Cemeteries and Crematoria Act 2003 (Vic)

Version No. 038

Cemeteries and Crematoria Act 2003

No. 80 of 2003

Version incorporating amendments as at

22 October 2025

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

2AObjects

3Definitions

3AFilming Approval Act 2014

Part 2—Cemeteries and cemetery trusts

4Establishment of public cemeteries

5Establishment of cemetery trusts

5AConversion of certain regional cemetery trusts to Class A cemetery trusts

5BAbolition of certain cemetery trusts and establishment of new Class A cemetery trusts

6Constitution and membership of Class B cemetery trusts

6AConstitution and membership of Class A cemetery trusts

6BCemetery trusts are Class B cemetery trusts unless order or Act otherwise specifies

7Cemetery trusts do not represent the Crown

8Management of public cemeteries

9Effect of order abolishing cemetery trust

9AConversion order—Class A cemetery trust or Class B cemetery trust

10Appointment of an administrator

11Membership of cemetery trust not office of profit

12Functions of Class B cemetery trusts

12AFunctions of Class A cemetery trusts

12BApplication of Public Administration Act 2004—converted cemetery trusts

13General powers of cemetery trusts

14Powers in respect of more than one cemetery

15Power to delegate

16Immunity of members of cemetery trust

17Staff and other assistance

18Secretary may give directions to cemetery trusts

18ASecretary to develop policies and plans for cemetery and crematoria sector

Part 2A—Additional requirements for Class A cemetery trusts

18BEstablishment and functions of governance committees

18CMembership and procedure

18DCommunity advisory committees

18EFunctions of community advisory committee

18FMembership and procedure of community advisory committees

18GCommunity advisory committee guidelines

18HAnnual meeting

18INotice of annual meeting

18JLeadership role for Class B cemetery trusts

18KListed Class B cemetery trusts

18LChief executive officer

18MChief executive officer's functions

18NAnnual plans

18OStrategic plans

18PAnnual plan and strategic plan guidelines

18QPayment of levy

Part 3—Management of public cemeteries

Division 1—General management powers

19Power to carry out works in public cemetery

20Setting aside areas

21Establishment of a crematorium

22Establishment of mausolea facilities

23Secretary may revoke approvals

24Interference with distribution of land

25Model rules

26Power to make cemetery trust rules

27Approval and publication of cemetery trust rules

28Governor in Council may revoke cemetery trust rules

Division 2—Powers in respect of land

29Effect of Division

30Cemetery trust may purchase or acquire land for cemetery

31Minister may acquire land

32Land Acquisition and Compensation Act 1986 applies

33Land purchased or acquired vests in Crown

34Land permanently reserved

35References to acquiring authority

36Power to grant licences over cemetery land

37Power of trusts to lease cemetery land

38Registrar of Titles to amend Register

Division 3—Financial powers

39Power to fix fees and charges for services

40Secretary to approve fees and charges

40ASecretary may exempt certain fees and charges from approval

41Secretary to publish notice of approval

42Secretary to publish fees and charges on the Internet

42AFees and charges guidelines

43Fees and charges to increase by CPI

44Waiver or reduction of fees or charges

45Investment powers

46Borrowing powers

47Payments for private streets

Division 4—Accounts and reports

48Application of Division

49Cemetery trust to keep accounts and records

50Auditing of accounts and records

51Secretary may ask for investigation

51ASecretary to determine terms of reference and other matters

51BAuditor's authority

51CPowers of auditors

51DReport to Secretary

51EConfidentiality requirements

52Report to Secretary on operations and accounts

52AClass A cemetery trust—operational report

Division 5—Management by municipal councils

53Municipal council may manage public cemetery

54Limits on power to delegate

55Borrowing and investment powers of councils

56Use of council funds

57Report to Secretary

58Secretary may inspect accounts and records

Part 4—Cemetery records

59Cemetery trust to keep records

60Can the public inspect records?

61Records as evidence

Part 5—Closure of public cemeteries and historic cemetery parks

Division 1—Closure of public cemeteries

62Order closing public cemetery

63Effect of order closing public cemetery

64What happens to rights of interment in a closed cemetery?

64AOrder reopening closed cemetery

64BEffect of order reopening a closed cemetery

Division 2—Historic cemetery parks

65Definitions

66Application to Minister to approve conversion to a historic cemetery park

67Minister may approve conversion to historic cemetery park

68Rights of interment cancelled

69Cemetery trust to notify holders of rights of interment

70Cemetery trust to prepare plan of existing places of interment

71Cemetery trust may remove memorials

72What happens if a right of interment is cancelled under this Division?

Part 6—Rights of interment in a public cemetery

Division 1—Rights of interment generally

73Cemetery trust may grant right of interment

74How long does a right of interment last?

75What types of rights of interment can be granted?

76Right of interment may be allocated or unallocated

77Entitlements of right of interment for interring human remains

78Exercising a right of interment

Division 2—Transfer and surrender

79Can a right of interment be transferred to another person?

80Transfer of right of interment must be recorded

81Offence to receive certain consideration for right of interment

82Surrender to cemetery trust of unexercised right of interment

83Surrender to cemetery trust of exercised right of interment

84Surrender to cemetery trust of right of interment—more than one holder

Division 2A—Variation or forced surrender of right of interment in certain circumstances

84AInterpretation

84BApplication for variation or forced surrender of right of interment

84CVariation or forced surrender of right of interment where indictable offence or coronial finding of responsibility

84DMatters to which Secretary must have regard

84EVariation may involve imposition of conditions on right of interment

84FDate of effect and notification of decision

84GCompliance with varied right of interment

84HEffect of forced surrender of right of interment if there are human remains interred

84IEffect of forced surrender of right of interment if no human remains are interred

84JOperation of variation or forced surrender where holder not the sole holder

84KForm of applications and notifications

Division 3—Conversion of limited rights of interment

85Cemetery trust to offer to convert 25 year limited right of interment

86Cemetery trust may remove cremated human remains and memorial

86ACemetery trust holds certain rights of interment relating to cremated human remains of deceased identified veterans

87Conversion or extension of a 25 year limited right of interment

Division 4—Lift and re-position procedure

88Application to carry out lift and re-position procedure

89Cemetery trust may approve or refuse application

90Approval to carry out lift and re-position procedure without exhumation licence

Division 5—Cancellation and discontinuance

91When can a cemetery trust cancel a right of interment?

92What happens if a right of interment is cancelled?

93Order discontinuing granting rights of interment

94Effect of order discontinuing granting rights of interment

Part 7—Memorials, places of interment and buildings for ceremonies

Division 1—Memorials and places of interment

95Offence to desecrate memorials

96Offence to desecrate places of interment

Division 2—Cemetery trust approvals

97Definition of place of interment limited

98Application for establishment or alteration of memorials and places of interment

99Cemetery trust may approve or refuse the application

100Cemetery trust may remove memorials or places of interment

101Approval for establishment or alteration of a building for ceremonies

102Cemetery trust may approve or refuse the application

103Cemetery trust may remove building for ceremonies

Division 3—Maintenance of memorials, places of interment and buildings for ceremonies

104Duty to maintain memorial or place of interment or buildings for ceremonies

105What is meant by a safe and proper condition?

106Powers of a cemetery trust—memorials and places of interment

107Powers of a cemetery trust—buildings for ceremonies

108Recovery of costs and expenses

109What if the holder of right of interment or responsible person cannot be found?

110Cemetery trust may repair or maintain from other funds

110ACemetery trust may establish, repair or maintain memorial or place of interment of deceased identified veterans

111Cemetery trust may enter agreements to maintain memorials and places of interment

112Cemetery trust may sell and supply memorials

Part 8—Interment of bodily remains

Division 1—Interment generally

113Bodily remains interred for perpetuity

114Unlawful interment

115Offence to inter bodily remains in public cemetery without interment authorisation

Division 2—Interment authorisations

116Application for interment authorisation

117Offence to make false statement in application for interment authorisation

118Grant of interment authorisation

119Conditions on interment authorisation

120Offence to fail to comply with interment authorisation

Division 3—Interment approvals

121Application for interment approval for interment other than in a public cemetery

122Offence to make false statement in application for interment approval

123Grant of interment approval

124Conditions on interment approval

125Offence to fail to comply with interment approval

126Notice of interment approval to Registrar of Titles

127Secretary to notify Registrar of Titles to remove notice

Part 9—Cremation

Division 1—Cremation generally

128Interment of cremated human remains

129Unlawful cremation

130Offence to cremate without cremation authorisation

Division 2—Cremation authorisation

131Application for cremation authorisation

132Offence to make false statement in application for cremation authorisation

133Grant of cremation authorisation

Division 3—Approvals by Secretary

134Secretary may grant cremation approval

135Application for approval to cremate in a place other than a crematorium in a public cemetery

136Approval by Secretary

137Offence to make false statement in application to Secretary

138Who can sign certificate of a registered medical practitioner authorising cremation?

139Refusal to sign certificate of registered medical practitioner authorising cremation

140Offence to make false statement in certificate of registered medical practitioner authorising cremation

141Offence to inter cremated human remains in public cemetery without authority

141ADisapplication of provisions in respect of Aboriginal ancestral remains

Part 10—Interment and cremation of deceased poor persons

142Prescribed person may apply for order

143Magistrates' Court may make order

144Order to generally specify cremation

145Trust must comply with order

Part 11—Other disposition of human remains

Division 1—Disposal other than by interment or cremation

146Disposal by methods other than interment or cremation

147Secretary may grant approval

148Secretary may vary or revoke approval

149Cemetery trust to cease using method if approval revoked

Division 2—Interment or cremation of body parts

150Interment or cremation of body parts

151Application for interment or cremation of body parts

152Grant of authorisation

153Offence to inter body parts in public cemetery without authority

Part 12—Exhumation and removal

154Part does not apply to exhumation under Coroners Act

155Offence to exhume other than in accordance with this Act

156Application to Secretary for exhumation licence

157Grant of exhumation licence

158Exhumation licence required to move remains to another location

158AFalse statements

159Offence to fail to comply with exhumation licence

Part 13—Enforcement

Division 1—Enforcement powers

160Appointment of authorised officers

161Identity card

162Offence not to produce identity card

163Powers of entry and inspection

164Retention and return of seized documents or equipment

165Search warrants

166Announcement before entry

167Details of warrant to be given to occupier

168Copies of seized documents

169Refusal or failure to comply with requirement

170Offence to hinder or obstruct authorised officer

171Offence to give false or misleading information

172Protection against self-incrimination

173Offence to impersonate authorised officer

174Who may prosecute?

