Burial and Cremation Act 2013

This

Act may be cited as the Burial and Cremation Act 2013.

In this Act, unless the contrary intention appears—

authorised officer means—

a police officer; or

a person appointed by the Minister or a council as an authorised officer under this Act;

bodily remains means the whole or any part of a human body (whatever its physical state may be) but does not include the whole or any part of a human body that has been cremated;

cemetery means a place set apart for the disposal and memorialisation of human remains, but does not include—

a place at which cremated remains are scattered but is not otherwise used for the disposal of human remains; or

an

Aboriginal site as defined in the Aboriginal

Heritage Act 1988;

or

a natural burial ground; or

a place which consists of a single interment site where only—

the remains of 1 deceased person; or

the remains of 2 or more members of the same family, are, or are intended to be, interred;

cemetery authority means—

in the case of a cemetery administered by the Adelaide Cemeteries

Authority under the Adelaide

Cemeteries Authority Act 2001—the

Adelaide Cemeteries Authority;

in any other case—the person or body for the time being responsible for the administration of a cemetery;

certificate of cause of death means—

a certificate under section 36 of the Births,

Deaths and Marriages Registration Act 1996;

or

a certificate of cause of foetal death under section 12 of that Act;

or

a

post mortem certificate of cause of death under section 10;

close relative of a deceased person means—

a spouse or domestic partner of the deceased; or

a child of the deceased of or over the age of 18 years; or

a parent of the deceased; or

a brother or sister of the deceased of or over the age of 18 years;

or

if the deceased person was an Aboriginal person or Torres Strait

Islander—a person who is an appropriate person according to the tradition or custom of the community to which the deceased person belonged;

council has the same meaning as in the Local

Government Act 1999;

cremated remains means bodily remains that have been reduced by cremation;

cremation means a process for the reduction of bodily remains involving the use of fire or heat;

cremation permit means a cremation permit granted under this Act, and includes a cremation permit issued under the repealed Cremation

Act 2000;

crematorium means a facility designed for the cremation of bodily remains;

crematorium authority means the person or body for the time being responsible for the administration of a crematorium;

death includes still‑birth;

designated

Minister means the Minister for the time being responsible for the administration of the Health

Care Act 2008;

disposal of human remains means—

cremation of bodily remains; or

burial of bodily remains (including burial at sea); or

placement of bodily or cremated remains in a mausoleum, vault, columbarium or other structure;

disposal authorisation means an authorisation to dispose of human remains granted under the

Coroners

Act 2003 or a corresponding authorisation as defined in that Act;

District

Court means the Administrative and Disciplinary Division of the District

Court of South Australia;

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

exhumation of human remains includes the removal of bodily remains from a mausoleum, underground vault or other structure;

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

human remains means bodily remains and includes—

the remains of a still‑born child; and

bodily remains after they have been cremated;

institution includes part of an institution;

interment of human remains means—

the placement of human remains in a mausoleum, vault, columbarium or other structure designed for the placement of such remains; or

the burial in the earth of human remains (directly in the earth or in a container);

interment right means an interment right issued under this Act by the relevant authority for a cemetery or natural burial ground;

interment site means—

a mausoleum, vault, columbarium or other structure in which human remains are interred; or

a site in which human remains are buried;

lift and deepen procedure means a procedure that consists of—

opening an interment site; and

recovering any human remains interred in the site; and

deepening or otherwise enlarging the interment site; and

re‑interring the existing human remains in the place of interment, whether contained in a receptacle or not, so as to provide space for additional interments in the site;

mausoleum means an above‑ground structure erected and designed as a resting place for remains without burial of the remains in the earth, but does not include a structure designed as a resting place exclusively for cremated human remains;

medical practitioner means a person registered under the Health

Practitioner Regulation National Law to practise in the medical profession (other than as a student);

memorial means—

a gravestone, plaque, cenotaph or other monument; or

any other structure or permanent physical object used to memorialise a deceased person;

