Burial and Cremation (Cremation) Regulations 2002

Burial and Cremation (Cremation) Regulations 2002

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Burial and Cremation Act 2002 .

21 June 2002

G. S. M. GREEN

Governor

By His Excellency's Command,

J. A. BACON

Premier

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Burial and Cremation (Cremation) Regulations 2002 .

2.   Commencement

These regulations take effect on the day on which the Burial and Cremation Act 2002 commences.

3.   Interpretation

(1)  In these regulations –

Act means the Burial and Cremation Act 2002 ;

coffin means a container or receptacle designed for use in handling deceased persons;

coroner has the same meaning as in the Coroners Act 1995 ;

coroner's certificate means a certificate issued under section 32(1) of the Coroners Act 1995 ;

cremation permit means a permit authorising cremation issued under Part 2 ;

deceased person includes a part of the corpse of a human being;

Director means the Director of Local Government appointed under the Local Government Act 1993 ;

exhumation order means an order under section 39 of the Coroners Act 1995 or an authority under section 38(1) of the Burial and Cremation Act 2002 ;

implanted medical device means a medical device implanted in a person that could cause an explosion if the body of that person when deceased was cremated, including but not limited to any of the following:

(a) a battery;

(b) radioactive material;

(c) a cardiac pacemaker;

investigation means an investigation under Part 5 of the Coroners Act 1995 ;

medical certificate means a certificate certifying the cause of death given under section 35(3) of the Births, Deaths and Marriages Registration Act 1999 or an equivalent notice or certificate under a corresponding law in force in any place outside Tasmania;

medical practitioner means a registered medical practitioner under the Medical Practitioners Registration Act 1996 ;

personal representative includes the executor or administrator of the estate of a deceased person, the Public Trustee and a nominee of a coroner;

senior next of kin, in relation to a deceased person, means –

(a) a person who, immediately before the death of the deceased person, was the spouse of the deceased person; or

(b) if there was no person referred to in paragraph (a) or such a person is not available, the deceased person's eldest available son or daughter who is 18 or more years of age; or

(c) if there is no person referred to in paragraph (a) or (b) or such a person is not available, a parent of the deceased person; or

(d) if there is no person referred to in paragraph (a) , (b) or (c) or such a person is not available, the deceased person's eldest available brother or sister who is 18 or more years of age; or

(e) if there is no person referred to in paragraph (a) , (b) , (c) or (d) or such a person is not available, the personal representative of the deceased person; or

(f) if there is no person referred to in paragraph (a) , (b) , (c) , (d) or (e) or such a person is not available, and if the deceased person is an Aboriginal person within the meaning of the Aboriginal and Torres Strait Islander Commission Act 1989 of the Commonwealth, a person who is an appropriate person according to the customs and tradition of the community or group to which the deceased person belonged; or

(g) if there is no person referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) or such a person is not available, a person nominated by the Director by written notice provided to the person;

spouse includes a person's de facto partner, within the meaning of the De Facto Relationship Act 1999 .

(2)  For the purpose of the definition of "senior next of kin" in subregulation (1) , a person is not available if the person –

(a) cannot be contacted; or

(b) has declined to act as senior next of kin; or

(c) is unable to perform adequately or competently the duties of senior next of kin.

PART 2 - Cremation permit

4.   Application for cremation permit

(1)  The senior next of kin of a deceased person may apply to a medical practitioner for a permit authorising cremation of that deceased person.

(2)  The application is to provide the following particulars:

(a) the full name of the applicant;

(b) the residential address of the applicant;

(c) a declaration that the applicant is the senior next of kin of the deceased person;

(d) the full name of the deceased person;

(e) the last place of residence of the deceased person;

(f) the date of death of the deceased person;

(g) the age of the deceased person at the date of his or her death;

(h) if known, the name and address of the usual medical practitioner who attended the deceased person prior to his or her death;

(i) if known, whether the deceased person had an implanted medical device.

(3)  The application is to be accompanied by a copy of the medical certificate given in relation to the deceased person.