175Extended period to prosecute certain offences

Division 2—Offences

176Offence to dispose of falsely identified bodily remains

177Indictable offences

178Offences by bodies corporate

Part 14—General

179Review by VCAT

180Regulations and model rules

Part 15—Repeals, transitional provisions and consequential amendments

186Transitional provisions

Schedules

Schedule 1—Membership and procedure of Class B cemetery trusts

Schedule 1A—Membership and procedure of Class A cemetery trusts

Schedule 2—Transitional provisions

Schedule 3—Regional Class A cemetery trusts

Schedule 4—Abolition of certain cemetery trusts and establishment of new Class A cemetery trusts

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Endnotes

1     General information

2     Table of Amendments

3     Explanatory details

Version No. 038

Cemeteries and Crematoria Act 2003

No. 80 of 2003

Version incorporating amendments as at

22 October 2025

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1Purposes

The main purposes of this Act are—

(a)to provide for the management and operation of cemeteries and crematoria; and

(b)to repeal the Cemeteries Act 1958.

2Commencement

This Act comes into operation on 1 July 2005.

2AObjects

The objects of this Act are to ensure that—

(a)human remains are treated with dignity and respect;

(b)all Victorians have access to cemetery and crematoria services;

(c)cemetery trusts operate effectively and efficiently in accordance with this Act.

3Definitions

(1)In this Act—

Aboriginal ancestral remains has the same meaning as in the Aboriginal Heritage Act 2006;

affected person has the meaning given by section 84A(1);

authorised officer means a person appointed as an authorised officer under Part 13;

bodily remains means a corpse of a human being, including a corpse of a still-born child but does not include—

(a)body parts; or

(b)cremated human remains;

body parts means human tissue or a part of a person where that tissue or part is not part of a corpse and includes foetal remains which are not a still-born child;

building for ceremonies means a building, chapel or other place of worship or commemoration for the use of a particular faith, religion or cultural group;

cemetery trust means a cemetery trust established under Part 2 and includes a Class A cemetery trust and a Class B cemetery trust;

cemetery trust fee means a fee or charge or scale of fees and charges set under section 39 and either—

(a)approved under section 40; or

(b)exempt under section 40A from approval under section 40;

cemetery trust rules means rules made by a cemetery trust under section 26;

Class A cemetery trust means a cemetery trust established as a Class A cemetery trust under Part 2 or Schedule 4 or converted under Schedule 3;

Class B cemetery trust means a cemetery trust other than a Class A cemetery trust;

closed cemetery means a cemetery or part of a cemetery to which an order under section 62 applies;

community advisory committee means an advisory committee established by a Class A cemetery trust under section 18D;

community advisory committee guidelines means guidelines made by the Secretary under section 18G;

conversion order means an order made under section 9A;

cremated human remains means—

(a)a corpse of a human being (including a corpse of a still-born child) which has been cremated in a crematorium;

(b)body parts which have been cremated in a crematorium;

cremation approval means an approval to cremate bodily remains at a crematorium in a public cemetery granted by the Secretary under section 134;

cremation authorisation means an authorisation to cremate bodily remains granted by a cemetery trust under section 133;

crematorium means a building or structure fitted with appliances for the purposes of cremating bodily remains;

domestic partner of a person means—

(a)a person who is in a registered relationship with the person; or

(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)for fee or reward; or

(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

exhumation licence means a licence to exhume or remove human remains granted by the Secretary under Part 12;

family member, in relation to a deceased identified veteran, means—

(a)a spouse or domestic partner of the deceased identified veteran; or

(b)a child of the deceased identified veteran, including a stepchild or an adopted child; or

(c)a parent of the deceased identified veteran;

fees and charges guidelines means guidelines made under section 42A;

film friendly principles has the same meaning as in the Filming Approval Act 2014;

film permit has the same meaning as in the Filming Approval Act 2014;

governance committee means a governance committee established by a Class A cemetery trust under section 18B;

human remains means—

(a)bodily remains;

(b)cremated human remains;

(c)body parts;

indictable offence has the meaning given by section 84A(1);

interment means the interring, burial or placing of human remains in a place of interment and, in relation to cremated human remains, includes the interment of those remains whether or not the remains are enclosed in a receptacle;

interment approval means an approval granted by the Secretary under Part 8 to inter bodily remains in a place other than a public cemetery;

interment authorisation means an authorisation granted by a cemetery trust under Part 8 to inter bodily remains in a public cemetery for which the cemetery trust is responsible;

lift and re-position procedure means the procedure described in section 90;

listed Class B cemetery trust means a Class B cemetery trust included on a list prepared by the Secretary under section 18K;

memorial means a monument, tombstone, headstone, ledger, cenotaph, plaque or other method of memorialising a deceased person where that memorial is within a public cemetery;

model rules means model rules made in accordance with section 25;

municipal council means a Council within the meaning of the Local Government Act 2020;

place of interment means a grave, vault, mausoleum, niche wall or any other structure or plot used for the interment of human remains;

police officer has the same meaning as in the Victoria Police Act 2013;

previous holder, of a right of interment that is forced to be surrendered under section 84C(2), (3) or (5), has the meaning given by section 84A(1);

public grave means a grave for multiple interments in which more than one person may be interred and in respect of which more than one person may be granted a right of interment that permits one interment only and no re-use of the grave by the holder of the right of interment;

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

relevant offender has the meaning given by section 84A(1);

responsible person, in relation to another person's death, has the meaning given by section 84A(2);

right of interment means a right of interment granted by a cemetery trust in accordance with Part 6;

Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;

spouse of a person means a person to whom that person is married;

still-born child has the same meaning as it has in the Births, Deaths and Marriages Registration Act 1996;

transfer, in relation to a right of interment, means—

(a)sale; or

(b)gift; or

(c)bequest in a will; or

(d)other assignment;

veteran means a person who has performed service or duty within the meaning of the Veterans Act 2005.

(2)If under the Public Administration Act 2004 the name of the Department of Health is changed, a reference in the definition of Secretary in subsection (1) to that Department must, from the date that the name is changed, be treated as a reference to the Department by its new name.

(3)For the purposes of the definition of domestic partner in subsection (1)—

(a)registered relationship has the same meaning as in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c)a person is not a domestic partner of another person only because they are co-tenants.

3AFilming Approval Act 2014

This Act is filming approval legislation within the meaning of the Filming Approval Act 2014.

PART 2—CEMETERIES AND CEMETERY TRUSTS

4Establishment of public cemeteries

(1)The Governor in Council, by order published in the Government Gazette, may establish a public cemetery.

(2)A public cemetery may only be established on Crown land reserved or deemed to be reserved for the purposes of cemeteries and crematoria under section 4 of the Crown Land (Reserves) Act 1978 or any corresponding previous enactment.

(3)The Order must specify the land in respect of which the public cemetery is established.

(4)The Governor in Council, by order published in the Government Gazette, may—

(a)change the name of a public cemetery;

(b)include additional reserved Crown land in a public cemetery;

(c)remove any land that has ceased to be reserved for the purposes of a cemetery from a public cemetery;

(d)amend or vary an order made under subsection (1).

5Establishment of cemetery trusts

(1)The Governor in Council, by order published in the Government Gazette, may establish a cemetery trust.

(1A)An order under subsection (1)—

(a)must specify whether the cemetery trust is a Class A cemetery trust or a Class B cemetery trust;

(b)may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of that order;

(c)may include savings, transitional or consequential provisions to facilitate the operation of the order.

(2)A cemetery trust—

(a)is a body corporate with perpetual succession; and

(b)has a common seal; and

(c)may sue and be sued in its corporate name; and

(d)may acquire hold and dispose of real and personal property; and

(e)may do and suffer all acts and things that a body corporate may by law do and suffer.

(3)The common seal of each cemetery trust must be kept as directed by the trust.

(4)All courts must take judicial notice of the imprint of the common seal on a document and, until the contrary is proved, must presume that the document was properly sealed.

5AConversion of certain regional cemetery trusts to Class A cemetery trusts

Schedule 3 has effect.

5BAbolition of certain cemetery trusts and establishment of new Class A cemetery trusts

Schedule 4 has effect.

6Constitution and membership of Class B cemetery trusts

(1)A Class B cemetery trust consists of not less than 3 and not more than 11 members appointed by the Governor in Council on the recommendation of the Minister.

(2)Despite subsection (1), in the case of a closed cemetery or a historic cemetery park, a Class B cemetery trust which manages that cemetery may consist of one member.

(3)Schedule 1 has effect with respect to the membership and procedure of a Class B cemetery trust.

6AConstitution and membership of Class A cemetery trusts

(1)A Class A cemetery trust consists of not less than 6 and not more than 9 members appointed by the Governor in Council on the recommendation of the Minister.

(2)In making a recommendation under subsection (1), the Minister must ensure that any appointment contributes to the Class A cemetery trust collectively having the skills and expertise required to perform its functions.

(3)Schedule 1A has effect with respect to the membership and procedure of a Class A cemetery trust.

6BCemetery trusts are Class B cemetery trusts unless order or Act otherwise specifies

On and from the commencement of section 10 of the Cemeteries and Crematoria Amendment Act 2009, a cemetery trust in existence at that commencement is taken to be a Class B cemetery trust unless this Act or any subsequent order made under this Act otherwise specifies.

7Cemetery trusts do not represent the Crown

A cemetery trust does not represent and is not to be taken to be part of the Crown.

