Burial and Cremation Act 2002


Tasmanian Crest
Burial and Cremation Act 2002

An Act to make provision for the establishment and management of crematoria and cemeteries, to provide for, and regulate, the handling and storage of human remains, to amend certain Acts and to repeal the Cremation Act 1934

[Royal Assent 30 May 2002]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Burial and Cremation Act 2002 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –
Aboriginal land has the same meaning as in the Aboriginal Lands Act 1995 ;
cemetery means a place approved under the Land Use Planning and Approvals Act 1993 for the interment of human remains and includes any other place that was, immediately before the commencement of this Act, lawfully used –
(a) for the interment of human remains; or
(b) as a mausoleum or any similar structure which was suitable for the placement of human remains –
but does not include any land on which there is a grave as mentioned in section 41 ;
cemetery manager means the council, trustees or other person by whom a cemetery is managed;
contravene includes fail to comply with;
council means a council established under section 18 of the Local Government Act 1993 ;
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 ;
crematorium means premises that are 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 Act, were approved for that purpose under the Cremation Act 1934 ;
crematorium manager means the council, trustees or other person by whom a crematorium is managed;
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 23 ;
exhumation means the removal of human remains from a grave but does not include the reopening of a grave if human remains are not removed;
human remains means the body of a deceased person and includes a part of the body but does not include any human remains that have been reduced to ash;
interment means the burial of any human remains in the ground, and includes the placement of human remains as mentioned in section 4 ;
mausoleum means a structure –
(a) that is designed to hold one or more vaults for the interment of human remains that have not been cremated; and
(b) in which at least one vault (excluding any 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 or any other structure or object intended to commemorate a deceased person;
plot includes a place in a mausoleum that is set aside for the placement of human remains;
prescribed business means a business for –
(a) the handling, storage or transport of human remains; or
(b) the preparation of human remains for interment or cremation –
but does not include any such business that is carried on –
(c) in connection with a school of anatomy established under section 5 of the Anatomy Act 1964 ; or
(d) in connection with a hospital or nursing home; or
(e) as incidental to the donation of human remains;
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.
(2)  A reference in this Act to the council is to be read as a reference to the council in the municipal area of which –
(a) a crematorium or cemetery is situated or proposed to be situated; or
(b) it is proposed to inter any human remains as mentioned in section 41 .

4.   Application of Act to mausoleums

The application of this Act extends to the placement of human remains in any place that is approved under the Land Use Planning and Approvals Act 1993 for use as a mausoleum and, for the purposes of this Act, any human remains that have been so placed are taken to be interred.

5.   Crown to be bound

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.

6.   Application of this Act

(1)  Except as provided in section 40 , this Act does not apply to the Settlement Point cemetery shown on Plan 4806 in the Central Plan Register.
(2)  This Act does not apply to the exclusion of any other Act providing for –
(a) the use of any land as a crematorium or cemetery; or
(b) the use of any disused burial ground or land formerly used as a cemetery.
PART 2 - Crematoria and cemeteries
Division 1 - Existing and proposed crematoria and cemeteries

7.   Existing crematoria and cemeteries

Where a person was, immediately before the commencement of this Act, managing a crematorium or cemetery, the person must, within one month after that commencement, notify the Director of Local Government in writing of –
(a) in the case of a natural person, the full name and address of that person; and
(b) in the case of a body corporate, the full name and address of that body and of a director, secretary or public officer of that body; and
(c) the name and address of the crematorium or cemetery and a plan depicting the area of land used as a crematorium or cemetery; and
(d) the business name, if any, under which the crematorium or cemetery is managed.

Penalty:  Fine not exceeding 20 penalty units.

8.   Power to establish crematoria and cemeteries

(1)  Subject to this and any other Act, any person may establish or manage a crematorium or cemetery for the interment or disposal of human remains.
(2)  This section does not apply to Aboriginal cremations conducted on Aboriginal land.

9.   Notification as to proposed management of crematorium or cemetery

(1)  This section does not apply to a person who, immediately before the commencement of this Act, was managing a crematorium or cemetery.
(2)  A person who proposes to manage a crematorium or cemetery must give to the Director of Local Government at least one month's notice in writing of the intention to do so.

Penalty:  Fine not exceeding 20 penalty units.

(3)  The notice is to specify –
(a) in the case of a natural person, the full name and address of that person; and
(b) in the case of a body corporate, the full name and address of that body and of a director, secretary or public officer of that body; and
(c) the name and address of the crematorium or cemetery that the person proposes to manage and a plan depicting the area of land proposed to be used for that purpose; and
(d) the business name, if any, under which it is proposed to manage the crematorium or cemetery.