5.   Restriction on who can consider application

A medical practitioner must not accept an application for, or grant, a cremation permit in respect of any deceased person if –

(a) he or she is the senior next of kin or a member of the immediate family of the deceased person; or

(b) he or she is or was a partner of or an assistant to –

(i) the medical practitioner who issued the medical certificate; or

(ii) the deceased person; or

(c) he or she is a member of the immediate family of the medical practitioner who issued the medical certificate; or

(d) he or she has already given a medical certificate in respect of the deceased person; or

(e) he or she has a pecuniary interest in the estate of the deceased person.

6.   Investigation of application

In considering an application for a cremation permit, a medical practitioner has the power –

(a) with the consent of the senior next of kin, to obtain any relevant medical records; and

(b) to allow other medical practitioners access to those relevant medical records; and

(c) to make any inquiries that he or she considers necessary.

7.   Determination of application

(1)  After considering an application for a cremation permit, a medical practitioner may grant or refuse the application.

(2)  If a medical practitioner refuses an application, he or she must report the matter to the coroner under section 19 of the Coroners Act 1995 .

(3)  A medical practitioner must issue a cremation permit if –

(a) a medical certificate has been given and the medical practitioner is satisfied as to the accuracy of the cause of death stated in that certificate; and

(b) the medical practitioner is satisfied that the death is not a reportable death within the meaning of section 3 of the Coroners Act 1995 ; and

(c) any implanted medical device of which the medical practitioner is aware has been removed from the deceased person.

(4)  A medical practitioner must not issue a cremation permit if the requirements specified in subregulation (3) have not been met.

(5)  A cremation permit is to be in accordance with a form approved by the Director.

PART 3 - Duties of crematorium managers and managers of prescribed businesses

8.   Prohibition on cremation without identification of deceased person

(1)  A crematorium manager must not cremate a deceased person without being satisfied that there is no discrepancy between the identity of the deceased person as shown on –

(a) the cremation permit or coroner's certificate; and

(b) the identifying nameplate, inscription or marking on the outside of the coffin.

Penalty:  Fine not exceeding 20 penalty units.

(2)  It is sufficient for the crematorium manager to be satisfied under subregulation (1) if –

(a) there is no discrepancy between the identity of the deceased person as shown in the cremation permit, or coroner's certificate, and as shown on the nameplate, inscription or marking on the outside of the coffin; and

(b) the coffin has come from the premises of a prescribed business; and

(c) the coffin does not appear to have been opened after leaving the premises of the prescribed business.

(3)  A crematorium manager must refuse to accept a deceased person for cremation if the documentation required under these regulations is incomplete or does not comply with these regulations.

Penalty:  Fine not exceeding 20 penalty units.

9.   Security of deceased person

(1)  On receiving a coffin containing a deceased person for cremation, a crematorium manager must ensure that no person may open the coffin unless authorised by –

(a) the crematorium manager; or

(b) the medical practitioner who issued the cremation permit; or

(c) an order of a coroner.

(2)  If it is necessary to open a coffin, the crematorium manager may require the coffin to be removed from the crematorium or to be taken to the premises of a prescribed business for that purpose.

(3)  A crematorium manager must ensure that any coffin containing a deceased person that is received for cremation is stored in a secure place and is appropriately identified at all times.

10.   Removal of cremated remains from cremator

The crematorium manager is to ensure that the cremated remains of a deceased person recovered from the cremator are kept separately from the cremated remains of other deceased persons, processed if necessary and stored in appropriate containers until disposed of in accordance with regulation 12 .

11.   Storage of cremated remains

The crematorium manager must ensure that the cremated remains of a deceased person –

(a) are clearly identified; and

(b) if not collected or dealt with immediately following the cremation, are stored in a secure place.

Penalty:  Fine not exceeding 5 penalty units.

12.   Disposition of cremated remains

(1)  A crematorium manager or manager of a prescribed business who has custody of the cremated remains of a deceased person must deal with the cremated remains in accordance with any reasonable instructions given by the senior next of kin.

