Victorian Numbered Acts Victorian Numbered Acts" SCHEDULE 4
Section 5B
ABOLITION OF CERTAIN CEMETERY TRUSTS AND ESTABLISHMENT OF NEW CLASS A CEMETERY TRUSTS
In this Schedule—
"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;
"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 instrument "means an instrument (including a legislative instrument other than this Act) subsisting immediately before the relevant appointed day—
(a) to which the old Mildura Cemetery Trust, a former southern cemetery trust or a former north west and eastern cemetery trust (as the case requires) was a party; or
(b) that was given to, or in favour of, the old Mildura Cemetery Trust, a former southern cemetery trust or a former north west and eastern cemetery trust (as the case requires); or
(c) that refers to the old Mildura Cemetery Trust, a former southern cemetery trust or a former north west and eastern cemetery trust (as the case requires); or
(d) under which—
(i) money is, or may become, payable to the old Mildura Cemetery Trust, a former southern cemetery trust or a former north west and eastern cemetery trust (as the case requires); or
(ii) other property is to be, or may become liable to be, transferred to or by the old Mildura Cemetery Trust, a former southern cemetery trust or a former north west and eastern cemetery trust (as the case requires);
"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;
"liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective;
"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;
"property" means a legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;
"rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective;
"staff transfer date" means a date fixed by the Secretary under clause 16;
"The Greater Metropolitan Cemeteries Trust" means the Class A cemetery trust established by clause 4;
"The Keilor Cemetery Trust" means the Keilor Cemetery Trust of which the
Brimbank City Council or its councillors are the members;
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"The Mildura Cemetery Trust" means the Class A cemetery trust established by clause 3;
"the old Mildura Cemetery Trust" means the Mildura Cemetery Trust of which the Mildura Rural City Council or its councillors are the members;
"The Preston Cemetery Trust" means the Preston Cemetery Trust of which the Darebin City Council or its councillors are the members;
"The Southern Metropolitan" Cemeteries Trust means the Class A cemetery trust established by clause 5;
"transfer order" means an order made under clause 10;
"Wyndham Cemeteries Trust" means the Wyndham Cemeteries Trust of which the Wyndham City Council or its councillors are the members.
(1) The Governor in Council, by order published in the Government Gazette, may appoint a day as the appointed day in relation to The Mildura Cemetery Trust for the purposes of this Schedule.
(2) The Governor in Council, by order published in the Government Gazette, may appoint a day as the appointed day in relation to The Greater Metropolitan Cemeteries Trust for the purposes of this Schedule.
(3) The Governor in Council, by order published in the Government Gazette, may appoint a day as the appointed day in relation to The Southern Metropolitan Cemeteries Trust for the purposes of this Schedule.
(1) On the appointed day—
(a) the old Mildura Cemetery Trust is abolished and its members go out of office; and
(b) The Mildura Cemetery Trust is established and is the successor in law of the old Mildura Cemetery Trust; and
(c) all property and rights of the old Mildura Cemetery Trust are, by virtue of this clause, vested in The Mildura Cemetery Trust; and
(d) all liabilities of the old Mildura Cemetery Trust are, by virtue of this clause, liabilities of The Mildura Cemetery Trust.
(2) The Mildura Cemetery Trust—
(a) is a Class A cemetery trust responsible for the management of the public cemeteries for which the old Mildura Cemetery Trust was responsible immediately before the appointed day; and
(b) is taken to have been established as a Class A cemetery trust under Part 2.
(1) On the appointed day—
(a) the following cemetery trusts are abolished and the members go out of office—
(i) The Anderson's Creek Cemetery Trust;
(ii) The Keilor Cemetery Trust;
(iii) The Lilydale Cemeteries Trust;
(iv) The Preston Cemetery Trust;
(v) The Templestowe Cemetery Trust;
(vi) The Trustees of the Altona Memorial Park;
(vii) The Trustees of the Fawkner Crematorium and Memorial Park;
(viii) Wyndham Cemeteries Trust;
(b) The Greater Metropolitan Cemeteries Trust is established and is the successor in law to each of the cemetery trusts specified in paragraph (a); and
(c) all property and rights of each of the former north west and eastern cemetery trusts are, by virtue of this clause, vested in The Greater Metropolitan Cemeteries Trust; and
(d) all liabilities of each of the former north west and eastern cemetery trusts are, by virtue of this clause, liabilities of The Greater Metropolitan Cemeteries Trust.
