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CEMETERIES AND CREMATORIA AMENDMENT BILL 2009

           Cemeteries and Crematoria
             Amendment Bill 2009

                        Introduction Print

              EXPLANATORY MEMORANDUM


                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the main purpose of the Bill, which is to amend the
           Cemeteries and Crematoria Act 2003 to further provide for the
           management and constitution of cemetery trusts and make other
           miscellaneous amendments to that Act.

Clause 2   provides for the commencement of the Act. The Act comes into
           operation on a day or days to be proclaimed, with a default
           commencement date of 1 July 2010.

                  PART 2--CEMETERY TRUSTS
Clause 3   inserts new section 2A into the Cemeteries and Crematoria Act
           2003, which sets out new objects for that Act. The objects are to
           ensure that--
             ·      human remains are treated with dignity and respect;
             ·      all Victorians have access to cemetery and crematoria
                    services;
             ·      cemetery trusts are governed and managed effectively
                    and efficiently in accordance with the Act.

Clause 4   subclause (1) inserts new definitions into section 3(1) of the
           Cemeteries and Crematoria Act 2003. Two important
           definitions are Class A cemetery trust and Class B cemetery
           trust.
           Class A cemetery trust is defined as a cemetery trust established
           as a Class A cemetery Trust under Part 2, Schedule 3 or
           Schedule 4.

561417                               1      BILL LA INTRODUCTION 28/7/2009

 


 

Class B cemetery trust is defined as a cemetery trust other than a Class A cemetery trust. Subclause (2) substitutes the definition of "cemetery trust" in section 3(1) of the Cemeteries and Crematoria Act 2003 for a new definition. Cemetery trust will now be defined to mean a cemetery trust established under Part 2, and includes a Class A cemetery trust and a Class B cemetery trust. Clause 5 inserts new section 5(1A) into the Cemeteries and Crematoria Act 2003. New section 5(1A) provides that an order under section 5(1) establishing a cemetery trust must specify whether the cemetery trust is a Class A cemetery trust or a Class B cemetery trust, may make provision for any other matter which is necessary or expedient for the operation of the order and may include savings, transitional and consequential provisions. Clause 6 inserts new section 5A into the Cemeteries and Crematoria Act 2003. New section 5A provides that Schedule 3 has effect in relation to the conversion of certain regional cemetery trusts to Class A cemetery trusts. Clause 7 inserts new section 5B into the Cemeteries and Crematoria Act 2003. New section 5B provides that Schedule 4 has effect in relation to the abolition of cemetery trusts and the establishment of new Class A cemetery trusts. Clause 8 subclause (1) substitutes the heading of section 6 of the Cemeteries and Crematoria Act 2003 as "Constitution and membership of Class B cemetery trusts", as section 6 will only apply to Class B cemetery trusts. Subclause (2) substitutes the words "Class B cemetery trusts" for the words "cemetery trust" in section 6 of the Cemeteries and Crematoria Act 2003. Clause 9 inserts new section 6A into the Cemeteries and Crematoria Act 2003. New section 6A is headed "Constitution and membership of Class A cemetery trusts". Subsection (1) provides that a Class A cemetery trust consists of not less than 6 and not more than 9 members appointed by Governor in Council on the Minister's recommendation. Subsection (2) provides that in making this recommendation, the Minister must ensure that the Class A trust collectively has the skills and expertise required to perform its functions. Subsection (3) provides that Schedule 1A applies to the membership and procedure of Class A cemetery trusts. 2

 


 

Clause 10 inserts new section 6B into the Cemeteries and Crematoria Act 2003. New section 6B provides that on and from the commencement of the Cemeteries and Crematoria Amendment Act 2009, a cemetery trust in existence at that commencement is taken to be a Class B cemetery trust unless the Cemeteries and Crematoria Act or any subsequent order made under that Act specifies otherwise. The vast majority of cemetery trusts will be Class B cemetery trusts whose status will be otherwise unaffected by the Cemeteries and Crematoria Amendment Act 2009. New section 5A avoids the need for orders to be made in respect of each of those cemetery trusts to specify whether they are Class A or Class B cemetery trusts. Clause 11 subclause (1) amends section 8(1) of the Cemeteries and Crematoria Act 2003. A minor amendment is made to section 8(1)(a) so that it states that the Governor in Council acts on the recommendation of the Minister. Section 8(1)(d) is substituted with a new section that allows for the abolition of a cemetery trust and the transfer of its assets and liabilities to another trust, municipal council or other entity, and also for the abolition of a cemetery trust per se. Subclause (2) inserts new sections 8(2)(ab) and (ac), which state that an order under made under section 8 may apply to a single or multiple cemetery trusts and may provide for the appointment of new members to a cemetery trust or the removal of members from a cemetery trust. Clause 12 amends section 9(b) of the Cemeteries and Crematoria Act 2003 to clarify that the effect of an order abolishing a cemetery trust is that its members go out of office and to provide other clarifications, given that, under the amendments to section 8, a cemetery trust can now be abolished per se. In that circumstance, its assets and liabilities etc will not need to be transferred to a successor cemetery trust. Clause 13 inserts new section 9A into the Cemeteries and Crematoria Act 2003. Section 9A(1) provides that on the recommendation of the Minister, the Governor in Council may by order published in the Government Gazette, convert a Class A cemetery trust to a Class B cemetery trust or vice versa. This will allow the status of a cemetery trust to be changed whilst retaining the existing cemetery trust, although the addition or removal of trust members may be required if an order under new section 9A is made. 3

 


 

