Cemeteries and Crematoria Amendment Act 2021 (Vic)
Cemeteries and Crematoria Amendment Act 2021
No. 16 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Amendments relating to persons affected by indictable offences and other actions
4Definitions
5New Division 2A of Part 6 inserted
6Regulations
Part 3—Other amendments
7General powers of cemetery trusts
8Power to delegate
9How long does a right of interment last?
10Exercising a right of interment
11Surrender to cemetery trust of unexercised right of interment
12Surrender to cemetery trust of exercised right of interment
13Surrender to cemetery trust of right of interment—more than one holder
14Cemetery trust may repair or maintain from other funds
15Application for interment authorisation
16Magistrates' Court may make order
Part 4—Repeal of this Act
17Repeal of this Act
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Endnotes
1 General information
Cemeteries and Crematoria Amendment Act 2021
No. 16 of 2021
[Assented to 18 May 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
(1)The main purpose of this Act is to amend the Cemeteries and Crematoria Act 2003—
(a)to protect affected persons against further significant harm, pain or suffering that may be caused as a result of the exercise of a right of interment—
(i)by or in favour of a person who has committed an indictable offence; or
(ii)in favour of a deceased person who has been found by a coroner to be responsible for another person's death; and
(b)to confer power on the Secretary to the Department of Health to vary or force the surrender of a right of interment where an affected person would be caused further significant harm, pain or suffering as a result of the exercise of that right of interment.
(2)The other purpose of this Act is to make miscellaneous amendments to the Cemeteries and Crematoria Act 2003—
(a)to clarify how rights of interment held by more than one person can be exercised jointly and severally; and
(b)to provide for refunds in the case of rights of interment held by more than one person that are voluntarily surrendered in certain circumstances; and
(c)to clarify the tenure for cremated human remains; and
(d)to make other minor amendments to that Act.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 March 2022, it comes into operation on that day.
3Principal Act
In this Act, the Cemeteries and Crematoria Act 2003 is called the Principal Act.
Part 2—Amendments relating to persons affected by indictable offences and other actions
4Definitions
In section 3(1) of the Principal Act, insert the following definitions—
"affected person has the meaning given by section 84A(1);
indictable offence has the meaning given by section 84A(1);
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);
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);".
5New Division 2A of Part 6 inserted
After section 84 of the Principal Act insert—
"Division 2A—Variation or forced surrender of right of interment in certain circumstances
84AInterpretation
(1)In this Division—
affected person means a person who is directly and adversely affected by—
(a)an indictable offence committed by a relevant offender; or
(b)the death of a person, if there is a responsible person in relation to the death;
indictable offence means an indictable offence against a law of the Commonwealth, a State or a Territory;
previous holder, of a right of interment that is forced to be surrendered under section 84C(2), (3) or (5), means the person whose right of interment is surrendered;
relevant offender means a person convicted on or after 1 July 2005 of an indictable offence (whenever committed), if—
(a)the appeal period for the conviction has expired; or
(b)an appeal lodged during the appeal period for the conviction has been finally determined;
(2)For the purposes of this Act, a person is a responsible person in relation to another person's death if—
(a)on or after 1 July 2005, the person has been found by a coroner, under the Coroners Act 2008 or under a corresponding law of a State or a Territory, to have been responsible (however described) for the death; and
(b)the person was themselves deceased at the time of the finding of the coroner.
84B Application for variation or forced surrender of right of interment
(1)Subject to this Division, an affected person, or a person acting on behalf of an affected person, may apply to the Secretary for—
(a)the variation of a right of interment held by another person; or
(b)the forced surrender of a right of interment held by another person to the cemetery trust that granted it.
(2)An application under subsection (1) must relate to a right of interment held by a person that was granted to the person, or transferred to the person, on or after 1 July 2005.
(3)If more than one person holds a right of interment, an application under subsection (1) may relate to the right of interment held by any one or more of those persons.
(4)An application under subsection (1) need not specify a preference as between the variation of the right of interment to which the application relates and its forced surrender.
(5)If an application under subsection (1) specifies a preference as between the variation of the right of interment to which the application relates and its forced surrender—
(a)the application may also specify that if the Secretary proposes not to decide the application in accordance with that preference, the applicant consents to the Secretary deciding the application as if it had not indicated a preference; or
(b)if the application does not so specify, the person who made the application may change that preference by written notice given to the Secretary before the application is decided.