Metropolitan

Adelaide has the same meaning as in the Development

Act 1993;

natural burial of human remains means burial in the ground—

without preparation of the remains using chemical preservatives; and

by containment of the remains only in a shroud or biodegradable coffin;

natural burial ground means a place at which human remains are interred by natural burial but does not include a place of a prescribed kind;

non-official record means a record that is not an official record;

official record has the same meaning as in the State

Records Act 1997;

personal representative of a deceased person means a person aged 18 years or more who is—

the executor of the estate of the deceased person or, if there is more than 1 executor, 1 of the executors acting with the permission of all the other executors; or

the administrator of the estate of the deceased person;

Registrar means—

the

Registrar of Births, Deaths and Marriages; or

a

Deputy Registrar of Births, Deaths and Marriages, under the Births,

Deaths and Marriages Registration Act 1996;

relative of a deceased person means a person aged 18 years or more who is—

a parent or grandparent of the deceased person; or

a brother or sister of the deceased person; or

a spouse or domestic partner of the deceased person; or

a child, grandchild or great grandchild of the deceased person; or

a child, grandchild or great grandchild of a brother or sister of the deceased person;

spouse—a person is the spouse of another if they are legally married;

relevant authority—

for a cemetery—means the cemetery authority; or

for a natural burial ground—means the person or body for the time being responsible for the administration of the natural burial ground; or

for a crematorium—means the person or body for the time being in charge of the crematorium;

State

Coroner has the same meaning as in the Coroners

Act 2003;

State heritage place has the same meaning as in the Development

Act 1993;

still‑born child has the same meaning as in the Births,

Deaths and Marriages Registration Act 1996;

tissue has the same meaning as in the Transplantation and Anatomy Act 1983 but does not include a tissue slide or other tissue specimen;

township has the same meaning as in the Local

Government Act 1999;

unincorporated area means an area of the State outside the areas of councils;

vault means an underground structure designed as a resting place for human remains without burial of the remains in the earth, but does not include a structure designed as a resting place exclusively for cremated remains.

Except as expressly provided, this Act does not apply in relation to tissue removed from the body of a deceased person in accordance with the

Coroners

Act 2003 or the Transplantation and Anatomy Act 1983.

The provisions of this Act are in addition to, and do not derogate from, the provisions of—

the

Crown

Land Management Act 2009;

and

the

Development

Act 1993;

and

the

Heritage

Places Act 1993;

and

the

Local

Government Act 1999;

and

any other Act or law.

It is the intention of Parliament that human remains be treated at all times with dignity and respect.

Subject to this Act, a person must not dispose of bodily remains, or cause, suffer or permit bodily remains to be disposed of, except by burial or cremation.

Maximum penalty: $10 000 or imprisonment for 2 years.

In this section—

burial includes the placement of bodily remains in a mausoleum, vault or other structure.

Subject to subsection (2), a person must not, without the approval of the Attorney‑General, inter bodily remains, or cause, suffer or permit bodily remains to be interred, except in a lawfully established cemetery or natural burial ground.

Maximum penalty: $10 000 or imprisonment for 2 years.

A person may inter bodily remains in a prescribed area on land outside a cemetery or natural burial ground with the permission of the owner of the land and—

in the case of land within a council area—

with the approval of the council for the area in which the land is situated; and

in accordance with the regulations; or

in any other case—in accordance with the regulations.

A person must not, without the approval of the Attorney‑General, dispose of bodily remains by burial at sea, or cause, suffer or permit bodily remains to be disposed of by burial at sea.

Maximum penalty: $10 000 or imprisonment for 2 years.

In this section—

prescribed area means—

an area outside a township or Metropolitan Adelaide; or

an area defined by the regulations.

A person must not dispose of bodily remains by cremation, or cause, suffer or permit bodily remains to be disposed of by cremation, unless the Registrar has issued a cremation permit in respect of the remains.

Maximum penalty: $10 000 or imprisonment for 2 years.

A person must not dispose of bodily remains by cremation, or cause, suffer or permit bodily remains to be disposed of by cremation, except at a lawfully established crematorium.

Maximum penalty: $10 000 or imprisonment for 2 years.

A person must not dispose of bodily remains by cremation or cause, suffer or permit bodily remains to be disposed of by cremation, if the person knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation).

