A Iview of Cemetery Legislation

Mortuary Industry and Cemeteries Administration Committee

AIVIEW OF CEMETERY LEGISLATION

Seventh Report to Parliament April1987

MORTUARY INDUSTRY AND CEMETERIES ADMINISTRATION

COMMITTEE

Seventh Report to Parliament

A Review of Cemetery Legislation

April1987

Ordered to be printed

No. 21 The M.I.C.A. Committee Public Hearing on A Review of Cemetery Legislation (From Left) Committee Members Tom Reynolds, David Cunningham, Carl Kirkwood, Jack Culpin, John Miles and representing the Cemeteries and Crematoria Association of Victoria - Ian MacGill, Tony O'Connor and Ian Keith. MORTUARY INDUSTRY AND CEMETERIES

ADMINISTRATION COMMITTEE

COMMITTEE MEMBERS

Mr. Carl Kirkwood, M.P. (Chairman)

Mr. Tom Reynolds, M.P. (Deputy Chairman)

Mr. Jack Culpin, M.P.

Mr. David Cunningham, M.P.

Mr. Bruce Evans, M.P.

The Hon. John Miles, M.L.C.

COMMITTEE STAFF

Mr. Mark Roberts, B.Bus., Secretary

Mrs. Helen Simmonds, B.Sc., Administrative Officer

Mrs. Laurel Keith, Stenographer.

(Hi) COMMITTEE MEMBERS

Mr. Carl Kirkwood, M.P. Mr. Tom Reynolds, M.P.

Mr. Jack Culpin, M.P. The Hon. John Miles, M.L.C.

Mr. Bruce Evans, M.P. Mr. David Cunningham, M.P. CHAIRMAN'S FOREWORD

This Report of the M.I.C.A. Comrryittee is the culmination of a long and extensive study and examination of the present Victorian Cemeteries Act 1958.

As part of the inquiry the Comn]littee released a detailed Discussion Paper in November, 1986 which dealt with all aspebts of the present Victorian and Interstate cemeteries legislation. The Committee's conJments and proposed amendment to the Victorian Act and a brief for a new Act encompassingi the M.I.C.A. Committee's proposed amendments were also included.

The Discussion Paper had an extremely wide circulation, being sent to all Victorian Cemetery Trusts (approximately 550), many Municipal Councils, the Health Department and other Government departments, interested organisations and individuals.

The Committee was very pleased with the response to the Discussion Paper and the many valuable comments that were received.

Following on from the submissions the Committee conducted Hearings on its Review of the Cemetery Legislation at which nine organisations were represented. As a result of the submissions and evidence many of the comments have been incorporated into this final report on a Review of the present Victorian Cemeteries Act 1958.

The Committee would like to thank alJ the respondents, organisations and individuals for their co-operation and thoughtful considered comments. Particular thanks should go to Dr. N. Sloan, Acting Chairman of The Necropolis, Mr Ron Curley, Health Department and Mr. John Downey, former Crown Solicitor for Victoria for their expert advice.

(v) The Committee would also like to thank Mr. Mark Roberts, the Committee Secretary and Mrs. Helen Simmonds, Research Assistant, for their valuable assistance with this Report and Mr. Peter Quail for his work on the Discussion Paper during his time with the Committee.

Thanks must also go to Mrs. Laurel Keith, the Committee Stenographer, Mrs Katrina Robertson and Mrs. Carmen Ganegama, Word Processor Operators, for their dedication in preparing the final copy.

Finally I wish to express my personal thanks to my fellow Committee Members, Mr Jack Culpin, Mr David Cunningham, Mr Tom Reynolds, Mr Bruce Evans and Mr John Miles who have been motivated by responsibility and an aptitude for common sense thereby making this Report to Parliament possible.

CARL KIRK WOOD, M.P. Chairman.

(vi) MORTUARY INDUSTRY AND CEMETERIES ADMINISTRATION COMMITTEE

TERMS OF REFERENCE

JOINT RESOLUTION OF LEGISLATIVE ASSEMBLY AND LEGISLATIVE COUNCIL 24 6:25 FEBRUARY 1987

1. That a Joint Select Committee be appointed to inquire into and report upon all aspects of the mortuary industry and related industries in Victoria, including both private and Government operations, together with any aspect of cemeteries administration, funding or provision of land encompassed by the Cemeteries Act 1958, the Trustee Act 1958, or any other provisions relating thereto.

2. That the Committee shall give priority to such investigations referred to it by resolution of the Legislative Council and the Legislative Assembly. 3. That the Committee be required to present its Final Report to the Parliament no later than 30 November 1988.

4. That the Committee consist of six members, comprising not more than two Members of the Legislative Council nor more than five Members of the Legislative Assembly.

5. That three members of the Committee constitute a quorum of the Committee.

6. That the Committee shall elect one of its members to be Chairman who, in the event of an equality of votes, shall also have a casting vote.

7. That the Committee may elect a Deputy Chairman who shall exercise all the powers and perform the duties of the Chairman at any time when the Chairman is not present at a meeting of the Committee.

8. That the Committee may sit and transact business during any adjournment or recess of the Houses in the period for which it holds office but the Committee shall not sit while either House of Parliament is actually sitting, except by leave of that House and at a place that is within the Parliament Buildings. 9. That the Committee may sit at such times and in such places in Victoria or elsewhere as seems most convenient for the proper and speedy despatch of business.

10. That the Committee may send for persons papers and records and report the minutes of evidence from time to time.

ll. That the Committee have power to authorize publication of any evidence given before it and any document presented to it.

12. That evidence taken before any previous Mortuary Industry and Cemeteries Administration Committee shall be considered by the Committee as if that evidence had been given before and for the information ana guidance of the Committee.

13. That the Committee be a Committee to which section 51A of the Parliamentary Committees Act 1968 applies.

14. That the foregoing provisions of this resolution, so far as they are inconsistent with the Standing Orders and practices of the Houses, shall have effect notwithstanding anything contained in the Standing Orders. (vii)

TABLE OF CONTENTS

Committee Members and Staff (iii)

Chairman's Foreword (v)

M.I.C.A. Committee's Terms of Reference (vii)

Summary of Recommendations (xi)

PART 1 Introduction and Progress Report

Chapter 1 - M.I.C.A. Committee Establishment & Investigations

Chapter 2 - The Current Inquiry 5

PART 2 Establishment and Closure of Cemeteries and Crematoria

Chapter 3 - Establishment and Closure 13

Chapter 4 - Pioneer Memorial Parks 21

Chapter 5 - Private Cemeteries 31

PART 3 Government Supervision

Chapter 6 - Government Supervision 35

PART 4 Trustees

Chapter 7 - Appointment and Removal of Trustees 41

Chapter 8 - Powers and Duties 53

PART 5 Cemetery and Crematoria Management

Chapter 9 - Financial Management 61 Chapter 10- Fees 77

Chapter 11 - Rules and Regulations 83

Chapter 12- Records and Plans 89

Chapter 13- Rights of Burial 97

(ix) TABLE OF CONTENTS (Contd.)

Chapter 14- Memorial Work Ill

Chapter 15- Religious Considerations 125

PART6 Disposal of the Dead

Chapter 16- Disposal 131

Chapter 17- Documentation 141

Chapter 18- Public Burial 157

Chapter 19- Construction of Coffins/Vaults 163

Chapter 20- Non-Coffin Burials 171

Chapter 21- Miscellaneous Matters 177

Appendix I List of Submissions 190

2 List of Witnesses 192

3 Extract of Proceedings 194

(x) SUMMARY OF RECOMMENDATIONS

The Committee recommends:

R.l That the approval of the relevant Minister be required for the establishment of both Cemeteries and Crematoria.

R.2 That the land purchase provisions of the Cemeteries Act 1958 be repealed and be replaced by a provision that enables the relevant Minister to purchase or compulsorily acquire land for burial/cremation purposes under the provisions of the Crown Land (Reserves) Act 1978.

R.3 That appropriate provisions be placed in the revised Cemeteries Act to allow suitable public advertising of and objections to any proposed cemetery or crematorium.

R.4 That public notice be given of an intention to apply to the relevant Department for the conversion of a cemetery to a Pioneer Memorial Park. Detailed plans showing the affected grave-sites and the conversion proposal should be on public exhibition during this period. This notice should be in a prominent position and of a size equitable with a standard housing sales billboard.

R.5 That members of the public be given the opportunity to object to the conversion of a cemetery to a Pioneer Memorial Park. Such objections are to be considered before any final decision is made.

R.6 That the necessity for listing cemeteries in the Fourth Schedule to the Cemeteries Act before they can apply to become Pioneer Memorial Parks be abolished.

(xi) R.7 That before the relevant Minister approves of a proposal to convert a cemetery to a Pioneer Memorial Park he or she considers the views on the matter of the Minister for Planning and Environment.

R.8 That with the express approval of the relevant Minister, burials be allowed in Pioneer Memorial Parks where valid rights of burial exist.

R.9 That before any monument is removed from a Pioneer Memorial Park it be photographed, details of all legible inscriptions thereon be recorded and a plan of the cemetery be prepared showing the original location of the monument. Copies of these records are to be placed with the Public Record Office.

R.lO Prior to the disposal of the removed monuments the holders of the Right of Burial must be given an opportunity to claim them.

R.ll That all private cemeteries comply with the sections of the Cemeteries Act dealing with documentation for burial, r-ecord-keeping and any other sections that the Minister feels appropriate.

R.l2 That the relevant Minister have the power to direct any cemetery trust in relation to its powers and duties under the Act.

R.l3 That the Minister may delegate the exercise or performance of duties imposed on him by the legislation.

R.14 That municipal councils be represented on all cemetery trusts not directly administered by such councils, by a Councillor, senior council officer, or other person nominated by the council, unless the relevant Minister declares otherwise.

(xii) R.l5 That the relevant Minister may direct a municipal council to act as trustee of a cemetery within its municipality.

R.l6 That the local government representative on cemetery trusts not directly administered by local government only remain a trustee of the cemetery for as long as the Council feels appropriate.

R.17 That the relevant Department assess the qualifications and/or experience of proposed trustees before recommending their appointment to the Trust.

R.18 That all cemetery trusts not directly administered by municipal councils have a minimum of three and a maximum of seven trustees.

R.l9 That the appointment of trustees to cemeteries not directly administered by councils be subject to review by the appropriate Minister every four years.

R.20 That the office of a trust member shaH become vacant if that person:

(i) becomes an undischarged bankrupt~ or a person whose property is subject to an order or arrangement under the Jaws relating to bankruptcy;

(ii) dies or becomes permanently incapable of performing his or her duties as a member;

(iii) resigns his or her office in writing to the trust who shall notify the relevant Department; or

(iv) absents himself or herself, except on leave duly granted by the trust, for the duration of three consecutive meetings of the trust.

(xili) R.21 That a person of or over the age of 72 years is not eligible to be appointed or re-appointed as a member of a trust except where the relevant Minister declares otherwise.

R.22 The trustees shall appoint one of their members to be the Chairman of trustees unless the relevant Minister directs otherwise. Other office bearers may also be appointed.

R.23 That the relevant Minister have the power to appoint a fit and proper person as Administrator of any cemetery.

R.24 That no person with a conflict of interest with the operation of a cemetery shall be appointed as a trustee of that cemetery.

R.25 That no person with a conflict of interest with the operation of a cemetery shall be appointed as a Secretary of that Cemetery Trust unless it is with the Minister's approval.

R.26 That trustees shall conduct meetings as necessary provided that at least two meetings are held each year, at approximately six monthly intervals.

R.27 That the trust of all public cemeteries be appointed as bodies corporate with perpetual succession under the name of the "Trustees of the ••••••••••.••••..•.•••• Public Cemetery".

R.28 That with the prior approval in writing of the relevant Department any cemetery trust may lease any unused portion of the land under its control.

(xlv) R.29 That cemetery trusts have the power to expend trust funds on the maintenance of historicaUy significant graves.

R.30 That the relevant Department ensures that aU cemetery trusts possess a copy of the Cemeteries Act and are kept informed of any amendments to such legislation.

R.31 That aU cemetery accounts be audited by a suitably qualified person independent of the trust.

R.32 That the relevant Department have the power to nominate the minimum qualifications of the person conducting the audit at any particular cemetery.

R.33 That the relevant Minister have the power to request the Auditor-General to conduct an audit of the accounts of a cemetery where he believes it appropriate.

R.34 That aH cemetery trusts which have conducted financial transactions during the preceding 12 months submit a copy of the audited abstract of accounts to the relevant Department by a specified date each year. Such accounts must be verified by at least two trustees and the secretary or manager. Furthermore any trusts with no financial transactions during the preceding year be exempted from this requirement.

R.35 That the financial year for aJl cemeteries be from the 1st October to the 30th September.

R.36 That aH cemetery trusts submit annuaHy to the relevant Department the foUowing information with the audited abstract of accounts:

a statement of the condition of the cemetery; a costed proposed works program for. the ensuing three years; and a statement of the availability of burial space at the cemetery.

(xv) R.37 That cemetery trusts seek tenders and enter into contracts for the supply of any goods, machinery, equipment, materials or services in accordance with the appropriate Local Government Regulations.

R.38 That the provisions of the Cemeteries Act 1958 that allow the Governor-in- Council to order specified cemeteries to purchase "Government Stock" be repealed.

R.39 That the relevant Minister have the power to appropriate the funds of cemetery trusts. Any money so appropriated must be paid into a "Cemetery Fund" administered by the relevant Department. Money held in the fund be expended only on the exercise of the Minister's and his or her Department's duties under the Cemeteries Act.

R.40 That the relevant Minister have the power to approve cemetery fees.

R.41 That all cemetery trusts at least amua11y:

review their scale of fees; and

submit to the relevant Department a summary of this review and any proposed amendments to the trust's scale of fees.

R.42 That the relevant Minister have the power to direct any cemetery trust to charge a specified scale of fees.

R.43 That cemetery trusts have on display a copy of their scale of fees at their office or if no office available for inspection at the chambers of the local municipal council and at the relevant Department.

(xvi) R.44 That the relevant Minister have the power to approve the rules and regulations of cemeteries.

R.45 That cemetery trusts have on display a copy of their rules and regulations at their office or if no office available for inspection at the chambers of the local municipal council.

R.46 That the relevant Department formulate a set of uniform rules and regulations for use by cemeteries not wishing their own specific rules and regulations.

R.47 That cemetery trusts review their rules and regulations at least every five years and that a summary of the review be forwarded to the controlling Department, together with any proposed amendments.

R.48 That the relevant Minister have the power to direct any cemetery trust to adopt any rules and regulations he may feel appropriate.

R.49 That all cemetery trusts maintain permanent records of the following information:

all burials and cremations conducted;

an accurate plan of the cemetery cross-referenced to the burial records showing the location of all grave sites, burials and cremated remains;

all rights of burial and cremation issued by the trustees and any assignments of such rights;

the details of disposal of all cremated remains; and

all exhumations conducted at the cemetery and the details of disposal.

(xvii) R.50 That duplicate copies of all the records listed in the preceding section be located at the council offices and be updated at least annually.

R.51 The archival records of closed cemeteries or cemeteries that have been converted to Pioneer Memorial Parks should be transferred as soon as practicable after the closure or conversion to the Public Record Office, or a place of deposit appointed under the Public Records Act 1973, in accordance with Standards issued under section 12 of the Public Records Act 1973.

R.52 That the public have ready access to the burial-cremation records, etc., of the trust in accordance with the provisions of the Public Records Act 1973.

R.53 That the relevant Department maintain a register listing the status and location of all Victorian public and private cemeteries and non-cemetery burial grounds.

R •.54 That an exclusive right of burial be considered the personal estate of the grantee.

R.55 That a "right of burial" be defined as:

"a contract for the use of a piece of land for burial of a human corpse, interment of cremated remains and/or construction of a monument made between the trustees of a cemetery and the holder of the right of burial".

R.56 That "exercising" a right of burial be defined as:

''burying an uncremated human corpse within a grave or vault, interment of cremated remains within a grave or vault or erecting a monument on a grave or vault."

(xv iil) R.57 That the trustees have the power to grant rights of burial.

R.58 That any rights of burial purchased under the revised Act be subject to the condition that if they are not exercised within 25 years they shall be cancelled. Payment of the relevant fees would however allow the purchase of a further right of burial in respect of the same grave-site. (Unexercised rights of burial purchased under the provisions of previous legislation could only be cancelled subject to the provisions of such legislation).

R.59 That rights of burial may be assigned in writing by the holders of such rights, with the consent of the trustees.

R.60 That all such assignments shaH be entered into a register by the trustees and until such registration, such assignments shall have no effect.

R.61 That an unexercised right of burial may be surrendered to the trust and that the holder of such right is entitled to a refund, which will vary depending on whether the right of burial was purchased before or after the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974.

For those rights purchased before the introduction of the Act the refund will be the current approved fee less a cancellation fee calculated by the controlling Department. For rights purchased after the introduction of the Act the refund will be a proportion of the current approved fee, based on the length of tenure remaining, less a cancellation fee calculated by the controlling Department.

R.62 That there be no trafficking in rights of burial and multiple purchases of rights of burial only be allowed with the approval of the trustees.

(xix) R.63 That trustees may enter into contracts with the holders of rights of burial to maintain for a specified period, monuments and grave-sites in proper condition at the expense of the holders of the rights of burial. Such contracts shaH not exceed five years at any one time.

R.64 That the trustees formulate minimum standards for the construction of monuments. These standards should be submitted for approval, as part of the rules and regulations of the cemetery, to the relevant Minister.

R.65 That an applicant for memorial work shall submit a full plan of the monument to the trustees who may accept or reject it depending on its compliance with the trust's approved minimum standards.

R.66 That trustees have the power to remove unauthorised monumental work. Such removal shall not be effected within one month of trustees notifying the holder of the right of burial in writing that the work:

must be modified as stipulated in the letter; or removed.

In cases where the trust's directions are not complied with the trust's costs in removing the monument shall be recoverable from the holder of the right of burial.

R.67 That the holders of rights of burial in grave-sites upon which the trustees believe there to be "unsafe or unkempt" monuments be given a period of one month after notification within which to make the necessary repairs. (If the repairs are not made the monument may be repaired or with the approval of the relevant Department removed).

R.68 That all cremation memorials except Book of Remembrance be sold on a limited tenure basis with a maximum period of 25 years with the option of further renewals upon payment of the appropriate fee.

(xx) R.69 That the length of tenure of any particular cremation memorial be submitted to the relevant Minister for approval.

R.70 That cemetery trusts have the power, at their discretion, to expend funds on the preservation of historicalJy significant monuments.

R.7l That trustees shall not by any rule or regulation interfere directly or indirectly with the performance of any religious ceremony in the disposal of the dead subject to the requirements of public health and decency and the proper management of the cemetery.

R.72 That the trustees have the power to exempt certain religious groups from the requirements of the rules and regulations of the cemetery to facilitate the performance of religious ceremonies that do not contravene the requirements of public health and decency and the proper management of the cemetery.

R.73 That the trustees have the power, with the written approval of the relevant Department, to amend the internal divisions of the cemetery amongst separate denominational groups.

R.74 That there be a responsibility on the executor of the will of the deceased or the next of kin of the deceased to dispose of the body by burial, cremation or dispatch out of Victoria within 5 working days of the death of the deceased. This responsibility only applies where such person is aware of the death and capable of arranging for disposal.

R.75 That burial at sea not be a permitted form of disposal of the dead.

R.76 That burials on private property not be allowed.

(xxi) R.77 That the relevant Minister have the power to order the reburial or cremation of any body buried in private property. The person who caused the interment will be liable for all costs as well as a severe penalty.

R.78 That the revised Cemeteries Act contains provisions that define cremated remains, clarify their method of disposal and status and ensure that the total volume of cremated remains recovered is made available for collection after cremation.

R.79 That the trustees of a public cemetery shall not refuse to dispose of a body subject to the payment of . approved fees and in conformity with the revised Cemeteries Act.

R.80 That no officer of a cemetery trust shall give permission for the burial or cremation of any human corpse until he has received a notice in the form prescribed pursuant to Section 19 of the Registration of Births, Deaths and Marriages Act 19 59 signed by a legally qualified medical practitioner in accordance with the Act, such notice to be amended to state:-

"I certify that there is no circumstances surrounding the death of the deceased that requires investigating by a Coroner before the body is buried or cremated."