84C Variation or forced surrender of right of interment where indictable offence or coronial finding of responsibility
(1)This section applies if an application has been made under section 84B(1) for—
(a)the variation of a right of interment held by another person; or
(b)the forced surrender of a right of interment held by another person to the cemetery trust that granted it.
(2)The Secretary may decide to vary the holder's right of interment, or force the surrender of the holder's right of interment to the cemetery trust that granted it, if—
(a)the holder is a relevant offender or a relative or associate of a relevant offender (whether the relevant offender is alive or deceased); and
(b)the Secretary is satisfied, having regard to the matters specified in sections 84D(2) and (4), that—
(i)due to the commission of the indictable offence of which the relevant offender has been convicted, the exercise of the right of interment by the holder would cause significant harm, pain or suffering to an affected person; and
(ii)it is appropriate to vary or force the surrender of the holder's right of interment.
(3)The Secretary may decide to vary the holder's right of interment, or force the surrender of the holder's right of interment to the cemetery trust that granted it, if—
(a)the holder is a relative or associate of a responsible person in relation to another person's death; and
(b)the Secretary is satisfied, having regard to the matters specified in 84D(3) and (4), that—
(i)due to the responsible person's role in the other person's death, the exercise of the right of interment by the holder would cause significant harm, pain or suffering to an affected person; and
(ii)the Secretary is satisfied it is appropriate to vary or force the surrender of the holder's right of interment.
Note
Section 84 deals with the effect of the decision if the person is not the sole holder.
(4)The Secretary may decide to force the surrender of a right of interment under subsection (2) or (3) only if the Secretary is satisfied that it would not be possible to vary the right of interment in a way that would adequately prevent that further significant harm, pain or suffering to an affected person.
(5)The Secretary may decide to force the surrender of a right of interment under this subsection, without being satisfied as mentioned in subsection (2)(b) or (3)(b), if—
(a)the Secretary previously varied the right of interment under subsection (2) or (3); and
(b)after giving the holder of the right of interment a reasonable opportunity to comment, the Secretary is satisfied that the holder of the right of interment has failed to comply with the right of interment as varied, including by contravening a condition.
84DMatters to which Secretary must have regard
(1)This section specifies the matters to which the Secretary must have regard for the purposes of being satisfied as mentioned in sections 84C(2)(b) or (3)(b), as the case requires.
(2)If the holder of the right of interment concerned is a relevant offender, or a relative or associate of a relevant offender, the Secretary must have regard to the following matters—
(a)the nature, level and seriousness of the indictable offence of which the relevant offender was convicted;
(b)the opinion of any affected person of whom the Secretary is aware;
(c)the opinion of the relevant offender and, if the holder of the right of interment is a relative or associate of the relevant offender, the opinion of the relative or associate;
(d)the detriment that may be caused to the relevant offender and, if the holder of the right of interment is a relative or associate of the relevant offender, to the relative or associate, including any mitigating circumstances;
(e)the matters set out in subsection (4).
(3)If the holder of the right of interment concerned is a relative or associate of a responsible person in relation to the death of another person, the Secretary must have regard to the following—
(a)the coroner's findings as to the circumstances of the death of the other person and the nature of the responsible person's responsibility for the death of the other person;
(b)the opinion of any affected person of whom the Secretary is aware;
(c)the opinion of the relative or associate;
(d)the detriment that may be caused to the relative or associate, including any mitigating circumstances;
(e)the matters set out in subsection (4).
(4)In all cases the Secretary must have regard to the following—
(a)the proximity of plots;
(b)whether or not human remains have already been interred;
(c)the availability of alternative arrangements for the relevant offender, responsible person or relative or associate of the relevant offender or responsible person, as the case requires;
(d)prescribed matters, if any;
(e)any other matters that the Secretary considers are relevant.
84EVariation may involve imposition of conditions on right of interment
(1)Without limiting the way in which a right of interment may be varied under section 84C(2) or (3), the Secretary may impose conditions on the right of interment for or with respect to the following—
(a)the interment of human remains at the place of interment to which the right of interment applies;
(b)the establishment or alteration of a memorial at the place of interment;
(c)the removal of cremated human remains or body parts from the place of interment;
(d)the transfer of the right of interment to another person;
(e)the providing or withholding of consent to the exhumation of interred bodily remains.
(2)A variation of a right of interment, whether by the imposition of a condition or otherwise, may expressly or impliedly override a provision of this Act or the regulations.