8Management of public cemeteries

(1)On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette—

(a)may appoint—

(i)a cemetery trust to manage one or more public cemeteries;

(ii)a municipal council to manage one or more public cemeteries;

(b)may cancel any appointment made under paragraph (a);

(c)may change the name of a cemetery trust;

(d)may abolish a cemetery trust and transfer all its assets and liabilities to another cemetery trust, a municipal council or to another entity, including the State of Victoria;

(e)may abolish a cemetery trust.

Note

Section 5 provides for the establishment of cemetery trusts.

(2)An order made under this section—

(a)may provide for the transfer of—

(i)assets and liabilities (whether contingent or otherwise);

(ii)duties and obligations in relation to staff;

(iii)duties and obligations under contracts or other arrangements;

(iv)records and registers; and

(ab)may apply to a single cemetery trust or multiple cemetery trusts; and

(ac)may provide for—

(i)the appointment of new members to a cemetery trust;

(ii)the removal of members from a cemetery trust; and

(b)may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of that order; and

(c)may include savings, transitional or consequential provisions to facilitate the operation of the order.

(3)If the Governor in Council makes an order under this section, the order takes effect—

(a)on the date the order is published in the Government Gazette; or

(b)if a later date is specified in the order, on that later date.

9Effect of order abolishing cemetery trust

On the abolition of a cemetery trust by order under section 8, subject to that order—

(a)the cemetery trust is abolished and its members go out of office; and

(b)in the case of an order under section 8(1)(d), the cemetery trust, municipal council or other person or body to which the abolished cemetery trust's assets and liabilities are transferred becomes the successor in law to the abolished cemetery trust; and

(c)in the case of an order under section 8(1)(d), unless a contrary intention appears, any reference to the abolished cemetery trust in any Act, subordinate instrument, certificate of title, agreement or other document is to be construed as a reference to the cemetery trust, municipal council or other person or body to which the abolished cemetery trust's assets and liabilities were transferred.

9AConversion order—Class A cemetery trust or Class B cemetery trust

(1)On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may convert—

(a)a Class A cemetery trust to a Class B cemetery trust;

(b)a Class B cemetery trust to a Class A cemetery trust.

(2)The Minister must not recommend the making of a conversion order unless satisfied that the order is in the public interest having regard to—

(a)the objects of this Act;

(b)the size or scale of the operations of the cemetery trust;

(c)the services provided, or to be provided, by the cemetery trust;

(d)the communities served, or to be served, by the cemetery trust;

(e)any other matters the Minister considers relevant.

(3)A conversion order—

(a)may apply to a single cemetery trust or multiple cemetery trusts;

(b)may change the name of a cemetery trust;

(c)may provide for—

(i)the appointment of new members to a cemetery trust;

(ii)the removal of members from a cemetery trust;

(d)may provide for the transfer of—

(i)assets and liabilities (whether contingent or otherwise);

(ii)duties and obligations in relation to staff;

(iii)duties and obligations under contracts or other arrangements;

(iv)records and registers;

(e)may make provision for any other matter which, in the opinion of the Governor in Council, is necessary or expedient for the effective operation of the order;

(f)may include savings, transitional or consequential provisions to facilitate the operation of the order.

(4)A conversion order takes effect—

(a)on the date the order is published in the Government Gazette; or

(b)if a later date is specified in the order, on that later date.

10Appointment of an administrator

(1)On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may appoint an administrator to manage a public cemetery.

(2)The Minister may only make a recommendation referred to in subsection (1) in respect of a public cemetery managed by a Class B cemetery trust if, in his or her opinion—

(a)the public cemetery is being inefficiently or incompetently managed; or

(b)the appointment is necessary to protect the interests of the public; or

(c)the Class B cemetery trust has failed to comply with a direction under section 18 or 50 and that failure justifies the appointment of an administrator; or

(d)after an audit under section 50 or an audit or investigation under section 51 has been conducted into the Class B cemetery trust, the outcome of that audit or investigation justifies the appointment of an administrator.

(2A)The Minister may only make a recommendation referred to in subsection (1) in respect of a public cemetery managed by a Class A cemetery trust if, in his or her opinion—

(a)the public cemetery is being inefficiently or incompetently managed; or

(b)the appointment is necessary to protect the interests of the public; or

(c)the Class A cemetery trust has failed significantly to meet its outcomes as specified in its annual plan; or

(d)the Class A cemetery trust has failed to comply with a direction under section 18 and that failure justifies the appointment of an administrator; or

(e)after an audit or an investigation has been conducted under section 51 into the Class A cemetery trust, the outcome of that audit or investigation justifies the appointment of an administrator.

(3)On the appointment of an administrator—

(a)the members of the cemetery trust of the public cemetery cease to hold office; and

(b)the administrator acquires all the functions, powers, immunities and duties of the members of the cemetery trust.

(4)The Governor in Council, by order published in the Government Gazette, may replace an administrator—

(a)with another administrator; or

(b)by declaring that the administration is to end and by appointing members to the cemetery trust in accordance with section 6.

(5)If the Governor in Council makes an order under subsection (4), the administrator who is being replaced ceases to hold office—

(a)on the date the order is published in the Government Gazette; or

(b)if a later date is specified in the order, on that later date.

11Membership of cemetery trust not office of profit

A member of a Class B cemetery trust is not to be taken to hold an office or place of profit under the Crown which would—

(a)prevent the member sitting or voting as a member of the Legislative Council or Legislative Assembly; or

(b)make void the member's election to the Legislative Council or the Legislative Assembly; or

(c)prevent the member continuing to be a member of the Legislative Council or the Legislative Assembly; or

(d)subject the member of the Legislative Council or the Legislative Assembly to liability to a penalty under the Constitution Act 1975.

12Functions of Class B cemetery trusts

(1)The functions of a Class B cemetery trust are—

(a)to properly and efficiently manage and maintain each public cemetery for which it is responsible; and

(b)to carry out any other function conferred on a Class B cemetery trust by or under this Act or any other Act.

(2)In exercising its functions, a Class B cemetery trust must have regard to—

(a)its obligations in relation to funding of the perpetual maintenance of the public cemetery for which it is responsible; and

(b)the cultural and religious values of the community; and

(c)the heritage values (if any) of the public cemetery for which it is responsible.

12AFunctions of Class A cemetery trusts

(1)The functions of a Class A cemetery trust are—

(a)to properly and efficiently manage and maintain each public cemetery for which it is responsible;

(b)to develop, in accordance with this Act, annual plans and strategic plans for the operation of the trust and to monitor compliance with those plans;

(c)to develop annual business plans, strategies and budgets to ensure the efficient and accountable provision of services under the Act and the long term viability of the cemetery trust;

(d)to establish and maintain effective systems to ensure that—

(i)the services provided by the cemetery trust meet the needs of the communities which it serves; and

(ii)the views of those communities are taken into account;

(e)to oversee the organisational structure of the cemetery trust;

(f)to employ a chief executive officer (by whatever title called) for the effective operation and management of the cemetery trust and each public cemetery for which it is responsible;

(g)to monitor the performance of the chief executive officer;

(h)to ensure there are systems in place to enable effective and accountable risk management, financial management and records management of the cemetery trust;

(i)to provide leadership, assistance and advice as requested to listed Class B cemetery trusts;

(j)to establish committees in accordance with the Act and ensure those committees operate effectively;

(k)to ensure the Secretary is informed as soon as practicable of—

(i)any significant issues of public concern in relation to the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible; or

(ii)any significant risks that affect, or may affect, the cemetery trust or cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible;

(l)to develop or adopt a code of conduct for members of the cemetery trust and for staff of the trust;

(m)to ensure members of the cemetery trust receive adequate training to enable them to meet their obligations as members of the cemetery trust;

(n)to carry out any other function conferred on a Class A cemetery trust by or under this Act or any other Act.

(2)In exercising its functions, a Class A cemetery trust must have regard to—

(a)its obligations in relation to funding of the perpetual maintenance of the public cemetery for which it is responsible; and

(b)the cultural values and religious values (if any) of the community; and

(c)the heritage values (if any) of the public cemetery for which it is responsible; and

(d)the need to ensure that it uses its resources in an effective and efficient manner; and

(e)the need to ensure that public resources across the cemeteries and crematoria sector are used effectively and efficiently.

12BApplication of Public Administration Act 2004—converted cemetery trusts

Without limiting the operation of Schedule 1A, the Public Administration Act 2004 applies to a cemetery trust (whenever established) that is converted under this Act to a Class A cemetery trust and for that purpose, that Class A cemetery trust is a public entity, but not a small entity, within the meaning of that Act.

13General powers of cemetery trusts

Subject to this Act, a cemetery trust may do anything necessary or convenient to enable it to carry out its functions.

14Powers in respect of more than one cemetery

If a cemetery trust is responsible for the management of more than one public cemetery, the cemetery trust may manage all the cemeteries as if they were one cemetery.

15Power to delegate

(1)A cemetery trust may delegate to a member of the trust, the secretary of the trust (by whatever title called) or any other employee of the trust its powers or functions under this Act other than—

(a)a power under section 26 (to make cemetery trust rules); or

(b)a power under Division 2 of Part 3 (powers in respect of land); or

(c)a power under section 21 (power to establish crematoria); or

(d)a power under section 22 (power to establish mausolea facilities); or

(e)a power under section 39 (to fix fees or charges); or

(f)a power under section 45 or 46 (borrowing and investment powers); or

(g)this power of delegation.

*                *                *                *                *

(3)A delegation under this section must be in writing.

(4)A cemetery trust must keep—

(a)a copy of any delegation of a power or function under this section; and

(b)a record of all the delegations it has made under this section.

16Immunity of members of cemetery trust

(1)A member of a cemetery trust is not personally liable for anything done or omitted to be done in good faith—

(a)in the exercise of a power or the carrying out of a function under this Act or the regulations; or

(b)in the reasonable belief that the act or omission was in the exercise of a power or the carrying out of a function under this Act or the regulations.

(2)Any liability resulting from an act or omission that would, but for subsection (1), attach to a member of the cemetery trust attaches instead to the cemetery trust.

17Staff and other assistance

(1)A cemetery trust may employ any persons it considers necessary for the purposes of carrying out its functions.

