Burial and Cremation Act 2019

Burial and Cremation Act 2019

This Act may be cited as the Burial and Cremation Act 2019.

The provisions of this Act commence on a day or days to be proclaimed.

In this Act, unless the contrary intention appears – Aboriginal cremation means the cremation of an Aboriginal person, within the meaning of the Aboriginal Lands Act 1995, that is performed in accordance with Aboriginal custom on Aboriginal land;Aboriginal land has the same meaning as in the Aboriginal Lands Act 1995; approved form means a form approved by the regulator; authorised officer includes – a regulator; and a State Service employee who is authorised in writing by the regulator, or the Director of Public Health, as an authorised officer for the purposes of this Act; and an officer or employee of a council who is authorised, in writing by the council, as an authorised officer for the purposes of this Act; and a police officer; and a person, or class of persons, prescribed as an authorised officer; cemetery means – a place that has been – approved, under the Land Use Planning and Approvals Act 1993, for the interment of human remains; and lawfully used for the interment or placement of human remains; or a place that is, or was, lawfully used for the interment or placement of human remains; or a place, land or structure, or a class of places, land or structures, prescribed as a cemetery – but does not include any land on which there is an interment permitted under section 29; cemetery manager, in relation to a cemetery, means the person – approved under this Act to manage the cemetery; or deemed, under this Act, to be the cemetery manager for the cemetery; closed cemetery– see section 4; contravene includes fail to comply with; council means a council established under section 18 of the Local Government Act 1993; cremated remains means the remains that are the result of the cremation of human remains; cremation means the reduction of human remains – to ash by a process involving the application of heat or flame, or by any other means approved by the Minister having the administration of the Public Health Act 1997; or by a prescribed means; crematorium means premises that have been approved, under the Land Use Planning and Approvals Act 1993, for the purpose of cremations and includes any other premises that, immediately before the commencement of this definition, were approved for that purpose under the Burial and Cremation Act 2002; crematorium manager, in relation to a crematorium, means the person approved under this Act to manage the crematorium;Director of Local Government means the Director within the meaning of the Local Government Act 1993;Director of Public Health means the person appointed as the Director of Public Health under the Public Health Act 1997; environmental health officer means an environmental health officer appointed under section 10 or 11 of the Public Health Act 1997; exclusive right of burial means an exclusive right of burial referred to in section 41; exhumation means the removal of human remains from where the remains are interred but does not include the reopening of a place where human remains are interred if the human remains are not removed from that place; fit and proper, in relation to a person – see section 5; human remains means – the body of a deceased person and includes a part of a body of a deceased person; or a detached part of a person who is not deceased – but does not include cremated remains; interment includes – the burial of human remains, or cremated remains, in the ground; and the placement of human remains, or cremated remains, as mentioned in section 8(2); and the placement of human remains, or cremated remains, as prescribed; mausoleum means a structure – that is designed to hold one or more vaults for the interment of human remains that have not been cremated; and in which at least one vault (excluding a memorial attached to the vault) is wholly above the surface of the ground or protrudes at least 150 millimetres above the surface of the ground; monument includes a tombstone, plaque, tablet, cenotaph, columbarium and any other structure or object – that is located in a cemetery and – is intended to commemorate a deceased person; or contains human remains or cremated remains; or that – is located in a place that is, or has previously been, open for public access; and contains human remains, or cremated remains; offer for sale includes display, or expose, for sale; plot includes a place in a mausoleum that is set aside for the placement of human remains; regulated business means a business for – the handling, storage or transport of human remains; or the preparation of human remains for interment or cremation – but does not include such a business that is carried on – in accordance with the Anatomical Examinations Act 2006; or in connection with a hospital or nursing home; or as incidental to the donation of human remains; regulator– see section 9; relevant organisation means – in relation to a cemetery manager, the cemetery that the cemetery manager is approved to manage; or in relation to a crematorium manager, the crematorium that the crematorium manager is approved to manage; or in relation to a person approved to carry on a regulated business, the regulated business; religious or cultural practice means a rite or practice pertaining to religious or cultural ceremonies relating to the mourning process, including interment and cremation of human remains, or a similar ceremony approved by the Director of Public Health; sell includes any of the following, whether by wholesale or retail:barter or exchange; deal in or agree to sell; offer for sale; supply for, in expectation of receiving, payment or consideration; receive for sale; dispose of by way of raffle, lottery or other game of chance; offer as a gift, other than to offer as a gift to a religious or cultural group in accordance with this Act; offer as a prize or reward; give away for any purpose; senior next of kin– see section 6; spouse includes the other party to a significant relationship, within the meaning of the Relationships Act 2003.

A reference in this Act to a council is to be read as a reference to the council of the municipal area in which – a crematorium or cemetery is situated or proposed to be situated; or it is proposed to inter human remains as mentioned in section 29.

For the purposes of this Act, a cemetery is a closed cemetery if the cemetery – immediately before the commencement of this section, was a closed cemetery within the meaning of the Burial and Cremation Act 2002; or was closed under section 63 and a notice under that section remains in effect in respect of the cemetery; or was approved to be closed under section 65; or meets the prescribed criteria for a closed cemetery.

For the avoidance of doubt, a closed cemetery is still a cemetery for the purposes of this Act unless – all human remains have been removed from the closed cemetery as required under section 72(1); or the land is declared under section 73 not to be a cemetery.