Maximum penalty: $10 000.

A person must not dispose of bodily remains by cremation, or cause, suffer or permit bodily remains to be disposed of by cremation, in contravention of an order made under section 11.

Maximum penalty: $20 000 or imprisonment for 4 years.

Subject to this section, the Registrar may, on application made by—

a personal representative or close relative of a deceased person; or

a person aged 18 years or more who satisfies the Registrar that he or she is, in all the circumstances, a proper person to make the application, issue to the applicant a cremation permit authorising the disposal of the remains of the deceased person by cremation.

A cremation permit will be in a form approved by the Registrar.

The

Registrar may, before issuing a cremation permit, question any person who may, in the Registrar's opinion, be in a position to furnish information relevant to the cause of death on any matter related to that subject.

An application for a cremation permit under this section must be made in a manner and form approved by the Registrar and be accompanied by the prescribed fee.

Subject to this section, the Registrar must not issue a cremation permit under this section unless the application is accompanied by—

in the case of an application to dispose of the body of a still‑born child—a certificate under section 12 of the Births,

Deaths and Marriages Registration Act 1996 certifying the cause of foetal death; or

in any other case—

2 certificates—

1 being the certificate under section 36(3) of the Births,

Deaths and Marriages Registration Act 1996 certifying that the deceased died from natural causes signed by—

• the medical practitioner who was responsible for the deceased's medical care immediately before death; or

• a medical practitioner who examined the body of the deceased after death; and

the other being a certificate in a form approved by the Registrar signed by another medical practitioner; or

a certificate in a form approved by the Registrar signed by a medical practitioner who carried out a post mortem examination of the deceased certifying that the deceased died from natural causes; or

a disposal authorisation.

The

Registrar may issue a cremation permit without the documents required by subsection (5) if—

in the case of an application to dispose of the remains of a person who died in another State or a Territory—the application is accompanied by the documents that would be required under the law of that State or Territory for the issue of a cremation permit or other authorisation for disposal of the remains in that State or Territory by cremation; or

in any other case—the Registrar is satisfied that—

the deceased's death has been registered under the Births,

Deaths and Marriages Registration Act 1996;

and

the particulars entered in the register of deaths under that Act record that the deceased died from natural causes; and

there is good reason why the documents required by subsection (5) cannot be produced; and

Examples—

1 If the age and condition of the body of the deceased are in such a state that the cause of death cannot be determined, a medical practitioner would not be able to issue a certificate as required by subsection (5).

2 A document obtained for the purposes of subsection (5) may have been lost or destroyed.

the

State Coroner does not require the remains for the purposes of an inquest or for determining whether an inquest is necessary or desirable under the Coroners

Act 2003;

and

there is no other reason why the permit should not be issued.

The

Registrar must not issue a cremation permit if—

the

Registrar knows or is aware that a personal representative or a parent or child of the deceased objects to the disposal of the remains by cremation (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation); or

an order prohibiting disposal by cremation has been made under section 11;

or

the death is a reportable death under the Coroners

Act 2003.

If the Registrar becomes aware of a dispute as to who may be entitled at law to possession of the body of a deceased person for the purposes of its disposal, the Registrar may refrain from issuing a cremation permit in respect of the body until the dispute is resolved.

The

State Coroner or magistrate may require.

An order under subsection (1) may be given personally or by post.

A person who makes an order under this section must give the Registrar notice of the order as soon as practicable.

A person must not, without the approval of the Attorney‑General, cremate or inter bodily remains, or cause, suffer or permit the cremation or interment of bodily remains, unless he or she has seen a certificate of identification issued in accordance with the regulations and has recorded the prescribed particulars relating to the certificate.

Maximum penalty: $10 000 or imprisonment for 2 years.

Subject to this section, a person must not cremate or inter bodily remains, or cause, suffer or permit the cremation or interment of bodily remains, unless he or she has seen—

a partial certificate of cause of death; or

a disposal authorisation; or

an authorisation to dispose of human remains granted by the Minister or the Registrar under this section, and has recorded the prescribed particulars relating to the certificate or authorisation.

