Burial and Cremation (Cemetery) Regulations 2005

Burial and Cremation (Cemetery) Regulations 2005

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 .

6 June 2005

W. J. E. COX

Governor

By His Excellency's Command,

J. G. COX

Minister Assisting the Premier on Local Government

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Burial and Cremation (Cemetery) Regulations 2005 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Interpretation

(1)  In these regulations –

Act means the Burial and Cremation Act 2002 ;

approved nameplate means a plate that is –

(a) made of metal, stone, plastic or other durable material; and

(b) engraved, printed, stamped or otherwise marked with the family name and at least one given name of the deceased person;

authorised officer means an authorised officer as defined in section 51 of the Act;

certificate of exclusive right of burial means a certificate issued under regulation 4 ;

coffin means a box, case or other receptacle into which human remains are placed for storage, movement, cremation or interment or which is designed for such a purpose;

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

grave means –

(a) an interment plot; or

(b) a vault; or

(c) any other site or structure –

in which human remains are interred;

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 the first listed person available from the following list –

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

(b) the deceased person's eldest available son or daughter who is 18 or more years of age; or

(c) the person with whom the deceased person at the time of his or her death was in a caring relationship which was the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 ; or

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

(e) the deceased person's eldest available brother or sister who is 18 or more years of age; or

(f) the personal representative of the deceased person; or

(g) 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

(h) a person nominated by the Director of Local Government by written notice provided to the person;

spouse includes the other party to a significant relationship, within the meaning of the Relationships Act 2003 ;

vault means a compartment in a mausoleum, or an underground chamber, in which human remains are or may be interred.

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

(a) does not exist; or

(b) has been unable to be contacted even though all reasonable steps have been taken to do so; or

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

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

PART 2 - Exclusive Right of Burial

4.   Certificate of exclusive right of burial

(1)  Within 30 days after granting an exclusive right of burial under section 23 of the Act, the cemetery manager is to issue a certificate of exclusive right of burial to the holder of the right.

(2)  A certificate of exclusive right of burial is to –

(a) identify the holder of the exclusive right of burial; and

(b) identify the person, persons or class of persons entitled to be buried under that exclusive right of burial; and

(c) either –

(i) identify, by number or other identifier, the plot, or the portion of the cemetery, where the human remains are to be interred under the exclusive right of burial; or

(ii) specify how the plot, or the portion of the cemetery, where the human remains are to be interred under the exclusive right of burial is to be determined; and

(d) specify whether the exclusive right of burial has been granted in fee or for a term of 25 years; and

(e) specify whether the exclusive right of burial may be renewed, cancelled or transferred; and

(f) specify the conditions to which the renewal, cancellation or transfer of the exclusive right of burial, if allowed, is subject.

(3)  A certificate of exclusive right of burial may include such other terms as the cemetery manager and holder of the exclusive right of burial agree.

(4)  A cemetery manager must keep a copy of a certificate of exclusive right of burial issued under this regulation –

(a) until the certificate has expired; or

(b) for a period of 5 years after all persons entitled to be buried under the exclusive right of burial have been buried.

Penalty:  Fine not exceeding 5 penalty units.

5.   Amendment of certificate of exclusive right of burial

(1)  A cemetery manager may amend a certificate of exclusive right of burial if the holder of the exclusive right of burial gives written consent to the amendment.

(2)  A certificate of exclusive right of burial may be amended by –

(a) marking or endorsing the amendment on that certificate; or

(b) issuing a new certificate of exclusive right of burial that includes the amendment.

6.   Cancellation or transfer of exclusive right of burial

A cancellation or transfer of an exclusive right of burial, done in accordance with the certificate of exclusive right of burial, takes effect when the cemetery manager receives notice in writing of the cancellation or transfer.

PART 3 - Authority to Inter Human Remains

7.   Permission to inter human remains

(1)  A person must not inter human remains in a cemetery except with the permission of the cemetery manager.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A person may apply, in writing, to the cemetery manager for permission to inter human remains in the cemetery.

(3)  On the application of a person, a cemetery manager –

(a) may grant, or refuse to grant, permission to inter human remains in the cemetery; and

(b) is to give written notice to the applicant that permission to inter the remains has been granted or has been refused; and

(c) if the cemetery manager refuses to grant permission, is to give reasons for the refusal in writing.

(4)  On giving permission to inter human remains in the cemetery, the cemetery manager may place conditions on the interment of the remains.

8.   Information required before permitting interment of human remains

(1)  An application under regulation 7(2) is to include the following information:

(a) the full name of the applicant;

(b) the residential or contact address of the applicant;

(c) the full name of the deceased person;

(d) the last place of residence of the deceased person, if known;

(e) the date of birth 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) any further information the cemetery manager considers necessary to determine whether to grant the person permission to inter the human remains.