(2) The Greater Metropolitan Cemeteries Trust—
(a) is a Class A cemetery trust responsible for the management of the public cemeteries for which each of the former north west and eastern cemetery trusts was responsible immediately before the appointed day; and
(b) is taken to have been established as a Class A cemetery trust under Part 2.
(1) On the appointed day—
(a) The Cheltenham and Regional Cemeteries Trust is abolished and the members go out of office; and
(b) The Trustees of the Necropolis, Spring Vale is abolished and the members go out of office; and
(c) The Southern Metropolitan Cemeteries Trust is established and is the successor in law to each of the cemetery trusts specified in paragraphs (a) and (b); and
(d) all property and rights of each of the former southern cemetery trusts are, by virtue of this clause, vested in The Southern Metropolitan Cemeteries Trust; and
(e) all liabilities of each of the former southern cemetery trusts are, by virtue of this clause, liabilities of The Southern Metropolitan Cemeteries Trust.
(2) The Southern Metropolitan Cemeteries Trust—
(a) is a Class A cemetery trust responsible for the management of the public cemeteries for which each of the former southern cemetery trusts was responsible immediately before the appointed day; and
(b) is taken to have been established as a Class A cemetery trust under Part 2.
(1) If, under clause 3, the rights and liabilities of the old Mildura Cemetery Trust under an agreement, including an oral agreement, vest in, or become rights and liabilities of, The Mildura Cemetery Trust—
(a) on the appointed day, The Mildura Cemetery Trust becomes a party to the agreement in place of the old Mildura Cemetery Trust; and
(b) on and after the appointed day, the agreement has effect as if The Mildura Cemetery Trust had always been a party to the agreement.
(2) If, under clause 4, the rights and liabilities of a former north west and eastern cemetery trust under an agreement, including an oral agreement, vest in, or become rights and liabilities of, The Greater Metropolitan Cemeteries Trust—
(a) on the appointed day, The Greater Metropolitan Cemeteries Trust becomes a party to the agreement in place of the relevant former north west and eastern cemeteries trust; and
(b) on and after the appointed day, the agreement has effect as if The Greater Metropolitan Cemeteries Trust had always been a party to the agreement.
(3) If, under clause 5, the rights and liabilities of a former southern cemetery trust under an agreement, including an oral agreement, vest in, or become rights and liabilities of, The Southern Metropolitan Cemeteries Trust—
(a) on the appointed day, The Southern Metropolitan Cemeteries Trust becomes a party to the agreement in place of the relevant former southern cemetery trust; and
(b) on and after the appointed day, the agreement has effect as if The Southern Metropolitan Cemeteries Trust had always been a party to the agreement.
Any former instrument continues to have effect according to its tenor on and after the relevant appointed day as if a reference in the instrument—
(a) to the old Mildura Cemetery Trust were a reference to The Mildura Cemetery Trust;
(b) to a former north west and eastern cemetery trust were a reference to The Greater Metropolitan Cemeteries Trust;
(c) to a former southern cemetery trust were a reference to The Southern Metropolitan Cemeteries Trust.
(1) If, immediately before the appointed day, proceedings to which the old Mildura Cemetery Trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Mildura Cemetery Trust—
(a) is substituted for the old Mildura Cemetery Trust as a party to the proceedings; and
(b) has the same rights in the proceedings as the old Mildura Cemetery Trust had.
(2) If, immediately before the appointed day, proceedings to which a former north west and eastern cemetery trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Greater Metropolitan Cemeteries Trust—
(a) is substituted for the relevant former north west and eastern cemetery trust as a party to the proceedings; and
(b) has the same rights in the proceedings as the relevant former north west and eastern cemetery trust had.
(3) If, immediately before the appointed day, proceedings to which a former southern cemetery trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Southern Metropolitan Cemeteries Trust—
(a) is substituted for the relevant former southern cemetery trust as a party to the proceedings; and
(b) has the same rights in the proceedings as the relevant former southern cemetery trust had.