10.   Objection by Director of Local Government

(1)  Within 21 days after receipt of a notice under section 9 , the Director of Local Government may lodge a notice of objection in the court of petty sessions nearest to the place or premises where it is proposed to manage the crematorium or cemetery if –
(a) in the case of a natural person –
(i) the person has been convicted of an offence under this Act, the Cremation Act 1934 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or
(ii) the person is not, in the opinion of the Director of Local Government, a fit and proper person to manage a crematorium or cemetery; or
(b) in the case of a body corporate –
(i) a person concerned in the management of the body corporate has been convicted of an offence under this Act, the Cremation Act 1934 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or
(ii) any person concerned in the management of the body corporate is not, in the opinion of the Director of Local Government, a fit and proper person to manage a crematorium or cemetery.
(2)  The Director of Local Government must, on lodging a notice of objection under subsection (1) , cause a copy of the notice to be served –
(a) in the case of a natural person proposing to manage the crematorium or cemetery, personally on that person; or
(b) in the case of a body corporate, personally on a director, the secretary or the public officer, or any person who the Director of Local Government reasonably believes is a responsible officer, of the body corporate.
(3)  Service of the notice of objection may be proved in the same way as service of a summons under the Justices Act 1959 .
(4)  Pending the hearing of the objection, the Director of Local Government may arrange for the cemetery to be managed by any person who the Director considers to be fit and proper for the purpose.

11.   Hearing of objections

(1)  For the purpose of hearing an objection of which notice has been lodged under section 10 , a court of petty sessions is to be constituted by a magistrate.
(2)  The Director of Local Government and the person proposing to manage a crematorium or cemetery are entitled to be heard and to adduce evidence on the hearing of the objection.
(3)  Where, on the hearing of the objection, the court is of the opinion that it is not in the public interest that the person should manage the crematorium or cemetery, the court may, by order, prohibit that person from managing the crematorium or cemetery for such period as the court thinks fit.
(4)  Service of an order made under subsection (3) is to be effected on the person referred to in subsection (2) in the same way as service of a summons under the Justices Act 1959 .
Division 2 - Management of crematoria

12.   Duties and powers of crematorium managers

(1)  A crematorium manager must keep a crematorium under the control of that manager in good order, so as not to be prejudicial to public health or public safety and in accordance with this Act.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A crematorium manager must keep prescribed records of all cremations in the crematorium and of all monuments maintained on the premises.

Penalty:  Fine not exceeding 20 penalty units.

(3)  Subject to any other Act, a crematorium manager may –
(a) improve, embellish and enlarge a crematorium under his or her control; and
(b) take any other action as may be required for the proper management of the crematorium.

13.   Equipment and apparatus

(1)  A person must not manage a crematorium unless the equipment and apparatus to be used for the purpose comply with the requirements of this and any other Act.
(2)  A person who contravenes this section is liable to a fine not exceeding 20 penalty units and to a further fine not exceeding 2 penalty units for each day during which the contravention continues after conviction.

14.   Closure of crematorium for reasons of public health or public safety

(1)  If it appears to the Director of Public Health or the general manager of the council that the whole or any part of any crematorium is prejudicial to public health or public safety, he or she may give notice to the crematorium manager that the whole or part of the crematorium is to be closed on a date specified in the notice.
(2)  The notice may require the crematorium manager to carry out any works, or to take any action, specified in the notice before a date so specified as may be necessary in the interests of public health or public safety.
(3)  If the crematorium manager complies with the requirements of the notice to the satisfaction of the Director of Public Health or the general manager of the council before the date specified in the notice, the notice is taken to be withdrawn, but if the crematorium manager fails to do so, the crematorium is taken to be closed on that date until the requirements have been complied with.
(4)  If there are no requirements in the notice to be observed by the crematorium manager, the crematorium is taken to be closed on the date specified in the notice.
(5)  A crematorium manager who receives a notice under this section may, within 14 days, appeal to a magistrate against the notice who may, if he or she does not dismiss the appeal, vary or revoke the notice.

15.   Access to crematorium

A crematorium manager must permit any person to have access free of charge at any reasonable time to visit any monument erected on the premises of the crematorium.

Penalty:  Fine not exceeding 5 penalty units.

16.   Religious and cultural ceremonies

(1)  A crematorium manager must not, by any act, matter or thing, hinder or disturb the performance of any religious or cultural ceremony in the cremation of human remains.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A crematorium manager must permit a representative of any religious or cultural group to exercise any religious or cultural practices in connection with the cremation of human remains without any hindrance or disturbance by the crematorium manager or any other person.

Penalty:  Fine not exceeding 20 penalty units.

17.   Duties of manager on closure of crematorium

On the closure of a crematorium –
(a) the crematorium manager must advise the Director of Local Government in writing of that fact; and
(b) the crematorium manager must forward all prescribed records relating to the crematorium to the State Archivist; and
(c) those records vest in the Crown.

Penalty:  Fine not exceeding 50 penalty units.

Division 3 - Management of cemeteries

18.   Cemetery to be held in trust

Subject to this and any other Act, a cemetery manager holds the land on which the cemetery is situated and all documents relating to the cemetery in trust for the purposes of a cemetery.

19.   Duties and powers of cemetery managers

(1)  A cemetery manager must keep a cemetery under the control of that manager in accordance with this Act and so as not to be prejudicial to public health or public safety.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A cemetery manager must keep records as prescribed of all interments in the cemetery.

Penalty:  Fine not exceeding 10 penalty units.

(3)  A cemetery manager must permit any person to have access free of charge at any reasonable time to visit monuments and graves in any portion of the cemetery.

Penalty:  Fine not exceeding 5 penalty units.

