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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Cemeteries and Crematoria Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to recognise the right of all individuals to a dignified interment and treatment of their
remains with dignity and respect,
(b) to ensure that the interment practices and beliefs of all religious and cultural groups are
respected so that none is disadvantaged and adequate and proper provision is made for all,
(c) to ensure that sufficient land is acquired and allocated so that current and future generations
have equitable access to interment services,
(d) to provide for the operation of a consistent and coherent regime for the governance and
regulation of cemeteries and crematoria,
(e) to ensure that the operators of cemeteries and crematoria demonstrate satisfactory levels of
accountability, transparency and integrity,
(f) to ensure that cemeteries and crematoria on Crown land are managed in accordance with
the principles of Crown land management specified in section 11 of the Crown Lands Act
1989.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
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Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Clause 3 states the objects of the proposed Act.
Clause 4 provides that certain words or expressions are defined in the Dictionary to the proposed
Act or have the same meaning as in the Crown Lands Act 1989. It also states that references in the
proposed Act to a cemetery in general extend to include references to a crematorium and to part
of a cemetery or crematorium and references to a cemetery operator include references to a
crematorium operator or an operator of part of a cemetery or crematorium.
Clause 5 describes the relationship between the proposed Act and certain other legislation.
Part 2 Administration
Division 1 Constitution and management of Cemeteries Agency
Clauses 6-11 constitute Cemeteries and Crematoria NSW (the Cemeteries Agency) as a body
corporate and deal with its management, control and staff. All decisions relating to the functions
of the Cemeteries Agency are to be made by or under the authority of the Board of the Cemeteries
Agency (the Board). The Chief Executive Officer of the Cemeteries Agency is responsible for the
day-to-day management of the affairs of the Cemeteries Agency subject to the policies and
directions of the Board.
Division 2 Functions of Cemeteries Agency
Subdivision 1 Principal functions
Clauses 12 and 13 set out the principal functions of the Cemeteries Agency and make it clear that
the Cemeteries Agency may do all acts necessary or expedient for the exercise of its functions.
Subdivision 2 Ancillary functions
Clauses 14 and 15 set out some ancillary functions of the Cemeteries Agency. These include a
reserve power to acquire land and transfer it to the operator of a Crown cemetery trust or other
cemetery operator in specified circumstances if the Cemeteries Agency considers it is necessary
to do so to ensure equitable access to interment services by all religious and cultural groups
(clause 14).
Division 3 The Board
Subdivision 1 Constitution of Board
Clause 16 provides for the constitution of the Board and the voting rights of its members.
Subdivision 2 Duties and liabilities of Board members
Clauses 17-21 contain provisions requiring the honest and diligent conduct of, and the disclosure
of personal interests by, voting members of the Board. A person who contravenes such a provision
is liable to a civil penalty.
Division 4 Finance
Clauses 22-25 contain provisions relating to financial matters, including the establishment of a
Cemeteries Agency Fund, the amounts to be paid into and out of that Fund and investment powers
in relation to the Fund. Clause 24 enables the Cemeteries Agency to impose general and special
levies on operators of cemeteries, or classes of cemetery, prescribed by the regulations. General
levies are contributions towards the cost of the administration of the proposed Act to the extent
that it relates to cemeteries. Special levies may be imposed as a contribution towards the cost of
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Explanatory note
acquiring land under clause 14. Contributions by way of a special levy will not be able to exceed
an amount in total to be prescribed by the regulations.
Part 3 Regulation of interment industry
Division 1 Preliminary
Clause 26 defines interment industry to include the operators of cemeteries, funeral directors,
funeral contribution funds and other persons, or persons of a class, prescribed by the regulations.
Clause 27 requires the Cemeteries Agency to keep a register of cemeteries and crematoria. An
operator of a cemetery must not fail to provide the Cemeteries Agency with certain information
prescribed as information that must be included in the register or fail to notify material changes in
that information. An operator who contravenes this provision is liable to a civil penalty.
Division 2 Codes of practice
Clauses 28-30 provide for the development and approval of codes of practice to provide
guidelines regarding activities of participants in the interment industry or sectors of the industry.
The Cemeteries Agency may develop a code of practice on its own initiative or in collaboration
with interment industry participants. Compliance with a code of practice will not be mandatory
unless made so by a regulation establishing an interment industry scheme under proposed
Division 3.
Division 3 Interment industry schemes
Clauses 31 and 32 provide for the establishment by the regulations of an interment industry
scheme following consultation with participants in the interment industry that will be affected. A
scheme may, for example, require compliance with the whole or part of a code of practice, require
the operators of cemeteries to ensure adequate provision is made for perpetual care of interment
sites or require the licensing of activities, persons or businesses providing interment services. A
person who fails to comply with a requirement of a scheme that applies to the person is liable to
a civil penalty.
Division 4 Improvement notices
Clauses 33-35 enable the Cemeteries Agency to issue an improvement notice requiring the
operator of a cemetery to end a contravention of a provision of an interment industry scheme or
take action to remedy the consequences of the contravention within a stated time. An operator who
contravenes an improvement notice by failing to end a contravention of a provision of an
interment industry scheme is liable to a civil penalty. If the operator fails to remedy the
consequences, the Cemeteries Agency may take action to do so and the cost of that action will be
payable by the operator.
Division 5 Short term orders
Clauses 36-38 enable the Cemeteries Agency to order operators of cemeteries to take specified
action or refrain from taking specified action if it considers the making of the order to be
reasonably necessary in the public interest to prevent or lessen a serious threat or risk to the
achievement of an object of the proposed Act pending the making of a regulation under proposed
section 31 establishing an interment industry scheme that makes provision for a mandatory code
of practice requirement. An operator who contravenes a short term order is liable to a civil penalty.
Division 6 Enforceable undertakings
Clauses 39 and 40 enable the Cemeteries Agency to accept undertakings to take action or refrain
from taking action from a person who the Cemeteries Agency considers has contravened the
proposed Act, the regulations or a provision of an interment industry scheme. An undertaking will
be able to be enforced (including by the making of orders relating to compensation) by the Local
Court or any other court or tribunal prescribed by the regulations.
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Explanatory note
Division 7 Management of cemetery operators
Clauses 41-43 enable the Cemeteries Agency to require cemetery operators to report to the
Cemeteries Agency about the operators' performance in managing cemeteries and to keep certain
records. An operator who fails to comply with the reporting and record requirements is liable to a
civil penalty.
Part 4 Interment rights and cemetery renewal
At present, provisions of the Crown Lands (General Reserves) By-law 2006 (the CL By-law)
provide for a burial licence scheme for Crown cemeteries for which a reserve trust has been
established under the Crown Lands Act 1989. A burial licence entitles its holder to a right of burial
with respect to a particular place and, under the common law, a right to remain interred until
dissolution arises on burial.
The proposed Part incorporates the current provisions with necessary adaptations to provide for
one form of authority (an interment right) giving both a right to burial in a particular place and a
further right to remain interred undisturbed for all cemeteries. The duration of that right will
depend on whether the interment right is a perpetual interment right or a renewable interment right
within the meaning of clause 47.
Division 1 Preliminary
Clause 44 defines certain terms for the purposes of the proposed Part, including interment right.
Division 2 Interment rights
Subdivision 1 Preliminary
Clause 45 provides for the application of the proposed Division. It makes it clear that burial
licences granted under the Crown Lands Act 1989 and other rights, licences or entitlements that
are similar in nature to interment rights given before the commencement of the proposed section
under the proposed Division are preserved unless otherwise provided.
Subdivision 2 Interment rights generally
Clause 46 states the nature of an interment right given under the proposed Division.
An interment right requires the cemetery operator:
(a) to permit the interment of the remains of the person to whom it relates at the site in a
cemetery identified in, or in accordance with, the interment right, and
(b) to permit any such interment in accordance with the cultural or religious practice applicable
to the part of the cemetery in which the interment site is located at the time the interment
right is granted, and
(c) to permit a memorial to the deceased person to be erected at the site with the approval of
the cemetery operator, and
(d) to leave the remains undisturbed in perpetuity (or, in the case of a renewable interment
right, until such time as the remains may be disturbed or removed in accordance with the
proposed Act) unless disturbance or removal at an earlier time is requested or authorised by
the holder of the interment right, and
(e) to leave any memorial to the deceased person lawfully erected at that site, with the
permission of the cemetery operator, undisturbed (provided the interment right remains in
force and the memorial is kept in good repair) until such time as the memorial may be
disturbed in accordance with the proposed Act unless disturbance at an earlier time is
requested or authorised by the holder of the interment right.
A cemetery operator who disturbs remains or a memorial in contravention of the provisions
described in paragraph (d) and (e) is liable to a civil penalty.
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Explanatory note
Subject to the regulations, a cemetery operator must also ensure that any remains that are disturbed
or removed are dealt with in accordance with any cultural or religious practices applicable to the
remains.
Clauses 47 and 48 describe the types and duration of interment rights. An interment right may be
granted in perpetuity (a perpetual interment right) or for the period an interment right granted
under proposed section 54 remains in force (a renewable interment right).
Clauses 49-51 provide for the bequeathal of interment rights, the effect of intestacy of the holder
of such a right and for the devolution of the right on the death of a joint holder. They essentially
mirror clauses 31-33 of the CL By-law with necessary modifications for the wider application of
the provisions explained above.
Clause 49 requires the executor of the estate of the holder of an interment right who has
bequeathed the right to notify the cemetery operator of the death of the holder. This is to enable
the operator to more easily comply with the requirements of the proposed Act concerning the
keeping of a cemetery operator's register (clause 63).
Clauses 52 and 53 provide for the revocation of unexercised perpetual interment rights and
payment of compensation on revocation. They are similar to clauses 34 and 35 of the CL By-law.
Subdivision 3 Renewable interment rights
Clause 54 provides for the grant and renewal of renewable interment rights. A renewable
interment right is granted for an initial term of up to 99 years for cremated remains and 25 years
for human remains other than cremated remains. The right may (and in specified cases must) be
renewed by the operator on application by the holder for further terms of at least 5 years so long
as the aggregate of the initial and any further terms does not exceed 99 years.
Clause 55 provides for the re-use of an interment site 2 years after the expiration of a renewable
interment right. An interment site can only be re-used after the notice requirements set out in the
clause have been complied with and the necessary authorisations obtained. Before an interment
site is re-used, the cemetery operator must ensure that any cremated remains are returned to the
holder of the right or scattered in the cemetery and that any bodily remains of a deceased person
found at the site are placed in an ossuary box and re-interred at a greater depth or placed in an
ossuary house or similar place. An interment site cannot be re-used if this requirement cannot be
complied with because of the insufficiently decomposed state of such bodily remains or if certain
specified memorials are erected on the site. In any case, an interment site cannot be reused until
human remains of a deceased person (other than cremated remains) that are interred in the site
have been interred for at least 10 years (or such other period as may be prescribed by the
regulations). A cemetery operator who contravenes certain of these requirements is liable to a civil
penalty.
Subdivision 4 Grant and transfer of interment rights generally
Clauses 56-62 contain provisions relating to the grant and transfer of interment rights. The
provisions relating to transfer largely mirror (with necessary modifications) clauses 28-30 of the
CL By-law.
Subdivision 5 Miscellaneous
Clause 63 requires the operator of a cemetery to maintain a register containing particulars relating
to the grant of interment rights and other specified events. Operators will also be required to
include particulars relating to burials and cremations. This requirement will replace the
requirement to keep registers of these matters under the Public Health Regulation 2012. An
operator who contravenes these requirements is liable to a civil penalty.
Clauses 64-68 contain provisions concerning the keeping of registers and documents and the
exhumation and interment of bodies. An operator who contravenes certain such provisions under
proposed section 64 is liable to a civil penalty.
Clause 69 requires a cemetery operator to establish a heritage advisory committee if renewable
interment rights are offered.
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Explanatory note
Division 3 Cemetery renewal
Clauses 70-75 largely mirror the provisions of clauses 34A-34F of the CL By-law with necessary
modifications to enable such a scheme to be implemented by the operator of any cemetery (not
only for a reserve dedicated or reserved for cemetery purposes under the Crown Lands Act 1989)
with the approval of the Cemeteries Agency. Approval of a renewal scheme for a cemetery
enables the re-development of existing parts of the cemetery to accommodate new burial sites and
locations for memorials.
Division 4 Offence
Clause 76 creates an offence concerning conduct in cemeteries.
Part 5 Operation of Crown cemeteries and crematoria
Division 1 Preliminary
Clause 77 defines certain terms and expressions used in the proposed Part.
Clause 78 enables the Cemeteries Agency to exempt a Crown cemetery operator, class of Crown
cemetery operators, trust member or class of trust members from the operation of provisions of
the proposed Part.
Division 2 Cemetery trust operators
Subdivision 1 Appointment of trust operators
Clauses 79-86 mirror (with necessary modifications) section 92 (6)-(6B) and related provisions
of the Crown Lands Act 1989 so that the affairs of reserve trusts for cemetery and crematorium,
and related, purposes established after the commencement of proposed section 79 will be managed
by trust members appointed under the proposed Act instead of that Act.
Subdivision 2 Conduct of trust members
Clauses 87-91, 93 and 94 contain provisions requiring the honest and diligent conduct of, and the
disclosure of personal interests by, trust members. A person who contravenes such a provision is
liable to a civil penalty. Clause 92 requires a Crown cemetery operator to prepare a code of
conduct to be complied with by trust members. This requirement and the provisions of such a code
will apply to both trust members appointed under the proposed Act and those appointed under the
Crown Lands Act 1989 before the commencement of the new provisions.
Clause 95 protects certain persons from personal liability for acts or omissions done in good faith
in the course of managing the affairs of a Crown cemetery trust.
Subdivision 3 Strategic plans
Clauses 96-98 require a Crown cemetery operator to prepare a strategic plan identifying the main
priorities for the future of a Crown cemetery in the period to which the plan relates in accordance
with guidelines made by the Cemeteries Agency. This requirement will apply to both Crown
cemetery operators appointed under the proposed Act and those appointed under the Crown Lands
Act 1989 before the commencement of the new provisions.
Subdivision 4 Plans of management
Clauses 99-104 require a Crown cemetery operator to prepare a draft plan of management in
accordance with guidelines made by the Cemeteries Agency and to submit it to the Cemeteries
Agency for adoption. If a plan of management is adopted, the operator must carry out and give
effect to it and no operations may be undertaken in relation to the cemetery except in accordance
with the plan. This requirement will apply to both Crown cemetery operators appointed under the
proposed Act and those appointed under the Crown Lands Act 1989 before the commencement of
the new provisions.
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Explanatory note
Subdivision 5 Financial management, audits and reports
Clauses 105-108 contain provisions relating to financial and audit matters such as annual reports.
The requirements will apply to both Crown cemetery operators appointed under the proposed Act
and those appointed under the Crown Lands Act 1989 before the commencement of the new
provisions. The provision relating to annual reports will only apply in respect of a financial year
commencing on or after 1 July 2014 (see clause 8 of Schedule 3).
A Crown cemetery operator who fails to comply with a direction given by the Cemetery Agency
under proposed section 107 (1) concerning provision of information relating to a financial report
or operations is liable to a civil penalty.
Subdivision 6 Committees
Clauses 109-111 require a trust board to establish a finance committee, an audit and risk
committee and a community advisory committee in accordance with guidelines made by the
Cemeteries Agency and contain provisions with respect to the membership and procedure of such
committees.
Subdivision 7 Miscellaneous
Clauses 112 and 113 contain provisions with respect to the powers exercisable by Crown
cemetery operators, including the powers to fix fees and charges.
Part 6 Legal proceedings and other matters
Division 1 Proceedings for offences
Clauses 114-117 are provisions with respect to proceedings for offences and the issue of penalty
notices.
Division 2 Civil penalty provisions
Clauses 118-128 are provisions with respect to proceedings in respect of civil penalty provisions.
Division 3 Civil infringement notices
Clauses 129 and 130 are provisions with respect to proceedings for the issue of civil infringement
notices in respect of civil penalty provisions.
Part 7 Investigation and enforcement powers
Division 1 Appointment of authorised officers
Clauses 131-133 provide for the appointment, scope of authority and identification of authorised
officers.
Division 2 Powers of authorised officers
Clauses 134-142 deal with the powers of authorised officers.
Division 3 Offences in relation to authorised officers
Clauses 143 and 144 make it an offence to obstruct an authorised officer in the exercise of his or
her functions under the proposed Act or to impersonate an authorised officer.
Part 8 Miscellaneous
Clause 145 provides for the service of documents under the proposed Act.
Clause 146 provides for the exchange of information between the Cemeteries Agency and
specified government agencies.
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Clause 147 protects certain persons from personal liability for acts or omissions done in good
faith.
Clause 148 enables the Governor to make regulations for the purposes of the proposed Act.
Clause 149 provides for the review of the proposed Act in 5 years.
Schedule 1 Members and procedure of Board
Schedule 1 contains provisions dealing with the constitution and procedure of the Board.
Schedule 2 Members and procedure of trust boards
Schedule 2 contains provisions dealing with the constitution and procedure of trust boards. These
substantially mirror Schedules 3 and 5 of the Crown Lands Act 1989.
Schedule 3 Savings, transitional and other provisions
Schedule 3 contains savings, transitional and other provisions consequent on the enactment of the
proposed Act.
Schedule 4 Conversion of cemeteries
Schedule 4 transfers the provisions of the Conversion of Cemeteries Act 1974 to the proposed Act
so as to enable its repeal and the consolidation of the provisions in the proposed Act.
Schedule 5 Transferred and other provisions relating to
certain cemeteries and crematoria
Schedule 5 transfers the provisions of a number of Acts and subordinate instruments relating to
certain cemeteries and crematoria so as to enable their repeal and the consolidation of the
provisions in one Act. It also enables regulations to be made modifying the application of those
provisions for the purposes of the proposed Act.
Schedule 6 Amendment of Acts and subordinate instruments
Schedule 6 makes consequential amendments to the Acts and subordinate instruments specified
in the Schedule. It also includes amendments to section 8 of the Summary Offences Act 1988 to
extend the application of that section to conduct related to an interment site in a cemetery.
Dictionary
The Dictionary to the proposed Act defines certain terms and expressions used in the proposed
Act.
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First print
New South Wales
Cemeteries and Crematoria Bill 2013
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Interpretation 2
5 Relationship of Act and Crown Lands Act 1989 and other legislation 2
Part 2 Administration
Division 1 Constitution and management of Cemeteries Agency
6 Constitution of Cemeteries and Crematoria NSW 4
7 Status of Cemeteries Agency 4
8 Control and management of Cemeteries Agency 4
9 Ministerial control of Cemeteries Agency 4
10 Staff of Cemeteries Agency 4
11 Delegation of functions 5
Division 2 Functions of Cemeteries Agency
Subdivision 1 Principal functions
12 Functions--generally 5
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13 Other functions 5
Subdivision 2 Ancillary functions
14 Reserve power to acquire land in the public interest 6
15 Arrangements with other persons and bodies 6
Division 3 The Board
Subdivision 1 Constitution of Board
16 Board of the Cemeteries Agency 6
Subdivision 2 Duties and liabilities of Board members
17 Interpretation 7
18 Care and diligence--civil obligation only 8
19 Disclosure of material personal interest--civil obligations 8
20 Use of position--civil obligations 9
21 Use of information--civil obligations 9
Division 4 Finance
22 The Cemeteries Agency Fund 10
23 Investment of money in Cemeteries Agency Fund 10
24 Interment service levies 10
25 Payment of penalties and fines into the Cemeteries Agency Fund 11
Part 3 Regulation of interment industry
Division 1 Preliminary
26 Definitions 12
27 Cemeteries and Crematoria Register 12
Division 2 Codes of practice
28 Codes of practice 13
29 Nature of codes of practice 13
30 Approval of codes of practice 13
Division 3 Interment industry schemes
31 Regulations relating to establishment of interment industry schemes 14
32 Consultation to be undertaken on regulations establishing interment
industry schemes 14
Division 4 Improvement notices
33 Issue of improvement notice by Cemeteries Agency 15
34 Failure to end contravention--civil obligation 15
35 Cemeteries Agency may take action to remedy consequences of
contravention 16
Division 5 Short term orders
36 Making of short term orders 16
37 Duration of short term orders 16
38 Compliance with short terms orders--civil obligation 16
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Cemeteries and Crematoria Bill 2013 [NSW]
Contents
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Division 6 Enforceable undertakings
39 Undertakings relating to contraventions of Act, regulations and
interment industry scheme 17
40 Enforcement of undertakings 17
Division 7 Management of cemetery operators
41 Performance reporting by cemetery and crematorium operators--civil
obligations 17
42 Records--civil obligation 18
43 Reports by cemetery and crematorium operators--civil obligations 18
Part 4 Interment rights and cemetery renewal
Division 1 Preliminary
44 Definitions 19
Division 2 Interment rights
Subdivision 1 Preliminary
45 Application of Division 19
Subdivision 2 Interment rights generally
46 Nature of interment right 20
47 Types of interment right 20
48 Duration of interment right 20
49 Exclusive interment rights may be bequeathed 20
50 Rules of intestacy to apply to interment rights not bequeathed 21
51 Interment right to pass to surviving joint holder 21
52 Revocation of perpetual interment rights 21
53 Compensation 22
Subdivision 3 Renewable interment rights
54 Grant and renewal of renewable interment rights 23
55 Re-use of interment sites and removal of memorials 24
Subdivision 4 Grant and transfer of interment rights generally
56 Grant of interment right 25
57 Content of interment right 25
58 Transfer of interment right to person other than a cemetery operator 26
59 Transfer of interment right to cemetery operator 26
60 Grant or transfer of interment right may be refused 26
61 Cemetery operator may determine holder of interment right 26
62 Interment right not required for scattering of cremated remains 27
Subdivision 5 Miscellaneous
63 Register of interment rights, memorials, cremations and interments 27
64 Keeping of register and documents 28
65 Certificates for interment rights 28
66 Exhumations 29
67 Order for interment 29
68 Hours of burial 29
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Cemeteries and Crematoria Bill 2013 [NSW]
Contents
Page
69 Heritage advisory committee 29
Division 3 Cemetery renewal
70 Implementation of renewal scheme 30
71 Proposed renewal scheme to be submitted to Cemeteries Agency for
approval to carry out consultation 30
72 Consultation about proposed renewal scheme 31
73 Submissions 32
74 Submission of renewal scheme to Cemeteries Agency 32
75 Cemeteries Agency's decision about renewal scheme 32
Division 4 Offence
76 Offence relating to conduct in cemeteries 33
Part 5 Operation of Crown cemeteries and crematoria
Division 1 Preliminary
77 Definitions 34
78 Exemption power--Cemeteries Agency 34
Division 2 Cemetery trust operators
Subdivision 1 Appointment of trust operators
79 Appointment of Crown cemetery operator 34
80 Membership of trust board 35
81 Appointment of corporation to operate Crown cemetery trust 35
82 Vacation of office by corporate manager 36
83 Appointment of administrator 36
84 Vacancies in office of administrator 36
85 Remuneration of administrator 36
86 Delegation of functions by Crown cemetery operators 37
Subdivision 2 Conduct of trust members
87 Interpretation 37
88 Care and diligence--civil obligation only 37
89 Use of position--civil obligations 38
90 Use of information--civil obligations 38
91 Notification of significant events 38
92 Codes of conduct 39
93 Disclosure of material personal interest by members of trust board--civil
obligations 39
94 Invitations for tenders 40
95 Liability of trust board, members and other persons 40
Subdivision 3 Strategic plans
96 Strategic plans 41
97 Guidelines for strategic plans 42
98 Amendment, replacement or revocation of strategic plan 42
Subdivision 4 Plans of management
99 Preparation of draft plan of management 42
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100 Guidelines for draft plans of management 42
101 Referral and exhibition of draft plans 43
102 Adoption of plan of management 43
103 Alteration or cancellation of plan 43
104 Plan of management for submerged land 44
Subdivision 5 Financial management, audits and reports
105 Annual report 44
106 Nature of report of operations 44
107 Additional information and audits--civil obligation 45
108 Inspection etc of Crown cemetery trust 45
Subdivision 6 Committees
109 Establishment and functions of committees 45
110 Membership and procedure of committees 46
111 Committee guidelines 46
Subdivision 7 Miscellaneous
112 Planning, conduct and maintenance 47
113 Fees and charges 47
Part 6 Legal proceedings and other matters
Division 1 Proceedings for offences
114 Nature of proceedings for offences 49
115 Persons who may commence proceedings 49
116 Time for commencing proceedings 49
117 Penalty notices for certain offences 49
Division 2 Civil penalty provisions
118 Definitions 50
119 When a provision is a civil penalty provision 50
120 Proceedings for contravention of civil penalty provision 50
121 Contravening a civil penalty provision is not an offence 51
122 Persons involved in contravening a civil penalty provision 51
123 Civil proceedings after criminal proceedings 51
124 Criminal proceedings during civil proceedings 51
125 Criminal proceedings after civil proceedings 51
126 Recovery of pecuniary penalty 51
127 Proceedings may be brought by Cemeteries Agency or authorised
officer 52
128 Evidence given in proceedings for pecuniary penalty order not
admissible in criminal proceedings 52
Division 3 Civil infringement notices
129 Object 52
130 When an infringement notice can be given 52
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Contents
Page
Part 7 Investigation and enforcement powers
Division 1 Appointment of authorised officers
131 Authorised officers 54
132 Scope of authority 54
133 Identification 54
Division 2 Powers of authorised officers
134 Interpretation 54
135 Purposes for which powers under Division may be exercised 55
136 Power to enter premises 55
137 Search warrants 56
138 Powers of authorised officers 56
139 Power to detain and search vehicles 57
140 Requirement to provide information and records 57
141 Requirement to state name and address 58
142 Provisions relating to requirements to provide documents or
information or answer questions 58
Division 3 Offences in relation to authorised officers
143 Offence: obstructing authorised officer 59
144 Offence: impersonating authorised officer 59
Part 8 Miscellaneous
145 Service of documents 60
146 Exchange of information 60
147 Personal liability 61
148 Regulations 61
149 Repeals 61
150 Review of Act 62
Schedule 1 Members and procedure of Board 63
Schedule 2 Members and procedure of trust boards 66
Schedule 3 Savings, transitional and other provisions 71
Schedule 4 Conversion of cemeteries 73
Schedule 5 Transferred and other provisions relating to certain
cemeteries and crematoria 80
Schedule 6 Amendment of Acts and subordinate instruments 87
Dictionary 91
Page 6
New South Wales
Cemeteries and Crematoria Bill 2013
No , 2013
A Bill for
An Act to make provision for and with respect to the management and operation of cemeteries and
crematoria; and for other purposes.