Without limiting Division 2 of Part 3 or this Schedule and despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006 ), subject to clause 10, if—
(a) immediately before the appointed day the old Mildura Cemetery Trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958 , on and after that day—
(i) The Mildura Cemetery Trust is to be taken to be the registered proprietor of that interest in land; and
(ii) The Mildura Cemetery Trust has the same rights and remedies in respect of that interest as the old Mildura Cemetery Trust had;
(b) immediately before the appointed day a former north west and eastern cemetery trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958 , on and after that day—
(i) The Greater Metropolitan Cemeteries Trust is to be taken to be the registered proprietor of that interest in land; and
(ii) The Greater Metropolitan Cemeteries Trust has the same rights and remedies in respect of that interest as the relevant former north west and eastern cemetery trust had;
(c) immediately before the appointed day, a former southern cemetery trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958 , on and after that day—
(i) The Southern Metropolitan Cemeteries Trust is to be taken to be the registered proprietor of that interest in land; and
(ii) The Southern Metropolitan Cemeteries Trust has the same rights and remedies in respect of that interest as the relevant former southern cemetery trust had.
(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may allocate to a Class A cemetery trust established by this Schedule the property, rights and liabilities of a municipal council which constituted a former council managed cemetery trust primarily used for or related to a former council managed cemetery trust or used for or in connection with the provision of cemetery or crematoria services or the management of a public cemetery by the municipal council that are specified in the order.
(2) Without limiting subclause (1), a transfer order may allocate property, rights and liabilities by reference—
(a) to a public cemetery or other place; or
(b) to a class or category of property, rights or liabilities; or
(c) to a combination of paragraphs (a) and (b).
(3) The Minister must not recommend the making of a transfer order unless he or she is satisfied that the details of the property, rights or liabilities to be transferred have been agreed between a municipal council which constituted a former council managed cemetery trust and the Secretary or a new Class A cemetery trust established by this Schedule.
(1) If a transfer order is made, on the date specified in the order as the transfer date—
(a) all property and rights of the municipal council specified in the order vest in the Class A cemetery trust established by this Schedule and specified in the transfer order; and
(b) all liabilities of the municipal council specified in the order become liabilities of the Class A cemetery trust established by this Schedule and specified in the transfer order; and
(c) the Class A cemetery trust established by this Schedule and specified in the order becomes the successor in law of the municipal council in relation to the property, rights and liabilities specified in the transfer order.
(2) If, under a transfer order, the property, rights and liabilities of a municipal council under an agreement, including an oral agreement, vest in, or become property, rights and liabilities of, a Class A cemetery trust established by this Schedule—
(a) the Class A cemetery trust becomes, on the transfer date specified in the transfer order, a party to the agreement in place of the municipal council; and
(b) on and after the transfer date specified in the transfer order, the agreement has effect as if the Class A cemetery trust had always been a party to the agreement.
(3) If, immediately before the transfer date specified in the transfer order, proceedings relating to the property, rights or liabilities specified in the transfer order to which a municipal council was a party, were pending or existing in any court or tribunal, on and after the transfer date specified in the transfer order, the Class A cemetery trust established by this Schedule and specified in the order—
(a) is substituted for the municipal council as a party to the proceedings; and
(b) has the same rights in the proceedings as the municipal council had.
(4) Without limiting this Schedule and despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006 ), if immediately before the transfer date specified in the transfer order, a municipal council is, in relation to the property, rights or liabilities specified in the transfer order, the registered proprietor of an interest in land under the Transfer of Land Act 1958 , then on and after that date—
(a) the Class A cemetery trust established by this Schedule and specified in the order is to be taken to be the registered proprietor of that interest in land; and
(b) the Class A cemetery trust established by this Schedule and specified in the order has the same rights and remedies in respect of that interest as the municipal council had.
(5) 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 this Schedule has effect and continues to have effect according to its tenor on and after the transfer date specified in the transfer order as if a reference in the instrument to the municipal council were a reference to the Class A cemetery trust specified in the transfer order.
(6) More than one transfer order may be made under this clause.
(1) The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Mildura Cemetery Trust.
(2) The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Greater Metropolitan Cemeteries Trust.
(3) The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Southern Metropolitan Cemeteries Trust.
(4) Subject to this Act, a person appointed to act as interim chief executive officer—
(a) of The Mildura Cemetery Trust appointed under subclause (1) is taken to have been appointed by The Mildura Cemetery Trust;
(b) of The Greater Metropolitan Cemeteries Trust appointed under subclause (2) is taken to have been appointed by The Greater Metropolitan Cemeteries Trust;
(c) of The Southern Metropolitan Cemeteries Trust appointed under subclause (3) is taken to have been appointed by The Southern Metropolitan Cemeteries Trust.