(or a Victorian Coroner's Order for Burial or Cremation).

R.81 That the Fourth and Fifth Schedules of the Births, Deaths and Marriages Regulations 1971 be amended to become accountable items (i.e. be serially numbered).

R.82 That the Fifth Schedule of the Births, Deaths and Marriages Regulations 1971 be amended to ensure that medical practitioners both sign and print their names on the form.

(xxii) R.83 That no cemetery trust officer give permission for the burial or cremation of any human corpse until he has received the amended death certificate as set out in Section 17 .3.1 or a Victorian Coroner's Order for Burial or Cremation or the following information:

written evidence of the identity of the deceased (including name, sex and date of birth);

a written statement from the executor of the deceased's estate or next of kin authorising the burial or cremation; and

in the case of burial or placement of cremated remains, proof, to the satisfaction of the trustees, that the holder of the right of burial in the grave-site concerned has consented or would not object to such burial or placement taking place therein. (This information should be in the form of a statutory declaration.)

R.84 That the relevant Department, in conjunction with the Cemeteries and Crematoria Association of Victoria, make available a uniform "application for burial or cremation" form, for use by those cemetery trusts not wishing their own particular form.

R.8.5 Th<~t bodies originating outside Victoria may only be buried or cremated on the authority of a Coroner's Order for burial or cremation.

R.86 That the provisions of the Health Act 19.58 be amended to allow the Minister for Health to order the immediate cremation of a corpse in cases where public health is likely to be endangered.

R.87 That pre-viable human tissue may be buried or cremated in a cemetery or crematorium upon production of a certificate issued by the medical practitioner who attended at the birth, including details of the period of gestation (weeks), name of mother and surname of child.

(xxiii) R.88 That the trustees of any public cemetery shaH permit any person so deemed on the order of a Justice of the Peace to be a poor person, to be buried in a section of the cemetery reserved for such burials or cremated, free of any charge whatsoever.

R.89 That all cemetery trusts with public burial areas allow trust approved memorials to be erected on or near the graves.

R.90 That all cemetery trusts with public burial areas reserved for burial of babies who are stillborn or die in the neonatal period allow trust approved memorials to be erected within close proximity to the graves.

R.91 That no human remains shaH be brought into or buried in or cremated in any cemetery except in a coffin which is:

soundly constructed of substantial wooden or other approved materials;

in such a way as to prevent the escape of offensive liquids or exhalations;

so as to ensure the safety of all persons involved in the burial or cremation; and

so constructed as to prevent any person from seeing the contents thereof after the remains have been placed inside and the coffin closed.

R.92 That the cemetery trust has the immediate power to decide whether or not a particular coffin complies with the Act and the relevant Department has the final power to rule as to compliance.

R.93 That no person shall deliver to a cemetery or crematorium a human corpse in any coffin unless there is affixed to the lid of the coffin a durable plate having the name of the deceased and the date of death distinctly engraved thereon.

(xxlv} R.94 That every person who has the exclusive right of burial in a vault in a cemetery shaiJ, at his own expense provide for the maintenance, sealing and deposition of coffins therein in accordance with the Rules and Regulations of the trustees.

R.95 That every person who has the exclusive right of burial in a vault in a cemetery shall upon receiving notice in writing from the trustees that they believe that odours are escaping from such vault and requiring him to cause such vault to be opened for examination on a specified day, not less than seven days from the delivery of such notice, shall cause the same to be opened accordingly, and, if required by the trustees, shall do such works as the trustees deem necessary.

R.96 That members of the Islamic faith be allowed to be buried in a cotton shroud (i.e. without a coffin) subject to the following conditions:-

(i) a special license be obtained from the cemetery trust to permit burial without a coffin;

(ii) the remains to be contained in a coffin or other disposable or re-usable container at all times during transportation to the gravesite;

(iii) there must be a minimum number of able mourners present to lower the body into the grave. If these are not present then the burial must take place using the coffin and performed by staff of the cemetery.

R.97 That exhumation be defined as:

"the opening of any grave or vault to remove the coffin and remains of any human corpse."

R.98 That the relevant Minister may grant a licence for the exhumation of any body.

(xxv) R.99 That the Minister may set the fees payable for the issuance of any such license (notice of amendments to such fee to be placed in the Government Gazette).

R.IOO That an exhumation license shall be valid for a period not exceeding six months from the date of issue.

R.lOl That whenever a coffin is buried in a grave or vault it shall be:

placed in such a way that there shall be a minimum 75mm. of closely packed earth or other suitable material between every part of it and every part of any other coffin below or alongside it;

so buried that no part of it shall be within 900 mm of the ordinary level of the ground; or

it shall be buried at such depth below the ordinary level of the ground taking into account soil, drainage and slope of the ground as shall be approved in advance by the relevant Department with or without conditions.

R.102 That the definitions listed in Section 21.5 form part of the revised cemeteries legislation.

(xxvi) CHAPTER ONE

M.I.C.A. COMMITTEE ESTABLISHMENT AND INVESTIGATIONS

1.1 Establishment of the M.I.C.A. Committee and Previous Investigations

The M.I.C.A. Committee was established as a Parliamentary Joint Select Committee in July, 1982 and was given the task to inquire into and report upon all aspects of the mortuary industry and related industries in Victoria, including both private and Government operations, together with any aspect of cemeteries administration, funding or provision of land encompassed by the Cemeteries Act 1958, the Trustees Act 1958, or any other provision relating thereto.

The M.I.C.A. Committee was re-appointed by Parliament in February, 1987 and was given the same Terms of Reference.

Since its inception the M.I.C.A. Committee has made the following Reports to Parliament:

1. Metropolitan Cemetery Land Needs and a Crematorium at Geelong. (November, 1983).

2. The Administration of Cemeteries in Victoria. (April, 1984)

3. Review of Cemetery Administration. (November, 1984)

4. Investigations into Cemetery Management and the Provision of Cemetery Reserves. (November, 1985)

5. Land Reserves at Eltham Cemetery. (May, 1986)

6. Mausoleums. (November, 1986) 1.2 Proposed Investigations for 1987

1.2.1 Registration and Licensing of Funeral Directors

The M.I.C.A. Committee is aware of recent major changes in control of Victorian funeral directing companies which have led to a greater concentration of ownership. From an examination of Melbourne's funeral directors, as listed in the Yellow Pages, one would believe that there are literally hundreds of competing funeral directors, but in reality the great proportion of Melbourne's burials and cremations are conducted by four or five major firms.

The M.I.C.A. Committee believes that these recent developments make it a particularly appropriate time for a thorough review of the funeral directing industry and consideration of the possible registration and licensing of funeral directors. The M.I.C.A. Committee intends making final recommendations to Parliament on this matter in 1987.

The M.I.C.A. Committee has already received submissions from the funeral directing industry and other individuals and organizations on this subject. The viewpoints expressed in these submissions range from requests for and agreements with registration and licensing to disagreement with any form of registration or licensing.

The Australian Funeral Directors' Association (A.F.D.A.), as the industry's major organization and advocate, considered that fixed minimum standards for the operation of funeral directing businesses and increased mortuary facilities at hospitals and nursing homes were desirable. The Association appeared not entirely certain of the need for registration and licensing of the industry at this stage, but is in favour of introducing a permit system to allow operation as a funeral director.

After initial examination of industry standards the Committee considers establishing some form of Government inspection of funeral directors' premises may be necessary. As an example this function could be performed on a six monthly basis by local municipal Health Surveyors with advice and support from the Health Department.

2 While the Committee in general favours as little Government interference as possible in the mortuary industry its primary concern wi11 be for the welfare of the public during the sensitive time of a bereavement.

1.2.2 Pre-paid Funeral Schemes

As part of its review of the funeral directing industry the M.I.C.A. Committee also intends conducting a fu11 review of pre-paid funeral schemes. These schemes are offered by funeral directors and aUow people to arrange, and pay for, their eventual burial or cremation.

The Committee believes that such schemes can provide peace of mind to many people and in principle does not oppose them. The Committee is however concerned that Victorian pre-paid funeral schemes do not run into the same problems that have been encountered interstate with schemes collapsing and the public being financia11y disadvantaged.

During 1987 the Committee will assess the safeguards that have been built into these schemes for the public and report to Parliament on the desirability of legislating to consolidate such safeguards.

1.2.3 Licensing of Monumental Masons

Most submissions to the Committee by monumental masons and the Master Stone Masons' Association of Victoria generalJy favoured the introduction of registration and licensing of monumental masons and their premises.

The majority of submissions also advocated the introduction of guidelines and standards for different types of memorials and monuments and the replacement of percentage monumental permit fees with flat rate fees for different types and sizes of monuments.

Although the standard of workmanship in the industry is generalJy high the Committee has been shown some evidence of inferior workmanship which resulted in foundations sinking, monuments cracking or in partial collapse of memorials. Other incidents

3 pointed to problems of supervision during the construction of vaults and monuments. In both areas the problems seem to be the result of a combination of factors which include the lack of adequate guidelines for masons and trustees, lack of expertise for inspection and supervision at cemetery level and a general misunderstanding of legislative provisions for the erection of vaults and monuments.

Preliminary deliberations on these issues indicated to the Committee that registration and licensing of the monumental masons' industry is desirable and that more adequate guidelines and standards are necessary. Nonetheless, the Committee considers it necessary to seek further evidence and expert advice before making final recommendations on an appropriate framework for regulation of this industry during 1987.

1.2.4 Transportation of Bodies

The M.I.C.A. Committee is concerned at what appears to be a lack of adequate supervision of bodies both entering and leaving Victoria for burial or cremation.

The M.I.C.A. Committee's concerns are that this lack of supervision could facilitate the use of coffins for smuggling illicit goods both into and out of Australia.

Before making final recommendations on this matter the M.I.C.A. Committee will consider the views of all Government instrumentalities and private organizations involved in the transportation of bodies.

4 CHAPTER TWO

THE CURRENT INQUIRY

2.1 Historical Background of Cemeteries Legislation

The Cemeteries Act 195& is the latest consolidation of a number of statutes, dating from 1&25, which relate to the administration of cemeteries in Victoria. This Act gives responsibility for cemeteries to the individual trusts with the Minister taking a supervisory role.

2.1.1 First Recorded Deaths in Victoria

The first recorded European death in Victoria was that of a free settler with the 1&03 expedition led by Lt. Col. David Collins which landed at Sorrento in an attempt to establish a British settlement in Port Phillip. John Skilhorne who had been ill during the voyage, died on 10 October, 1803, the day following the landing.

In the short period of that settlement, there were 29 known deaths, and most burials took place on the eastern of two hills at Sullivan's Bay called the "Two Sisters". Four graves are preserved in a small reserve on this site today, however the origin of their occupants is uncertain as it is known that early peninsula settlers from the next period of settlement were also buried in this area.

As Collins was not impressed by the potential of Port Phillip for the purposes of· settlement, in January 1804 he gained authority to remove the settlement, first to Risdon on the northern coast of Van Dieman's Land and eventually the party went on to found Hobart.

Some deaths also occurred at the short-lived Corinella Settlement on Western Port Bay in 1826 but it was not until 1&35 when Me.lbourne was permanently settled by the John Batman/John Pascoe Fawkner parties tha:t: there was a need to select a permanent burial area.

5 2.1.2 Historical Burial Grounds

No deaths occurred in the first year 1835, but on 13 May, 1836, the body of Willie Goodman, a child, was buried on "Burial Hill", now part of the Flagstaff Gardens. There were three recorded burials on Burial Hill in 1836, one in 1837 and twenty in 1838.

By 1837 it was apparent to Robert Hoddle, when he was preparing the surveys of the township, that this site was not suitable for the expanding settlement and so an area of ten acres was assigned as a public burial ground (part of the present site of the Queen Victoria Market). This was ratified during the visit by the Governor, Richard Bourke and the first burial took place there in that year.

This cemetery was divided into sections as follows:

Church of England 2 acres Church of Scotland 2 acres Roman Catholic 2 acres Independent 1 acre Jewish 1 acre Society of Friends 1 acre Wesleyan 1 acre

Later, half of the sections allocated to the Society of Friends was set aside for Aborigines. Convicts were buried outside the northern boundary in "no-man's land".

Individual trusts were given Crown Land grants for each of the religious areas in the cemetery. This was a new concept for burial grounds, departing from the English tradition of burial within Church yards.

The Old Cemetery, as it became known was proclaimed closed in 1854 following the opening of the new Melbourne General Cemetery in 1853. It re-opened again in 1864 for the period until October 1867 when it was finally closed to all burials except for those who held land there.

In 1877 pressure to expand the market area resulted in part of the Jewish area and the whole of the Quaker and Aboriginal areas being taken over. The forty five known 6 bodies were exhumed from this area and re-interred in the Melbourne General Cemetery.

In 1917 it was decided that aJl of the remaining cemetery would be taken over the by Queen Victoria Market and a further 914 bodies were exhumed and transferred to fifteen suburban cemeteries, the majority to Fawkner.

During the 80 years existence of the Old Cemetery it was noted for its neglected state and this has been blamed on the fragmented administration, the change from the churchyard concept (the English did not adopt General Cemeteries until the passing of an Act in 1855), and the rapid growth of the colony fed by the gold fever of the 1850's.

Because of this neglect, records of burials were not welJ kept and it is difficult to estimate the number of burials which took place although Isaac Selby(l) believed the figure to be approximately 10,000. As mentioned earlier, records indicate that only 959 bodies were exhumed before the area was taken over by the Market.

2.1.3 Legislation

Legislation passed in New South Wales in 1850 allowed the establishment of the Melbourne General Cemetery on 40 acres, one mile north of the town, and this Cemetery opened for public use on 1 June 1853.

In 1854 an Act for the Establishment and Management of Cemeteries in the Colony of Victoria(2) was passed forming the basis of cemetery administration as we know it today.

At present the administration of public cemeteries is regulated in the main by two statutes, the Cemeteries Act 1958 and the Trustee Act 1958.

The Cemeteries Act 1958 defines the role of cemetery trusts, the method of establishment and operation, and their accountability to the Government.

The Trustee Act 1958 does not refer to the cemetery trusts specifically, but defines the parameters for the conduct of all trusts under Victorian law.

7 The first legislation to apply to cemeteries in Victoria was the New South Wales Legislative Council Act for " ••• better regulatory and preserving Parish and other Registers of Births, Baptisms, Marriages and Burials in New South Wales and its Dependencies, including Van Diemen's Land", of 1 November, 1825.

This Act as its title indicates related to the keeping of the registers of the milestones in the lives of the inhabitants of the colony, but it also contained the following section:

"X. And be it further enacted, That from and after the First of January, One Thousand Eight Hundred and Twenty Six, No burial shall take place within the limits of any Town, otherwise than in any burial ground which must be set apart for such purposes, and which burial ground must be distant one mile at least from any Town or Township."(3)

This was the current statute applying when Hoddle and Burke laid out the infant ·settlement of Melbourne in 1837. However, the Old Cemetery site (the current Victoria Market) was certainly not "distant one mile at least" from Latrobe Street, the Northernmost point.

In September 1850, the New South Wales Legislature passed "An Act for the establishment and regulation by trustees of a general cemetery near the City of Melbourne.'~4) This was the first legislation which related specifically to Melbourne and it incorporated a section allowing for the closure of the Old Cemetery.

The first legislation relating to Victoria as a whole was "An Act for the establishment and management of Cemeteries in the Colony of Victoria" passed in March 1854.

It is interesting to note that the methods of appointment of the trustees and the accountabiHty to the Government that are laid out in the 1850 Act are word for word (with minor adjustment for the change of status of the colony) to those used in the Cemeteries Act 19 58.

NOTES

(1) Isaac Selby, "The Old Pioneers' Memorial History of Melbourne", McCarron, Bird & Co., Melbourne. 1924, P .14.

(2) 17 VICTORIA, No.12, "An Act for the Establishment and Management of Cemeteries in the Colony of Victoria", Victorian Legislative Council, 23 March 1854.

8 (3) 6 GEORGE IV, No.21, "An Act for better regulating and preserving Parish and other Registers of Births, Baptisms, Marriages and Burials in New South Wales and its Dependencies, including Van Dieman's Land", New South Wales Legislative Council, 1 November 1825.

(4) 14 VICJORIA, No.19, "An Act for the establishment and regulation by Trustees of a General Cemetery near the City of Melbourne", New South Wales Legislative Council, 19 September 1850. ·

2.2 Purpose of this Report

This report is the culmination of the M.I.C.A. Committee's investigations into cemetery administration and burials of the dead.

In July 1982, the then Minister for Health, the Hon. Tom Roper M.P., outlined in a speech in the Legislative Assembly that the

" •.• planning and operation of our cemeteries requires a thorough review".

The M.I.C.A. Committee has made this aspect of its Terms of Reference a priority although the investigations preparatory to this report have been extensive and time consuming.

The following Chapters of this report contain:-

a summary of current Victorian Legislation relating to the subject area;

the M.I.C.A. Committee's comments and recommendations; and

a brief for a new Act encompassing the M.I.C.A. Committee's proposed amendments.

The M.I.C.A. Committee has recommended in its Third Report to Parliament that the Minister for Local Government should be responsible for administering the Cemeteries 1958 and the Cemeteries Regulations 1965. Under these conditions the Cemeteries Section of the Health Department would be wholly transferred to the Local Government Department, and the Health Department would continue to determine policy and standards affecting public health with respect to cemeteries and crematoria.

9 The M.I.C.A. Committee wishes to emphasize that the relevant Minister or department referred to in this current report is the Minister or department responsible for administering the Cemeteries Act 19 5& and the Cemeteries Regulations 1965. At present this is the Minister for Health and the Health Department however should the Government accept the recommendations of the Committee's Third Report this would be the Minister for Local Government and the Local Government Department.

2.3 Inquiry Procedure

The M.I.C.A. Committee's extensive investigations into cemetery legislation and administration has included gathering information by various techniques, including public submissions, industry questionnaires, departmental records, formal evidence, discussions before the M.I.C.A. Committee and a number of visits intra and interstate.

These investigations completed, the M.I.C.A. Committee formulated a plan to involve feedback from the industry and interested public on the Committee's proposed amendments to the Act. To this end the M.I.C.A. Committee seconded an additional staff member, Mr. P. Quail, from the Cemeteries Section of the Health Department to assist in the production of a Discussion Paper on a Review of Cemetery Legislation.

This Discussion Paper completed by the M.I.C.A. Committee in November 1986, was then distributed to all cemetery trusts, related Government Departments and other interested organizations. The Committee set 31 January, 1987 as the last date on which submissions responding to the Discussion Paper would be accepted.

Fifty-two submissions were received by the M.I.C.A. Committee, including nine requesting the opportunity to make additional verbal submissions to the Committee. A list of those who made submissions is contained in Appendix 1.

A public hearing was then held to allow any organizations which and individuals who wished to give verbal submissions before the M.I.C.A. Committee to give evidence. This hearing was held on Monday, 23 March, 19&7 at Parliament House. Eight witnesses were interviewed. These consisted of representatives of Government Departments, cemetery trusts, and other interested parties. A list of those who presented evidence at hearings is contained in Appendix 2.

10 The M.I.C.A. Committee also received evidence from Mr. Ron Curley, Executive Officer, Inspection and Regulation Unit, Health Department Victoria, who, unable to attend the Public Hearing, appeared before the M.I.C.A. Committee at a private hearing on Friday, 6 March, 1987 2.4 Response to the Discussion Paper The M.I.C.A. Committee was pleased to note that the majority of submissions received commenting on the Discussion Paper endorsed the M.I.C.A. Committee's proposed amendments to the Cemeteries Act 1958. The following quotations reflect the Discussion Paper's favourable reception by cemetery trusts, councils, other interested organisations and individuals.

Ballaarat General Cemeteries Trust

"The Trustees of Ballarat General Cemeteries have studied the "Review of Cemetery Legislation" presented as a Discussion Paper in November 1986 and commend the Committee on the way the review has been presented and the exacting research which has gone into it."

Boroondara General Cemetery Trust (Kew) "The Trustees of Boroondara General Cemetery consider that there is much to be recommended in the Review of Cemetery Legislation."