(2)A cemetery trust may engage any professional, technical and other assistance it considers necessary for the purposes of carrying out its functions.

(3)The terms and conditions of employment or engagement are as determined by the cemetery trust, subject to any guidelines or directions of the Secretary notified to the cemetery trust.

18Secretary may give directions to cemetery trusts

(1)The Secretary may give directions to a cemetery trust with respect to—

(a)the manner in which the cemetery trust is to manage and maintain any public cemetery for which it is responsible; and

(ab)the management, operation or governance of the cemetery trust in accordance with this Act; and

(ac)any matter arising as a result of an audit under section 50 or an audit or investigation under section 51; and

(b)the records to be kept by the cemetery trust; and

(c)the expenditure of funds of the cemetery trust; and

(d)the carrying out of any other function or the exercise of any other power of the cemetery trust under—

(i)this Act or any other Act; or

(ii)the regulations made under this Act (including the model rules) or regulations made under any other Act; or

(iii)cemetery trust rules.

(2)A direction given under this section—

(a)must be in writing; and

(b)may apply to—

(i)an individual cemetery trust; or

(ii)a class of cemetery trusts; or

(iii)all cemetery trusts.

(3)A cemetery trust must comply with a direction applying to it under this section.

(4)A direction given under this section must not—

(a)refer to the cemetery services or crematoria services provided, or proposed to be provided, by a cemetery trust to a particular person; or

(b)refer to a decision made under the Act by a cemetery trust in relation to a particular person; or

(c)refer to a decision by a cemetery trust to employ or engage a particular person; or

(d)require the supply of goods or services to a cemetery trust by any particular person or other entity unless the supply is in accordance with a tender process.

18ASecretary to develop policies and plans for cemetery and crematoria sector

(1)For the purposes of long term planning, the Secretary, from time to time, may cause to be developed and prepared policies and plans in relation to the provision of cemetery services and crematoria services.

(2)Policies and plans under subsection (1) may—

(a)apply on a Statewide, regional or local basis; and

(b)apply to—

(i)Class A cemetery trusts; or

(ii)Class B cemetery trusts; or

(iii)both Class A cemetery trusts and Class B cemetery trusts.

PART 2A—ADDITIONAL REQUIREMENTS FOR CLASS A CEMETERY TRUSTS

18BEstablishment and functions of governance committees

(1)A Class A cemetery trust—

(a)must establish—

(i)a finance committee; and

(ii)an audit and risk committee; and

(b)may establish any other governance committee as it determines from time to time.

(2)A Class A cemetery trust must establish the governance committees referred to in subsection (1)(a) within 12 months of the Class A cemetery trust becoming a Class A cemetery trust.

(3)A governance committee—

(a)must consider any matters that are referred to it by the Class A cemetery trust; and

(b)may investigate and make any inquiries about any matter referred to it by the Class A cemetery trust; and

(c)must report back to the Class A cemetery trust as required by the cemetery trust; and

(d)must carry out any other functions conferred on a governance committee—

(i)under this Act or any other Act; or

(ii)by the Class A cemetery trust.

(4)Subsection (1)(a)(ii) does not apply to a Class A cemetery trust to which an exemption under the Financial Management Act 1994 with respect to governance committees applies.

18CMembership and procedure

(1)The membership of any governance committee is to be determined by the Class A cemetery trust.

(2)Subject to this Act or any other Act which imposes requirements in relation to governance committees, and except as otherwise determined by the Class A cemetery trust, the procedure of any governance committee is to be determined by the committee.

Note

There may be requirements under the Financial Management Act 1994 and other legislation.

18DCommunity advisory committees

(1)For the purpose of liaising with communities to which a Class A cemetery trust provides cemetery or crematoria services, a Class A cemetery trust—

(a)must appoint one community advisory committee; and

(b)may appoint any additional community advisory committees it considers appropriate.

(2)A Class A cemetery trust must establish a community advisory committee referred to in subsection (1)(a) within 12 months of the Class A cemetery trust becoming a Class A cemetery trust.

(3)A Class A cemetery trust must include in its report of operations under Part 7 of the Financial Management Act 1994 a report on the activities of its community advisory committees.

18EFunctions of community advisory committee

The functions of a community advisory committee are—

(a)to consider any matters that are referred to it by the Class A cemetery trust which established it;

(b)to report to the Class A cemetery trust on those matters;

(c)to raise with the Class A cemetery trust any issues of concern or matters of interest to the community regarding the cemetery or crematoria services provided by the Class A cemetery trust;

(d)to carry out any other functions conferred on it—

(i)under this Act; or

(ii)by the community advisory committee guidelines; or

(iii)by the Class A cemetery trust.

18FMembership and procedure of community advisory committees

(1)A community advisory committee consists of the persons appointed by the Class A cemetery trust, having regard to the community advisory committee guidelines.

(2)In appointing a person to a community advisory committee, a Class A cemetery trust must give preference to a person who is not a funeral director or a stonemason or the holder of a similar position.

(3)A community advisory committee may regulate its own proceedings subject to—

(a)this Act; and

(b)any directions of the Class A cemetery trust which established the community advisory committee; and

(c)the community advisory committee guidelines.

18GCommunity advisory committee guidelines

(1)The Secretary must make guidelines for or with respect to community advisory committees, including but not limited to—

(a)the appointment of members of community advisory committees;

(b)the composition, roles and functions of community advisory committees;

(c)the procedure of community advisory committees;

(d)any other matter relating to the operation of community advisory committees.

(2)The Secretary must cause the community advisory committee guidelines—

(a)to be provided to each Class A cemetery trust; and

(b)to be published on the Internet.

(3)The community advisory committee guidelines take effect on the date specified in the guidelines.

18HAnnual meeting

(1)A Class A cemetery trust must hold an annual meeting before 30 December in each calendar year.

(2)An annual meeting is to be open to the public.

(3)At an annual meeting, a Class A cemetery trust must—

(a)report to the public on the operation of that cemetery trust for the preceding financial year; and

(b)make the cemetery trust's most recent annual report available; and

(c)report to the public on the accounts of the cemetery trust; and

(d)report to the public on the activities of any community advisory committee of the cemetery trust.

18INotice of annual meeting

(1)A reasonable time before the date of the annual meeting of a Class A cemetery trust, the cemetery trust must publish a public notice in a newspaper circulating in the relevant area of the holding of the annual meeting of that Class A cemetery trust.

(2)A public notice published under subsection (1) must state—

(a)the time, date and place of the annual meeting of the Class A cemetery trust; and

(b)that the annual meeting is open to the public.

18JLeadership role for Class B cemetery trusts

(1)A Class A cemetery trust must provide leadership, assistance and advice in relation to operational and governance matters relating to cemeteries, as requested, to a listed Class B cemetery trust to which the Class A cemetery trust has been allocated.

(2)Without limiting the matters on which a Class A cemetery trust may provide advice, a Class A cemetery trust may provide a listed Class B cemetery trust with assistance and advice about the following—

(a)record keeping systems suited to the requirements of cemetery trusts;

(b)standard form documentation suitable for cemetery trust purposes;

Example

Standard form contracts of sale for graves and other places of interment, including niches for cremated remains.

(c)tendering and contracting processes and requirements.

18KListed Class B cemetery trusts

(1)The Secretary may prepare a list of Class B cemetery trusts which are eligible to receive leadership, assistance and advice from Class A cemetery trusts.

(2)The Secretary—

(a)must specify in the list prepared under subsection (1) which Class A cemetery trust has the leadership, assistance and advice role in relation to which Class B cemetery trust;

(b)may amend the list as the Secretary considers appropriate by—

(i)adding, varying or deleting names of cemetery trusts from the list; or

(ii)allocating different Class B cemetery trusts to different Class A cemetery trusts.

(3)The Secretary must cause the list prepared under subsection (1)—

(a)to be provided to each Class A cemetery trust; and

(b)to be published on the Internet.

(4)The list prepared under subsection (1) takes effect on the date specified in the list.

18LChief executive officer

(1)A Class A cemetery trust must employ a person as the chief executive officer (by whatever title called) of the Class A cemetery trust.

(2)The chief executive officer holds office—

(a)for the period determined by the Class A cemetery trust; and

(b)subject to subsection (3), on the terms and conditions, including remuneration, determined by the Class A cemetery trust.

(3)The Secretary must approve the terms and conditions, including remuneration, of the chief executive officer of a Class A cemetery trust before a person is employed as chief executive officer.

18MChief executive officer's functions

(1)The chief executive officer of a Class A cemetery trust must—

(a)prepare material for the consideration and approval of the cemetery trust, including—

(i)draft annual plans;

(ii)draft strategic plans;

(iii)draft business plans and strategies;

(iv)budgets;

(b)manage the cemetery trust in accordance with any annual plans, strategic plans, business plans and strategies and budgets approved by the cemetery trust;

(c)provide the Class A cemetery trust with relevant and timely information to enable the cemetery trust to fulfil its functions and objectives efficiently and effectively;

(d)ensure the Class A cemetery trust's decisions are implemented efficiently and effectively;

(e)inform the Class A cemetery trust of—

(i)any significant issues of public concern in relation to the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible; or

(ii)any significant risks that affect, or may affect, the cemetery trust, cemetery or crematoria services provided by that cemetery trust or the public cemeteries for which that cemetery trust is responsible;

(f)ensure that the resources of the Class A cemetery trust are used effectively and efficiently.

(2)In the exercise of his or her functions, the chief executive officer is subject to the direction of the Class A cemetery trust.

18NAnnual plans

(1)A Class A cemetery trust must prepare an annual plan for each financial year that specifies—

(a)the objectives, priorities and key performance outcomes to be met by the Class A cemetery trust during the relevant year; and

(b)the performance indicators or other measures against which the Class A cemetery trust's performance is to be assessed and monitored; and

(c)how and when the Class A cemetery trust is to report on its performance in relation to the specified objectives, priorities and key performance outcomes; and

(d)any other matters agreed to by the Minister and the Class A cemetery from time to time.

