SCHEDULE 1 - Savings and Transitional Provisions

Section 96

PART 1 - Preliminary

1.    Interpretation

In this Schedule –

commencement day means the day on which section 3 of this Act commences;

equivalent provision means –

(a) in relation to this Act, a provision in this Act that is substantially the same as a provision in the former Act; and

(b) in relation to the former Act, a provision in the former Act that is substantially the same as a provision in this Act;

former Act means the Burial and Cremation Act 2002 .

2.    Regulated businesses

If, on and from the commencement day, a document, instrument or enactment refers to a prescribed business under the former Act, that reference is taken, on and from the commencement day, to refer to a regulated business under this Act.

3.    Burial and Cremation Regulations 2015

The Burial and Cremation Regulations 2015 , as in force immediately before the commencement day, remain in force on, and after, the commencement day on the same terms and conditions as if –

(a) those regulations had been made under this Act; and

(b) a reference in those regulations to –

(i) the former Act were a reference to this Act; or

(ii) a provision of the former Act were a reference to the equivalent provision of this Act.

PART 2 - Appointments and administration

1.    Register

If information is required to be kept by the Director of Local Government, or the regulator, under the former Act in respect of a prescribed business, cemetery or crematorium and, on and from the commencement day, the information is required to be kept by the regulator under this Act, that information so kept under the former Act is taken to be kept under this Act by the regulator.

2.    Authorised officers

A person who, immediately before the commencement day, was authorised in writing as an authorised officer under the former Act is taken, on and from the commencement day, to be authorised in writing as an authorised officer under this Act.

3.    Authorisations, directions, approvals and declarations

(1) An authorisation, direction or approval given or issued under a provision of the former Act by the Director of Public Health, the Director of Local Government or the regulator and in force immediately before the commencement day is taken, on and from the commencement day, to have been given under the equivalent provision of this Act on the same terms and conditions.

(2) A declaration of the regulator under section 31A of the former Act that is in force immediately before the commencement day is taken, on and from the commencement day, to have been made under the equivalent provision of this Act on the same terms and conditions.

4.    Exclusive rights of burial

On and from the commencement day, an exclusive right of burial granted under the former Act that was not fulfilled under the former Act before the commencement day is taken to be an exclusive right of burial granted under this Act.

PART 3 - Approvals and permissions

1.    Approved forms

If, on and from the commencement day, a provision of this Act requires an approved form and, immediately before the commencement day, the equivalent provision of the former Act required a form to be approved, the form so approved under the former Act is taken, on and from the commencement day, to be the approved form for the relevant provision of this Act.

2.    Exemptions by regulator

If, immediately before the commencement day, an exemption is in force under section 3A of the former Act that exempts a person from compliance with a requirement of the former Act, that exemption is taken, on and from the commencement day, to be an exemption issued on the same terms and conditions under section 10 of this Act that exempts the person from compliance with the equivalent provision of this Act.

3.    Aboriginal cremations

In this Act, an approval given under section 40 of the former Act that has not been revoked or withdrawn is taken, on and from the commencement day, to be an approval given under section 28 of this Act on the same terms and conditions.

4.    Interments other than in cemeteries

In this Act –

(a) a reference to an interment permitted under section 29 of this Act is taken to include an interment permitted under section 41 of the former Act; and

(b) a permission given under section 41 of the former Act that has not been revoked or withdrawn is taken, on and from the commencement day, to be a permission given under section 29 of this Act on the same terms and conditions.

5.    Approvals of senior next of kin

(1) If, immediately before the commencement day, a person had been approved under the former Act as the senior next of kin in relation to the human remains of a deceased person, the person is taken, on and from the commencement day, to be approved as the senior next of kin for that deceased person under this Act on the same terms and conditions.

(2) For the avoidance of doubt, subclause (1) applies despite the fact that the person who approved the person as the senior next of kin for a deceased person under the former Act is not the person who is required under this Act to approve a senior next of kin for the deceased person.

6.    Approvals as cemetery manager

(1) On and from the commencement day, the following persons are taken to be a cemetery manager approved under this Act in respect of the relevant cemetery:

(a) a person approved, or taken to be approved, under the former Act as the cemetery manager for the cemetery;

(b) a person recorded in the register, kept by the regulator under the former Act, as the cemetery manager for the cemetery;

(c) a person taken under the former Act to be the cemetery manager in respect of the cemetery.

(2) Despite subclause (1) , a person referred to in that subclause is not taken to be a cemetery manager approved under this Act if there is an order in force under section 11 or 50 of the former Act in respect of the person.

(3) If an application has been made under section 11A of the former Act and the application has not been determined before the commencement day, the application is taken on the commencement day to be an application under section 32 .

(4) If, on the commencement day, there is no person who can be taken to be a cemetery manager for a cemetery under subclause (1) on and from the commencement day, the regulator may require a person to apply under this Act to be approved as the cemetery manager for the cemetery.

7.    Approvals as crematorium manager

(1) On and from the commencement day, the following persons are taken to be a crematorium manager approved under this Act in respect of the relevant crematorium:

(a) a person recorded in the register, kept by the regulator under the former Act, as the crematorium manager for the crematorium;

(b) a person taken under the former Act to be the crematorium manager in respect of the crematorium.

