Victorian Current Acts Victorian Current ActsSchedule 2—Transitional provisions
1 General transitional provisions
(1) This Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .
(2) If this Schedule provides that a provision of an Act continues to apply to any matter or thing, then any regulation or other instrument having effect under that Act for the purposes of that provision also continues to apply to that matter or thing.
(3) If, by virtue of this Schedule, a provision of an Act or a regulation or instrument continues to apply to a matter or thing, it continues to apply as in force immediately before the provision was repealed or revoked.
(4) This Schedule applies despite anything to the contrary in any other provision of this Act.
2 Superseded references
On and from 1 July 2005, in any Act (other than this Act or a provision of the Cemeteries Act 1958 continued by this Act), or in any instrument made under any Act or in any other document of any kind—
(a) a reference to the Cemeteries Act 1958 is deemed to be a reference to the Cemeteries and Crematoria Act 2003 ; and
(b) a reference to a cemetery trust appointed under the Cemeteries Act 1958 or to trustees of a public cemetery is deemed to be a reference to a cemetery trust established under Part 2; and
(c) subject to clause 9, a reference to rules and regulations made by a cemetery trust under the Cemeteries Act 1958 is deemed to be a reference to—
(i) the model rules; or
(ii) if a cemetery trust makes cemetery trust rules, those cemetery trust rules—
so far as the reference relates to any period on or after 1 July 2005 and unless the context otherwise requires.
(1) On 1 July 2005, a cemetery trust responsible for a public cemetery under the Cemeteries Act 1958 in existence immediately before that date—
(a) is deemed to be a cemetery trust established under Part 2 responsible for the management of the same public cemetery and known by the same name; and
(b) continues in existence as if established under Part 2.
(2) On 1 July 2005, all money standing immediately before that date to the credit of a fund or account of a cemetery trust under the Cemeteries Act 1958 and any other money belonging to the cemetery trust as at that date may, after that date, be used or invested by a cemetery trust in accordance with this Act.
(3) On 1 July 2005, the trustees or members of a cemetery trust in office under the Cemeteries Act 1958 immediately before that date—
(a) are deemed to be the members of the cemetery trust continued in existence by subclause (1) appointed in accordance with section 6; and
(b) continue in office for the remainder of their original terms as if appointed under this Act.
(4) Despite subclause (3), a cemetery trust is to operate with the number of members it had immediately before 1 July 2005 until—
(a) if there were less than 3 trustees immediately before 1 July 2005, the Governor in Council appoints new members in accordance with this Act; or
(b) if there were more than 11 trustees immediately before 1 July 2005, the number of initial members falls to 11.
4 Public cemeteries and crematoria
(1) On 1 July 2005, a public cemetery in existence immediately before that date is deemed to be a public cemetery established in accordance with Part 2 with the same name as it had before that date.
(2) On 1 July 2005, a crematorium in existence immediately before that date is deemed to be a crematorium established under section 21.
(3) On 1 July 2005, any mausoleum established by a cemetery trust under the Cemeteries Act 1958 in existence immediately before that date is deemed to be a mausoleum facility established under section 22.
5 Rights of interment
(1) On 1 July 2005, an exclusive right of burial under the Cemeteries Act 1958 in existence immediately before that date—
(a) is deemed to be a right of interment specified in section 75(a) of this Act in respect of the same site as that exclusive right of burial; and
(b) is subject to any terms and conditions on which it was originally granted under the Cemeteries Act 1958 which are not inconsistent with this Act.
(2) On 1 July 2005, any agreement for the interment of human remains which was not for a limited period made with a cemetery trust under the Cemeteries Act 1958 or the rules made under that Act and in existence immediately before that date—
(a) is deemed to be a right of interment specified in section 75(a) of this Act in respect of the same site as that to which the agreement related; and
(b) is subject to any terms and conditions on which it was originally granted under the Cemeteries Act 1958 which are not inconsistent with this Act.
