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Cremation Regulations 1999

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 Cremation Act 1934 .

17 May 1999

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 Cremation Regulations 1999 .

2. Commencement

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

3. Interpretation

In these regulations –
Act means the Cremation Act 1934 ;
application for site approval means an application for approval of a proposed site for the erection of a crematory;
authorised officer means –
(a) the Director; or
(b) a health officer appointed under the Public Health Act 1997 ; or
(c) an authorised officer or a council officer authorised or appointed under the Environmental Management and Pollution Control Act 1994 ; or
(d) the Commissioner of Police or any officer of police nominated by the Commissioner;
building work means building work within the meaning of Part 2 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;
certificate of burial means a certificate issued under section 32(1) of the Coroners Act 1995 permitting burial, cremation, disposal at sea or other lawful disposal;
confirmatory certificate means a confirmatory certificate issued under regulation 19 ;
coroner means a coroner as defined by the Coroners Act 1995 ;
cremation authority means any person or body maintaining and conducting a crematory;
cremation permit means a permit authorising cremation issued under Division 4 of Part 3 ;
Director means the Director of Public Health appointed under the Public Health Act 1997 ;
exhumation order means an order under section 39 of the Coroners Act 1995 for the exhumation of the body of a deceased person;
investigation means an investigation under the Coroners Act 1995 ;
medical practitioner means a registered medical practitioner;
medical practitioner's certificate means a certificate of a medical practitioner issued under regulation 18 ;
medical referee means a person appointed under regulation 13 ;
post-mortem certificate means a post-mortem certificate issued under regulation 21 ;
proposed site means the proposed site for the erection of a crematory;
register means the register of cremations kept under regulation 29 ;
Schedule fee, in relation to a professional attendance by a medical practitioner, means the fee specified in the general medical services table under the Health Insurance Act 1973 of the Commonwealth;
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 that deceased person; or
(b) if there is no spouse of the deceased person or if the spouse is not available, the deceased person's eldest son or eldest daughter of or over 18 years; or
(c) if a person referred to in paragraph (a) or (b) is not available, the deceased person's next eldest son or next eldest daughter of or over 18 years; or
(d) if a person referred to in paragraph (a) or (b) , or any son or daughter of or over 18 years, is not available, the deceased person's parent; or
(e) if a person referred to in paragraphs (a) to (d) is not available, the deceased person's eldest brother or eldest sister of or over 18 years; or
(f) if a person referred to in paragraphs (a) to (e) is not available, the next eldest brother or next eldest sister of or over 18 years; or
(g) if a person referred to in paragraphs (a) to (e) , or any brother or sister of or over 18 years, is not available, an executor or the personal representative of the deceased person; or
(h) if the person is an Aboriginal person, a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person;
spouse includes a person's de facto partner.

PART 2 - Crematories

4. Notice of intention to apply for site approval

(1) A notice of intention to apply for approval of a proposed site for the erection of a crematory is to contain the following:
(a) the name and address of the person or body intending to make an application for site approval;
(b) a description of the proposed site;
(c) the day on which the person or body intends to lodge the application with the Minister;
(d) a statement indicating that objections to the proposed site may be made in writing to the Minister within 21 days after the day specified in paragraph (c) .

(2) A notice is to be published –
(a) in a daily newspaper circulating in the municipal area in which the proposed site is located; and
(b) on 2 occasions –
(i) the first occasion being not less than 14 days before the day on which the application is to be lodged; and
(ii) the second occasion being not less than 7 days before the day on which the application is to be lodged.

(3) A copy of a notice is to be sent to –
(a) the Director; and
(b) the council of the municipal area in which the proposed site is located.

5. Application for site approval

(1) An application for site approval is to be made to the Minister.

(2) An application is to contain –
(a) the name and address of the applicant; and
(b) a description of the proposed site.

(3) An application is to be accompanied by –
(a) a copy of each notice published under regulation 4 ; and
(b) a fee of $300.

6. Objection to proposed site

(1) Any person may object to the proposed site for the erection of a crematory.