Section 9A(2) provides that the Minister must not recommend the making of an order under section 9A(1) unless satisfied that the order is in the public interest, having regard to the objects of the Act, the size and scale of the cemetery trust's operations, the services provided by the cemetery trust, the communities served by the cemetery trust and any other matters the Minister considers relevant. Section 9A(3) provides that an order under section 9A may apply to a single or multiple cemetery trusts, may change the name of a cemetery trust, may provide for the appointment of new members to a cemetery trust or the removal of members from a cemetery trust and may provide for the transfer of assets and liabilities, duties and obligations in relation to staff, records and registered, contracts and other arrangements, and any other matters which the Governor in Council considers necessary. Section 9A(4) specifies when an order under section 9A takes effect. Clause 14 substitutes new section 10(2) and inserts new section 10(2A) into the Cemeteries and Crematoria Act 2003. Section 10 deals with the recommendation by the Minister of the appointment of an administrator to a public cemetery. New section 10(2) relates to the appointment of an administrator to a public cemetery managed by a Class B cemetery trust. It inserts 2 new criteria on the basis of which the Minister can recommend the appointment of an administrator, one of which is where the Class B cemetery trust has failed to comply with a statutory direction under section 18 or section 50 and that failure justifies the appointment of an administrator. The other new criterion is where the outcome of an audit or investigation of the cemetery trust, undertaken under section 50 or 51, justifies the appointment of an administrator. New section 10(2A) relates to the appointment of an administrator to a public cemetery managed by a Class A cemetery trust. It inserts the following new criteria, on the basis of which the Minister can recommend the appointment of an administrator, which are if, in the Minister's opinion: · the Class A cemetery trust has failed significantly to meet its outcomes as specified in its annual plan; or · the Class A cemetery trust has failed to comply with a direction under section 18 and that failure justifies the appointment of an administrator; or 4

 


 

· the outcome of an audit or investigation of the cemetery trust, undertaken under section 51, justifies the appointment of an administrator. In both sections 10(2) and 10(2A), the Minister can also recommend the appointment of an administrator if in his or her opinion, the public cemetery is being inefficiently or incompetently managed, or the appointment is necessary to protect the interests of the public. Clause 15 amends section 11 of the Cemeteries and Crematoria Act 2003 so that it refers to Class B cemetery trusts only. This is because the members of Class A cemetery trusts will be remunerated in accordance with the Cemeteries and Crematoria Act 2003. Therefore, those members may be considered to hold "a place of profit" within the meaning of section 11. Clause 16 subclause (1) substitutes the heading of section 12 of the Cemeteries and Crematoria Act 2003 as "Functions of Class B cemetery trusts". Subclause (2) substitutes the term "Class B cemetery trusts" for the term "cemetery trust" in section 12 of the Cemeteries and Crematoria Act 2003. Clause 17 inserts new sections 12A and 12B into the Cemeteries and Crematoria Act 2003. Section 12A(1) provides that the functions of a Class A cemetery trust are-- · to properly and efficiently manage and maintain each public cemetery for which it is responsible; · to develop, in accordance with this Act, annual plans and strategic plans for the operation of the trust and to monitor compliance with those plans; · to develop annual business plans, strategies and budgets to ensure the efficient and accountable provision of services under this Act and the long term viability of the cemetery trust; · to establish and maintain effective systems to ensure that-- · the services provided by the cemetery trust meet the needs of the communities which it serves; and 5

 


 

· the views of those communities are taken into account; · to oversee the organisational structure of the cemetery trust; · to employ a chief executive officer for the effective operation and management of the cemetery trust and each public cemetery for which it is responsible; · to monitor the performance of the trust's chief executive officer; · to ensure there are systems in place to enable effective and accountable risk management, financial management and records management of the cemetery trust; · to provide leadership, assistance and advice as requested to listed Class B cemetery trusts; · to establish committees in accordance with the Act and ensure those committees operate effectively; · to ensure the Secretary to the Department of Human Services ("the Secretary") is informed as soon as practicable of-- · any significant issues of public concern in relation to the cemetery trust, cemetery or crematoria services provided by that cemetery trust or public cemeteries for which it is responsible; or · any significant risks that affect, or may affect, the cemetery trust, cemetery or crematoria services provided by it or public cemeteries for which it is responsible; · to develop or adopt a code of conduct for members of the cemetery trust and for staff of the trust; · to ensure members of the cemetery trust receive adequate training to enable them to meet their obligations as members of the cemetery trust; and · to carry out any other function conferred on a Class A cemetery trust by or under the Act or any other Act. 6

 


 

New section 12A(2) provides that in exercising its functions, a Class A cemetery trust must have regard to: · its obligations in relation to funding of the perpetual maintenance of the public cemetery for which it is responsible; and · the cultural values and religious values (if any) of the community; and · the heritage values (if any) of the public cemetery for which it is responsible; and · the need to ensure that it uses its resources in an effective and efficient manner; and · the need to ensure that public resources across the cemeteries and crematoria sector are used effectively and efficiently. New section 12B provides for the application of the Public Administration Act 2004 to a converting cemetery trust. Clause 18 inserts new section 17(3) into the Cemeteries and Crematoria Act 2003 to provide that where a cemetery trust employs or engages any person under sections 17(1) or 17(2) respectively, the terms or conditions of the employment or engagement are determined by the cemetery trust, subject to any guidelines or directions of the Secretary that are notified to the cemetery trust. Clause 19 subclause (1) inserts new sections 18(1)(ab) and (ac) into the Cemeteries and Crematoria Act 2003, which set out 2 new subject areas in relation to which the Secretary may give statutory directions to a cemetery trust. The Secretary may now give directions in relation to the management, operation or governance of the cemetery trust in accordance with the Act and any matter arising as a result of an audit or investigation under section 50 or 51. Subclause (2) inserts new section 18(4) into the Cemeteries and Crematoria Act 2003. Section 18(4) restricts the scope of a statutory direction under section 18 by providing that a direction may not refer to the cemetery or crematoria services provided by a cemetery trust to a particular person, or a decision made by a cemetery trust under the Act in relation to a particular person or a decision by a cemetery trust to employ or engage a particular person. In addition, a direction must not require the supply of goods or services to a cemetery trust by any particular person unless the supply is in accordance with a tender process. 7