Cemeteries and Crematoria Bill 2013 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Cemeteries and Crematoria Act 2013. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Objects of Act 7
The objects of this Act are as follows: 8
(a) to recognise the right of all individuals to a dignified interment and treatment 9
of their remains with dignity and respect, 10
(b) to ensure that the interment practices and beliefs of all religious and cultural 11
groups are respected so that none is disadvantaged and adequate and proper 12
provision is made for all, 13
(c) to ensure that sufficient land is acquired and allocated so that current and 14
future generations have equitable access to interment services, 15
(d) to provide for the operation of a consistent and coherent regime for the 16
governance and regulation of cemeteries and crematoria, 17
(e) to ensure that the operators of cemeteries and crematoria demonstrate 18
satisfactory levels of accountability, transparency and integrity, 19
(f) to ensure that cemeteries and crematoria on Crown land are managed in 20
accordance with the principles of Crown land management specified in 21
section 11 of the Crown Lands Act 1989. 22
4 Interpretation 23
(1) Expressions used in this Act that are defined in the Dictionary have the meanings set 24
out in the Dictionary. 25
(2) Unless the contrary intention is shown, a reference in this Act to: 26
(a) a cemetery includes a reference to: 27
(i) a crematorium, and 28
(ii) a part of a cemetery or crematorium, and 29
(b) a cemetery operator includes a reference to: 30
(i) a crematorium operator, and 31
(ii) an operator of part of a cemetery or crematorium. 32
(3) An expression that is used in this Act and that is defined in the Crown Lands Act 1989 33
(not being an expression that is defined in this Act) has the same meaning in this Act 34
in relation to a Crown cemetery or Crown cemetery operator as it has in that Act in 35
relation to a reserve or person managing the affairs of a reserve trust, respectively. 36
Note. Expressions used in this Act (or in a particular provision of this Act) that are defined in 37
the Interpretation Act 1987 have the meanings set out in that Act. 38
(4) Notes included in this Act do not form part of this Act. 39
5 Relationship of Act and Crown Lands Act 1989 and other legislation 40
(1) Nothing in the Crown Lands Act 1989 or an instrument made under that Act 41
(including any by-law or plan of management for a reserve) prevents or restricts the 42
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Part 1 Preliminary
use of a reserve for anything that is authorised, permitted or required by or under this 1
Act. 2
(2) If provision is made both by or under the Crown Lands Act 1989 and this Act in 3
relation to the exercise of functions by, or in respect of, a Crown cemetery operator 4
in the same or substantially the same circumstances the function is not exercisable 5
under the Crown Lands Act 1989. 6
(3) In the event of any inconsistency between the provisions of this Act or the regulations 7
and a provision of the Crown Lands Act 1989 or any other State legislation that is 8
prescribed by the regulations as an inconsistent provision for the purposes of this 9
section, the provisions of this Act or the regulations (as the case may be) prevail to 10
the extent of the inconsistency. 11
(4) Except as expressly provided by this Act, this Act does not affect the operation of the 12
following or any other Acts, or any regulations made under those Acts, to the extent 13
that they apply to, or in respect of, the operation of cemeteries or crematoria: 14
(a) Aboriginal Land Rights Act 1983, 15
(b) Fair Trading Act 1987, 16
(c) Funeral Funds Act 1979, 17
(d) Heritage Act 1977, 18
(e) National Parks and Wildlife Act 1974, 19
(f) Public Health Act 2010, 20
(g) Threatened Species Conservation Act 1995. 21
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Part 2 Administration
Part 2 Administration 1
Division 1 Constitution and management of Cemeteries Agency 2
6 Constitution of Cemeteries and Crematoria NSW 3
There is constituted by this Act a body corporate with the corporate name of 4
Cemeteries and Crematoria NSW. 5
Note. Section 50 of the Interpretation Act 1987 provides for the powers of a statutory 6
corporation. 7
7 Status of Cemeteries Agency 8
(1) The Cemeteries Agency is a NSW Government agency. 9
(2) The Cemeteries Agency is, for the purposes of the Public Finance and Audit Act 10
1983, the Annual Reports (Departments) Act 1985, or any other Act prescribed by 11
the regulations, taken to be part of the Department. 12
8 Control and management of Cemeteries Agency 13
(1) All decisions relating to the functions of the Cemeteries Agency are to be made by 14
or under the authority of the Board. 15
(2) The Chief Executive Officer is responsible for the day-to-day management of the 16
affairs of the Cemeteries Agency, subject to the policies and directions of the Board. 17
Note. The Cemeteries Agency may delegate certain of its functions to the Chief Executive 18
Officer (who is a member of the Board) and other persons. However under section 11 (3) it 19
cannot delegate functions such as the power to issue a short term order. 20
(3) Any act, matter or thing done in the name of, or on behalf of, the Cemeteries Agency 21
by or under the authority of the Board or the Chief Executive Officer is taken to have 22
been done by the Cemeteries Agency. 23
9 Ministerial control of Cemeteries Agency 24
(1) The Cemeteries Agency is, in the exercise of its functions, subject to the control and 25
direction of the Minister, except in relation to the following: 26
(a) the contents of any advice, report or recommendation given to the Minister, 27
(b) decisions whether to grant, suspend or cancel a licence held by a particular 28
person under an interment industry scheme, 29
(c) decisions whether to institute civil or criminal proceedings in a particular case. 30
(2) The Minister must: 31
(a) give the Cemeteries Agency reasonable notice before giving it any direction 32
with respect to the exercise of its functions and provide it with an opportunity 33
to comment on the proposed direction within a time specified by the Minister, 34
and 35
(b) give the direction in writing. 36
(3) The Cemeteries Agency is to publish a copy of the direction in the Gazette. 37
10 Staff of Cemeteries Agency 38
(1) Persons may be employed in the Public Service to enable the Cemeteries Agency to 39
exercise its functions. 40
(2) The Cemeteries Agency may engage such consultants and independent contractors 41
as it requires to exercise its functions. 42
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Part 2 Administration
(3) The Cemeteries Agency may arrange for one or more police officers to be made 1
available (by way of secondment or otherwise) to perform services for the 2
Cemeteries Agency. 3
Note. See section 95A of the Police Act 1990. 4
11 Delegation of functions 5
(1) The Cemeteries Agency may delegate to an authorised person any of its functions, 6
other than this power of delegation. 7
(2) A delegate may sub-delegate to an authorised person any function delegated by the 8
Cemeteries Agency if the delegate is authorised in writing to do so by the Cemeteries 9
Agency. 10
(3) The following powers may not be delegated: 11
(a) the power under section 14 to acquire land in certain circumstances, 12
(b) the power under section 36 to make a short term order, 13
(c) the power under section 70 to approve a cemetery renewal scheme. 14
(4) In this section, authorised person means: 15
(a) a member of the Board, or 16
(b) a member of staff of a Government agency, or 17
(c) a person, or person of a class, prescribed by the regulations. 18
Division 2 Functions of Cemeteries Agency 19
Subdivision 1 Principal functions 20
12 Functions--generally 21
(1) The functions of the Cemeteries Agency include the following: 22
(a) to assess current and future interment needs and develop planning strategies 23
for cemetery space to meet those needs, 24
(b) to provide advice or make recommendations to the Minister in relation to the 25
sustainable use of cemetery and crematorium space and capacity, 26
(c) to develop, approve and promote voluntary codes of practice for cemeteries 27
and crematoria and report on adoption of those codes by the interment 28
industry, 29
(d) to provide advice or make recommendations to the Minister on the 30
establishment, implementation or alteration of interment industry schemes, 31
(e) to regulate the provision of services in relation to interment matters that are 32
subject to interment industry schemes, 33
(f) to keep under review the policies, operating procedures and activities of the 34
interment industry, including cemeteries, crematoria, providers of funeral 35
goods and services, and operators of funeral funds, 36
(g) to collect information and carry out research as is necessary to exercise its 37
functions. 38
(2) In exercising its functions, the Cemeteries Agency is to have regard to the objects of 39
this Act. 40
13 Other functions 41
(1) The Cemeteries Agency has such other functions as are conferred or imposed on it 42
by or under this or any other Act. 43
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Part 2 Administration
(2) The Cemeteries Agency may do all such supplemental, incidental or consequential 1
acts as may be necessary or expedient for the exercise of its functions. 2
Subdivision 2 Ancillary functions 3
14 Reserve power to acquire land in the public interest 4
(1) The Cemeteries Agency may: 5
(a) with the consent of the Minister and subject to such conditions as the Minister 6
thinks fit to impose do either or both of the following: 7
(i) acquire land by agreement (not compulsory process) for the purpose of 8
providing land for cemetery purposes, 9
(ii) transfer the land to a Crown cemetery trust or other operator or 10
prospective operator of a cemetery, or 11
(b) with the approval of the Minister administering the Crown Lands Act 1989 and 12
subject to such conditions as the Minister thinks fit to impose, require a Crown 13
cemetery trust to acquire land by agreement (not compulsory process) for the 14
purposes of the Crown cemetery under its care, control and management. 15
(2) The power under subsection (1) is to be exercised only if the Cemeteries Agency 16
considers it necessary or desirable to acquire the land to ensure equitable access to 17
interment services by one or more religious or cultural groups or the community 18
generally. 19
(3) The power under subsection (1) is to be exercised in relation to a Crown cemetery 20
trust only if the Cemeteries Agency and the Minister concerned: 21
(a) are satisfied that the Crown cemetery trust concerned has sufficient funds 22
available for the acquisition, and 23
(b) has taken into consideration the impact of the land acquisition on the trust, 24
including (without limitation) the long term financial implications for the care, 25
control and management of the additional land. 26
(4) For the purposes of the Public Works Act 1912, any acquisition of land under 27
subsection (1) (a) is taken to be an authorised work, and the Cemeteries Agency is, 28
in relation to that authorised work, taken to be the Constructing Authority. 29
(5) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply to or in respect 30
of works constructed on land acquired under this section. 31
15 Arrangements with other persons and bodies 32
The Cemeteries Agency may: 33
(a) appoint agents, and act as an agent, for other persons and bodies, and 34
(b) enter into arrangements with a government agency with respect to the exercise 35
under this Act of the functions of authorised officers. 36
Division 3 The Board 37
Subdivision 1 Constitution of Board 38
16 Board of the Cemeteries Agency 39
(1) There is to be a Board of the Cemeteries Agency. 40
(2) The Board is to consist of the following members: 41
(a) a person appointed by the Minister by instrument in writing as the Chair of the 42
Board, 43
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Part 2 Administration
(b) 3 persons appointed by the Minister by instrument in writing who, in the 1
opinion of the Minister, have professional expertise, qualifications or 2
experience that is relevant to the functions exercisable by the Board, 3
(c) the head of, or a person nominated by the head to represent each of the 4
following: 5
(i) the Department of Planning and Infrastructure, 6
(ii) the Office of Environment and Heritage, Department of Premier and 7
Cabinet, 8
(iii) NSW Fair Trading, Department of Finance and Services, 9
(iv) the Crown Lands Division, Department of Trade and Investment, 10
Regional Infrastructure and Services, 11
(d) a person nominated by the Director General of the Ministry of Health to 12
represent NSW Health, 13
(e) a person who: 14
(i) has knowledge and expertise relevant to local government matters, and 15
(ii) is appointed by the Minister after consultation with the head of, or a 16
person nominated by the head to represent, the Division of Local 17
Government, Department of Premier and Cabinet, Local Government 18
NSW and Local Government Managers Australia, NSW, 19
(f) the Chief Executive Officer. 20
(3) A person is not eligible to be a voting member of the Board if the person is an 21
interment industry participant. 22
(4) A member referred to in subsection (2) (c), (d), (e) or (f) (a non-voting member) is 23
not entitled to vote on any matter considered by the Board. 24
(5) The Minister is, by an instrument of appointment or a subsequent instrument, to 25
appoint one of the members referred to in subsection (2) (b) as the Deputy Chair of 26
the Board. 27
(6) In this section: 28
interment industry participant means a person who is: 29
(a) a proprietor, partner, shareholder or unit holder of a partnership, company, unit 30
trust scheme or other business or entity that is a cemetery operator, funeral 31
contribution fund, funeral director or other participant in the interment 32
industry, or 33
(b) a director, chief executive officer, manager, member of the management 34
committee or other office holder, or is otherwise involved in the control or 35
management, of such a participant, or 36
(c) is an employee of such a participant. 37
(7) Schedule 1 contains provisions with respect to the members and procedure of the 38
Board. 39
Subdivision 2 Duties and liabilities of Board members 40
17 Interpretation 41
A person is involved in a contravention of a provision of this Division if, and only 42
if, the person: 43
(a) has aided, abetted, counselled or procured the contravention, or 44
(b) has induced, whether by threats or promises, or otherwise, the contravention, 45
or 46
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Part 2 Administration
(c) has been in any way, by act or omission, directly or indirectly, knowingly 1
concerned in, or party to, the contravention, or 2
(d) has conspired with others to effect the contravention. 3
18 Care and diligence--civil obligation only 4
(1) Care and diligence--voting members of Board 5
A voting member of the Board must exercise his or her powers and discharge his or 6
her duties with the degree of care and diligence that a reasonable person would 7
exercise if the person: 8
(a) were a member of the Board in the Cemeteries Agency's circumstances, and 9
(b) occupied the office held by, and had the same responsibilities as, the member 10
of the Board. 11
Maximum civil penalty: $27,500. 12
(2) Business judgment rule 13
A voting member of the Board who makes a business judgment is taken to meet the 14
requirements of subsection (1), and the member's equivalent duties at common law 15
and in equity in respect of the judgment, if the member: 16
(a) makes the judgment in good faith for a proper purpose, and 17
(b) does not have a material personal interest in the subject matter of the judgment, 18
and 19
(c) informs the member about the subject matter of the judgment to the extent that 20
the member reasonably believes to be appropriate, and 21
(d) rationally believes that the judgment is in the best interests of the Cemeteries 22
Agency. 23
(3) The voting member's belief that the judgment is in the best interests of the 24
Cemeteries Agency is a rational one unless the belief is one that no reasonable person 25
in the member's position would hold. 26
Note. This subsection only operates in relation to duties under this section and the equivalent 27
duties at common law or in equity (including the duty of care that arises under the common law 28
principles governing liability for negligence)--it does not operate in relation to duties under any 29
other provision of this Act or under any other laws. 30
(4) In this section: 31
business judgment means any decision to take or not take action in respect of a 32
matter relevant to the functions of the Cemeteries Agency. 33
19 Disclosure of material personal interest--civil obligations 34
(1) If: 35
(a) a member of the Board has a direct or indirect material personal interest in a 36
matter being considered or about to be considered at a meeting of the Board, 37
and 38
(b) the interest appears to raise a conflict with the proper performance of the 39
member's duties in relation to the consideration of the matter, 40
the member must, as soon as possible after the relevant facts have come to the 41
member's knowledge, disclose the nature of the interest at a meeting of the Board. 42
Maximum civil penalty: $5,500. 43
(2) A disclosure by a member of the Board at a meeting of the Board that the member: 44
(a) is a member, or is in the employment, of a specified company or other body, or 45
(b) is a partner, or is in the employment, of a specified person, or 46
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Part 2 Administration
(c) has some other specified interest relating to a specified company or other body 1
or to a specified person, 2
is a sufficient disclosure of the nature of the interest in any matter relating to that 3
company or other body or to that person which may arise after the date of the 4
disclosure and which is required to be disclosed under this section. 5
(3) Particulars of any disclosure made under this section must be recorded by the 6
Cemeteries Agency in a book kept for the purpose and that book must be open at all 7
reasonable hours to inspection by any person. 8
(4) After a member of the Board has disclosed the nature of an interest in any matter, the 9
member must not, unless the Minister or the Board otherwise determines: 10
(a) be present during any deliberation of the Board with respect to the matter, or 11
(b) take part in any decision of the Board with respect to the matter. 12
Maximum civil penalty: $5,500. 13
(5) For the purposes of the making of a determination by the Board under subsection (4), 14
a member of the Board who has a direct or indirect material personal interest in a 15
matter to which the disclosure relates must not: 16
(a) be present during any deliberation of the Board for the purpose of making the 17
determination, or 18
(b) take part in the making by the Board of the determination. 19
(6) A contravention of this section does not invalidate any decision of the Board. 20
20 Use of position--civil obligations 21
(1) Use of position--member of the Board 22
A member of the Board must not improperly use his or her position to: 23
(a) gain an advantage for the member of the Board or someone else, or 24
(b) cause detriment to the Cemeteries Agency. 25
Maximum civil penalty: $27,500. 26
(2) A person who is involved in a contravention of subsection (1) contravenes this 27
subsection. 28
Maximum civil penalty: $27,500. 29
21 Use of information--civil obligations 30
(1) Use of information--former member of Board 31
A person who obtains information because they are, or have been, a member of the 32
Board must not improperly use the information to: 33
(a) gain an advantage for the member of the Board or someone else, or 34
(b) cause detriment to the Cemeteries Agency. 35
Maximum civil penalty: $27,500. 36
(2) The duty under subsection (1) continues after the person stops being a member of the 37
Board. 38
(3) A person who is involved in a contravention of subsection (1) contravenes this 39
subsection. 40
Maximum civil penalty: $27,500. 41
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Cemeteries and Crematoria Bill 2013 [NSW]
Part 2 Administration
Division 4 Finance 1
22 The Cemeteries Agency Fund 2
(1) There is to be established in the Special Deposits Account a Cemeteries and 3
Crematoria NSW Fund (the Cemeteries Agency Fund) into which is to be paid the 4
following: 5
(a) all money advanced to the Cemeteries Agency by the Treasurer or 6
appropriated by Parliament for the purposes of the Cemeteries Agency, 7
(b) all money directed or authorised to be paid into the Cemeteries Agency Fund 8
by or under this or any other Act, 9
Note. See, for example, section 6 (1) (f1) of the Public Reserves Management Fund 10
Act 1987. 11
(c) levies or other payments made under section 24, 12
(d) payments directed to be paid to the Cemeteries Agency under section 40, 13
(e) the proceeds of the investment of money in the Cemeteries Agency Fund, 14
(f) all money received by the Cemeteries Agency from any other source. 15
(2) Money may be paid from the Cemeteries Agency Fund for the following purposes: 16
(a) enabling the Cemeteries Agency to exercise its functions, 17
(b) the acquisition of land under section 14. 18
(3) All expenditure incurred by the Cemeteries Agency is to be paid from the Cemeteries 19
Agency Fund. 20
23 Investment of money in Cemeteries Agency Fund 21
The Cemeteries Agency may invest money in the Cemeteries Agency Fund: 22
(a) in the manner authorised by the Public Authorities (Financial Arrangements) 23
Act 1987, or 24
(b) if that Act does not confer power on the Cemeteries Agency to invest the 25
money, in any other manner approved by the Minister with the concurrence of 26
the Treasurer. 27
24 Interment service levies 28
(1) The Cemeteries Agency may levy the following: 29
(a) a contribution towards the cost of the administration of this Act to the extent 30
that it relates to cemeteries (a general levy), 31
(b) in special circumstances, a contribution towards the cost of acquiring 32
particular land under section 14 (a special levy). 33
(2) A general levy or special levy: 34
(a) may be imposed by reference to an interment service of a kind prescribed by 35
the regulations, and 36
(b) may be imposed on any person who is an operator of a cemetery, or an operator 37
of a class of cemetery, prescribed by the regulations, and 38
(c) is to be of an amount, or calculated in the manner, prescribed by the 39
regulations, and 40
(d) is payable in respect of the period prescribed by the regulations, and 41
(e) is to be paid within the time and in the manner specified by the Cemeteries 42
Agency by notice in writing to the person liable to pay the levy. 43
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(3) Without limiting subsection (2) (c), the regulations may provide for calculation of a 1
general levy by providing for the determination by the Cemeteries Agency of 2
adjustment of amounts in proportion to variations in the CPI. 3
(4) A special levy under this section must not exceed an amount in total prescribed by 4
the regulations. 5
(5) The regulations may make provision for or with respect to the following: 6
(a) the waiver, reduction, postponement or refund of any levy payable under this 7
section, 8
(b) exempting (whether conditionally or unconditionally) persons or persons of a 9
specified class from a requirement to pay a levy imposed under this section. 10
(6) The Cemeteries Agency is to ensure, as far as is reasonably practicable, that money 11
received from a general levy imposed under this section in relation to its functions 12
with respect to cemeteries is not used to cross-subsidise the expenses of the 13
Cemeteries Agency in carrying out any of its other functions. 14
(7) Nothing in this section prevents a cost of a kind referred to in this section from being 15
covered by a licence fee charged under an interment industry scheme. 16
(8) In this section: 17
CPI means the index known as the Weighted Average of Eight Capital Cities: All 18
Groups Consumer Price Index that is published quarterly by the Australian 19
Statistician. 20
25 Payment of penalties and fines into the Cemeteries Agency Fund 21
(1) Any monetary penalty or fine imposed for an offence under this Act or the 22
regulations or for the contravention of a civil penalty provision and recovered in 23
proceedings instituted by the Cemeteries Agency is to be paid into the Cemeteries 24
Agency Fund. 25
(2) If the amount paid into the Cemeteries Agency Fund under this section in any 26
financial year exceeds the maximum amount for the financial year, the amount of the 27
excess is to be paid into the Consolidated Fund. 28
(3) The maximum amount for a financial year is $250,000 or, if the regulations make 29
provision for the determination of the maximum amount for the financial year, the 30
maximum amount determined in accordance with those regulations. 31
(4) The regulations may make provision for the determination of the maximum amount 32
for a financial year by prescribing a maximum amount for a financial year or by 33
providing for the manner in which the maximum amount for a financial year is to be 34
determined. 35
(5) Any such regulation may be made only with the approval of the Treasurer. 36
(6) In this section, a reference to proceedings instituted by the Cemeteries Agency 37
includes: 38
(a) a reference to proceedings instituted under the direction or on behalf, or for the 39
benefit, of the Cemeteries Agency, and 40
(b) a reference to a penalty notice or civil infringement notice issued under Part 6 41
by or under the direction or on behalf of the Cemeteries Agency. 42
(7) In this section: 43
financial year means the period of 12 months commencing on 1 July in any year. 44
fine does not include any costs (including expenses or disbursements) payable by a 45
person under an order made by a court in proceedings for an offence under this Act 46
or the regulations. 47
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Cemeteries and Crematoria Bill 2013 [NSW]
Part 3 Regulation of interment industry
Part 3 Regulation of interment industry 1
Division 1 Preliminary 2
26 Definitions 3
In this Act: 4
interment industry means the following: 5
(a) cemetery operators, 6
(b) funeral directors, 7
(c) funeral funds within the meaning of the Funeral Funds Act 1979, 8
(d) any other persons, or persons of a class, prescribed by the regulations. 9
27 Cemeteries and Crematoria Register 10
(1) The Cemeteries Agency must keep a register of cemeteries and crematoria (the 11
Cemeteries and Crematoria Register). 12
(2) The Cemeteries and Crematoria Register may be kept in the way the Cemeteries 13
Agency decides. 14
(3) A cemetery operator must notify the Cemeteries Agency of the following matters for 15
inclusion on the Cemeteries and Crematoria Register: 16
(a) the name and location of the cemetery or crematorium, 17
(b) the name and address of the cemetery operator, 18
(c) the telephone number of the cemetery or the crematorium or the cemetery 19
operator, 20
(d) any other information required by the regulations to be included in that 21
register. 22
(4) The regulations may make provision for or with respect to the notification by a 23
cemetery operator of information contained in the Cemeteries and Crematoria 24
Register and changes in relation to that information. 25
(5) A cemetery operator must: 26
(a) provide the Cemeteries Agency with any information relating to the cemetery 27
that is required by this section to be included in the Cemeteries and Crematoria 28
Register, and 29
(b) notify the Cemeteries Agency of any material change in the information 30
provided by the cemetery operator for recording in that register within 14 days 31
(or such longer period as the Cemeteries Agency allows) after the change 32
occurs. 33
Maximum civil penalty: $2,200. 34
Note. A reference in this Part to a cemetery operator includes a reference to a crematorium 35
operator--see section 4 (2). 36
(6) The Cemeteries and Crematoria Register must be open for public inspection, without 37
charge, during ordinary business hours. 38
(7) The Cemeteries Agency must, at the request of the Director-General of the Ministry 39
of Health, provide NSW Health with a copy of the Cemeteries and Crematoria 40
Register. 41
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Part 3 Regulation of interment industry
Division 2 Codes of practice 1
28 Codes of practice 2
(1) Codes of practice may be developed and approved by the Cemeteries Agency on its 3
own initiative or in collaboration with all or any participants in the interment 4
industry, or one or more sectors of the interment industry, for the purpose of 5
providing guidance on any interment matter or other matter encompassed by the 6
objects of this Act. 7
(2) Despite subsection (1), the Cemeteries Agency cannot develop and approve a code 8
of practice to the extent it relates to any matter concerning the following: 9
(a) the disposal and handling of human remains (including the cremation of such 10
remains) that is regulated by or under the Public Health Act 2010--without the 11
concurrence of the Minister administering that Act, 12
(b) funeral funds that is regulated by or under the Funeral Funds Act 1979-- 13
without the concurrence of the Minister administering that Act, 14
(c) the supply of funeral goods and services that is regulated by or under the Fair 15
Trading Act 1987--without the concurrence of the Minister administering that 16
Act. 17
(3) A code of practice may apply to any one or more of the following: 18
(a) any specified activity or class of activities, 19
(b) all participants in the interment industry or a specified sector of the industry. 20
(4) In developing a code of practice on its own initiative, the Cemeteries Agency must 21
consult with representatives of the participants in the interment industry or specified 22
sector of the industry to whom the code of practice will apply and with any other 23
relevant stakeholders. 24
(5) A code of practice may refer to or incorporate, with or without modification, a 25
standard or other document prepared or published by a body specified in the code, as 26
in force at a particular time or from time to time. 27
29 Nature of codes of practice 28
Codes of practice are in the nature of guidelines and compliance is not mandatory 29
(except as provided by section 31 (2) (a) and (3)). 30
30 Approval of codes of practice 31
(1) The Cemeteries Agency may approve a code of practice for the purposes of this Act 32
and may vary or revoke an approved code of practice. 33
(2) As soon as practicable after approving a code of practice, or varying or revoking an 34
approved code of practice, the Cemeteries Agency must ensure that notice of the 35
approval, variation or revocation is published in the Gazette. 36
(3) An approval of a code of practice, or variation or revocation of an approved code of 37
practice, takes effect when notice of it is given under subsection (2). 38
(4) The Cemeteries Agency must ensure that a copy of each document applied, adopted 39
or incorporated (to any extent) by an approved code of practice is published in the 40
Gazette or is otherwise made available to the public. 41
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Cemeteries and Crematoria Bill 2013 [NSW]
Part 3 Regulation of interment industry
Division 3 Interment industry schemes 1
31 Regulations relating to establishment of interment industry schemes 2
(1) The regulations may establish schemes for or with respect to the interment industry 3
(interment industry schemes). 4
(2) Without limiting subsection (1), the regulations establishing an interment industry 5
scheme may make provision for or with respect to the following: 6
(a) requiring compliance with any or all provisions of a code of practice (a 7
mandatory code of practice requirement), 8
(b) requiring an operator of a cemetery to ensure adequate provision is made for 9
perpetual care of interment sites and the cemetery, 10
(c) requiring the licensing of any activity, person, business, premises, vehicle or 11
equipment in relation to the provision of interment services, 12
(d) the imposition of conditions on licences, 13
(e) the suspension or cancellation of licences, 14
(f) appeals, or reviews, by courts, tribunals and other bodies or persons of 15
decisions made under the regulations in relation to licences or applications for 16
the granting of licences, 17
(g) setting fees and charges that are necessary for the funding of the scheme. 18
(3) A person must comply with any requirement of an interment industry scheme that 19
applies to the person. 20
Maximum civil penalty: the amount specified in the interment industry scheme not 21
exceeding $27,500. 22
(4) A regulation may be made under subsection (1) only: 23
(a) with the concurrence of the Minister administering the Public Health Act 24
2010--if it impacts on an aspect of the disposal and handling of human 25
remains (including the cremation of such remains) regulated by or under that 26
Act, and 27
(b) with the concurrence of the Minister administering the Funeral Funds Act 28
1979--if it impacts on an aspect of the operation of funeral funds regulated by 29
or under that Act, and 30
(c) with the concurrence of the Minister administering the Fair Trading Act 31
1987--if it impacts on an aspect of the supply of funeral goods and services 32
for the arrangement and conduct of a funeral regulated by or under that Act. 33
32 Consultation to be undertaken on regulations establishing interment industry 34
schemes 35
(1) The Minister is to ensure that consultation with participants in the interment industry 36
generally or a sector of the interment industry is undertaken before the making of any 37