The regulator may take into account the following matters when determining, for the purposes of this Act, if a person is a fit and proper person:the capacity, including the financial capacity, of the person including his or her ability to maintain, if relevant, a regulated business, cemetery or crematorium, and the related records; the capacity of the person to comply with the relevant provisions of this Act; whether the person has any previous relevant experience in the management and maintenance of a regulated business, cemetery or crematorium and, if so, the details of that experience; whether the person has been found guilty of one of the following offences within the immediately previous 10 years, regardless of where the conviction occurred:an indictable offence where the maximum penalty for the offence is a term of imprisonment of at least 3 months; an offence of dishonesty, fraud, or trafficking, where the maximum penalty for the offence is a term of imprisonment of at least 3 months; whether or not any allegations of misconduct, relevant to the management or operation of a regulated business, cemetery or crematorium, have been made against the person, regardless of the jurisdiction in which the allegation was made; any other prescribed matter; any other matter, in respect of the person, that the regulator considers relevant to the determination.

If the regulator is required to determine, for the purposes of this Act, if a body corporate is a fit and proper person, subsection (1) applies to that determination as if a reference in that subsection to a person were a reference to each officer of that body corporate.

Subject to subsection (4), a person is the senior next of kin in relation to a deceased person, including the cremated remains of the deceased person, for the purposes of this Act, if – the person is the executor or administrator of the estate of the deceased person, if the administration of the estate is not complete; or if there is no person within paragraph (a) in respect of the deceased person – the person was the spouse of the deceased person immediately before the death of the deceased person; or if there is no person within paragraph (a) or (b) in respect of the deceased person – the person is the deceased person’s eldest available child, within the meaning of section 3(13) of the Evidence Act 2001, if that child has attained the age of 18 years; or if there is no person within paragraph (a), (b) or (c) in respect of the deceased person – the person was in a caring relationship, within the meaning of the Relationships Act 2003, with the deceased person immediately before the death of the deceased person; or if there is no person within paragraph (a), (b), (c) or (d) in respect of the deceased person – the person is a parent of the deceased person; or if there is no person within paragraph (a), (b), (c), (d) or (e) in respect of the deceased person – the person is the eldest available sibling of the deceased person, if that sibling has attained the age of 18 years; or if there is no person within paragraph (a), (b), (c), (d), (e) or (f) in respect of the deceased person – the person is the personal representative of the deceased person; or if – there is no person within paragraph (a), (b), (c), (d), (e), (f) or (g) in respect of the deceased person; and the deceased person is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 – the person is a person who is an appropriate person according to the customs and traditions of the community or group to which the deceased person belonged; or if there is no person within paragraph (a), (b), (c), (d), (e), (f), (g) or (h) in respect of the deceased person – the person is a person approved under subsection (3) as the senior next of kin of the deceased person.

For the purposes of subsection (1) or (3), there is no person within the paragraph in respect of a deceased person, or a person referred to in the paragraph is not available, if the person referred to in that paragraph – is unable to be contacted after all reasonable steps to contact the person have been taken; or has declined to act as the senior next of kin of the deceased person; or is, in the opinion of a medical practitioner, unable to perform adequately, or competently, the duties of senior next of kin.

For the purposes of subsection (1)(i), the regulator may approve, by notice in writing to a person, that person as the senior next of kin of the deceased person.

Despite subsection (1), a reference to senior next of kin in respect of human remains, or cremated remains, of a person who is not yet deceased is taken to be a reference to the person if the person has legal capacity.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities, but not so as to impose criminal liability on the Crown.

This Act – is in addition to, but does not derogate from, any other Act relating to any matter in this Act; and does not apply to the exclusion of any other Act providing for – the use of land as a crematorium or cemetery; or the use of any disused burial ground or land formerly used as a cemetery.

For the avoidance of doubt, this Act applies to the placement of human remains, or cremated remains, in any place that is approved in accordance with the Land Use Planning and Approvals Act 1993 for use as a mausoleum and, for the purposes of this Act, human remains, or cremated remains, that have been so placed are taken to be interred.

This Act, other than sections 23, 28 and 30, does not apply to the Settlement Point cemetery shown on Plan 4806 in the Central Plan Register.

For the purposes of this Act or a provision of this Act, a person is the regulator if – the person prescribed as the regulator for the purposes of this Act or the provision; or if no such person is prescribed for this Act or the provision, the Director of Local Government.

In this Act, a reference to the regulator in respect of a regulated business, cemetery or crematorium is a reference to the regulator appointed for the provision of the Act in which the reference occurs.

Subject to subsection (2) and section 11, the regulator may exempt a person from complying with one or more requirements of this Act if satisfied that the exemption – is reasonable in the circumstances; and does not have a negative effect on the entitlements of another person under this Act.

The regulator may not exempt a person from a requirement in the following sections:section 25; section 32(1) and (4); section 43; section 44(1) and (5); section 50; section 51; section 52(1)(c); section 54(1); section 58(3); section 59; section 60; section 61; section 74; any other prescribed provision.

The regulator may accept partial compliance with a requirement under this Act for a person to keep a record if – the person has made all reasonable attempts to get the information required to be kept under this Act as part of the record; and the person is unable to find the information; and the regulator is satisfied that the person required to keep the record has made all reasonable attempts to comply with this Act in respect of the record.

The regulator may accept partial compliance under subsection (1) on his or her own initiative or on the application of the person who is required to keep the record under this Act.