(2) An objection is to be –
(a) in writing; and
(b) lodged with the Minister within 21 days after the day specified in a notice under regulation 4(1)(c) .

7. Submissions by council

(1) The council of the municipal area in which any proposed site is located may make a submission in relation to the proposed site.

(2) A submission is to be –
(a) in writing; and
(b) lodged with the Minister within 21 days after the day specified in a notice under regulation 4(1)(c) .

8. Director's report and recommendation

(1) The Director is to provide the Minister with –
(a) a report on the suitability of any proposed site; and
(b) a recommendation in relation to the suitability of the proposed site.

(2) Any person who lodges an objection under regulation 5 may request the Director to provide, within 7 days after lodging the objection, a copy of the report referred to in subregulation (1)(a) .

(3) The Director is to provide the council of the municipal area in which any proposed site is located with a copy of the report referred to in subregulation (1)(a) within 7 days after completing that report.

9. Determination of application for site approval

(1) Before making a determination in respect of an application for site approval, the Minister is to consider –
(a) any objection to the proposed site lodged under regulation 6 ; and
(b) any submission lodged by a council under regulation 7 ; and
(c) the report and recommendation of the Director under regulation 8 .

(2) The Minister may –
(a) grant the application for site approval, subject to any conditions the Minister imposes; or
(b) refuse to grant the application.

(3) The Minister is not to grant the application for site approval unless the relevant council has issued any permit required under the Land Use Planning and Approvals Act 1993 in respect of the proposed site.

10. Plans of proposed buildings

The Minister is not to approve plans of any buildings proposed to be erected on any proposed site unless a permit to carry out building work has been issued under Part 2 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

11. Maintenance

A cremation authority is to ensure that any crematory conducted by the authority is maintained –
(a) in good working order; and
(b) in accordance with any conditions of approval under regulation 9 ; and
(c) in a clean and orderly condition.

12. Inspection

An authorised officer, at any reasonable time, may –
(a) enter and inspect a crematory; and
(b) inspect the register, or any application, certificate or other document required to be kept under these regulations.

PART 3 - Conduct of cremations

Division 1 - Medical referees

13. Appointment of medical referees

(1) The Minister –
(a) may appoint a medical practitioner of at least 3 years experience to be a medical referee; and
(b) is to cause notice of the appointment of a medical referee to be given to each cremation authority.

(2) A medical referee is authorised to act as a medical referee throughout the State.

14. Resignation of medical referees

(1) A medical referee, by notice in writing to the Minister, may resign from his or her position.

(2) The resignation of a medical referee takes effect from the time the notice is received.

(3) The Minister is to cause notice of the resignation of a medical referee to be given to each cremation authority.

15. Cancellation of appointments

(1) The Minister, by notice in writing to a medical referee, may cancel the appointment of that medical referee.

(2) The cancellation of the appointment of a medical referee takes effect from the time the notice is received.

(3) The Minister is to cause a copy of the notice to be given to each cremation authority.

Division 2 - Application for cremation permit

16. Application for cremation permit

(1) Any person may apply to a medical referee for a permit authorising the cremation of the remains of a deceased person.

(2) An application for a cremation permit is to be –
(a) in accordance with Form 1 ; and
(b) accompanied by a medical practitioner's certificate, confirmatory certificate and, if applicable, a post-mortem certificate, except as provided for in regulation 26(1)(a) ; and
(c) accompanied by the Schedule fee.

(3) An applicant who is not an executor, the personal representative or the senior next of kin of the deceased person is to state in the application why the application is not being made by one of those persons.

17. Requirement for cremation permit

A person must not conduct, or permit to be conducted, a cremation of the remains of a deceased person –
(a) except in a crematory erected on a site approved by the Minister under Part 2 ; and
(b) unless a cremation permit is issued.
Penalty: Fine not exceeding 5 penalty units.

Division 3 - Certificates accompanying application for cremation permit

18. Medical practitioner's certificate

(1) A medical practitioner's certificate is to be issued by a medical practitioner who –
(a) attended –
(i) the deceased person in the course of that person's final illness or after a fatal accident; or
(ii) the birth of a still-born child; and
(b) is able to certify as to the cause of death of that deceased person.