Box Hill Cemetery Trust

"The Trustees have reviewed the very com.prehensive Discussion Paper issued by the M.I.C.A. Committee, and endorse many of the proposed changes cited in it." Cemeteries and Crematoria Association: of Victoria

"The Association wishes to commend the members of the Mortuary Industry and Cemeteries Administration Committee for the very thorough manner in which they have tackled the job of reviewing Cemetery Legislation, and for the method of presentation of the Discussion Paper."

City of Wangaratta

"Council agrees with the general thrust of the Paper and especially wishes to support the desirability of local government administering all cemeteries. Council hopes the Committee will not be swayed away from the general thrust."

Fawkner Crematorium and Memorial Park Trust

"In many cases the Trust is in broad agreement with your recommendations."

11 The Memorial Park Trust (Altona)

"The Board wish to express appreciation that a review of the Cemeteries Act, long over due, has now been dealt with by your Committee in what may be regarded as a very comprehensive document."

The Necropolis Trust (Springvale)

"The Trustees were impressed by the document produced, the detail included and consider that this is a document of a forward thinking committee."

The Ombudsman, Victoria.

"I wish to congratulate the Committee on what I believe is basically a very valuable document in that it has correctly identified the problem areas in the existing Act and has made well researched recommendations for amendments supported by logical argument."

Public Record Office

"The recommendations in the Discussion Paper which seek to preserve cemetery records of archival value are highly commendable."

Shire of Bellarine

" ...... the Council generally supports the proposed amendments to the Act."

Shire of Dunmunkle

"Council generally supports the Discussion Paper and welcomes the proposed new legislation." ·

Stillbirth and Neonatal Death Support Inc.

"SANDS (Vie) congratulates the M.I.C.A. Committee on its thorough investigation and on the preparation of its comprehensive Discussion Paper."

Undertakers' Assistants and Cemetery Employees' Union

"In general, this organisation endorses most of the report."

12 CHAPTER THREE

ESTABLISHMENT AND CLOSURE OF CEMETERIES AND CREMATORIA

3.1 Introduction

The question of the establishment and closure of cemeteries and crematoria, both from the point of view of land requirements and funding, is covered in the present legislation, the Cemeteries Act 1958, in an extremely ad hoc fashion. For instance the land purchase provisions in the Act are such that the Health Department has now by-passed them and uses the provisions of the Crown Land (Reserves) Act 1978 to purchase additional land for cemetery purposes.

In this Chapter the M.I.C.A. Committee wiJJ recommend various amendments to the Act which should both clarify and simplify the processes involved in establishing and closing cemeteries and crematoria while providing for increased public involvement.

3.2 Establishment - Cemeteries Act 19 58

3.2.1 Cemeteries

Governor-in-Council approval is needed for the establishment of a . cemetery and notice of this must be placed in the Government Gazette.

If suitable land is identified the Governor-in-Council must ensure that notice of this lies on the Table of the Legislative Assembly and Legislative Council for thirty days after which the Minister may buy or seize the land subject to the provisions of the Lands Compensation Act 1958.

The cemetery trust must provide the funds for such purpose and the land automatically becomes unalienated Crown Land vested in trustees and may be permanently reserved as a site for a cemetery.

13 In addition the Governor-in-Council may direct that money be paid out of public revenue to cemetery trusts for the establishment and management of cemeteries.

This money may be in the form of a loan or grant depending on the financial situation of the cemetery trust. In the event of any money that is lent to cemetery trusts the Governor-in-Council may require securities over the fees of the cemetery. This security will not however involve any of the trustees in any personal liability.

3.2.2 Crematoria

Notice of intention to erect a crematorium must be placed by the cemetery trust in both the Government Gazette and a newspaper.

The Trust may accept a donation of money for the establishment of a crematorium and a donation of land for such a purpose with Health Department approval.

No crematorium will be established within 200 metres of a house without the owner's consent, within 50 metres of a public highway and within a religious denominational area of a cemetery.

3.3 Establishment - Comments and Recommendations

3.3.1 Approval of Crematoria

Section 44 of the Cemeteries Act 1958 provides for Governor-in-Council approval for the establishment of new cemeteries and in this respect is common to most other States, however there is no clear provision in the present Act for Governor-in-Council approval for the establishment of crematoria and further there is no direct provision in the present Act to prevent a cemetery trust from establishing a crematorium within the confines of an existing cemetery without any reference to the Health Department.

This is an obvious anomaly in the Act as the establishment of a crematorium should only be commenced after an appropriate investigation by the relevant Department to assess the need for such a facility and its financial viability and only then on the recommendation of the relevant Minister.

14 Recommendation

R.l That the approval of the relevant Minister be required for the establishment of both Cemeteries and Crematoria.

3.3.2 Land Purchase Provisions

One aspect of the Cemeteries Act 1958 that is entirely inappropriate is the portion that deals with the necessary mechanisms for the acquisition of additional cemetery land.

Sections 54 to 60 of the present Act detail a complicated and time consuming process involving the Minister for Health recommending to the Governor-in-Council that certain land be acquired and, if approved by the Governor-in-Council, notice of such intention lying on the Table of the Legislative Council and Legislative Assembly for a period of thirty days. Where the land involved is private land the Cemeteries Act 1958 provides for full compensation being made by the Minister for Public Works, pursuant to the Lands Compensation Act 19 58, to the owner of the land.

As a result of the shortcomings in the present Act the Health Department has for some time used the provisions of the Crown Land (Reserves) Act 1978 rather than the Cemeteries Act 1958 to purchase !and for cemetery purposes. This has resulted in a more streamlined procedure and has the support of the Health Department, the Ministry for Public Works and the Department of Conservation, Forests and Lands. The M.I.C.A. Committee believes that this arrangement should be formalised in revised legislation.

Recommendation

15 3.3.3 Ptmlic Notice of Proposed Cemetery or Crematorium

An examination of interstate cemeteries legislation reveals a much greater emphasis on public notice being given of an intention to establish a cemetery or crematorium, an appropriate appeals mechanism and involvement of local government in such a process. The Cemeteries Act 1958 contains no such provisions with the exception of Section 68 of the Act which provides for limited public notice of an intention to erect a crematorium at a cemetery.

The public's desire to ensure that any proposed cemetery or crematorium is unacceptable to the local community and meets desirable standards is only safeguarded at the moment by the provisions of relevant town planning legislation where this applies. The M.I.C.A. Committee believes that the Cemeteries Act itself should provide for more public scrutiny of and involvement in the establishment of cemeteries and crematoria.

Recommendation

R.3 That appropriate provisions be placed in the revised Cemeteries Act to allow suitable public advertising of and objections to any proposed cemetery or crematorium.

3.4 Closure- Cemeteries Act 1958

3.4.1 Cemeteries

The Governor-in-Council may close a cemetery by notice in the Government Gazette and may also vary this closure as appropriate. If a valid right of burial exists at such a cemetery it can be exercised with Health Department approval under certain conditions. These provisions are contained in Section 44 of the Cemeteries Act 1958.

3.4.2 Crematoria

The Governor-in-Council may order the closure of a crematorium by notice in the Government Gazette. Penalty for contravention. (For reference see Section 70 of the Cemeteries Act 1958). 16 3.5 Closure - Comments

The Cemeteries Act 1958 provides for the closure of both cemeteries and crematoria by the Governor-in-Council upon notice in the Government Gazette as is the case in most other States. The M.I.C.A. Committee finds no major fault with this present provision of the Act.

3.6 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the establishment and closure of cemeteries have been incorporated into the following brief for a new Act.

Establishment and Closure of Cemeteries and Crematoria

Establishment

(a) No crematorium or cemetery shall be established or extended in Victoria except with the approval of the Minister and by notice published in the Government Gazette.

(b) Any cemetery trust or other persons applying for such approval shall:

l. make application in writing to the relevant department;

2. lodge with its application, plans (including anticipated traffic flows within the immediate area), specifications and full financial details of the proposal;

3. at least three months before the application is considered by the department, publish in at least two separate issues of a newspaper generaHy circulating in the municipal district, notice of its intention;

4. post and keep posted during such m'?nths in a conspicuous position at the site or place of the proposed cemetery or crematorium a copy of such notice printed so as to be easily legible to the public;

17 5. cause a sketch plan and site plan of the proposed development to be drawn to scale and be made available for inspection.

(d) Any such objection shall:

1. be in writing;

2. state the grounds for the objection and set out or be accompanied by a statement setting out the facts and circumstances on which the objector relies to support these grounds;

3. be lodged before the closing date set for receipt of objections.

(e) The Minister shall take every such objection into consideration before making a decision and shall advise every objector of this decision.

(f) Every public cemetery shaH be situated on Crown Land or land deeded in the Crown and reserved for cemetery/cremation purposes.

(g) The relevant Minister may purchase or compulsorily acquire land for cemetery/cremation purposes under the provisions of the Crown Land (Reserves) Act 1978.

(h) The Governor-in-Council may direct that such sums of money as it thinks fit, out of any part of the public revenue of Victoria, be appropriated for the purpose of purchasing land for cemetery purposes, extending, developing and maintaining cemeteries and crematoria, and any other purposes required under this Act.

(i) The Governor-in-Council may either cause such sum to be loaned to such trustees to be repaid out of the fees received or, when from the situation of the cemetery or any other circumstances it seems improbable that such fees will be sufficient to defray any such loan, he may direct such sum to be paid as a grant to such trustees for any of the purposes required under this Act.

18 Closure

(j) The Minister may, by Order published in the Government Gazette, direct that after a time to be mentioned in such Order burials or cremations in any particular cemetery or part thereof or crematorium shall be wholly discontinued subject to any exceptions or qualifications and may from time to time vary such Order. (Penalty for contravention.)

19 M.l.C.A. Committee Members and Staff inspect an unusual historic monument at Boroondara Cemetery (Kew). (From Left) Gavin Jackson (Acting Secretary); Carl Kirkwood (Chairman); David Cunningham and Jack Culpin.

M.I.C.A. Committee inspecting Islamic Burial Section at Fawkner Crematorium and Memorial Park (From Left) John Miles, David Cunningham, Jack Culpin, Tom Reynolds and Carl Kirkwood. CHAPTER FOUR

PIONEER MEMORIAL PARKS

4.1 Introduction

Cemeteries are an important part of the Australian Heritage. The community is in the early stages of researching our past and each year discover more facts about those who helped develop this country. The monuments of our ancestors form a visible record of Australia's growth. Through names, dates and other information on the headstones it is possible to trace family and local history, and in a wider context to determine cultural development. The symbolism in the decorative elements of nineteenth century headstones expresses attitudes towards death that are very different from our twentieth century relics. Some of the larger cemeteries are valuable examples of nineteenth century formal garden design and they retain today landscaping that is seldom seen outside the few remaining public gardens.

The maintenance of cemeteries and possible conversion to other uses, such as a Pioneer Memorial Park, of old, closed and full cemeteries will be contentious as the views of the historian and genealogist whose main interest is in preserving history often differ from those of the administrators of cemeteries who have a responsibility to consider the maintenance cost of such cemeteries.

Conversion of cemeteries to Pioneer Memorial Parks can best be addressed by initially considering the problems associated with the maintenance of closed cemeteries and then by reviewing Victorian Legislation which allows the conversion of cemeteries to Pioneer Memorial Parks.

4.2 Maintenance of Closed Cemeteries

Once a cemetery closes to further burials there is a consequent loss of revenue and funding necessary maintenance, often becomes a problem, especially in the older style monumental cemeteries.

21 The Victorian experience can be categorised as follows:

cemeteries with limited funds depend on working bees by trustees and service clubs to maintain the cemeteries in some order;

cemeteries which have accumulated sufficient funds during their working life can in theory be self-sufficient but the experience has been that the Health Department makes such cemeteries responsible for less efficient cemeteries which in turn must deplete their funds; and

cemeteries which are under the control of local councils are subsidised from council funds allocated for parks and gardens, etc.

Maintaining closed cemeteries will always remain a problem and the M.I.C.A. Committee believes that a possible answer lies in the formation of a Central Cemeteries Fund as recommended in the M.I.C.A. Committee's Third Report to Parliament.

In that Report the M.I.C.A. Committee recommended that a Central Cemeteries Fund be established based on revenue received from a service fee being charged on every funeral or cremation. The Central Cemeteries Fund would provide revenue for:

closed cemeteries or cemeteries devoid of income;

conversion of cemeteries to pioneer memorial parks and preservation of historical graves and monuments; and

ongoing maintenance and administration of cemeteries with insufficient income to be self-sustaining.

4.3 Cemeteries Act 19.58

4.3.1 Reason for Conversion - Under the provisions of the Cemeteries Act 1958 a closed cemetery or part thereof which is listed in the Fourth Schedule of the Act may be converted to a Pioneer Memorial Park which by removal of monuments, tombstones and other erections and grassing over the area becomes parkland.

22 4.3.2 Decision - The Minister makes the decision to allow the conversion of a cemetery, on the advice of the Health Department, after a plan of the proposed Memorial Park has been submitted to the Department.

4.3.3 Rights of Burial - Once a cemetery has been converted to a Pioneer Memorial Park no further burials are permitted. The trust can in no way interfere with existing burials.

4.3.4 Monuments

Section 60c of the Cemeteries Act 1958 states that monuments can only be removed from or moved within a Pioneer Memorial Park once the following three conditions have been met:

with the written agreement of the Minister for Health;

if at least three months before Health Department approval was requested the cemetery trust placed a public notice twice in three daily or weekly newspapers circulating in the district advising of its intended actions;

if the agreement of the holder of the right of burial has been obtained, or despite diligent enquiry the cemetery trust has been unable to locate such person.

The legislation contains no provisions affecting the disposal of monuments from Pioneer Memorial Parks but the Committee has received advice from the Health Department that in cases where they cannot be used in the Park they be broken up before disposal at a municipal tip.

This legislation enables cemeteries to be converted to Pioneer Memorial Parks by removal of certain memorials and suitable landscaping thereby creating more open and easily maintained areas that can be used for passive recreational purposes. However the intention is to maintain the unique atmosphere and historical nature of the cemeteries. In essence a Pioneer Memorial Park contains fewer monuments and more grass, trees, etc.

23 The conversion of a cemetery to a Pioneer Memorial Park is useful as it:

decreases maintenance costs; and

increases public amenity and community recreational pursuits.

Four cemeteries are listed in the Fourth Schedule of the Cemeteries Act 1958 which allows the trusts to make specific proposals to the Health Department of Victoria to convert the cemeteries to Pioneer Memorial Parks. Of these cemeteries two trusts have received approval for conversion proposals.

The M.I.C.A. Committee generally supports the present legislation but feels it has various shortcomings which are listed below.

4.4 Comments and Recommendations

4.4.1 Public Notice

The New South Wales and South Australian legislation dealing with the conversion of cemeteries to parkland allows for public notice being given of such intention whereas the Victorian legislation allows no such opportunity to the public who may have valid reasons for objecting to such a proposal.

As a result of community interest the M.I.C.A. Committee believes it important that a detailed plan be available for public inspection showing the monuments affected and details of the conversion proposal before any decision is made to convert a cemetery to a Pioneer Memorial Park.

Recommendation

In contrast to the New South Wales and South Australian legislation the present Victorian Cemeteries Act has no scope for public objections to a conversion proposal. As an extension of the M.I.C.A. Committee's arguments in the preceding section the M.I.C.A. Committee believes that the opportunity of objecting to a conversion proposal should be afforded to the public.

Recommendation

R.5 That members of the public be given the opportunity to object to the conversion of a cemetery to a Pioneer Memorial Park. Such objections are to be considered before any final decision is made.

4.4.3 Decision

The present provisions of the Cemeteries Act 195& mean that the final decision to convert a cemetery to a Pioneer Memorial Park lies with the Minister for Health, on the recommendation of the Health Department. Parliamentary scrutiny is also involved in that the cemetery concerned must be listed in the Fourth Schedule of the Act which necessarily involves Parliamentary debate and an amendment to the Act.

The M.I.C.A. Committee considers that the necessity for adding cemeteries to the Fourth Schedule of the Act is both time consuming and unnecessary. Notwithstanding that it was probably designed to ensure that there would be some public scrutiny of such a proposal.

The M.I.C.A. Committee believes however that a more efficient method of allowing public scrutiny of such a proposal is to ensure that the revised legislation contains appropriate "public notice" and "objections" mechanisms.

Recommendation

R.6 That the necessity for listing cemeteries in the Fourth Schedule to the Cemeteries Act before they can apply to become Pioneer Memorial Parks be abolished.

25 4.4.4 Involvement of Minister for Planning and Environment

The M.I.C.A. Committee is concerned that under present legislation decisions could be made to convert cemeteries to Pioneer Memorial Parks with little consideration for the historical and environmental aspects.

Cemeteries are part of our heritage and are in fact time-capsules of earlier days and it is important that these matters are fuJJy weighed up before any decision is made to convert a cemetery to a Pioneer Memorial Park.

The M.I.C.A. Committee therefore feels it important that there be some input into the decision-making process by experts in this area as officers of the relevant Department may not have the expertise to advise their Minister on the heritage and environmental aspects of such a conversion.

The M.I.C.A. Committee believes that the Ministry for Planning and Environment, which is responsible for protecting the heritage of Victoria, could serve a useful role by advising the relevant Minister on the environmental and heritage implications prior to any final decision being made.

The M.I.C.A. Committee would see early discussions between the cemetery trust concerned and officers of the relevant Department and Ministry for Planning and Environment as being useful in ensuring that the conversion proposed was sensitive to environmental and heritage considerations.

Recommendation

R.7 That before the relevant Minister approves of a proposal to convert a cemetery to a Pioneer Memorial Park he or she considers the views on the matter of the Minister for Planning and Environment.

4.4.5 Rights of Burial

The Cemeteries Act 1958 provides that where a cemetery has been converted to a Pioneer Memorial Park no further burials shaH be allowed. The Act contains no provision for compensation in such cases.

26 This is in contrast to the New South Wales and Tasmanian legislation which makes provision for granting alternative rights of burial to those people who have been prevented from using existing rights because of the conversion of the cemetery.

Although the M.I.C.A Committee can see no reason why in some cases burials could not be allowed in a Pioneer Memorial Park where such burial was possible without disrupting the converted cemetery, the Committee agrees with representatives of the industry who support that if there is a dispute over burials at a Memorial Park then the cemetery may have been converted too soon.

Recommendation

R.8 That with the express approval of the relevant Minister, burials be allowed in Pioneer Memorial Parks where valid rights of burial exist.

4.4.6 Monuments

The Cemeteries Act 19 5& contains provisions that ensure that no monument is removed from a Pioneer Memorial Park unless the prior consent of the holder of the burial right has been obtained or despite diligent inquiry by the cemetery trust it has been unable to locate such person. The M.I.C.A. Committee supports these provisions as it believes strongly in safeguarding the rights of the public in any conversion of a cemetery to a Pioneer Memorial Park.

The M.I.C.A. Committee is concerned that in cases where the holder of the right of burial cannot be located and the cemetery trust has applied to the Health Department for approval to remove the monuments on these graves, there may well be no consideration of the historical significance of such monuments due to the lack of expertise in this area by officers of the relevant Department and cemetery trust. The Committee would strongly argue for the views of the Ministry for Planning and Environment and other concerned organisations, such as the Royal Historical Society, being sought before any approval was given for the removal of any monuments.

The M.I.C.A. Committee further believes, that to ensure an historical record, before any monument is removed it be photographed and details of all legible inscriptions on

27 headstones, etc., be fully recorded and a plan of the cemetery be prepared showing the location of all such monuments. Copies of all these records should be placed with the Public Record Office.

Furthermore the rights of the holder of Right of Burial must be upheld as to the ownership of monuments and that they should be able to claim headstones and/or monuments removed from graves under the Act if they so desire.

Recommendations

R.lO Prior to the disposal of the removed monuments the holders of the Right of Burial must be given an opportunity to claim them.

4.5 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the establishment of Pioneer Memorial Parks have been incorporated into the following brief for a new Act.

Pioneer Memorial Parks

(a) In this section "memorial park" means a closed cemetery or part of a cemetery that has been closed which by removal of monuments, tombstones and other structures is converted to parkland.