(2)  The crematorium manager or manager of a prescribed business must retain the cremated remains of a deceased person if –

(a) no instructions as to the collection or disposal of the cremated remains have been given by the senior next of kin; or

(b) the instructions as to the collection or disposal of the cremated remains were not accepted or were not reasonable; or

(c) the cremated remains have not been collected.

(3)  If –

(a) a crematorium manager or manager of a prescribed business has made all reasonable efforts to contact the person who made the application for the cremation; and

(b) a period of 2 years from the date of the cremation has elapsed –

the crematorium manager or manager of a prescribed business may dispose of the cremated remains.

13.   Prescribed records

(1)  For the purposes of section 12(2) of the Burial and Cremation Act 2002 , the prescribed records for a cremation conducted at a crematorium are –

(a) in the case of a cremation on the authority of a cremation permit, the cremation permit; and

(b) in the case of a cremation on the authority of a coroner's certificate, the coroner's certificate; and

(c) in all cases –

(i) the full name and address of the person who applied for the cremation to be conducted; and

(ii) the date of the cremation; and

(iii) the record under subregulation (2) of the disposal or interment of the cremated remains.

(2)  A crematorium manager must ensure that –

(a) each cremation is recorded in a register as soon as practicable after it has taken place; and

(b) the disposal or interment of cremated remains is recorded in a register as soon as practicable after the cremated remains have been interred or otherwise disposed of.

Penalty:  Fine not exceeding 10 penalty units.

PART 4 - Powers of authorised officers

14.   Collection of evidence

(1)  For the purpose of determining whether the Act or these regulations have, or are being, contravened, an authorised officer and any person assisting may –

(a) enter, search and inspect any premises or place; or

(b) require records or documents to be produced for inspection; or

(c) take extracts from, or make copies of, records or documents; or

(d) take into the premises or place any equipment or material reasonably necessary for the purpose of exercising a power under these regulations; or

(e) take samples for analysis; or

(f) require any person to give such reasonable assistance as may be required.

(2)  If the authorised officer has a reasonable belief that the Act or these regulations have, or are been contravened, he or she may seize records, documents or other things.

(3)  An authorised officer must not exercise any powers under this section so as to unnecessarily impede or obstruct the work carried on at the premises or place entered.

15.   Obstruction of authorised officer

(1)  A person must not –

(a) impede or obstruct an authorised officer exercising powers or performing functions under the Act or these regulations; or

(b) provide false or misleading information to an authorised officer.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not –

(a) refuse to comply with a lawful request of an authorised officer; or

(b) refuse to produce to an authorised officer any record, document or other thing in that person's possession or under their control, when requested to do so; or

(c) refuse to give any reasonable assistance when required to do so by an authorised officer.

Penalty:  Fine not exceeding 20 penalty units.

16.   Possession of records by authorised officer

Any record, document or other thing seized under these regulations may be retained for so long as is necessary for the purposes of investigating whether the Act or these regulations have been, or are being, contravened and, if required, for the purposes of any subsequent prosecution.

PART 5 - Miscellaneous

17.   Approval of equipment

(1)  A person must not operate a crematorium unless the crematorium equipment complies with any guidelines issued by the Director under subregulation (2) .

Penalty:  Fine not exceeding 20 penalty units.

(2)  The Director may, by notice in the Gazette, issue guidelines in respect of equipment used in crematoriums.

18.   Savings and transitional provisions

(1)  An application for a cremation permit made under regulation 16 of the Cremation Regulations 1999 is taken to be an application for a cremation permit under these regulations.

(2)  A cremation permit issued under Division 4 of Part 3 of the Cremation Regulations 1999 is taken to be a cremation permit issued under these regulations.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 26 June 2002

These regulations are administered in the Department of Premier and Cabinet.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations make provision in respect of –

(a) applications for and consideration of cremation permits; and

(b) the duties of crematorium managers and managers of prescribed businesses; and

(c) the powers of authorised officers; and

(d) approval of equipment for crematoriums; and

(e) savings and transitional provisions.