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Norman Waterhouse

Legislative Update: Amendments to the Burial and Cremation Act 2013

Last week, the Burial and Cremation (Interment Rights) Amendment Bill 2021 was introduced into Parliament. If enacted in its current form, the Bill will implement a small number of specific amendments to the Burial and Cremation Act 2013 (the Act). A summary of these changes is provided below. The proposed amendments are designed to protect the holders of interment rights and expose cemetery authorities to an increased level of civil and/or criminal liability in cases where the requirements of an interment right are not properly observed.

Section 13 of the Act will be broadened to create a new offence for the removal or re-interment of cremated remains from an interment site without the permission of the holder of the interment right. This will carry a maximum penalty of a fine of $10,000. However, this amendment will not extend to cremated remains that are interred directly into the earth or in circumstances where the relevant authority is performing works for the improvement, embellishment, maintenance or repair of the cemetery or natural burial ground.

A new Section 35(5) of the Act will provide holders of an interment right with additional powers of enforcement under that interment right. According to the second reading speech, the intent of Parliament in drafting this provision was to make it clear that the obligations of an authority under the Act apply to the person or body responsible for administering a cemetery or natural burial ground, regardless of when an interment right was issued or whether it was issued by a previous person or body responsible for administering that cemetery or natural burial ground. To that end, if a cemetery authority is charged with failing to comply with its obligations under an interment right, it will not be a defence that the authority was not aware of the existence of the interment right.

The amendments also create an obligation for a cemetery authority to send a notice to the ‘owner’ of a memorial after an interment right has expired. Pursuant to the proposed amended Section 38(3)(b) of the Act, the authority must inform the personal representative or relative of the deceased that if the interment right is not renewed, the person who held the interment right immediately before its expiry may reclaim the memorial from the relevant authority.

If the amendments pass the Parliament, relevant Council or subsidiary policies and procedures may require review. Please contact Sathish Dasan on +61 8 8210 1253 or, Dale Mazzachi on +61 8 8210 1221 or, or Chris Alexandrides on 8210 1299 or should you wish to discuss these proposed amendments or obtain governance advice in relation to the appropriate policies and procedures for cemetery authorities.

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