(b) The trustees of a cemetery who desire to convert to a memorial park the whole or any part of the cemetery may submit a proposal to this effect together with a plan of all plots in the area concerned to the relevant Department. (c) Before lodging such an application with the relevant Department the trustees must:

28 (1) prepare a plan showing the location of all monuments in the redevelopment area and a plan of the proposed redevelopment for that area and make such plans available for public inspection;

(2) at least 6 months prior to lodging the application, place in a prominent position in the area to be redeveloped a notice of intention to redevelop, advising where plans may be inspected; and

(3) not less than three months prior to lodging the application for redevelopment publish at least twice in each of two newspapers, generally circulating in the area and state-wide, notice of intention to redevelop.

(d) Any written objections to the trustees' proposal to convert the cemetery to a memorial park received by the trustees must be forwarded to the relevant Department for its consideration prior to approval being granted to convert the cemetery to a memorial park.

(e) Where the relevant Department after consideration of any such proposal to convert the cemetery to a memorial park is satisfied that it is both desirable and practical it may recommend to the Minister that the trustees be authorised to proceed accordingly.

(f) The Minister, after consideration of a recommendation under sub-section (e), may in writing authorise the trustees of the cemetery concerned to establish a memorial park subject to any conditions he sees fit to impose in relation to:

(1) the disposition and preservation of any monuments, tombstones or other structures in the cemetery or part of the cemetery concerned;

(2) the maintenance of the area; and

(3) any other matters he thinks necessary or expedient to provide for in the public interest.

29 (g) However, before granting any authorisation under sub-section (f) the Minister shall consider the views of the Minister for Planning and Environment on the matters referred to in sub-section (f).

(h) Where an authority has been granted under sub-section (f) in respect of the whole or any part of the cemetery no further burial shall be permitted in the area concerned.

(i) The trustees of the cemetery who have been authorised to convert the cemetery or part thereof to a memorial park may subject to the written authority of the relevant Department, remove any monument in the areas concerned.

(j) The relevant Department shall not consent to any removal of a particular monument under sub-section (i) unless it is satisfied that the trustees have published notice of intention to remove the same at least twice in each of two newspapers generally circulating in the area and state-wide not less than three months before the application for the department's consent was lodged; and

(1) have obtained consent to the removal from the person who but for this Part would have held the exclusive right of burial or interment in the grave or vault concerned; or

(2) despite diligent inquiry have been unable to find such person.

(k) Before the trustees remove any monument under sub-section (j) they shall ensure that the monument is photographed, details of all legible inscriptions thereon are recorded and a plan of the cemetery is prepared showing the location of the monument.

(1) Prior to disposal of the removed monuments the holders of Rights of Burial must be given the opportunity to claim them.

(m) All the information referred to in sub-section (k) shall be placed in the control of the Public Record Office as soon as practicable. A copy should also be held in the office of the relevant Department.

30 CHAPTER FIVE

PRNATE CEMETERIES

5.1 Introduction

Victoria has approximately fifty private religious cemeteries approved under the Cemeteries Act 1958. Of these only a few regularly conduct burials. Under the provisions of the Act a burial is allowed with the prior approval in writing of the Health Department. It should be noted that these cemeteries are of a non commercial nature and that the Committee intends to submit a singular report on commercial ownership of crematoria and cemeteries at a later date.

The Act does not specifically mention private religious cemeteries and could equally apply to burials on private properties. The Health Department has, however, adopted a policy of not allowing such burials even though they are possible under the Act.

5.2 Comments and Recommendations

5.2.1 Compliance with Cemeteries Act 1958

The M.l.C.A. Committee has been informed by the Health Department that in general Victoria's operating religious private cemeteries are well administered in that:

the records are well kept; the relevant provisions of the Act are adhered to; and the condition of the cemeteries is good.

The M.I.C.A. Committee has also been informed that the present system of private cemeteries obtaining the prior approval in writing of the Health Department for burials has worked well.

Nevertheless the M.I.C.A. Committee is concerned that the present legislation contains no provision to ensure that private cemet~ries conform with the requirements of Section 19 of the present Act, which stipulates the necessary documentation for

31 burial and the requirements of Section 51, which requires that all burials are recorded in an appropriate register-book.

The M.I.C.A. Committee is aware that many sections of the present Act cannot sensibly be applied to private cemeteries, but nevertheless feels that a revised Cemeteries Act should contain provisions that ensure that private cemeteries comply with the sections of the Act dealing with documentation, record-keeping and any other sections that the Minister may feel appropriate.

Recommendation

R.ll That all private cemeteries comply with the sections of the Cemeteries Act dealing with documentation for burial, record-keeping and any other sections that the Minister feels appropriate.

5.2.2 Future Establishment of Private Cemeteries

The M.I.C.A. Committee would reiterate the comments it made in its Third Report to Parliament that Victoria's private cemeteries should continue operating subject to adherence to appropriate cemetery legislation, with provision for special permits for burial. However, in general no new private cemeteries be established unless special circumstances exist, as in most cases it would be possible to cater for particular religious groups in existing public cemeteries.

5.3 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on private cemeteries have been incorporated into the following brief for a new Act.

Private Cemeteries

(a) Burials will only be allowed in private cemeteries with the prior approval in writing of the relevant Department.

32 tb) Private cemeteries will comply with all sections of the Act unless where specificaUy exempted in writing by the relevant Minister.

(d) Approval for the establishment of private cemeteries will only be given where the cemetery is to serve the particular burial requirements of a religious or cultural group and any profit derived from the operation of such cemetery shall only be used for purposes permitted under this Act or approved by the relevant Minister.

Historical Monuments at St. David's Memorial Park, Hobart, Tasmania

33 The M.I.C.A. Committee and Public Gallery at the Public Hearing on A Review of Cemetery Legislation hear Mr. John Downey (former Crown Solicitor) giving evidence. CHAPTER SIX

GOVERNMENT SUPERVISION

6.1 Introduction

Due to the decentralised nature of the "trust" system of administering cemeteries, effective government supervision of the operation of cemetery trusts is integral to their proper administration and compliance with the Act. The M.I.C.A. Committee is well aware of the problems caused by a lack of adequate government supervision from its previous investigations of maladministration at cemeteries such as occurred at the Melbourne General Cemetery.

The M.I.C.A. Committee is of the opinion that the relevant Minister and Department in addition to its already wide powers to adequately supervise the administration of cemeteries in Victoria should also have available a source of specialised advice on cemetery matters to ensure the effectiveness of such supervision. The M.I.C.A. Committee is however mindful of the need to preserve the independence of cemetery trusts as much as practicable.

The M.I.C.A. Committee has considered the following amendments to the Act to assist in these matters:

power for the relevant Department to authorise people to inspect cemeteries and crematoria to ensure compliance with the Act;

the formation of a Cemeteries Advisory Board;

overriding Ministerial power to direct cemetery trusts in relation to their powers and duties under the Act; and

power for the Minister to delegate the exercise or performance of his powers and duties under the Act.

35 6.2 Cemeteries Act 19.58

The Cemeteries Act 1958 grants the power to the Governor-in-Council to make Regulations in relation to all cemeteries, burial grounds and crematoria. Once such Regulations have been made the Act states that trustees, and all persons having the care of such cemeteries and crematoria, shall conform to and obey and enforce them.

The purposes for which Regulations may be made are as follows:

the protection of public health; the maintenance of public decency; prescribing the construction of any class of vaults; the maintenance, management and inspection of crematoria; prescribing in what cases and under what conditions the cremation of any human remains may take place; directing the disposal or interment of the cremated remains recovered; prescribing the form of register book for the registration of cremations; prescribing forms for the purposes of this Act; prescribing fees for the purposes of this Act; generally prescribing any matter or thing authorised or required to be prescribed under this Act; and regulating the hours worked and the wages paid to any employee of certain specified cemeteries.

The Governor-in-Council may impose a penalty not exceeding $500, to be recovered before any Magistrates' Court, for the breach of any such Regulation.

The Act also allows the Health Department to authorise any person to inspect cemeteries and burial grounds to ascertain their state and condition and check that any Governor-in-Council approved Regulations are being observed and complied with.

6.3 Comments and Recommendations

6.3.1 Inspection of Cemeteries and Crematoria

The Cemeteries Act 1958 contains powers enabling the Health Department to

36 authorise people to inspect cemeteries and crematoria to ascertain their condition and ensure compliance with any Governor-in-Council approved Regulations. The Act makes it an offence to violate, neglect, fail to conform to or enforce, any such Regulations.

The M.I.C.A. Committee endorses this provision as it believes that the proper administration of cemeteries in Victoria is to an extent contingent on the regular inspection of both cemeteries and their records by duly authorised officers of the relevant Department.

The need for such officers to be given specific powers to make such inspections is strengthened by the various instances of maladministration and breaches of the law that the M.I.C.A. Committee has become aware of during its investigations and detailed in its previous Reports to Parliament.

The M.I.C.A. Committee accordingly supports the present provisions, but believes they should be widened to allow such officers to:

inspect, obtain copies of and/or sieze any cemetery records;

ascertain the state or condition of any such place; and

ensure compliance with the Cemeteries Act.

6.3.2 Cemeteries Advisory Board

Notwithstanding the M.I.C.A. Committee's contention that it should become a Joint Standing Committee of Parliament to report on all matters pertaining to the disposal of human remains, the M.I.C.A. Committee stated in its Discussion Paper that the revised Cemeteries Act should contain provisions that enable the relevant Minister to set up a Cemeteries Advisory Board.

The M.I.C.A. Committee still believes it important, at any critical stage in the planning for Victoria's future burial and cremation needs, that the relevant Minister have access to a wide range of specialist advice on all matters relating to cemetery administration as an adjunct to advice received from Departmental Officers.

37 However as the Health Department has at present adequate numbers of officers servicing cemeteries, the Committee proposes to withdraw its suggestion of a Cemeteries Advisory Board and replace it with a more informal group to be established at need comprising senior executives of the Health Department, for example the Executive Officer, Inspection and Regulation Unit, and the Chief Executive Officer, Public Health Services, and the Chief Administrator, Local Government Department or appointees.

6.3.3 Overriding Ministerial Power

From the M.I.C.A. Committee's investigations of problems at certain cemetery trusts the M.I.C.A. Committee believes that giving the relevant Minister power to direct any cemetery trust in relation to its powers and duties under the Act is necessary.

This mechanism would give the Minister a tool with which to take immediate action in cases where he believed that trusts were acting in a manner that was not conducive to effective cemetery administration and possibly obviate the need for more drastic action at a later stage. Such directions should be in writing and signed by the Minister.

Recommendation

R.l2 That the relevant Minister have the power to direct any cemetery trust in relation to its powers and duties under the Act.

6.3.4 Power for the Minister to Delegate

The M.I.C.A. Committee has noted with interest that the New South Wales legislation enables the Minister to delegate the exercise or performance of duties imposed upon him by the legislation. The M.I.C.A. Committee believes that this is a useful provision that could ensure that the Minister is not burdened with administration that could in some instances be performed at a lower level.

38 Recommendation

R.l3 That the Minister may delegate the exercise or performance of duties imposed on him by the legislation.

6.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on Government Supervision have been incorporated into the following brief for a revised Cemeteries Act.

Government Supervision

(a) The relevant Department may authorise any person to inspect any cemetery, crematorium, burial ground or place of burial· in order to:

inspect, obtain copies of and/or seize any cemetery records;

ascertain the state or condition of any such place; and

ensure compliance with the Cemeteries Act.

(b) Every trustee or other person having the care of any such cemetery, burial ground, place of burial or crematorium, subject to the Act, who violates or neglects or fails to conform to or obey or enforce the provisions of such legislation shall be liable to a penalty.

(c) The Minister shall have the power to direct any cemetery trust in relation to action to be taken in relation to its powers and duties under the Act.

(d) The Minister may delegate the exercise or performance of any of the powers (other than this power of delegation) authorities, duties and functions impressed upon him by this Act. The Minister may revoke wholly or in part any such delegation as and when he thinks fit.

CHAPTER SEVEN

APPOINTMENT AND REMOVAL OF TRUSTEES

7.I Introduction

The M.I.C.A. Committee believes that the provisions in the current Act relating to both the appointment and removal of trustees and the general administration of trusts contain various shortcomings which include:

the cumbersome nature of the necessity for Governor-in-Council approval for appointment and removal;

the lack of local government involvement in cemetery administration;

no limit on the number of trustees on a trust, the length of tenure of such appointments or the age of trustees;

no power for the Minister to appoint an Administrator of a cemetery; and

a lack of clarification as to whether or not a person with a potential or actual conflict of interest with the operation of a trust may be appointed as a trustee.

The M.I.C.A. Committee has recommended various amendments to the Act in this Chapter which should overcome these problems.

7.2 Cemeteries Act 1958

7.2.1 Appointment

The Cemeteries Act 1958 provides that the Governor-in-Council may appoint trustees for any public cemetery or appoint the council of any municipality to be trustees for a public cemetery. All such appointments must be published in the Government Gazette. 41 The Act also stipulates that there must be at least three trustees on any trust with the number for a quorum at any meeting being three.

7 .2.2 Removal

The Act provides that the Governor-in-Council may remove any trustee or revoke any order appointing the council of a municipality to be trustees of a cemetery. Notice of such removals shall be published in the Government Gazette.

7.3 Comments and Recommendations

7 .3.1 Local Government Representative on Cemetery Trust

State and Federal Government policy recognises local government as a third sphere of elected Government and as being the area of Government closest to the people served and often best equipped to recognise and respond to local needs. It is primarily for this reason that the M.I.C.A. Committee has previously in its Third Report to Parliament for a much greater role for local government in the administration of cemeteries not directly controlled by local government already.

The M.I.C.A. Committee believes that a council representative on cemetery trusts not already administered by local government, being either a Councillor or senior council officer, would be able to draw on the expertise and resources of the council for the benefit of the cemetery, just as other trust members draw on their particular experience and expertise.

The M.I.C.A. Committee feels it appropriate to reiterate its recommendations on this matter contained in its Third Report to Parliament.

11 R.4 Existing cemetery trusts continue in their current role except in circumstances where:

(1) the trustees resolve to hand over their responsibility to the local government; or

42 (ii) if in the opinion of the Minister a cemetery is not being administered in a responsible manner the Minister may direct a municipal council or councils or take over responsibility for such cemetery.

R.8 Councils be represented on all cemetery trusts not directly administered by a Council."

The M.I.C.A. Committee is aware from its investigations that three main types of public cemetery trusts exist viz. large metropolitan (The Necropolis, Fawkner, Altona), other metropolitan and major provincial cemeteries (e.g. Cheltenham, Ballarat and Geelong) and small country cemeteries (e.g. Ballangeich, Tutye, Chinkapook).

The differing management and operating procedures and the size of the region the particular cemetery serves may well affect the appropriateness or form of council representation on such a trust. There will be difficulties in assessing appropriate local government representation on a trust which serves a regional role and is providing burial services to the residents of a large number of municipalities.

The M.I.C.A. Committee believes in the ultimate desirability of local government administering all cemeteries and that as a first step local government should be represented on all cemetery trusts. The M.I.C.A. Committee, however, proposes that the relevant Minister should have the power to exempt a cemetery trust from this requirement if he or she feels it appropriate to do so, or while he or she is assessing the most appropriate form of local government representation on a cemetery trust.

Recommendation

R.l4 That municipal councils be represented on all cemetery trusts not directly administered by such councils, by a Councillor, senior council officer, or other person nominated by the council, unless the relevant Minister declares otherwise.

43 7 .3.2 Power for Minister to direct Council to Administer Cemetery

Section 3(2) of the Cemeteries Act 1958 provides a mechanism for the Governor-in Council to appoint the council of any municipality to be trustees of any cemetery. The M.I.C.A. Committee strongly endorses this provision, but argues that the wording should be strengthened to clearly state that the Minister may direct a council to act as trustees.

Recommendation

R.l5 That the relevant Minister may direct a municipal council to act as trustee of a cemetery within its municipality.

7.3.3 Tenure of Council Representative on Trust

A revised Cemeteries Act requires some provision to ensure that in those cemeteries not directly administered by local government the council representative should only remain a member of the trust as long as:

he or she remains a Councillor or council officer; and/or

the Council feels it appropriate that such person remain on the trust.

Recommendation

R.l6 That the local government representative on cemetery trusts not directly administered by local government only remain a trustee of the cemetery for as long as the Council feels appropriate.

7 .3.4 Nomination of Trustees

The M.I.C.A. Committee maintains that where a cemetery is not directly administered by a Council the trust itself should have the responsibility of nominating for appointment persons of suitable qualifications and/or experience. There should be particular emphasis for example on the fields of finance, engineering, architecture, horticulture, and administration. Nominated trustees should also have the ability to work together as a team for the benefit of the cemetery.

44 The M.I.C.A. Committee is aware that the system of religious or community groups nominating representatives for cemetery trusts has served Victoria well in most instances in the past. This system however has occasionally produced trusts who are eo-opted locals with little interest in the real business of cemetery management and rarely attend meetings. In many instances the secretary is the trust.

The M.I.C.A. Committee therefore strongly urges the relevant Department to adequately monitor proposed appointments to trusts to ensure as much as possible that the proposed trustee has both the ability to work with the other trustees as a team and has appropriate experience or qualifications. Consultation with local councils on these matters would be most useful.

Recommendation

R.l7 That the relevant Department assess the qualifications and/or experience of proposed trustees before recommending their appointment to the Trust.

7 .3.5 Number of Trustees

The Cemeteries Act 1958 states that where a cemetery is not administered by a municipal council there shall be at least three trustees and the quorum for proceeding with business at any meeting is the same number.

The M.I.C.A. Committee agrees with these provisions but feels it appropriate that there be an upper limit on the number of trustees to ensure the smooth conduct of trust meetings.

Recommendation

R.l8 That all cemetery trusts not directly administered by municipal councils have a minimum of three and a maximum of seven trustees.

45 7.3.6 Tenure of Trustees

The M.I.C.A. Committee reiterates the comments it made in its Third Report to Parliament that trustees of cemeteries not directly administered by councils should not be virtually appointed for life (unless they resign from the trust or are removed by the Governor-in-Council), but that all appointments should be regularly reviewed. Appointments should be for 4 years on a staggered basis, so that all trustees are not up for re-appointment in the same year.

Recommendation

R.l9 That the appointment of trustees to cemeteries not directly administered by councils be subject to review by the appropriate Minister every four years.

7.3.7 Office of Trustee May Be Declared Vacant

The M.I.C.A. Committee proposes that a revised Cemeteries Act contains provisions that ensure that where a trustee becomes unable to continue his or her duties due to illness, extended absence overseas etc., the office of trustee be declared vacant.

Recommendation

R.20 That the office of a trust member shaH become vacant if that person:

(i) becomes an undischarged bankrupt, or a person whose property is subject to an order or arrangement under the Jaws relating to bankruptcy;

(ii) dies or becomes permanently incapable of performing his or her duties as a member;

(iii) resigns his or her office in writing to the trust who shall notify the relevant Department; or

(iv) absents himself or herself, except on leave duly granted by the trust, for the duration of three consecutive meetings of the trust.

46 7 .3.8 Age Limit

The Cemeteries Act 1958 contains no limit on the maximum age of trustees and the M.I.C.A. Committee is aware that many cemetery trusts comprise of a majority of quite elderly trustees.

While in no way wishing to diminish the contribution of such trustees and their ability and desire for voluntary service, the M.I.C.A. Committee feels it appropriate that there be an upper limit on the age of trustees in a revised Cemeteries Act. This could only be varied in exceptional circumstances with the approval of the relevant Minister. This is a common provision in many other comparable Acts such as the Hospitals and Charities Act 1958.

The Committee is aware that the implementation of an upper age limit could eliminate some entire trusts and to avoid this situation and to assist the smooth implementation of this proposal the M.I.C.A. Committee proposes that present trustees should be exempt from this provision.

Recommendation

R.21 That a person of or over the age of 72 years is not eligible to be appointed or re-appointed as a member of a trust except where the relevant Minister declares otherwise.

7 .3.9 Appointment of Chairman

The M.I.C.A. Committee believes that the revised Cemeteries Act should give the relevant Minister the power to direct the trust to appoint one of its members to serve as Chairman. This power would probably be used rarely as the Minister would not wish to intervene in most cases but could prove useful when trusts were being amalgamated or new trusts were being formed to administer regional cemeteries.