(4)  Subject to this and any other Act, a cemetery manager may –
(a) improve, embellish and enlarge a cemetery under the control of that manager; and
(b) restrict interments in any portion of the cemetery, except as may be required by an exclusive right of burial granted before the commencement of this Act; and
(c) take any other action as may be required for the proper management and maintenance of the cemetery.

20.   Monuments, &c.

(1)  A cemetery manager may permit any vault or grave to be made or dug, and any monument to be erected or placed, in any portion of the cemetery as the manager thinks proper on payment of a fee fixed by the manager.
(2)  A cemetery manager may determine the position of any monument to be erected or placed according to its description, size and character and having regard to the general plan for ornamenting the cemetery in an appropriate manner.
(3)  Any person is entitled, on payment of a fee fixed by the cemetery manager, to have a vault, grave or monument maintained according to the terms of the permission.

21.   Requirement to remove monuments

(1)  If any monument has been erected or placed contrary to the terms and conditions on which the permission to erect or place it was granted or, in the opinion of the cemetery manager, is unsafe, the cemetery manager may, by notice in writing given to the person who erected or placed the monument, require him or her –
(a) to take it down and remove it; or
(b) to render it safe –
within such reasonable time as may be specified in the notice.
(2)  If –
(a) the person fails to comply with the requirement; or
(b) the cemetery manager, after diligent enquiry, is unable to find the person who erected or placed the monument –
the cemetery manager may –
(c) take the monument down and remove it, or render it safe, as the case may require; and
(d) recover in any court of competent jurisdiction the reasonable cost of doing so from the person who erected or placed the monument.
(3)  A cemetery manager may exercise his or her powers under this section without notice if the monument appears to be a danger to persons or property.

22.   Religious and cultural ceremonies and original distribution

(1)  A cemetery manager must not, by any act, matter or thing, hinder or disturb the performance of any religious or cultural ceremony relating to the interment of human remains.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A cemetery manager must not, by any act, matter or thing, hinder or disturb the original division or allocation of the cemetery made in accordance with any trust to which the cemetery is subject, unless the trust is varied in accordance with the Variation of Trusts Act 1994 .

Penalty:  Fine not exceeding 20 penalty units.

(3)  A cemetery manager must permit a representative of any religious or cultural group to exercise any religious or cultural practices relating to the interment of human remains without any hindrance or disturbance by the cemetery manager or any other person.

Penalty:  Fine not exceeding 20 penalty units.

23.   Exclusive right of burial

(1)  A person may apply to a cemetery manager for an exclusive right of burial to inter any human remains in a specified interment plot or specified portion of a cemetery.
(2)  A cemetery manager may grant an exclusive right of burial in accordance with subsection (1) either in fee or for a term of 25 years which may be renewed on such other terms and conditions as may be agreed.
(3)  If it is impracticable for a cemetery manager to inter any human remains in an interment plot or portion of a cemetery in accordance with an exclusive right of burial, the cemetery manager must grant to the holder of the right, without further charge, an exclusive right of burial in another plot or portion, or in another cemetery if so agreed with the manager of that other cemetery.
(4)  If there is no such agreement, the matter is to be referred to arbitration under the Commercial Arbitration Act 1986 as if there were a submission under that Act.
(5)  The cemetery manager must pay the costs of an arbitration under subsection (4) .

24.   Saving for interment rights

Nothing in this Act disturbs the effect of a grant in fee, or a grant for a term, of an interment plot that was made before the commencement of this Act.

25.   Application of revenue of cemetery

(1)  A cemetery manager must make adequate provision out of any revenue received in respect of any cemetery under the control of the manager for the purposes of –
(a) defraying the cost of its establishment or acquisition, including interest and such amount as the manager thinks proper for administrative expenses; and
(b) the maintenance, management and improvement of the cemetery.
(2)  Any fees received by a cemetery manager in respect of future maintenance of vaults, graves and monuments are to be dealt with by the manager as capital money as if the manager were a trustee.

26.   Insufficient revenue for maintenance of cemetery

(1)  If the revenue of a cemetery is insufficient for the cemetery manager to keep the cemetery in good order and in accordance with this Act, the cemetery manager may –
(a) if there is a tombstone showing the name of the person buried there, remove kerbs, railings and other monuments, shrubs, marble chips and other adornments and cover the area with grass leaving only the tombstone; or
(b) if there is a monument other than a tombstone –
(i) treat the monument as if it were a tombstone and act in accordance with paragraph (a) ; or
(ii) remove the monument and re-erect it in another portion of the cemetery, with or without any kerbs, railings or other adornments, and cover the area with grass, having first set a stone showing who was buried there and where the former monument is to be found.
(2)  If –
(a) a vault or monument bears no legible indication of whose grave is there; or
(b) the superstructure of a vault or monument is unsafe, decayed or broken beyond repair –
the cemetery manager may remove any material or other substance that prevents the covering of the area with grass.
Division 4 - Register of crematoria and cemeteries

27.   Register of crematoria and cemeteries

(1)  The Director of Local Government is to maintain a register of crematoria and cemeteries showing –
(a) the name and address of each crematorium and cemetery; and
(b) the full name and business address of the manager of the crematorium or cemetery; and
(c) the business name, if any, under which the crematorium or cemetery is managed; and
(d) a plan depicting the area of land used for the crematorium or cemetery.
(2)  The register is to be available for inspection by any member of the public at the office of the Director of Local Government during normal business hours.
PART 3 - Closure and disposal of cemeteries
Division 1 - Closure of cemeteries

