Cemeteries and Crematoria Act 2020

This Act is the Cemeteries and Crematoria Act 2020.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘stillborn child—see the Births, Deaths and Marriages Registration Act 1997, dictionary.’ means that the term ‘stillborn child’ is defined in that dictionary and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The main object of this Act is to provide a financially sustainable model for the management of cemeteries and crematoria that recognises, and provides for, the diverse needs of the community.

This is achieved particularly by—

recognising the rights of people to the dignified and respectful treatment of their human remains and the human remains of their loved ones; and

respecting the diverse burial, cremation and interment practices, cultural practices and religious beliefs of people; and

promoting financially sustainable facilities and practices for burying and cremating human remains and interring cremated remains.

Part 2 Right to burial or interment

In this part:

death certificate means—

the notice of death of a deceased person issued under the Births, Deaths and Marriages Registration Act 1997, section 35 (1); or

a certificate under the Coroners Act 1997, section 15 (3) (Control and release of body of deceased); or

if a deceased person died outside of the Territory, a document that—

is issued or given under a law of the place where the person died; and

corresponds to a notice mentioned in paragraph (a) or a certificate mentioned in paragraph (b).

A person may apply to the licensee of a cemetery for a right to burial of human remains at the cemetery.

The application must be in writing and include the following:

the name and contact details of the person;

the date of the application;

the kind of burial site at the cemetery sought;

the preferred burial area at the cemetery (if any);

anything else prescribed by regulation.

The licensee of the cemetery must—

accept the application; or

refuse the application.

The licensee may refuse to consider the application further if it is not in accordance with subsection (2).

The licensee may accept the application only if the licensee is satisfied that, at the time the right to burial will be exercised for the first time—

a burial site will be available at the cemetery; and

if the person applied for—

a kind of burial site at the cemetery—a burial site of that kind will be available at the cemetery; and

a right to burial in a particular area of the cemetery—a burial site will be available in the area of the cemetery.

If the licensee accepts the application, the licensee must give the person a document, in writing, including the following information (a right to burial certificate):

the name and location of the cemetery;

the unique identifying number for—

the right to burial certificate; and

the licensee of the cemetery;

the day the right is given;

if the application was for a kind of burial site at the cemetery—the kind of burial site;

if the application was for a particular area of the cemetery—the area;

any other information prescribed by regulation.

The licensee must give the person—

the facility plan for the cemetery; and

a statement to the effect that, if a right to burial under the certificate has not been exercised within 60 years after the day the right is given, the right will end; and

anything else prescribed by regulation.

A person may apply to the licensee of a facility for a right to interment of cremated remains at the facility.

The application must be in writing and include the following:

the name and contact details of the person;

the kind of interment site sought at the facility;

the preferred interment area at the facility (if any);

anything else prescribed by regulation.

The licensee of the facility must—

accept the application; or

refuse the application.

The licensee may refuse to consider the application further if it is not in accordance with subsection (2).

The licensee may accept the application only if the licensee is satisfied that at the time the right will be exercised for the first time—

an interment site will be available at the facility; and

if the person applied for—

a kind of interment site at the facility—the interment site will be of the kind applied for; and

an interment site in a particular area of the facility—an interment site will be available in the area.

If the licensee accepts the application, the licensee must give the person a document, in writing, containing the following information (a right to interment certificate):

the name and location of the facility;

the unique identifying number for—

the right to interment certificate; and

the licensee of the facility;

the day the right is given;

if the application is for a kind of interment site at the facility—the kind of interment site;

if the application is for a particular area of the facility—the area;

any other information prescribed by regulation.

The licensee of the facility must give the person—

the facility plan for the facility; and

a statement to the effect that if the person does not exercise the right within 60 years after the day the right is given, the right will cease; and

anything else prescribed by regulation.

A person who has a right to burial at a cemetery or a right to interment at a facility may apply to transfer the right to another person.

The application must—

be made to the licensee—

for a right to burial—of the cemetery; or

for a right to interment—of the facility; and

be in writing and include the following information:

the name and contact details of the person applying to transfer the right (the transferor);

a copy of the right to burial certificate or right to interment certificate for the right;

the name and contact details of the person to whom the right is to be transferred (the transferee) and a statement that the transferee agrees to the right being transferred to them;

anything else prescribed by regulation.