Recommendation

R.22 The trustees shall appoint one of their members to be the Chairman of trustees unless the relevant Minister directs otherwise. Other office bearers may also be appointed. 47 7 .3.1 0 Appointment of Administrator

In previous Reports to Parliament the M.I.C.A. Committee has described various actions of certain trustees which have been incompetent, inefficient and in some cases dishonest. These occurrences have led to Health Department intervention, investigation and in some cases removal of trustees.

The M.I.C.A. Committee proposes that when such serious situations occur the relevant Minister should have the power to appoint an Administrator to conduct the affairs of the trust while the situation is being investigated and rectified. The Administrator would exercise all the powers and duties of the trust until it was either re-established or a new trust appointed in its stead.

The appointment of Administrators is common in both the local government and hospital administration fields and would appear to be a useful provision in a revised Cemeteries Act.

Recommendation

R.23 That the relevant Minister have the power to appoint a fit and proper person as Administrator of any cemetery.

7 .3.11 Conflict of Interest

The question of the desirability of monumental masons or funeral directors serving on trusts is contentious. Although there are no provisions in the present legislation which specifically prevent this the practice is not common, although in country areas many funeral directors serve as secretaries of cemeteries due in most cases to a shortage of other people willing to accept such responsibility.

Monumental masons and funeral directors have particular expertise in certain areas of cemetery administration which could be of value to the cemetery trust. However, it can be argued that their appointment to a trust could give them an unfair advantage in the market-place and a conflict of interest could arise.

48 (a) Trustees

The Committee believes that no person with a conflict of interest should be appointed to a trust and therefore believes that in general no funeral director or monumental mason should be considered as eligible for appointment.

{b) Secretaries

The M.I.C.A. Committee believes the appointment of funeral directors or monumental masons as secretaries of cemetery trusts is undesirable but feels that the cemetery trust is in the best position to assess whether or not a conflict of interest situation could be avoided in such circumstances. In this case the trust may apply to the Minister for approval of the appointment.

Recommendation

R.24 That no person with a conflict of interest with the operation of a cemetery shall be appointed as a trustee of that cemetery.

R.25 That no person with a conflict of interest with the operation of a cemetery shall be appointed as a Secretary of that Cemetery Trust unless it is with the Minister's approval.

7 .3.12 Frequency of Meetings

The M.I.C.A. Committee is aware that a significant proportion of cemetery trusts meet only infrequently and that the present Act contains no provision to ensure that meetings are held on a regular basis.

The M.I.C.A. Committee believes this to be a serious shortcoming in the Act as regular trust meetings are essential to the efficient administration of any cemetery.

Recommendation

R.26 That trustees shall conduct meetings as necessary provided that at least two meetings are held each year, at approximately six monthly intervals.

49 7.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the appointment and removal of trustees have been incorporated into the following brief for a new Act.

Appointment and Removal of Trustees

{a) For trusts not administered by local councils pursuant to sub-section {h) trustees shall be appointed by the Minister, no fewer than three nor more than seven for any public cemetery for a period of four (4) years and may be re-appointed subject to sub-section (e) and {f).

(b) The office of a trust member shall become vacant if that person:

(l) becomes an undischarged bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy;

(2) dies or becomes permanently incapable of performing his or her duties as a member;

(3) resigns his or her office in writing to the trust who shall notify the relevant Department; or

(4) absents himself or herself, except on leave duly granted by the trust, from the duration of three consecutive meetings of the trust.

(c) All trusts not directly administered by local government shall, unless specifically exempted in writing by the relevant Minister, have at least one trustee who will be nominated by the local municipal council and who may be a Councillor, Council Officer or other person.

(d) Al.l trustees nominated by local municipal councils shall remain as trustees at the council's discretion.

(e) No person nominated for appointment to a trust after the proclamation of this Act shall be appointed or re-appointed as a trustee if they have

50 attained the age of 72 years without the express approval of the relevant Minister.

(f) No person with a conflict of interest with the operation of a cemetery or an actual or potential financial interest in that cemetery shall be appointed as a trustee of that cemetery.

(g) That no person with a conflict of interest with the operation of the cemetery shall be appointed a Secretary of that Cemetery Trust unless it is with the Minister's approval.

(h) Before recommending the appointment of any trustee to the Minister the relevant Department shall ensure that the experience, qualifications and expertise of the proposed trustee will be of benefit to such trust.

(i) The relevant Minister may direct any municipal council to act as trustee of any cemetery.

(j) The relevant Minister may remove any trustee, the entire trust or a municipal council from the administration of any cemetery at any time.

(k) Notice of all Ministerial appointments and removals pursuant to sub sections (a), (h) and (i) shall appear in the Government Gazette.

(1) (1) Where, in the opinion of the Minister, a public cemetery is inefficiently or incompetently managed, he may, by Order published in the Government Gazette appoint a fit and proper person as administrator of the public cemetery and may by like Order remove a person so appointed.

(2) An administrator appointed under this section shall be deemed to be the cemetery trust and shall have all the powers and may exercise any of the duties of the cemetery trust and be subject to all the duties of the cemetery trust.

(3) Where an administrator is appointed under this section in respect of a public cemetery, the trustees of such cemetery cease to hold

51 office. However, the relevant Minister may at any time if he thinks fit by Order published in the Government Gazette, declare that the cemetery trust is to be re-established by the appointment of members of the cemetery trust.

(4) Upon the trust of a public cemetery being re-established as referred to in sub-section (3), the relevant Minister shall by Order published in the Government Gazette declare that the administrator has ceased to be the administrator and that the trust has been re-established and upon publication of the Order, the powers and duties of the administrator cease.

(m) The trustees shall appoint one of their members to be the Chairman of trustees unless the relevant Minister directs otherwise. Other office bearers may also be appointed.

(n) Each trustee may be paid out of the trust's general account for duties as a trustee, such annual allowance, if any, and such fees, travelling and other expenses and allowances as are approved from time to time by the relevant Minister.

(o) No trustee shall be reimbursed for work performed by him at a cemetery except in special circumstances where the written approval of the relevant department is given.

(p) The trustees may adopt rules ior convening meetings and such other rules as may be necessary for their own guidance and management.

(q) Matters to be resolved at meetings shall be decided by a majority of members present and in a case of equal division the Chairman shall have a casting vote in addition to a deliberative vote.

(r) The trustees shall conduct meetings as necessary provided that at least two meetings are held each year at approximately six monthly intervals. The quorum for any meeting shall be three trustees.

52 CHAPTER EIGHT

POWERS AND DUTIES

8.1 Introduction

The powers of trustees provided by the Cemeteries Act 1958 have remained substantially unaltered since the last century whereas the responsibilities involved in administering cemeteries have greatly increased.

Areas of particular concern are today's increased proclivity towards civil litigation with its attendant risks for trustees and the present tight financial situation that makes it increasingly difficult to administer cemeteries.

8.2 Cemeteries Act 1958

Under the provisions of the Cemeteries Act 1958 the trustees of any public cemetery have the power and/or duty to:

hold land for cemetery purposes and enclose such land with walls, fences etc.;

erect suitable gates and entrances and lay-out and ornament the cemetery in a suitable manner;

establish walks, roads, shrubs, etc., and maintain the cemetery in an orderly state;

expend funds on the exercise of the trust's powers and duties subject to the directions of the Governor-in-Council, and in the burial of poor persons;

contribute (with the Governor-in-Council's consent) to the cost of construction or maintenance of streets adjoining or abutting the cemetery;

53 provide for cremation ;

prosecute persons causing damage to the cemetery;

seize or detain persons committing an offence against the Act.

Under the provisions of the Local Government Act 1958 the council of any municipality which has been appointed as trustee of any cemetery may:

perform all the powers and duties conferred on the trustees of a publlc cemetery;

appropriate municipal funds towards the establishment and maintenance of a cemetery within the municipal district or, with the consent of the Governor-in-Council, if not within the district.

8.3 Comments and Recommendations

8.3.1 Incorporation of Cemetery Trusts

The M.I.C.A. Committee has noted that Australian Capital Territory, South Australian and Tasmanian cemetery legislation either allows for the incorporation of cemetery trusts, or at least provides specific exemption from personal liability for cemetery trustees.

The M.I.C.A. Committee is aware from evidence received from many Victorian cemetery trustees that they may be held to be personally liable for actions of the trust and that the present Cemeteries Act contains no protection from such liability. The only exception is in Section &2 of the Act, which states that the trustees of The Necropolis, Springvale, shall be deemed to be a body corporate by the name of "Trustees of The Necropolis, Springvale".

A further area of concern and inconvenience to cemetery trustees is that the provisions of the present Act require that the trust's investments must be held in the names of specific trustees rather than in the name of the trust. This causes problems, for example when trustees resign.

54 The M.I.C.A. Committee believes that the best solution to these two problems is for a revised Cemeteries Act to contain as a matter of urgency a provision to nominate the trust of all public cemeteries as bodies corporate. This has also been recommended by the Western Australian Cemeteries Act Review Committee.

Recommendation

R.27 That the trust of all public cemeteries be appointed as bodies corporate with perpetual succession under the name of the ''Trustees of the ...... Public Cemetery".

8.3.2 Power to Lease Land

Effective planning for the future provision of burial space for Victoria's residents means that at any one time large areas of Crown land reserved for cemetery purposes will be unused. This creates a financial burden to the trust when one considers the cost of necessary maintenance works.

A more efficient use of this land would be to lease it for other purposes until the cemetery trust required it for preparation for burial purposes. There is however no provision in the present Cemeteries Act which allows this.

The Crown Land (Reserves) Act 1978 allows for the leasing of Crown Land for the purposes of providing facilities and services for the public or for purposes consistent with the purpose of the reservation. Unfortunately these provisions would not allow a cemetery trust to lease a part of the cemetery to an adjoining land owner for stock grazing purposes which would probably be the most common use of leased cemetery land.

The M.I.C.A. Committee believes that any proposal that would improve the financial efficiency of cemeteries deserves consideration and proposes that a revised Cemeteries Act gives cemetery trusts the power to lease unused sections of the land under their control. A proviso would be that the relevant Department has approved of such a course of action.

55 Recommendation

R.28 That with the prior approval in writing of the relevant Department any cemetery trust may lease any unused portion of the land under its control.

8.3.3 Preservation of Historically Significant Graves

Under the provisions of the present Cemeteries Act the maintenance of any monuments, etc., erected on grave sites is the responsibility of the holder of the right of burial and the trust has no power to expend funds on such monuments unless they are deemed to be unsafe or unsightly.

Many Victorian cemeteries contain monuments of great historical significance which are falling into disrepair because the descendants of the holders of the rights of burial cannot be found or have no interest in such monuments.

Certain cemetery trusts have demonstrated an interest in expending funds on the maintenance of these historic monuments, but have been concerned that the present Act contains no specific provision allowing them to do so.

The M.I.C.A. Committee believes that the revised Act should contain a specific provision giving cemetery trusts the power, but not the duty, to expend trust funds on the maintenance of historically significant graves. The M.I.C.A. Committee does however believe that certain government departments, historical and genealogical societies, etc., would have a role to play in the funding of such works and may even wish to grant moneys to Cemetery Trusts for this purpose.

Recommendation

R.29 That cemetery trusts have the power to expend trust funds on the maintenance of historically significant graves.

8.3.4 Possession of Cemeteries Act

The M.I.C.A. Committee is aware that certain cemetery trusts are not fully aware of

56 their obligations under law and that in some cases cemetery trusts do not even possess a copy of the Cemeteries Act 1958.

Whilst it is the responsibility of the relevant Department to take appropriate steps to ensure as much as practicable that all cemetery trusts are aware of their obligations under law the M.I.C.A. Committee believes it is prudent for those who have the responsibility of the management of cemeteries to have at least one copy of the relevant Act for the information of the trustees and trust officers.

Recommendation

R.30 That the relevant Department ensures that ail cemetery trusts possess a copy of the Cemeteries Act and are kept informed of any amendments to such legislation.

8.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the powers and duties of trusts have been incorporated into the following brief for a new Act.

Powers and Duties

(a) The trustees shall have the power to do works deemed necessary in connection with the proper efficient management, upkeep and improvement of the cemetery and the burial or cremation of those bodies received by it.

(b) The trustees of any cemetery shall have the power to lay out the cemetery in such a manner as may be most suitable and convenient for the burial or cremation of those bodies received by it and the administration of the cemetery and to maintain and keep the portions of the cemetery for which they are responsible in a clean and orderly state.

(c) The trustees shall expend, subject to directions that may be given by the relevant Department, the monies from time to time received by them under this Act in the matters aforesaid, in the purial/cremation of poor persons, in the preservation of historically significant graves and associated historical records and any other purpose approved by the relevant Minister.

57 (d) The trustees may accept a donation of money, materials, land or voluntary labour to assist in performing the duties imposed on them under this Act.

(e) The trustees may, with the consent of the relevant Minister, pay out of monies received by it under this Act to a council of a municipality a contribution towards the cost of the construction or maintenance of any private street adjoining or abutting the cemetery and constructed under Division 10 of Part XIX of the Local Government Act 19 58 or any corresponding previous enactment.

(f) The trustees of a public cemetery not administered by a municipal council shall be appointed as a body corporate, with perpetual succession under the name of the "Trustees of the ...... Cemetery", have a common seal and may sue and be sued by such corporate name.

(g) The trustees shall appoint staff as considered necessary for the proper care, administration and use of the cemetery and shall pay them such salaries, wages and allowances as determined by their appropriate Award out of funds of the trust.

(h) (1) The trustees of a public cemetery may provide a lawn section by setting apart and laying out a separate portion or portions of the land comprising that cemetery as lawn or lawn interspersed with trees, shrubs or garden plots in such manner as the trustees think fit.

(2) When a portion of the land comprising a public cemetery is set apart and laid out as a lawn or park section pursuant to sub-section (1) of this section, a person shall not place therein -

(i) any monument, tombstone or enclosure; or (ii) any nameplate or flower container that does not comply with the trust's Rules and Regulations.

(i) Every person who destroys, damages or attempts to so destroy or so damage or causes to be so destroyed or damaged any building, vault, monument, enclosure, fence, tree, shrub, or other thing in any cemetery, or who defaces or obliterates, or attempts to deface or obliterates any such structure in any

58 cemetery, shaH be liable, on conviction, to a fine and the trustees of the cemetery may prosecute for any such offence under the Summary Offences Act 1966 and may obtain damages.

(j) The trustees or an authorised officer of the trust may require an alleged offender to provide details of his name and address on demand.

(k) The relevant Minister shaH ensure that all cemetery trusts possess a copy of the Cemeteries Act and Regulations and be informed of any amendments to such legislation.

(1) (1) Subject to sub-section (2), a cemetery trust may, with the consent of the relevant Minister, grant leases of any part of the reserved land under its control that has not been used for cemetery purposes.

(2) A lease granted under sub-section (1) -

(i) shall be for a specific term approved by the relevant Minister;

(ii) shall provide that all buildings and structures erected pursuant to the lease shall become the property of the cemetery trust upon the expiration of the lease; and

(iii) shall be subject to such covenants, exceptions, reservations and conditions as are determined by the cemetery trust and approved by the relevant Minister. (m) The trustees may let or lease any building constructed for the use and convenience of persons visiting the cemetery.

(n) Where a cemetery is administered by the council of a municipality the provisions of Section 241 of the Local Government Act 1958 shall apply and as far as the provisions of the said section and this Act are inconsistent the former provisions shall prevail.

CHAPTER NINE

FINANCIAL MANAGEMENT

9.1 Introduction

From its investigations of the provisions of the Cemeteries Act 1958 relating to the financial management of cemeteries the M.I.C.A. Committee has been made aware of serious shortcomings in the present legislation. Some examples are:

even though a cemetery, such as The Necropolis, Springvale, which is a multi million dollar concern, submits its financial transactions to an annual audit there is no requirement in the present legislation for it to do so; and

small country cemeteries which have not conducted burials for a long time and which have no financial assets must still submit an abstract of the trust's accounts, signed by three trustees in the form of a statutory declaration, to the Health Department annually.

In this Chapter the M.I.C.A. Committee has recommended various amendments to the present legislation which are designed to increase both the scope and relevance of cemetery trusts' financial accountability to the controlling Department.

9.2 Cemeteries Act 1958

9.2.1 Borrowing Powers

Section 8 and &A of the Cemeteries Act 1958 contain the following provisions relating to the ability of cemetery trusts to borrow money:

with the approval of the Governor-in-Council the trustees of any public cemetery may borrow money to enable them to perform their powers, authorities and duties under the Act;

61 if a cemetery trust defaults on repayment the Supreme Court may appoint a receiver;

with the approval of the Treasurer of Victoria the trustees of a cemetery may borrow money from any bank by way of overdraft or obtain temporary finance accommodation;

with the approval of the Treasurer of Victoria the trustees of a cemetery may borrow money from any institution, person or body approved by the Treasurer; and

the Treasurer may guarantee loans to trusts with appropriate notice in the Government Gazette.

9.2.2 Financial Reporting

Sections 33 to 38 of the present Cemeteries Act 1958 contain the following provisions with regards to financial reporting by the trusts to the Health Department:

cemetery trusts must keep a full account of all sums of monies received and expended by them from the first day of January each year;

the trusts shall submit such abstract to the Health Department by the first day of March each year;

such abstract will be verified by a statutory declaration by at least three of the trustees and shall be published in the Government Gazette;

the trust shall submit with the abstract a statement of the condition of the cemetery and a costed works programme for the ensuing year; and

every trust which fails to submit such an abstract as aforesaid shall be liable to a penalty of not more than $500.

62 9.2.3 Use of Funds and Investments

The Act contains the following provisions relating to the use of trust funds:

the Governor-in-Council may direct the manner in which cemetery trusts' funds are appropriated;

every such direction by the Governor-in-Council should be published in the Government Gazette;

any funds not so appropriated may be expended in the improvement of the cemetery and interment of poor persons;

funds may be invested by trustees in any manner for the time being permitted by law for the investment of trust funds;

when making such investments the trustees shall have "the same powers, duties and irnmunities and be subject to the same restrictions as if they were trustees within the meaning of the Trustee Act !958";

all investments by the trustees shall be shown in the annual abstract of accounts and the Governor-in-Council may direct that any such investments be called in or any security in which they are invested be sold.

9.2.4 Power for the Governor-in-Council to Order the Purchase of Government Stock

Sections 88 to 91 of the Cemeteries Act 1958 contain out-moded provisions relating to the Governor-in-Council's power to order specified cemeteries to purchase "government stock".

These sections of the Act relate to The Necropolis, Springvale, the Fawkner Crematorium and Memorial Park and any other cemetery that the Governor-in-Council declares to be a new metropolitan cemetery.

63 The provisions enable the Governor-in-Council to:

direct the trustees of the Melbourne General Cemetery and the Boroondara Public Cemetery to purchase from the Treasurer Victorian Government stock to the extent of $20,000 or more;

pay interest of 31% from Consolidated Revenue on the stock; and

direct that such stock not be sold or transferred without approval.

The proceeds from the sale of this stock are to be paid into an account called the Cemeteries Trust Fund to be kept in the Treasury and only used for making advances to "New Metropolitan Cemeteries".

The Governor-in-Council can loan monies from this fund to assist trustees of these cemeteries in the establishment and management of cemeteries. The trustees are empowered to receive such advances and to enter into agreement to repay the same to the Treasurer with interest.

9.2.5 Council Controlled Cemeteries

Where councils have been appointed to act as trustees of cemeteries the provisions of Section 241 of the Local Government Act 1958 apply.

This section states that these councils must:

keep proper accounts and records of all financial transactions;

balance the accounts to the 30th day of September each year;

incorporate a statement of the cemetery's income and expenditure in the annual statement of accounts prepared pursuant to Section 473; and

ensure the accounts of the cemetery trusts are audited by the Municipal Auditor.

64 9.3 Comments and Recommendations

9.3.1 Audit of Trust's Financial Activities

The M.I.C.A. Committee is concerned that the present Cemeteries Act contains no provision ensuring that all cemetery trusts are subject to an annual independent audit by a suitably qualified person, for example, for smaller cemeteries, the local bank manager.

The M.I.C.A. Committee is aware that most larger cemetery trusts voluntarily undergo an audit but believes that this should become obligatory in a revised Cemeteries Act. The only exception should be trusts which have not had any financial transactions for the preceding year.

This amendment to the Act should only apply to cemeteries not directly administered by local government as the financial affairs of such cemeteries are already audited pursuant to the Local Government Act 1958.