Maximum penalty: $10 000 or imprisonment for 2 years.

Subsection (2) does not apply if—

the remains are to be disposed of by cremation; and

the person has received a cremation permit issued by the Registrar in respect of the remains.

An approval or authorisation issued by the Minister under this section may be made subject to such conditions as the Minister thinks fit.

The

Registrar may not issue an authorisation under subsection (2) unless the deceased's death has been registered under the Births,

Deaths and Marriages Registration Act 1996 and the Registrar is satisfied that—

the particulars entered in the Register under that Act record that the deceased died from natural causes; or

the

State Coroner does not require the deceased's remains for the purposes of an inquest or for determining whether an inquest is necessary or desirable under the Coroners

Act 2003.

In this section—

partial, in relation to a certificate of cause of death, means a certificate that—

certifies that the deceased person to whom the certificate relates died of natural causes; and

contains all the particulars required to be stated in the certificate other than—

particulars relating to the cause of death; and

particulars relating to any illness or other medical condition.

Subject to this section, a person must not, without the approval of the

Attorney‑General—

open an interment site in a cemetery or natural burial ground for the purpose of interring additional human remains, or cause, suffer or permit an interment site in a cemetery or natural burial ground to be opened for the purpose of interring additional human remains; or

exhume or remove bodily remains from their place of interment, or cause, suffer or permit bodily remains to be exhumed or removed from their place of interment; or

re‑inter in a cemetery or natural burial ground bodily remains that have been exhumed or removed from their place of interment, or cause, suffer or permit bodily remains that have been exhumed or removed from their place of interment to be re‑interred in a cemetery or natural burial ground.

Maximum penalty: $20 000 or imprisonment for 4 years.

Subject to this Act, a person must not—

remove cremated remains from an interment site in a cemetery or natural burial ground; or

re‑inter in a cemetery or natural burial ground cremated remains that have been removed from an interment site; or

cause, suffer or permit an act referred to in paragraph (a) or (b), while an interment right is in force in relation to the interment site unless authorised to do so by—

the holder of the interment right; or

if the holder of the interment right has died—a person referred to in section 35(1).

Maximum penalty: $10 000.

Subsection (1a) does not apply in relation to cremated remains interred directly in the earth.

Subsection (1a) does not apply to the removal or re‑interment of cremated remains in a cemetery or natural burial ground by the relevant authority for the cemetery or natural burial ground to enable works for the improvement or embellishment of the cemetery or natural burial ground, or the maintenance or repair of anything in, or any

part of, the cemetery or natural burial ground, to be carried out.

Subsection (1)(a) does not apply if—

only cremated remains are interred at the site; or

in the case of a site at which bodily remains are interred (whether or not cremated remains are also interred there)—

additional human remains can be interred without disturbing bodily remains; or

a lift and deepen procedure is carried out in accordance with the regulations.

Subsection (1)(b) does not apply if the remains have been exhumed or removed pursuant to a warrant issued under the Coroners

Act 2003.

If, when an interment site in a cemetery or natural burial ground is opened for the purpose of interring additional human remains, bodily remains are found, the relevant authority for the cemetery or natural burial ground must ensure that the remains are—

re‑interred at a greater depth; or

dealt with in accordance with the regulations.

Maximum penalty: $10 000 or imprisonment for 2 years.

The

Attorney‑General must, before giving an approval for an exhumation, make a reasonable attempt to ascertain the views of the surviving close relatives of the deceased person in relation to the proposed exhumation of the deceased's remains.

The

Attorney‑General must, before giving an approval for the purposes of subsection (1), consult with—

in the case of human remains interred in a cemetery or natural burial ground—the relevant authority for the cemetery or natural burial ground;

in any other case—the relevant Minister.

In this section—

bodily remains and human remains include—

the remains of a human foetus (other than a still‑born child); and

tissue removed from a body or part of a body of a deceased person;

relevant

Minister means—

in relation to the remains of an Aboriginal person—the Minister for the time being responsible for the administration of the Aboriginal

Heritage Act 1988;

in any other case—the designated Minister.