(5) An appointment under subclause (1), (2) or (3)—
(a) is subject to the terms and conditions specified in the instrument of appointment; and
(b) is for the period specified in that instrument, not exceeding 6 months.
Note
See section 13 of the Interpretation of Legislation Act 1984 .
(6) The Secretary may reappoint an interim chief executive officer appointed under this clause provided the total period of the interim chief executive officer's appointment does not exceed 12 months.
(7) Nothing in this clause prevents a person appointed as an interim chief executive officer being employed by the relevant Class A cemetery trust in accordance with section 18L as a chief executive officer after his or her interim appointment expires.
(1) A person who, immediately before the appointed day, was an employee of the old Mildura Cemetery Trust is to be taken as—
(a) having been employed by The Mildura Cemetery Trust with effect from that day; and
(b) having been employed by The Mildura Cemetery Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the old Mildura Cemetery Trust; and
(c) having accrued an entitlement to benefits in connection with that employment by The Mildura Cemetery Trust that is equivalent to the entitlement that the person had accrued as an employee of the old Mildura Cemetery Trust immediately before that day.
(2) A person who, immediately before the appointed
day, was an employee of a former north west and eastern cemetery trust is to
be taken as—
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(a) having been employed by The Greater Metropolitan Cemeteries Trust with effect from that day; and
(b) having been employed by The Greater Metropolitan Cemeteries Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the relevant former north west and eastern cemetery trust; and
(c) having accrued an entitlement to benefits in connection with that employment by The Greater Metropolitan Cemeteries Trust that is equivalent to the entitlement that the person had accrued as an employee of the relevant former north west and eastern cemetery trust immediately before that day.
(3) A person who, immediately before the appointed day, was an employee of a former southern cemetery trust is to be taken as—
(a) having been employed by The Southern Metropolitan Cemeteries Trust with effect from that day; and
(b) having been employed by The Southern Metropolitan Cemeteries Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the relevant former southern cemetery trust; and
(c) having accrued an entitlement to benefits in connection with that employment by The Southern Metropolitan Cemeteries Trust that is equivalent to the entitlement that the person had accrued as an employee of the relevant former southern cemetery trust immediately before that day.
(4) The service of an employee transferred under this clause as an employee—
(a) of The Mildura Cemetery Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the old Mildura Cemetery Trust;
(b) of The Greater Metropolitan Cemeteries Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the relevant former north west and eastern cemetery trust;
(c) of The Southern Metropolitan Cemeteries Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the relevant former southern cemetery trust.
(5) The superannuation entitlements of an employee transferred under this clause are to be taken not to be affected by the transfer of the person under this clause.
(6) An employee transferred under this clause is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the old Mildura Cemetery Trust, the relevant former southern cemetery trust or the relevant former north west and eastern cemetery trust, as the case requires, because of this clause.
(7) 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 person named in the certificate was, with effect from the relevant appointed day, employed by virtue of this clause by The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust (as the case requires)—
(a) is admissible in evidence in any proceedings; and
(b) is conclusive proof of the matters stated in it.
(8) This clause does not apply to the chief executive officer (by whatever title called) of—
(a) the old Mildura Cemetery Trust;
(b) a former north west and eastern cemetery trust;
(c) a former southern cemetery trust.
(9) This clause does not apply to a listed employee.
Nothing in clause 13 prevents—
(a) any of the terms and conditions of employment of a person referred to in that clause from being altered by or under any law, award or agreement with effect from any time after the relevant appointed day; or
(b) a person referred to in that clause from resigning or being dismissed at any time after the relevant appointed day in accordance with the then existing terms and conditions of his or her employment by The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust, as the case requires.
(1) Before the relevant staff transfer date, 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 a new Class A cemetery trust established by this Schedule on that date.
(2) A person is eligible to be a listed employee if that person—
(a) is employed by a municipal council referred to in subclause (1) primarily for the purposes of a cemetery trust or any public cemetery for which it is responsible; and
(b) agrees to be transferred in accordance with this Schedule.
(3) The list may specify the listed employees—
(a) by name or position; or
(b) by class or category; or
(c) by reference to a municipal council, a cemetery trust, public cemetery or other place; or
(d) by any combination of paragraphs (a) to (c).