Recommendation

R.3l That all cemetery accounts be audited by a suitably qualified person independent of the trust.

9.3.2 Power for Relevant Department to Nominate Minimum Qualifications of Auditor

As stated in the preceding section an annual audit should be carried out by a suitably qualified person independent of the trust. In most instances this person would be a qualified accountant who is a member of the Australian Society of Accountants, or the Institute of Chartered Accountants in Australia.

The M.I.C.A. Committee however concedes that many cemetery trusts would not be in a position to pay a qualified accountant. In these instances it would be appropriate for a person such as the manager of the bank at whkh the trust keeps its accounts or other suitably qualified person to conduct the audit. Another alternative would be for the trust to request the services of the Municipal Auditor.

65 Notwithstanding the trust's choice of auditor the relevant Department should have the power to nominate the minimum qualifications of the person conducting the audit at any cemetery. For example it may not be appropriate for a bank manager to conduct the audit of a large metropolitan cemetery.

Recommendation

R.32 That the relevant Department have the power to nominate the minimum qualifications of the person conducting the audit at any particular cemetery.

9.3.3 Auditor-General to Conduct Audit Where Appropriate

There may well be instances where the relevant Department is not satisfied with the conduct of an audit at a particular cemetery or the Department believes that the accounts of a cemetery deserve special scrutiny.

In these instances the M.I.C.A. Committee proposes that consideration be given allowing the relevant Minister to request the Auditor-General to conduct an audit of the accounts of any cemetery where appropriate.

An examination of interstate legislation reveals that in both Tasmania and Western Australia the Auditor-General conducts audits of cemetery trusts' accounts in certain instances. The Victorian Crown Land (Reserves) Act 1978 contains similar provisions with regards to Committees of Management of Crown Reserves.

Recommendation

R.33 That the relevant Minister have the power to request the Auditor-General to conduct an audit of the accounts of a cemetery where he believes it appropriate.

9.3.4 Submission of Financial Report to Relevant Department

The Cemeteries Act 1958 stipulates that an abstract of the cemetery trust's accounts, signed by three trustees and verified by a statutory declaration, be submitted annually to the Health Department.

66 The M.I.C.A. Committee's proposal that the accounts of all cemetery trusts be audited would mean that trusts should now be required to submit a copy of the audited statements to the relevant Department.

The present requirement that the abstract of accounts be in the form of a statutory declaration would seem unnecessary in view of the proposed audit of ail cemetery trusts' accounts. The M.I.C.A. Committee does however believe that it would be appropriate for the audited abstract of account to be verified by at least two trustees and the secretary or manager.

The M.I.C.A. Committee is aware that many cemetery trusts presently submit nil returns which must be signed by three trustees and be in the form of a statutory declaration. This would seem unnecessary and the M.I.C.A. Committee considers that any trusts with no financial transactions during the preceding year be exempted from this requirement as is the situation in Western Australia.

Recommendation

9.3.5 Financial Year

The Cemeteries Act 1958 stipulates a financial year from the lst January to the 31st December for cemeteries not administered by councils. Cemeteries under the control of councils have a financial year from the 1st October to the 30th September.

As stated in its Third Report to Parliament the M.I.C.A. Committee believes that eventually municipal councils will administer all cemeteries and it therefore proposes that a1i cemeteries should share the same financial year. This would also facilitate the use of municipal auditors for auditing the accounts of smaller cemeteries.

67 Recommendation

R.35 That the financial year for all cemeteries be from the 1st October to the 30th September.

9.3.6 Works Program to be submitted to Relevant Department

The Cemeteries Act 1958 stipulates that the trustees of all cemeteries shall submit with the abstract of accounts a statement of:

the condition of the cemetery; a suggested works program for the ensuing year; and an estimate of the cost of the proposed works.

The M.I.C.A. Committee agrees with this provision but considers that budgeting for capital projects over a twelve month period is difficult.

Advice of the proposed works program for the ensuing three years would be more appropriate and with progressive revision and addition to this program should give the relevant Department adequate information.

The M.I.C.A. Committee also believes that cemetery trusts should advise the relevant Department each year of the availability of remaining burial space at the cemetery. This information is essential to the relevant Department when assessing the need for the purchase of additional cemetery land.

Recommendation

R.36 That all cemetery trusts submit annually to the relevant Department the following information with the audited abstract of accounts:

a statement of the condition of the cemetery; a costed proposed works program for the ensuing three years; and a statement of the availability of burial space at the cemetery.

68 9.3.7 Trust Fund

The M.I.C.A. Committee is of the view that when cemetery trusts are preparing their annual budget they should endeavour to achieve a balanced situation. However, the M.I.C.A. Committee believes that a component of a cemetery's annual budget should relate to the raising of funds for future maintenance of burial areas.

The M.I.C.A. Committee is aware that many cemetery trusts set aside funds in reserve to meet such future expenses but is concerned that some very large cemetery trusts do not.

Whilst the M.I.C.A. Committee does not believe that a requirement for this future maintenance component should be incorporated in any new legislation, it is strongly of the view that cemetery trusts should give full and proper consideration to future maintenance costs and funding when budgets are prepared.

The M.I.C.A. Committee would expect that the relevant Department stresses the importance of this matter in its dealings with cemetery trusts.

9.3.& Approved Investments

The Cemeteries Act 1958 stipulates that cemetery trusts may invest their funds in any investments specified in the Trustee Act 19 58.

The M.I.C.A. Committee is aware that the provisions of the two Acts have caused some administrative difficulties in regards to investment holdings. The problem has been that as trusts have invested funds the investments have had to be listed in the names of the trustees rather than the trust.

The M.I.C.A. Committee believes that the proposal outlined in Chapter Six of this Discussion Paper that all cemetery trusts become bodies corporate should solve this problem by allowing investments to be made in the name of the trust with no adjustments being necessary as the membership of the trust changes.

Apart from the aforementioned matter the M.I.C.A. Committee's review of the Trustee Act 1958 as it relates to the Cemeteries Act 1958 has isolated no other

69 problem areas. Accordingly the M.I.C.A. Committee recommends no amendments to the present provisions relating to investments.

9.3.9 Borrowing Powers

The provisions of the present Act that necessitate cemetery trusts receiVmg the Treasurer's approval before borrowing money and allowing the Treasurer to guarantee such loans are considered by the M.I.C.A. Committee to be appropriate.

The M.I.C.A. Committee has noted that some Government control of the borrowings of cemetery trusts is common to most of the other States and no changes to the present provisions are proposed.

9.3.10 Tenders

The M.I.C.A. Committee is concerned that the Cemeteries Act 195& contains no requirement for cemetery trusts to call for tenders for the supply of works and services, etc.

The M.I.C.A. Committee is aware that many cemetery trusts call for tenders as a matter of course but believes it appropriate that all cemetery trusts should be required to do so when the value of the works exceeds a certain amount.

This practice should assist in ensuring that cemetery trusts are administered in a business-like manner and help protect trusts and their employees fro~ allegations of favouritism, etc., when goods and services are required.

In line with thE! M.I.C.A. Committee's previous recommendation to Parliament that eventually local government should administer all cemeteries, it recommends that local government guidelines be adopted in this matter.

Recommendation

R.37 That cemetery trusts seek tenders and enter into contracts for the supply of any goods, machinery, equipment, materials or services in accordance with the

70 appropriate Local Government Regulations.

9.3.11 Governor-in-Council Power to Order Purchase of Government Stock

As stated in Section 9.2.1+ the Cemeteries Act 1958 contains provisions relating to the Governor-in-Council's power to order specified cemeteries to purchase "Government Stock".

These provisions have not been used for quite some time and are completely out moded. The M.I.C.A. Committee can see no good reason why they should be replicated in the revised Act.

Recommendation

R.38 That the provisions of the Cemeteries Act 1958 that allow the Governor-in- Council to order specified cemeteries to purchase "Government Stock" be repealed.

9.3.12 Government Appropriation of Trusts' Funds

The .\tl.l.C.A. Committee agrees in principle with Section 36 of the Cemeteries Act 1958 that allows the Governor-in-Council to direct the manner in which cemetery trusts' funds are appropriated. The M.I.C.A. Committee cannot envisage many situations in which this power would be used but believes it important that the Government retains ultimate control of what are in fact public monies.

The M.l.C.A. Committee however believes, that for ease of administration, this power should be with the relevant Minister rather than the Governor-in-Council. Notice of every such order should be placed in the Government Gazette as is the current practice.

It would seem to be a matter of equity that any cemetery money appropriated by the relevant Minister should only be used in the exercise of the Minister's or his Department's duties under the Cemeteries Act. The money should not be used for non cemetery purposes.

71 The M.I.C.A. Committee therefore proposes that any money appropriated by the relevant Minister be placed into a "Cemetery Fund" which could only be used for works associated with cemeteries.

Recommendation

9.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the financial management of cemeteries have been incorporated into the following brief for a new Act.

Borrowing Powers

(a) The trustees may with the approval of the Treasurer of Victoria and the relevant Minister, and subject to such terms, conditions and limitations as the Treasurer approves:

L borrow moneys from any bank or other institutions by way of overdraft; and

2. obtain temporary financial accommodation secured or arranged in such manner and for such period as the Treasurer in each particular case approves.

(b) The trustees may give to any such institution, person or body security for moneys so borrowed in such form as -the Treasurer approves in each particular case.

(c) Where the trustees of a cemetery borrow moneys under the power conferred by sub-section (a) or sub-section (b) the Tre<1surer may execute

72 in favour of any institution, person or body lending money to the trustees a guarantee for the repayment thereof.

(d) A guarantee given by the Treasurer under sub-section (c):

1. shall, subject to this section, be in such form and subject to such terms and conditions as the Treasurer thinks fit;

2. may extend to any interest charges and other expenses chargeable by the institution, person or body making the loan and the expenses of enforcing or obtaining or endeavouring to enforce or obtain repayment of the loan and those interest charges and expenses;

3. shall be subject to the condition that the institution, person or body making the loan shall obtain, take and hold or retain securities of such nature as the Treasurer may require for the repayment of the loan and the payment of interest charges and expenses;

4. shall be subject to the condition that the institution, person or body making the loan shall not without the prior consent in writing by the Treasurer assign or encumber the benefit of the guarantee;

5. shall not be enforceable against the Treasurer unless the institution, person or body making the loan has, to the Treasurer's satisfaction, exercised its or his rights and remedies under all securities held by or for it or him in respect of the loan and any interest charges and expenses.

(e) Any moneys required by the Treasurer in fulfilling any guarantee given under this section shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly) and any moneys received or recovered by the Treasurer in respect of any moneys so paid by the Treasurer shall be paid into the Consolidated Fund.

(f) The Treasurer shall cause the terms and conditions of any guarantee executed under sub-section (c) to be published in the Government Gazette.

73 (g) The powers conferred by this section may be exercised notwithstanding anything to the contrary in this Act and are in addition to any powers conferred by any other provision of this Act.

(h) Where in accordance with the provisions of this Act, the trustees of a public cemetery borrow money, any security given by them as such trustees shall not involve any trustee in any personal liability.

Investment

(i) The trust may invest funds received in the course of its duties under this Act in authorised investments specified in the Trustees Act 19 58 as amended from time to time.

Tenders

(j) The trust shall seek tenders and enter into contracts for the supply of any goods, machinery, equipment, materials or services etc. in accordance with the appropriate Local Government Regulations.

Financial Records

(k) The trustees of every cemetery shall keep an adequate account of all sums of money received and expended by them from the first day of October to the thirtieth day of September in the ensuing year.

(l) The trustees of every public cemetery shall ensure that an audit of the trust's finances is carried out each year by a suitably qualified person independent to the trust. The relevant Department shall have the power to specify the minimum qualifications of the person who is to carry out the audit at any particular cemetery. (The requirements of this section shall not apply to trusts who have had no financial transactions during the preceding year.)

(m) The relevant Minister shall have the power to request the Auditor General to audit the accounts of any cemetery where he feels it appropriate. The Auditor-General shall in respect of such accounts have

74 all the powers conferred on him by law now or hereafter in force relating to the inspection and auditing of public accounts and the trust shall pay to the Treasurer the expenses of such audit.

(n) The trustees of every cemetery shall transmit an audited abstract of its accounts in a form approved by the relevant Department to the Department on or before a date specified by the Department.

(o) The abstract referred to in the preceding section shall be verified by at least two trustees and the secretary or manager (sections (n) and (o) only apply to trusts which have had financial transactions during the preceding twelve months).

(p) The trustees of every cemetery shall send with such abstract of accounts a statement of the condition of the cemetery, available burial space and proposals for the works necessary or expedient in the ensuing three years in such cemetery and an estimate of the expense which will probably be incurred in effecting the same.

(q) The relevant Department shall each year cause an abstract of the accounts of all Victorian public cemeteries to be published in the Government Gazette.

(r) The relevant Minister upon examination of the abstract of accounts and the proposed works programme may direct the manner in which any trust funds may be appropriated.

(s) Every such direction shall be published in the Government Gazette and thereupon the trustees shall pay such money into a Cemetery Fund administered by the relevant Department.

(t) Money held in the Cemetery Fund may be expended only on the exercise of the Minister's and Department's duties under this Act.

CHAPTER TEN

FEES

10.1 Introduction

The condition of cemeteries and their effective administration is to a large extent conditional upon the level of fees charged.

Appropriate legislation is essential in ensuring that cemetery trusts charge appropriate fees and should give the controlling Department the powers necessary to work towards this goal. However in the end it will be the resolve of the relevant Department to provide appropriate resources to utilise these powers that will be the determinate of realistic fees being charged at all Victorian cemeteries.

10.2 Cemeteries Act 19.58

The Cemeteries Act 19 58 allows the trustees of any cemetery to make a scale of fees with the approval of the Governor-in-Council.

This scale of fees must be published in the Government Gazette and may relate to:

vaults or graves being dug or made; monuments or tombstones being erected; the inspection and copying of historical records; and cremation and the preservation or disposition of the ashes of cremated bodies.

10.3 Comments and Recommendations

10.3.1 Basis of Fees

The M.I.C.A. Committee has been informed by the Health Department that not only are many cemetery trusts loath to raise their fees to realistic levels but that when

77 they do raise their fees it is in an arbitrary fashion. The M.I.C.A. Committee is concerned at this state of affairs as it believes that the level of fees must be calculated exactly to ensure that at least a "break-even" situation is maintained. If this is not done it is inevitable that the trust1s funds will be depleted and ultimately the condition of the cemetery must decline.

The M.I.C.A. Committee proposes various recommendations to the present Act that should assist in ensuring that this 11break-even11 situation is established but would make the following brief comments about the 11user-pays11 system of setting fees that the M.I.C.A. Committee believes should be applied to cemetery trusts.

In essence the level of fees set should recoup income for the following purposes:

direct current/projected costs; capital component/establishment costs; and future maintenance costs, including an inflation element.

This income contains two components:

income to be matched against costs in the accounts in the current period; and

income to be set aside as reserves in the form of provisions for future maintenance and largely represented in the form of the trust1s investments.

The M.I.C.A. Committee is of the view that if cemetery trusts estimate the level of services they will provide during the ensuing year, and have regard to the above components of the fees that must be recouped, the resultant scale of fees should be realistic.

It is not appropriate or indeed feasible to introduce legislation that would ensure that cemetery trusts observe the above guidelines in setting fee levels. The M.I.C.A. Committee would however expect the relevant Department to provide all cemetery trusts with detalled guidelines that could be applied in calculating appropriate fee levels.

7& It is also important that any income derived from reservations for future services should be held in a trust account. The money held in such an account should be invested as an authorised trustee investment until such time as the reservation is taken up.

10.3.2 Ministerial Approval of Fees

The Cemeteries Act 1958 stipulates that Governor-in-Council approval is needed for any revision to a cemetery trust's scale of fees. In practice it is Health Department officers who scrutinise fee proposals and advise their Minister on their adequacy or not. The Minister in turn recommends the fees to the Governor-in-Council for approval.

A consideration of interstate cemetery legislation reveals that in most cases only Ministerial approval is needed. The M.I.C.A. Committee believes that the present necessity for Governor-in-Council approval of fees is in reality only "rubber stamping" the Minister's approval.

The M.I.C.A. Committee therefore recommends that in future, applications for increases in scale of fees be approved by the relevant Minister.

Recommendation

R.40 That the relevant Minister have the power to approve cemetery fees.

10.3.3 Annual Review of Fees and Report to Controlling Authority

The M.I.C.A. Committee is of the opinion that if cemetery fees are to be kept at a level that will ensure at least a "break-even" situation there must be an annual review of fees by cemetery trusts.

It would also seem necessary that it be a requirement in the new Act to submit to the relevant Department a report on this review and any proposed amendments to the scale of fees.

79 This report should relate to the factors outlined in Section 10.3.1 and should be thoroughly scrutinised by the relevant Department when assessing the adequacy of the current or proposed fees. The committee considers it appropriate for cemetery trusts to submit this report at the same time as the audited abstract of accounts.

Recommendation

R.41 That all cemetery trusts at least annualty:

review their scale of fees; and

submit t:o the relevant Department a summary of this review and any proposed amendments to the trust's scale of fees.

10.3.4 Ministerial Power to Set Fees

The M.I.C.A. Committee believes that it is essential that the relevant Minister has the power to direct cemetery trusts to charge certain fees. The present Act contains no such power but only allows the Governor-in-Council to approve of fees proposed by cemetery trusts.

This power would probably not need to be used very often as most cemetery trusts would voluntarily adopt a fee level that would be realistic. However, experience has shown that certain cemetery trusts are extremely reluctant to increase fees even when the eventual ramifications of their actions are fully explained to them.

In those situations this power would allow the relevant Minister to direct the trust to charge certain fees that would be appropriate for the trust's financial situation.

Recommendation

R.42 That the relevant Minister have the power to direct any cemetery trust to charge a specified scale of fees.

80 10.3• .5 Public Notice of Adoption of Scale of Fees

Under the provisions of the present Act any amendments to cemeteries' scales of fees agreed to by the Governor-in-Council must be placed in the Government Gazette. The M.I.C.A. Committee believes that this provision should be maintained in the revised Act as it gives the public and funeral directors notice of amendments to fees.

The M.I.C.A. Committee further recommends that the scale of fees of any cemetery should be on public display at the cemetery trust office. If the cemetery trust does not maintain an office the fees should be available for inspection at the local municipal council.

This practice has been successfully adopted in New South Wales and if adopted here should ensure that the public has ready access to cemeteries' scales of fees.

Recommendation

10.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on cemetery fees have been incorporated into the following brief for a new Act.

Fees

(a) The trustees of every cemetery shall make a scale of fees payable for the services provided by them under powers conferred on them by this Act.

(b) This scale of fees shall be reviewed at least annually and a summary of this review, together with any proposed amendments to the fees, must be sent to the relevant Department.

81 (c) No such scale of fees shall take effect until the approval in writing of the relevant Minister has been obtained.

(d) The trust shall make available a copy of the approved scale of fees at the cemetery e>ffice, or if the Trust does not maintain an office, available for inspection, at the local Municipal Offices.

(e) The relevant Department shall ensure that copies of all approved scales of fees are available at the trust office, the local council office and the relevant Department and that notice of approval of variation to scales of fees shall be advertised in the Government Gazette by the Department.

(f) The relevant Minister shall have power to set the level of fees for any of the services provided by any cemetery.

82 CHAPTER ELEVEN

RULES AND REGULATIONS

ll.l Introduction

Appropriate rules and regulations are important in ensuring that cemeteries are managed in a business-like manner. A pre-requisite for appropriate rules and regulations would appear to be periodic amendment to ensure relevancy to current conditions.

The M.I.C.A. Committee has however been informed that the rules and regulations of many Victorian cemeteries have not been changed for over a century and those that have still contain many irrelevant clauses.

For example, the Williamstown General Cemetery Rules and Regulations were gazetted on August .3, 1894, and still contain references to the speed at which horses may move within the cemetery (as do those of The Necropolis, Springvale,) and prohibit dogs, whereas the Rules and Regulations of the Memorial Park, Altona, prohibit both horses and bicycles, but permit dogs on a leash.