28.   Closure of cemeteries for reasons of public health or public safety

(1)  If –
(a) it appears to the general manager of a council that the whole or any portion of a cemetery is prejudicial to public health or public safety; or
(b) it appears to the Director of Public Health that the whole or any portion of a cemetery is prejudicial to public health –
the general manager or Director of Public Health may give notice to the cemetery manager that the whole or portion of the cemetery is to be closed on a date specified in the notice.
(2)  The notice may require the cemetery manager to carry out any works, or to take any action, specified in the notice and within such time as may be so specified as necessary in the interests of public health or public safety.
(3)  If the cemetery manager complies with the requirements of the notice to the satisfaction of the general manager of the council or the Director of Public Health before the date specified in the notice, the notice is taken to be withdrawn, but, if the cemetery manager fails to do so, the cemetery is taken to be closed on that date until the requirements have been complied with.
(4)  If there are no requirements in the notice to be observed by the cemetery manager, the cemetery is taken to be closed on a date specified in the notice.
(5)  A cemetery manager who receives a notice under this section may, within 14 days, appeal to a magistrate against the notice who may, if he or she does not dismiss the appeal, vary or revoke the notice.

29.   Disused cemeteries

(1)  If, for a period of 30 years or more –
(a) no interments have taken place in a cemetery or portion of a cemetery; or
(b) interments have taken place with no vault or monument other than a flat slab flush with the ground –
the cemetery manager may proceed to close the cemetery or portion and exercise the powers conferred by section 26 .
(2)  In order to exercise powers under subsection (1) , a cemetery manager may discharge an exclusive right of burial by agreement with the holder to give a similar right to another portion or plot and move to it any human remains, coffin, vault, monument or other thing in or on the original place.
(3)  If there is no such agreement, the matter is to be referred to arbitration under the Commercial Arbitration Act 1986 as if there were a submission under that Act.
(4)  The cemetery manager must pay the costs of an arbitration under subsection (3) .
(5)  For the purpose of subsection (2) , the Public Trustee may represent the holder of an exclusive right of burial if it appears that the cemetery manager, after diligent inquiry, cannot find the holder.

30.   Closed cemeteries laid out as parks or gardens

(1)  If a cemetery is to be closed under section 29 , the cemetery manager may, on giving notice as mentioned in subsection (2) , lay it out as a park or garden for use as a place of quiet recreation only.
(2)  The cemetery manager is to give at least 3 months' notice to the Director of Local Government and in a daily newspaper circulating in the municipal area in which the cemetery is situated of his or her intention to lay out the cemetery as a park or garden.
(3)  The application of sections 35 and 36 extends to a closed cemetery laid out as a park or garden under subsection (1) .
(4)  On the closure of a cemetery under section 29  –
(a) the cemetery manager must forward all prescribed records relating to the closed cemetery to the State Archivist; and
(b) those records vest in the Crown.

Penalty:  Fine not exceeding 50 penalty units.

(5)  If the cemetery or a portion of the cemetery has been lawfully consecrated according to the rites or practices of a religious or cultural group –
(a) the cemetery manager, before taking action under subsection (1) , must offer the closed cemetery or portion as a gift to that group; and
(b) if the gift is not accepted by that group, its representative may require that the graves are not to be interfered with except with his or her prior approval.
Division 2 - Disposal of land used as cemetery

31.   Land no longer required for cemetery

(1)  The whole or any portion of any land held for a cemetery in which no interments have taken place or from which all human remains have been removed may, subject to this and any other Act, be dealt with in the ordinary course of commerce.
(2)  A cemetery manager may dispose of the whole or any portion of a cemetery which is not required for interment, even though exclusive rights of burial are held in respect of any portion of, or plots in, that cemetery.
(3)  If a cemetery manager disposes of the whole or any portion of a cemetery in which a person has an exclusive right of burial, the cemetery manager must grant to that person, without further charge, an exclusive right of burial in another portion of the cemetery, or in another cemetery if so agreed with the manager of that other cemetery.
(4)  If there is no such agreement, the matter is to be referred to arbitration under the Commercial Arbitration Act 1986 as if there were a submission under that Act.
(5)  The cemetery manager must pay the costs of an arbitration under subsection (4) .
(6)  The cemetery manager must, within 14 days after dealing with any land under this section, notify the Director of Local Government in writing of that fact.
(7)  The Director of Local Government may declare, by notice published in the Gazette, that the relevant land ceases to be a cemetery.
Division 3 - Management of closed cemeteries

32.   Assumption of management of cemeteries

(1)  A person may, with the agreement of a cemetery manager and in accordance with this Act, assume the management of any cemetery that has been closed under this Part.
(2)  Where the management of a cemetery is assumed under subsection (1)  –
(a) any books, records, money and other property held by the cemetery manager for the purposes of the cemetery vest in the new cemetery manager; and
(b) the obligations and liabilities of the cemetery manager arising from the management of the closed cemetery are transferred to the new cemetery manager as if they had been incurred by that manager.