(4) The list must specify the new Class A cemetery trust established by this Schedule which, on the staff transfer date, is to become the employer of each listed employee specified on the list.
(5) Nothing in this clause prevents a person specified as a listed employee under this clause from resigning or being dismissed at any time before the relevant staff transfer date in accordance with the terms and conditions of his or her employment.
(1) The Secretary, by notice published in the Government Gazette, may determine a date that is to be the staff transfer date for the purposes of transferring a listed employee or listed employees.
(2) A staff transfer date must not be a date earlier than the appointed day in relation to the relevant Class A cemetery trust established by this Schedule.
(3) The Secretary may give more than one notice under this clause.
(1) A person who was a listed employee immediately before the relevant staff transfer date is to be taken as—
(a) having been employed by the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee with effect from the staff transfer date; and
(b) having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant staff transfer date, as an employee of the relevant municipal council; and
(c) having accrued an entitlement to benefits in connection with that employment with the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee that is equivalent to the entitlement that the person had accrued as an employee of the relevant municipal council immediately before the relevant staff transfer date.
(2) The service of a listed employee transferred under this clause as an employee of the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee is to be regarded for all purposes as having been continuous with the service of the transferred listed employee, immediately before the relevant staff transfer date, as an employee of the relevant municipal council.
(3) A listed employee transferred under this
clause is not entitled to receive any payment or other benefit by reason only
of having ceased to be an employee of a municipal council because of this
Schedule.
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(4) The superannuation entitlements of an employee transferred under this clause are to be taken not to be affected by the transfer of the person under this clause.
(5) A certificate purporting to be signed by the chief executive officer of the Class A cemetery trust established by this Schedule and specified in the list in respect of a listed employee certifying that a person named in the certificate was, with effect from the relevant staff transfer date, employed by virtue of this clause by the Class A cemetery trust named in the certificate—
(a) is admissible in evidence in any proceedings; and
(b) is conclusive proof of the
matters stated in it.
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Nothing in clause 17 prevents—
(a) any of the terms and conditions of employment of a listed employee transferred under that clause from being altered by or under any law, award or agreement with effect from any time after the relevant staff transfer date; or
(b) a listed employee transferred under that clause from resigning, or the termination of that employee's employment, at any time after the relevant staff transfer date in accordance with the then existing terms and conditions of his or her employment by the Class A cemetery trust to which that listed employee was transferred.
(1) 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, on and from the relevant appointed day, are taken to be cemetery trust fees fixed by—
(a) The Mildura Cemetery Trust, in the case of cemetery trust fees fixed by the old Mildura Cemetery Trust;
(b) The Greater Metropolitan Cemeteries Trust, in the case of cemetery trust fees fixed by a former north west and eastern cemetery trust;
(c) The Southern Metropolitan Cemeteries Trust, in the case of cemetery trust fees fixed by a former southern cemetery trust.
(2) Cemetery trust fees to which this clause applies must be reviewed by the relevant Class A cemetery trust established by this Schedule within 2 years of the relevant appointed day for each Class A cemetery trust.
On and from the relevant appointed day, in any Act (other than this Act), or in any subordinate instrument made under any Act or in any other document of any kind, unless the context otherwise requires—
(a) a reference to The Cheltenham and Regional Cemeteries Trust is to be construed as a reference to The Southern Metropolitan Cemeteries Trust;
(b) a reference to The Trustees of the Necropolis, Spring Vale is to be construed as a reference to The Southern Metropolitan Cemeteries Trust;
(c) a reference to The Anderson's Creek Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(d) a reference to The Keilor
Cemetery Trust is to be construed as a reference to The Greater Metropolitan
Cemeteries Trust;
s. 25
(e) a reference to The Lilydale Cemeteries Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(f) a reference to The Preston Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(g) a reference to The Templestowe Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(h) a reference to The Trustees of the Altona Memorial Park is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(i) a reference to The Trustees of the Fawkner Crematorium and Memorial Park is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(j) a reference to Wyndham Cemeteries Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;
(k) a reference to the Mildura Cemetery Trust is to be construed as a reference to The Mildura Cemetery Trust established by this Schedule.
The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument, must make any amendments in the Register that are necessary because of the operation of this Schedule.