84FDate of effect and notification of decision
(1)A decision by the Secretary to vary or force the surrender of a right of interment under section 84C(2), (3) or (5)—
(a)takes effect on the date specified in the decision; and
(b)has effect despite anything to the contrary in this Act or the regulations.
(2)The Secretary must notify the following persons of a decision to vary or force the surrender of a right of interment under section 84C(2), (3) or (5)—
(a)the applicant for the variation or forced surrender;
(b)in the case of a forced surrender, the previous holder of the right of interment;
(c)if the right of interment is held by more than one person, the other persons who remain holders of the right of interment;
(d)the cemetery trust responsible for the place of interment to which the right of interment applies.
84GCompliance with varied right of interment
The holder of a right of interment that has been varied under section 84C(2) or (3), including by the imposition of conditions—
(a)must exercise the right of interment as varied; and
(b)must not contravene (whether by act or omission) any condition of the right of interment as varied.
Note
A failure to exercise the right of interment as varied, including because of a contravention with any conditions imposed, may result in the forced surrender of the right of interment: see section 84C(5).
84HEffect of forced surrender of right of interment if there are human remains interred
(1)This section applies if—
(a)the Secretary makes a decision under section 84C(2), (3) or (5) to force the surrender of a right of interment held by a person; and
(b)on the date of effect of the decision, there are human remains interred at the place of interment to which the right of interment applies.
(2)The previous holder of the right of interment has no further entitlements or responsibilities under that right of interment on and after the date of effect of the decision.
(3)On the date of effect of the decision, the cemetery trust responsible for the place of interment—
(a)becomes the sole holder of the right of interment if there are no persons who on that date hold a right of interment in relation to the place of interment; or
(b)becomes a holder of the right of interment jointly with any persons who on that date hold a right of interment in relation to the place of interment.
(4)A cemetery trust that becomes the holder of a right of interment under this section—
(a)may exercise the rights of a holder of a right of interment under this Act with or without the consent of any other holders of the right of interment; and
(b)is not required to perform the obligations of a holder of a right of interment under this Act, including but not limited to obligations under the following—
(i)section 104;
(ii)section 106;
(iii)a provision prescribed by the regulations.
84I Effect of forced surrender of right of interment if no human remains are interred
(1)This section applies if—
(a)the Secretary makes a decision under section 84C(2), (3) or (5) to force the surrender of a right of interment held by a person; and
(b)on the date of effect of the decision, there are no human remains interred at the place of interment to which the right of interment applies.
(2)The previous holder of the right of interment has no further entitlements or responsibilities under that right of interment on and after the date of effect of the decision.
(3)On the date of effect of the decision, the cemetery trust responsible for the place of interment—
(a)becomes the sole holder of the right of interment if there are no persons who on that date hold a right of interment in relation to the place of interment; or
(b)becomes a holder of the right of interment jointly with any persons who on that date hold a right of interment in relation to the place of interment.
(4)A cemetery trust that becomes the holder of a right of interment under this section—
(a)may exercise the rights of a holder of a right of interment under this Act with or without the consent of any other holders of the right of interment; and
(b)is not required to perform the obligations of a holder of a right of interment under this Act, including but not limited to obligations under the following—
(i)section 104;
(ii)section 106;
(iii)a provision prescribed by the regulations.
(5)A cemetery trust that becomes the sole holder of a right of interment under subsection (3)(a) must pay to the previous holder or previous holders of the right of interment a refund based on the current cemetery trust fee payable for the same type of right of interment less—
(a)the relevant cemetery trust fee for administration and any maintenance costs; and
(b)the restoration costs, if any.
(6)A cemetery trust that becomes the sole holder of a right of interment under subsection (3)(a) may—
(a)remove any memorial on the place of interment; and
(b)grant a right of interment under section 73 in respect of the place of interment—
(i)for interring human remains in a public grave; or
(ii)for interring human remains in that place of interment.
84JOperation of variation or forced surrender where holder not the sole holder
If the Secretary makes a decision to vary or force the surrender of a right of interment held by a person who is not the sole holder of the right of interment, the variation or forced surrender does not apply to the entitlements of the other holders of the right of interment, unless the Secretary decides to vary or force the surrender of the rights of the other holders.
84KForm of applications and notifications
If the regulations prescribe a form for the making of an application or the giving of a notification under this Division, the application or notification must be in the prescribed form.".