33.   Cemetery manager to deal with closed cemetery

(1)  For the purposes of complying with section 30 , a cemetery manager may –
(a) construct roads, avenues and walks in or through the land; and
(b) erect and construct on the land any ornamental and other buildings and structures, and provide any seats, shelters and conveniences for the use of persons, as the cemetery manager thinks fit; and
(c) enclose, drain, turf, level and light the whole or any part of the land; and
(d) plant any trees, shrubs and plants that the cemetery manager thinks fit; and
(e) subject to sections 34 and 38  –
(i) demolish or remove any graves, monuments or vaults erected on the land; and
(ii) exhume any human remains which are interred there and inter those remains either in the land or elsewhere; and
(f) build on or under any portion of the land any structures or vaults that the cemetery manager thinks fit for the reception of any human remains which are not removed from the land for interment elsewhere; and
(g) generally execute works and do all acts and things necessary for laying out the land as a park or garden.
(2)  A closed cemetery which is laid out as a park or garden under this Division is to be available as a place of quiet recreation only.

34.   Conditions for removal of human remains

(1)  Before proceeding under section 33 with the demolition or removal of any graves, monuments or vaults erected on the land or with the exhumation and removal of any human remains, a cemetery manager must –
(a) give public notification in a newspaper circulating in the relevant municipal area on 3 occasions at intervals over a period of 12 months of the intention to demolish or remove the graves, monuments or vaults or to exhume and remove the human remains; and
(b) prepare a statement setting out –
(i) the names and dates appearing on the graves, monuments or vaults to be demolished or removed; and
(ii) any other particulars necessary for the identification of those graves, monuments or vaults and of the human remains to which they relate, so far as the particulars are ascertainable from the records of the cemetery or the inscriptions on the graves, monuments or vaults; and
(c) make the statement available for inspection by any person free of charge.
(2)  A notice published under subsection (1)(a) is to state where and when the statement prepared in accordance with subsection (1)(b) may be inspected.

35.   Land for re-interment to be made available

At any time within 12 months after the closure of a cemetery, the cemetery manager, at the request of any lineal descendant of a deceased person whose remains are interred in the cemetery or whose name appears on any grave, monument or vault in the cemetery, must make available at no further cost at another cemetery any land necessary for –
(a) the interment in that cemetery of those human remains; or
(b) the relocation in that cemetery of the grave or the re-erection of the monument or vault.

36.   Exhumation and re-interment of human remains

(1)  Subject to section 38 , on the expiration of 12 months after a cemetery has been closed under section 29  –
(a) all rights of any person in, or to –
(i) any human remains interred in the cemetery or any grave, monument or vault; and
(ii) any prescribed records showing details and locations of interments, graves and monuments –
are vested in the cemetery manager; and
(b) the cemetery manager may demolish and remove any grave, monument or vault, and reverently exhume and re-inter any human remains.
(2)  The cemetery manager must record in a register to be kept for the purpose full details of any exhumation and re-interment of any human remains under subsection (1) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  The register is to be –
(a) maintained by the cemetery manager; and
(b) available at all reasonable times for inspection by any person.

37.   Activities consistent with quiet recreation

(1)  Where a cemetery or portion of a cemetery has been closed under section 29 , the general manager of the council may, in writing and subject to this and any other Act and to such conditions as he or she thinks fit, permit the carrying on in the closed cemetery, or closed portion of the cemetery, of an activity that is consistent with quiet recreation.
(2)  A person must not organise or participate in any competitive games or sports on any ground laid out as a park or garden under subsection (1) .

Penalty:  Fine not exceeding 5 penalty units.

Division 4 - Exhumation and reopening of graves

38.   Exhumation of human remains

(1)  The Director of Public Health may, in writing, authorise the exhumation of any human remains from any place of interment, including private land, on any specified conditions.
(2)  A person must, before beginning an exhumation –
(a) be authorised as provided in subsection (1) ; and
(b) comply with any conditions imposed by the Director of Public Health and the requirements of any person supervising the work on that Director's behalf in the course of the exhumation, re-interment or cremation of the human remains.
(3)  A person must not exhume any human remains –
(a) without authority under subsection (1) ; or
(b) otherwise than in accordance with any conditions specified in the authority; or
(c) without complying with any requirements under subsection (2) .

Penalty:  Fine not exceeding 10 penalty units.

(4)  This section does not disturb the effect of section 39 of the Coroners Act 1995 .

39.   Reopening of graves

(1)  A cemetery manager may reopen a grave if it is not intended to remove any human remains.
(2)  The Chief Magistrate may authorise the re-opening of the grave of a deceased person whose death has been the subject of an investigation under the Coroners Act 1995 .
(3)  If, on the reopening of a grave, an exhumation is intended, an authority under section 38 is required.
PART 4 - Other disposal of human remains

40.   Use of Aboriginal land for Aboriginal cremations

(1)  A person who wishes to conduct an Aboriginal cremation on Aboriginal land must apply, in writing, to –
(a) the Aboriginal Land Council of Tasmania for approval to use the Aboriginal land specified in the application for the purpose of an Aboriginal cremation; and
(b) the Director of Public Health for approval to use that Aboriginal land for the purpose of an Aboriginal cremation.
(2)  On receipt of an application under subsection (1)(b) , the Director of Public Health is to consult with the general manager of the council in the municipal area of which the Aboriginal land is situated.
(3)  The Director of Public Health must not give approval for the use of Aboriginal land for the purpose of an Aboriginal cremation unless he or she is satisfied that the person who wishes to conduct the Aboriginal cremation has obtained the approval of the Aboriginal Land Council of Tasmania for that use.
(4)  Notwithstanding anything in this Act, it is lawful to conduct an Aboriginal cremation in accordance with this section.