No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Schedule or in respect of any act or transaction connected with or necessary to be done by reason of this Schedule, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of a cemetery trust.
Nothing effected or to be effected by this Schedule or done or suffered under this Schedule—
(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or
(b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or
(c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or
(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or
(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or
(f) is to be regarded as frustrating
any contract; or
s. 25
(g) releases any surety or other obligee or obligor wholly or in part from any obligation.".
__________________
PART 3—MISCELLANEOUS AMENDMENTS
26 Definitions
s. 26
In section 3(1) of the Cemeteries and Crematoria Act 2003 —
(a) insert the following definition—
""fees and charges guidelines" means guidelines made under section 42A;";
(b) for the definition of cemetery trust fee substitute —
""cemetery trust fee" means a fee or charge or scale of fees and charges set under section 39 and either—
(a) approved under section 40; or
(b) exempt under section 40A from approval under section 40;".
27 Establishment of public cemeteries
For section 4(4) of the Cemeteries and Crematoria Act 2003 substitute —
"(4) The Governor in Council, by order published in the Government Gazette, may—
(a) change the name of a public cemetery;
(b) include additional reserved Crown land in a public cemetery;
(c) remove any land that has ceased to be reserved for the purposes of a cemetery from a public cemetery;
(d) amend or vary an order made under subsection (1).".
28 Power to fix fees and charges
(1) After section 39(2)(a) of the Cemeteries and Crematoria Act 2003 insert —
"(ab) the fees and charges guidelines, if any; and".
(2) In section 39(4) of the
Cemeteries and Crematoria Act 2003 after "section 40" insert
", unless they
are exempt under section 40A".
29 Secretary to approve fees and charges
In section 40(2) of the Cemeteries and Crematoria Act 2003 after "in part"
insert
", unless they are exempt under section 40A".
30 New section 40A inserted
After section 40 of the Cemeteries and Crematoria Act 2003 insert —
(1) The Secretary may exempt specified fees and charges or scales of fees and charges from being approved under section 40 if, in the Secretary's opinion, there is no public benefit in those fees and charges being approved.
(2) An exemption under subsection (1) may—
(a) specify individual fees and charges or scales of fees and charges which do not require approval under section 40;
(b) specify fees and charges or scales of fees and charges by class;
(c) be of general or limited application;
(d) differ according to differences in time, place or circumstance;
(e) apply to all cemetery trusts, specified cemetery trusts or specified classes of cemetery trusts;
(f) apply to all public cemeteries, specified public cemeteries or specified classes of public cemetery.
(3) The Secretary—
(a) must cause an exemption under subsection (1) to be published in the Government Gazette; and
(b) may publish the exemption under subsection (1) on the Internet.
(4) An exemption under subsection (1) takes effect on the date of publication in the Government Gazette or such later date as is specified in the exemption.".
31 New section 42A inserted
s. 31
After section 42 of the Cemeteries and Crematoria Act 2003 insert —
(1) The Secretary may make guidelines for or with respect to fees and charges fixed by cemetery trusts for services.
(2) The guidelines may include, but are not limited to, processes and methodologies to be applied by a cemetery trust and matters it must take into account.
(3) The Secretary—
(a) must cause the fees and charges guidelines to be published in the Government Gazette; and
(b) may publish the fees and charges guidelines on the Internet.
(4) The fees and charges guidelines take effect on the date of publication in the Government Gazette or such later date as is specified in the guidelines.".
32 Fees and charges to increase by CPI
(1) In section 43 of the Cemeteries and Crematoria Act 2003 —
(a) for subsection (1)(b) substitute —
"(b) if the CPI for the December quarter of the financial year in which the declaration under subsection (2) is made is more than the CPI for the previous December quarter.";
(b) in subsection (2) for "June" substitute "March".
(2) After section 43(1) of the Cemeteries and Crematoria Act 2003 insert —
"(1A) This section does not apply to a cemetery trust fee to which an exemption under section 40A applies.".
(3) For sections 43(4) and 43(5) of the Cemeteries and Crematoria Act 2003 substitute —
'(4) A cemetery trust fee to which this section applies is increased by an amount calculated in accordance with the following formula—
where—
" A " is the relevant cemetery trust fee as at 1 February in the financial year in which the declaration under subsection (2) is made; and
" B " is the CPI for the December quarter in the financial year in which the declaration under subsection (2) is made; and
" C " is the CPI for the previous December quarter.
