Burial and Cremation Act 2022

This Act may be cited as the Burial and Cremation Act 2022.

The objects of this Act are:

(a) to enable and accommodate different methods and practices for the burial, exhumation and disposal of human remains, including respecting the rights of Aboriginal people to practice customs and traditions in relation to burials, exhumations and disposals; and

(b) to ensure records of burials, exhumations and disposals of human remains are kept and maintained for the benefit of next of kin and future generations; and

(c) to regulate record keeping for the protection and maintenance of burial sites; and

(d) to recognise different burial areas for the burial of human remains; and

(f) to regulate the management of cemeteries in a way that takes into account economic, social, cultural and regional interests; and

This Act does not apply in relation to the following:

War Graves Commission incorporated by Royal Charter on 21 May 1917;

Aboriginal people specified in subsections (2), (3) and (4) are to be recognised and the regulation of burials, exhumations, disposals and related activities under this Act must be in harmony with those rights and interests.

Aboriginal land otherwise than in accordance with the Aboriginal

Land Rights (Northern Territory) Act 1976 (Cth).

Crown in all its capacities.

In this Act:

Aboriginal community living area means an area granted as an Aboriginal community living area under Part 8 of the Pastoral Land Act 1992, or the corresponding previous legislative provisions.

Aboriginal community living area association, see section 7 of the Local Government Act 2019.

Aboriginal land, see section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

affected person, see section 187(2).

archives service, see section 4 of the Information Act 2002.

burial means the following:

burial approval, see section 38(1).

burial approval form, see section 40(1).

burial area means the following areas of land:

burial fee, for a burial, means a fee charged for the following:

burial ground means an area of land declared to be a burial ground by the Minister under section 31(1).

burial outside a cemetery, see section 65(2).

cemetery means an area of land declared to be a cemetery by the Minister under section 16(1).

cemetery plan means a plan required for a cemetery under section 24(1).

CEO means the Chief Executive Officer of the Agency administering this Act.

closed cemetery, see section 106.

community cemetery means a class of cemetery declared under section 16(2)(b).

council, see section 7 of the Local Government Act 2019.

cremation means the process of using fire and heat in a purpose‑built furnace to reduce human remains to ashes.

culturally sensitive information, in relation to a deceased person, means information identified as culturally sensitive in:

(c) an application for exhumation and relocation of human remains under section 87(1);

decision maker, see section 9.

decision notice, for a decision, means a written notice setting out the matters required for a notice of decision under section 34 of the Northern Territory Civil and Administrative Tribunal Act 2014.

declared infectious disease means a disease declared by the Chief Health Officer under section 192(1).

disposal, in relation to human remains, means disposal by:

disposal approval, see section 138(1).

disposal approval form, see section 139(1).

enforcement order:

exclusive right of burial means a right mentioned in section 50(1).

exhumation approval, see section 87(5).

facility means a place or premises, whether fixed or mobile, for cremation or any other process prescribed by regulation for the disposal of human remains.

funeral director means a person who carries on the business of arranging for the burial of human remains or the disposal of human remains.

funerary box includes a coffin, casket or other container used to keep human remains for burial.

grantee, in relation to an exclusive right of burial, means the individual to whom an exclusive right of burial is granted under section 50.

human remains means the body, or part of a body, of a deceased person, but does not include a body, or part of a body, that is cremated or undergoes any other process of disposal prescribed by regulation.

independent cemetery means a class of cemetery declared under section 16(2)(d).

inspector means an inspector appointed under section 149.

interest holder, see section 8.

Land Council means an Aboriginal Land Council established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

local cemetery means a class of cemetery declared under section 16(2)(c).

manager:

memorial means a gravestone, headstone, tombstone, plaque, tablet, cenotaph or any other permanent physical object used to memorialise a deceased person.

multiple burials means the burial of human remains in a burial site where other human remains are already buried.

native title, see section 223 of the Native Title Act 1993 (Cth).

native title holder, see section 224 of the Native Title Act 1993 (Cth).

native title rights and interests, see section 223 of the Native Title Act 1993 (Cth).

next of kin, see section 10.

officer means a person specified in section 145(1).

permanent record:

(a) for a cemetery – means the records specified in section 182(1); or

personal representative, in relation to a grantee, means the person specified by the grantee under section 54(1)(b).

premises includes:

provider means a person who, or body that, provides, or holds out to provide, a health service or community service.

public cemetery means a class of cemetery declared under section 16(2)(a).