The licensee must—

accept the application; or

refuse the application.

The licensee may refuse to consider the application further if it is not in accordance with subsection (2).

The licensee may accept the application only if satisfied that a right under the right to burial certificate or right to interment certificate has not been exercised.

If the licensee of a facility accepts an application , the licensee must—

attach a written amendment to the right to burial certificate or right to interment certificate stating—

the name and contact details of the transferor; and

the name and contact details of the transferee; and

the period remaining in the term of the right; and

anything else prescribed by regulation; and

tell the transferor, in writing—

that the licensee is transferring the right to the transferee; and

the day of the transfer; and

tell the transferee, in writing, that the right has been transferred to them and give the transferee a copy of—

for a right to burial—the right to burial certificate; and

for a right to interment—the right to interment certificate; and

the written amendment of the certificate mentioned in paragraph (a).

A right to burial of human remains at a cemetery—

starts on the day the licensee of the cemetery gives a right to burial certificate to the person who applied for the right under section 8; and

ends—

for a right to burial of 1 person—when the person is buried in accordance with the right; or

for a right to burial of 2 or more people—when all the people have been buried in accordance with the right; or

if the right has not been exercised—60 years after the right is given.

Note The term of a burial is in perpetuity (see s 21).

A right to interment of cremated remains at a facility—

starts on the day the licensee of the facility gives a right to interment certificate to the person who applied for the right under section 9; and

if the right has not been exercised—ends 60 years after the day the right is given.

Note The term of the interment of cremated remains is in perpetuity unless the remains are disinterred in accordance with this Act (see s 33).

This section applies—

to the licensee of a cemetery if—

a right to burial certificate has been given in relation to the cemetery; and

a right under the certificate has not been exercised; and

58 years have passed since the certificate was given; and

to the licensee of a facility if—

a right to interment certificate has been given in relation to the facility; and

a right under the certificate has not been exercised; and

58 years have passed since the certificate was given.

The licensee must take all reasonable steps—

to contact the right holder and tell them the right will end in 2 years (the notice period); and

if the licensee becomes aware that the right holder is deceased—to contact a descendant of the right holder to tell them that the right will end at the end of the notice period.

If the licensee takes the steps mentioned in subsection (2) but is unable to contact the right holder or their descendant 4 weeks before the end of the notice period, the licensee must give public notice that the right will be revoked at the end of the notice period.

If the licensee gives public notice in accordance with subsection (3), and the licensee is not contacted by the right holder or a descendant of the right holder, the licensee may revoke the right at the end of the notice period.

If, within the notice period, the right holder or a descendant of the right holder contacts the licensee about the right, the right holder or descendant may—

retain the right for the remaining period of the term of the right; or

forfeit the right to the licensee for half the fee for an equivalent right until the forfeiture occurs.

If the licensee revokes the right in accordance with subsection (4) and the right holder or a descendant of the right holder applies to the licensee to exercise the right after it has been revoked, the licensee must give the right holder or descendant—

an equivalent right at the cemetery or facility; or

half the fee for the equivalent right at the time the right holder or descendant makes the application to exercise the right.

In this section:

right holder means—

for a right to burial—

the person who was given the right under section 8; or

if the right has been transferred to another person under section 10—the person to whom the right to burial was transferred; and

for a right to interment—

the person who was given the right under section 9; or

if the right has been transferred to another person under section 10—the person to whom the right was transferred.

Part 3 Burial, cremation, interment or exhumation

Division 3.1 Definition

In this part:

certification document, for the human remains of a deceased person, means—

a notice of death for the deceased person issued under the Births, Deaths and Marriages Registration Act 1997, section 35 (1); or

if the human remains are of a stillborn child—a certificate under the Births, Deaths and Marriages Registration Act 1997, section 35 (1); or

a certificate under the Coroners Act 1997, section 15 (3) (Control and release of body of deceased); or

if the human remains are of a deceased person who died outside the Territory, a document—

issued or given under the law of the place where the person died; and

that corresponds to a certificate mentioned in paragraph (a), (b) or (c).

Division 3.2 Transporting human remains