 54(5)), yet the 2-year post-expiry window for new rights (s 54(7)) creates a trap for joint holders: non-unanimous renewal means the right expires for all and non-applicants lose re-application rights (s 54(7A)). Section 55(6) prohibits re-use unless remains have been interred 25 years and are sufficiently decomposed – a $27,500 civil penalty applies only to the 25-year rule, but cultural/religious dealing requirements (s 55(5)) and heritage advice (s 55(2)(a)) are absolute.

The 2025 renewal exemption regime (ss 43B-43E) does not exempt s 46(1)(d) or (2), so perpetual disturbance prohibitions survive; yet surface works “are taken as not disturbing remains below the ground” (s 43B(5)) – a legal fiction that demands meticulous drafting of exemption instruments identifying the works area. Reasonable Notification Guidelines (s 68B) are not mere policy; repeated references across ss 52, 54, 55, 60A, 61, 70I make compliance with Agency-published guidelines a de facto statutory duty – “most people don’t realise” that reliance on outdated register data can be defended only to the extent the Guidelines permit (s 68B(3)(d)).

Crown operators’ strategic plans bind operations (s 96(3)(b)); acting inconsistently requires Agency notification (s 90(10)), yet the Agency may revoke plans (s 92). Section 53(5) and (8A) impose 5-year non-transfer bans on replacement perpetual rights and joint liability – easily overlooked in estate planning. Finally, penalty proceeds are capped at $250,000 (or regulated amount) per year into the Fund (s 25(2)); excess goes to Consolidated Fund, creating an invisible budgetary ceiling on aggressive enforcement that compliance professionals rarely model.

How to comply

Compliance begins with appointing a competent CEO and ensuring all Agency decisions flow through authorised channels (ss 8, 11). Map every cemetery/crematorium against the public Register (s 27) and maintain an internal operator register compliant with s 63(3)-(4), updating within statutory timeframes (immediate for interments/cremations, 14 days for material changes). Conduct a gap analysis against all mandatory codes and schemes (ss 29, 31); where no scheme exists, treat approved codes as guidelines only unless incorporated.

For interment rights, embed s 46 duties in all contracts and procedures: cultural/religious assessment at grant, written authorisation before any disturbance, memorial approval protocols (with s 46(1A) fee schedule). Implement joint-holder checklists (s 53A), 12-month pre-expiry notifications using Reasonable Notification Guidelines (s 54(6)), and 90-day revocation notice processes (s 52(2)). For renewable sites, track statutory renewal periods meticulously; automate 2-year post-expiry re-use assessments including heritage committee advice (s 55(2)(a)), cultural re-interment (s 55(5)) and 25-year decomposition verification.

Crown operators must adopt codes of conduct (s 86), form finance/audit/community committees (s 103), prepare strategic and management plans (ss 90, 93), and report annually with independent audit (s 99). Calculate and pay levies (s 24) and quarterly contributions (Schedule 5 cl 24) on time; set fees under s 107 having regard to listed cost factors and notify the Agency within 3 months.

Maintain a complaints register aligned with s 12(1)(f1). Train authorised-officer interaction protocols (identification, warnings before requirements under s 136(1)). For 2025 changes, map all existing interment sites against potential renewal works areas; develop internal guidelines mirroring the Agency’s Reasonable Notification Guidelines (s 68B); establish memorial works approval workflows with unavailability declarations (s 70I) and no-works notice recording (s 70H(2)). Engage early with cultural groups on exemptions (s 43C(6)). Document all decisions for civil penalty defence (s 114(3) mitigating factors). Periodically test against IPART-style cost transparency (s 145) and environmental objects (s 3(g)). Retain specialist counsel for complex revocations or joint-holder disputes. Annual internal audits against the strategic plan close the loop.