(2)An annual plan must be consistent with—

(a)the strategic plan of the Class A cemetery trust; and

(b)the guidelines made by the Secretary under section 18P, if any.

(3)A Class A cemetery trust must give a copy of the proposed annual plan to the Secretary on or before 30 September each year for the Secretary's approval.

(4)On the submission of a proposed annual plan under subsection (3), the Secretary may—

(a)approve the annual plan; or

(b)refer the annual plan back to the cemetery trust for amendment in accordance with any comments or directions the Secretary may give.

(5)If the Secretary refers an annual plan back to a Class A cemetery trust under subsection (4)(b), the Class A cemetery trust must—

(a)make the amendments required by the Secretary; and

(b)deliver the completed annual plan to the Secretary within 3 months after it was submitted to the Secretary under subsection (3).

(6)On receipt of a completed annual plan under subsection (5)(b), the Secretary—

(a)may approve the annual plan; or

(b)if the Secretary requires further amendments—

(i)may refer the annual plan back to the Class A cemetery trust; and

(ii)this section applies to that second referral and any subsequent referral, with any necessary modifications.

(7)A Class A cemetery trust must ensure that an approved annual plan for that cemetery trust is available to members of the public on request.

18OStrategic plans

(1)A Class A cemetery trust must—

(a)prepare a strategic plan for the management and operation of the cemetery trust and the public cemeteries for which it is responsible; and

(b)submit that strategic plan to the Secretary for approval.

(2)A strategic plan developed by a Class A cemetery trust must be prepared—

(a)at the direction of the Secretary; and

(b)at the time or times determined by the Secretary; and

(c)in accordance with any guidelines prepared by the Secretary under section 18P.

(3)The Secretary may—

(a)approve a strategic plan; or

(b)approve a strategic plan with amendments; or

(c)refuse to approve a strategic plan.

(4)A Class A cemetery trust must advise the Secretary if it wishes to exercise its functions in a manner inconsistent with its approved strategic plan.

(5)A Class A cemetery trust must ensure that an approved strategic plan for that cemetery trust is available to members of the public on request.

18PAnnual plan and strategic plan guidelines

(1)The Secretary may make guidelines for or with respect to—

(a)the content of annual plans;

(b)the content and timing of strategic plans for Class A cemetery trusts;

(c)any other matters relating to annual plans or strategic plans.

(2)The Secretary must cause the annual plan and strategic plan guidelines—

(a)to be provided to each Class A cemetery trust; and

(b)to be published on the Internet.

(3)The annual plan and strategic plan guidelines take effect on the date specified in the guidelines.

18QPayment of levy

(1)For the purposes of assisting in defraying the costs of administering this Act, making improvements in cemetery trust governance and administration and the provision of services to the community, each Class A cemetery trust must pay an annual levy on its gross earnings as reported in the annual financial statements for that Class A cemetery trust for the previous financial year.

(2)The annual levy payable under subsection (1) is—

(a)3 per cent; or

(b)if any other amount is fixed for the purposes of this section by the Minister by notice published in the Government Gazette, that amount.

(3)An amount fixed under subsection (2)(b) must not exceed 5 per cent.

(4)The Minister must give each Class A cemetery trust a written notice setting out—

(a)the amount it is required to pay as levy in respect of a specified period; and

(b)the date by which the amount is required to be paid; and

(c)how the payment is to be made.

(5)The Minister must ensure that all amounts paid as levy are paid into the Consolidated Fund.

(6)The Minister must cause the following information to be included in the annual report of operations for the Department of Health under Part 7 of the Financial Management Act 1994 for each financial year—

(a)the total amount paid as levy in that financial year;

(b)the total amount appropriated from the Consolidated Fund for the purposes of this Act for that financial year;

(c)a summary of the matters on which money appropriated from the Consolidated Fund for the purposes of this Act was expended in that financial year and of the amounts expended for those matters.

PART 3—MANAGEMENT OF PUBLIC CEMETERIES

Division 1—General management powers

19Power to carry out works in public cemetery

In carrying out its functions under this Act, a cemetery trust may carry out or permit the carrying out of works in a public cemetery for which it is responsible.

20Setting aside areas

(1)A cemetery trust must set aside areas for the interment of human remains in a public cemetery for which it is responsible.

(2)A cemetery trust may set aside areas for the purposes of managing a public cemetery for which it is responsible.

(3)Without limiting subsection (2), a cemetery trust may set aside areas for—

(a)interment of human remains of persons of a particular religious denomination or faith or community or other group; and

(b)buildings for ceremonies; and

(c)crematoria; and

(d)places of interment or memorials; and

(e)parks, gardens, plantations or other buildings, structures or places that are required for the effective operation or use of the public cemetery.

21Establishment of a crematorium

(1)With the prior approval in writing of the Secretary, a cemetery trust may establish and operate a crematorium in a public cemetery for which it is responsible.

(2)A cemetery trust must not establish and operate a crematorium in any area set aside for interments of persons of a particular religious denomination or faith or community or other group.

22Establishment of mausolea facilities

With the prior approval in writing of the Secretary, a cemetery trust may establish mausolea facilities in a public cemetery for which it is responsible.

23Secretary may revoke approvals

(1)The Secretary may—

(a)revoke an approval of the establishment and operation of a crematorium under section 21; and

(b)direct that cremations be discontinued at a crematorium.

(2)The Secretary may—

(a)revoke an approval of the establishment of mausolea facilities under section 22; and

(b)direct that interments be discontinued at any mausolea facilities.

(3)A revocation under this section must be in writing.

24Interference with distribution of land

(1)In the management of a public cemetery, a cemetery trust must not interfere directly or indirectly with—

(a)the original distribution of lands or hereditaments made or intended to be made by the deed of grant or other conveyance to and amongst the separate and distinct religious denominations and communions; or

(b)the existing distribution of land to particular community or other groups.

(2)Despite subsection (1), a cemetery trust may apply to the Secretary for approval to alter the existing distribution of land which has been allocated to—

(a)a particular religious denomination or communion; or

(b)a particular community or other group.

(3)If a cemetery trust makes an application under subsection (2), the Secretary must not approve any alteration to an existing distribution of land unless the Secretary is satisfied that—

(a)the re-distribution only relates to clearly identifiable parcels of land, not individual places of interment; and

(b)that the land to which the application relates does not contain any existing interments or pre-existing rights of interment; and

(c)any requirements under the Heritage Act 2017 and the Planning and Environment Act 1987 (as the case requires) have been complied with.

(4)The approval of the Secretary under this section must be given in writing.

25Model rules

(1)The regulations may prescribe model rules for or with respect to the general care, protection and management of a public cemetery by a cemetery trust.

(2)The model rules apply to all public cemeteries unless—

(a)a cemetery trust makes cemetery trust rules; and

(b)those cemetery trust rules are approved and published in accordance with section 27.

26Power to make cemetery trust rules

(1)A cemetery trust may make rules for or with respect to the general care, protection and management of a public cemetery for which the cemetery trust is responsible.

(2)Without limiting subsection (1), cemetery trust rules may be made for or with respect to—

(a)the disposition of human remains;

(b)the granting of rights of interment;

(c)the protection of buildings, memorials, structures, parks, gardens, plantations and enclosures;

(d)regulating the behaviour of persons in the cemetery or crematorium to ensure good order and decency;

(e)regulating vehicular traffic in the cemetery;

(f)the position and depth of places of interment which are graves;

(g)the position of places of interment which are vaults and mausolea facilities, the construction of coffins to be put into vaults and mausolea facilities and the covering of vaults and mausolea facilities to prevent the escape of noxious fumes;

(h)conditions to be complied with by persons who conduct interments, cremations or ceremonies in the cemetery;

(i)conditions to be complied with by persons who undertake works in the cemetery;

(j)the hours of opening or operation of the cemetery or crematorium in the cemetery.

(3)Cemetery trust rules may impose a penalty not exceeding 20 penalty units for any contravention of the cemetery trust rules.

(4)Cemetery trust rules—

(a)may be of general or limited application;

(b)may differ according to differences in time, place or circumstance;

(c)may leave any matter or thing to be from time to time determined, approved or dispensed with by the Secretary or a cemetery trust;

(d)may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method, formulated, issued, prescribed or published by any other person, whether—

(i)wholly or partially or as amended by the cemetery trust rules; or

(ii)as formulated, issued, prescribed or published at the time the cemetery trust rules are made or at any time before then; or

(iii)as formulated, issued, prescribed or published from time to time.

(5)Cemetery trust rules may incorporate all or any of the model rules.

(6)A cemetery trust rule—

(a)must not be inconsistent with any Act or statutory rule; and

(b)is inoperative to the extent that it is inconsistent with any Act or statutory rule.

(7)A cemetery trust rule may be inconsistent with the model rules.

27Approval and publication of cemetery trust rules

(1)A cemetery trust rule does not come into operation until it has been—

(a)approved by the Governor in Council; and

(b)published in the Government Gazette.

(2)A cemetery trust rule is not a statutory rule for the purposes of the Subordinate Legislation Act 1994.

28Governor in Council may revoke cemetery trust rules

(1)Without limiting section 27 of the Interpretation of Legislation Act 1984, the Governor in Council, by order published in the Government Gazette, may revoke cemetery trust rules.

(2)An order under subsection (1)—

(a)may revoke cemetery trust rules in whole or in part; and

(b)takes effect on the day it is published in the Government Gazette.

(3)If cemetery trust rules are wholly revoked by an order under subsection (1), the model rules apply to the public cemetery for which the cemetery trust is responsible and in respect of which the order is made from the date that the order takes effect.

Division 2—Powers in respect of land

29Effect of Division

This Division has effect despite anything to the contrary in the Land Act 1958 or the Crown Land (Reserves) Act 1978.

30Cemetery trust may purchase or acquire land for cemetery

(1)A cemetery trust, with the approval of the Minister, may purchase or acquire land for the purposes of a public cemetery for which it is responsible.

(2)A cemetery trust cannot purchase or acquire land for any other purpose.