 


 

Clause 20 inserts new section 18A into the Cemeteries and Crematoria Act 2003. Section 18A(1) provides the Secretary with a new power to cause to be developed and prepared, policies and plans in relation to the provision of cemetery and crematoria services. The power may be exercised for the purposes of long term planning. Section 18A(2) sets out the potential scope of the policies and plans. It states that they may apply on a Statewide, regional or local basis and may apply to Class A cemetery trusts or Class B cemetery trusts or both. Clause 21 inserts new Part 2A--"Additional Requirements for Class A Cemetery Trusts", into the Cemeteries and Crematoria Act 2003. New section 18B provides for the establishment and functions of governance committees of Class A cemetery trusts. Sections 18B(1) and (2) provide that a Class A cemetery trust must establish a finance committee and an audit and risk committee within one year of becoming a Class A cemetery trust, and may establish any other governance committee that may assist it in performing its functions. A committee established under section 18B is defined in section 3(1) of the Act as a governance committee. Section 18B(3) sets out the functions of a governance committee, which are to-- · consider any matters that are referred to it by the Class A cemetery trust; and · investigate and make any inquiries about any matter referred to it by the Class A cemetery trust; and · report back to the Class A cemetery trust as required by the cemetery trust; and · carry out any other functions conferred on a governance committee under the Act, any other Act or by the Class A cemetery trust. Section 18B(4) provides that the requirement for a trust to establish an audit and risk committee does not apply to a Class A cemetery trust to which an exemption under the Financial Management Act 1994, that relates to a governance committee, applies. 8

 


 

New section 18C provides that the membership of a governance committee is to be determined by the Class A cemetery trust, and that, subject to the Act and any other Act that imposes requirements in relation to governance committees, and except as otherwise determined by the Class A cemetery trust, the procedure of a governance committee is to be determined by the committee. New section 18D provides for the appointment of community advisory committees by Class A cemetery trusts, for the purpose of liaising with communities which the trust services. A Class A cemetery trust is obliged under section 18D(1) to establish one community advisory committee within 12 months of becoming a Class A cemetery trust, and may choose to establish any additional community advisory committees it considers appropriate. The trust must report on the activities of its community advisory committees in its report of operations under Part 7 of the Financial Management Act 1994. New section 18E sets out the functions of community advisory committees, which are-- · to consider any matters that are referred to it by the Class A cemetery trust that established it; and · to report to the Class A cemetery trust on those matters; and · to raise with the Class A cemetery trust any issues of concern or matters of interest to the community regarding the cemetery or crematoria services provided by the Class A cemetery trust; and · to carry out any other functions conferred on it under the Act, the community advisory committee guidelines or by the Class A cemetery trust. New section 18F provides that the Class A cemetery trust appoints persons to a community advisory committee, having regard to the community advisory committee guidelines. However, the cemetery trust must give preference to persons who are not funeral directors, stonemasons or who hold similar positions. Subject to the Act, the guidelines and any directions of the relevant cemetery trust, a community advisory committee may regulate its own proceedings. 9

 


 

New section 18G provides that the Secretary must make guidelines for community advisory committees, including with respect to the appointment of members, composition, roles and functions, procedure and any other matter relating to the operation of community advisory committees. The Secretary must provide the guidelines to each Class A cemetery trust and must publish the guidelines on the Internet. New section 18H provides that each Class A cemetery trust must hold an annual meeting that is open to the public before 30 December in each calendar year. At the annual meeting, the cemetery trust must report to the public on the operation of the cemetery trust for the preceding financial year, the accounts of the cemetery trust and the activities of any community advisory committee established by the cemetery trust. The cemetery trust must also make its most recent annual report available at the annual meeting. New section 18I provides that a Class A cemetery trust must provide notice of its annual meeting in a newspaper circulating in the relevant area a reasonable time before the date of the meeting. The notice must state the time, date and place of the annual meeting and that the annual meeting is open to the public. New section 18J places a leadership role on Class A cemetery trusts in relation to Class B cemetery trusts. The section states that a Class A cemetery trust must provide leadership, assistance and advice, as requested, to a listed Class B cemetery trust to which the Class A cemetery trust has been allocated, and provides examples of the types of matters that a Class A cemetery trust may assist to a Class B cemetery trust with (record keeping, standard form documentation and tendering requirements). New section 18K provides that the Secretary may provide a list of Class B cemetery trusts which are eligible for assistance and advice from certain Class A cemetery trusts. The Secretary may amend the list as appropriate, and the list must be provided to each Class A cemetery trust and published on the Internet. New section 18L provides that a Class A cemetery trust must employ a chief executive officer. The chief executive officer holds office for the period determined by the Class A cemetery trust and on the terms and conditions determined by the trust. The Secretary must approve these terms and conditions, including remuneration, before the person is employed. 10

 


 