(5) A cemetery trust fee increased in accordance with this section must be rounded to the nearest 5 dollar unit.
Example
A CPI adjusted fee of $1923 is rounded to $1925. A CPI adjusted fee of $1922 is rounded to $1920.'.
(4) In section 43(7) of the Cemeteries and Crematoria Act 2003 —
(a) for "Statistician;" substitute "Statistician.";
(b) the definition of relevant year is repealed .
33 Application of Division
s. 33
Section 48(a) of the Cemeteries and Crematoria Act 2003 is repealed .
34 Accounts and records
In section 49(2) of the Cemeteries and Crematoria Act 2003 for "The"
substitute
"In the case of a Class B cemetery trust that is not a cemetery
trust to which the Financial Management Act 1994 applies, the".
35 Auditing
(1) In section 50 of the Cemeteries and Crematoria Act 2003 for "a cemetery trust" (where twice occurring) substitute "a Class B cemetery trust".
(2) After section 50(2) of the Cemeteries and Crematoria Act 2003 insert —
"(3) A Class B cemetery trust must comply with a direction given under this section.".
36 Secretary may ask for investigation
In section 51 of the Cemeteries and Crematoria Act 2003 —
(a) for "ask" substitute "request";
(b) in paragraph (b) for "trust."
substitute
"trust; or";
(c) after paragraph (b) insert —
"(c) to conduct a performance audit of a cemetery trust—
(i) to determine whether the trust is complying with the Act; or
(ii) to investigate any aspect of the trust's governance, management or operations.".
37 New sections 51A to 51E inserted
After section 51 of the Cemeteries and Crematoria Act 2003 insert —
(1) Before any audit or investigation is conducted under section 51, the Secretary must—
(a) determine the terms of reference of the audit or investigation, including any particular objectives or issues to be addressed;
(b) determine the reporting requirements, including when a final report of the audit or investigation is to be given to the Secretary;
(c) specify in writing to a person requested to conduct the audit or investigation under section 51—
(i) the terms of reference for the audit or investigation; and
(ii) the reporting requirements.
(2) The Secretary must notify a cemetery trust which is to be audited or investigated under section 51 of—
(a) the terms of reference for the audit or investigation; and
(b) the name of the person requested to conduct the audit or investigation.
(1) The Secretary must issue to a person requested to conduct an audit or investigation under section 51 written evidence of that person's authority to conduct that audit or investigation.
(2) A person requested by the Secretary to conduct an audit or investigation under section 51 must produce his or her authorisation for inspection if asked to do so during the exercise of a power under this Division.
(1) A person conducting an audit or investigation of a cemetery trust under section 51 may, at any reasonable time, enter any premises of the cemetery trust (other than residential premises) for the purposes of the audit or investigation and may—
(a) inspect any records of the cemetery trust;
(b) copy or make extracts of any relevant records of the cemetery trust;
(c) ask questions of any person—
(i) employed or engaged by the cemetery trust (whether in a paid or honorary capacity); or
(ii) who is a member of the cemetery trust.
(2) A person referred to in subsection (1)(c) must cooperate with a person conducting an audit or investigation of a cemetery trust under section 51, to the extent that the person is capable of doing so.
(3) Without limiting subsection (2), a person conducting the audit or investigation who enters any premises of a cemetery trust under this section may direct a person referred to in subsection (1)(c)(i) or (ii) to—
(a) produce a document or part of a document that is in the person's possession or control;
(b) operate equipment to access information from that equipment;
(c) answer any questions put by the person conducting the audit or investigation.
A person conducting an audit or investigation under section 51 must report to the Secretary in accordance with any requirement under section 51A(1)(b).
(1) Except to the extent necessary to perform any official duties or to perform or exercise any power or function under this Act or any other Act, a person who is, or at any time has been, a person conducting an audit or investigation under section 51 must not, either directly or indirectly—
(a) make a record of, or divulge or communicate to any person, any information that is, or was acquired by the person by reason of being, or having been, a person conducting an audit or investigation under section 51; or
(b) make use of any such information for any purpose other than the performance of official duties or the performance or exercise of that function or power.
Penalty: 100 penalty units.