41.   Interment otherwise than in cemetery

(1)  A person may inter any human remains otherwise than in a cemetery only with the written permission of the landholder and the general manager of the council.
(2)  A person who proposes to conduct any such interment must provide the general manager with –
(a) the written permission of the landholder; and
(b) a statement whether there are any other graves on the land; and
(c) a plan depicting the exact location of the proposed grave and of any other graves.
(3)  The general manager must not give permission for the purposes of this section unless the Director of Public Health has given written permission for the proposed interment.
(4)  The general manager must, on giving permission, ensure that a record of the proposed grave –
(a) is kept by the council; and
(b) is shown on any certificate issued by the council under section 337 of the Local Government Act 1993 .
(5)  Permission given by the Director of Public Health or the general manager for the purposes of this section may be subject to any conditions necessary to ensure that the proposed grave will not be prejudicial to public health or public safety.

42.   Disposal of human remains at sea

The Director of Public Health may, in writing, authorise the disposal of any human remains at sea in accordance with such conditions as that Director considers necessary or desirable in the interests of public health.
PART 5 - Prescribed businesses

43.   Carrying on prescribed business

A person must not carry on a prescribed business –
(a) except in accordance with the regulations; or
(b) if no provision is made by the regulations, in a manner which is, or might be, prejudicial to public health or public safety.

Penalty:  Fine not exceeding 20 penalty units and a further fine not exceeding 2 penalty units for each day during which the contravention continues after conviction.

44.   Notification to Director of Local Government as to prescribed business

(1)  This section does not apply to a person who, immediately before the commencement of this Act, was carrying on a prescribed business.
(2)  A person who proposes to carry on a prescribed business must give to the Director of Local Government at least one month’s notice in writing of his or her intention to do so.
(3)  A notice under subsection (2) is to specify –
(a) in the case of a natural person, the full name and address of the person proposing to carry on the prescribed business; and
(b) in the case of a body corporate, the full name and address of that body and of a director, secretary or public officer of that body; and
(c) the business name, if any, and address of the premises at which it is proposed to carry on the prescribed business.
(4)  Within 21 days after receipt of a notice under subsection (2) , the Director of Local Government may lodge a notice of objection in the court of petty sessions nearest to the premises where it is proposed to carry on the prescribed business if –
(a) in the case of a natural person –
(i) the person has been convicted of an offence under this Act, the Cremation Act 1934 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or
(ii) the person is not, in the opinion of the Director of Local Government, a fit and proper person to carry on the prescribed business; or
(b) in the case of a body corporate –
(i) a person concerned in the management of the body corporate has been convicted of an offence under this Act, the Cremation Act 1934 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or
(ii) any such person is not, in the opinion of the Director of Local Government, a fit and proper person to carry on the prescribed business.
(5)  The Director of Local Government must, on lodging a notice of objection under subsection (4) , serve a copy of the notice –
(a) in the case of a natural person proposing to carry on the prescribed business, personally on that person; or
(b) in the case of a body corporate, personally on a director of the body corporate, the secretary or the public officer, or any person who the Director of Local Government reasonably believes is a responsible officer, of the body corporate.
(6)  Service of the notice of objection may be proved in the same way as service of a summons under the Justices Act 1959 .

45.   Hearing of objections

(1)  For the purpose of hearing an objection of which notice has been lodged under section 44(4) , a court of petty sessions is to be constituted by a magistrate.
(2)  The person proposing to carry on the prescribed business is entitled to be heard and to adduce evidence on the hearing of the objection.
(3)  Where, on the hearing of the objection, the court is of opinion that it is not in the public interest that the person should carry on the prescribed business, the court may, by order, prohibit that person from carrying on the prescribed business for such period as the court thinks fit.
(4)  Service of an order made under subsection (3) is to be effected on a person referred to in subsection (2) in the same way as service of a summons under the Justices Act 1959 .

46.   Unlawfully carrying on prescribed business

A person who carries on a prescribed business –
(a) without giving notice as required by section 44(2) ; or
(b) after service on that person of a copy of a notice of objection under section 44(5) and before the hearing of the objection by a court of petty sessions; or
(c) during any period when, by virtue of an order made under section 45(3) , that person is prohibited from carrying on the prescribed business –
is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units and a further fine not exceeding 2 penalty units in respect of each day during which that person carries on the prescribed business.

47.   Existing prescribed businesses

(1)  Where a person was, immediately before the commencement of this Act, managing a prescribed business, the person must, within one month after that commencement, notify the Director of Local Government in writing of that fact.

Penalty:  Fine not exceeding 20 penalty units.