New section 18M sets out the functions of the chief executive officer. In the exercise of his or her functions, the chief executive officer is subject to the direction of the Class A cemetery trust. The functions are to-- · prepare material for the consideration and approval of the cemetery trust, including draft annual plans, draft strategic plans, draft business plans and strategies, and budgets; · manage the cemetery trust in accordance with any statements of priorities, strategic plans, business plans and strategies and budgets approved by the cemetery trust; · provide the cemetery trust with relevant and timely information to enable the cemetery trust to fulfil its functions and objectives efficiently and effectively; · ensure the cemetery trust's decisions are implemented efficiently and effectively; · inform the cemetery trust of any significant issues of public concern in relation to the cemetery trust or cemetery or crematoria services provided by that trust or the public cemeteries for which it is responsible, or any significant risks that affect, or may affect, the cemetery trust, cemetery or crematoria services it provides or the public cemeteries for which it is responsible; and · ensure that the resources of the Class A cemetery trust are used effectively and efficiently. New section 18N provides that a Class A cemetery trust must prepare an annual plan that must be consistent with the strategic plan of the cemetery trust and any guidelines of the Secretary made under section 18P. It also sets out the matters that must be specified in the annual plan. The annual plan must be approved by the Secretary and section 18N sets out a process for the trust to submit the plan and obtain the Secretary's approval. A Class A cemetery trust must ensure that the annual plan is available to the public on request. New section 18O provides that a Class A cemetery trust must prepare a strategic plan for the management and operation of the cemetery trust and the public cemeteries for which it is responsible. The strategic plan must be prepared at the direction of the Secretary and at the time determined by the Secretary, 11

 


 

and must be prepared in accordance with any guidelines of the Secretary made under section 18P. The strategic plan must be approved by the Secretary and a Class A cemetery trust must ensure that the strategic plan is available to the public on request. If a cemetery trust wishes to deviate from the approved strategic plan, the cemetery trust must advise the Secretary. New section 18P provides that the Secretary may make guidelines with respect to the content of annual plans and the content and timing of strategic plans for Class A cemetery trusts. The Secretary is obliged to provide the strategic plans guidelines to each Class A cemetery trust and publish the guidelines on the Internet. New section 18Q provides that each Class A cemetery trust must pay a levy of 3 per cent of its gross earnings, as reported in the annual financial statements for that trust for the previous financial year, or such other rate fixed by the Minister and published in the Government Gazette, such rate not to exceed 5 per cent of its gross earnings. The purpose of the levy is to assist in defraying the costs of administering the Act. The Minister must advise the trust in writing of the amount it is required to pay as the levy, the date the payment is required and how the payment is to be made, and the Minister must ensure that the levy is paid into the Consolidated Fund. Clause 22 amends Schedule 1 (Membership and Procedure of Cemetery Trusts) of the Cemeteries and Crematoria Act 2003 so that it relates to Class B cemetery trusts only, and not Class A cemetery trusts. Clause 23 inserts new Schedule 1A into the Cemeteries and Crematoria Act 2003. Schedule 1A relates to the membership and procedure of Class A cemetery trusts. Clause 24 inserts new Schedule 3 into the Cemeteries and Crematoria Act 2003. Schedule 3 applies to 3 regional Class A cemetery trusts; the Ballarat General Cemeteries Trust, the Bendigo Cemeteries Trust and the Geelong Cemeteries Trust. On and from the commencement of Schedule 3, those trusts are converted to and deemed to be Class A cemetery trusts for the purposes of the Cemeteries and Crematoria Act 2003. They will be known by the same names and responsible for management of the same public cemeteries as was previously the case, and will be the same bodies from the commencement of the schedule as they were prior to its commencement, despite the change in status. 12

 


 

The 3 trusts will be subject to the new provisions in the Act relating to the governance and functions of Class A cemetery trusts, and the trust members will be remunerated. The existing members of the three cemetery trusts will continue as members for 3 years from the commencement of the Schedule, but any member who was previously a life member of one of the relevant trusts will cease to be a life member. The chairperson of each trust continues in office for the term of his or her original appointment, subject to the maximum 3-year membership period. Schedule 3 provides for the avoidance of doubt that on and from the commencement of the Schedule, all property (including money) vested in each of the 3 converted regional cemetery trusts will continue to be vested in the Class A cemetery trusts converted by Schedule 3, and all rights and liabilities of the trusts continue as the rights and liabilities of the trusts. The property, rights and liabilities continue to be able to be used or invested by the trusts. All persons employed by those cemetery trusts will continue to be employed by the relevant Class A cemetery trust converted by Schedule 3 on the same terms and conditions of employment. The Registrar of Titles is obliged to make any necessary amendments to the Register of Titles due to the operation of Schedule 3. Clause 25 inserts new Schedule 4 into the Cemeteries and Crematoria Act 2003. Schedule 4 relates to the abolition of certain cemetery trusts, and the establishment of certain Class A cemetery trusts. Clause 1 of the Schedule sets out definitions that apply to the Schedule. Significant definitions are as follows-- appointed day means-- (a) in relation to The Mildura Cemetery Trust, the appointed day specified in an order made under clause 2 in respect of The Mildura Cemetery Trust; (b) in relation to The Greater Metropolitan Cemeteries Trust, the appointed day specified in an order made under clause 2 in respect of The Greater Metropolitan Cemeteries Trust; (c) in relation to The Southern Metropolitan Cemeteries Trust, the appointed day specified in an order made under clause 2 in respect of The Southern Metropolitan Cemeteries Trust; 13

 