6Regulations
After section 180(1)(h) of the Principal Act insert—
"(ha)the keeping of records, the making of applications and the giving of notices for the purposes of Division 2A of Part 6;".
Part 3—Other amendments
7General powers of cemetery trusts
In section 13 of the Principal Act, for "A cemetery" substitute "Subject to this Act, a cemetery".
8Power to delegate
(1)In section 15(1) of the Principal Act, for "(1) Subject to subsection (2), a cemetery" substitute "A cemetery".
(2)Section 15(2) of the Principal Act is repealed.
9How long does a right of interment last?
After section 74(2) of the Principal Act insert—
"(3)When granting a right of interment to a person for a period of 25 years, a cemetery trust must offer a perpetual right of interment to the person.".
10Exercising a right of interment
For section 78(2) of the Principal Act, substitute—
"(2)Subject to subsection (3), a right of interment that is held by more than one person must be exercised jointly.
(3)If right of interment is held by more than one person, and one or more of the holders of the right of interment are unable to be found after diligent inquiries, the following rules apply—
(a)the holders of the right of interment who can be found after diligent inquiries may jointly exercise the right of interment;
(b)if only one holder of the right of interment can be found after diligent inquiries, that holder may exercise the right of interment.".
11Surrender to cemetery trust of unexercised right of interment
(1)In the heading to section 82 of the Principal Act omit "by sole holder".
(2)For section 82(1) of the Principal Act substitute—
"(1)An unexercised right of interment may be surrendered to the cemetery trust which granted it—
(a)by the sole holder of the unexercised right of interment; or
(b)if the unexercised right of interment is held by more than one person, by all of the holders of that right of interment acting jointly.".
(3)In section 82(2)(a) of the Principal Act, after "holder" insert "or holders".
(4)In section 82(2)(b) of the Principal Act, for "person surrendering the right of interment has" substitute "person or persons surrendering the right of interment have".
12Surrender to cemetery trust of exercised right of interment
(1)In the heading to section 83 of the Principal Act omit "by sole holder".
(2)For section 83(1) of the Principal Act substitute—
"(1)An exercised right of interment may be surrendered to the cemetery trust which granted it—
(a)by the sole holder of the exercised right of interment; or
(b)if the exercised right of interment is held by more than one person, by all of the holders of that right of interment acting jointly.".
(3)In section 83(2)(a) of the Principal Act, after "holder" insert "or holders".
(4)In section 83(2)(b) of the Principal Act, for "person surrendering the right of interment has" substitute "person or persons surrendering the right of interment have".
(5)In section 83(2A) of the Principal Act, after "person" insert "or persons".
13Surrender to cemetery trust of right of interment—more than one holder
At the end of section 84 of the Principal Act insert—
"Note
If a right of interment is held by more than one person and all holders cannot jointly agree to surrender an unexercised right of interment under section 82 or an exercised right of interment under section 83, a holder who is not the sole holder may surrender their entitlement in the right of interment under this section, but will not be entitled to a refund.".
14Cemetery trust may repair or maintain from other funds
After section 110(1) of the Principal Act insert—
"(1A)If, under section 84C, a cemetery trust becomes the sole holder of a right of interment, or becomes a holder of a right of interment other than as the sole holder and is unable to find any of the other holders after diligent inquiries, the cemetery trust may maintain, repair or restore the place of interment if the cemetery trust—
(a)obtains the consent of the Secretary to the maintenance, repair or restoration; and
(b)uses funds other than cemetery trust funds for the maintenance, repair or restoration.".
15Application for interment authorisation
After section 116(3)(c) of the Principal Act insert—
"(ca)if the deceased died in another State or Territory of the Commonwealth or overseas, a document corresponding to an order made by a coroner under section 47 of the Coroners Act 2008 releasing the body of the deceased to a specified person from the jurisdiction where the deceased died;".
16Magistrates' Court may make order
(1)In section 143(1)(b) of the Principal Act omit "or friends".
(2)In section 143(2)(b) of the Principal Act omit "and friends".
Part 4—Repeal of this Act
17Repeal of this Act
This Act is repealed on 1 March 2023.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 3 March 2021
Legislative Council: 18 March 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Cemeteries and Crematoria Act 2003 to protect affected persons against harm, pain and suffering that may be caused as a result of the exercise of rights of interment by or in favour of certain persons, to make various related amendments to that Act and for other purposes."
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