(2)  Subject to subregulation (3) , the cemetery manager must obtain the information specified in subregulation (1) before granting a person permission to inter human remains.

Penalty:  Fine not exceeding 2 penalty units.

(3)  The cemetery manager may grant permission to inter human remains in the cemetery without obtaining all the information required under subregulation (1) if the cemetery manager is satisfied that the applicant has made all reasonable enquiries but has been unable to obtain the information.

9.   Authority to make decisions about interment of human remains

(1)  The senior next of kin of the deceased person has authority to make any decisions as required by the cemetery manager incidental to, or in connection with, the interment of the deceased person's remains, including decisions in relation to the erection of a monument or memorial.

(2)  A person other than the senior next of kin of the deceased person may make any of the decisions set out in subregulation (1) if that person has received written consent to do so from the senior next of kin.

PART 4 - Requirements for Interment of Human Remains

10.   Nameplate to be interred with human remains

A cemetery manager must ensure that all human remains interred in the cemetery, whether interred in the ground, in a vault or otherwise, are interred with an approved nameplate that is –

(a) in the case of human remains interred in a coffin, affixed to the coffin; or

(b) in the case of human remains interred without a coffin, placed on top of the remains; or

(c) in the case of a vault, placed on the exterior of the vault.

Penalty:  Fine not exceeding 10 penalty units.

11.   Interment of human remains in the ground

(1)  A cemetery manager must ensure that all human remains interred in the cemetery, otherwise than in a vault, are interred –

(a) so that the remains are completely covered by ground that is at least one metre deep at its shallowest point; or

(b) if it is not possible to inter the remains as required by paragraph (a) , so that the remains are completely covered by –

(i) at least a 50 millimetre thick layer of stone, concrete or similar durable material placed directly over the remains; and

(ii) ground that is at least 500 millimetres deep at its shallowest point; or

(c) in another manner approved by the Director of Public Health.

Penalty:  Fine not exceeding 10 penalty units.

(2)  The cemetery manager must ensure that the manner of interment utilised under subregulation (1) is not one which is prejudicial to public health or public safety.

Penalty:  Fine not exceeding 10 penalty units.

12.   Interment of human remains in a vault

(1)  In this regulation –

above-ground vault means a compartment in a mausoleum in which human remains are or may be interred;

arterially embalmed means the process of introducing preservative fluid to bodily tissue of human remains by means of an injection into, or through, the circulatory system.

(2)  A cemetery manager must ensure that human remains interred in an above-ground vault are –

(a) arterially embalmed; and

(b) interred in a manner that –

(i) prevents the escape of bodily fluids or odour from the vault; and

(ii) ensures that the human remains are secure against unauthorised access; and

(iii) ensures that the human remains are secure against insects and vermin.

Penalty:  Fine not exceeding 10 penalty units.

13.   Closing grave after interment

A cemetery manager must ensure that –

(a) an open grave is closed as soon as practicable after the interment; and

(b) once an open grave has been closed, it is secured against unauthorised access at all times.

Penalty:  Fine not exceeding 10 penalty units.

14.   Re-interment of human remains

The re-interment of human remains is taken to be an original interment of the human remains for the purposes of these regulations.

15.   Defence to offence under this Part

(1)  It is a defence in proceedings for an offence under this Part if the cemetery manager proves that another person agreed, in writing, to inter the human remains in accordance with this Part.

(2)  A person who has agreed in writing to inter human remains in accordance with this Part may be convicted of an offence under this Part as if he or she were the cemetery manager.

PART 5 - Records to be kept by cemetery manager

16.   Plan of cemetery

(1)  A cemetery manager must keep a plan of the cemetery that shows –

(a) the location of each grave; and

(b) each plot or portion of the cemetery set aside in respect of an exclusive right of burial.

Penalty:  Fine not exceeding 10 penalty units.

(2)  Once a certificate of exclusive right of burial identifies, by number or other identifier, the plot at which, or a portion of the cemetery in which, human remains are to be interred under that exclusive right of burial, the cemetery manager must identify that plot or portion in the plan of the cemetery with that number or other identifier.

Penalty:  Fine not exceeding 10 penalty units.

(3)  A cemetery manager must provide to any person, at his or her request, reasonable access to the plan of the cemetery for inspection.