 

former council managed cemetery trust means-- (a) the old Mildura Cemetery Trust; (b) The Keilor Cemetery Trust; (c) The Preston Cemetery Trust; (d) Wyndham Cemeteries Trust; former north west and eastern cemetery trust means-- (a) The Anderson's Creek Cemetery Trust; (b) The Keilor Cemetery Trust, (c) The Lilydale Cemeteries Trust; (d) The Preston Cemetery Trust; (e) The Templestowe Cemetery Trust; (f) The Trustees of the Altona Memorial Park; (g) The Trustees of the Fawkner Crematorium and Memorial Park; (h) Wyndham Cemeteries Trust; former southern cemetery trust means-- (a) The Cheltenham and Regional Cemeteries Trust; (b) The Trustees of the Necropolis, Spring Vale; listed employee means an employee of the Brimbank City Council, the Darebin City Council, the Mildura Rural City Council or the Wyndham City Council who is eligible for inclusion on a list prepared under clause 15; The Greater Metropolitan Cemeteries Trust means the Class A cemetery trust established by clause 4; the old Mildura Cemetery Trust means the Mildura Cemetery Trust of which the Mildura Rural City Council or its councillors are the members; The Southern Metropolitan Cemeteries Trust means the Class A cemetery trust established by clause 5. Clause 2 of Schedule 4 provides that the Governor in Council may by order published in the Government Gazette, appoint a day as the appointed day for each of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust. The appointed day is, amongst other things, the day of commencement of these new cemetery trusts. The use of the "appointed day" mechanism will 14

 


 

potentially allow those trusts to commence on different days, if this is required at the time. Clauses 3, 4 and 5 provide for, respectively, the establishment of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust. Clause 3 provides that on the appointed day for The Mildura Cemetery Trust, the old Mildura Cemetery Trust is abolished and its members go out of office, The Mildura Cemetery Trust is established as the successor in law of the old Mildura Cemetery Trust, all property and rights of the old Mildura Cemetery Trust are vested in The Mildura Cemetery Trust and all liabilities of the old Mildura Cemetery Trust become liabilities of The Mildura Cemetery Trust. The Mildura Cemetery Trust is responsible for the same public cemeteries as the old Mildura Cemetery Trust and is taken to have been appointed as a Class A cemetery trust under Part 2 of the Cemeteries and Crematoria Act 2003. Clause 4 makes provision for the same matters as set out in clause 3 for The Greater Metropolitan Cemeteries Trust, in relation to the former north west and eastern cemetery trusts. Clause 5 makes provision for the same matters as set out in clause 3 for The Southern Metropolitan Cemeteries Trust, in relation to the former southern cemetery trusts. Clause 6 provides for the substitution of relevant parties to any agreement in relation to each of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust, so that the newly created trusts become parties to agreements in place of their predecessor trusts that have been abolished under Schedule 4, and the agreements have effect as though the relevant successor trusts had always been parties to the agreements. Clause 7 provides that on and from the relevant appointed day for each trust, former instruments that refer to the old Mildura Cemetery Trust, a former north west and eastern cemetery trust and a former southern cemetery trust continue to have effect as though the references in the instruments to those trusts is, respectively, a reference to The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust. Clause 8 provides that from the relevant appointed day, in any legal proceedings to which the old Mildura Cemetery Trust, a former north west and eastern cemetery trust and a former southern cemetery trust was a party, The Mildura Cemetery 15

 


 

Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust (respectively) is substituted for the relevant predecessor trust as a party to the proceedings, and they have the same rights in the proceedings as the relevant predecessor trust. Clause 9 provides that if immediately before the relevant appointed day for each trust, each of the old Mildura Cemetery Trust, a former north west and eastern cemetery trust and a former southern cemetery trust was the registered proprietor of an interest in land under the Transfer of Land Act, on and from the appointed day, The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust (as the case requires) is taken to be the registered proprietor of that interest in land and has the same rights and remedies in respect of that land as the relevant predecessor trust. Clause 10 provides that on the recommendation of the Minister, the Governor in Council may by order published in the Government Gazette, allocate to a Class A cemetery trust established by Schedule 4, the property, rights and liabilities of a municipal council primarily used for or related to a former council managed cemetery trust, or used for the provision of cemetery or crematoria services or the management of a public cemetery. The Minister must not recommend the making of a transfer order unless satisfied that the details of the property, rights and liabilities have been agreed between the relevant municipal council and the Secretary or the Class A cemetery trust. Clause 11 provides that the effect of a transfer order made under clause 10 is that the property and rights specified in the order vest in the Class A cemetery trust established by Schedule 4 and specified in the order, the liabilities specified in the order become liabilities of that Class A cemetery trust, and that Class A becomes the successor in law of the relevant municipal council in relation to the property, rights and liabilities specified in the order. Clause 11 also provides that if under a transfer order, the property, rights and liabilities of a municipal council under an agreement vest in or become property rights and liabilities of a Class A cemetery trust established by Schedule 4, the Class A cemetery trust becomes a party to the agreement in place of the municipal council. The Class A cemetery trust will also become a party to any proceedings to which the municipal council was a party, in place of the municipal council, if proceedings relating to the property, rights or liabilities specified in the order were 16

 