regulation that establishes an interment industry scheme. 38
(2) The provisions of section 5 (Regulatory impact statements) of the Subordinate 39
Legislation Act 1989 apply to a regulation that establishes an interment industry 40
scheme in the same way as they apply to a principal statutory rule (within the 41
meaning of that Act). 42
(3) Consultation is taken to have been undertaken on an interment industry scheme for 43
the purposes of subsection (1) if: 44
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Part 3 Regulation of interment industry
(a) notice of the proposed regulation establishing the interment industry scheme 1
has been published in accordance with section 5 (2) (a) of the Subordinate 2
Legislation Act 1989, and 3
(b) consultation on the regulation has taken place in accordance with section 5 (2) 4
(b) of that Act, and 5
(c) comments and submissions received have been appropriately considered in 6
accordance with section 5 (2) (c) of that Act. 7
Division 4 Improvement notices 8
33 Issue of improvement notice by Cemeteries Agency 9
(1) The Cemeteries Agency may give the operator of a cemetery a notice under this 10
subsection (a preliminary notice) if: 11
(a) the Cemeteries Agency believes on reasonable grounds that this Act or the 12
regulations or a provision of an interment industry scheme have been, or are 13
being, contravened in relation to the cemetery, and 14
(b) the contravention is not an offence against this Act or the regulations. 15
(2) The preliminary notice must: 16
(a) state the contravention and the reasons for the belief, and 17
(b) invite the operator to make written representations, within a stated period of 18
not less than 14 days, why the operator should not be required to end the 19
contravention or remedy the consequences of the contravention, or both. 20
(3) If, after considering any written representations made by the operator within the 21
stated period, the Cemeteries Agency is satisfied that the operator should be required 22
to end the contravention or remedy the consequences of the contravention, or both, 23
the Cemeteries Agency may give the operator a notice under this subsection (an 24
improvement notice). 25
(4) The improvement notice: 26
(a) must require the operator to end the contravention or remedy the consequences 27
of the contravention, or both, within a stated time, and 28
(b) may state the action the operator must take to comply with the notice, and 29
(c) if the notice requires the operator to end the contravention--must state that 30
failure to end the contravention, without reasonable excuse, within the stated 31
time, is a contravention of a civil penalty provision, and 32
(d) if the notice requires the operator to remedy the consequences of the 33
contravention--must state that, if the operator fails to remedy the 34
consequences within the stated time, the Cemeteries Agency may arrange for 35
action to be taken to remedy the consequences and that the operator will be 36
liable for the cost of taking the action. 37
(5) A cemetery operator who is given an improvement notice may appeal to the Tribunal 38
for a review of the decision to give the notice. 39
34 Failure to end contravention--civil obligation 40
The operator of a cemetery must not fail to end a contravention of this Act or the 41
regulations or a provision of an interment industry scheme as required by an 42
improvement notice given to the operator within the time stated in the notice. 43
Maximum civil penalty: $27,500. 44
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Part 3 Regulation of interment industry
35 Cemeteries Agency may take action to remedy consequences of contravention 1
(1) If the operator of a cemetery fails to remedy the consequences of a contravention of 2
this Act or the regulations or a provision of an interment industry scheme in 3
accordance with an improvement notice or any additional time allowed by the 4
Cemeteries Agency, the Cemeteries Agency may arrange for the action that it 5
considers necessary or desirable to remedy the consequences to be taken by or on 6
behalf of the State. 7
(2) The reasonable cost of any action taken under this section is a debt due to the 8
Cemeteries Agency payable by the operator. 9
Division 5 Short term orders 10
36 Making of short term orders 11
(1) The Cemeteries Agency may, by order in writing given to a person who is an operator 12
of a type or of a class of cemetery, or persons who belong to a class of such operators, 13
require the person or persons to take such action or refrain from taking such action 14
as is specified in the order (a short term order). 15
(2) The Cemeteries Agency may make a short term order if it considers the making of 16
the order to be reasonably necessary in the public interest to prevent or lessen a 17
serious threat or risk to the achievement of an object of this Act in the State or any 18
part of the State pending the making of a regulation under section 31 establishing an 19
interment industry scheme that makes provision for a mandatory code of practice 20
requirement. 21
(3) As soon as practicable after making a short term order, the Cemeteries Agency must 22
recommend to the Minister that the regulation referred to in subsection (2) be made 23
as a matter of urgency. 24
(4) A short term order may be made without the concurrence of the Ministers referred to 25
in section 31 (4). 26
37 Duration of short term orders 27
(1) A short term order takes effect on the day on which the order is given to the person 28
or persons concerned. 29
(2) The Cemeteries Agency may review a short term order on its own initiative or on the 30
application of a person to whom it relates. 31
(3) On a review, the Cemeteries Agency may confirm, vary or revoke the order. 32
(4) A short term order remains in force (unless sooner revoked by the Cemeteries 33
Agency) for the period of 12 months after the day on which it takes effect or until the 34
day the regulation referred to section 36 (2) is made, whichever occurs first. 35
38 Compliance with short terms orders--civil obligation 36
A person to whom a short term order is given must comply with any requirement 37
imposed on that person by that order. 38
Maximum civil penalty: $27,500. 39
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Part 3 Regulation of interment industry
Division 6 Enforceable undertakings 1
39 Undertakings relating to contraventions of Act, regulations and interment industry 2
scheme 3
(1) This section applies if the Cemeteries Agency considers that an act, or omission, of 4
a person constitutes a contravention of this Act, the regulations or a provision of an 5
interment industry scheme. 6
(2) The Cemeteries Agency may accept any of the following undertakings given by the 7
person: 8
(a) a written undertaking that the person will take specified action, or refrain from 9
taking specified action, in order to comply with the Act, the regulations or the 10
provisions of the interment industry scheme, 11
(b) a written undertaking that the person will take specified action directed 12
towards ensuring that the person does not commit a contravention of the Act, 13
regulations or provision of the interment industry scheme, or is unlikely to 14
commit such a contravention in the future, 15
(c) a written undertaking of a kind specified in the regulations. 16
(3) The person may withdraw or vary the undertaking at any time, but only with the 17
consent of the Cemeteries Agency. 18
(4) The Cemeteries Agency may, by written notice given to the person, cancel the 19
undertaking. 20
(5) The undertaking may be published in the Gazette. 21
40 Enforcement of undertakings 22
(1) The Cemeteries Agency may apply to the Local Court (or such other court or tribunal 23
as may be prescribed by the regulations) for an order under subsection (2) if: 24
(a) a person has given an undertaking under section 39 that has not been 25
withdrawn or cancelled, and 26
(b) the Cemeteries Agency considers the person has breached the undertaking. 27
(2) If the Local Court (or court or tribunal prescribed by the regulations) is satisfied that 28
the person has breached the undertaking, it may make any or all of the following 29
orders: 30
(a) an order directing the person to comply with the undertaking within a time (if 31
any) specified in the order, 32
(b) an order directing the person to pay to the Cemeteries Agency an amount up 33
to the amount of any financial benefit that the person has obtained directly or 34
indirectly and that is reasonably attributable to the breach, 35
(c) any other order that it considers appropriate, including an order directing the 36
person to compensate any other person who has suffered damage or loss as a 37
result of the breach. 38
Division 7 Management of cemetery operators 39
41 Performance reporting by cemetery and crematorium operators--civil obligations 40
(1) The Cemeteries Agency may, by notice in writing to each cemetery operator 41
concerned, require cemetery operators or cemetery operators of a class described in 42
the notice to report to the Cemeteries Agency on the operators' performance in 43
managing the cemeteries and on such other matters as the Cemeteries Agency 44
considers appropriate. 45
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Part 3 Regulation of interment industry
(2) Any such requirement may specify: 1
(a) the intervals at which operators must report to the Cemeteries Agency, and 2
(b) the performance management criteria against which the performance of 3
operators is to be assessed by the Cemeteries Agency. 4
(3) A cemetery operator must comply with any requirement imposed on the operator by 5
a notice under this section. 6
Maximum civil penalty: $9,900. 7
42 Records--civil obligation 8
A cemetery operator must keep such records (including accounting records) as may 9
be prescribed by the regulations or as may be required by the Cemeteries Agency by 10
notice in writing to the operator. 11
Maximum civil penalty: $9,900. 12
43 Reports by cemetery and crematorium operators--civil obligations 13
(1) A cemetery operator must provide reports to the Cemeteries Agency in the form, at 14
such times and concerning such matters or specifying such information, as may be 15
required by the Cemeteries Agency by notice in writing to the operator. 16
Maximum civil penalty: $9,900. 17
(2) A cemetery operator must, at the request of the Cemeteries Agency: 18
(a) give the Cemeteries Agency such information as the Agency reasonably 19
requires for the purpose of carrying out the Agency's functions under this Act, 20
and 21
(b) forward to the Cemeteries Agency specified records (including accounting 22
records), or copies of or extracts from specified records, kept by the operator. 23
Maximum civil penalty: $9,900. 24
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Part 4 Interment rights and cemetery renewal
Part 4 Interment rights and cemetery renewal 1
Division 1 Preliminary 2
44 Definitions 3
In this Part: 4
appropriate fee: 5
(a) in relation to a cemetery operator that is a Crown cemetery operator--means 6
the fee determined in relation to a matter by the operator under section 113, 7
and 8
(b) in relation to any other cemetery operator--means a fee determined in relation 9
to a matter by the operator. 10
cemetery operator's register means the register kept by a cemetery operator under 11
section 63. 12
holder of an interment right means the person recorded in the cemetery operator's 13
register in relation to that cemetery as the holder of the interment right. 14
interment of human remains means: 15
(a) the placement of human remains in a mausoleum, vault, columbarium or other 16
structure designed for the placement of such remains, or 17
(b) the burial in the earth of human remains (directly in the earth or in a container). 18
interment right means an interment right granted under this Part. 19
interment site means a place in a cemetery for the interment of human remains. 20
statutory renewal period--see section 48. 21
Division 2 Interment rights 22
Subdivision 1 Preliminary 23
45 Application of Division 24
(1) Except as provided by subsection (2), Subdivision 3 does not apply to or in respect 25
of, or affect, the following: 26
(a) any burial licence granted under the Crown Lands Act 1989 before the 27
commencement of this section, 28
(b) any right, licence or other entitlement in the nature of an interment right given 29
by contract or other agreement by the person responsible for the management 30
of the affairs of a cemetery before the commencement of this section. 31
(2) A burial licence or other entitlement referred to in subsection (1) is taken on the 32
commencement of this section to be an interment right granted under this Division 33
and if the interment right was granted or given: 34
(a) in perpetuity or without a fixed term--to have been granted or given (on the 35
same terms as it was originally granted or given) as a perpetual interment right, 36
or 37
(b) for a fixed term--to have been granted or given (on the same terms as it was 38
originally granted or given) for the fixed term, the end of which is taken, for 39
the purposes of this Division, to be the end of the statutory renewal period. 40
(3) In the application of this Division to a portion of a cemetery, a reference to a 41
cemetery is taken to include a reference to a portion of a cemetery. 42
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Part 4 Interment rights and cemetery renewal
(4) This Division does not affect the operation of any regulations under the Public 1
Health Act 2010 relating to cemeteries. 2
Subdivision 2 Interment rights generally 3
46 Nature of interment right 4
(1) A cemetery operator must: 5
(a) permit the interment of the remains of the person to whom it relates at the site 6
in a cemetery identified in, or in accordance with, the interment right, and 7
(b) permit the interment in accordance with the cultural or religious practice 8
applicable to the part of the cemetery in which the interment site is located at 9
the time the interment right is granted, and 10
(c) permit a memorial to the deceased person to be erected at the site with the 11
approval of the cemetery operator, and 12
(d) leave the remains undisturbed in perpetuity (or, in the case of a renewable 13
interment right, until such time as the remains may be disturbed or removed in 14
accordance with this Act) unless disturbance or removal at an earlier time is 15
requested or authorised by the holder of the interment right, and 16
(e) leave any memorial to the deceased person lawfully erected at that site, with 17
the permission of the cemetery operator, undisturbed (provided the interment 18
right remains in force and the memorial is kept in good repair) until such time 19
as the memorial may be disturbed in accordance with this Act unless 20
disturbance at an earlier time is requested or authorised by the holder of the 21
interment right. 22
(2) A cemetery operator must comply with the requirements of subsection (1) (d) and (e). 23
Maximum civil penalty: $27,500. 24
(3) Subject to the regulations, a cemetery operator must ensure that any remains of a 25
person that are disturbed or removed are dealt with in accordance with any cultural 26
or religious practices applicable to the remains. 27
47 Types of interment right 28
The cemetery operator may grant an interment right entitling the person or persons 29
to whom it is granted the exclusive right of interment in a specified interment site: 30
(a) in perpetuity (a perpetual interment right), or 31
(b) for the period an interment right granted under section 54 remains in force (a 32
renewable interment right). 33
48 Duration of interment right 34
An interment right remains in force: 35
(a) if it is a perpetual interment right--in perpetuity, and 36
(b) if it is a renewable interment right--until the end of the period commencing 37
on the day on which the interment right is granted and ending on the day the 38
interment right expires under section 54 (the statutory renewal period). 39
49 Exclusive interment rights may be bequeathed 40
(1) The holder of an interment right may (subject to section 51) bequeath the right as if 41
it were the holder's personal estate. 42
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Part 4 Interment rights and cemetery renewal
(2) A person to whom an interment right devolves as a result of a bequest does not 1
become the holder of the right until the cemetery operator's register is amended to 2
indicate that fact. 3
(3) On application made by a person to whom an interment right has devolved as a result 4
of a bequest, the cemetery operator must amend the cemetery operator's register so 5
as to indicate that the person has become the holder of the interment right. 6
(4) An application under this section must be in the form prescribed by the regulations 7
or approved by the Cemeteries Agency and accompanied by the appropriate fee. 8
(5) The executor or administrator (within the meaning of the Probate and 9
Administration Act 1898) of the estate of the holder of an interment right who has 10
bequeathed the interment right must give the relevant cemetery operator written 11
notice of the death of the holder within the period prescribed by the regulations after 12
the executor or administrator becomes aware of the death. 13
50 Rules of intestacy to apply to interment rights not bequeathed 14
(1) If the holder of an interment right dies and has not bequeathed the interment right, 15
the interment right is to be dealt with as if it were personal property forming part of 16
the estate of an intestate. 17
(2) A person to whom an interment right devolves as a result of intestacy does not 18
become the holder of the interment right until the relevant cemetery operator's 19
register is amended to indicate that fact. 20
(3) On application made by a person to whom an interment right has devolved as a result 21
of intestacy, the cemetery operator must amend the relevant cemetery operator's 22
register so as to indicate that the person has become the holder of the interment right. 23
(4) An application under this section must be in the form prescribed by the regulations 24
or approved by the Cemeteries Agency and accompanied by the appropriate fee. 25
51 Interment right to pass to surviving joint holder 26
On the death of a joint holder of an interment right, the remaining joint holder is, or 27
joint holders are, entitled to the interment right. 28
52 Revocation of perpetual interment rights 29
(1) A cemetery operator may revoke a perpetual interment right that the cemetery 30
operator, or any previous cemetery operator for the cemetery concerned, has granted 31
if the right conferred by the perpetual interment right is not exercised within 50 years 32
after it is granted. 33
(2) Before revoking a perpetual interment right under this section, the cemetery operator 34
must cause notice of its intention to do so to be sent, by registered post, to the person 35
(if any) shown in the relevant cemetery operator's register as the holder of the 36
perpetual interment right. 37
(3) If no response to the notice is received within 28 days after the date on which it is 38
sent, a second notice of the cemetery operator's intention is to be given by means of 39
an advertisement, identifying the interment site and the name of the holder: 40
(a) displayed in a prominent position at the crematorium, cemetery or portion of 41
a cemetery concerned, and 42
(b) published in the Gazette and in a newspaper circulating throughout the State. 43
(4) If no response to the second notice is received within 6 months after the date on 44
which it is advertised, final notice of the cemetery operator's intention is to be sent, 45
by registered post, to the person (if any) shown in the register as the holder of the 46
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Part 4 Interment rights and cemetery renewal
perpetual interment right allowing the holder 28 days from the date of the final notice 1
within which to enter into negotiations of the kind referred to in subsection (6). 2
(5) If the cemetery operator has insufficient information to properly address the notice 3
referred to in subsection (2) or (4), the operator is not required to send that notice but 4
may in that case begin the notification process by means of the notice referred to in 5
subsection (3) and may take any other notification action the operator considers 6
appropriate. 7
(6) At any time before the expiry of the period for responding to the final notice referred 8
to in subsection (4) (or, in the circumstances referred to in subsection (5), within 9
28 days after the last date on which an advertisement referred to in subsection (3) (b) 10
is published) the holder of the perpetual interment right concerned may enter into 11
negotiations with the cemetery operator for: 12
(a) the sale of the perpetual interment right, or 13
(b) the retention of the perpetual interment right. 14
(7) Any notice required to be displayed or published under this section may relate to 15
more than one interment site. 16
53 Compensation 17
(1) If a cemetery operator revokes the perpetual interment right for an interment site the 18
former holder of that interment right is entitled to the following (but no other 19
compensation or entitlement with respect to the revocation): 20
(a) to be granted a perpetual interment right for an alternative interment site in the 21
same cemetery (and, if available, in the same general location) as the original 22
interment site, 23
(b) to be paid by the cemetery operator, by way of compensation, an amount equal 24
to half of the fee payable (as provided by the cemetery operator's current scale 25
of fees) for the granting of a perpetual interment right for an alternative 26
interment site in the same cemetery (and, if available, in the same general 27
location) as the original interment site. 28
(2) If there is no alternative interment site available, or if there is no applicable scale of 29
fees, the amount of compensation referred to in subsection (1) (b) is to be half of the 30
fee payable for the granting of an interment right under the most recent applicable 31
scale of fees, varied in proportion to any variation in the Consumer Price Index (All 32
Groups Index) for Sydney that has occurred between the date on which that scale was 33
established and the date of revocation of the interment right. 34
(3) A cemetery operator must ensure that any report on its accounts contains an estimate 35
of its contingent liability with respect to any interment rights it has revoked. 36
(4) The cemetery operator may elect whether the former holder of the revoked interment 37
right is to be granted an alternative interment site or paid compensation. 38
(5) Despite section 58 (Transfer of interment right to a person other than cemetery 39
operator), if the former holder of the revoked interment right is granted an interment 40
right for an alternative interment site, that interment right may not be transferred by 41
the former holder within 5 years after the date on which it was granted. 42
(6) An application for an entitlement under this section: 43
(a) must be in the form approved by the Cemeteries Agency, and 44
(b) must be accompanied by the appropriate fee, and 45
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Part 4 Interment rights and cemetery renewal
(c) must be lodged with the cemetery operator within 6 years after the date on 1
which the relevant interment right was revoked. 2
Note. Pursuant to section 113 (8) the fee referred to in paragraph (b) if set by a Crown 3
cemetery operator is subject to variation or disallowance by the Cemeteries Agency. 4
(7) A former holder of a revoked interment right may apply to the Cemeteries Agency 5
for a review of any election of the cemetery operator under this section. 6
(8) The Cemeteries Agency's decision on such a review: 7
(a) is final, and 8
(b) is taken to be the decision of the cemetery operator, and 9
(c) is to be given effect to accordingly. 10
(9) In this section, former holder of a revoked interment right means the person who 11
held that right immediately before it was revoked. 12
Subdivision 3 Renewable interment rights 13
54 Grant and renewal of renewable interment rights 14
(1) Grant of right for initial term 15
A cemetery operator, on application and payment of the appropriate fee may grant to 16
one person (or to two or more persons as joint holders) a renewable interment right 17
in relation to a specified interment site in the cemetery: 18
(a) for the interment of human remains of the person or persons to whom the right 19
relates after they have been cremated (cremated remains)--for an initial term 20
of up to 99 years commencing on the day it is granted, and 21
(b) for the interment of human remains (other than cremated remains) of the 22
person or persons to whom the right relates-- for an initial term of 25 years 23
commencing on the day it is granted. 24
(2) A renewable interment right must not be granted in a portion of a cemetery 25
consecrated for use by a religious or cultural group that requires perpetual interment. 26
(3) Renewal of right on application 27
The cemetery operator, on application and payment of the appropriate fee: 28
(a) must renew an interment right that is due to expire within 12 months for a 29
further consecutive term of at least 5 years that when aggregated with the 30
initial term and any further terms of renewal does not exceed 99 years, and 31
(b) may, if the application is made on or after an interment of the human remains 32
of a person to whom the right relates, renew that right for a further consecutive 33
term of at least 5 years agreed with the holder of the right that when aggregated 34
with the initial term and any further terms of renewal does not exceed 99 years, 35
(c) must, if the application is made within 6 months after the day on which an 36
interment of the human remains of a person to whom the right relates occurs, 37
renew that interment right for a further consecutive term of at least 5 years that 38
when aggregated with the initial term and any further terms of renewal does 39
not exceed 99 years. 40
(4) Notice requirements concerning fees 41
The grant or renewal of a renewable interment right has no effect unless the cemetery 42
operator gives the applicant for the grant or renewal notice of the rights to renew the 43
renewable interment right under subsection (3) (a) and (c) on payment of a fee and 44
the manner in which the fee will be calculated. 45
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(5) A renewable interment right expires if it is not renewed before the end of a term for 1
which it is granted or renewed under this section. 2
(6) Subject to the regulations, a cemetery operator must, at least 12 months before a 3
renewable interment right granted by the cemetery operator is due to expire, take 4
reasonable steps to give the holder or holders of the renewable interment right written 5
notice setting out the entitlement (if any) to apply to renew the right and the fee for 6
doing so. 7
(7) A person who is the holder of a renewable interment right that has expired, or to 8
whom such a right relates, may apply for a new renewable interment right in relation 9
to the interment site to which the expired renewable interment right relates no later 10
than 2 years after the expiry. 11
(8) The regulations may prescribe a different period of any term of a renewable 12
interment right to a period specified in subsection (1) or (3). 13
55 Re-use of interment sites and removal of memorials 14
(1) Subject to this section and the regulations, if a renewable interment right in respect 15
of an interment site expires, the cemetery operator may at the end of the period of 16
2 years after it expires do the following: 17
(a) re-use the interment site to which the renewable interment right related, 18
(b) remove any memorial to a deceased person erected on or at the site. 19
(2) A cemetery operator must not re-use an interment site or remove any memorial to a 20
deceased person on an interment site unless: 21
(a) the cemetery operator has sought the advice (if any) required by section 69 (2) 22
of the heritage advisory committee for the cemetery concerned, and 23
(b) the cemetery operator has given notice of its intention to re-use the interment 24
site or remove the memorial in the Gazette and in a newspaper circulating 25
throughout the State, and 26
(c) the cemetery operator has taken reasonable steps to give notice of its intention 27
to re-use the interment site or remove the memorial to the holder of the 28
interment right listed in the cemetery operator's register, and 29
(d) in the case of the removal of a memorial--the cemetery operator has taken 30
reasonable steps to give notice of the steps that the person can take to reclaim 31
the memorial. 32
(3) Subsection (1) does not apply to an interment site on or at which a memorial of the 33
following kind is erected: 34
(a) a memorial that is an item of local heritage significance or State heritage 35
significance under the Heritage Act 1977, 36
(b) a memorial relating to a grave listed by the Office of Australian War Graves, 37
(c) a memorial in relation to a person who died from a prescribed infectious 38
disease within the meaning of Division 3 of Part 8 of the Public Health 39
Regulation 2012. 40
(4) Subject to subsection (6), before an interment site is re-used after the expiration of a 41
renewable interment right the cemetery operator must ensure: 42
(a) that any human remains of a deceased person (other than cremated remains) 43
buried in the earth found at the site are placed in an ossuary box and re-interred 44
at a greater depth or placed in an ossuary house or similar place, and 45
(b) that any cremated remains found at the site are returned to the holder of the 46
renewable interment right or scattered in the cemetery, and 47
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Part 4 Interment rights and cemetery renewal
(c) any other requirements prescribed by the regulations with respect to human 1
remains interred at the site are complied with. 2
(5) The cemetery operator must ensure that the human remains of a deceased person are 3
dealt with in accordance with any cultural or religious practice applicable in the part 4
of the cemetery in which the interment site is located when the human remains were 5
originally interred. 6
(6) Despite subsection (1), an interment site may not be re-used by a cemetery operator 7
unless: 8
(a) any human remains of a deceased person (other than cremated remains) that 9
are interred in the site have been interred for at least 10 years (or such other 10
period as may be prescribed by the regulations), and 11
(b) the cemetery operator considers the body is in a sufficiently decomposed state 12
to comply with subsection (4). 13
Maximum civil penalty (subsection (6) (a)): $27,500. 14
(7) The regulations may make provision for or with respect to: 15
(a) the re-use of interment sites and removal and disposition of memorials under 16
this section, and 17
(b) the notices and authorisations required before any thing is done under 18
subsection (1). 19
Subdivision 4 Grant and transfer of interment rights generally 20
56 Grant of interment right 21
(1) A cemetery operator may grant an interment right in respect of an interment site in a 22
cemetery. 23
(2) An application for an interment right must be in the form approved by the cemetery 24
operator and be accompanied by the appropriate fee. 25
(3) An interment right may be granted to one person or to 2 or more persons as joint 26
holders. 27
(4) A cemetery operator cannot, without the approval of the Cemeteries Agency, grant 28
or transfer an interment right to a person if the granting or transfer of the interment 29
right will result in the person holding (including jointly holding) interment rights in 30
respect of more than 2 interment sites in the cemetery for which the interment right 31
is sought or sought to be transferred. 32
57 Content of interment right 33
An interment right granted by a cemetery operator must: 34
(a) identify the person or persons to whom the right is granted, and 35
(b) identify the interment site to which the right relates, and 36
(c) specify the number of persons whose remains may be interred pursuant to the 37
right at that site, and 38
(d) identify the person or persons or class of persons whose remains may be 39
interred pursuant to the interment right or provide that a specified person or 40
person of a specified class may, at a future time, nominate the person or 41
persons whose remains may be interred pursuant to the interment right, and 42
(e) identify whether the interment right is granted as a perpetual interment right or 43
as a renewable interment right, and 44
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Part 4 Interment rights and cemetery renewal
(f) specify that the interment right may (subject to section 56 (4)) be transferred, 1
and 2
(g) subject to any applicable mandatory code of practice requirement imposed 3
under section 31, specify any other conditions on which the interment right is 4
granted. 5
58 Transfer of interment right to person other than a cemetery operator 6
(1) A cemetery operator may, on application, transfer an interment right from one person 7
or 2 or more persons as joint holders to one person or 2 or more other persons as joint 8
holders. 9
(2) An application under subsection (1) may be made only by the holder of the interment 10
right concerned or, if the interment right is held by joint holders, by all the joint 11
holders. 12
(3) An application for the transfer of an interment right must be in the form prescribed 13
by the regulations or approved by the Cemeteries Agency and be accompanied by the 14
appropriate fee. 15
59 Transfer of interment right to cemetery operator 16
A cemetery operator may enter into arrangements with the holder of an interment 17