(3)The Minister must not approve the purchase or acquisition of the land unless he or she is satisfied that it is necessary or desirable that the land be purchased or acquired for the purposes of the public cemetery.

(4)If the Minister is satisfied that the cemetery trust has sufficient funds available for the purchase or acquisition of land for the purposes of a public cemetery, the Minister may direct the cemetery trust to use its own funds for the purchase or acquisition.

31Minister may acquire land

The Minister may purchase or compulsorily acquire land for cemeteries and crematoria purposes.

32Land Acquisition and Compensation Act 1986 applies

(1)The Land Acquisition and Compensation Act 1986 applies to the purchase or compulsory acquisition of land under section 31 and for that purpose—

(a)the Cemeteries and Crematoria Act 2003 is the special Act; and

(b)the Minister is the Authority.

(2)Any land compulsorily acquired by the Minister under section 31—

(a)vests in the Crown under section 24 of the Land Acquisition and Compensation Act 1986 despite anything to the contrary in that section; and

(b)is deemed to be unalienated Crown land.

33Land purchased or acquired vests in Crown

Subject to section 32(2), on the acquisition of any land purchased or acquired by a cemetery trust or the Minister under this Division, that land vests in the Crown as unalienated Crown land.

34Land permanently reserved

On the acquisition of any land purchased or acquired by a cemetery trust or the Minister under this Division that land is deemed to be permanently reserved under section 4 of the Crown Land (Reserves) Act 1978 for cemeteries and crematoria purposes.

35References to acquiring authority

Section 54 of the Transfer of Land Act 1958 applies in relation to the purchase or acquisition of land by a cemetery trust or the Minister under this Division as if the Crown were the acquiring authority for the purposes of that section.

36Power to grant licences over cemetery land

(1)Subject to this section, a cemetery trust may grant a licence to enter and use any part of the land in a public cemetery for which it is responsible or any building on that land for any purpose approved by the Minister.

(2)The Minister must not give approval under this section unless he or she is satisfied that the licence is for a purpose that is not detrimental to the purpose for which the land is reserved.

(3)A licence granted under this section—

(a)must be for a period not exceeding 3 years; and

(b)is subject to the terms and conditions determined by the cemetery trust and approved by the Minister.

37Power of trusts to lease cemetery land

(1)Subject to this section, a cemetery trust may grant a lease of any land in the public cemetery for which it is responsible for any purpose approved by the Minister.

(2)The Minister must not give approval under this section unless he or she is satisfied that the purpose for which the lease is to be granted is not detrimental to the purpose for which the land is reserved.

(3)A lease granted under this section—

(a)must be for a specified term not exceeding 21 years; and

(b)is subject to any covenants, exceptions, reservations, terms and conditions that are determined by the cemetery trust and approved by the Minister.

38Registrar of Titles to amend Register

The Registrar of Titles must make any recordings in or amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of any provision of this Division.

Division 3—Financial powers

39Power to fix fees and charges for services

(1)A cemetery trust, from time to time, may fix fees and charges or a scale of fees and charges for its services.

(2)In fixing fees and charges under this section, a cemetery trust must have regard to—

(a)the costs of operating and managing the public cemetery; and

(ab)the fees and charges guidelines, if any; and

(b)the need to provide for the maintenance of the public cemetery in perpetuity.

(3)A cemetery trust may fix different fees and charges for different cases or classes of cases.

(4)Fees and charges fixed by a cemetery trust under this section must be approved by the Secretary under section 40, unless they are exempt under section 40A.

40Secretary to approve fees and charges

(1)On fixing a fee or charge or scale of fees and charges under section 39, a cemetery trust must notify the Secretary of those fees and charges.

(2)The Secretary may approve or disapprove a fee or charge or scale of fees and charges fixed under section 39 in whole or in part, unless they are exempt under section 40A.

40ASecretary may exempt certain fees and charges from approval

(1)The Secretary may exempt specified fees and charges or scales of fees and charges from being approved under section 40 if, in the Secretary's opinion, there is no public benefit in those fees and charges being approved.

(2)An exemption under subsection (1) may—

(a)specify individual fees and charges or scales of fees and charges which do not require approval under section 40;

(b)specify fees and charges or scales of fees and charges by class;

(c)be of general or limited application;

(d)differ according to differences in time, place or circumstance;

(e)apply to all cemetery trusts, specified cemetery trusts or specified classes of cemetery trusts;

(f)apply to all public cemeteries, specified public cemeteries or specified classes of public cemetery.

(3)The Secretary—

(a)must cause an exemption under subsection (1) to be published in the Government Gazette; and

(b)may publish the exemption under subsection (1) on the Internet.

(4)An exemption under subsection (1) takes effect on the date of publication in the Government Gazette or such later date as is specified in the exemption.

41Secretary to publish notice of approval

(1)If the Secretary approves a fee or charge or a scale of fees and charges under section 40, the Secretary must cause a notice of that approval to be published in the Government Gazette.

(2)A fee or charge or scale of fees and charges does not take effect until notice of the Secretary's approval is published in the Government Gazette.

42Secretary to publish fees and charges on the Internet

(1)If the Secretary approves a fee or charge or a scale of fees and charges under section 40, the Secretary must cause those fees and charges to be published on the Internet.

(2)Nothing in this section prevents a cemetery trust publishing their fees and charges or scale of fees and charges by any other additional means.

42AFees and charges guidelines

(1)The Secretary may make guidelines for or with respect to fees and charges fixed by cemetery trusts for services.

(2)The guidelines may include, but are not limited to, processes and methodologies to be applied by a cemetery trust and matters it must take into account.

(3)The Secretary—

(a)must cause the fees and charges guidelines to be published in the Government Gazette; and

(b)may publish the fees and charges guidelines on the Internet.

(4)The fees and charges guidelines take effect on the date of publication in the Government Gazette or such later date as is specified in the guidelines.

43Fees and charges to increase by CPI

(1)This section only applies—

(a)to a cemetery trust fee which is $50.00 or more; and

(b)if the CPI for the last reference period in the calendar year preceding the calendar year in which a declaration under subsection (2) is made is more than the CPI for the last reference period in the preceding calendar year.

(1A)This section does not apply to a cemetery trust fee to which an exemption under section 40A applies.

(2)Not later than 1 March each year, the Secretary must declare that cemetery trust fees to which this section applies are, by force of this section, increased in accordance with this section.

(2A)A declaration under subsection (2) may provide that this section does not apply to—

(a)a specified cemetery trust or specified cemetery trusts;

(b)specified cemetery trust fees of cemetery trusts generally;

(c)specified cemetery trust fees of a specified cemetery trust or specified cemetery trusts.

(3)A declaration under subsection (2)—

(a)is to be made by notice published in the Government Gazette; and

(b)takes effect on 1 July in the year in which it is made; and

(c)applies to cemetery trusts and cemetery trust fees in accordance with the declaration.

(4)A cemetery trust fee to which this section applies is increased by an amount calculated in accordance with the following formula—

where—

Ais the relevant cemetery trust fee as at 1 February in the calendar year in which the declaration under subsection (2) is made;

Bis the CPI for the last reference period in the calendar year preceding the calendar year in which the declaration under subsection (2) is made;

Cis the CPI for the last reference period in the calendar year preceding the calendar year referred to in B last published by the Australian Bureau of Statistics before the date on which the declaration under subsection (2) is made.

(5)A cemetery trust fee increased in accordance with this section must be rounded to the nearest 5 dollar unit.

Example

A CPI adjusted fee of $1923 is rounded to $1925.  A CPI adjusted fee of $1922 is rounded to $1920.

*                *                *                *                *

(7)In this section—

Australian Statistician has the same meaning as it has in the Australian Bureau of Statistics Act 1975 of the Commonwealth;

CPI means the all groups consumer price index for Melbourne in original terms published by the Australian Bureau of Statistics.

*                *                *                *                *

44Waiver or reduction of fees or charges

A cemetery trust must not waive or reduce any fees or charges that would otherwise be payable to it under this Act except on the grounds of extreme hardship or other special circumstance.

45Investment powers

(1)Subject to the direction of the Minister, a cemetery trust may invest its money in any manner it sees fit.

(2)The Minister may give written directions as to how a cemetery trust is to invest its money.

(3)A direction under subsection (2) may—

(a)apply to—

(i)an individual cemetery trust; or

(ii)a class of cemetery trusts; or

(iii)all cemetery trusts.

(b)provide that any matter may be determined, approved or dispensed with by the Secretary or any employee or employees or class of employees employed under Part 3 of the Public Administration Act 2004 in the Department of Health.

46Borrowing powers

(a)on the appointed day, The Mildura Cemetery Trust becomes a party to the agreement in place of the old Mildura Cemetery Trust; and

(b)on and after the appointed day, the agreement has effect as if The Mildura Cemetery Trust had always been a party to the agreement.

(2)If, under clause 4, the rights and liabilities of a former north west and eastern cemetery trust under an agreement, including an oral agreement, vest in, or become rights and liabilities of, The Greater Metropolitan Cemeteries Trust—

(a)on the appointed day, The Greater Metropolitan Cemeteries Trust becomes a party to the agreement in place of the relevant former north west and eastern cemeteries trust; and

(b)on and after the appointed day, the agreement has effect as if The Greater Metropolitan Cemeteries Trust had always been a party to the agreement.

(3)If, under clause 5, the rights and liabilities of a former southern cemetery trust under an agreement, including an oral agreement, vest in, or become rights and liabilities of, The Southern Metropolitan Cemeteries Trust—

(a)on the appointed day, The Southern Metropolitan Cemeteries Trust becomes a party to the agreement in place of the relevant former southern cemetery trust; and

(b)on and after the appointed day, the agreement has effect as if The Southern Metropolitan Cemeteries Trust had always been a party to the agreement.

7Former instruments

Any former instrument continues to have effect according to its tenor on and after the relevant appointed day as if a reference in the instrument—

(a)to the old Mildura Cemetery Trust were a reference to The Mildura Cemetery Trust;

(b)to a former north west and eastern cemetery trust were a reference to The Greater Metropolitan Cemeteries Trust;

(c)to a former southern cemetery trust were a reference to The Southern Metropolitan Cemeteries Trust.