 

pending or existing on and after the transfer date, and the Class A trust will have the same rights in the proceedings as the municipal council. Clause 11 also provides that if immediately before the transfer date specified in the transfer order, a municipal council is, in relation to the property, rights and liabilities in the transfer order, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then from that date, the Class A cemetery trust established by Schedule 4 and specified in the order is taken to be the registered proprietor of that interest in land and has the same rights and remedies in respect of the land. Clause 11 also provides that any instrument relating to property, rights and liabilities of a municipal council that under a transfer order have vested in or become property, rights and liabilities of a Class A cemetery trust established by Schedule 4, has effect and continues to have effect from the transfer date specified in the order as though a reference in the instrument to the municipal council was a reference to the Class A cemetery trust. Clause 12 provides that the Secretary may by instrument appoint a person to act as the interim chief executive officer (CEO) of each of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust and The Southern Metropolitan Cemeteries Trust. The appointment is subject to any terms and conditions specified in the appointment and shall not exceed 6 months in duration, although the Secretary may reappoint an interim CEO provided the total period of the appointment does not exceed 12 months. The interim CEO is not prevented under clause 12 from being employed by the relevant Class A cemetery trust as a chief executive officer (ongoing) after the expiry of his or her interim appointment. Clause 13 provides for the automatic transfer of staff (other than the chief executive officer of the cemetery trusts that will be abolished by Schedule 4) from cemetery trusts that will be abolished by Schedule 4 to the (successor) Class A cemetery trusts established by Schedule 4. It provides that a person who was, immediately before the relevant appointed day, an employee of the old Mildura Cemetery Trust, a former north west and eastern cemetery trust or a former southern cemetery trust, is to be taken as having been employed by (as appropriate) The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust, with effect from the appointed day. The person's employment is on the same terms and conditions as those that applied immediately before the relevant 17

 


 

appointed day, and the person is to be taken as having accrued an entitlement to benefits in connection with the employment that is equivalent to the entitlement the person had accrued as an employee of the relevant predecessor trust. The service of such transferred employees is taken for all purposes to be continuous with the service of the employee as an employee of the relevant predecessor trust, and the superannuation entitlements of the transferred employee are not to be taken to be affected by the transfer having occurred. A transferred employee is not entitled to any payment or other benefit by reason only of having ceased to be an employee of the relevant predecessor trust. A certificate purporting to be signed by the chief executive officer of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust, as the case requires, certifying that a certain person was, with effect from the relevant appointed day, employed by one of those trusts, is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it. Clause 14 provides that nothing in clause 13 prevents the terms and conditions of employment of a person transferred under clause 13 from being altered by law, award or agreement with effect from the relevant appointed day, or prevents such a person from resigning or being dismissed at any time after the relevant appointed day in accordance with his or her conditions of employment by the relevant successor trust. Clause 15 deals with the potential transfer of employees of certain municipal councils to the new successor Class A cemetery trusts established by Schedule 4, and sets out a process for this transfer. The Secretary may prepare a list of employees of Brimbank City Council, Darebin City Council, Mildura Rural City Council or Wyndham City Council who are eligible to become employees of the new Class A cemetery trusts established by Schedule 4. These councils or their councillors constituted the former council managed cemetery trusts. Clause 15 addresses the fact that there may be employees of these councils who worked primarily on the provision of cemetery services and who wish their employment to be transferred to the relevant successor cemetery trust. A person is eligible to be a listed employee if the person is employed by one of the 4 municipal councils primarily for the purposes of a cemetery trust or a public cemetery for which the trust is responsible, and that person agrees to be transferred to the successor cemetery trust. The list prepared by the Secretary must specify which Class 18

 


 

A cemetery trust will become the employer of the listed employee, and the list may specify the employee by name or position, class or category or by reference to a particular municipal council cemetery trust, public cemetery or other place, or a combination of these matters. A listed employee may resign or be dismissed at any time before the relevant staff transfer date in accordance with the terms and conditions of his or her employment. Clause 16 provides that the Secretary may determine a date that is to be the staff transfer date for the purposes of transferring a listed employee. The staff transfer date must not be before the appointed day in relation to the relevant Class A cemetery trust established by Schedule 4. Clause 17 provides that a person who was a listed employee immediately before the relevant staff transfer date is taken to be an employee of the Class A cemetery trust specified in the list in relation to that person, with effect from the staff transfer date. The person's employment is on the same terms and conditions as those that applied immediately before the relevant staff transfer date as an employee of the relevant municipal council, and the person is to be taken as having accrued an entitlement to benefits in connection with the employment that is equivalent to the entitlement the person had accrued as an employee of the relevant municipal council. The service of a transferred employee is taken for all purposes to be continuous with the service of the employee as an employee of the relevant municipal council, and the superannuation entitlements of the transferred employee are not to be taken to be affected by the transfer having occurred. A transferred employee is not entitled to any payment or other benefit by reason only of having ceased to be an employee of the relevant municipal council. A certificate purporting to be signed by the chief executive officer of the Class A cemetery trust specified in the list in relation to that person certifying that a certain person was, with effect from the relevant staff transfer date, employed by one of those trusts, is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it. Clause 18 provides that nothing in clause 17 prevents the terms and conditions of employment of a listed employee from being altered by law, award or agreement with effect from the relevant staff transfer date, or prevents such a person from resigning or being dismissed at any time after the relevant staff transfer date in accordance with his or her conditions of employment by the 19

 


 

relevant Class A cemetery trust to which the listed employee was transferred. Clause 19 provides that any cemetery trust fees fixed by the old Mildura Cemetery Trust, a former north west and eastern cemetery trust or a former southern cemetery trust and in force immediately before the relevant appointed day are taken on and from that day to be cemetery fees fixed by the relevant successor trust. Such cemetery trust fees must be reviewed by the relevant successor trust within 2 years of the appointed day for that trust. Clause 20 provides that on and from the relevant appointed day, in any Act (other than the Cemeteries and Crematoria Act 2003), subordinate instrument or other document, unless the context requires otherwise, references to each of the former southern cemetery trusts are to be construed as references to The Southern Metropolitan Cemeteries Trust, references to each of the former north west and eastern cemetery trusts are to be construed as references to The Greater Metropolitan Cemeteries Trust and a reference to the Mildura Cemetery Trust is to be construed as a reference to the Mildura Cemetery Trust established by Schedule 4. Clause 21 provides that the Registrar of Titles is obliged to make any necessary amendments to the Register of Titles due to the operation of Schedule 4. Clause 22 provides that no stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under Schedule 4 or in respect of any act or transaction connected with Schedule 4. Clause 23 deals with the validity of things done under Schedule 4 and provides, for example, that nothing effected or done under the schedule is to be regarded as placing a person in breach of contract or confidence or in breach of any law, and that nothing effected or done under the schedule is to be regarded as fulfilling any condition that allows a person to exercise a power in respect of any agreement or to terminate any agreement or as giving rise to any remedy for a party to a contract. Further, nothing effected or done under the schedule is to be regarded as causing any contract to be void or unenforceable, as frustrating any contract or releases any surety or other obligee or obligor from any obligation. 20