Public Trustee, see section 5 of the Public Trustee Act 1979.

representative for a burial ground, see section 36(1).

responsible entity:

reviewable decision, see section 187(1).

semi-closed cemetery, see section 103.

senior next of kin, see section 11(1).

structure means a building or a portion of a building used to inter human remains.

suspended cemetery, see section 168(1).

suspension notice means a notice issued under section 175(1).

undeclared area means an area of land that is not within a burial area.

Note for section 7

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

An interest holder, in relation to land, means the following:

(a) the person recorded in the land register, as defined in section 4 of the Land Title Act 2000, as the person entitled to:

(ii) a lease from the Crown under the Crown Lands Act 1992, the Pastoral Land Act 1992 or the Special Purposes Leases Act 1953;

(b) if the land is an Aboriginal community living area – the association that holds interest in the land;

(c) if the land is Aboriginal land – the Land Trust, established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), that holds interest in the land;

(d) if the land is subject to native title – the native title holder;

(e) if the land is Crown land as defined in section 3 of the Crown Lands Act 1992 – the Territory.

Notes for section 8(c) and (d)

A provision of this Act that deals with a matter relevant to an interest holder of Aboriginal land or land that is subject to native title is subject to a provision relating to that matter in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) or the Native Title Act 1993 (Cth) respectively – see section 5.

A decision maker, for a deceased person, means:

(a) the executor or administrator of the estate of the deceased person; or

(b) if there is no executor or administrator of the estate of the deceased person – the senior next of kin; or

A next of kin, in relation to a deceased person, means any of the following people:

(a) for a deceased person who was an Aboriginal or Torres Strait Islander person and who had strong cultural and traditional ties to a community or group – a person who, according to the customs and traditions of the community or group to which the person belonged, is appropriate to perform that role;

(g) a person who, immediately before the death of the deceased person, had a relationship with the deceased person.

(1) A senior next of kin, in relation to a deceased person, means one of the following people in descending order:

(a) if the deceased person was an Aboriginal or Torres Strait Islander person and had strong cultural and traditional ties to a community or group – a person who, according to the customs and traditions of that community or group to which the person belonged, is appropriate to perform that role;

(b) if paragraph (a) does not apply and the deceased person was, immediately before death, both married and in a de facto relationship then the senior next of kin is:

(i) in the situation where the deceased person was in a continuous de facto relationship for at least the 2 years immediately before death and the deceased person did not at any time during those 2 years live with the deceased person's spouse – the deceased person's de facto partner; or

(ii) in the situation where the parent of the deceased person's youngest child is the deceased person's de facto partner and the deceased person did not live with the deceased person's spouse immediately before death – the deceased person's de facto partner; or

(c) if paragraphs (a) and (b) do not apply and the deceased person was, immediately before death, married – the deceased person's spouse;

(d) if paragraphs (a) to (c) do not apply and the deceased person was, immediately before death, in a de facto relationship – the deceased person's de facto partner;

(e) if paragraphs (a) to (d) do not apply – the deceased person's eldest child who is 18 years of age or older who can be contacted within a reasonable period;

(f) if paragraphs (a) to (e) do not apply – the deceased person's parent;

(g) if paragraphs (a) to (f) do not apply – the deceased person's eldest sibling who is 18 years of age or older who can be contacted within a reasonable period;

(h) if paragraphs (a) to (g) do not apply – a person who immediately before the death of the deceased person, had a relationship with the deceased person.

Note for subsection (1)(e)

If the eldest child cannot be contacted within a reasonable period, the next eldest child who is 18 years of age or older who can be contacted is the senior next of kin for the deceased person.

Note for subsection (1)(g)

If the eldest sibling cannot be contacted within a reasonable period, the next eldest sibling who is 18 years of age or older who can be contacted is the senior next of kin for the deceased person.

(2) Despite the seniority order mentioned in subsection (1), a senior next of kin must be the person in the most senior order:

(a) who has not been certified as mentally unfit by 2 medical practitioners; and

(1) The parties to the following disputes may engage in mediation to facilitate a resolution or other outcome of the dispute if each party to the dispute agrees to participate in the mediation:

(b) determination of a decision regarding the human remains of a deceased person.

(2) Any mediation must be conducted by a person agreed to by each party to the dispute.

(3) At the conclusion of a mediation, the person conducting the mediation must issue to each party to the dispute a certificate:

(b) if the parties came to an agreement during the mediation – stating the agreement; and

(4) If the parties come to an agreement during mediation, that agreement is binding on the parties for the purposes of this Act.

(5) A party to the dispute may request that any part, or all parts, of the agreement mentioned in subsection (4) remain confidential and if all parties agree, the part, or parts, of the agreement must not be disclosed to any person other than for the administration of this Act or another Act.