(3) On 1 July 2005, any agreement for the interment of human remains for a limited period made with a cemetery trust under the Cemeteries Act 1958 or the rules made under that Act and in existence immediately before that date—
(a) is deemed to be a right of interment for a period not exceeding the time for which it is granted; and
(b) may be converted to a 25 year right of interment or a perpetual right of interment in accordance with section 87 as if it were a right of interment referred to in that section.
(4) On 1 July 2005, any agreement for the interment of human remains in a public grave made with a cemetery trust under the Cemeteries Act 1958 or the rules made under that Act and in existence immediately before that date is deemed to be a right of interment specified in section 75(b) of this Act.
6 Interment authorisations and approvals
(1) On 1 July 2005, an application for a burial permit under section 19 of the Cemeteries Act 1958 which has been made but not determined before 1 July 2005 is deemed to be an application for an interment authorisation and may be considered and determined by a cemetery trust accordingly.
(2) On 1 July 2005, a burial permit issued under section 19 of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be an interment authorisation.
(3) On 1 July 2005, an application for an approval from the Secretary for burial in any private ground or land under section 47 of the Cemeteries Act 1958 which has been made but not determined before 1 July 2005 is deemed to be an application for an interment approval and may be considered and determined by the Secretary accordingly.
(4) On 1 July 2005, an approval from the Secretary for burial in any private ground or land under section 47 of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be an interment approval.
7 Cremation authorisations and approvals
(1) On 1 July 2005, an application for permission to cremate a corpse under section 76 of the Cemeteries Act 1958 which has been made but not determined before 1 July 2005 is deemed to be an application for a cremation authorisation and may be considered and determined by a cemetery trust accordingly.
(2) On 1 July 2005, any permission to cremate a corpse given under section 76 of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be a cremation authorisation.
(3) On 1 July 2005, an application for the consent the Secretary to cremate or destroy human remains by fire in any place outside a cemetery under section 79 of the Cemeteries Act 1958 which has been made but not determined before that date is deemed to be an application for an approval to cremate outside a public cemetery under section 135 and may be considered and determined by the Secretary accordingly.
(4) On 1 July 2005, a duly completed document authorising cremation signed by the Secretary under section 77(1)(b)(iv) of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be a cremation approval.
8 Registers and records
On 1 July 2005, a register or record kept under the Cemeteries Act 1958 is deemed to be a record kept in accordance with Part 4.
9 Trustees rules and regulations
On 1 July 2005—
(a) all rules and regulations made by a cemetery trust under section 9 of the Cemeteries Act 1958 are revoked; and
(b) the model rules apply to any public cemetery for which a cemetery trust continued in existence under clause 3 is responsible unless that cemetery trust makes cemetery trust rules.
10 Continuation of entitlement under section 25(5) of the Cemeteries Act 1958
Despite the repeal of section 25(5) of the Cemeteries Act 1958 , a person who had a right to acquire an exclusive right under section 25 in respect of a place of burial in existence immediately before that repeal is entitled, on payment of the relevant cemetery trust fee, to purchase a right of interment specified in section 75(a) to that place.
11 Existing fees or charges or scales of fees and charges
On 1 July 2005, any scale of fees made by a cemetery trust under section 17 or section 69 of the Cemeteries Act 1958 is deemed to be the cemetery trust fees in respect of that public cemetery and, subject to this Act, remains in force until 1 July 2006.
12 Administrators appointed under Cemeteries Act 1958
On 1 July 2005, any administrator appointed to manage a public cemetery under section 6 of the Cemeteries Act 1958 and whose appointment was in force immediately before that date is deemed to have been appointed to manage that public cemetery in accordance with section 10.
13 Borrowings under Cemeteries Act 1958
Despite the repeal of section 8 of the Cemeteries Act 1958 , that section, as in force immediately before its repeal, continues to apply in relation to any money borrowed by a cemetery trust under that section immediately before its repeal.