(2)  The notice is to specify –
(a) in the case of a natural person, the full name and address of that person; and
(b) in the case of a body corporate, the full name and address of that body and of a director, secretary or public officer of that body; and
(c) the address of the prescribed business; and
(d) the business name, if any, under which the prescribed business was carried on.

48.   Register of prescribed businesses

(1)  The Director of Local Government must maintain a register of prescribed businesses showing –
(a) the name and address of each prescribed business; and
(b) if the manager or person responsible for the management of the prescribed business is a natural person, the full name and address of that person or, in the case of a body corporate being the manager or responsible for the management of the prescribed business, the full name and address of that body and of a director, secretary or public officer of that body; and
(c) the business name, if any, under which the prescribed business is carried on.
(2)  The register is to be available for inspection by any member of the public at the office of the Director of Local Government during normal business hours.
PART 6 - Miscellaneous and supplemental

49.   Unlawfully managing crematorium or cemetery

A person who manages a crematorium or cemetery –
(a) without giving notice as required by section 9(2) ; or
(b) after service on that person of a copy of a notice of objection under section 10 and before the hearing of the objection by a court of petty sessions; or
(c) during any period when, by virtue of an order made under section 11(3) , that person is prohibited from managing a crematorium or cemetery –
is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units and a further fine not exceeding 2 penalty units in respect of each day during which that person manages the crematorium or cemetery.

50.   Offences

(1)  A person must not dispose of any human remains except in accordance with this Act and any conditions which may be imposed by the Director of Public Health under section 41 or 42 .

Penalty:  Fine not exceeding 20 penalty units.

(2)  On conviction for an offence against this Act, the court may order that the defendant is prohibited from managing a crematorium, cemetery or prescribed business for such period as the court thinks fit.
(3)  A person must not contravene an order under subsection (2) .

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both.

51.   Powers of authorised officers to enter premises

(1)  In this section,
authorised officer means –
(a) a State Service employee who is authorised in writing by the Director of Local Government for the purposes of this section; or
(b) an officer or employee of a council who is authorised in writing by the council for the purposes of this section; or
(c) a police officer.
(2)  For the purpose of ascertaining whether there is, or has been, a contravention of this Act, an authorised officer may enter –
(a) any crematorium, cemetery or any place or premises that are, have been or may be used for, or in connection with, a prescribed business; or
(b) any other place or premises in which the authorised officer has reason to believe records relating to a crematorium, cemetery or prescribed business are kept.
(3)  An authorised officer may only enter a crematorium, cemetery, place or premises under subsection (2)  –
(a) at a reasonable time; and
(b) after providing reasonable notice to the cemetery manager, the crematorium manager or the person managing the prescribed business or other place or premises.
(4)  On entering and on leaving the place or premises, an authorised officer must ensure that they are as effectively secured against trespassers as he or she found them.
(5)  An authorised officer may use reasonable force to enter on land or enter a building or structure on land –
(a) with the authority of a warrant issued by a justice of the peace; or
(b) if the officer believes, on reasonable grounds, that the circumstances require immediate action to be taken.
(6)  A justice of the peace must not issue a warrant under subsection (5) unless satisfied, on information given on oath –
(a) that there are reasonable grounds to suspect that an offence against this Act has been, is being, or is about to be, committed; or
(b) that the warrant is reasonably required in the circumstances.

52.   Copies of code of practice to be made available

It is the duty of the Director of Local Government to provide, on request and on payment of such fee as may be approved by the Minister, a copy of –
(a) any code of practice or guidelines which may be adopted by the regulations; or
(b) any provision of any such code or guidelines –
to any person who is, or may be, affected by the provisions of this Act.

53.   Delegation by Director of Public Health

(1)  The Director of Public Health may, by instrument in writing, delegate the exercise of such of his or her powers under this Act (other than this power of delegation) to an environmental health officer or to a person employed as an environmental health officer by a council.
(2)  The Director of Public Health may, by instrument in writing, revoke wholly or in part any such delegation.
(3)  A power, the exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be exercised from time to time in accordance with the terms of the delegation.
(4)  A delegation under this section may be made subject to such conditions or limitation as to the exercise of any of the powers delegated, or as to time or circumstance, as are specified in the instrument.
(5)  Notwithstanding any delegation under this section, the Director of Public Health may continue to exercise all or any of the powers delegated.
(6)  Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section has the same force and effect as if the act or thing had been done by or to the Director of Public Health and is taken to have been done by or to that Director.
(7)  An instrument purporting to be signed by a delegate of the Director of Public Health in his capacity as such a delegate may in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by that Director and, until the contrary is proved, is taken to be an instrument signed by a delegate of that Director under this section.