 


 

PART 3--MISCELLANEOUS AMENDMENTS Clause 26 inserts a new definition of fees and charges guidelines into section 3(1) of the Cemeteries and Crematoria Act 2003, and substitutes an amended definition of cemetery trust fee. Clause 27 substitutes a new section 4(4) of the Cemeteries and Crematoria Act 2003. The new section provides that the Governor in Council may by order published in the Government Gazette, change the name of a public cemetery, include additional reserved Crown land in a public cemetery, remove any land that has ceased to be reserved for the purposes of a cemetery from a public cemetery and amend or vary an order made under section 4(1). The Governor in Council has not gained any additional powers under new section 4(4), but the change means that the Governor in Council can carry out the functions in the section without the need to vary an order made under section 4(1) to establish the public cemetery. This should alleviate problems that may arise if the original order that established the public cemetery is not able to be located due to the passage of time since the establishment of the cemetery. Clause 28 subclause (1) amends section 39(2) of the Cemeteries and Crematoria Act 2003 by providing that a cemetery trust must have regard to the fees and charges guidelines, if any, made by the Secretary under new section 42A, when fixing fees and charges for services under section 39(1). Subclause (2) amends section 39(4) of the Cemeteries and Crematoria Act 2003 by providing that the fees and charges fixed by a cemetery trust under section 39 must be approved by the Secretary under section 40 unless the fees and charges are exempt from the approval requirement under new section 40A. Clause 29 amends section 40(2) of the Cemeteries and Crematoria Act 2003 by providing that the Secretary must approve a fee or charge or scale of fees and charges fixed under section 39, unless the fees and charges are exempt from the approval requirement under new section 40A. Clause 30 inserts new section 40A into the Cemeteries and Crematoria Act 2003. Section 40A(1) provides that the Secretary may exempt specified fees and charges or scales of fees and charges from being approved or disapproved under section 40 if in the opinion of the Secretary there is no public benefit in the fees and charges being approved. Section 40A(2) sets out the various matters that may be specified in or covered by an exemption. 21

 


 

An exemption must be published in the Government Gazette and may be published on the Internet. Clause 31 inserts new section 42A into Cemeteries and Crematoria Act 2003. Section 42A(1) states that the Secretary may make guidelines with respect to the fixing of fees and charges by cemetery trusts. The guidelines may specify the process and methodology to be applied by the trusts and that matters that trusts must take into account when fixing fees and charges. The guidelines must be published in the Government Gazette and may be published on the Internet. Clause 32 subclause (1) amends sections 43(1)(b) and 43(4) of the Cemeteries and Crematoria Act 2003 by substituting March for December, so that for the purpose of a consumer price index (CPI) related increase to cemetery trust fees, the CPI for the December quarter is referred to, instead of the March quarter. It also amends section 43(2) by substituting June for March, so that the Secretary's declaration (if any) regarding an increase in cemetery trust fees based on a CPI increase must be made no later than 1 March each year. Subclause (2) inserts new section 43 (1A) into the Cemeteries and Crematoria Act 2003. It provides that section 43 does not apply to a cemetery trust fee to which an exemption under section 40A applies. This means that any fees and charges that are exempt from approval under section 40A are not subject to a CPI increase under section 43. Subclause (3) substitutes the formula used to calculate a CPI related increase to cemetery trust fees, to incorporate the changes made to section 43. The formula now provides that the relevant cemetery trust fee as at 1 February (rather than 30 June) in the relevant financial year will be used as the basis of the Secretary's declaration (if any) regarding an increase in cemetery trust fees. It also states that a cemetery trust fee increased in accordance with section 43 must be rounded to the nearest 5 dollar unit. Clause 33 repeals section 48(a) of the Cemeteries and Crematoria Act 2003, with the effect that Division 4 of Part 3 of the Cemeteries and Crematoria Act 2003 will now apply to a cemetery trust to which the Financial Management Act 1994 applies, except where otherwise specified. It is intended that the Financial Management Act 1994 will apply to all Class A cemetery trusts. 22

 


 