(2) A medical practitioner's certificate is to –
(a) be completed in accordance with Form 2 ; and
(b) state if any cardiac pacemaker or radioactive substance has been implanted in the deceased person and, if so, if it has been removed from the body.

(3) A medical referee who personally investigated the cause of death may issue a medical practitioner's certificate.

(4) A medical practitioner may not issue a medical practitioner's certificate in respect of the birth of a still-born child if the medical practitioner is a relative of the child.

19. Confirmatory certificate

(1) A medical practitioner is to issue a certificate confirming the cause of death of a deceased person.

(2) A confirmatory certificate may be issued by any of the following medical practitioners:
(a) a medical referee;
(b) the Director of Public Health;
(c) a medical officer of health;
(d) a physician or surgeon at a public hospital.

(3) A confirmatory certificate is to be in accordance with Form 3 .

(4) A medical practitioner may not issue a confirmatory certificate if that practitioner is –
(a) a relative or partner of, or is an assistant to –
(i) the medical practitioner who issued the medical practitioner's certificate; or
(ii) the deceased person; or
(b) the same medical practitioner who issued the medical practitioner's certificate.

20. Post-mortem examination

(1) A medical referee may require a post-mortem examination to be held if that medical referee considers that the cause of death specified in the medical practitioner's certificate or confirmatory certificate indicates, having regard to all the circumstances, that death may have been due, directly or indirectly, to –
(a) poison; or
(b) violence; or
(c) an illegal operation; or
(d) privation; or
(e) neglect; or
(f) drowning; or
(g) suffocation; or
(h) burns; or
(i) any suspicious circumstances.

(2) If a post-mortem examination is held and it fails to reveal a cause of death, or the need for a toxicological analysis is indicated, a medical referee is not to issue a permit authorising cremation of the remains of the deceased person until a certificate of burial has been issued by a coroner.

(3) A medical referee, or a medical practitioner acting on the instructions of a medical referee, may conduct a post-mortem examination.

21. Post-mortem certificate

(1) Following any post-mortem examination, a certificate is to be issued in respect of that examination by the medical practitioner who conducted the post-mortem examination.

(2) A post-mortem certificate is to be in accordance with Form 4 .

(3) A medical practitioner may not issue a post-mortem certificate if the medical practitioner is a relative of the deceased person.

Division 4 - Issue of cremation permit

22. Issue of cremation permit

(1) Except as provided in regulations 24 and 25 , only a medical referee may issue a permit authorising the cremation of the remains of a deceased person.

(2) A cremation permit is to be in accordance with Form 5 .

23. Determination of application for cremation permit

(1) In determining an application for a cremation permit, a medical referee is to be satisfied that –
(a) the application is made by –
(i) an executor or the personal representative of the deceased person; or
(ii) the senior next of kin of the deceased person; or
(iii) any other proper person; and
(b) the certificates comply with Division 3 of Part 3 ; and
(c) the inquiry made by any person issuing a certificate has been adequate.

(2) Subject to subregulation (3) , a cremation permit may only be issued if –
(a) the death of the deceased person has been registered in accordance with the law; or
(b) a medical practitioner's certificate and a confirmatory certificate have been issued; or
(c) a certificate of burial has been issued by a coroner.

(3) A cremation permit may not be issued if –
(a) it appears that the deceased person died, directly or indirectly, due to –
(i) poison; or
(ii) violence; or
(iii) an illegal operation; or
(iv) privation; or
(v) neglect; or
(vi) drowning; or
(vii) suffocation; or
(viii) burns; or
(b) the medical referee is aware of any suspicious circumstances surrounding the death; or
(c) the medical referee is unsatisfied as to any matter referred to in subregulation (1) ; or
(d) in relation to a death that is the subject of an inquest or investigation under the Coroners Act 1995 , the coroner has not issued a certificate of burial; or
(e) any cardiac pacemaker or radioactive substance implanted in the deceased person has not been removed from the body.