17.   Register of interments

(1)  For the purposes of section 19(2) of the Act, a cemetery manager must keep a register of interments containing –

(a) the following particulars in relation to each interment in the cemetery:

(i) the name of the deceased person;

(ii) the last place of residence of the deceased person, if known;

(iii) the age of the deceased person at the date of his or her death, if known;

(iv) the date of birth of the deceased person, if known;

(v) the date of cremation, if any, of the deceased person;

(vi) the date on which the interment occurred;

(vii) the number or other identifier of the grave; and

(b) the following particulars in relation to each exhumation of human remains conducted in the cemetery:

(i) the name of the deceased person;

(ii) the date on which the exhumation was conducted;

(iii) the authority under which the exhumation was conducted.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A cemetery manager must provide to any person, at his or her request, reasonable access to the interment register for inspection.

18.   Register of exclusive rights of burial

(1)  In this regulation –

closed entry means an entry in the register that is not an open entry;

open entry means an entry in the register in respect of an exclusive right of burial if –

(a) all persons entitled to be buried under that exclusive right of burial have been buried; or

(b) the exclusive right of burial has expired;

register means the register of exclusive rights of burial kept under subregulation (2) .

(2)  A cemetery manager must keep a register of all exclusive rights of burial granted for the cemetery.

Penalty:  Fine not exceeding 10 penalty units.

(3)  For each exclusive right of burial granted for the cemetery, the cemetery manager must ensure that the following details are entered in the register:

(a) the name of the person holding the exclusive right of burial;

(b) the name of all persons entitled to be buried under the exclusive right of burial, where known;

(c) if appropriate, a description of all classes of persons entitled to be buried under the exclusive right of burial;

(d) the number or other identifier of each plot in the cemetery, or portion of the cemetery, in respect of which the exclusive right of burial has been granted.

Penalty:  Fine not exceeding 10 penalty units.

(4)  The following persons are entitled to inspect a closed entry in the register at any reasonable time:

(a) an authorised officer;

(b) a person who is –

(i) the holder of the exclusive right of burial in respect of which the entry in the register was made; or

(ii) a person with authority to act on behalf of that holder;

(c) a person entitled to be buried under the exclusive right of burial in respect of which the entry in the register was made.

(5)  A cemetery manager must not allow a person who is not specified in subregulation (4) to inspect a closed entry.

Penalty:  Fine not exceeding 10 penalty units.

(6)  Any person may inspect at any reasonable time an open entry in the register.

PART 6 - Conduct in Cemeteries

19.   Dangerous driving

(1)  A person must not drive a motor vehicle in a cemetery –

(a) in a dangerous or careless manner; or

(b) without reasonable consideration for others.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A person who is in charge of a motor vehicle in a cemetery must comply with –

(a) any reasonable directions as to the driving or parking of the motor vehicle given to the person by the cemetery manager or a person authorised by the cemetery manager to give such directions; and

(b) any traffic control sign erected by the cemetery manager or a person authorised by the cemetery manager to erect such a sign.

Penalty:  Fine not exceeding 10 penalty units.

20.   Prohibited activities

(1)  A person must not –

(a) remove, damage, deface or otherwise interfere with any building, monument, memorial or other fixture or structure in a cemetery; or

(b) damage, deface or otherwise interfere with any part of the grounds of a cemetery, including any plants, flowers or tokens; or

(c) remove any plants or flowers that are growing in a cemetery; or

(d) in any manner, hinder or disturb the performance in a cemetery of any religious or cultural ceremony relating to the interment of human remains; or

(e) sell any thing in a cemetery without the approval of the cemetery manager; or

(f) carry on, promote or advertise a trade, profession or business in a cemetery without the approval of the cemetery manager; or

(g) commit any breach of the peace or nuisance, or otherwise behave in an offensive manner in a cemetery.

Penalty:  Fine not exceeding 10 penalty units.

(2)  Subregulation (1) does not apply to the cemetery manager.

PART 7 - Powers and duties of Cemetery Managers

21.   Power of cemetery manager in relation to graves and plots

(1)  A cemetery manager may –

(a) remove from a grave or plot in the cemetery any broken masonry, decayed or broken wreath or dead flowers or any other object which, in the opinion of the cemetery manager, detracts from the overall appearance of the cemetery; and

(b) prune or cut down any plant on, or remove any plant from, a grave or plot in the cemetery if the cemetery manager is of the opinion that it is necessary to do so for the purposes of maintenance of the cemetery.

(2)  For the purposes of section 19(1) of the Act, a cemetery manager may remove from a grave or plot in the cemetery any object that the cemetery manager believes may be prejudicial to public health or public safety.

(3)  The removal of an object under subregulation (2) must be done in accordance with the relevant provisions of the Act and these regulations, if any.

22.   Power of cemetery manager to approve permanent items

(1)  A cemetery manager may approve an item, or a class of items, that may be permanently affixed to, or next to, a grave or plot in a cemetery.

(2)  A person must not permanently affix an item to, or next to, a grave or plot in a cemetery unless the cemetery manager has approved the affixing of that item.