8Proceedings

(1)If, immediately before the appointed day, proceedings to which the old Mildura Cemetery Trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Mildura Cemetery Trust—

(a)is substituted for the old Mildura Cemetery Trust as a party to the proceedings; and

(b)has the same rights in the proceedings as the old Mildura Cemetery Trust had.

(2)If, immediately before the appointed day, proceedings to which a former north west and eastern cemetery trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Greater Metropolitan Cemeteries Trust—

(a)is substituted for the relevant former north west and eastern cemetery trust as a party to the proceedings; and

(b)has the same rights in the proceedings as the relevant former north west and eastern cemetery trust had.

(3)If, immediately before the appointed day, proceedings to which a former southern cemetery trust was a party were pending or existing in any court or tribunal, on and after the appointed day, The Southern Metropolitan Cemeteries Trust—

(a)is substituted for the relevant former southern cemetery trust as a party to the proceedings; and

(b)has the same rights in the proceedings as the relevant former southern cemetery trust had.

9Interests in land

Without limiting Division 2 of Part 3 or this Schedule and despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006), subject to clause 10, if—

(a)immediately before the appointed day the old Mildura Cemetery Trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958, on and after that day—

(i)The Mildura Cemetery Trust is to be taken to be the registered proprietor of that interest in land; and

(ii)The Mildura Cemetery Trust has the same rights and remedies in respect of that interest as the old Mildura Cemetery Trust had;

(b)immediately before the appointed day a former north west and eastern cemetery trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958, on and after that day—

(i)The Greater Metropolitan Cemeteries Trust is to be taken to be the registered proprietor of that interest in land; and

(ii)The Greater Metropolitan Cemeteries Trust has the same rights and remedies in respect of that interest as the relevant former north west and eastern cemetery trust had;

(c)immediately before the appointed day, a former southern cemetery trust is the registered proprietor of an interest in land under the Transfer of Land Act 1958, on and after that day—

(i)The Southern Metropolitan Cemeteries Trust is to be taken to be the registered proprietor of that interest in land; and

(ii)The Southern Metropolitan Cemeteries Trust has the same rights and remedies in respect of that interest as the relevant former southern cemetery trust had.

10Transfer order—former council managed cemetery trusts

(1)On the recommendation of the Minister, the Governor in Council, by order published in the Government Gazette, may allocate to a Class A cemetery trust established by this Schedule the property, rights and liabilities of a municipal council which constituted a former council managed cemetery trust primarily used for or related to a former council managed cemetery trust or used for or in connection with the provision of cemetery or crematoria services or the management of a public cemetery by the municipal council that are specified in the order.

(2)Without limiting subclause (1), a transfer order may allocate property, rights and liabilities by reference—

(a)to a public cemetery or other place; or

(b)to a class or category of property, rights or liabilities; or

(c)to a combination of paragraphs (a) and (b).

(3)The Minister must not recommend the making of a transfer order unless he or she is satisfied that the details of the property, rights or liabilities to be transferred have been agreed between a municipal council which constituted a former council managed cemetery trust and the Secretary or a new Class A cemetery trust established by this Schedule.

11Effect of transfer order

(1)If a transfer order is made, on the date specified in the order as the transfer date—

(a)all property and rights of the municipal council specified in the order vest in the Class A cemetery trust established by this Schedule and specified in the transfer order; and

(b)all liabilities of the municipal council specified in the order become liabilities of the Class A cemetery trust established by this Schedule and specified in the transfer order; and

(c)the Class A cemetery trust established by this Schedule and specified in the order becomes the successor in law of the municipal council in relation to the property, rights and liabilities specified in the transfer order.

(2)If, under a transfer order, the property, rights and liabilities of a municipal council under an agreement, including an oral agreement, vest in, or become property, rights and liabilities of, a Class A cemetery trust established by this Schedule—

(a)the Class A cemetery trust becomes, on the transfer date specified in the transfer order, a party to the agreement in place of the municipal council; and

(b)on and after the transfer date specified in the transfer order, the agreement has effect as if the Class A cemetery trust had always been a party to the agreement.

(3)If, immediately before the transfer date specified in the transfer order, proceedings relating to the property, rights or liabilities specified in the transfer order to which a municipal council was a party, were pending or existing in any court or tribunal, on and after the transfer date specified in the transfer order, the Class A cemetery trust established by this Schedule and specified in the order—

(a)is substituted for the municipal council as a party to the proceedings; and

(b)has the same rights in the proceedings as the municipal council had.

(4)Without limiting this Schedule and despite anything to the contrary in any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006), if immediately before the transfer date specified in the transfer order, a municipal council is, in relation to the property, rights or liabilities specified in the transfer order, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—

(a)the Class A cemetery trust established by this Schedule and specified in the order is to be taken to be the registered proprietor of that interest in land; and

(b)the Class A cemetery trust established by this Schedule and specified in the order has the same rights and remedies in respect of that interest as the municipal council had.

(5)Any instrument relating to property, rights and liabilities of a municipal council that under a transfer order have vested in, or become property, rights and liabilities of a Class A cemetery trust established by this Schedule has effect and continues to have effect according to its tenor on and after the transfer date specified in the transfer order as if a reference in the instrument to the municipal council were a reference to the Class A cemetery trust specified in the transfer order.

(6)More than one transfer order may be made under this clause.

12Interim CEO

(1)The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Mildura Cemetery Trust.

(2)The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Greater Metropolitan Cemeteries Trust.

(3)The Secretary, by instrument, may appoint a person to act as the interim chief executive officer of The Southern Metropolitan Cemeteries Trust.

(4)Subject to this Act, a person appointed to act as interim chief executive officer—

(a)of The Mildura Cemetery Trust appointed under subclause (1) is taken to have been appointed by The Mildura Cemetery Trust;

(b)of The Greater Metropolitan Cemeteries Trust appointed under subclause (2) is taken to have been appointed by The Greater Metropolitan Cemeteries Trust;

(c)of The Southern Metropolitan Cemeteries Trust appointed under subclause (3) is taken to have been appointed by The Southern Metropolitan Cemeteries Trust.

(5)An appointment under subclause (1), (2) or (3)—

(a)is subject to the terms and conditions specified in the instrument of appointment; and

(b)is for the period specified in that instrument, not exceeding 6 months.

Note

See section 13 of the Interpretation of Legislation Act 1984.

(6)The Secretary may reappoint an interim chief executive officer appointed under this clause provided the total period of the interim chief executive officer's appointment does not exceed 12 months.

(7)Nothing in this clause prevents a person appointed as an interim chief executive officer being employed by the relevant Class A cemetery trust in accordance with section 18L as a chief executive officer after his or her interim appointment expires.

13Transfer of staff

(1)A person who, immediately before the appointed day, was an employee of the old Mildura Cemetery Trust is to be taken as—

(a)having been employed by The Mildura Cemetery Trust with effect from that day; and

(b)having been employed by The Mildura Cemetery Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the old Mildura Cemetery Trust; and

(c)having accrued an entitlement to benefits in connection with that employment by The Mildura Cemetery Trust that is equivalent to the entitlement that the person had accrued as an employee of the old Mildura Cemetery Trust immediately before that day.

(2)A person who, immediately before the appointed day, was an employee of a former north west and eastern cemetery trust is to be taken as—

(a)having been employed by The Greater Metropolitan Cemeteries Trust with effect from that day; and

(b)having been employed by The Greater Metropolitan Cemeteries Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the relevant former north west and eastern cemetery trust; and

(c)having accrued an entitlement to benefits in connection with that employment by The Greater Metropolitan Cemeteries Trust that is equivalent to the entitlement that the person had accrued as an employee of the relevant former north west and eastern cemetery trust immediately before that day.

(3)A person who, immediately before the appointed day, was an employee of a former southern cemetery trust is to be taken as—

(a)having been employed by The Southern Metropolitan Cemeteries Trust with effect from that day; and

(b)having been employed by The Southern Metropolitan Cemeteries Trust on the same terms and conditions as those that applied to the person immediately before that day as an employee of the relevant former southern cemetery trust; and

(c)having accrued an entitlement to benefits in connection with that employment by The Southern Metropolitan Cemeteries Trust that is equivalent to the entitlement that the person had accrued as an employee of the relevant former southern cemetery trust immediately before that day.

(4)The service of an employee transferred under this clause as an employee—

(a)of The Mildura Cemetery Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the old Mildura Cemetery Trust;

(b)of The Greater Metropolitan Cemeteries Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the relevant former north west and eastern cemetery trust;

(c)of The Southern Metropolitan Cemeteries Trust is to be taken for all purposes as having been continuous with the service of the employee, immediately before the appointed day, as an employee of the relevant former southern cemetery trust.

(5)The superannuation entitlements of an employee transferred under this clause are to be taken not to be affected by the transfer of the person under this clause.

(6)An employee transferred under this clause is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the old Mildura Cemetery Trust, the relevant former southern cemetery trust or the relevant former north west and eastern cemetery trust, as the case requires, because of this clause.

(7)A certificate purporting to be signed by the chief executive officer of The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust, as the case requires, certifying that a person named in the certificate was, with effect from the relevant appointed day, employed by virtue of this clause by The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust (as the case requires)—

(a)is admissible in evidence in any proceedings; and

(b)is conclusive proof of the matters stated in it.

(8)This clause does not apply to the chief executive officer (by whatever title called) of—

(a)the old Mildura Cemetery Trust;

(b)a former north west and eastern cemetery trust;

(c)a former southern cemetery trust.

(9)This clause does not apply to a listed employee.

14Future terms and conditions of staff

Nothing in clause 13 prevents—

(a)any of the terms and conditions of employment of a person referred to in that clause from being altered by or under any law, award or agreement with effect from any time after the relevant appointed day; or

(b)a person referred to in that clause from resigning or being dismissed at any time after the relevant appointed day in accordance with the then existing terms and conditions of his or her employment by The Mildura Cemetery Trust, The Greater Metropolitan Cemeteries Trust or The Southern Metropolitan Cemeteries Trust, as the case requires.