24. Issue of cremation permit by medical practitioner

(1) In the event of an epidemic or for other sufficient reason, the Governor, by proclamation, may declare that a cremation permit may be issued by any medical practitioner who –
(a) has made a post-mortem examination of the body of the deceased person; and
(b) is an expert in pathology.

(2) A medical practitioner may not issue a cremation permit under this regulation until any cardiac pacemaker or radioactive substance implanted in the deceased person has been removed from the body.

25. Issue of cremation permit by Director

(1) The Director may issue a cremation permit in relation to a deceased person who has been buried.

(2) A cremation permit may be issued under this regulation subject to –
(a) any conditions specified in –
(i) an exhumation order; or
(ii) the permit; and
(b) any cardiac pacemaker or radioactive substance implanted in the deceased person having been removed from the body.

26. Cremation permit for still-born child

(1) A medical referee may issue a cremation permit in respect of a still-born child –
(a) upon a medical practitioner's certificate alone, if the medical practitioner issuing the certificate attended the birth; or
(b) if the medical referee, after making any necessary enquiry, is satisfied that –
(i) the child was still-born; and
(ii) there is no reason for further examination of the body.

(2) A medical referee may not issue a cremation permit in respect of a still-born child under subregulation (1)(b) if that medical referee is a relative of the child.

27. Cremation permit for persons dying outside the State

(1) A medical referee may issue a permit for the cremation in this State of the remains of a deceased person who died outside the State.

(2) A cremation permit may be issued if satisfactory equivalents of the medical practitioner's certificate, confirmatory certificate, post-mortem certificate and cremation permit, if applicable, have been issued in respect of the deceased person under a law other than a law of this State.

(3) A medical referee is not to accept any certificate, permit or other authority issued under a law other than a law of this State unless it is –
(a) issued or signed by the persons specified in that law; and
(b) in the form, and contains the particulars, prescribed by or under that law.

PART 4 - miscellaneous

28. Disposition or interment of ashes

(1) After the cremation of the remains of a deceased person, the cremation authority is to –
(a) give the ashes into the charge of the person who applied for the permit authorising the cremation, if that person so wishes; or
(b) dispose of or preserve the ashes in accordance with any special arrangement the authority has with that person; or
(c) retain the ashes and dispose of them in –
(i) a burial-ground; or
(ii) land adjoining the crematory reserved for the disposition of ashes.

(2) The cremation authority may dispose of ashes that have been left temporarily in its charge, and have not been removed within a reasonable time, if the authority has given 14 days notice of its intention to dispose of the ashes to the person who applied for the permit authorising the cremation.

29. Registration of cremations

(1) A cremation authority is to –
(a) keep a register of all cremations conducted by the authority; and
(b) register each cremation immediately after it has taken place; and
(c) register the disposal or interment of ashes as soon as the ashes have been interred or otherwise disposed of; and
(d) in respect of any application, certificate or other document relating to a cremation –
(i) mark it with a number corresponding to the number in the register; and
(ii) file it in numerical order; and
(iii) carefully preserve it.

(2) If a crematory ceases to operate, the cremation authority is to send to the Minister, or otherwise dispose of as the Minister may direct –
(a) the register; and
(b) all applications, certificates and other documents relating to cremations conducted at that crematory.

30. Fees payable to medical referees

A person applying for a cremation permit is to pay the Schedule fee to a medical referee in relation to any professional attendance by that medical referee.

31. Temporary suspension or modification of provisions of Act or regulations

The Governor, by proclamation, may temporarily suspend or modify any of the provisions of the Act or these regulations on the occasion of an epidemic or for other sufficient reason.

32. Savings provision

A medical referee appointed or taken to have been appointed under the Cremation Regulations 1997 is taken to have been appointed under these regulations.

33. Expiry

[Regulation 33 Amended by S.R. 2000, No. 86, Applied:30 Jun 2000] [Regulation 33 Amended by S.R. 2000, No. 234, Applied:27 Dec 2000] These regulations expire on 30 June 2001.