(2) Despite subclause (1) , a person referred to in that subclause is not taken to be a crematorium manager approved under this Act if there is an order in force under section 11 or 50 of the former Act in respect of the person.

(3) If, in the calendar month immediately before the commencement day, a person has notified the Director of Local Government under section 9 of the former Act of the person’s intention to manage a crematorium –

(a) the former Act applies to the notice, on and from the commencement day, until –

(i) if an objection is lodged in respect of the notification under section 10 of the former Act, the objection has been heard in accordance with the former Act; or

(ii) if no objection is lodged in respect of the notification under section 10 of the former Act, the 22nd day after the day on which the Director of Local Government received the notice; and

(b) after the expiry of the period referred to in paragraph (a), if the person is not prohibited under section 11 of the former Act from managing the crematorium, the person is taken to be approved under this Act as the crematorium manager in respect of the crematorium.

(4) If, on the commencement day, there is no person who can be taken to be a crematorium manager for a crematorium under subclause (1) , on and from the commencement day the regulator may require a person to apply under this Act to be approved as the crematorium manager for the crematorium.

8.    Persons approved to carry on prescribed businesses

(1) On and from the commencement day, a person who is shown in the register maintained under section 48 of the former Act as the manager, or person responsible for the management, of a prescribed business is taken to be the person approved under this Act to carry on the prescribed business as a regulated business.

(2) Despite subclause (1) , a person referred to in that subclause is not taken to be approved to carry on a regulated business under this Act if there is an order in force under section 45 or 50 of the former Act in respect of the person.

(3) If, in the calendar month immediately before the commencement day, a person has notified the Director of Local Government under section 44 of the former Act of the person’s intention to carry on a prescribed business –

(a) the former Act applies to the notice, on and from the commencement day, until –

(i) if an objection is lodged in respect of the notification under that section, the objection has been heard in accordance with the former Act; or

(ii) if no objection is lodged in respect of the notification under that section, the 22nd day after the day on which the Director of Local Government received the notice; and

(b) after the expiry of the period referred to in paragraph (a), if the person is not prohibited under section 45 of the former Act from carrying on a prescribed business, the person is taken to be approved under this Act to carry on the prescribed business as a regulated business.

(4) If, on the commencement day, there is no person shown in the register maintained under section 48 of the former Act in respect of a regulated business as required under subclause (1) , the regulator may require a person to apply under this Act to be approved to carry on the regulated business.

9.    Applications and approvals, &c., relating to new cemetery

(1) An application under the former Act to establish a cemetery that has not been determined on the commencement day, is taken, on and from that day, to be an application under the equivalent provision of this Act to establish a cemetery.

(2) An approval issued under the former Act to establish a cemetery is taken, on and from the commencement day, to be an approval issued in respect of the cemetery under the equivalent provision of this Act and on the same terms and conditions.

10.    Applications and approvals, &c., relating to sale of cemeteries

(1) If, immediately before the commencement day, a person, including the regulator, has acted under a provision of Part 2B of the former Act in respect of the sale of a cemetery, that person is taken, on and from the commencement day, to have acted under the equivalent provision of this Act in respect of the sale of that cemetery.

(2) If, immediately before the commencement day, a document has been provided, published, granted or issued under a provision of Part 2B of the former Act in respect of the sale of a cemetery, that document is taken, on and from the commencement day, to have been provided, published, granted or issued under the equivalent provision of this Act in respect of the sale of that cemetery.

(3) An implied term taken to be imposed on a contract for the sale of all, or any portion, of a cemetery under section 27Q of the former Act is taken, on and from the commencement day, to be an implied term imposed on the contract under the equivalent provision in this Act.

11.    Applications and approvals, &c., relating to closure of cemeteries

(1) If, immediately before the commencement day, a notice is in force under section 28 of the former Act in respect of the closure of a cemetery and that notice has not been withdrawn or revoked, the notice is taken, on and from the commencement day, to have been given under equivalent provision of this Act in respect of the closure of that cemetery.

(2) If, immediately before the commencement day, a person, including the regulator, has acted under a provision of Part 3 of the former Act in respect of the closure of a cemetery, that person is taken, on and from the commencement day, to have acted under the equivalent provision of this Act in respect of the closure of that cemetery.

(3) If, immediately before the commencement day, a document has been provided, published, granted or issued under a provision of Part 3 of the former Act in respect of the closure of a cemetery, that document is taken, on and from the commencement day, to have been provided, published, granted or issued under the equivalent provision of this Act in respect of the closure of that cemetery.

12.    Applications and approvals, &c., relating to reduction of certain time frames

(1) An application under section 51A of the former Act to reduce a time frame that has not been determined on the commencement day, is taken, on and from the commencement day, to be an application under the equivalent provision of this Act to reduce that time frame.

(2) An approval of an application under section 51A of the former Act is taken, on and from the commencement day, to be an approval under the equivalent provision of this Act and on the same terms and conditions.