15Listed employees

(1)Before the relevant staff transfer date, the Secretary may prepare a list of employees of Brimbank City Council, Darebin City Council, Mildura Rural City Council or Wyndham City Council who are eligible to become employees of a new Class A cemetery trust established by this Schedule on that date.

(2)A person is eligible to be a listed employee if that person—

(a)is employed by a municipal council referred to in subclause (1) primarily for the purposes of a cemetery trust or any public cemetery for which it is responsible; and

(b)agrees to be transferred in accordance with this Schedule.

(3)The list may specify the listed employees—

(a)by name or position; or

(b)by class or category; or

(c)by reference to a municipal council, a cemetery trust, public cemetery or other place; or

(d)by any combination of paragraphs (a) to (c).

(4)The list must specify the new Class A cemetery trust established by this Schedule which, on the staff transfer date, is to become the employer of each listed employee specified on the list.

(5)Nothing in this clause prevents a person specified as a listed employee under this clause from resigning or being dismissed at any time before the relevant staff transfer date in accordance with the terms and conditions of his or her employment.

16Staff transfer date

(1)The Secretary, by notice published in the Government Gazette, may determine a date that is to be the staff transfer date for the purposes of transferring a listed employee or listed employees.

(2)A staff transfer date must not be a date earlier than the appointed day in relation to the relevant Class A cemetery trust established by this Schedule.

(3)The Secretary may give more than one notice under this clause.

17Transfer of listed employees

(1)A person who was a listed employee immediately before the relevant staff transfer date is to be taken as—

(a)having been employed by the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee with effect from the staff transfer date; and

(b)having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant staff transfer date, as an employee of the relevant municipal council; and

(c)having accrued an entitlement to benefits in connection with that employment with the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee that is equivalent to the entitlement that the person had accrued as an employee of the relevant municipal council immediately before the relevant staff transfer date.

(2)The service of a listed employee transferred under this clause as an employee of the Class A cemetery trust established by this Schedule and specified in the list in respect of that listed employee is to be regarded for all purposes as having been continuous with the service of the transferred listed employee, immediately before the relevant staff transfer date, as an employee of the relevant municipal council.

(3)A listed employee transferred under this clause is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of a municipal council because of this Schedule.

(4)The superannuation entitlements of an employee transferred under this clause are to be taken not to be affected by the transfer of the person under this clause.

(5)A certificate purporting to be signed by the chief executive officer of the Class A cemetery trust established by this Schedule and specified in the list in respect of a listed employee certifying that a person named in the certificate was, with effect from the relevant staff transfer date, employed by virtue of this clause by the Class A cemetery trust named in the certificate—

(a)is admissible in evidence in any proceedings; and

(b)is conclusive proof of the matters stated in it.

18Future terms and conditions of transferred listed employees

Nothing in clause 17 prevents—

(a)any of the terms and conditions of employment of a listed employee transferred under that clause from being altered by or under any law, award or agreement with effect from any time after the relevant staff transfer date; or

(b)a listed employee transferred under that clause from resigning, or the termination of that employee's employment, at any time after the relevant staff transfer date in accordance with the then existing terms and conditions of his or her employment by the Class A cemetery trust to which that listed employee was transferred.

19Cemetery trust fees

(1)Any cemetery trust fees fixed by the old Mildura Cemetery Trust, a former north west and eastern cemetery trust or a former southern cemetery trust and in force immediately before the relevant appointed day, on and from the relevant appointed day, are taken to be cemetery trust fees fixed by—

(a)The Mildura Cemetery Trust, in the case of cemetery trust fees fixed by the old Mildura Cemetery Trust;

(b)The Greater Metropolitan Cemeteries Trust, in the case of cemetery trust fees fixed by a former north west and eastern cemetery trust;

(c)The Southern Metropolitan Cemeteries Trust, in the case of cemetery trust fees fixed by a former southern cemetery trust.

(2)Cemetery trust fees to which this clause applies must be reviewed by the relevant Class A cemetery trust established by this Schedule within 2 years of the relevant appointed day for each Class A cemetery trust.

20Construction of references

On and from the relevant appointed day, in any Act (other than this Act), or in any subordinate instrument made under any Act or in any other document of any kind, unless the context otherwise requires—

(a)a reference to The Cheltenham and Regional Cemeteries Trust is to be construed as a reference to The Southern Metropolitan Cemeteries Trust;

(b)a reference to The Trustees of the Necropolis, Spring Vale is to be construed as a reference to The Southern Metropolitan Cemeteries Trust;

(c)a reference to The Anderson's Creek Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(d)a reference to The Keilor Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(e)a reference to The Lilydale Cemeteries Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(f)a reference to The Preston Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(g)a reference to The Templestowe Cemetery Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(h)a reference to The Trustees of the Altona Memorial Park is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(i)a reference to The Trustees of the Fawkner Crematorium and Memorial Park is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(j)a reference to Wyndham Cemeteries Trust is to be construed as a reference to The Greater Metropolitan Cemeteries Trust;

(k)a reference to the Mildura Cemetery Trust is to be construed as a reference to The Mildura Cemetery Trust established by this Schedule.

Part 3—General

21Amendment of Register

The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument, must make any amendments in the Register that are necessary because of the operation of this Schedule.

22Taxes

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Schedule or in respect of any act or transaction connected with or necessary to be done by reason of this Schedule, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of a cemetery trust.

23Validity of things done under this Schedule

Nothing effected or to be effected by this Schedule or done or suffered under this Schedule—

(a)is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b)is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c)is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d)is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or

(e)is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or

(f)is to be regarded as frustrating any contract; or

(g)releases any surety or other obligee or obligor wholly or in part from any obligation.

═══════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 28 August 2003

Legislative Council: 14 October 2003

The long title for the Bill for this Act was "to provide for the management and operation of cemeteries and crematoria, to repeal the Cemeteries Act 1958, to amend the Crimes Act 1958 and to consequentially amend other Acts and for other purposes."

The Cemeteries and Crematoria Act 2003 was assented to on 11 November 2003 and came into operation on 1 July 2005: section 2.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Cemeteries and Crematoria Act 2003 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Public Administration Act 2004, No. 108/2004 (as amended by No. 20/2005)

Assent Date:	21.12.04
Commencement Date:	S. 117(1)(Sch. 3 item 27) on 5.4.05: Government Gazette 31.3.05 p. 602
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Health Legislation (Miscellaneous Amendments) Act 2005, No. 42/2005

Assent Date:	2.8.05
Commencement Date:	Ss 3–7 on 3.8.05: s. 2
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Health Professions Registration Act 2005, No. 97/2005

Assent Date:	7.12.05
Commencement Date:	S. 182(Sch. 4 item 7) on 1.7.07: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006

Assent Date:	10.10.06
Commencement Date:	S. 26(Sch. item 9) on 11.10.06: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Statute Law Revision Act 2007, No. 28/2007

Assent Date:	26.6.07
Commencement Date:	S. 3(Sch. item 4) on 27.6.07: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Public Health and Wellbeing Act 2008, No. 46/2008

Assent Date:	2.9.08
Commencement Date:	S. 249 on 1.1.09: Special Gazette (No. 365) 12.12.08 p. 1
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Coroners Act 2008, No. 77/2008

Assent Date:	11.12.08
Commencement Date:	S. 129(Sch. 2 item 4) on 1.11.09: s. 2
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Cemeteries and Crematoria Amendment Act 2009, No. 61/2009

Assent Date:	27.10.09
Commencement Date:	Ss 3–5, 8–23, 26–43 on 1.1.10: Government Gazette 17.12.09 p. 3338; ss 7, 25 on 1.2.10: Government Gazette 28.1.10 p. 146; ss 6, 24 on 1.3.10: Government Gazette 18.2.10 p. 288
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date:	24.11.09
Commencement Date:	S. 97(Sch. item 17) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010

Assent Date:	30.3.10
Commencement Date:	S. 51(Sch. item 9) on 1.7.10: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Health and Human Services Legislation Amendment Act 2010, No. 29/2010

Assent Date:	8.6.10
Commencement Date:	S. 50 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 14) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Treasury Legislation and Other Acts Amendment Act 2014, No. 44/2014

Assent Date:	27.06.14
Commencement Date:	S. 33(Sch. item 6) on 30.6.14: s. 2(5)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Filming Approval Act 2014, No. 51/2014

Assent Date:	12.8.14
Commencement Date:	S. 9(Sch. 2 item 1) on 1.3.15: s. 2(2)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Cemeteries and Crematoria Amendment (Veterans Reform) Act 2015, No. 4/2015

Assent Date:	25.3.15
Commencement Date:	Ss 4–8 on 9.11.15: Special Gazette (No. 303) 13.10.15 p. 1
CurrentState:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Aboriginal Heritage Amendment Act 2016, No. 11/2016

Assent Date:	5.4.16
Commencement Date:	Ss 136, 137 on 1.8.16: s. 2(2)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Heritage Act 2017, No. 7/2017

Assent Date:	15.3.17
Commencement Date:	S. 298 on 1.11.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 18) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Local Government Act 2020, No. 9/2020

Assent Date:	24.3.20
Commencement Date:	S. 390(Sch. 1 items 13.1−13.3) on 6.4.20; s. 390(Sch. 1 item 13.4) on 1.5.20: Special Gazette (No. 150) 24.3.20 p. 1; s. 390(Sch. 1 items 13.5, 13.6) on 1.7.21: s. 2(4)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Cemeteries and Crematoria Amendment Act 2021, No. 16/2021

Assent Date:	18.5.21
Commencement Date:	Ss 4–6 on 15.11.21: Special Gazette (No. 460) 24.8.21 p. 1; ss 7–16 on 1.3.22: s. 2(2)
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

Statute Law Revision Act 2025, No. 41/2025

Assent Date:	21.10.25
Commencement Date:	S. 3(Sch. 1 item 8) on 22.10.25: s. 2
Current State:	This information relates only to the provision/s amending the Cemeteries and Crematoria Act 2003

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3   Explanatory details

No entries at date of publication.