right for the transfer of the interment right to the cemetery operator. 18
60 Grant or transfer of interment right may be refused 19
A cemetery operator may refuse to grant or transfer an interment right if, in the 20
operator's opinion, the grant or transfer would tend to create a monopoly or 21
encourage dealing in interment rights. 22
61 Cemetery operator may determine holder of interment right 23
(1) This section applies if there is a dispute or other doubt about who holds an interment 24
right for a particular interment site in a cemetery. 25
(2) A person who believes he or she is the holder of the interment right may apply to the 26
cemetery operator for the cemetery for a decision that the person holds the interment 27
right. 28
(3) As soon as practicable after receiving the application the cemetery operator must 29
make a decision about whether the person holds or does not hold the interment right 30
for the interment site. 31
(4) However, the cemetery operator may make a decision that the person holds the 32
interment right for the interment site only if: 33
(a) at least 28 days before making the decision, the cemetery operator: 34
(i) displays a notice about its intention to make the decision in a prominent 35
position at the cemetery, and 36
(ii) publishes a notice about its intention to make the decision in the Gazette 37
and in a newspaper circulating throughout the State, and 38
(iii) takes any other steps it considers reasonable in the circumstances to 39
determine who holds the interment right for the interment site, or 40
(b) in the reasonable opinion of the cemetery operator it is not possible to follow 41
the procedure in paragraph (a) because it is necessary to make an urgent 42
decision due to the imminent interment of a person who was related by blood 43
or marriage to, or who was in a domestic relationship with: 44
(i) the applicant, or 45
(ii) a person interred in the interment site. 46
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Part 4 Interment rights and cemetery renewal
(5) If the cemetery operator decides that the person holds the interment right for the 1
interment site, the cemetery operator is taken to have revoked any other interment 2
right for the interment site. 3
62 Interment right not required for scattering of cremated remains 4
No interment right is required for the scattering of cremated remains in a cemetery. 5
Subdivision 5 Miscellaneous 6
63 Register of interment rights, memorials, cremations and interments 7
(1) A cemetery operator for a cemetery must cause a register to be kept of the following 8
events: 9
(a) interment rights granted by the cemetery operator in respect of interment sites 10
in the cemetery after the commencement of this paragraph, 11
(b) memorials erected in respect of interment sites in the cemetery after the 12
commencement of this paragraph, 13
(c) each interment carried out in the cemetery after the commencement of this 14
paragraph, 15
(d) each cremation carried out at the cemetery after the commencement of this 16
paragraph, 17
(e) such other events (whether of the same or a different kind) as may be 18
prescribed by the regulations. 19
Maximum civil penalty: $2,200. 20
(2) A reference in this Act to the cemetery operator's register is a reference to the 21
register kept under subsection (1). 22
(3) The cemetery operator's register may be wholly or partly in the form of a computer 23
database, in documentary form, or in another form prescribed by the regulations and 24
is to contain such particulars as are required by the regulations. 25
(4) Without limiting subsection (3), the cemetery operator's register is to: 26
(a) identify (as far as possible) each holder of an interment right, and 27
(b) include contact details for that holder, and 28
(c) include the name, age and last address of the person whose remains have been 29
interred, the date of the person's death and the date of the interment, and 30
(d) include the name, age and last address of the person whose remains have been 31
cremated, the date of the person's death, the date of the cremation and details 32
of the disposal of the cremated remains. 33
(5) The cemetery operator must make an entry relating to an interment or cremation 34
immediately after the interment or cremation is carried out. 35
Maximum civil penalty: $2,200. 36
(6) The cemetery operator must keep a copy of the cemetery operator's register at the 37
cemetery and make it available for inspection on request by an authorised officer 38
within the meaning of this Act or the Public Health Act 2010. 39
Maximum civil penalty: $2,200. 40
(7) A cemetery operator must make the cemetery operator's register available for public 41
inspection free of charge. 42
(8) An entry in the cemetery operator's register of the particulars referred to in 43
subsection (4) is presumed (unless the contrary is proved) to be correct. 44
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(9) The cemetery operator may amend the cemetery operator's register from time to time 1
for any of the following purposes: 2
(a) to remove any inaccuracies contained in it, 3
(b) to record any changes to interment rights as a result of a transfer, revocation 4
or death of the holder of an interment right. 5
(10) The cemetery operator must, on application made by any person, make available to 6
the person a copy of any entry made in the cemetery operator's register in relation to 7
an interment right or memorial. 8
(11) Such an application must be in the form prescribed by the regulations or approved by 9
the Cemeteries Agency and accompanied by the appropriate fee. 10
(12) If a cemetery operator ceases to direct the operations of a cemetery, the cemetery 11
operator must ensure the cemetery operator's register is sent to the Cemeteries 12
Agency or otherwise disposed of as the Cemeteries Agency directs. 13
Maximum civil penalty: $2,200. 14
64 Keeping of register and documents 15
(1) A cemetery operator must keep all applications, certificates, permits and other 16
documents relating to any cremation carried out by it and mark them with a number 17
corresponding to the number allocated to the cremation in the cemetery operator's 18
register. 19
Maximum civil penalty: $2,200. 20
(2) Those documents (other than the register or any part of it) may be destroyed by the 21
cemetery operator after 15 years from the date of the cremation to which they relate. 22
(3) When a crematorium is closed, the cemetery operator concerned must send all 23
registers and documents relating to the cremations that have taken place at the 24
crematorium to the Cemeteries Agency or otherwise dispose of them as the 25
Cemeteries Agency may direct. 26
Maximum civil penalty: $2,200. 27
65 Certificates for interment rights 28
(1) A cemetery operator who grants or renews an interment right, or transfers an 29
interment right under section 58, must issue to the person to whom the right is 30
granted, renewed or transferred a certificate: 31
(a) stating that the person holds an interment right that is in force in relation to an 32
interment site described in the certificate and setting out the matters specified 33
in section 57, and 34
(b) setting out the notice required to have been given by section 54 (4). 35
(2) A statement in a certificate referred to in subsection (1) is presumed (unless the 36
contrary is proved) to be correct. 37
(3) If a certificate issued under this section is stolen, lost or destroyed, the cemetery 38
operator may, on application and payment of the appropriate fee issue a replacement 39
certificate. 40
(4) A certificate under this section is to be in a form prescribed by the regulations or 41
approved by the Cemeteries Agency. 42
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Part 4 Interment rights and cemetery renewal
66 Exhumations 1
(1) Exhumations are not to take place: 2
(a) except in accordance with the requirements of the regulations made under the 3
Public Health Act 2010, and 4
Note.See Division 4 of Part 8 of the Public Health Regulation 2012. 5
(b) unless an order for exhumation has been issued by the cemetery operator. 6
(2) Without limiting subsection (1), any exhumation is to be carried out in accordance 7
with any cultural or religious practice applicable to the dead person whose remains 8
are to be exhumed. 9
(3) In this section: 10
exhumation means the removal of a dead person's remains (not being cremated 11
remains) from a grave or vault, but does not include their removal from one vault for 12
immediate transfer to another vault in the same cemetery or their temporary removal 13
for the purposes of reburial in the same grave or vault or the re-interment of those 14
remains in accordance with section 55 (4). 15
67 Order for interment 16
(1) An interment must not take place in a cemetery unless the cemetery operator has 17
issued an order for interment. 18
(2) A cemetery operator must not unreasonably delay or withhold from making an order 19
for interment. 20
(3) A cemetery operator may set down the procedure to be followed to obtain an order 21
for interment. 22
68 Hours of burial 23
Interments are not to take place except at such reasonable times as the cemetery 24
operator may from time to time determine. 25
69 Heritage advisory committee 26
(1) The cemetery operator for a cemetery that offers renewable interment rights must 27
establish a heritage advisory committee: 28
(a) if burial licences or other entitlements referred to in section 45 (2) (b) were 29
offered by the cemetery before the commencement--as soon as practicable 30
after the commencement, and 31
(b) in any other the case-at least 3 years before the first renewable interment right 32
granted by the cemetery operator after the commencement of this section is 33
due to expire. 34
(2) Before removing any memorial that has not been reclaimed or moving any bodily 35
remains from an interment site, a cemetery operator required to establish a heritage 36
advisory committee by subsection (1) must seek the advice of the heritage advisory 37
committee as to the historical, scientific, cultural, social, archaeological, 38
architectural, natural or aesthetic value of the memorial and the appropriate action to 39
take to preserve its value. 40
(3) The Cemeteries Agency may, by order published in the Gazette, make guidelines for 41
or with respect to the constitution of a heritage advisory committee. 42
(4) A heritage advisory committee consists of such persons as the cemetery operator 43
considers (taking into account any guidelines made under subsection (3)) have 44
qualifications, knowledge and skills in areas relevant to the functions of the 45
committee. 46
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Part 4 Interment rights and cemetery renewal
(5) A heritage advisory committee member holds office for such period as is specified 1
in the instrument of appointment of the committee member, but any such 2
appointment may be terminated by the cemetery operator at any time. 3
(6) One of the advisory committee members, in and by the instrument by which the 4
committee member is appointed or another instrument made by the cemetery 5
operator, is to be appointed as chairperson of the committee. 6
(7) Subject to the regulations, the procedure for the calling and holding of meetings of a 7
heritage advisory committee is to be determined by the committee. 8
Division 3 Cemetery renewal 9
Note. This Division enables a cemetery operator to implement, with the approval of the Cemeteries Agency, 10
a renewal scheme for the cemetery by re-using interment sites in the cemetery and removing, re-locating or 11
disposing of memorials on the sites. Approval of a renewal scheme does not authorise the removal of the 12
remains of a deceased person from an interment site. 13
70 Implementation of renewal scheme 14
(1) The operator of a cemetery may, with the approval of the Cemeteries Agency, 15
implement a scheme (a renewal scheme) for the renewal of a portion of the cemetery 16
that has been used for interments to enable further interment sites to be located in the 17
portion. 18
(2) The operator of a cemetery may, in a portion of the cemetery that is subject to a 19
renewal scheme: 20
(a) remove, relocate or dispose of a memorial placed on the interment site, and 21
(b) erect in that portion of the cemetery a memorial recording the names and dates 22
of death of persons buried in the portion. 23
(3) A renewal scheme does not authorise the operator of a cemetery: 24
(a) to remove the remains of a deceased person from an interment site, or 25
(b) to otherwise disturb the remains of a deceased person in the portion of the 26
cemetery subject to the renewal scheme. 27
Note. Separate procedures set out in sections 55 and 66 must be followed before remains of 28
a deceased person may be removed from an interment site. 29
71 Proposed renewal scheme to be submitted to Cemeteries Agency for approval to 30
carry out consultation 31
(1) After preparing a proposed renewal scheme, the operator of a cemetery must: 32
(a) submit the scheme to the Cemeteries Agency for approval to carry out 33
consultation about the scheme, and 34
(b) advise the Cemeteries Agency if the operator intends to re-use any interment 35
site affected by the scheme in accordance with section 55. 36
(2) After considering the proposed renewal scheme, the Cemeteries Agency may decide: 37
(a) to approve the release of the scheme for consultation, with or without changes, 38
or 39
(b) to return the scheme to the operator for changes and re-submission to the 40
Cemeteries Agency. 41
(3) The Cemeteries Agency may also decide that the operator must consult with the 42
following about the proposed renewal scheme: 43
(a) the Heritage Council of New South Wales if the scheme affects an item of 44
local heritage significance, 45
(b) the local council for the area in which the cemetery is located, 46
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Part 4 Interment rights and cemetery renewal
(c) any other Commonwealth or State authority. 1
72 Consultation about proposed renewal scheme 2
(1) If the Cemeteries Agency approves the release of a proposed renewal scheme for 3
consultation, the operator of the cemetery concerned must: 4
(a) prepare and make available for public inspection a plan that shows the 5
following: 6
(i) the portion of the cemetery that is subject to the proposed renewal 7
scheme, 8
(ii) all existing used and unused interment sites within the portion, 9
(iii) details of the removal and relocation of any memorial placed on 10
interment sites within the portion, 11
(iv) the proposed layout and landscaping of the renewed portion, and 12
(b) send a notice to each holder of an interment right in the portion subject to the 13
proposed renewal scheme, at any address recorded for the holder in the 14
cemetery operator's register, informing the holder of the proposed scheme, 15
and 16
(c) not less than 12 months before the date the proposed renewal scheme is to 17
commence, place in a prominent position in the portion of the cemetery subject 18
to the renewal scheme, a notice that states the following: 19
(i) that the operator proposes to renew the portion of the cemetery, 20
(ii) where plans of the proposed renewal scheme may be inspected, 21
(iii) that written submissions may be made to the operator about the 22
proposed renewal scheme by the date, and in the way, specified in the 23
notice, and 24
(d) not less than 3 months before the date the proposed renewal scheme is to 25
commence, publish in the Gazette and at least once in a newspaper circulating 26
throughout the State a notice about the proposed renewal scheme that states 27
the following: 28
(i) that the operator proposes to renew the portion of the cemetery, 29
(ii) where plans of the proposed renewal scheme may be inspected, 30
(iii) that written submissions may be made to the operator about the 31
proposed renewal scheme by the date, and in the way, specified in the 32
notice, and 33
(e) if the Cemeteries Agency has decided the operator must consult with the 34
Heritage Council, prepare a statement of heritage impact for the proposed 35
renewal scheme and refer it to the Heritage Council. 36
(2) A reference in subsection (1) (b) to an interment right includes a reference to a burial 37
licence that was in force under the Crown Lands Act 1989 immediately before the 38
commencement of this section. 39
(3) In this section: 40
local heritage significance has the meaning it has in the Heritage Act 1977. 41
statement of heritage impact, in relation to a proposed renewal scheme that affects 42
an item of local heritage significance, means a statement that: 43
(a) identifies the local heritage item and its significance, and 44
(b) assesses and justifies the impact the proposed renewal scheme will have on the 45
significance of the heritage item. 46
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73 Submissions 1
(1) A submission about the proposed renewal scheme may be made by any person by the 2
date, and in the way, specified in the notice placed in the cemetery or published in 3
the newspaper. 4
(2) The holder of an interment right for an interment site may, in a submission, object to 5
the proposed renewal scheme concerned (a formal objection) if: 6
(a) in the case of an interment site to which a perpetual interment right relates-- 7
the scheme involves the revocation under section 52 of the holder's interment 8
right, or 9
(b) in the case of any other interment site (whether or not the subject of an 10
interment right)--the scheme involves the removal, relocation or disposal of a 11
memorial placed on the interment site. 12
(3) The operator must consider each submission made under subsection (1). 13
(4) After considering any submissions, including formal objections, the operator must 14
decide: 15
(a) to proceed with the proposed renewal scheme, with or without modifications, 16
or 17
(b) not to proceed with the proposed renewal scheme. 18
(5) The operator must not proceed with a proposed renewal scheme in respect of which 19
a formal objection has been made unless: 20
(a) the objection has been withdrawn, or 21
(b) the proposed renewal scheme has been modified so that it does not provide for 22
the revocation of the interment right, or provide for the removal, relocation or 23
disposal of a memorial placed on the interment site, that was the subject of the 24
formal objection. 25
74 Submission of renewal scheme to Cemeteries Agency 26
(1) If the operator decides to proceed with the proposed renewal scheme, the operator 27
must submit the renewal scheme to the Cemeteries Agency for approval. 28
(2) The proposed renewal scheme must: 29
(a) be accompanied by any written submissions received by the operator about the 30
renewal scheme, and 31
(b) indicate what modifications, if any, have been made to the renewal scheme 32
after the operator's consideration of the written submissions. 33
(3) Before making a decision about the proposed renewal scheme, the Cemeteries 34
Agency must obtain advice about the renewal scheme from the Minister 35
administering the Heritage Act 1977. 36
75 Cemeteries Agency's decision about renewal scheme 37
After considering any advice received from the Minister administering the Heritage 38
Act 1977, the Cemeteries Agency may decide to: 39
(a) approve the proposed renewal scheme, or 40
(b) approve the proposed renewal scheme with any modifications the Cemeteries 41
Agency considers appropriate, or 42
(c) reject the proposed renewal scheme. 43
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Division 4 Offence 1
76 Offence relating to conduct in cemeteries 2
A person must not, without lawful authority, in a cemetery: 3
(a) disturb or interrupt any service, procession or cortege, or 4
(b) inter any human remains (whether cremated or not). 5
Maximum penalty: 25 penalty units. 6
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Part 5 Operation of Crown cemeteries and crematoria
Part 5 Operation of Crown cemeteries and crematoria 1
Division 1 Preliminary 2
77 Definitions 3
In this Part: 4
Crown cemetery operator means the person or body having management of the 5
affairs of a Crown cemetery trust. 6
Note. The Crown cemetery operator for a Crown cemetery trust established on or after the 7
commencement of section 79 is the trust board or person having management of the affairs of 8
the trust under that section. The Crown cemetery operator for a Crown cemetery trust 9
established before that commencement is the trust board or person having management of 10
the affairs of the trust under section 92 (6) of the Crown Lands Act 1989 (as in force before 11
that section was amended by this Act). 12
Crown cemetery trust means a reserve trust established under the Crown Lands Act 13
1989 (whether before or after the commencement of this section) in relation to a 14
reserve or part of a reserve that is dedicated or reserved for the purposes of a public 15
cemetery or crematorium or a related purpose. 16
trust board, in relation to a Crown cemetery trust, means a trust board appointed 17
under section 80. 18
trust member, in relation to a Crown cemetery trust means the following: 19
(a) if the Crown cemetery operator is a trust board--a member of the trust board, 20
(b) if the Crown cemetery operator is a corporation--a director or other officer of 21
the corporation, 22
(c) if the Crown cemetery operator is the Minister or an administrator--the 23
Minister or administrator. 24
78 Exemption power--Cemeteries Agency 25
(1) The Cemeteries Agency may, by order in writing, exempt a Crown cemetery operator 26
or class of Crown cemetery operators, or a trust member or class of trust members, 27
from the operation of this Part or a specified provision of this Part if: 28
(a) it considers that they have duties or obligations under the provisions of another 29
Act, or a regulation, that are commensurate with the duties or obligations 30
under this Part or the provision concerned, or 31
(b) taking into account the scale and nature of operations of the cemetery 32
concerned, it considers it appropriate to do so. 33
(2) The exemption may be limited in duration or may be subject to such factors or 34
circumstances as may be specified in the order. 35
Division 2 Cemetery trust operators 36
Subdivision 1 Appointment of trust operators 37
79 Appointment of Crown cemetery operator 38
(1) The affairs of a Crown cemetery trust that is established after the commencement of 39
this section are to be managed: 40
(a) by the Minister, or 41
(b) if a trust board is appointed under section 80--by the trust board, or 42
(c) if a corporation is appointed under section 81--by the corporation, or 43
(d) if an administrator is appointed under section 83--by the administrator. 44
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(2) There can be more than one Crown cemetery operator for a Crown cemetery trust 1
with the function of managing the affairs of the trust allocated between the operators 2
by the Minister in accordance with the following provisions: 3
(a) the Minister can allocate the exercise of functions in respect of different 4
aspects of the affairs of the trust or different parts of the Crown cemetery to 5
different operators, as specified in the allocation or as determined by the 6
Minister, with those functions to be exercised in accordance with such 7
arrangements (if any) as may be determined by the Minister, 8
(b) the Minister is the Crown cemetery operator for any aspect of the affairs of a 9
Crown cemetery trust or any part of the Crown cemetery not allocated to 10
another operator and is accordingly allocated the function of managing the 11
affairs of the trust in respect of any such unallocated aspects of those affairs or 12
unallocated parts of the cemetery, 13
(c) a Crown cemetery operator has the function of managing the affairs of the 14
Crown cemetery trust only to the extent of the allocated functions and is, for 15
the purposes of this or any other Act or law, the Crown cemetery operator to 16
that extent only. 17
(3) Subject to this Division and the regulations, the provisions of the Crown Lands Act 18
1989 applying to or in respect of reserve trust managers referred to in section 92 of 19
that Act and the functions exercisable by them under that Act apply to and in respect 20
of a Crown cemetery operator referred to in this section. 21
80 Membership of trust board 22
(1) A trust board for a Crown cemetery trust is to consist of at least 3, but not more than 23
7, members (none of them being a corporation) appointed by the Minister by 24
instrument in writing and such number of ex officio members as are so appointed. 25
(2) The instrument of appointment is to specify: 26
(a) the duties and liabilities relating to the exercise of functions as a member of 27
the relevant trust board, and 28
(b) the consequences of any breach of duty. 29
(3) The appointment of a person as a member of a trust board is ineffective unless the 30
person has acknowledged the duties and liabilities imposed on the person as such a 31
member by signing the instrument appointing the person as a member. 32
(4) One of the members is, in and by the instrument of appointment as a member or 33
another instrument, to be appointed by the Minister as chairperson of the trust board. 34
(5) A member of a trust board is entitled to be paid such remuneration (including 35
travelling and subsistence allowances) as the Minister may from time to time 36
determine in respect of the member. 37
(6) Schedule 2 contains provisions with respect to the members and procedure of a trust 38
board. 39
81 Appointment of corporation to operate Crown cemetery trust 40
(1) The Minister may, by notification in the Gazette, appoint: 41
(a) a local council, or 42
(b) a corporation constituted by or under an Act providing for the holding, 43
managing of or dealing with church property, or 44
(c) any other corporation (including the Ministerial Corporation), 45
to manage the affairs of a Crown cemetery trust. 46
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Part 5 Operation of Crown cemeteries and crematoria
(2) A corporation so appointed has power to accept the appointment and to exercise all 1
the functions of a Crown cemetery operator despite the provisions of the Act by or 2
under which the corporation is constituted. 3
(3) A corporation may be appointed as a Crown cemetery operator for such term as may 4
be specified in the notification of appointment or by any subsequent notification in 5
the Gazette. 6
(4) The term of office of a corporation that has been appointed as the operator of a Crown 7
cemetery trust may be extended by the Minister from time to time by a further 8
notification in the Gazette. 9
(5) A local council may not be appointed to operate a Crown cemetery trust if the Crown 10
cemetery is wholly or partly within the area of another local council, except with the 11
consent of the other council. 12
(6) A document is sufficiently executed by a Crown cemetery trust operated by a 13
corporation if it is executed under the seal of the corporation instead of the seal of the 14
trust. 15
82 Vacation of office by corporate manager 16
(1) A corporation which is managing the affairs of a Crown cemetery trust vacates the 17
office if: 18
(a) it resigns its office by writing under its seal addressed to the Minister, or 19
(b) it is removed from office by the Minister, or 20
(c) it completes a term of office and is not re-appointed. 21
(2) The Minister may, by notification in the Gazette, remove such a corporation from 22
office at any time. 23
(3) If a corporation is removed from office by the Minister as the operator of a Crown 24
cemetery trust, no compensation is payable to the corporation because of the 25
corporation ceasing to hold office. 26
83 Appointment of administrator 27
(1) The Minister may, by notification in the Gazette, appoint an administrator to manage 28
the affairs of a Crown cemetery trust. 29
(2) Subject to this Act, an administrator holds office for such period as may be specified 30
in the administrator's instrument of appointment. 31
84 Vacancies in office of administrator 32
(1) The Minister may, by notification in the Gazette: 33
(a) remove an administrator from office, or 34
(b) fill a vacancy in the office of administrator. 35
(2) The office of an administrator becomes vacant if the administrator: 36
(a) completes a term of office, or 37
(b) resigns the office by instrument in writing addressed to the Minister, or 38
(c) is removed from office by the Minister under this section. 39
85 Remuneration of administrator 40
(1) If the Minister so directs, an administrator is entitled to be paid such remuneration as 41
the Minister directs. 42
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(2) The office of administrator is not, for the purposes of any Act, an office or place of 1
profit under the Crown. 2
86 Delegation of functions by Crown cemetery operators 3
(1) A Crown cemetery operator may, with the approval of the Cemeteries Agency, 4
delegate any of its functions (other than this power of delegation) as an operator to 5
any other person or body. 6
(2) Without limiting section 49 of the Interpretation Act 1987, a delegation by an 7
operator under subsection (1) may, with the approval of the Cemeteries Agency, be 8
revoked by an operator at any time. 9
(3) The regulations may make provision for or with respect to delegations under this 10
section. 11
(4) In particular, the regulations may require records to be kept of delegations of all or 12
any particular functions or the revocation of such delegations. 13
Subdivision 2 Conduct of trust members 14
87 Interpretation 15
A person is involved in a contravention of a provision of this Subdivision if, and 16
only if, the person: 17
(a) has aided, abetted, counselled or procured the contravention, or 18
(b) has induced, whether by threats or promises, or otherwise, the contravention, 19
or 20
(c) has been in any way, by act or omission, directly or indirectly, knowingly 21
concerned in, or party to, the contravention, or 22
(d) has conspired with others to effect the contravention. 23
88 Care and diligence--civil obligation only
(1) Care and diligence--trust members 24
A trust member must exercise his or her powers and discharge his or her duties with 25
the degree of care and diligence that a reasonable person would exercise if the 26
person: 27
(a) were a trust member in the Crown cemetery trust's circumstances, and 28
(b) occupied the office held by, and had the same responsibilities as, the trust 29
member. 30
Maximum civil penalty: $27,500. 31
(2) Business judgment rule 32
A trust member who makes a business judgment is taken to meet the requirements of 33
subsection (1), and the member's equivalent duties at common law and in equity in 34
respect of the judgment, if the member: 35
(a) makes the judgment in good faith for a proper purpose, and 36
(b) does not have a material personal interest in the subject matter of the judgment, 37
and 38
(c) informs themselves about the subject matter of the judgment to the extent that 39
the member reasonably believes to be appropriate, and 40
(d) rationally believes that the judgment is in the best interests of the Crown 41
cemetery trust. 42
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(3) The trust member's belief that the judgment is in the best interests of the Crown 1
cemetery trust is a rational one unless the belief is one that no reasonable person in 2
the member's position would hold. 3
Note. This subsection only operates in relation to duties under this section and the equivalent 4
duties at common law or in equity (including the duty of care that arises under the common law 5
principles governing liability for negligence)--it does not operate in relation to duties under any 6
other provision of this Act or under any other laws. 7
(4) In this section: 8
business judgment means any decision to take or not take action in respect of a 9
matter relevant to the business operations of the Crown cemetery trust. 10
89 Use of position--civil obligations 11
(1) Use of position--trust members 12
A trust member must not improperly use his or her position to: 13
(a) gain an advantage for the trust member or someone else, or 14
(b) cause detriment to the Crown cemetery trust. 15
Maximum civil penalty: $27,500. 16
(2) A person who is involved in a contravention of subsection (1) contravenes this 17
subsection. 18
Maximum civil penalty: $27,500. 19
90 Use of information--civil obligations 20
(1) Use of information--trust members 21
A person who obtains information because the person is, or has been, a trust member 22
must not improperly use the information to: 23
(a) gain an advantage for that trust member or someone else, or 24
(b) cause detriment to the Crown cemetery trust. 25
Maximum civil penalty: $27,500. 26
(2) The duty under subsection (1) continues after the person stops being a trust member. 27
(3) A person who is involved in a contravention of subsection (1) contravenes this 28
subsection. 29
Maximum civil penalty: $27,500. 30
91 Notification of significant events 31
(1) If a trust board decides to do any of the following things, the Crown cemetery 32
operator concerned must immediately give the Cemeteries Agency written 33
particulars of the decision: 34
(a) form a company or participate in the formation of a company, 35
(b) participate in a significant partnership, trust, unincorporated joint venture or 36
similar arrangement, 37
(c) acquire or dispose of a significant share holding in a company, 38
(d) acquire or dispose of a significant business, 39
(e) commence or cease a significant business activity, 40
(f) make a significant change in the nature or extent of its interest in a significant 41
partnership, trust, unincorporated joint venture or similar arrangement. 42
Note. Trust boards also have obligations under sections 101-109 of the Crown Lands Act 43
1989. 44