11.2 Cemeteries Act 1958

Under present legislation the trustees of public cemeteries have the power to make rules and regulations for the following purposes:

to enclose the cemetery with appropriate fencing, etc.; to erect gates and entrances; to set out the cemetery in a convenient manner for the burial of the dead; to establish walks, roads, shrubs, etc.; to keep the cemetery in a clean and orderly state;

to direct the position of all graves a~d vaults; to direct the depth of graves; to control the construction of coffins that can be admitted to vaults;

8.3 to stipulate appropriate standards for the covering of vaults to prevent the escape of noxious exhalations and evaporations; to protect the buildings, monuments, etc., within the cemetery from destruction or damage; to provide, manage and maintain crematoria; and to provide for the disposal of the ashes of cremated bodies.

Before any rules and regulations can come into force they must be submitted to the

Governor-~n-CouncH and be published in the Government Gazette. Any person who is guilty of a breach of any such rules and regulations is liable to a penalty of not more than $500 for every such offence.

11.3 Comments and Recommendations

11.3.1 Ministerial Approval of Rules and Regulations

As stated "in the previous section the present legislation stipulates that before the rules and regulations of any cemetery can come into force the approval of the Governor-in-Council is necessary.

The M.I.C.A. Committee contended in Chapter Ten of this Report that Governor-in Council approval of fees is in reality only "rubber stamping" the relevant Minister's approval.

The M.I.C.A. Committee believes there to be no distinction between approval of fees and rules and regulations and proposes that in a revised Cemeteries Act rules and regulations be approved by the relevant Minister.

Recommendation

R.44 That the relevant Minister have the power to approve the rules and regulations of cemeteries. 11.3.2. Public Notice of Adoption of Rules and Regulations

Under the provisions of the present Act any amendments to rules and regulations agreed to by the Governor-in-Council must be placed in the Government Gazette. The M.I.C.A. Committee believes that this provision should be maintained in the revised Act as it gives the public, funeral directors, monumental masons, etc., notice of amendments to rules and regulations.

The M.I.C.A. Committee further proposes that the rules and regulations of any cemetery should be on public display at the cemetery trust office. If the trust does not maintain an office the rules and regulations should be available for inspection at the local municipal council.

Recommendation

R.4.5 That cemetery trusts have on display a copy of their rules and regulations at their office or if no office available for inspection at the chambers of the local municipal council.

11.3.3 Formulation of Uniform Rules and Regulations

As mentioned in the introduction to this Chapter the M.I.C.A. Committee is concerned that many Victorian cemeteries have rules and regulations that have not been amended since last century.

If rules and regulations are to assist in the efficient management of cemeteries they must be relevant to current conditions. Most larger cemeteries, because of their individual situations, would prefer to formulate their own specific rules and regulations, but many of Victoria's smaller cemeteries could conceivably share a common set of rules and regulations.

The M.l.C.A. Committee believes it appropriate that the controlling Department formulate a set of uniform rules and regulations that could be adopted by all those cemeteries not wishing approval for individual rules and regulations.

85 Recommendation

R.46 That the relevant Department formulate a set of uniform rules and regulations for use by cemeteries not wishing their own specific rules and regulations.

11.3.4 Regular Review of Rules and Regulations

That many Victorian cemeteries have rules and regulations that are anachronistic is a matter· of concern to the M.I.C.A. Committee. The reason for this state of affairs would appear to be that the present Act contains no provision that ensures a regular review of a trust's rules and regulations, both by the trust and the controlling Department.

The M.I.C.A. Committee believes that if a trust's rules and regulations are to assist in the effective management of that cemetery they should be regularly reviewed. The M.I.C.A. Committee proposes that this review be conducted at least every five years and that a brief summary of that review be forwarded to the controlling Department, together with any proposed amendments.

Recommendation

11.3• .5 Ministerial Power to Direct Trust to Adopt Rules and Regulations

The M.I.C.A. Committee believes that it would be a useful addition to revised cemeteries legislation for the relevant Minister to have the power to direct a cemetery trust to adopt certain rules and regulations.

This power would probably not need to be used very often as most cemetery trusts would voluntarily adopt either the relevant Department's uniform rules and regulations or their own specific appropriate rules and regulations.

86 Experience has however shown that certain cemetery trusts will adopt neither course of action but prefer to retain their own completely out-dated rules and regulations. It is in these situations that the proposed overriding Ministerial power would be necessary.

Recommendation

R.48 That the relevant Minister have the power to direct any cemetery trust to adopt any rules and regulations he may feel appropriate.

11.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on rules and regulations have been incorporated into the following brief for a new Act.

Rules and Regulations

(a) The trustees of all cemeteries shall make rules and regulations for any of the following purposes:

for directing the position and maximum depth of graves, the position and construction of vaults, the covering of coffins so as to prevent any odours or seepage and, for protecting the monuments, enclosures, buildings, walks, trees and shrubberies etc.;

for controlling the maintenance of graves and empowering the trustees to enter into optional agreements with holders of grants of exclusive right of burial to maintain graves at the expense of such holders; (no such contract shaH run for more than five years at any one time and may only be renewed at the end of the five-year period);

for controlling, subject to the provisions of this Act, any crematorium used and conducted by the trustees;

87 for prescribing the size, type and material of any monument that may be erected in the cemetery or in any particular section thereof; and

genera11y for the doing of aU such acts and things as may be necessary or convenient for the purpose of the proper conduct of the cemetery. (Penalty for breach of any rule or regulation.)

(b) No such rule or regulation shaH come into operation until it is approved by the relevant Minister.

(c) Cemetery trusts shaH ensure that a copy of the approved rules and regulations are available for public perusal at the cemetery trust office or if this is not possible available for inspection at the office of the local municipal council.

(d) Trustees shall conduct a review of the rules and regulations at least every five years and send a summary of this review to the relevant Department, together with any proposed amendments.

(e) The relevant Minister shall have the power to direct any cemetery trust to adopt any rules and regulations he may feel appropriate.

88 CHAPTER TWELVE

RECORDS AND PLANS

12.1 Introduction

Apart from the inscriptions on the headstones in cemeteries it is the records and plans that contain most that is of historical significance. The M.I.C.A. Committee is well aware that many historical and genealogical groups are most concerned at the possible loss of this material, due for example to fires, poor storage conditions or the pressures of time.

In many cases cemetery records are the only means of researching part of the State's early history. The M.I.C.A. Committee therefore believes that the revised Cemeteries Act should impose stringent obligations on both cemetery trustees and the controlling Department to preserve this material.

12.2 Cemeteries Act 1958

The Cemeteries Act 1958 stipulates that: all burials in any public cemetery or cremations in a crematorium shall be registered in separate books kept for that purpose;

the register-book relating to burials shall distinguish in what parts of the cemetery the bodies are buried; and

such register-books shall be indexed so as to facilitate searches for entries therein.

12.3 Comments and Recommendations

12.3.1 Trust to Maintain Registers and Plan

Apart from the provisions listed in Section 12.2 the Cemeteries Act 1958 contains no provisions requiring trustees to keep:

&9 an accurate plan of the cemetery cross-referenced to the burial register;

a register of aH rights of burial granted by the trustees and ~tny assignment of such rights;

a register detailing the disposal of all cremated remains containers; and

a register of aH exhumations conducted at the cemetery detailing the disposal of the remains.

These would seem to be serious shortcomings in the Act in that it is essential that such plans or registers be kept if cemeteries are to be run in a business-like fashion. Most cemeteries would record such information and at least possess an accurate plan of the cemetery, but the M.I.C.A. Committee considers that these should become statutory obligations in 1he revised Act.

In spite of the present Act referring to the burial register being in "book 11 form, the M.I.C.A. Committee is aware that certain larger cemeteries are moving towards the storage of data on burials, etc., in computers. The M.I.C.A. Committee endorses this trend as it will allow such information to be stored and retrieved in an efficient manner. Precautions will however need to be taken to ensure the permanence of such storage.

The present Act does not specify exactly what information should be kept in the burial or cremation register. The M.I.C.A. Committee beieves that rather than listing this information in the revised Act the controlling Department should issue guidelines for use by cemetery trusts in this matter.

The information that should be recorded would include:

the name, age and late address of the person whose body has been buried or cremated; the date of burial or cremation; the date of death; the number of the grave in which the person was buried or the cremated remains placed; the name of the funeral director who conducted the service; and

90 the name of the holder of the right of burial of the grave in which the person was buried.

Recommendation

R.49 That aU cemetery trusts maintain permanent records of the foUowing information:

aU burials and cremations conducted;

an accurate plan of the cemetery cross-referenced to the burial records showing the location of all grave sites, burials and cremated remains;

all rights of burial and cremation issued by the trustees and any assignments of such rights;

the details of disposal of all cremated remains; and

all exhumations conducted at the cemetery and the details of disposal.

12.3.2 Copying of Records

In previous Reports to Parliament the M.I.C.A. Committee has drawn attention to the poor state of the records of many Victorian cemeteries. In many cases these records are inadequate or non-existent.

This situation has been brought about by a variety of factors, including inappropriate storage, with consequent loss in fires, etc., inadequate supervision and advice from the controlling Department and a lack of appreciation of the historical value of the material.

Much of this information has been lost forever, but the M.I.C.A. Committee would urge both the controlling Department and cemetery trusts to attempt to re-create lost records where it is possible to do so from the knowledge of cemetery trustees and other local people.

91 In an effort to improve this situation the M.I.C.A. Committee proposes that it be a requirement in the new Act that duplicates of all cemetery records be kept. One copy should be retained by the trust and stored in a convenient secure, fire-proof location and the other copy should be kept at the local council offices in an equally secure place. This copy should be updated at least annually.

Recommendation

R.50 That duplicate copies of all the records listed in the preceding section be located at the council offices and be updated at least annually.

12.3.3 Storage of Records at Closed Cemeteries

Where cemeteries are closed or converted to Pioneer Memorial Parks and the cemetery trust is dissolved it is imperative that the records are not lost.

The M.I.C.A. Committee therefore proposes that the revised Act contain a provision that ensures that all the records including the minutes of Trust meetings are placed with the Public Record Office in such an eventuality. This should ensure both their preservation and availability to the public.

Recommendation

12.3.4 Availability of Records to Public

With the upsurge in interest in history and genealogy, cemetery records etc., are more and more sought out by the public for research purposes. This practice has become so common that many Victorian cemeteries have gazetted a fee to cover the cost of providing this service.

92 To formalise the public's legitimate right of access to this information the M.I.C.A. Committee considers that the revised Cemeteries Act should contain a provision to ensure this. The method of access, whether it be by photocopy or viewing of the original, would need to be left to the trust's discretion. Furthermore access should be subject to payment of appropriate fees as set by cemetery regulations.

Recommendation

R.52 That the public have ready access to the burial-cremation records, etc., of the trust in accordance with the provisions of the Public Records Act 1973.

12.3.5 Register of Cemeteries and Burial Grounds

The M.I.C.A. Committee noted with interest the recommendation of the South Australian Committee reporting on the Disposai of Human Remains that a record in the form of a register should be kept of the location and status of existing cemeteries, both public and private, and the location of non-cemetery burials in remote areas.

The M.I.C.A. Committee is aware that the Health Department has extensive records of Victoria's cemeteries and burial-grounds, but believes that this should have a statutory basis in the revised Act, due to the importance of such information from a historical perspective.

These records should be kept in the form of a register and list the location, status and other relevant details of all of Victoria's public and private cemeteries and non cemetery burial grounds.

Recommendation

R.53 That the relevant Department maintain a register listing the status and location of all Victorian public and private cemeteries and non-cemetery burial grounds.

12.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on records and plans have been incorporated into the following brief for a new Cemeteries Act.

93 Records and Plans

{a) The trustees shall accurately record details and shaH provide a permanent alphabetical register of:

aU burials and cremations within the cemetery;

all rights of burial and cremation issued and any assignments of such rights;

the disposal of all cremated remains inside or outside the cemetery; and

all exhumations conducted at the cemetery detailing the disposal of the remains.

Such records should, where possible, be cross-referenced to the plan of the cemetery.

(b) Every such record or certified extract therefrom shaH be evidence of the burials, cremations, disposition of cremated remains, exhumations and rights of burial entered therein.

(c) The trustees shaH have accurately surveyed and cause a plan of the cemetery to be drawn showing the situation of each burial place in all parts of the cemetery. This plan shaH be cross-referenced to the information referred to in section (a) where possible.

{d) It shall be an offence to falsify the information referred to in sections (a) and (c).

(e) The trustees shaH keep other records as required by the relevant Department.

(f) The trustees shaH take all necessary steps to ensure that aB records are kept safe from damage and destruction and in proper condition.

94 (g) The trustees shall ensure that duplicates of all the registers and plans referred to in sub-sections (a) and (c) are kept at the local council offices and up-dated at least annually.

(h) If a cemetery is closed or converted to a Pioneer Memorial Park, and the trust dissolved, the archival records, including those referred to in sections (a) and (c), will be transferred to the Public Record Office, or a place of deposit appointed under the Public Records Act 1973, in accordance with Standards issued under section 12 of the Public Records Act 1973. Archival records of all cemeteries should be transferred in accordance with such Standards when there is no longer an administrative need for them.

(i) The trustees shall ensure that the public has access to the information contained in the registers and plans referred to in sections (a) and (c).

(j) The relevant Department shall ensure that it maintains a register listing the status and location of all Victorian public and private and non cemetery burial grounds.

(k) All cemetery records shall be disposed of in accordance with Standards issued under section 12 of the Public Records Act 1973. No cemetery records may be destroyed without the authorisation of the Keeper of Public Records.

CHAPTER THIRTEEN

RIGHTS OF BURIAL

13.1 Introduction

Victorian legislation dealing with cemeteries, from the first Act of 1854 up to and including the present legislation, has been characterised by certain omissions and defects in relation to exclusive rights of burial.

These omissions and defects include the following matters:

the lack of a clear definition of a right of burial;

ambiguities associated with the transmission or devolution of rights of burial;

no express power for trustees to grant rights of burial;

no provision for the assignment of rights of burial;

no provision for a refund of fees when a right of burial is surrendered to the trust; and

no control over trusts entering into perpetual maintenance contracts with holders of rights of burial.

The M.I.C.A. Committee proposes various amendments to the present legislation in this Chapter which will assist in the clarification of these points.

13.2 Cemeteries Act 19 58

Under Victorian cemeteries legislation a right of 'burial may be purchased from the trustees and enables the purchaser to use such right for burial of the dead, interment of cremated remains and/or the erection of monumental work.

97 The Cemeteries Act 1958 further states that:

any person who buries a body in a vault or grave, or who erects a monument on a vault or grave, in accordance with the other provisions of the Act, is entitled to retain such right of burial"for ever";

where a right of burial has been in existence for more than 25 years and has never been exercised by burial or memorialisation, and after diligent enquiry by the trustees the holder cannot be found, the trustees may cancel such right [for rights purchased before the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974-];

however at least 14- days before such a right is cancelled a notice of intention to do so shall be published by the trustees in a daily or weekly newspaper circulating generally in the district concerned;

where a right of burial is cancelled by the trustees in such a manner the person who held such a right may request the trustees to either refund the fees paid by him for such right or make an alternative site available to him;

any right of burial acquired after the commencement of the Cemeteries (Pioneer Memorial Parks) Act 1974- is subject to the condition that if it is not exercised within 25 years it may be cancelled, however upon payment of the relevant fees, a further right of burial may be purchased in respect of the ,same grave-site;

before any burial can take place in a grave-site the trustees or one of their employees, may inquire whether the owner of the exclusive right of burial of the grave concerned has consented or would not object to such interment taking place therein. The trustees may also request satisfactory evidence thereof;

any person holding a right of burial is entitled to have it cancelled by the trustees upon request; and

98 it is an offence for a person to pay, promise to pay, demand or receive or to enter into an agreement, transaction or arrangement under which he or any other person is to receive a consideration in money, or money's worth, (other than a fee, charge or consideration provided for by the Act) for or in relation to the use, consent to the use or failure to object to the use of any grave or vault in a public cemetery. (Penalty $2,000).

13.3 Comments and Recommendations

13.3.1 Definition of Right of Burial

A shortcoming in the present legislation would appear to be that the meaning of the term "right of burial" is not clarified. This has led to problems both of definition and ambiguities associated with the transmission or devolution of a right of burial upon the death of a holder of such a right.

The Act clearly contemplates and intends that a right of burial should not cease to subsist by reason of the death of the person entitled to it by its reference in Section 25 to the "sole and separate use of such person and his representatives for ever". However, the meaning of the expression "representatives" does not appear to be clear and this has cast doubt on the manner of devolution or transmission of the right upon the death of the holder.

It is the M.I.C.A. Committee's impression that, in consequence of the omissions and defects which have characterized the Victorian legislation at all times during the last one hundred and thirty years, the devolution or transmission on death of an exclusive right of burial or interment, and the exercise of such an exclusive right after the death of the person who acquired it has necessarily been treated in a flexible way and as a family matter rather than as a legal matter.

While accepting that the present situation has in most cases been workable the M.I.C.A. Committee believes that the revised legislation should provide some clarification. An examination of the interstate legislation shows that several states have specifically referred to rights of burial as being the "personal estate" of the grantee and it is thought that a similar reference in the new Cemeteries Act should clarify the status of a right of burial and its devolution on the death of the holder.

99 It is also proposed that the revised Act contain a definition of a right of burial and a definition of what "exercising" a right of burial consists of.

Recommendations

R.54 That an exclusive right of burial be considered the personal estate of the grantee.

R.55 That a "right of burial" be defined as:

R.56 That "exercising" a right of burial be defined as:

''burying an uncremated human corpse within a grave or vault, interment of cremated remains within a grave or vault or erecting a monument on a grave or vault."

13.3.2 Power for Trustees to Grant Rights of Burial

An inspection of the present legislation discloses that it contains no provision expressly conferring upon the trustees of cemeteries power to grant exclusive rights of burial or interment, although the legislation has at all times contained provisions showing that by implication such power was conferred upon the trustees.

This is an obvious but nonetheless serious flaw and the M.I.C.A. Committee proposes that revised legislation clearly gives the trustees power to grant rights of burial.

Recommendation

R.57 That the trustees have the power to grant rights of burial.

lOO 13.3.3 Standard For":~ for Right of Burial

The present Act contains no provision specifically stating that a written right of burial must be issued upon payment of the appropriate fees. However, most cemeteries do issue such a document, either as a matter of course, or upon request. Furthermore as receipts should always be issued for the transfer of funds these may be used as a substitute for a written certificate of Right of burial.

An examination of the interstate legislation also reveals that in the majority of states there is no requirement for the issue of a written right of burial. Only in one state is the actual form of the right of burial stipulated in the legislation.

13.3.4 Tenure of Exercised Rights of Burial

Under present legislation once a right of burial is exercised by burial or memorialisation it remains for the "sole and separate use of such person and his representatives for ever".

In contrast, in several States of Australia and in many parts of the world, grave-sites are sold for a strictly limited tenure. At the end of the tenure period if applicable fees are not paid the grave is re-used.

This practice offers a possible solution to the problem of providing an otherwise never ending supply of burial space. While the provision of new burial space has to date not been a major problem in Australia it is now becoming a significant planning problem in major cities. If a system of re-using cemetery land is not adopted it seems inevlt~ble that available burial space will become progressively further from city centres.

A system of re-use of graves would not of course be welcomed by everybody. Religious, historical and personal viewpoints could clash with such a proposal and its introduction into Victoria would probably be accompanied by some controversy.

The M.I.C.A. Committee does not believe it appropriate for a decision to be made on this matter until all viewpoints have been canvassed and a thorough investigation conducted. The M.I.C.A. Committee intends reporting to Parliament on this matter as soon as its other current investigations allow.

101 13.3.5 Cancellation of Unexercised Rights of Burial

The current conditions pertaining to the cancellation of unexercised rights of burial depend upon whether or not the grave-site was purchased before or after the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974.

1. Pre-Act Where an unexercised right of burial has been in existence for more than 25 years and after diligent enquiry by the trustees the holder cannot be found, the trustees may cancel such right. However, before a right is cancelled notice of intention to do so shall be published by the trustees in a daily or weekly newspaper circulating generally in the district concerned. Where the holder of the right of burial can be located the right cannot be cancelled.

Where a right of burial is cancelled by the trustees in this fashion the person who held such right may, at any time in the future, request the trustees to either refund the fees paid by him for such right, or make an alternative right avai.lable to him.