Penalty:  Fine not exceeding 5 penalty units.

23.   Power of cemetery manager to remove persons

(1)  A cemetery manager may require a person to leave the cemetery and not re-enter the cemetery for a period of not more than 24 hours determined by the cemetery manager if the cemetery manager –

(a) has reason to suspect that the person has committed, is committing or is about to commit an offence in the cemetery; or

(b) is of the opinion that the person is behaving in a manner that is, or may be, offensive to other visitors to the cemetery.

(2)  A person must comply with a requirement of a cemetery manager under subregulation (1) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  If a person refuses to leave the cemetery, or re-enters or attempts to re-enter the cemetery, in contravention of a requirement of a cemetery manager under subregulation (1) , the cemetery manager may remove, or prevent the re-entry of, the person and in doing so may be assisted by a police officer.

24.   Duty of cemetery manager on removal of monument

(1)  In this regulation –

Heritage Council has the same meaning as in the Historic Cultural Heritage Act 1995 ;

Heritage Register has the same meaning as in the Historic Cultural Heritage Act 1995 ;

unlisted cemetery means a cemetery not entered on the Heritage Register.

(2)  If a cemetery manager of an unlisted cemetery proposes to take down and remove a monument without notice under section 21(3) of the Act, and in his or her opinion it is safe to do so, he or she is to take the following photographs of the monument before taking it down:

(a) one photograph showing only the monument and its architectural detail;

(b) one photograph showing the monument and its location in relation to –

(i) any surrounding monuments or graves; or

(ii) if there are no surrounding monuments or graves, the area surrounding the monument to a radius of approximately five metres from the monument.

(3)  If a cemetery manager has taken down and removed a monument without notice under section 21(3) of the Act without taking the photographs referred to in subregulation (2) , he or she must take two photographs as follows:

(a) one photograph showing only the architectural detail of the monument after its removal or, if the monument has been demolished, any significant pieces of the monument that show the architectural detail;

(b) the other photograph showing the site where the monument was located, including –

(i) any surrounding monuments or graves; or

(ii) if there are no surrounding monuments or graves, the area surrounding the site to a radius of approximately five metres from the site.

(4)  Within fourteen days after taking down and removing a monument without notice under section 21(3) of the Act, a cemetery manager must provide the Heritage Council with –

(a) written notice of that taking down or removal which contains the following particulars, if available:

(i) the name of the deceased person recorded on the monument;

(ii) the date of death of the deceased person recorded on the monument;

(iii) the number or other identifier of the grave; and

(b) the photographs taken under subregulation (2) or (3) .

(5)  This regulation does not apply to a monument that has been erected for less than 12 months.

PART 8 - Powers of authorised officers

25.   Collection of evidence

(1)  For the purpose of determining if an offence against the Act or these regulations is being or has been committed, an authorised officer or a person assisting that authorised officer may –

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

(b) require any person to produce any relevant records or documents for inspection; and

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

(d) take into any relevant premises or place any equipment or other thing reasonably necessary for the purpose of exercising a power under the Act or these regulations; and

(e) take any relevant samples for analysis; and

(f) require any person to give such reasonable assistance as may be required in the exercise of any such powers.

(2)  If an authorised officer or a person assisting an authorised officer has a reasonable belief that an offence against the Act or these regulations is being or has been committed, he or she may seize any record, document or any other thing relevant to the offence.

(3)  An authorised officer, in exercising his or her powers under this section, must not unnecessarily impede or obstruct the work carried on at the premises or place entered.

26.   Retention of records by authorised officer

(1)  An authorised officer may retain a record, document or other thing seized under these regulations –

(a) for the purpose of determining if an offence against the Act or these regulations is being or has been committed; and

(b) to enable evidence of an offence against the Act or these regulations to be secured for the purpose of a prosecution.

(2)  A person otherwise entitled to possession of a record or document retained by an authorised officer under these regulations is entitled to be provided at his or her request with a copy of that record or that document certified by the authorised officer to be a true copy.

(3)  A certified copy of a record or document referred to in subregulation (2) is to be received in all courts and elsewhere as if it were the original record or document.

27.   Obstruction of authorised officer

(1)  A person must not –

(a) impede or obstruct an authorised officer or a person assisting 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 or a person assisting an authorised officer.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A person must not –

(a) fail to comply with a lawful request of an authorised officer or a person assisting an authorised officer; or

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

(c) fail to give any reasonable assistance when required to do so by an authorised officer or a person assisting an authorised officer.

Penalty:  Fine not exceeding 10 penalty units.

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

Notified in the Gazette on 22 June 2005

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 relation to the operation of cemeteries and the duties and powers of cemetery managers and authorised officers.