(2) Subsection (1) does not preclude a person from—
(a) producing a document to a court in the course of criminal proceedings; or
(b) divulging or communicating to a court in the course of any criminal proceedings any matter or thing coming under the notice of the person in the performance of official duties or in the performance or exercise of a power referred to in subsection (1); or
(c) producing a document or divulging or communicating information that is expressly authorised or permitted by any Act to be produced, divulged or communicated; or
(d) producing a document or divulging or communicating information with the prior consent of—
(i) the person to whom it relates; or
(ii) if that person has died, with the consent of the senior available next of kin of that person.
(3) In this section, "court" includes any board, tribunal or person authorised to receive evidence.".
38 New section 52A inserted
s. 38
After section 52 of the Cemeteries and Crematoria Act 2003 insert —
A Class A cemetery trust must include in its report of operations under Part 7 of the Financial Management Act 1994 particulars relating to the operation of the public cemetery and any crematorium in the public cemetery for which the Class A cemetery trust is responsible.".
39 New sections 64A and 64B inserted
In Division 1 of Part 5 of the Cemeteries and Crematoria Act 2003 , after section 64 insert —
(1) On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may reopen a closed cemetery or part of a closed cemetery.
(2) The Minister must not make a recommendation under subsection (1) unless he or she is satisfied that it is in the public interest to reopen the closed cemetery or part of the closed cemetery.
(3) An order under subsection (1) may be made in respect of—
(a) a public cemetery or part of a public cemetery closed under section 62; or
(b) a cemetery, burial ground or place of burial discontinued under section 44 of the Cemeteries Act 1958 , as in force immediately before its repeal or under any corresponding previous enactment.
(4) An order under subsection (1) may be subject to any conditions that the Governor in Council thinks fit.
(5) An order under subsection (1) must not be made in respect of a historic cemetery park.
On the making of an order under section 64A—
(a) the closed cemetery or closed part of the public cemetery to which the order applies is reopened; and
(b) the cemetery trust responsible for managing the closed cemetery or closed part of the cemetery becomes the cemetery trust responsible for managing the reopened public cemetery or reopened part of the cemetery; and
(c) the reopened public cemetery or reopened part of the cemetery is a public cemetery or part of a public cemetery for the purposes of this Act; and
(d) subject to the order under section 64A, this Act, the regulations, the model rules or the cemetery trust rules (if any), the cemetery trust may permit interments at the reopened public cemetery or reopened part of the public cemetery.".
40 Surrender to cemetery trust of unexercised right of interment by sole holder
In section 82(2)(a) of the Cemeteries and Crematoria Act 2003 after "for administration" insert "and any maintenance costs".
41 Surrender to cemetery trust of exercised right of interment by sole holder
(1) For section 83(2) of the Cemeteries and Crematoria Act 2003 substitute —
"(2) On the surrender of a right of interment to a cemetery trust under subsection (1)—
(a) subject to subsection (2A), the cemetery trust must pay to the holder a refund based on the current cemetery trust fee payable for the same type of right of interment less—
(i) the relevant cemetery trust fee for administration and any maintenance costs; and
(ii) the restoration costs, if any; and
(b) the person surrendering the right of interment has no further entitlements or responsibilities under that right of interment.
(2A) No refund is payable to a person surrendering a right of interment to a cemetery trust under subsection (1) if, at the time of the surrender, human remains are interred at the place of interment to which the surrendered right of interment applied.".
(2) For section 83(3)(b) of the Cemeteries and Crematoria Act 2003 substitute —
"(b) if there are no human remains interred in the place of interment to which the surrendered right of interment applied, grant a right of interment in respect of the place of interment to which the surrendered right of interment applied—
(i) for interring human remains in a public grave; or
(ii) for interring human remains in that place of interment.".
42 Application to carry out lift and re-position procedure
(1) In section 88(1) of the Cemeteries and Crematoria Act 2003 after "holder of the right of interment" insert ", or a person acting on behalf of that holder,".
(2) After section 88(2)(a) of the Cemeteries and Crematoria Act 2003 insert —
"(ab) in the case of an application made by a person acting on behalf of a holder of a right of interment, include a written authorisation from that holder for the person to act on the holder's behalf; and".
43 Statute law revision
In section 58 of the Cemeteries and Crematoria Act 2003 for "section 125" substitute "section 140".
__________________
PART 4—GENERAL
44 Repeal of amending Act
s. 44
This Act is repealed on 1 July 2011.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984 ).
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