14 Existing borrowings approved by Treasurer
Despite the repeal of section 8A of the Cemeteries Act 1958 , that section, other than subsection (7), as in force immediately before its repeal continues to apply in respect of any moneys borrowed by a cemetery trust in accordance with that section immediately before its repeal.
15 Permits to erect monuments and dig graves
(1) On 1 July 2005, a permit issued under section 18 of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be an approval under section 99.
(2) Section 179 does not apply to a permit issued under section 18 of the Cemeteries Act 1958 which is deemed by subclause (1) to be an approval under section 99.
16 Erecting monuments
(1) On 1 July 2005, a plan of a vault, monument or tombstone proposed to be erected or placed in a cemetery submitted to a cemetery trust and the Secretary under section 20 of the Cemeteries Act 1958 which has not been determined before that date is deemed, on that date, to be an application under section 98 and may be considered and determined by a cemetery trust accordingly.
(2) On 1 July 2005, a permit issued under section 20 of the Cemeteries Act 1958 and in existence immediately before that date is deemed to be an approval under section 99.
(3) Section 179 does not apply to a permit issued under section 20 of the Cemeteries Act 1958 which is deemed by subclause (2) to be an approval under section 99.
17 Noxious exhalations or evaporations
On 1 July 2005, a notice under section 22 of the Cemeteries Act 1958 existing immediately before that date is deemed to be a notice under section 106.
18 Repair of memorials
(1) On 1 July 2005, a notice under section 23 of the Cemeteries Act 1958 existing immediately before that date is deemed to be a notice under section 106.
(2) On 1 July 2005, a consent of the Secretary under section 23(3)(b) of the Cemeteries Act 1958 existing immediately before that date is deemed to be a consent of the Secretary under section 106(4)(b).
19 Money lent or paid and securities
Despite the repeal of sections 31 and 32 of the Cemeteries Act 1958 , those sections, as in force immediately before their repeal, continue to apply in respect of any sum lent or paid under section 31 to a cemetery trust under that Act or security given under section 32 of that Act.
20 Accounts and abstracts
Despite the repeal of sections 33, 34 and 35 of the Cemeteries Act 1958 , a cemetery trust must provide to the Secretary by 1 October 2005, accounts, abstracts and a statement for the period commencing 1 January 2005 and ending 30 June 2005 containing the information referred to in those sections as in force immediately before their repeal.
On 1 July 2005, any existing exhumation licence issued under section 48 of the Cemeteries Act 1958 is deemed to be an exhumation licence under this Act.
22 Overlay sites at Melbourne General Cemetery
Despite the repeal of section 46A of the Cemeteries Act 1958 , that section, as in force immediately before its repeal, continues to apply in respect of any right of burial or interment to which that section applied immediately before its repeal.
23 Mortuary churches or chapels
On 1 July 2005, a plan of a mortuary church or chapel proposed to be erected and built in a cemetery submitted for the approval of a cemetery trust under section 29 of the Cemeteries Act 1958 which has not been determined before that date is deemed, on that date, to be an application under section 101 and may be considered and determined by a cemetery trust accordingly.
24 Pioneer memorial parks
(1) On 1 July 2005, a pioneer memorial park established under Part IA of the Cemeteries Act 1958 is deemed to be a historic cemetery park.
(2) On 1 July 2005, a proposal to convert a cemetery to a pioneer memorial park submitted to the Secretary under section 60B(1) of the Cemeteries Act 1958 which has been made but not determined before that date is deemed to be an application under section 66 and may be considered and determined by the Minister accordingly.
(3) On 1 July 2005, an authority granted by the Minister under section 60B(3) of the Cemeteries Act 1958 in existence at that date is deemed to be an approval to convert under section 67.
25 Third Schedule certificate
On 1 July 2005, a duly completed document in the form of the Third Schedule to the Cemeteries Act 1958 and in existence immediately before that date is deemed to be a certificate of a registered medical practitioner authorising cremation referred to in section 131(3)(a)(i).
Sch. 3 inserted by No. 61/2009 s. 24.