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(2) The Cemeteries Agency may give written guidelines to the trust board that are to be 1
used in deciding whether particulars are required to be given under subsection (1). 2
92 Codes of conduct 3
(1) A cemetery operator who manages the affairs of a Crown cemetery trust must, within 4
3 months after the commencement of this section or its establishment (whichever 5
first occurs) prepare and adopt a code of conduct to be observed by members of the 6
board of the trust and persons employed by it. 7
(2) The cemetery operator is to review its code of conduct at least every 3 years (or 8
within such other period as is prescribed by the regulations) and make such changes 9
as it considers appropriate. 10
(3) The code must include such matters as are prescribed by the regulations. 11
(4) In particular, the code may contain provisions for or with respect to the following 12
conduct: 13
(a) conduct that contravenes all or specified provisions of this Act or the 14
regulations in all or specified circumstances, 15
(b) improper or unethical conduct, 16
(c) abuse of power and other misconduct, 17
(d) the disclosure of interests (whether pecuniary or otherwise) that could conflict 18
with the proper performance of functions and avoidance of conflicts of 19
interest, 20
(e) the disclosure of confidential documents and information. 21
(5) The cemetery operator must provide a copy of its code of conduct as in force from 22
time to time to each member of the trust board and employee and ask them to 23
acknowledge their obligations under the code by signing it. 24
(6) A member of a trust board or employee must not contravene a code to which he or 25
she is a signatory. 26
(7) Nothing in this section or such a code gives rise to, or can be taken into account in, 27
any civil cause of action, and nothing in this section affects rights or liabilities arising 28
apart from this section. 29
93 Disclosure of material personal interest by members of trust board--civil obligations 30
(1) If: 31
(a) a member of a trust board has a direct or indirect material personal interest in 32
a matter being considered or about to be considered at a meeting of the trust 33
board, and 34
(b) the interest appears to raise a conflict with the proper performance of the 35
member's duties in relation to the consideration of the matter, 36
the member must, as soon as possible after the relevant facts have come to the 37
member's knowledge, disclose the nature of the interest at a meeting of the trust 38
board. 39
Maximum civil penalty: $5,500. 40
(2) A disclosure by a member of a trust board at a meeting of the trust board that the 41
member: 42
(a) is a member, or is in the employment, of a specified company or other body, or 43
(b) is a partner, or is in the employment, of a specified person, or 44
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(c) has some other specified interest relating to a specified company or other body 1
or to a specified person, 2
is a sufficient disclosure of the nature of the interest in any matter relating to that 3
company or other body or to that person which may arise after the date of the 4
disclosure and which is required to be disclosed under this section. 5
(3) Particulars of any disclosure made under this section must be recorded by the trust 6
board in a book kept for the purpose and that book must be open at all reasonable 7
hours to inspection by any person on payment of a fee of $25 (or such other amount 8
as may be prescribed by the regulations). 9
(4) After a member of a trust board has disclosed the nature of an interest in any matter, 10
the member must not, unless the Minister or the trust board otherwise determines: 11
(a) be present during any deliberation of the trust board with respect to the matter, 12
or 13
(b) take part in any decision of the trust board with respect to the matter. 14
Maximum civil penalty: $5,500. 15
(5) For the purposes of the making of a determination by the trust board under 16
subsection (4), a member who has a direct or indirect material personal interest in a 17
matter to which the disclosure relates must not: 18
(a) be present during any deliberation of the trust board for the purpose of making 19
the determination, or 20
(b) take part in the making by the trust board of the determination. 21
(6) A contravention of this section does not invalidate any decision of the trust board. 22
94 Invitations for tenders 23
(1) If it is disclosed to the members of a trust board, or they have reason to believe, that 24
a member of the board has or may have a direct or indirect material personal interest 25
in a proposed contract with the trust: 26
(a) the board must, by notice published in the Gazette and in a newspaper 27
circulating throughout the State, invite tenders for the proposed contract, and 28
(b) must not enter into the proposed contract unless satisfied that, in all the 29
circumstances of the case, none of the tenders submitted is more advantageous 30
than the proposed contract. 31
(2) The notice inviting tenders must: 32
(a) set out the nature of the work or services to be performed or the goods to be 33
supplied under the contract, and 34
(b) invite persons willing to perform the work or services or supply the goods to 35
submit tenders on or before a specified date (at least 21 days after publication 36
of the notice) to the trust. 37
(3) This section does not apply in the case of an emergency. 38
(4) A contravention of this section does not invalidate any decision of the trust board. 39
95 Liability of trust board, members and other persons 40
(1) A matter or thing done or omitted to be done by: 41
(a) a trust member (other than a director or officer of a corporation referred to in 42
subsection (2)) in the course of managing the affairs of a Crown cemetery 43
trust, or 44
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(b) a person acting under the direction of a trust member (other than a director or 1
officer of a corporation) in the course of managing the affairs of a Crown 2
cemetery trust, 3
does not, if the matter or thing was done or omitted to be done in good faith for the 4
purposes of executing this or any other Act, subject the trust member or a person so 5
acting personally to any action, liability, claim or demand. 6
(2) If a Crown cemetery trust is managed by a corporation, the corporation is jointly and 7
severally liable with the Crown cemetery trust: 8
(a) for any liability of the Crown cemetery trust, or 9
(b) if the corporation is managing the affairs of the Crown cemetery trust with 10
another person or body in accordance with section 92 (6B) of the Crown Lands 11
Act 1989--for the liability of the Crown cemetery trust to the extent only that 12
the liability relates to the functions of the corporation as the manager of the 13
trust. 14
Subdivision 3 Strategic plans 15
96 Strategic plans 16
(1) A strategic plan identifies the main priorities for the future of a Crown cemetery trust 17
for the period to which the plan relates. 18
(2) A Crown cemetery operator must: 19
(a) prepare a draft strategic plan for the management of the operation of each 20
Crown cemetery trust for which it is responsible in accordance with this 21
section, and 22
(b) submit the strategic plan to the Cemeteries Agency for review. 23
(3) A Crown cemetery operator who is responsible for more than one Crown cemetery 24
trust may prepare a single draft strategic plan for all those trusts. 25
(4) The first draft strategic plan for a Crown cemetery trust: 26
(a) that is established on or after the commencement of this section--must be 27
prepared within 12 months after it is established, or 28
(b) that was established before the commencement of this section--must be 29
prepared within 12 months of that commencement. 30
(5) Subsequent draft strategic plans must be prepared at such times as the Cemeteries 31
Agency directs. 32
(6) The strategic plan must be in the form and provide for such matters as may be 33
required by the Cemeteries Agency and must be prepared in accordance with any 34
guidelines made by the Cemeteries Agency under section 97. 35
(7) The Cemeteries Agency may require an operator to amend and re-submit a draft 36
strategic plan that is not prepared in accordance with the guidelines. 37
(8) The Cemeteries Agency may: 38
(a) approve a strategic plan, or 39
(b) approve a strategic plan with amendments, or 40
(c) refuse to approve a strategic plan. 41
(9) A Crown cemetery operator must advise the Cemeteries Agency if it wishes to 42
exercise its functions in a manner inconsistent with its approved strategic plan. 43
(10) A Crown cemetery operator must ensure that an approved strategic plan is published 44
in the Gazette and is made available to members of the public on request. 45
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97 Guidelines for strategic plans 1
(1) The Cemeteries Agency may, by order published in the Gazette, make guidelines for 2
or with respect to strategic plans, including but not limited to the content and duration 3
of plans. 4
(2) The Cemeteries Agency must provide a copy of any guidelines made for or with 5
respect to a Crown cemetery trust under this section to the Crown cemetery operator 6
concerned. 7
(3) The Cemeteries Agency may make any other arrangements that it considers 8
necessary to ensure that strategic plans are readily accessible to the public. 9
(4) The guidelines take effect on the date specified in the guidelines. 10
(5) A failure to comply with subsection (2) does not affect the validity of any guidelines 11
made under this section. 12
98 Amendment, replacement or revocation of strategic plan 13
(1) A strategic plan may be amended or replaced by a subsequent such plan prepared and 14
approved in accordance with this Subdivision. 15
(2) The Cemeteries Agency may revoke a strategic plan, wholly or in part. 16
(3) The amendment or revocation of a strategic plan under this section takes effect: 17
(a) on the day notice of the amendment or revocation is published by the 18
Cemeteries Agency in the Gazette, or 19
(b) on a later day specified in a notice under paragraph (a). 20
Subdivision 4 Plans of management 21
99 Preparation of draft plan of management 22
(1) The Cemeteries Agency may direct a Crown cemetery operator to prepare a draft 23
plan of management for a cemetery for which a Crown cemetery trust has been 24
established and the affairs of which are managed by the operator. 25
(2) A Crown cemetery operator may, with the consent of the Cemeteries Agency, 26
prepare such a draft plan on the operator's own initiative. 27
(3) The Crown cemetery operator must forward a copy of the draft plan to the 28
Cemeteries Agency. 29
(4) If the Cemeteries Agency directs a Crown cemetery operator to prepare a draft plan 30
of management, the operator must: 31
(a) prepare it within the time directed by the Cemeteries Agency, and 32
(b) forward a copy of it to the Cemeteries Agency. 33
(5) The draft plan of management must be in the form, and provide for such matters, as 34
may be required by the Cemeteries Agency and must be prepared in accordance with 35
any guidelines made by the Cemeteries Agency under section 100. 36
(6) A Crown cemetery operator who is responsible for more than one Crown cemetery 37
trust may prepare a single draft plan of management for all cemeteries the subject of 38
those trusts. 39
100 Guidelines for draft plans of management 40
(1) The Cemeteries Agency may, by order published in the Gazette, make guidelines for 41
or with respect to draft plans of management, including but not limited to the content 42
and duration of plans. 43
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(2) The Cemeteries Agency must: 1
(a) provide a copy of any guidelines made for or with respect to a Crown cemetery 2
trust to the Crown cemetery operator concerned, and 3
(b) publish the guidelines in the Gazette. 4
(3) The Cemeteries Agency may make any other arrangements that it considers 5
necessary to ensure that plans of management are readily accessible to the public. 6
(4) The guidelines take effect on the date specified in the guidelines. 7
(5) A failure to comply with subsection (2) does not affect the validity of any guidelines 8
made under this section. 9
101 Referral and exhibition of draft plans 10
(1) If a draft plan of management for a Crown cemetery is prepared, the Cemeteries 11
Agency: 12
(a) may refer a copy of it to any other person for consideration, and 13
(b) must place a copy of it on public display for not less than 28 days or direct the 14
Crown cemetery operator concerned to place a copy of it on public display for 15
not less than 28 days. 16
(2) Any person may make representations concerning the draft plan to the Cemeteries 17
Agency within the time allowed by it. 18
(3) The Cemeteries Agency must consider any such representations before adopting the 19
draft plan. 20
102 Adoption of plan of management 21
(1) The Cemeteries Agency may adopt a plan of management for a Crown cemetery 22
without alteration or with such alterations as it thinks fit. 23
(2) The Cemeteries Agency must not adopt a plan of management that provides for the 24
Crown cemetery to be used for any purpose other than a cemetery. 25
(3) If a plan of management is adopted: 26
(a) the Crown cemetery operator concerned must carry out and give effect to it, 27
and 28
(b) no operations may be undertaken on or in relation to the cemetery unless they 29
are in accordance with the plan. 30
103 Alteration or cancellation of plan 31
(1) The Cemeteries Agency may from time to time alter a plan of management adopted 32
under this Subdivision or may cancel the plan. 33
(2) If a plan of management is cancelled, a new plan of management may be adopted, at 34
the same time or later, in accordance with this Subdivision. 35
(3) The Cemeteries Agency must cause or direct a proposed alteration of a plan to be 36
prepared and the alteration is to be prepared, referred and adopted as if it were a plan 37
of management. 38
(4) The plan as altered may not include use of the cemetery for an additional purpose. 39
(5) The plan as altered becomes the plan adopted for the purposes of this Subdivision. 40
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104 Plan of management for submerged land 1
(1) If land usually submerged by water is wholly or partly the subject of a plan of 2
management, the Minister must refer the plan to the Minister administering the 3
Fisheries Management Act 1994 before adopting it. 4
(2) The plan may not be adopted, altered or cancelled, in so far as it relates to the 5
submerged land, except with the concurrence in writing of the Minister administering 6
that Act. 7
Subdivision 5 Financial management, audits and reports 8
105 Annual report 9
(1) A Crown cemetery operator for a Crown cemetery trust must, within 4 months after 10
the end of each financial year, submit an annual report of the Crown cemetery trust 11
for the financial year to the Cemeteries Agency. 12
(2) The annual report must include the following: 13
(a) an audited financial statement for the period to which the report relates, 14
(b) a report about the operations of the trust and the performance of its functions 15
under this Act during the period to which the annual report relates prepared in 16
accordance with this Act and the regulations, 17
(c) such financial reports, opinions, budgets, reports and other matters as may be 18
prescribed by the regulations. 19
(3) The financial statement is to be prepared in accordance with Australian Accounting 20
Standards. 21
(4) The financial statement is to be audited by an independent auditor and a report is to 22
be provided by the auditor. 23
(5) A person is not qualified to be an auditor for the purposes of this section unless the 24
person is a registered company auditor (within the meaning of the Corporations Act 25
2001 of the Commonwealth). 26
(6) An auditor of a Crown cemetery trust is not an independent auditor: 27
(a) if (otherwise than as an auditor) the person is an officer or employee of the 28
trust, or 29
(b) if the person is a partner, employer, employee, spouse, de facto spouse or 30
immediate family member of a person who is (otherwise than as an auditor) an 31
officer or employee of the trust. 32
(7) The Cemeteries Agency may extend, or further extend, the period for submission of 33
an annual report to it by a total period of up to 3 months. 34
(8) In this section: 35
Australian Accounting Standards means Accounting Standards issued by the 36
Australian Accounting Standards Board. 37
106 Nature of report of operations 38
(1) The report about the operations referred to in section 105 must include (whether in 39
the following order or otherwise) particulars in relation to any strategic plan or plan 40
of management in force for the cemetery for which the Crown cemetery trust 41
concerned was established. 42
(2) The report about the operations must, in addition to the matters referred to in 43
subsection (1), include such particulars, if any, as may be prescribed by the 44
regulations in relation to such matters. 45
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(3) The report of the operations is to be prepared in such manner, if any, and such form, 1
if any, as may be prescribed by the regulations. 2
107 Additional information and audits--civil obligation 3
(1) The Cemeteries Agency may, at any time, by notice in writing direct a Crown 4
cemetery operator to provide, within such time, if any, as is specified in the direction, 5
as part of the annual report referred to in section 105 or by means of a separate report, 6
such information relating to the financial report or operations, or both, of the Crown 7
cemetery trust as is so specified. 8
(2) The Crown cemetery operator must comply with a direction given to the operator 9
under subsection (1). 10
Maximum civil penalty: $19,800. 11
108 Inspection etc of Crown cemetery trust 12
(1) The Cemeteries Agency may appoint a person to inquire into, or carry out an audit 13
of, any of the affairs of a Crown cemetery trust. 14
(2) The person appointed may, for the purposes of the inquiry or audit: 15
(a) inspect and take copies of or extracts from any records (including accounting 16
records) of the trust, or 17
(b) require any person concerned in the management of the trust to give 18
information and answer questions relating to the affairs of the trust. 19
(3) The power of the appointed person to inspect the records of a Crown cemetery trust 20
includes the power to inspect any records of a lessee or licensee which the trust has 21
power to inspect under the lease or licence. 22
(4) A person must not: 23
(a) refuse or fail without lawful excuse to allow the appointed person access to 24
records to which the person is entitled, or 25
(b) refuse or fail without lawful excuse to give information or answer questions, 26
as required by the appointed person, or 27
(c) wilfully obstruct or delay the appointed person in the exercise of a function 28
under this section. 29
Maximum penalty: 100 penalty units. 30
Subdivision 6 Committees 31
109 Establishment and functions of committees 32
(1) A trust board: 33
(a) must establish: 34
(i) a finance committee, and 35
(ii) an audit and risk committee, and 36
(iii) a community advisory committee to liaise with communities to which 37
the trust board provides cemetery services, and 38
(b) may establish any other committee as it determines from time to time. 39
(2) A trust board must establish the committees referred to in subsection (1) (a) within 40
12 months after the commencement of this section or the appointment of the trust 41
board (whichever first occurs). 42
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(3) A finance committee or audit and risk committee: 1
(a) must consider any matters that are referred to it by the trust board, and 2
(b) may investigate and make inquiries about any matter referred to it by the trust 3
board, and 4
(c) must report back to the trust board as required by the trust board, and 5
(d) must carry out any other function conferred on it by or under this or any other 6
Act or by the Cemeteries Agency. 7
(4) A community advisory committee: 8
(a) must consider any matters that are referred to it by the trust board, and 9
(b) must report back to the trust board as required by the trust board, and 10
(c) must raise with the trust board any issues of concern or matters of interest to 11
the community regarding the cemetery services provided by the trust board, 12
and 13
(d) must carry out any other function conferred on it by or under this Act or by the 14
trust board. 15
(5) A trust board must consider any matter that is the subject of a report, or that is raised 16
by, a finance committee, audit and risk committee or community advisory committee 17
under this section. 18
110 Membership and procedure of committees 19
(1) A committee established under section 109 consists of the persons appointed by the 20
trust board, in accordance with any applicable committee guidelines made under 21
section 111. 22
(2) It does not matter that any or all members of the committee are not members of the 23
trust board. 24
(3) The procedure of the committee is to be determined by the committee, subject to this 25
Act and any applicable committee guidelines made under section 111 and except as 26
otherwise determined by the trust board. 27
111 Committee guidelines 28
(1) The Cemeteries Agency may, by order published in the Gazette, make guidelines for 29
or with respect to any committee established under this Subdivision, including but 30
not limited to the following: 31
(a) the appointment of members of the committee, 32
(b) the composition, roles and functions of the committee, 33
(c) the procedure of the committee, 34
(d) any other matter relating to the operation of the committee. 35
(2) The Cemeteries Agency must provide a copy of any guidelines made for or with 36
respect to a committee under this section to the trust board that established the 37
committee. 38
(3) The guidelines take effect on the date specified in the guidelines. 39
(4) A failure to comply with subsection (2) does not affect the validity of any guidelines 40
made under this section. 41
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Subdivision 7 Miscellaneous 1
112 Planning, conduct and maintenance 2
The Crown cemetery operator for a cemetery may make such provision as it 3
considers necessary for the following: 4
(a) the setting aside of parts of the cemetery for different types and classes of 5
interments, 6
(b) the establishment of standards of construction and design for monuments and 7
structures, 8
(c) the size, multiple use and location of interment sites, 9
(d) interments in vaults, 10
(e) the erection or installation of structures and the making of inscriptions, 11
(f) the carrying out of work by monumental masons, 12
(g) the qualifications required by, and the security deposits required to be lodged 13
by, monumental masons, 14
(h) the removal, replacement and maintenance of structures, 15
(i) the placing of vases, statuettes, jars, bottles or other items of embellishment on 16
or near graves, monuments, crypts or vaults, 17
(j) the improvement and maintenance of the cemetery, 18
(k) the making of arrangements for the care of interment sites on an annual (or 19
longer term) or other basis, 20
(l) the supply of goods and services incidental to the conduct of interments and 21
other matters relating to the cemetery, 22
(m) the conduct of religious or other ceremonies of interment or commemoration, 23
(n) the disposition and memorialisation of cremated human remains, 24
(o) landscaping and setbacks from stormwater and drainage canals and similar 25
watercourses and structures, 26
(p) any other matter relating to the management of the cemetery so long as the 27
provision made is consistent with any direction given by the Minister. 28
113 Fees and charges 29
(1) A Crown cemetery operator may from time to time set the fees or charges payable 30
with respect to the following: 31
(a) grant of interment rights (including the renewal of renewable interment rights) 32
with respect to interment sites in the cemetery under Part 4, 33
(b) use of the whole or any part of the cemetery and any building, structure or 34
enclosure in the cemetery, 35
(c) parking or use of any vehicle or class of vehicles in the cemetery, 36
(d) use of electricity, gas and water, 37
(e) rubbish disposal and cleaning of the cemetery, 38
(f) removal of effluent. 39
(2) The Crown cemetery operator may from time to time set the fees or charges payable 40
for the services provided in respect of the cemetery. 41
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(3) In setting fees and charges, the Crown cemetery operator is to have regard to the 1
following: 2
(a) any contractual arrangements entered into by the responsible operator in 3
relation to the cemetery, 4
(b) the number of intended interments or cremations, 5
(c) the costs of developing the land to be used for interment sites, 6
(d) future maintenance, 7
(e) infrastructure costs. 8
(4) Notice of the fees or charges payable under subsection (1) (b)-(f) and (2) is to be 9
published in the Gazette or in another manner prescribed by the regulations, or both. 10
(5) The Crown cemetery operator is to give the Cemeteries Agency notice of a fee or 11
charge set by it within 3 months (or such other period as may be prescribed by the 12
regulations) after the fee or charge is set. 13
(6) The Crown cemetery operator may in any particular case waive payment of the whole 14
or any part of any fee or charge set under this section. 15
(7) Without limiting subsection (6), a Crown cemetery operator may waive payment of 16
part of a fee or charge that is referable to the unexpired portion of a renewable 17
interment right. 18
(8) The Cemeteries Agency may serve notice on the Crown cemetery operator 19
disallowing or varying any fee or charge as specified in the notice and the operator 20
is to give effect to the Cemeteries Agency's notice. 21
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Part 6 Legal proceedings and other matters
Part 6 Legal proceedings and other matters 1
Division 1 Proceedings for offences 2
114 Nature of proceedings for offences 3
Proceedings for an offence under this Act or the regulations may be dealt with 4
summarily before the Local Court. 5
115 Persons who may commence proceedings 6
(1) Proceedings for an offence against this Act or the regulations may be taken and 7
prosecuted only by the Director-General or, in the name of the Director-General, by 8
a person acting with the authority of the Director-General. 9
(2) In proceedings for an offence against this Act or the regulations, an authority to 10
prosecute purporting to have been signed by the Director-General is evidence of that 11
authority without proof of the signature of the Director-General. 12
116 Time for commencing proceedings 13
(1) Proceedings for an offence under this Act or the regulations may be commenced not 14
later than 12 months after the offence was alleged to have been committed. 15
(2) Proceedings for an offence against this Act or the regulations may also be 16
commenced within but not later than 12 months after the Director-General became 17
aware of the alleged offence. 18
(3) If subsection (2) is relied on for the purpose of commencing proceedings for an 19
offence, the court attendance notice must contain particulars of the date on which 20
evidence of the alleged offence first came to the attention of the Director-General and 21
need not contain particulars of the date on which the offence was alleged to have been 22
committed. 23
(4) The date on which evidence first came to the attention of the Director-General is the 24
date specified in the court attendance notice, unless the contrary is established. 25
(5) This section applies despite anything in the Criminal Procedure Act 1986 or any 26
other Act. 27
(6) In this section: 28
evidence of an offence means evidence of any act or omission constituting the 29
offence. 30
117 Penalty notices for certain offences 31
(1) An authorised officer may serve a penalty notice on a person if it appears to the 32
officer that the person has committed an offence against this Act or the regulations, 33
being an offence prescribed by the regulations as a penalty notice offence. 34
(2) A penalty notice is a notice to the effect that, if the person served does not wish to 35
have the matter determined by a court, the person can pay, within the time and to the 36
person specified in the notice, the amount of penalty prescribed by the regulations for 37
the offence if dealt with under this section. 38
(3) A penalty notice under this section is declared to be a penalty notice for the purposes 39
of the Fines Act 1996. 40
(4) A penalty notice may be served personally or by post. 41
(5) If the amount of penalty prescribed for an alleged offence is paid under this section, 42
no person is liable to any further proceedings for the alleged offence. 43
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(6) Payment under this section is not to be regarded as an admission of liability for the 1
purpose of, and does not in any way affect or prejudice, any civil claim, action or 2
proceeding arising out of the same occurrence. 3
(7) The regulations may: 4
(a) prescribe an offence for the purposes of this section by specifying the offence 5
or by referring to the provision creating the offence, and 6
(b) prescribe the amount of penalty payable for the offence if dealt with under this 7
section, and 8
(c) prescribe different amounts of penalties for different offences or classes of 9
offences. 10
(8) The amount of a penalty prescribed under this section for an offence is not to exceed 11
the maximum amount of penalty that could be imposed for the offence by a court. 12
(9) This section does not limit the operation of any other provision of, or made under, 13
this or any other Act relating to proceedings that may be taken in respect of offences. 14
Division 2 Civil penalty provisions 15
118 Definitions 16
In this Part: 17
maximum civil penalty--see section 119 (2). 18
pecuniary penalty order means an order under section 120. 19
119 When a provision is a civil penalty provision 20
(1) A subsection of this Act (or a section of this Act that is not divided into subsections) 21
is a civil penalty provision if the words "maximum civil penalty" and one or more 22
amounts by way of monetary penalty are set out at the foot of the subsection (or 23
section). 24
(2) A contravention of a civil penalty provision is punishable by a penalty not exceeding 25
the maximum amount of monetary penalty set out at the foot of the subsection, 26
section, subclause or clause (the maximum civil penalty). 27
(3) Proceedings in relation to a civil penalty provision are to be dealt with in accordance 28
with this Division. 29
120 Proceedings for contravention of civil penalty provision 30
(1) Within 12 months of a person (the wrongdoer) contravening a civil penalty provision 31
or the Cemeteries Agency becoming aware of the contravention, the Cemeteries 32
Agency (or an authorised officer referred to in section 127) may apply to the Local 33
Court for an order that the wrongdoer pay a pecuniary penalty. 34
(2) If the Local Court is satisfied that the wrongdoer has contravened a civil penalty 35
provision, the Local Court may order the wrongdoer to pay for each contravention 36
the pecuniary penalty that the Local Court determines is appropriate (not exceeding 37
the maximum civil penalty specified for contravention of that civil penalty 38
provision). 39
(3) In determining the pecuniary penalty, the Local Court must have regard to all 40
relevant matters, including the following: 41
(a) the nature and extent of the contravention, 42
(b) the nature and extent of any loss or damage suffered as a result of the 43
contravention, 44
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Part 6 Legal proceedings and other matters
(c) the circumstances in which the contravention took place, 1
(d) whether the person has previously been found by a court or tribunal to have 2
engaged in any similar conduct. 3
(4) If conduct constitutes a contravention of 2 or more civil penalty provisions, 4
proceedings may be instituted under this Act against a person in relation to the 5
contravention of any one or more of those provisions. However, the person is not 6
liable to more than one pecuniary penalty under this section in respect of the same 7
conduct. 8
121 Contravening a civil penalty provision is not an offence 9
A contravention of a civil penalty provision is not an offence. 10
122 Persons involved in contravening a civil penalty provision 11
(1) A person must not: 12
(a) aid, abet, counsel or procure a contravention of a civil penalty provision, or 13
(b) induce (by threats, promises or otherwise) a contravention of a civil penalty 14
provision, or 15
(c) be in any way, directly or indirectly, knowingly concerned in, or a party to, a 16
contravention of a civil penalty provision, or 17
(d) conspire to effect a contravention of a civil penalty provision. 18
(2) This Division applies to a person who contravenes subsection (1) in relation to a civil 19
penalty provision as if the person had contravened the civil penalty provision. 20
123 Civil proceedings after criminal proceedings 21
The Local Court must not make a pecuniary penalty order against a person for a 22
contravention of a civil penalty provision if the person has been convicted of an 23
offence constituted by conduct that is substantially the same as the conduct 24
constituting the contravention. 25
124 Criminal proceedings during civil proceedings 26
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a 27
civil penalty provision are stayed if: 28
(a) criminal proceedings are started or have already been started against the 29
person for an offence, and 30