54.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.
(2)  Without limiting the generality of subsection (1) , the regulations may –
(a) provide for and regulate the operation of crematoria, cemeteries and any places that are, or may be, used in connection with a prescribed business; and
(b) provide for all matters relating to the inspection by authorised officers of any places or premises entered under section 51 and the functions and powers of authorised officers, including their functions and powers in respect of the collection of evidence relating to offences under this Act; and
(c) prescribe in what cases and under what conditions the interment or cremation of human remains may take place; and
(d) provide for the equipment and apparatus to be used for the purposes of a crematorium; and
(e) provide for the handling, transport and storage of human remains; and
(f) provide for and regulate the construction and use of coffins and any other containers used for the handling, transport or storage of human remains; and
(g) provide for the persons who may authorise interment, cremations and the memorialisation and handling of human remains that have been reduced to ash; and
(h) provide for the appointment of medical referees for the purpose of cremations and prescribe their duties and obligations, the fees to be paid to them and the persons by whom those fees are to be paid, either generally or in particular cases; and
(i) prescribe the notices, certificates and declarations to be given or made before any interment may be permitted to take place; and
(j) prescribe the notices, certificates and declarations to be given or made before any cremation may be permitted to take place; and
(k) provide for the preparation of human remains for interment or cremation; and
(l) regulate and direct the disposition or interment of ashes; and
(m) provide for the registration of interments and cremations which have taken place; and
(n) provide for the keeping of records of any matter to which this Act applies and where and when the records are to be available to the public; and
(o) provide for and regulate the exhumation and removal of human remains; and
(p) provide for any matter relating to the conduct of Aboriginal cremations on Aboriginal land; and
(q) provide for fines not exceeding 20 penalty units for breaches of the regulations; and
(r) provide generally with respect to all matters incidental to, or connected with, the interment, cremation or other disposal of human remains or a prescribed business.
(3)  The regulations may apply, adopt or incorporate all or any of the provisions of a code or guidelines published by any organisation or body for the regulation of any matter to which this Act applies and those provisions may be applied, adopted or incorporated as they currently exist, as amended by the regulations, or as amended from time to time.
(4)  The regulations may provide for the temporary suspension or modification, by a notice published in the Gazette by the Minister having the administration of the Public Health Act 1997 , of any provision of this Act on the occasion of an epidemic, or for other sufficient reason.
(5)  The regulations may –
(a) be of limited or general application; and
(b) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations; and
(c) authorise any matter to be determined, applied or regulated by any specified person.

55.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –
(a) the administration of this Act is assigned to the Premier; and
(b) the department responsible to the Premier in relation to the administration of this Act is the Department of Premier and Cabinet.

56.    Anatomy Act 1964 amended

Section 13(3)(a)(ii) of the Anatomy Act 1964 is amended by omitting " Cremation Act 1934 in a crematory established and maintained in pursuance" and substituting " Burial and Cremation Act 2002 in a crematorium within the meaning".

57.    Anglican Church of Australia Constitution Act 1973 amended

Section 11 of the Anglican Church of Australia Constitution Act 1973 is amended by omitting subsections (4) , (5) and (6) .

58.    Local Government (Building and Miscellaneous Provisions) Act 1993 amended

Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 is repealed.

59.    Police Offences Act 1935 amended

Section 15D of the Police Offences Act 1935 is amended by omitting "corpse" and substituting "human remains, within the meaning of the Burial and Cremation Act 2002 ,".

60.    Southern Regional Cemetery Act 1981 amended

The Southern Regional Cemetery Act 1981 is amended as follows:
(a) by omitting section 3 and substituting the following section:

3.   Interpretation

In this Act, unless the contrary intention appears –
cemetery means a place approved under the Land Use Planning and Approvals Act 1993 for the interment of human remains and includes any other place that was, immediately before the commencement of the Burial and Cremation Act 2002 , lawfully used –
(a) for the interment of human remains; or
(b) as a mausoleum or any similar structure which was suitable for the placement of human remains –
but does not include any land on which there is a grave as mentioned in section 42 of the Burial and Cremation Act 2002 ;
crematorium means premises that are 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 the Burial and Cremation Act 2002 , were approved for that purpose under the Cremation Act 1934 ;
human remains means the body of a deceased person and includes a part of the body but does not include any human remains that have been reduced to ash;
interment means the burial of any human remains in the ground, and includes the placement of human remains as mentioned in section 4 of the Burial and Cremation Act 2002 ;
mausoleum means a structure –
(a) that is designed to hold one or more vaults for the interment of human remains that have not been cremated; and
(b) in which at least one vault (excluding any 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;
southern area means the area comprising the municipal areas of Hobart, Glenorchy, Clarence and Kingborough;
Trust means the Southern Regional Cemetery Trust established under section 4 .
(b) by inserting the following section after section 10 :

11.   Lease of land for crematorium

(1)  The Trust, with the consent of the Minister, may grant a lease of any portion of a cemetery under its control for the purpose of the erection and maintenance of a crematorium in accordance with the Burial and Cremation Act 2002 .
(2)  A lease granted under subsection (1) is to be subject to such terms and conditions as the Minister may approve.
(c) by repealing Part IV;
(d) by repealing section 38;
(e) by omitting from section 39(1) ", or comprising the part of the cemetery, referred to in section 38 , which has been closed to further burials under that section," and substituting "situated at Cornelian Bay, or part of that cemetery which has been closed to further interments under this Act or the Burial and Cremation Act 2002 ,";
(f) by repealing section 41.

61.    Cremation Act 1934 repealed

The Cremation Act 1934 is repealed.

[Second reading presentation speech made in:

House of Assembly on 13 MARCH 2002

Legislative Council on 21 MAY 2002]