Clause 34 amends section 49(2) of the Cemeteries and Crematoria Act 2003 so that it only applies to a Class B cemetery trust that is not a trust to which the Financial Management Act 1994 applies. Section 49(1) and (3) will apply to both Class A and Class B cemetery trusts. Clause 35 amends section 50 of the Cemeteries and Crematoria Act 2003 so that it only applies to Class B cemetery trusts. The amendments also state that a Class B cemetery trust is required to comply with a direction of the Secretary for the trust to have its accounts and records audited by a registered company auditor. Failure to do so may constitute grounds for the appointment of an administrator under section 10 of the Act. Clause 36 makes minor amendments to section 51 of the Cemeteries and Crematoria Act 2003 and inserts new paragraph (c) into section 51. Section 51 (c) provides the Secretary with the power to request the Auditor-General or a registered company auditor to conduct a performance audit of a cemetery trust, in addition to the existing power for the Secretary to request the Auditor- General or a registered company auditor to conduct a financial audit or investigation of a cemetery trust. Section 51 will apply to both Class A and Class B cemetery trusts. Clause 37 inserts new sections 51A to 51E into the Cemeteries and Crematoria Act 2003. Section 51A provides that the Secretary must determine the terms of reference for any audit or investigation under section 51 and determine the reporting requirements to the Secretary, and notify the person requested to conduct the audit or investigation of both the terms of reference and the reporting requirements. The person requested to conduct the audit or investigation must report to the Secretary on their outcome. The Secretary must also advise the relevant cemetery trust of the terms of reference for the audit or investigation and the name of the person who will carry out the audit or investigation. Section 51B provides that the Secretary must provide a person requested to conduct an audit or investigation with written evidence of the person's authority to act. The person must produce this evidence on request during the exercise of a power under the Act. Section 51C sets out new powers of persons conducting audits or investigations under section 51. A person may enter the premises of any cemetery trust for the purpose of the audit or investigation and inspect and copy cemetery trust records and ask questions of employees or members of the trust. The employees or members 23

 


 

are required to cooperate with the person conducting the audit or investigation, which includes, where so directed, producing a document, operating equipment to extract information from the equipment and answering questions asked by the person. Under section 51D, the person conducting the audit must report to the Secretary in accordance with any requirements under section 51A. Section 51E(1) imposes certain confidentiality requirements on a person conducting audits or investigation under section 51. It is an offence for the auditor to make a record of or divulge to any person, information acquired by the auditor in the conduct of the audit or investigation or making use of such information, for any purpose beyond the performance of official duties. The penalty is 100 penalty units. Section 51E(2) sets out a series of exemptions to the prohibition in subsection (1). Clause 38 inserts new section 52A into the Cemeteries and Crematoria Act 2003. Section 52A provides that a Class A cemetery trust must include particulars relating to the operation of the public cemetery and any crematorium for which it is responsible, in its report of operations under Part 7 of the Financial Management Act 1994. Clause 39 inserts new sections 64A and 64B into of the Cemeteries and Crematoria Act 2003. New section 64A provides that the Governor in Council may by order published in the Government Gazette reopen a closed cemetery or part thereof (but not a historic cemetery park) if in the Minister's opinion it is in the public interest to do so. An order to reopen a closed cemetery may be made in respect of a public cemetery or part thereof closed under section 62 of the Cemeteries and Crematoria Act 2003, section 44 of the repealed Cemeteries Act 1958 or under any corresponding previous enactment. New section 64B states that the effect of an order under section 64A is that the closed cemetery or part thereof is reopened, the cemetery trust responsible for managing the public cemetery or part thereof is responsible for managing and may permit interments at the reopened public cemetery or part thereof, and the reopened public cemetery or part thereof is a public cemetery for the purposes of the Act. Clause 40 amends section 82(2) of the Cemeteries and Crematoria Act 2003 to provide that where a cemetery trust refunds the sole holder of an unexercised right of interment for the surrender of that right, the cemetery trust may deduct any maintenance costs from that refund. 24

 


 

Clause 41 subclause (1) substitutes section 83(2) of the Cemeteries and Crematoria Act 2003. Section 83(1) provides that the sole holder of an exercised right of interment may surrender that right. New section 83(2)(a) provides that on the surrender of a right of interment under section 83(1), the cemetery trust must pay the holder a refund based on the current cemetery trust fee for the same type of right of interment, less the cemetery trust's maintenance, administration and restoration fees. Previously, no refund was permissible under the Act. New section 83(2)(b) provides that the holder has no further rights or entitlements in relation to that right of interment. New section 83(2)(a) is subject to new section 83(2A) which provides that no refund is payable if, at the time of the surrender of the right of interment, human remains are interred at the place of interment that is being surrendered. Subclause (2) substitutes section 83(3)(b) of the Cemeteries and Crematoria Act 2003. Section 83(3) sets out what a cemetery trust may do in relation to a place of interment after the right of interment that applies to that place of interment has been surrendered. New section 83(3)(b) provides that, if there are no human remains interred in the relevant place of interment, a cemetery trust may grant a right of interment in respect of that place of interment for interring human remains in a public grave or for interring human remains in that place of interment. This will extend the potential use of a place of interment where the corresponding right of interment has been surrendered. Clause 42 subclause (1) amends section 88(1) of the Cemeteries and Crematoria Act 2003 by providing that a person acting on behalf of the holder of the right of interment may, for the purposes of the re-use of a place of interment by the holder of a right of interment, apply for approval to carry out a lift and reposition procedure at the place of interment to which the right of interment applies. The holder of the right of interment still has the right to make this application. Subclause (2) inserts new section 88(2)(ab) into the Cemeteries and Crematoria Act 2003. Section 88(2) provides that an application under section 88(1) must be in writing and accompanied by the relevant cemetery trust fee, and new section 88(2)(ab) provides that where the application is made by a person acting on behalf of the holder of the right of interment, the application must be accompanied by a written authorisation from the holder of the right for the person to act on the holder's behalf. 25

 


 

Clause 43 substitutes, in section 58 of the Cemeteries and Crematoria Act 2003, the reference to section 125 of the Local Government Act 1989 with a reference to section 140 of the Local Government Act 1989. This is a statute law revision to correct an outdated section reference to the Local Government Act 2003. Clause 44 provides for the repeal of this amending Act on 1 July 2011. The repeal does not affect the ongoing operation of the amendments made by the amending Act (see section 15(1) of the Interpretation of Legislation Act 1984). 26

 


 

 


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