(b) the offence is constituted by conduct that is substantially the same as the 31
conduct alleged to constitute the contravention. 32
(2) The proceedings for the order may be resumed if the person is not convicted of the 33
offence. Otherwise, the proceedings for the order are dismissed. 34
125 Criminal proceedings after civil proceedings 35
Criminal proceedings may be started against a person for conduct that is substantially 36
the same as conduct constituting a contravention of a civil penalty provision 37
regardless of whether a pecuniary penalty order has been made against the person. 38
126 Recovery of pecuniary penalty 39
(1) A pecuniary penalty is a civil debt payable by the person to the Cemeteries Agency 40
on behalf of the State. 41
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(2) The Cemeteries Agency or the State may enforce the pecuniary penalty order as if it 1
were an order made in civil proceedings against the person to recover a debt due by 2
the person. 3
(3) The debt arising from the order is taken to be a judgment debt. 4
127 Proceedings may be brought by Cemeteries Agency or authorised officer 5
Proceedings for a contravention of a civil penalty provision may only be brought by: 6
(a) the Cemeteries Agency, or 7
(b) an authorised officer with the written authorisation of the Cemeteries Agency 8
(either generally or in a particular case). 9
128 Evidence given in proceedings for pecuniary penalty order not admissible in criminal 10
proceedings 11
(1) Evidence of information given, or evidence of production of documents, by an 12
individual is not admissible in criminal proceedings against the individual if: 13
(a) the individual previously gave the information or produced the documents in 14
proceedings for a pecuniary penalty order against the individual for a 15
contravention of a civil penalty provision (whether or not the order was made), 16
and 17
(b) the conduct alleged to constitute the offence is substantially the same as the 18
conduct that was claimed to constitute the contravention. 19
(2) However, subsection (1) does not apply to criminal proceedings in relation to the 20
falsity of the evidence given by the individual in the proceedings for the pecuniary 21
penalty order. 22
Division 3 Civil infringement notices 23
129 Object 24
The object of this Division is to set up a system of infringement notices for 25
contravention of civil penalty provisions as an alternative to the institution of 26
proceedings before the Local Court under section 120. 27
130 When an infringement notice can be given 28
(1) An authorised officer may serve an infringement notice on a person if the authorised 29
officer has reasonable grounds to believe that the person has contravened a civil 30
penalty provision. 31
(2) An infringement notice is a notice to the effect that, if the person served does not wish 32
to have the matter determined by the Local Court, the person can pay, within the time 33
and to the person specified in the notice, the amount of penalty specified in the notice. 34
(3) The penalty to be specified in an infringement notice relating to an alleged 35
contravention of a civil penalty provision must be a pecuniary penalty equal to 36
one-fifth of the maximum civil penalty that the Local Court could impose on the 37
person for that contravention. 38
(4) An infringement notice must be served within 12 months after the day on which the 39
contravention is alleged to have occurred. 40
(5) An infringement notice may be served personally or by post. 41
(6) If the amount of penalty specified in a notice is paid under this section, no person is 42
liable to any further proceedings under section 120 in respect of the alleged 43
contravention. 44
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(7) This section does not limit the operation of any other provision of, or made under, 1
this or any other Act relating to proceedings that may be taken in respect of alleged 2
contraventions of civil penalty provisions. 3
(8) In this section: 4
civil penalty provision means the following: 5
(a) section 27 (5), 6
(b) section 31 (3), 7
(c) section 34, 8
(d) section 38, 9
(e) section 41 (3), 10
(f) section 42, 11
(g) section 43 (1) and (4), 12
(h) section 46 (2), 13
(i) section 55 (6) (a), 14
(j) sections 63 (1), (5) and (6) and (12), 15
(k) section 64 (1) and (3), 16
(l) section 107 (2). 17
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Part 7 Investigation and enforcement powers
Part 7 Investigation and enforcement powers 1
Division 1 Appointment of authorised officers 2
131 Authorised officers 3
The Chair of the Board may appoint any of the following persons as an authorised 4
officer for the purposes of this Act: 5
(a) a police officer, 6
(b) a Public Service employee, 7
(c) a person of a class prescribed by the regulations. 8
132 Scope of authority 9
(1) An authorisation of a person as an authorised officer can be given generally, or 10
subject to conditions, limitations or restrictions or only for limited purposes. 11
(2) The authority of an authorised officer may be limited by the relevant instrument of 12
appointment to the functions specified in the instrument of appointment. 13
(3) If such authorisation is given subject to conditions, limitations or restrictions or only 14
for limited purposes, nothing in this Act authorises or requires the authorised officer 15
to act in contravention of the conditions, limitations or restrictions or for other 16
purposes. 17
133 Identification 18
(1) Every authorised officer (other than a police officer) is to be provided by the Chair 19
of the Board with an identification card. 20
(2) The identification card must: 21
(a) state that it is issued under this Act, and 22
(b) give the name of the person to whom it is issued, and bear a photograph of that 23
person, and 24
(c) state any limitations on the authorised officer's functions, and 25
(d) state the date (if any) on which it expires, and 26
(e) bear the signature of the Chair of the Board. 27
(3) A power conferred on an authorised officer by this Part to enter premises, or to search 28
or take other action on premises, may not be exercised unless the authorised officer 29
proposing to exercise the power is in possession of the identification card issued to 30
the authorised officer and produces the identification card if required to do so by the 31
occupier of the premises. 32
(4) Subsection (3) does not apply to a police officer or to a power conferred by a search 33
warrant. 34
Division 2 Powers of authorised officers 35
134 Interpretation 36
(1) In this Division: 37
premises includes: 38
(a) a building or structure, or 39
(b) land or a place (whether built on or not). 40
search includes examine or inspect. 41
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Part 7 Investigation and enforcement powers
(2) For the purposes of this Division, a thing is connected with an offence under this Act 1
or the regulations if it is: 2
(a) a thing with respect to which the offence has been committed, or 3
(b) a thing that will afford evidence of the commission of the offence, or 4
(c) a thing that was used, or is intended to be used, for the purpose of committing 5
the offence, 6
and a reference to any such offence includes a reference to an offence that there are 7
reasonable grounds for believing has been committed. 8
(3) For the purposes of this Division, a thing is connected with a civil penalty provision 9
under this Act or the regulations if it is: 10
(a) a thing with respect to which the civil penalty provision has been contravened, 11
or 12
(b) a thing that will afford evidence of the contravention of the civil penalty 13
provision, or 14
(c) a thing that was used, or is intended to be used, for the purpose of contravening 15
the civil penalty provision, 16
and a reference to any such civil penalty provision includes a reference to a civil 17
penalty provision that there are reasonable grounds for believing has been 18
contravened. 19
135 Purposes for which powers under Division may be exercised 20
Powers may be exercised under this Division for the following purposes (referred to 21
as enforcement purposes): 22
(a) for determining whether there has been compliance with or a contravention of 23
this Act or the regulations or a provision of an interment industry scheme, 24
(b) for obtaining information or records for purposes connected with the 25
administration of this Act, 26
(c) in connection with exercising the functions of an authorised officer under this 27
Act. 28
136 Power to enter premises 29
(1) An authorised officer may enter any premises for enforcement purposes. 30
(2) The authorised officer may enter the premises with such assistants (including police 31
officers) as may reasonably be required. 32
(3) The authorised officer must give the occupier of the premises notice of intention to 33
enter the premises unless: 34
(a) the entry is made with the permission of the occupier, or 35
(b) the entry is made to a part of the premises open to the public, or 36
(c) the giving of notice would defeat the purpose for which the premises were 37
entered or would unreasonably delay the authorised officer in a case of 38
urgency. 39
(4) Entry under the power conferred by this section may only be made at a reasonable 40
time. This subsection does not apply to a power conferred by a search warrant. 41
(5) The powers of entry conferred by this Division are not exercisable in relation to any 42
part of premises used only for residential purposes except: 43
(a) with the permission of the occupier of the premises, or 44
(b) under the authority conferred by a search warrant. 45
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Part 7 Investigation and enforcement powers
137 Search warrants 1
(1) An authorised officer under this Act may apply to an issuing officer for a search 2
warrant if the authorised officer has reasonable grounds for believing that a provision 3
of this Act or the regulations has been or is being contravened in or about any 4
premises. 5
(2) An issuing officer to whom an application for a search warrant is made under this 6
section may, if satisfied that there are reasonable grounds for doing so, issue a search 7
warrant authorising an authorised officer named in the warrant, and any other person 8
named in the warrant: 9
(a) to enter the premises concerned, and 10
(b) to search the premises for evidence of a contravention of this Act or the 11
regulations. 12
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 13
applies to a search warrant issued under this section. 14
(4) In this section: 15
issuing officer means an authorised officer within the meaning of the Law 16
Enforcement (Powers and Responsibilities) Act 2002. 17
premises includes a vehicle. 18
138 Powers of authorised officers 19
(1) An authorised officer may, on any premises lawfully entered, do anything that, in the 20
opinion of the officer, is necessary to be done for the purposes of this Division, 21
including (but not limited to) the following: 22
(a) examine and inspect any part of the premises or any article or thing on the 23
premises, 24
(b) take and remove samples, 25
(c) make such examinations, inquiries and tests as the officer considers necessary, 26
(d) take such photographs, films, audio, video and other recordings as the 27
authorised officer considers necessary, 28
(e) require records to be produced for inspection, 29
(f) examine and inspect any records, 30
(g) copy any records, 31
(h) seize anything that the officer has reasonable grounds for believing is 32
connected with an offence under this Act or the regulations or a contravention 33
of a civil penalty provision, 34
(i) require a person to take reasonable steps to produce a document, 35
(j) do any other thing the officer is empowered to do under this Division. 36
(2) An authorised officer may ask any person whom the authorised officer suspects on 37
reasonable grounds to have knowledge of any matter in respect of which information 38
is reasonably required for the purposes of the exercise of the authorised officer's 39
functions under this Act to answer questions in relation to that matter to the best of 40
the person's knowledge, information and belief. 41
(3) An authorised officer may give directions reasonably required in connection with the 42
exercise of a power conferred by this section or otherwise in connection with the 43
administration, operation or enforcement of this Act. 44
(4) Without limiting subsection (3), an authorised officer may, by order in writing, direct 45
the owner or occupier of premises to provide such reasonable assistance or facilities 46
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Part 7 Investigation and enforcement powers
to the authorised officer as may be requested by the authorised officer to exercise the 1
authorised officer's functions. 2
(5) If the authorised officer takes any document or thing under this section, he or she 3
must: 4
(a) give notice of the taking of the document or thing to the person apparently in 5
charge of it or to a manager of the premises, and 6
(b) return the document or thing to that person or the premises within 7 days after 7
taking it. 8
(6) In this section: 9
specified person means any of the following persons who are carrying out functions 10
relating to the operations of a cemetery: 11
(a) a member or employee of a cemetery operator, 12
(b) a volunteer working at a cemetery. 13
139 Power to detain and search vehicles 14
(1) An authorised officer who has reason to believe that there is in or on a vehicle 15
anything connected with an offence under this Act or the regulations may: 16
(a) stop and detain the vehicle, and 17
(b) enter and search the vehicle, and 18
(c) break open and search any container in or on the vehicle that the officer has 19
reason to believe contains any such thing, and 20
(d) seize anything that the officer has reasonable grounds for believing is 21
connected with an offence under this Act or the regulations or a contravention 22
of a civil penalty provision. 23
(2) An authorised officer may require the person in charge of the vehicle to take the 24
vehicle to a specified place for the purpose of searching the vehicle if it is not 25
reasonably practicable to carry out the search where the vehicle is stopped. 26
(3) An authorised officer may only exercise the power under this section of requiring a 27
vehicle to stop if accompanied by a police officer. 28
140 Requirement to provide information and records 29
(1) An authorised officer may, by notice in writing given to a person, require the person 30
to furnish to the officer such information or records (or both) as the officer requires 31
by the notice in connection with any matter arising under or in connection with this 32
Act. 33
(2) Any such notice must specify the manner in which information or records are 34
required to be furnished and a reasonable time by which the information or records 35
are required to be furnished. 36
(3) A notice under this section may only require a person to furnish records that are in 37
the person's possession or that are within the person's power to obtain lawfully. 38
(4) The authorised officer to whom any record is furnished under this section may take 39
copies of it. 40
(5) If any record required to be furnished under this section is in electronic, mechanical 41
or other form, the notice requires the record to be furnished in written form, unless 42
the notice otherwise provides. 43
(6) This section applies whether or not a power of entry under this Division is being or 44
has been exercised. 45
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141 Requirement to state name and address 1
(1) An authorised officer may require a person whom the authorised officer suspects on 2
reasonable grounds to have committed, or to be committing, an offence against this 3
Act or the regulations to state his or her full name and residential address. 4
(2) An authorised officer may request a person who is required under this section to state 5
his or her full name and residential address to provide proof of the name and address. 6
It is not an offence to fail to comply with any such request. 7
(3) A person does not commit an offence under section 143 in respect of a requirement 8
made under this section if: 9
(a) the authorised officer does not, at the time when the officer makes the 10
requirement, show the person the officer's identification card, or 11
(b) the authorised officer does not, at the time when the officer makes the 12
requirement, warn the person that it would be an offence not to comply with 13
the requirement. 14
142 Provisions relating to requirements to provide documents or information or answer 15
questions 16
(1) Warning to be given on each occasion 17
A person is not guilty of an offence of failing to comply with a requirement under 18
this Division to provide documents or information or to answer a question unless the 19
person was warned on that occasion that a failure to comply is an offence. 20
(2) Self-incrimination not an excuse 21
A person is not excused from a requirement under this Division to provide 22
documents or information or to answer a question on the ground that the document, 23
information or answer might incriminate the person or make the person liable to a 24
penalty. 25
(3) Information or answer not admissible if objection made 26
However, any information provided or answer given by a natural person in 27
compliance with a requirement under this Division is not admissible in evidence 28
against the person in criminal proceedings (except proceedings for an offence against 29
this Division or section 143 (1) (d)) or in proceedings with respect to a contravention 30
of a civil penalty provision if: 31
(a) the person objected at the time to doing so on the ground that it might 32
incriminate the person, or 33
(b) the person was not warned on that occasion that the person may object to 34
providing the information or giving the answer on the ground that it might 35
incriminate the person. 36
(4) Documents admissible 37
Any document provided by a person in compliance with a requirement under this 38
Division is not inadmissible in evidence against the person in criminal proceedings 39
on the ground that the document might incriminate the person. 40
(5) Further information 41
Further information obtained as a result of a document or information provided or an 42
answer given in compliance with a requirement under this Division is not 43
inadmissible on the ground: 44
(a) that the document or information had to be provided or the answer had to be 45
given, or 46
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Part 7 Investigation and enforcement powers
(b) that the document or information provided or answer given might incriminate 1
the person. 2
Division 3 Offences in relation to authorised officers 3
143 Offence: obstructing authorised officer 4
(1) A person who: 5
(a) prevents an authorised officer from exercising a function conferred or imposed 6
by or under this Act, or 7
(b) hinders, obstructs, threatens or assaults an authorised officer in the exercise of 8
such a function, or 9
(c) without reasonable excuse, refuses or fails to comply with a requirement made 10
or to answer a question of an authorised officer asked in accordance with this 11
Act or the regulations, or 12
(d) provides an authorised officer with a document or information knowing that it 13
is false or misleading in a material particular, 14
is guilty of an offence. 15
Maximum penalty: 100 penalty units. 16
(2) A person is not guilty of an offence under subsection (1) (c) unless it is established 17
that, at the material time, the authorised officer: 18
(a) identified himself or herself as an authorised officer, and 19
(b) warned the person that a failure or refusal to comply with the requirement may 20
constitute an offence. 21
144 Offence: impersonating authorised officer 22
A person who impersonates or falsely represents that the person is an authorised 23
officer is guilty of an offence. 24
Maximum penalty: 100 penalty units. 25
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Part 8 Miscellaneous
Part 8 Miscellaneous 1
145 Service of documents 2
(1) A document that is authorised or required by this Act or the regulations to be served 3
on any person may be served by: 4
(a) in the case of a natural person: 5
(i) delivering it to the person personally, or 6
(ii) sending it by post to the address specified by the person for the giving 7
or service of documents or, if no such address is specified, the 8
residential or business address of the person last known to the person 9
giving or serving the document, or 10
(iii) sending it by facsimile transmission to the facsimile number of the 11
person, or 12
(b) in the case of a body corporate: 13
(i) leaving it with a person apparently of or above the age of 16 years at, or 14
by sending it by post to, the head office, a registered office or a principal 15
office of the body corporate or to an address specified by the body 16
corporate for the giving or service of documents, or 17
(ii) sending it by facsimile transmission to the facsimile number of the body 18
corporate. 19
(2) Nothing in this section affects the operation of any provision of a law or of the rules 20
of a court authorising a document to be served on a person in any other manner. 21
146 Exchange of information 22
(1) The Cemeteries Agency may enter into an arrangement (an information sharing 23
arrangement) with a relevant agency for the purposes of sharing or exchanging any 24
information that is held by the Cemeteries Agency or the agency. 25
(2) The information to which an information sharing arrangement may relate is limited 26
to provision of information that the Cemeteries Agency or the relevant agency 27
considers is necessary to enable the Cemeteries Agency or the relevant agency to 28
exercise its functions under this or any other Act. 29
(3) Under an information sharing arrangement, the Cemeteries Agency and the relevant 30
agency are, despite any other Act or law of the State, authorised: 31
(a) to request and receive information that is held by the other party to the 32
arrangement, and 33
(b) to disclose that information to the other party. 34
(4) Information may be provided in accordance with this section despite any prohibition 35
in, or the need to comply with any requirement of, any Act or law (in particular, the 36
Privacy and Personal Information Protection Act 1998 and the Health Records and 37
Information Privacy Act 2002). 38
(5) In this section: 39
relevant agency means any of the following: 40
(a) NSW Health, 41
(b) NSW Fair Trading, Department of Finance and Services, 42
(c) Division of Local Government, Department of Premier and Cabinet, 43
(d) the Department, 44
(e) Office of Environment and Heritage, Department of Premier and Cabinet, 45
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Part 8 Miscellaneous
(f) any other person or body (or person or body belonging to a class) prescribed 1
by, or approved in accordance with, the regulations. 2
147 Personal liability 3
(1) A matter or thing done or omitted to be done by: 4
(a) the Minister, or 5
(b) the Cemeteries Agency, or 6
(c) the Board or a member of the Board, or 7
(d) the Chief Executive Officer, or 8
(e) a person acting under the direction of the Minister, Cemeteries Agency, the 9
Board or the Chief Executive Officer, 10
does not, if the matter or thing was done or omitted to be done in good faith for the 11
purposes of executing this Act, subject the Minister, member of the Board, the Chief 12
Executive Officer or a person so acting personally to any action, liability, claim or 13
demand. 14
(2) A reference in subsection (1) to the execution of this Act includes a reference to the 15
execution of the provisions of any other Act that confer or impose functions on the 16
Cemeteries Agency. 17
148 Regulations 18
(1) The Governor may make regulations, not inconsistent with this Act, for or with 19
respect to any matter that by this Act is required or permitted to be prescribed or that 20
is necessary or convenient to be prescribed for carrying out or giving effect to this 21
Act. 22
(2) In particular, regulations may be made for or with respect to the following: 23
(a) regulating the use and enjoyment of, and the conduct of persons in, cemeteries, 24
(b) regulating the use of vehicles in cemeteries, 25
(c) the fees and charges that may be imposed for the purposes of this Act, 26
(d) the care, control and management of cemeteries. 27
(3) The regulations may create an offence punishable by a penalty not exceeding 28
25 penalty units. 29
(4) The regulations may adopt any document (including for example a code of practice) 30
as in force from time to time. 31
(5) The regulations may exempt, or provide for the exemption, from the operation of any 32
of the provisions of this Act any specified cemetery or class of cemetery, any 33
specified person or class of persons or any specified activities or class of activities in 34
such circumstances, and subject to such conditions, as may be specified in the 35
regulations. 36
149 Repeals 37
The following are repealed: 38
(a) the Botany Cemetery and Crematorium Act 1972, 39
(b) the Christ Church Cathedral, Newcastle, Cemetery Act 1966, 40
(c) the Conversion of Cemeteries Act 1974, 41
(d) Part 6 of Schedule 8 to the Crown Lands Act 1989, 42
(e) the Gore Hill Memorial Cemetery Act 1986, 43
(f) the Merriwa Roman Catholic Cemetery Act 1966, 44
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Part 8 Miscellaneous
(g) the Randwick Cemetery Unused Lands Sale Act of 1886 (50 Vic). 1
150 Review of Act 2
(1) The Minister is to review this Act to determine whether the policy objectives of the 3
Act remain valid and whether the terms of the Act remain appropriate for securing 4
those objectives. 5
(2) The review is to be undertaken as soon as possible after the period of 5 years from 6
the date of assent to this Act. 7
(3) A report on the outcome of the review is to be tabled in each House of Parliament 8
within 12 months after the end of the period of 5 years. 9
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 1 Members and procedure of Board
Schedule 1 Members and procedure of Board 1
(Section 16) 2
Part 1 Preliminary 3
1 Definitions 4
In this Schedule: 5
appointed member means the Chair of the Board, Deputy Chair of the Board or other 6
member of the Board who is appointed by the Minister. 7
member means an appointed or ex officio member of the Board. 8
voting member means the Chair, Deputy Chair or person appointed as a member of 9
the Board under section 16 (2) (b). 10
Part 2 Members 11
2 Terms of office of appointed members 12
(1) Subject to this Schedule and the regulations, an appointed member holds office for 13
the period (not exceeding 4 years) as may be specified in the member's instrument 14
of appointment, but is eligible (if otherwise qualified) for re-appointment. 15
(2) Despite subclause (1), a person cannot be re-appointed for more than 3 successive 16
terms of office. 17
3 Remuneration 18
An appointed member (other than a person who is a public servant) is entitled to be 19
paid such remuneration (including travelling and subsistence allowances) as the 20
Minister, in consultation with the Public Service Commissioner may from time to 21
time determine in respect of the member. 22
4 Vacancy in office of appointed member 23
(1) The office of an appointed member becomes vacant if the member: 24
(a) dies, or 25
(b) completes a term of office and is not re-appointed, or 26
(c) resigns the office by instrument in writing addressed to the Minister, or 27
(d) is removed from office by the Minister under this clause, or 28
(e) is absent from 3 consecutive meetings of the Board of which reasonable notice 29
has been given to the member, except on leave granted by the Board or unless 30
the member is excused by the Board for having been absent from those 31
meetings, or 32
(f) becomes bankrupt, applies to take the benefit of any law for the relief of 33
bankrupt or insolvent debtors, compounds with his or her creditors or makes 34
an assignment of his or her remuneration for their benefit, or 35
(g) becomes a mentally incapacitated person, or 36
(h) is convicted in New South Wales of an offence that is punishable by 37
imprisonment for 12 months or more or is convicted elsewhere than in New 38
South Wales of an offence that, if committed in New South Wales, would be 39
an offence so punishable, or 40
(i) is found to have contravened a civil penalty provision set out in section 18 (1), 41
19 (1), 20 or 21, unless the Local Court otherwise orders. 42
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Schedule 1 Members and procedure of Board
(2) The Minister may remove an appointed member from office at any time for any or 1
no reason and without notice. 2
5 Suspension of members 3
(1) The Minister may, by order in writing, suspend a member from office during the 4
investigation and determination of any matter involving an allegation of 5
incompetence, misconduct or breach of duty by the member if the Minister is 6
satisfied that it is appropriate in the public interest to do so. 7
(2) A copy of an order under this clause must be served on the member. 8
(3) The member, while suspended from office under this clause: 9
(a) is not entitled to exercise any functions of the office, and 10
(b) is not entitled to any fee or remuneration to which he or she would otherwise 11
be entitled as the holder of the office. 12
(4) The period of suspension under an order made under this clause commences on the 13
date the order is served on the member or the date specified in the order for the 14
commencement of the period of suspension, whichever is the later. 15
6 Filling of vacancy in office of appointed member 16
If the office of any appointed member becomes vacant, a person is, subject to this Act 17
and the regulations, to be appointed to fill the vacancy. 18
7 Part-time appointments 19
Appointed members hold office as part-time members. 20
8 Effect of certain other Acts 21
(1) The statutory provisions relating to the employment of Public Service employees do 22
not apply to or in respect of the appointment of an appointed member. 23
(2) If by or under any Act provision is made: 24
(a) requiring a person who is the holder of a specified office to devote the whole 25
of his or her time to the duties of that office, or 26
(b) prohibiting the person from engaging in employment outside the duties of that 27
office, 28
the provision does not operate to disqualify the person from holding that office and 29
also the office of an appointed member or from accepting and retaining any 30
remuneration payable to the person under this Act as a member. 31
Part 3 Procedure 32
9 General procedure 33
(1) The procedure for the calling of meetings of the Board and for the conduct of 34
business at those meetings is, subject to this Act and the regulations, to be as 35
determined by the Board. 36
(2) The Chair (or, in the absence or at the request of the Chair, the Deputy Chair) may 37
convene any meetings of the Board that are, in his or her opinion, necessary for the 38
efficient performance of the functions of the Board. 39
(3) The Chair (or Deputy Chair) must convene a meeting of the Board at the written 40
request of two or more members of the Board. 41
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Schedule 1 Members and procedure of Board
10 Quorum 1
The quorum for a meeting of the Board is 3 voting members of the Board. 2
11 Presiding member 3
(1) The Chair of the Board (or, in the absence or at the request of the Chair, the Deputy 4
Chair) is to preside at a meeting of the Board. 5
(2) The presiding member has a deliberative vote and, in the event of an equality of 6
votes, has a second or casting vote. 7
12 Voting 8
A decision supported by a majority of the votes cast at a meeting of the Board at 9
which a quorum is present is the decision of the Board. 10
Note. A person appointed under section 16 (2) (c), (d), (e) or (f) is a non-voting member of the 11
Board. 12
13 Transaction of business outside meetings or by telephone 13
(1) The Board may, if it thinks fit, transact any of its business by the circulation of papers 14
among all the members of the Board for the time being, and a resolution in writing 15
approved in writing by a majority of those members is taken to be a decision of the 16
Board. 17
(2) The Board may, if it thinks fit, transact any of its business at a meeting at which 18
members (or some members) participate by telephone, closed-circuit television or 19
other means, but only if any member who speaks on a matter before the meeting can 20
be heard by the other members. 21
(3) For the purposes of: 22
(a) the approval of a resolution under subclause (1), or 23
(b) a meeting held in accordance with subclause (2), 24
the Chair and each member have the same voting rights as they have at an ordinary 25
meeting of the Board. 26
(4) A resolution approved under subclause (1) is, subject to the regulations, to be 27
recorded in the minutes of the meetings of the Board. 28
(5) Papers may be circulated among the members for the purposes of subclause (1) by 29
facsimile or other transmission of the information in the papers concerned. 30
14 Subcommittees 31
(1) The Board may establish subcommittees to assist it in connection with the exercise 32
of any of its functions. 33
(2) A subcommittee has such functions as the Board may from time to time determine in 34
respect of it. 35
(3) It does not matter that any or all of the members of a subcommittee are not members 36
of the Board. 37
(4) The procedure for the calling of meetings of a subcommittee and for the conduct of 38
business at those meetings is to be as determined by the Board or (subject to any 39
determination of the Board) by the subcommittee. 40
15 First meeting 41
The Minister may call the first meeting of the Board in such manner as the Minister 42
thinks fit. 43
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 2 Members and procedure of trust boards
Schedule 2 Members and procedure of trust boards 1
Part 1 Members 2
1 Maximum number of members 3
(1) A person must not be appointed as a member (whether to fill a vacancy or otherwise) 4
if the appointment would result in the number of members for the time being of the 5
trust board exceeding, or being maintained above, 7. 6
(2) As long as it does not exceed 7, the number of members is not limited to the number 7
appointed when the trust board was constituted. 8
(3) A person who is appointed as an ex officio member must not be counted for the 9
purposes of this clause. 10
2 Acting members 11
(1) The Minister may, from time to time, appoint a person to act in the office of a 12
member during the illness or absence of the member, and the person, while so acting, 13
has and may exercise all the functions of the member and is taken to be a member. 14
(2) The Minister may remove a person from the office to which he or she was appointed 15
under this clause. 16
(3) For the purposes of this clause, a vacancy in the office of a member is to be regarded 17
as an absence from office of the member. 18
3 Nominee of ex officio member 19
(1) An ex officio member may, with the approval of the Minister, appoint a nominee. 20
(2) The nominee may attend a meeting of the members in the place of the ex officio 21
member. 22
(3) For the purposes of the meeting the nominee is taken to be the ex officio member. 23
4 Term of office 24
(1) Subject to this Schedule, a member holds office for such period not exceeding 5 years 25
as may be specified in the member's instrument of appointment. 26
(2) A member is eligible (if otherwise qualified) for re-appointment. 27
5 Vacancy in office of member 28
(1) The office of a member becomes vacant if the member: 29
(a) dies, or 30
(b) completes a term of office and is not re-appointed, or 31
(c) resigns the office by instrument in writing addressed to the Minister, or 32
(d) is removed from office by the Minister under this clause, or 33
(e) becomes bankrupt, applies to take the benefit of any law for the relief of 34
bankrupt or insolvent debtors, compounds with his or her creditors or makes 35
an assignment of his or her remuneration for their benefit, or 36
(f) becomes a mentally incapacitated person, or 37
(g) except as described in subclause (2), is an ex officio member who ceases to 38
hold the office by reason of which he or she became a member, or 39
(h) is convicted in New South Wales of an offence that is punishable by 40
imprisonment for 12 months or more or is convicted elsewhere than in New 41
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Schedule 2 Members and procedure of trust boards
South Wales of an offence that, if committed in New South Wales, would be 1
an offence so punishable, or 2
(i) is found to have contravened a civil penalty provision set out in section 88 (1), 3
89, 90 or 93 (1), unless the Local Court otherwise orders. 4
(2) If a person is an ex officio member because he or she holds a local government office 5
and he or she ceases to hold the local government office, he or she continues as a 6
member until: 7
(a) one month has elapsed, or 8
(b) the local government office is filled, 9
whichever first occurs. 10
(3) Subclause (2) does not apply if the member ceased to hold office: 11
(a) in circumstances giving rise to a vacancy in civic office under section 234 of 12
the Local Government Act 1993, or 13
(b) because of a declaration under section 255 of that Act. 14
(4) The Minister may, by notification in the Gazette, remove a member from office at 15
any time. 16
6 Filling of vacancy in office of member 17
If the office of a member becomes vacant, a person may, subject to this Act, be 18
appointed to fill the vacancy. 19
7 Ex officio members--special provision 20
A person who is an ex officio member is not affected by a duty or disability which is 21
imposed on the person as a member: 22
(a) by a provision of this or any other Act or by a rule of law or equity, and 23
(b) as a result of the person both being a member and holding the office or position 24
on which the ex officio appointment is based. 25
8 Definition 26
In this Part: 27
local government office means the office of a councillor (including a mayor) under 28
the Local Government Act 1993. 29
Part 2 Procedure 30
9 General procedure 31
The procedure for the calling of meetings of a trust board and for the conduct of 32
business at those meetings is, subject to this Act and the regulations, to be as 33
determined by the board. 34
10 Quorum 35
The quorum for a meeting of a trust board is the number of members that is one more 36
than half the number of members of the board (any fraction being disregarded), 37
unless a greater number is fixed by regulations applying to the board. 38
11 Voting 39
A decision supported by a majority of the votes cast at a meeting of a trust board at 40
which a quorum is present is the decision of the board. 41
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Schedule 2 Members and procedure of trust boards
12 Minutes 1
A trust board must cause full and accurate minutes to be kept of the proceedings of 2
each meeting of the board. 3
Part 3 Administration 4
Division 1 Trust boards 5
13 Meetings 6
(1) The trust board is to meet at least 4 times a year at the places and times as determined 7
by the board. 8
(2) At one such meeting, to be termed the annual general meeting, the trust board is to 9
elect a member to be deputy chairperson. 10
(3) A person elected under subclause (2) is to hold office until the next annual general 11
meeting of the trust board. 12
(4) A statement of accounts is to be presented to the annual general meeting of the trust 13
board. 14
14 Special meetings 15
On receipt by the chairperson of a written request for a meeting of the trust board, the 16
chairperson, if the request is signed by at least 2 members of the board and specifies 17
the purpose of the meeting, is to call a special meeting to be held within 28 days after 18
receipt of the request at the place and time specified by the chairperson. 19
15 Prior notice of meetings 20
(1) Subject to subclause (2), the chairperson, not later than 10 days before the day 21
appointed for a meeting referred to in clause 13 or 14, is to forward to each member 22
of the trust board a notice in writing setting out the place and time of the meeting and 23
the agenda for that meeting. 24
(2) If the chairperson is of the opinion that a special meeting should be held as soon as 25
possible, the chairperson may give such notice of the place and time of, and the 26
agenda for, the meeting as the chairperson considers appropriate. 27
16 Casual vacancy 28
(1) If a casual vacancy occurs in the office of the chairperson, the Minister is to appoint 29
a person to fill the vacancy for the unexpired part of the term of office of that person's 30
predecessor. 31
(2) If a casual vacancy occurs in the office of the deputy chairperson, the trust board, at 32
the first meeting held after the occurrence of the casual vacancy, is to elect a person 33
to fill the vacancy of the person for the unexpired part of the term of office of that 34
person's predecessor. 35
17 Conduct of meetings 36
(1) At a meeting of the trust board, the chairperson or, in the absence of the chairperson, 37
the deputy chairperson, is to preside. 38
(2) In the absence of the chairperson and the deputy chairperson, the members of the 39
trust board present are to elect a person from among the members to preside at the 40
meeting and the person so elected is to preside. 41
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Schedule 2 Members and procedure of trust boards
(3) The person presiding at a meeting of the trust board is to have a deliberative vote and, 1
in the event of an equality of votes, is to have a second or casting vote. 2
Division 2 General administrative matters 3
18 Officers and employees 4
(1) A trust board may appoint and employ a chief executive officer, chief financial 5
officer, rangers and such other officers and employees as may be necessary for the 6
efficient operation of the Crown cemetery trust. 7
(2) One person may be appointed to the positions of chief executive officer and chief 8
financial officer of the Crown cemetery trust. 9
(3) A member of the trust board may be appointed and employed under this clause but 10
only with the approval of the Minister. 11
19 Duties of chief executive officer and chief financial officer 12
(1) The chief executive officer is: 13
(a) to keep and maintain minutes of each meeting of the trust board, and 14
(b) to keep and maintain the book (disclosure of material personal interests of 15
members of a trust board) required by section 93 (3), and 16
(c) to perform other duties as directed by the Crown cemetery trust. 17
(2) The chief financial officer is: 18
(a) to be responsible to the trust board for the keeping and maintaining of proper 19
financial records, and 20
(b) to keep and maintain the records required to be kept by the Crown cemetery 21
trust for the purposes of section 122 (1) (b) of the Crown Lands Act 1989 and 22
section 42 of this Act. 23
20 Receipts and disbursements 24
(1) All money received by the trust board is to be deposited to the credit of an account 25
established with any authorised deposit-taking institution in the name of the Crown 26
cemetery trust. 27
(2) Each item of expenditure by or on behalf of the trust board is to be authorised or 28
confirmed for payment, at a duly convened and constituted meeting of the trust 29
board, by tabling and approval of a report by the chief financial officer relating to that 30
item of expenditure. 31
21 Delegation 32
(1) The trust board may delegate the exercise of any function of the trust board under this 33
Act (other than this power of delegation) to: 34
(a) any member of the trust board, or 35
(b) any officer or employee appointed or employed by the trust board under 36
clause 18. 37
(2) The trust board must keep: 38
(a) a copy of any delegation of a function under this clause, and 39
(b) a record of all delegations it has made under this clause. 40
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Schedule 2 Members and procedure of trust boards
22 Common seal 1
(1) The common seal of the Crown cemetery trust is to be kept by the chief executive 2
officer or, if there is no chief executive officer, by such other person as may be 3
appointed by the trust. 4
(2) A trust's seal may be affixed to an instrument or document only: 5
(a) following a resolution to do so passed at a meeting of the trust, and 6
(b) in the presence of the chief executive officer or a member of the trust board, 7
and 8
(c) with an attestation by the signature of the chief executive office or member of 9
the fact of the affixing of the seal. 10
(3) If an administrator of a trust has been appointed, the trust's seal may be affixed and 11
attested by the administrator alone. 12
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 3 Savings, transitional and other provisions
Schedule 3 Savings, transitional and other provisions 1
Part 1 General 2
1 Regulations 3
(1) The regulations may contain provisions of a savings or transitional nature consequent 4
on the enactment of this Act or any Act that amends this Act. 5
(2) Any such provision may, if the regulations so provide, take effect from the date of 6
assent to the Act concerned or a later date. 7
(3) To the extent to which any such provision takes effect from a date that is earlier than 8
the date of its publication on the NSW legislation website, the provision does not 9
operate so as: 10
(a) to affect, in a manner prejudicial to any person (other than the State or an 11
authority of the State), the rights of that person existing before the date of its 12
publication, or 13
(b) to impose liabilities on any person (other than the State or an authority of the 14
State) in respect of anything done or omitted to be done before the date of its 15
publication. 16
(4) Regulations under this clause may have effect despite any provision of Part 2. 17
Part 2 Provisions consequent on enactment of this Act 18
2 Records 19
Clause 33 (2) of, and Schedule 4 to, the Crown Lands Regulation 2006, as in force 20
immediately before the commencement of this clause, apply to and in respect of the 21
records required to be kept by a cemetery operator under section 42 of this Act in the 22
same way they apply to and in respect of records required to be kept by a reserve trust 23
and trust managers under that Regulation until regulations are made under this Act 24
with respect to those matters or unless the Minister determines otherwise by notice 25
in writing. 26
3 Register of burials 27
A register of burials kept by a cemetery authority in relation to burials carried out at 28
a cemetery under clause 68 of the Public Health Regulation 2012, as in force before 29
its repeal by this Act, is taken on that repeal to form part of the cemetery operator's 30
register required to be kept in respect of interments in that cemetery under section 63 31
of this Act. 32
4 Register of cremations 33
A register of cremations kept by a cremation authority in relation to cremations 34
carried out at a cemetery under clause 86 of the Public Health Regulation 2012, as in 35
force before its repeal by this Act, is taken on that repeal to form part of the register 36
required to be kept in respect of cremations carried out at that cemetery under 37
section 63 of this Act. 38
5 Register of mortuaries and crematories 39
A register of mortuaries and crematories maintained by the Director-General of the 40
Ministry of Health under clause 89 of the Public Health Regulation 2012, as in force 41
before its amendment by this Act, is taken, to the extent it relates to a crematorium, 42
on that amendment to form part of the Cemeteries and Crematoria Register required 43
to be kept in respect of that crematorium under section 27 of this Act. 44
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 3 Savings, transitional and other provisions
6 Renewal schemes 1
(1) A renewal scheme approved under Subdivision 4 of Division 2 of Part 3 of the Crown 2
Lands (General Reserves) By-law 2006 (the repealed Subdivision) before the repeal 3
of that Subdivision by this Act is taken to be a renewal scheme approved under Part 4 4
of this Act. 5
(2) A proposal for approval of a renewal scheme submitted under the repealed 6
Subdivision before its repeal by this Act that has not been determined by the Minister 7
before that repeal is taken to have been made under Division 3 of Part 4 of this Act. 8
7 Existing members of trust boards 9
(1) A person who, immediately before the commencement of this clause, was a member 10
of a trust board appointed under section 93 of the Crown Lands Act 1989 continues 11
to hold office for the unexpired term of his or her appointment (subject to the terms 12
of his or her original appointment and subclause (2)) as if the person had been 13
appointed under section 80 of this Act. 14
(2) The instrument of appointment of such a member is taken to include the matters 15
referred to in section 80 (2) and to have been signed by the member. 16
8 Annual reports and records 17
(1) Section 105 (Annual report) of this Act applies only to and in respect of a financial 18
year commencing on or after 1 July 2014. 19
(2) Section 122 of the Crown Lands Act 1989 and clauses 32 and 33 of the Crown Lands 20
Regulation 2006 continue (subject to the regulations) to apply to and in respect of a 21
Crown cemetery trust within the meaning of this Act for the financial year that 22
commenced on 1 July 2013. 23
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 4 Conversion of cemeteries
Schedule 4 Conversion of cemeteries 1
Part 1 Preliminary 2
1 Transferred provisions 3
(1) This Schedule re-enacts (with minor modifications) provisions of the Conversion of 4
Cemeteries Act 1974 that are repealed by section 149 and are transferred provisions 5
to which section 30A of the Interpretation Act 1987 applies. 6
(2) In the event of an inconsistency between Part 2 and any other provision of this Act, 7
the provisions of Part 2 prevail to the extent of the inconsistency. 8
2 Definitions 9
In this Schedule: 10
area has the same meaning as in the Local Government Act 1993. 11
cemetery means a cemetery of which a council has the care, control and management. 12
council has the same meaning as in the Local Government Act 1993. 13
Minister means the Minister administering the Crown Lands Act 1989. 14
monument means a monument, headstone or other surface structure, or a vault. 15
resolution means a resolution of a council under clause 3 (1). 16
the conversion date, in relation to land within a cemetery, means the day on which a 17
declaration made by the Minister under clause 7 (1) in respect of that land is 18
published in the Gazette. 19
the conversion land, in relation to land within a cemetery, means the land declared 20
by the Minister to be a public park under clause 7 (1). 21
Part 2 Conversion of cemeteries into public parks 22
Division 1 Dedication of cemeteries as public parks 23
3 Council may resolve to convert cemetery 24
(1) A council may, by resolution, decide to apply under this Part for the conversion of 25
the whole or any part of land within a cemetery into a public park. 26
(2) The council must give notice of the resolution twice at an interval of not less than 27
2 weeks in a newspaper or newspapers published and circulating in the locality and 28
twice at an interval of not less than 2 weeks in a newspaper or newspapers published 29
in Sydney and circulating widely throughout New South Wales. 30
4 Objections 31
(1) A person may, within 3 months after the date of first publication of the notice referred 32
to in clause 3 (2), object in writing to the council against its resolution and must state 33
the grounds for his or her objection. 34
(2) The council must consider and determine all objections made under subclause (1) 35
and must notify each objector of its determination concerning the objector's 36
objection. 37
5 Council may apply to have a cemetery declared a public park 38
(1) The council may, after considering and determining the objections made under 39
clause 4, make application to the Minister that the whole or any part of the land 40
referred to in the resolution be declared a public park. 41
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Schedule 4 Conversion of cemeteries
(2) An application under subclause (1) must be made in writing addressed to the Minister 1
and must be accompanied by the following: 2
(a) details of the proposal to convert the cemetery into a public park in the nature 3
of a rest park, 4
(b) information, so far as it can be obtained, indicating, in respect of the cemetery: 5
(i) the total number of burials, and 6
(ii) the dates of the first and last burials, and 7
(iii) the number of monuments, and 8
(iv) the number of monuments which have been provided or maintained by 9
the Commonwealth War Graves Commission, and 10
(v) whether the monuments are proposed to be removed, re-arranged within 11
the cemetery, relocated in another cemetery, or disposed of, and 12
(vi) the number of outstanding exclusive rights to burial, and 13
(vii) the number of graves for which money is held for perpetual care, and 14
(viii) the amount of money held for the perpetual care of graves, and 15
(ix) the amount of money held otherwise than for the perpetual care of 16
graves, and 17
(x) the nature and proposed future use of any building erected on the land, 18
(c) estimates of the costs of: 19
(i) the conversion of the cemetery into a public park, and 20
(ii) the future annual maintenance of the land, 21
and information stating the means by which the council proposes to meet those 22
costs, 23
(d) evidence of compliance by the council with clause 3 (2), 24
(e) copies of all objections received by the council pursuant to clause 4 and of the 25
council's determinations in respect of those objections, and 26
(f) such other information as may be prescribed. 27
(3) The council must furnish such additional or other information as the Minister, by 28
request in writing, may require for the purpose of considering the application under 29
subclause (1). 30
6 Minister may notify intention to declare cemetery a public park 31
(1) If the Minister is of the opinion that the conversion into a public park of the land or 32
any part of the land referred to in the resolution is desirable, the Minister may cause 33
to be published in the Gazette a notification of the Minister's intention to declare that 34
land or part, as the case may be, to be a public park. 35
(2) A copy of the notification under subclause (1) must be laid before each House of 36
Parliament within 14 sitting days of that House after the date of publication. 37
(3) If either House of Parliament passes a resolution of which notice has been given 38
within 15 sitting days of that House after a copy of the notification under subclause 39
(1) has been laid before it, that it does not assent to the declaration of the land referred 40
to in that notification as a public park, the Minister must not make that declaration 41
pursuant to that notification. 42
(4) For the purposes of subclauses (2) and (3), sitting days are to be counted, whether or 43
not they occur during the same session. 44
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Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 4 Conversion of cemeteries
7 Minister may declare cemetery to be a public park 1
(1) Subject to clause 6, the Minister may declare, by notification in the Gazette, the 2
whole or any part of land within a cemetery to be a public park. 3
(2) The land declared to be a public park under subclause (1) is deemed to have been 4
dedicated as a public park under section 80 of the Crown Lands Act 1989. 5
Division 2 Functions of a council with respect to conversion land 6
8 Divesting of estate, interest etc in conversion land on conversion date 7
(1) On the conversion date: 8
(a) any estate or interest in the conversion land which, immediately before the 9
conversion date, was vested in or held by any person or body of persons or the 10
council is divested, and 11
(b) any person or body referred to in paragraph (a) and the council are discharged 12
from any duties, liabilities or obligations existing immediately before the 13
conversion date in respect of or in relation to the conversion land, and 14
(c) any trusts, conditions, encumbrances, dedications or reservations affecting the 15
conversion land immediately before the conversion date are revoked and 16
annulled, and 17
(d) any instruments of title issued in respect of any part of or including any part of 18
the conversion land and subsisting immediately before the conversion date are 19
cancelled in so far as they relate to the conversion land, and 20
(e) any money, securities or assets held by the council in respect of the conversion 21
land or of any grave or monument in or on the conversion land immediately 22
before the conversion date is freed from any conditions or trusts subject to or 23
on which they were held immediately before that date and must be used by the 24
council for or towards maintaining the graves or monuments preserved 25
pursuant to clause 11 or for or towards maintaining the conversion land as a 26
rest park. 27
(2) Any person who immediately before the conversion date was the holder of, or who 28
was entitled to be the holder (either at law or in equity) of, any exclusive right to 29
burial within the conversion land may, within a period of 6 months after the 30
conversion date, apply in writing to the Minister to be granted a fresh exclusive right 31
to burial. 32
(3) The Minister must, as soon as practicable after any application has been made under 33
subsection (2), arrange for the provision to that person of a new burial site in a 34
cemetery selected at the discretion of the Minister. 35
9 Council sole trustee of conversion land 36
(1) Subject to this Part, the council is to be sole trustee of the conversion land and is 37
deemed to have been appointed sole trustee under section 95 of the Crown Lands Act 38
1989. 39
(2) The conversion land must be maintained by the council as a rest park and, despite 40
anything in any other Act, but subject to the provisions of this Part, the council must 41
not use the conversion land or permit it to be used for any other purpose. 42
10 Duties and powers of council in relation to conversion land 43
(1) In this clause, a reference to a burial register includes a reference to any register or 44
record in respect of the deaths or interments of persons who are buried in or whose 45
ashes have been placed in or on the conversion land. 46
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(2) The council must, as soon as practicable after the conversion date: 1
(a) if a burial register is held or received by it and that register is, in the opinion 2
of the Minister, adequate and complete, deposit the burial register at the 3
Mitchell Library, Sydney, where it is to be maintained so as to be available for 4
inspection by any interested person from time to time, or 5
(b) if a burial register is held or received by it and that register is not, in the opinion 6
of the Minister, adequate or complete: 7
(i) compile a supplementary register of the names of and other relevant 8
information in respect of persons who are buried in or whose ashes have 9
been placed in or on the conversion land, so far as those names and that 10
information can by reasonable diligence be obtained and so far as those 11
names and that information are not included in the burial register, and 12
(ii) deposit the burial register and that supplementary register at the 13
Mitchell Library, Sydney, where they are to be maintained so as to be 14
available for inspection by any interested person from time to time, or 15
(c) if no burial register exists: 16
(i) compile a register of the names of and other relevant information in 17
respect of persons who are buried in or whose ashes have been placed 18
in or on the conversion land, so far as those names and that information 19
can by reasonable diligence be obtained and deposit and maintain that 20
register at the offices of the council, so as to be available for inspection 21
by any interested person from time to time, and 22
(ii) furnish a certified copy of the register to the Minister if required to do 23
so by the Minister, and 24
(iii) furnish a certified copy of the register to the Mitchell Library, Sydney, 25
where it is to be maintained so as to be available for inspection by any 26
interested person from time to time. 27
(3) In addition to the duties conferred on the council under subclause (2), the council 28
must, as soon as practicable after the conversion date: 29
(a) convert the conversion land into a rest park, and 30
(b) erect a memorial in a suitable position on the conversion land indicating: 31
(i) the sacred nature of the area, and 32
(ii) the place where the burial register, the supplementary register compiled 33
under subclause (2) (b) (i) or the register compiled under subclause (2) 34
(c) (i) may be inspected and that a copy of the register compiled under 35
subclause (2) (c) (i) may be inspected at the Mitchell Library, Sydney. 36
(4) The council may grant to the Commonwealth War Graves Commission the right to 37
erect and maintain, in or on the conversion land, a memorial to any person who is 38
buried in or whose ashes have been placed in or on the conversion land and over 39
whose grave that Commission has provided or maintained a monument. 40
(5) Subject to this Part, the council may do all such other things as it may consider 41
necessary to convert the conversion land into a rest park. 42
11 Preservation of certain monuments 43
(1) The council must, subject to clause 12, preserve in its existing position on the 44
conversion land or remove and preserve in a new position, as provided in 45
subclause (2): 46
(a) any monument which: 47
(i) is erected over any grave which, in the opinion of the council, is of 48
historical importance, and 49
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(ii)is, in the opinion of the council, reasonably capable of being preserved, 1
and 2
(b) any monument erected over any grave in respect of which the council holds 3
any money, securities or assets for the perpetual care of that grave. 4
(2) The new position in which a monument removed by the council pursuant to 5
subclause (1) must be preserved is, at the discretion of the council, to be anywhere 6
on the conversion land or in another cemetery, whether that other cemetery is a 7
cemetery within the meaning of this Part or otherwise. 8
(3) Subject to clause 12, the council may remove such other monuments erected on the 9
conversion land as it thinks fit, and dispose of them at its discretion. 10
(4) Before determining which of the monuments the council will preserve, or remove 11
and preserve pursuant to the subclause (1), or remove pursuant to subclause (3), the 12
council must take into consideration any views of: 13
(a) the Royal Australian Historical Society relating to the historical importance of 14
each or any monument, and 15
(b) the Commonwealth War Graves Commission relating to any monument 16
provided or maintained by it, 17
which are furnished to the council within 3 months of the conversion date. 18
(5) If any monument preserved in accordance with subclause (1) ceases at any time after 19
the expiration of the period of 3 months referred to in clause 12 (3) by reason of its 20
condition to be, in the opinion of the council, reasonably capable of being preserved, 21
the council may dispose of it at its discretion. 22
12 Advertisement to be published before removal of monuments 23
(1) At least 3 months before any monuments are removed by the council pursuant to 24
clause 11, an advertisement of the intention to remove them and drawing attention to 25
the right conferred by subclause (3) on the representatives (or persons claiming to be 26
representatives) is to be inserted: 27
(a) twice at an interval of not less than 2 weeks in a newspaper or newspapers 28
published and circulating in the locality, and 29
(b) twice at an interval of not less than 2 weeks in a newspaper or newspapers 30
published in Sydney and circulating widely throughout New South Wales. 31
(2) The council must send a copy of the advertisement to the Commonwealth War 32
Graves Commission within one week after the date of the first publication of the 33
advertisement. 34
(3) At any time after the first publication of the advertisement and before the expiration 35
of 3 months after the publication of the last of those advertisements: 36
(a) the representatives (or any persons claiming to be representatives) of any 37
person who is buried in or whose ashes have been placed in or on the 38
conversion land, or 39
(b) subject to subclause (5), the Commonwealth War Graves Commission, 40
may, at their or its own expense, and with the permission of the council, remove the 41
monument erected over the grave of or in respect of that person, whether or not that 42
monument is one which is referred to in clause 11 (1). 43
(4) The representatives (or persons claiming to be representatives) or Commission may, 44
at their or its own expense, and with the permission of the Director-General of the 45
Ministry of Health, remove the remains or ashes of that person to another cemetery 46
for burial, whether that other cemetery is a cemetery within the meaning of this 47
Schedule or otherwise, or to a crematorium for cremation. 48
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Schedule 4 Conversion of cemeteries
(5) Subclause (3) does not authorise the Commonwealth War Graves Commission: 1
(a) to remove a monument unless that Commission has provided or maintained 2
the monument, or 3
(b) to remove the remains or ashes of a person unless that Commission has 4
provided or maintained a monument over the grave of or in respect of that 5
person in or on the conversion land. 6
13 Remains not to be disturbed 7
(1) The council, the Commonwealth War Graves Commission or any person or body of 8
persons must take due care not to unearth or disturb the remains of any person who 9
is buried in, or the ashes of any person which have been placed in or on, the 10
conversion land. 11
(2) If any remains or ashes referred to in subclause (1) are unearthed or disturbed, the 12
council must cause those remains or ashes to be reverently interred anywhere in the 13
conversion land. 14
(3) Nothing in this clause prevents the removing of any remains or ashes pursuant to 15
clause 12 (3). 16
14 Maintenance etc of building on conversion land 17
(1) The council may maintain any building erected on the conversion land at the 18
conversion date and may, from time to time, repair, rebuild or replace it. 19
(2) If any building referred to in subclause (1) is a dwelling, that dwelling may, with the 20
approval of the council, be used as a residence for a caretaker or groundsman of the 21
conversion land, on such terms and conditions as may be agreed upon from time to 22
time between the council and the caretaker or groundsman. 23
(3) So long as the land on which any dwelling is erected is so used for the purposes of a 24
residence for a caretaker or groundsman of the conversion land, the public must not 25
be entitled to enter upon or use it, or any land which is within the curtilage of the 26
dwelling and is bounded by a substantial fence, as a public park. 27
(4) Despite the provisions of subclauses (2) and (3), the council may use any dwelling, 28
and the land within the curtilage of the dwelling and bounded by a substantial fence, 29
for such other purposes and subject to such terms and conditions as the Minister may 30
approve in writing. 31
(5) A reference in this clause to any building, being a dwelling or otherwise, erected on 32
the conversion land at the conversion date includes a reference to that building as 33
repaired, rebuilt or replaced from time to time under the provisions of this clause. 34
Division 3 Miscellaneous 35
15 No compensation payable 36
Except where otherwise in this Act expressly provided, no compensation is payable 37
to any person or body of persons in respect of the divesting of any estate or interest 38
by this Part or in respect of the performance of any act authorised by this Part. 39
Part 3 Bodangora General Cemetery 40
16 Application of Part 2 41
Part 2 applies to the land described in Schedule 2 to the Conversion of Cemeteries 42
Act 1974, as in force immediately before its repeal by this Act, as if: 43
(a) a reference to the conversion date were a reference to 1 July 1974, and 44
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Schedule 4 Conversion of cemeteries
(b) a reference to the conversion land were a reference to the land so described, 1
and 2
(c) a reference to the Council were a reference to Wellington Council. 3
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Schedule 5 Transferred and other provisions relating to 1
certain cemeteries and crematoria 2
Part 1 Preliminary 3
1 Transferred provisions 4
(1) Parts 2-5 of this Schedule re-enact (with minor modifications) Acts or provisions of 5
Acts or statutory instruments repealed by section 149 and are transferred provisions 6
to which section 30A of the Interpretation Act 1987 applies. 7
(2) In the event of an inconsistency between this Schedule and any other provision of this 8
Act, the provisions of this Schedule prevail to the extent of the inconsistency. 9
2 Regulations 10
(1) The regulations may modify the application of a provision referred to in clause 1 to 11
or in respect of a cemetery referred to in that provision, or the operator of that 12
cemetery, for the purposes of this Act. 13
(2) Without limiting subclause (1), the regulations may do either or both of the 14
following: 15
(a) provide that this Act applies as if the provision were omitted and replaced with 16
another provision, 17
(b) confer jurisdiction on a court or tribunal. 18
Part 2 Botany Cemetery and Crematorium 19
3 Interpretation 20
In this Part: 21
monument means monument or other surface structure. 22
prescribed grave means a grave in the cemetery, being a grave in which the remains 23
of a person who was buried in the former Devonshire-street Cemetery were 24
re-interred otherwise than in pursuance of this Act. 25
prescribed monument means a monument in the cemetery, being a monument which 26
relates to a person who was buried in the former Devonshire-street Cemetery. 27
regulations means regulations made under this Act. 28
repealed Act means the Botany Cemetery and Crematorium Act 1972 as in force 29
immediately before its repeal by this Act. 30
the cemetery means the land described in the First Schedule to the repealed Act. 31
the cemetery trust means The Botany Cemetery Trust. 32
the crematorium means the land described in the Second Schedule to the repealed 33
Act. 34
the crematorium trust means The Eastern Suburbs Crematorium Trust. 35
4 Re-use of certain lands for burials 36
(1) Without affecting the generality of the power of the cemetery trust to use the 37
cemetery or any part of it for or in connection with burials or burial purposes: 38
(a) the land formerly occupied by a prescribed grave from which the trust is 39
satisfied that: 40
(i) all monuments and remains have been removed pursuant to Part 3 of the 41
repealed Act, or 42
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(ii) there being no monuments on the grave, all remains have been so 1
removed, or 2
(iii) there being no remains in the grave, all monuments have been so 3
removed, 4
may be used for or in connection with burials or burial purposes in the same 5
manner as if it had never been occupied by that grave, and 6
(b) the land formerly occupied by a prescribed monument which the trust is 7
satisfied was not on a grave and which the trust is satisfied has been removed 8
pursuant to Part 3 of the repealed Act may be used for or in connection with 9
burials or burial purposes in the same manner as if it had never been occupied 10
by that monument. 11
(2) Any estate or interest in or right created in respect of or in relation to any land 12
referred to in subclause (1) (a) or (b), being an estate, interest or right, which 13
(immediately before any monuments or remains or both were removed from that land 14
pursuant to Part 3 of the repealed Act) was vested in or held by any person or body 15
of persons (other than the trust), is hereby divested and: 16
(a) that person or body is hereby discharged from any duties, liabilities or 17
obligations existing immediately before that removal in respect of or in 18
relation to that land, and 19
(b) the trust is hereby discharged from any duties, liabilities or obligations 20
existing immediately before that removal in respect of or in relation to that 21
land, in so far as those duties, liabilities or obligations arose by virtue of the 22
estate, interest or right so divested. 23
5 No compensation payable 24
No compensation is payable to any person in respect of the performance of any act 25
authorised by this Part or in respect of the divesting of any estate, interest or right by 26
this Part. 27
Part 3 Christ Church Cathedral, Newcastle, Cemetery 28
6 Definitions 29
In this Part: 30
Council means Council of the City of Newcastle. 31
repealed Act means the Christ Church Cathedral, Newcastle, Cemetery Act 1966 as 32
in force immediately before its repeal by this Act. 33
the Cathedral lands means the lands described in the Third Schedule to the repealed 34
Act. 35
the Corporate Trustees means the Trustees of Church Property for the Diocese of 36
Newcastle. 37
7 Maintenance of land in First Schedule to repealed Act as a public park 38
The land described in the First Schedule to the repealed Act is to be maintained by 39
the Council as a rest park and garden area and, despite anything in any other Act, but 40
subject to the provisions of this Part, the Council must not use the land or permit it 41
to be used for any other purpose. 42
8 Vesting of land in Second Schedule to repealed Act in Corporate Trustees 43
(1) The Corporate Trustees hold the land described in the Second Schedule to the 44
repealed Act vested in them by that Act for such use, benefit, or purposes of the 45
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Church of England as the Synod of the Diocese of Newcastle from time to time 1
declares, directs or appoints. 2
(2) In this clause, the expression minerals has the meaning given to it in section 5 of the 3
Crown Lands Consolidation Act 1913 immediately before the repeal of that Act. 4
9 Responsibility of Council for relocation of power lines, stormwater drainage and 5
damage to Cathedral lands 6
The Council is responsible for the following: 7
(a) the cost of relocating any power lines in or on the Cathedral lands or other 8
church trust property if their relocation is required in connection with the 9
carrying out of any work, act or thing authorised by this Part, 10
(b) making adequate provision for the discharge of roof and storm water from the 11
Cathedral lands and the land described in the Second Schedule to the repealed 12
Act across or through the land described in the First Schedule to the repealed 13
Act, 14
(c) repairing any damage that may be caused by the carrying out of any work, act 15
or thing authorised by this Part, to the Cathedral lands or other church trust 16
property, or any building structure or other property on it. 17
10 Access to be granted by Corporate Trustees 18
The Corporate Trustees must grant the Council access through the Cathedral lands 19
and other church trust property for the purpose of carrying out any work, act or thing 20
authorised by this Part. 21
11 No compensation payable 22
No compensation is payable to any person in respect of the divesting of any estate or 23
interest by the repealed Act or in respect of the performance of any work, act or thing 24
authorised by this Part. 25
12 Disputes between Council and Corporate Trustees 26
If any difference arises between the Council and the Corporate Trustees with respect 27
to the carrying out of any provision of this Part under which it is required that any act 28
is to be performed or thing done in a manner agreed on by the Council and the 29
Corporate Trustees, the Council or the Corporate Trustees may submit such 30
difference to the Minister and the act is to be performed or the thing done in such 31
manner as the Minister may direct. 32
Part 4 Gore Hill Memorial Cemetery 33
13 Definitions 34
In this Act: 35
historic cemetery means a cemetery, containing monuments of historic significance, 36
that is closed to further burials. 37
monument means: 38
(a) a monument, headstone or other surface structure, or 39
(b) a vault. 40
repealed Act means the Gore Hill Memorial Cemetery Act 1986 as in force 41
immediately before its repeal by this Act. 42
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the cemetery land means the land described in Schedule 1 to the repealed Act 1
dedicated as an historic cemetery with the name of "Gore Hill Memorial Cemetery" 2
under section 5 of that Act. 3
trustees means the persons holding office as trustees of the cemetery land under 4
Part 5 of the Crown Lands Act 1989. 5
14 Management of cemetery 6
(1) Except as provided by this Act, the cemetery land is to be maintained by the trustees 7
as an historic cemetery. 8
(2) The trustees must use property held by them relating to the care, control and 9
management of the cemetery land for or towards maintaining the cemetery land as an 10
historic cemetery. 11
15 Burial registers and records 12
The trustees, or a nominee of the trustees, must keep in safe custody any burial 13
register and other records in respect of persons who are buried in or whose ashes have 14
been placed in or on the cemetery land. 15
16 Erection of memorials by Commonwealth War Graves Commission 16
The trustees may grant to the Commonwealth War Graves Commission the right to 17
erect and maintain, in or on the cemetery land, a memorial to any person who is 18
buried in or whose ashes have been placed in or on the cemetery land and over whose 19
grave that Commission has provided or maintained a monument. 20
17 Remains not to be disturbed 21
(1) The trustees or any person or body of persons must take due care not to unearth or 22
disturb: 23
(a) the remains of any person who is buried in, or 24
(b) the ashes of any person which are contained in an article which has been 25
placed in or on, or 26
(c) any monument over the grave of or in respect of a person in or on, 27
the cemetery land. 28
(2) If any such remains, articles or monuments are unearthed or disturbed the trustees 29
must cause the remains or articles to be reverently interred or the monument placed: 30
(a) where practicable, in the original place of interment or erection in or on the 31
cemetery land, or 32
(b) elsewhere in or on the cemetery land. 33
18 Placement of ashes 34
The trustees may use the cemetery land, or permit it to be used, on such terms and 35
conditions as the trustees may determine, for the purpose of the placement of ashes 36
of any person. 37
19 Sexton's dwelling 38
(1) The trustees may maintain the dwelling erected on the cemetery land at the 39
commencement of the repealed Act and may, from time to time, repair, rebuild or 40
replace it. 41
(2) The trustees may use the dwelling, or permit it to be used, for such purposes and 42
subject to such terms and conditions as the Minister may approve in writing. 43
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(3) A reference in this clause to the dwelling erected on the cemetery land at the 1
commencement of the repealed Act includes a reference to that dwelling as repaired, 2
rebuilt or replaced from time to time under this clause. 3
20 No compensation payable 4
No compensation is payable to any person or body of persons in respect of the 5
performance of anything authorised to be done by this Part. 6
Part 5 Provisions relating to general crematorium lease and 7
funding of Rookwood Necropolis Trust 8
21 Definitions 9
In this Part: 10
appointed day means the day appointed for the commencement of the 2009 Act 11
pursuant to section 2 of that Act. 12
denominational trust, in relation to land within the Rookwood Necropolis that is set 13
aside for use as a cemetery or crematorium, means the reserve trust that has been, or 14
is taken to have been, appointed as trustee of that land under section 92 (1) of the 15
Crown Lands Act 1989, and includes a person conducting a crematorium on the 16
general crematorium site (if there is no other denominational trust for that site), but 17
does not include the Rookwood Necropolis Trust. 18
financial year means a period of 12 months commencing on 1 July. 19
general crematorium site means the land within the Rookwood Necropolis that 20
comprises Lot 488, Deposited Plan 48288. 21
interment does not include interment of ashes arising from a cremation. 22
JCNT means the Joint Committee of Necropolis Trustees constituted by section 20 23
of the 1901 Act. 24
new RNT means the reserve trust established by clause 53 of Schedule 8 to the 25
Crown Lands Act 1989 immediately before its repeal by this Act. 26
old RNT means the Rookwood Necropolis Trust established under section 92 (1) by 27
notification published in Gazette No 73 of 15 May 2009 at page 2244. 28
quarter means the 3-month period beginning 1 July, 1 October, 1 January or 1 April 29
in each financial year. 30
Rookwood Necropolis means the land comprising Lot 500, Deposited Plan 1015565, 31
Lot 7053, Deposited Plan 1029128, and Lot 10, Deposited Plan 829656, being land 32
at Haslem's Creek and Rookwood that, immediately before the appointed day, was 33
set aside for use as a cemetery or crematorium, or for conservation as a historic site, 34
under the 1901 Act. 35
Rookwood Necropolis Trust means the Rookwood Necropolis Trust established by 36
clause 53 of Schedule 8 to the Crown Lands Act 1989 immediately before its repeal 37
by this Act. 38
the 1901 Act means the Rookwood Necropolis Act 1901, as in force immediately 39
before the appointed day. 40
the 2009 Act means the Rookwood Necropolis Repeal Act 2009. 41
22 General crematorium lease 42
(1) In this clause: 43
general crematorium lease means the lease referred to in section 8B of the 1901 Act, 44
as that lease was in force immediately before the appointed day, and includes the 45
terms and conditions specified in Schedule 3 to that Act. 46
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(2) On and from the appointed day, the general crematorium lease is taken to have been 1
granted by the Minister under section 34A of the Crown Lands Act 1989 for the 2
purposes of a crematorium. 3
(3) The lessor or lessee under the general crematorium lease, or the new RNT, may 4
appeal to the Land and Environment Court against a valuation made, or purporting 5
to have been made, by the Valuer-General under the terms of the lease. 6
Note. As at the appointed day, the terms of the lease included those prescribed by Schedule 3 7
to the 1901 Act, clause 5 of which provided for the valuation of the general crematorium site 8
by the Valuer-General for the purpose of determining the rent payable in relation to that site. 9
(4) Pending the determination of an appeal under this clause, the valuation to which the 10
appeal relates, and the lessee's liability for any rent payable on the basis of that 11
valuation, are unaffected by the appeal. 12
Note. Pursuant to section 19 of the Land and Environment Court Act 1979, an appeal under 13
this clause falls within Class 3 of the Land and Environment Court's jurisdiction. 14
(5) Divisions 2A and 3 of Part 7 of the Crown Lands Act 1989 do not apply to or in 15
respect of the general crematorium lease. 16
23 Construction of references to JCNT or old RNT 17
In any other Act or instrument, a reference to the JCNT or the old RNT extends to 18
the new RNT. 19
24 Contributions payable to Rookwood Necropolis Trust by denominational trusts etc 20
(1) During the last 6 months of each financial year commencing on or after 1 July 2010, 21
the Rookwood Necropolis Trust: 22
(a) must make estimates for the following financial year of its expenditure and of 23
its revenue apart from this clause, and 24
(b) must determine, on the basis of those estimates, the total amount that it will 25
need to obtain for the following financial year from contributions from the 26
denominational trusts, and 27
(c) must notify the Minister of the total amount so determined, and 28
(d) subject to the Minister's approval of the total amount so determined, must 29
determine the contribution payable by each denominational trust in respect of 30
that amount, and 31
(e) must notify each denominational trust of the contribution payable by it for the 32
following financial year. 33
(2) The Rookwood Necropolis Trust must consult with the denominational trusts as to 34
its expenditure and revenue before making the estimates referred to in 35
subclause (1) (a). 36
(3) Each denominational trust must pay the contribution determined in respect of it under 37
subclause (1) (d), by way of 4 equal instalments, within 28 days after the start of each 38
quarter. 39
(4) For the purposes of subclause (1) (d), the contribution payable to the Rookwood 40
Necropolis Trust by a denominational trust is to be calculated in accordance with the 41
following formula: 42
A I&C
P = --------------------
-
I&C
where: 43
P represents the contribution payable. 44
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A represents the amount approved by the Minister under subclause (1) in relation to 1
the amount assessed by the Rookwood Necropolis Trust, from time to time, as the 2
amount it requires to enable it to exercise its functions under this Act. 3
I&C, in relation to a denominational trust, represents the number of interments and 4
cremations carried out during the previous calendar year in the portion of the 5
Rookwood Necropolis managed by that denominational trust. 6
I&C represents the total number of interments and cremations carried out during 7
the previous calendar year in the Rookwood Necropolis. 8
25 Fees payable to Rookwood Necropolis Trust by denominational trusts operating 9
crematoria 10
(1) In this clause: 11
general crematorium lease means a lease of the whole or any part of the general 12
crematorium site that has been, or is taken to have been, granted by the Minister for 13
the purposes of a crematorium under section 34A of the Crown Lands Act 1989. 14
(2) Within 28 days after the end of each quarter, a denominational trust that operated a 15
crematorium in the Rookwood Necropolis during that quarter must pay to the 16
Rookwood Necropolis Trust a fee calculated by multiplying $100 by the number of 17
cremations carried out by it in the crematorium during that quarter. 18
(3) No such fee is payable in respect of cremations carried out, by the lessee under the 19
general crematorium lease, in the crematorium situated on the general crematorium 20
site. 21
Note. The fee payable under this clause is additional to any contribution payable under 22
clause 24. 23
26 Information to be provided to Rookwood Necropolis Trust by reserve trusts etc 24
Within 7 days after the end of each quarter, a denominational trust that carried out 25
interments or cremations in the Rookwood Necropolis during that quarter must 26
provide the Rookwood Necropolis Trust with the number of interments and 27
cremations carried out by it in the Rookwood Necropolis during that quarter. 28
Page 86
Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 6 Amendment of Acts and subordinate instruments
Schedule 6 Amendment of Acts and subordinate instruments 1
6.1 Crown Lands Act 1989 No 6 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
Crown cemetery trust has the same meaning as in the Cemeteries and 5
Crematoria Act 2013. 6
[2] Section 78 Definitions 7
Insert "or under section 80 of the Cemeteries and Crematoria Act 2013" after "section 93" 8
in the definition of trust board. 9
[3] Section 92 Reserve trusts 10
Insert after section 92 (6B): 11
(6C) Subsections (6)-(6B) do not apply to a reserve trust established for cemetery 12
or crematorium purposes on or after the commencement of section 79 of the 13
Cemeteries and Crematoria Act 2013. 14
(6D) In this Division, a reference to a reserve trust manager, in relation to a reserve 15
trust established for cemetery or crematorium purposes on or after the 16
commencement of section 79 of the Cemeteries and Crematoria Act 2013, is 17
a reference to the Minister administering that Act (to the extent that the 18
Minister is responsible for managing the affairs of that reserve trust) or the 19
trust board, corporation or administrator appointed under that section to 20
manage the affairs of the trust. 21
[4] Section 92 (8) 22
Insert after section 92 (7): 23
(8) The Minister administering this Act is to consult the Minister administering 24
the Cemeteries and Crematoria Act 2013 before exercising any function after 25
the commencement of section 79 of that Act with respect to a reserve trust 26
established for cemetery or crematorium, or related, purposes. 27
[5] Section 102 Consent of Minister to sale, lease, easement, licence or mortgage 28
Insert after section 102 (7): 29
(8) Nothing in this section applies to or in respect of the grant of an interment right 30
under the Cemeteries and Crematoria Act 2013. 31
[6] Section 112 Preparation of draft plan of management 32
Insert "(other than a Crown cemetery within the meaning of the Cemeteries and Crematoria 33
Act 2013)" after "reserve" where firstly occurring in section 112 (1). 34
[7] Section 112 (2) 35
Insert "(other than a Crown cemetery trust within the meaning of the Cemeteries and 36
Crematoria Act 2013)" after "reserve trust". 37
[8] Section 128 By-laws 38
Omit section 128 (1) (p1) and (p2). 39
Page 87
Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 6 Amendment of Acts and subordinate instruments
[9] Section 128 (7), definition of "reserve" 1
Insert "but does not include a Crown cemetery within the meaning of the Cemeteries and 2
Crematoria Act 2013" after "trust". 3
[10] Section 128 (7), definition of "reserve trust" 4
Insert in alphabetical order: 5
reserve trust does not include a Crown cemetery trust. 6
6.2 Crown Lands (General Reserves) By-law 2006 7
[1] Clause 4A 8
Insert after clause 4: 9
4A Application of By-law 10
This By-law does not, on or after the commencement of section 79 of the 11
Cemeteries and Crematoria Act 2013, apply to or in respect of a trust board 12
for a reserve trust established for cemetery or crematorium, or related, 13
purposes. 14
[2] Clause 18 Fees and charges 15
Omit clause 18 (4), (5) (b), (7) and (9). 16
[3] Part 3, Divisions 2 and 3 17
Omit the Divisions. 18
[4] Clause 45 Transitional provision consequent on Crown Lands (General Reserves) 19
Amendment (Sustainable Burials) By-law 2011 20
Omit the clause. 21
6.3 Crown Lands Regulation 2006 22
Clause 3 Interpretation 23
Insert after clause 3 (1): 24
(1A) A reference in this Regulation to a reserve trust does not include a Crown 25
cemetery trust within the meaning of the Cemeteries and Crematoria Act 2013 26
on or after the commencement of this subclause. 27
6.4 Environmental Planning and Assessment Regulation 2000 28
Clause 226 Prescribed persons: section 88 29
Insert after clause 226 (1) (d): 30
(e) without limiting paragraph (a), a Crown cemetery trust within the 31
meaning of the Cemeteries and Crematoria Act 2013. 32
6.5 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 33
Schedule 2 Search warrants under other Acts 34
Insert in alphabetical order: 35
Cemeteries and Crematoria Act 2013, section 137 36
Page 88
Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 6 Amendment of Acts and subordinate instruments
6.6 Public Health Regulation 2012 1
[1] Clause 49 Definitions 2
Insert "or the re-interment of those remains in accordance with section 55 (4) of the 3
Cemeteries and Crematoria Act 2013" after "vault" where lastly occurring in the definition 4
of exhumation. 5
[2] Clause 68 Register of burials 6
Omit the clause. 7
[3] Clause 86 Register of cremations 8
Omit the clause. 9
[4] Clause 87 Keeping of register and documents 10
Omit the clause. 11
[5] Clause 89 Register of mortuaries 12
Omit "and crematories" from clause 89 (1). 13
[6] Clause 89 (2) and (4) 14
Omit "or crematory" wherever occurring. 15
[7] Clause 89 (2) (d) 16
Omit the paragraph. Insert instead: 17
(d) the name and address of any funeral director that has access to the 18
mortuary. 19
[8] Clause 90 Public access to registers 20
Omit the clause. 21
6.7 Public Reserves Management Fund Act 1987 No 179 22
[1] Section 6 Payments out of Public Reserves Management Fund 23
Omit "and" from section 6 (1) (f). 24
[2] Section 6 (1) (f1) 25
Insert after section 6 (1) (f): 26
(f1) any proceeds paid into the Fund for the purposes of the Crown 27
Cemeteries Advisory Committee or Interim Cemeteries and Crematoria 28
Board (established under section 12 of the Crown Lands Act 1989) 29
before the commencement of section 22 of the Cemeteries and 30
Crematoria Act 2013 that the Minister directs be paid into the 31
Cemeteries and Crematoria NSW Fund for the purposes of that Act, and 32
6.8 Summary Offences Act 1988 No 25 33
[1] Section 8 Damaging or desecrating protected places 34
Insert in alphabetical order in section 8 (1): 35
interment site has the meaning it has in Part 4 of the Cemeteries and 36
Crematoria Act 2013 and includes a memorial (within the meaning of that 37
Act). 38
Page 89
Cemeteries and Crematoria Bill 2013 [NSW]
Schedule 6 Amendment of Acts and subordinate instruments
[2] Section 8 (1), definition of "protected place" 1
Insert "or an interment site" after "war memorial". 2
[3] Section 8 (3) 3
Omit "in or on any war memorial". 4
Insert instead "in, on or in connection with any war memorial or interment site". 5
Page 90
Cemeteries and Crematoria Bill 2013 [NSW]
Dictionary
Dictionary 1
authorised officer means a person appointed as an authorised officer under section 131. 2
Board means the Board of Cemeteries and Crematoria NSW. 3
bodily remains means the whole or any part of the body of a person who has died (whatever its 4
physical state may be) but does not include the whole or any part of a body that has been cremated. 5
building includes part of a building, and also includes any structure or part of a structure 6
(including any temporary structure or part of a temporary structure). 7
Cemeteries Agency means Cemeteries and Crematoria NSW. 8
Cemeteries Agency Fund means the Cemeteries and Crematoria NSW Fund. 9
Cemeteries and Crematoria Register--see section 27. 10
cemetery means a building or place used primarily for the interment and memorialisation of 11
human remains (whether or not it contains an associated building for conducting memorial 12
services) but does not include the following: 13
(a) an Aboriginal place, or land reserved as a historic site, within the meaning of the National 14
Parks and Wildlife Act 1974, 15
(b) a place at which cremated remains are scattered but which is not otherwise used for the 16
disposal of human remains, 17
(c) a place on private land, where the area of the landholding is 5 hectares or more and the 18
location has been approved for the purposes of a cemetery by a local government authority, 19
(d) any other place, or place of a class, prescribed by the regulations. 20
Note. Cemetery as defined includes the following places: 21
(a) a reserve or part of a reserve dedicated or reserved as a public cemetery under the Crown Lands Act 22
1989, 23
(b) a private cemetery or other place approved for that purpose by a local government authority, 24
(c) land reserved (otherwise than as a historic site) under the National Parks and Wildlife Act 1974 or 25
acquired under Part 11 of that Act, where the location has been approved for that purpose by: 26
(i) a person or body (including a local council, trust board or board of management within the 27
meaning of that Act) in which the care, control and management of the land is vested, or 28
(ii) if no such person or body has been vested with the care, control and management of the 29
land--the Director-General of the Department of Premier and Cabinet. 30
cemetery operator's register--see section 63. 31
Chief Executive Officer means the person employed in the Public Service as the Chief Executive 32
Officer of Cemeteries and Crematoria NSW. 33
civil penalty provision--see section 119. 34
code of practice means a code approved under section 30. 35
cremation means a process for the reduction of bodily remains by fire or heat, alkaline hydrolysis 36
or by other means prescribed by the regulations. 37
crematorium means a building in which deceased persons are cremated (whether or not it contains 38
an associated building for conducting memorial services) and includes premises in which bodily 39
remains are disposed of by alkaline hydrolysis. 40
Crown cemetery means a reserve, or part of a reserve, dedicated or used (whether before or after 41
the commencement of this definition) as a public cemetery or crematorium under the Crown 42
ands Act 1989. 43
Crown cemetery operator--see section 77. 44
Crown cemetery trust--see section 77. 45
Department means the Department of Trade and Investment, Regional Infrastructure and 46
Services. 47
Director-General means the Director-General of the Department. 48
function includes a power, authority or duty, and exercise a function includes perform a duty. 49
Page 91
Cemeteries and Crematoria Bill 2013 [NSW]
Dictionary
funeral director means a person (other than the operator of a service that for fee, gain or reward, 1
transports bodies) who, in the conduct of operating a business or a service that is not for fee, gain 2
or reward, engages, for the purpose of burial, cremation or transport, in the collection, transport, 3
storage, preparation or embalming of bodies or engages in the conduct of exhumations. 4
funeral fund has the meaning it has in the Funeral Funds Act 1979. 5
Government agency means: 6
(a) a public authority constituted by or under an Act, or 7
(b) a NSW Government agency, or 8
(c) a Public Service agency, or 9
(d) except in section 11 (4) (b)--a council (within the meaning of the Local Government Act 10
1993) or other local authority, or 11
(e) a State owned corporation. 12
human remains means bodily remains and includes: 13
(a) the remains of a stillborn child, and 14
(b) bodily remains after they have been cremated. 15
improvement notice means a notice given under section 33 (3). 16
interment of human remains--see section 44. 17
interment industry--see section 26. 18
interment industry scheme--see Division 3 of Part 3. 19
interment matter means any matter relating to the following: 20
(a) burials, exhumations and cremations, 21
(b) the operation of cemeteries and crematoria, 22
(c) the design, construction and maintenance of the following: 23
(i) buildings, memorials, mausoleums, vaults and other structures and things in 24
cemeteries and crematoria, 25
(ii) walls, fences, paths, drains and other works of cemeteries and crematoria, 26
(d) without limiting paragraph (c) (i), responsibility for the maintenance of structures and 27
things referred to in that subparagraph, 28
(e) the equipment used in cemeteries and crematoria, including its maintenance, 29
(f) the grounds of cemeteries and crematoria, including their maintenance, 30
(g) the position, depth and maintenance of graves, 31
(h) the construction of coffins to be placed in vaults, 32
(i) interment and other rights in relation to cemeteries and crematoria, 33
(j) the making and keeping of records about cemeteries and crematoria, including records of 34
burials, exhumations and cremations and burial and other rights in relation to cemeteries 35
and crematoria, 36
(k) the inspection of cemeteries and crematoria and their records. 37
interment right--see section 44. 38
interment service means any service (other than the supply of goods) provided with respect to the 39
interment of human remains. 40
interment site--see section 44. 41
maintenance of a cemetery, crematorium, structure or thing includes alteration, removal, renewal, 42
relocation and repair of the cemetery, crematorium, structure or thing. 43
mandatory code of practice requirement--see section 31 (2) (a). 44
Page 92
Cemeteries and Crematoria Bill 2013 [NSW]
Dictionary
mausoleum means a structure erected and designed as a resting place for human remains without 1
the burial of the remains in the earth, but does not include a structure designed as a resting place 2
exclusively for cremated human remains. 3
memorial means: 4
(a) a gravestone, plaque, cenotaph or other monument, or 5
(b) any other structure or permanent physical object used to memorialise a deceased person. 6
operator of a cemetery and cemetery operator means the following: 7
(a) for a Crown cemetery or crematorium--the Crown cemetery operator, 8
(b) for a cemetery or crematorium administered by a council having control under section 48 9
of the Local Government Act 1993--the council, 10
(c) in any other case--the person or body for the time being responsible for the management 11
of the cemetery or crematorium. 12
renewable interment right --see section 54. 13
renewal scheme--see section 70. 14
short term order--see section 36. 15
stillborn child has the same meaning as in the Births, Deaths and Marriages Registration Act 16
1995. 17
Tribunal means the Administrative Decisions Tribunal. 18
trust board means a trust board appointed under section 80. 19
voting member of the Board--see clause 1 of Schedule 1. 20
Page 93
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