2. Post-Act Where an unexercised right of burial has been in existence for more than 25 years it may be cancelled. However, upon payment of the relevant fees, a further right of burial may be purchased in respect of the same grave-site.

The M.I.C.A. Committee endorses the provisions of the present Act and does not feel it appropriate to propose legislation that would alter the conditions applying to current rights of burial. The M.I.C.A. Committee believes that the terms of the 1974 amendment to the Act are sensible and proposes that they apply to any rights of burial purchased under the proposed Act.

Recommendation

102 under the provisions of previous legislation could only be cancelled subject to the provisions of such legislation).

13.3.6 Assignment of Rights of Burial

Unlike most other States the Victorian legislation has never contained provisions expressly authorising a person entitled to an exclusive right of burial to assign it in his lifetime, although legislation in England on which the Cemeteries Act was origina11y mode11ed, contained provisions of that kind.

The present legislation also contains no provisions for the registration of changes in the identity of the person for the time being entitled to an exclusive right of burial, although the legislation has always contemplated or recognized that there will be such changes.

The M.I.C.A. Committee is aware of a legal opinion on the extant legislation that states that because of the silence of the Act on the assignment of burial rights they can be considered as "choses or things in action" in Property Law parlance.

The significance of this is that as "choses or things in action" they can be effectively assigned by the grantee without the consent of the trustees, or giving appropriate notice of any such assignment to the trustees. (See Section 134, Property Law Act 1958):

This is an obviously unsatisfactory state of affairs as it is essential that cemetery trusts regulate, or at least be aware of, the assignment of grave-sites. The current situation also lends itself to trading in grave-sites, an equally undesirable practice.

To overcome these shortcomings in the Act the M.I.C.A. Committee proposes that the revised legislation allows for the assignment of rights of burial with the consent of the trustees. It is further proposed that the trustees keep a record of all such assignments and until registration by the trust any assignment shall have no effect.

Recommendations

R.59 That rights of burial may be assigned in writing by the holders of such rights, with the consent of the trustees.

103 R.60 That all such assignments shall be entered into a register by the trustees and until such registration, such assignments shall have no effect.

13.3.7 Surrender of Unexercised Rights of Burial

Section 27 of the Cemeteries Act 1958 allows a holder of a right of burial to relinquish a right to the trust. It makes no mention however of a refund of any fees paid by the holder to purchase such right.

Even though most cemetery trusts have adopted a policy of refunding to the holder the original fees paid, the situation has aroused some public disquiet. The basic concern is that in most cases the original fees paid would be a small fraction of the current fee and if the person's intention was to purchase another grave-site at a different cemetery there would be considerable out of pocket expenses.

The M.I.C.A. Committee shares this concern but feels that the situation is slightly different for those grave-sites purchased before and after the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974. This Act basically introduced a system of 25 years tenure on unexercised rights of burial.

For those rights of burial purchased before the introduction of the Act there is no tenure and in effect this must mean that they are in a sense more valuable than a right purchased for 25 years. This value should be recognized when such a right is surrendered to the trust.

The M.I.C.A. Committee proposes that when such rights are relinquished to the trust the holder should be entitled to a refund of the current approved fee for such a right, less a cancellation fee.

The cancellation fee should include provision for both the trust's administrative costs in cancelling the fee and the cost to the trust of maintaining that site since it was purchased. The cancellation fee should be calculated by the controlling Department and be on a sliding scale proportional to the length of time the trust has had to maintain such site (i.e. the longer the right of burial has existed the greater the cancellation fee).

104 With regards to rights purchased after the introduction of the 1974 Act they are fully exercised after 25 years if no burial has taken place therein and/or no monument has been erected on the site. Under the present Act there is no refund of fees paid after the 25 years !ind if the person wishes to renew the right he must pay the current approved fee for a further 25 year period. This provision would seem to imply that, for example, after 12t years the right is half exercised and only worth half of what was paid for it. That being the case if the right is surrendered to the trust an equitable refund would appear to the M.I.C.A. Committee to be half the current approved fee, less a cancellation fee.

Recommendation

13.3.8 Trafficking in Rights of Burial

In 1980 the Cemeteries Act 1958 was amended to the effect that it became an offence for a person to pay, promise to pay, demand or receive or to enter into an agreement, transaction or arrangement under which he or any other person is to receive a consideration in money or money's worth (other than a fee, charge or consideration provided for by the Act) for or in relation to the use, consent to the use, or failure to object to the use of any grave or vault in a public cemetery. (Penalty $2,000).

This provision is mirrored in the New South Wales legislation and was introduced to prevent the multiple purchase of grave-sites by entrepreneurs for resale at a profit. It also clearly places the sale of rights of burial in the hands of the trustees and ultimately the controlling Minister and Department.

105 The M.I.C.A. Committee endorses this provision as it believes that trafficking in grave-sites is both undesirable and conducive to corruption. The M.I.C.A. Committee does recognize however that some organisations may have a valid reason to purchase multiple grave-sites. An example would be a religious order wishing to ensure burial space for all its members. The M.I.C.A. Committee can see no harm in such multiple purchases as long as the provisions outlined in the first paragraph of this section are not breached.

It is therefore proposed that the current provisions relating to trafficking in rights of burial be replicated in the revised Act and that multiple purchases of rights of burial be allowed only on the approval of the trustees and on the condition that they are not subsequently trafficked.

It should be the controlling Department's responsibility to ensure that all cemetery trusts are issued with appropriate guidelines to assist them in assessing application for multiple purchases of grave-sites.

Recommendation

R.62 That there be no trafficking in rights of burial and multiple purchases of rights of burial only be a11owed with the approval of the trustees.

13.3.9 Maintenance Contracts

In the past many Victorian cemeteries have entered into perpetual maintenance contracts with holders of rights of burial. These contracts oblige the cemetery trusts to maintain the grave-sites forever for only the initial payment. These contracts have become a financial burden to the trusts as in almost all cases the fee charged has become insufficient to maintain the site.

One could argue that the trusts have only themselves to blame for this state of affairs by not enough care in assessing the initial fee. The M.I.C.A. Committee however believes that it is almost impossible to assess a fee for a service that is to be provided forever and believes that the trusts' real mistake was to enter into the agreements at all.

Whilst many cemetery trusts would wish the M.I.C.A. Committee to recommend that such contracts be cancelled, the M.I.C.A. Committee does not believe that this would 106 be equitable. Members of the public entered into these agreements in good faith and they should be honoured. The financial burden on trusts may decline anyway with the passing of time as families lose interest, and even knowledge of burial sites.

The M.I.C.A. Committee does however propose that legislation be introduced that would prevent trusts repeating the mistakes of the past. The proposed amendment would make it possible for trusts to enter into maintenance contracts with the holders of rights of burial for specified periods not exceeding five years at any one time.

Recommendation

R.63 That trustees may enter into contracts with the holders of rights of burial to maintain for a specified period, monuments and grave-sites in proper condition at the expense of the holders of the rights of burial. Such contracts shall not exceed five years at any one time.

13.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on rights of burial have been incorporated into the following brief for a new Act.

Rights of Burial

(a) Definitions:

(1) "right of burial" - A contract for the use of a piece of land for burial of a human corpse, interment of cremated remains and/or construction of a monument made between the trustees of a cemetery and the holder of the right of burial.

(2) "exercising" a burying an uncremated human corpse within a right of burial - grave or vault, interment of cremated remains within a grave or vault, or erecting a monument on a grave or vault.

107 (b) The trustees shall set apart such parts of the cemetery as they think fit for the purpose of granting exclusive rights of burial therein, and they may licence, subject to such conditions as determined from time to time, the exclusive right of burial in any parts of the cemetery so set apart and the right to one or more burials therein.

(c) The exclusive right of burial provided for by this Act shall be considered the personal estate of the grantee, may be bequeathed in his or her will or may be assigned in writing by him or her during his or her lifetime with the consent of the Trustees.

(d) Every such assignment shall be produced to the trustees, who shall enter in the register a record thereof and, until registration, such assignment shall have no effect.

(e) There shall be no trafficking in rights of burial and multiple purchases of rights of burial are to be allowed only on the approval of the trustees. (Penalty for contravention)

(f) An unexercised right of burial may be surrendered to the trust. Thereafter the holder of such right shall not be entitled to any right and shall be exempt from all liabilities under such grant or this Act.

(g) Every person who delivers to the trustees an unexercised right of burial for cancellation shall be entitled to a refund based on the following formula:

(1) Rights of burial purchased before the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974 - the refund will be the current approved fee, less a cancellation fee approved by the controlling Department. (2) Rights of burial purchased after the introduction of the Cemeteries (Pioneer Memorial Parks) Act 1974 - the refund will be a proportion of the current approved fee, based on the length of tenure remaining, less a cancellation fee approved by the controlling Department.

(h) The trustees may enter into a contract with the holder of the right of burial to maintain, for a specified period, monuments and the grave-site, in proper

108 condition at the expense of the holder of the right of burial not exceeding five years at any one time.

(i) The purchase of a right of burial shall save as otherwise expressly provided in this Act entitle the holder to have maintained at his own expense such vault, grave or monument according to the terms of such permission to and for the sole and separate use of the holder of the right of burial.

(j) Any right of burial purchased under the provisions of this Act shall be subject to cancellation after 25 years of the acquisition thereof if it has not been exercised. However before such cancellation the persoR who was the holder thereof may, if the person so desires and upon payment of the relevant fees, acquire a further exclusive right under this Act in respect of the place of burial concerned.

(k) Unexercised rights of burial purchased under the provisions of previous legislation may only be cancelled subject to the provisions of such legislation.

109

CHAPTER FOURTEEN

MEMORIAL WORK

14.1 Introduction

Monuments not only contain most of the history in cemeteries they also seem to be the cause of many problems for cemetery trustees associated with their maintenance. The present legislation makes monuments the sole responsibility of the holders of the right of burial, however in reality in many cases the holders either can't be located, or have no real interest in the monuments.

This leaves the trustees to find solutions to the problems of maintaining in good order what are in many cases unsafe and unsightly monuments. Just how serious· the problem can become was demonstrated in 1973 when a young child was killed because he accidentally dislodged a large unsafe monument at a Victorian cemetery.

The provisions of the Cemeteries Act 195& relating to memorial work have in most instances worked quite well, however, they have on occasion led to disagreements between monumental masons and cemetery trusts. The M.l.C.A. Committee has formulated the recommendations in this chapter in an effort to ease the occasional tensions and make the system more efficient for cemetery administrators, monumental masons and the public.

14.2 Cemeteries Act 1958

In relation to memorial work the Cemeteries Act 195& stipulates that:

upon payment of the relevant fees the trustees, or an authorized trust officer, may permit any monument or tombstone to be erected in any part of the cemetery that they think proper;

before such a permit is issued the applicant shall submit a plan of the monument or tombstone to the trustees, or an authorized trust officer, who shall be at liberty to withhold such permission if the monument appears to be inappropriate, unsafe or dangerous;

111 where a person holds a right of burial such a person shall maintain at his expense any monumental work on the site in a state "unlikely to cause danger to life or limb and in thorough repair and proper condition";

where in the opinion of the trustees any monumental work on a grave site is in a state "likely to cause danger to life or limb" or is not in "thorough repair or proper condition", the trustees may by notice in writing to the holder of the right of burial require such person to remove the danger, or make the repairs specified in the notice;

in the event of a person failing to comply with the requirements of such a notice within 14 days the trustees may repair the monumental work, or with the approval of the Health Department, remove the monumental work and may recover the costs of so doing from the person to whom the notice was sent before a Magistrates' Court as a civil debt recoverable summarily;

where after "diligent enquiry" the trustees are unable to discover the owner of such a grave they may, with the consent of the Health Department, repair or remove such monumental work;

the trustees shall determine and fix the position of any proposed monument according to its "description, size and character" having reference to the trust's general plan for ornamenting the cemetery in an appropriate fashion; and

where any monumental work has been erected contrary to the terms and conditions upon which permission was granted, or the terms and conditions as well as the regulations of the cemetery have not been complied with, the trustees may remove such work.

14.3 Comments and Recommendations

14.3.1 Memorial Permits

The Cemeteries Act 1958 requires that before a cemetery trust gives permission for

112 the erection of a monument the applicant must submit a plan of it to the trustees. They shall be at liberty to withhold their permission if the monument appears to them to be "inappropriate, unsafe or dangerous".

The M.I.C.A. Committee believes that such a provision is essential if there is to be control of the increasing size and varied design of monuments. This control is necessary as the erection of unsound monuments poses problems for:

the safety of the public and more particularly the cemetery employees;

the long term appearance of monuments; and

the long term cost of maintaining the monuments.

The M.I.C.A. Committee endorses the general intention of this legislation but believes that its wording is somewhat loose. The words "inappropriate, unsafe or dangerous" are difficult to define and have been criticised by monumental masons as their ambiguity leads to vastly different interpretations by different cemetery trusts. This in turn leads to situations where a monument is approved at one cemetery but the identical monument is not allowed at another cemetery.

The M.I.C.A. Committee considered the possibility of introducing a compulsory state wide set of minimum standards for monumental work to overcome this problem. After some consideration however the M.I.C.A. Committee rejected this option as it believes such a code would:

be difficult to design due to the increasing multiplicity of monumental designs;

erode the trustees discretion to set their own standards for the appearance of the cemetery; and

ignore the effect of different soil conditions, etc., on the appropriateness of different monuments.

The M.I.C.A. Committee is of the belief that an improvement to the present system would be that trusts formulate their own minimum standards for types of monumental

113 work that are permissible at the cemetery. These standards should cover the design, erection and maintenance of the monument. They could be submitted to the controHing Department for approval and form part of the rules and regulations of the cemetery.

This device would ensure that the standards were both reasonable and freely available to monumental masons. It would then simply be a matter for the trust to decide whether or not a particular proposal for a monument complied with the standards

11 rather than deciding if the monument was "inappropriate, unsafe or dangerous •

Most larger cemetery trusts and those cemeteries .whose design is based on the erection of only certain types of monuments would probably wish to seek approval for their own particular standards. Many smaller cemetery trusts would however have no particular requirements and could use a set of uniform minimum standards formulated by the controlling Department.

These minimum standards could form part of the uniform rules and regulations recommended in Chapter 11. They could be formulated by the controUing Department in conjunction with the Cemeteries and Crematoria Association of Victoria, the Master Stone Masons' Association of Victoria and other relevant organizations.

Recommendations

R.65 That an applicant for memorial work shall submit a full plan of the monument to the trustees who may accept or reject it depending on its compliance with the trust's approved minimum standards.

14.3.2 Trust Control of Placement of Monuments

Present legislation gives the trustees the power to determine and fix the position of any proposed monument according to its "description, size and character" having

114 reference to the trust's general plan for ornamenting the cemetery in an appropriate fashion.The Master Stone Masons' Association of Victoria in a submission to the M.I.C.A. Committee has criticised this provision as it believes that it enables cemetery trusts to discriminate against their members and the public.

One concern of the stone masons is that many cemeteries are moving towards a "lawn" type atmosphere with only very limited memorialisation which arguably effects the masons' income. Another concern is that the trend towards fewer and smaller monuments in cemeteries discriminates against various religious, cultural, ethnic and historical attitudes towards memoriaJisation.

Whilst sympathising with the Association's concerns the M.I.C.A. Committee believes that the trust's power to fix and determine the position of any monument should be retained in the revised legislation. The haphazard placement of different types of memorials must increase the maintenance and operating costs of cemeteries. The development of cemeteries such as Memorial Park, Altona, which is an open parkland setting without traditional headstone memorialisation, has both aesthetic and cost advantages and would not be possible without the provisions of the present Act. The M.I.C.A. Committee also acknowledges the growing demand to establish grave-sites which are easy to maintain and accordingly less expensive for the holders of the rights of burial.

In selecting a site for burial the public would obviously need to consider the limitations placed on monumental work in any particular cemetery. As in the majority of cemeteries traditional headstones will continue the M.I.C.A. Committee does not believe the public's freedom of choice to select a particular type of monument will be affected.

The M.I.C.A. Committee is also of the view that both the trustees and the controlling Department would always be mindful of public demand for particular styles of monumental work.

14.3.3 Trust Power to Remove Unauthorised Monuments

The Cemeteries Act 1958 gives trustees the power to remove any monuments that

115 have been erected without the trustees' approval, or which have not complied with the terms of such approval.

The M.I.C.A. Committee supports this legislation as it believes that such a provision is integral to effective cemetery management. It is however felt that the holder of the right of burial of the grave concerned should be given both notice in writing of any intended removal of monumental work and a reasonable length of time in which to conduct suitable modifications or removal.

This mechanism would protect holders of rights of burial from the consequences of possible negligence by monumental masons, etc. The M.I.C.A. Committee is also of the view that in cases where the work has either not been removed or modified the trust should have the power to remove the offending work. The costs of such an exercise should be recoverable by the trustees from the holder of the right of burial.

Recommendation

must be modified as stipulated in the letter; or removed.

In cases where the trust's directions are not complied with the trust's costs in removing the monument shall be recoverable from the holder of the right of burial.

14.3.4 Trust Power to Remove Unsafe or Unsightly Monuments

The M.I.C.A. Committee largely endorses the provisions of the present Act relating to the removal of unsafe or unsightly monuments. These provisions state that:

where a person holds a right of bur.ial such person shall maintain at his expense any monumental work on the site in a state "unlikely to cause danger to life or limb and in thorough repair and proper condition";

116 where in the opinion of the trustees any monumental work on a grave site is in a state "likely to cause danger to life or limb", or is not in "thorough repair or proper condition", the trustees may by notice in writing to the holder of the right of burial require such person to remove the danger or make the repairs specified in the notice;

in the event of a person failing to comply with the requirements of such a notice within 14 days the trustees may repair the monumental work or with the approval of the Health Department remove the monumental work and may recover the costs of so doing from the person to whom the notice was sent before a Magistrates' Court as a civil debt recoverable summarily; and

where after diligent enquiry the trustees are unable to discover the owner of such a grave they may, with the consent of the Health Department, repair or remove such monumental work.

The concerns of the M.I.C.A. Committee in this matter, are that:

the period of 14 days within which the holder of the right of burial must make the necessary repairs to the monument appears somewhat short; and

the phrases "likely to cause danger to life or limb" and "in thorough repair and proper condition" are rather old-fashioned and difficult to define.

The M.I.C.A. Committee therefore recommends that the holder of the right of burial be given one month after notification to conduct the necessary repairs and that these provisions relate to "unsafe or unkempt" monuments.

Recommendation

R.67 That the holders of rights of burial in grave-sites upon which the trustees believe there to be "unsafe or unkempt" monuments be given a period of one month after notification within which to make the necessary repairs. (If the repairs are not 117 made the monument may be repaired or with the approval of the relevant Department removed).

14.3.5 Cremation Memorials

The commemoration of cremated remains by memorialisation in niche-wa11s, rose gardens, memorial trees and shrubs, etc., has grown in popularity with the increasing cremation rate. It offers an attractive means of memorialisation for those people who have opted for the relative simplicity of cremation.

In the past most cremation memorials were sold in perpetuity, or forever. Notwithstanding the efforts of trustees to calculate realistic fees for such memorials, with hindsight it appears inevitable that such fees could not possibly be adequate to maintain a niche-wall or rose-garden forever.

The result has been that many trustees are now faced with niche-walls, etc., which are in a poor state of repair, but which the trust must maintain forever. Such repairs will eventually begin to deplete the investment accounts of cemetery trusts as the money that was initially obtained from the sale of the memorials is expended.

As a result of the silence of the present legislation on the subject of tenure of cremation memorials many trusts have been able to adopt the realistic practice of placing a tenure period on such memorials. In most cases this has been for 25 years. This has allowed the trusts to more precisely calculate appropriate fees to maintain the memorial in good order for the length of the tenure.

The practice has not however been without some public dissatisfaction. Certain people appear to equate cremation memorials with memorials on grave-sites which have no tenure. These people believe that the trusts' practice of placing a time limit on cremation memorials is either unfair, dishonest and/or illegal.

The M.I.C.A. Committee has some sympathy for such a point of view but believes that it is based on a lack of background knowledge of the high cost of maintaining cremation memorials, for lengthy periods. The M.I.C.A. Committee supports the concept of limited tenure for cremation memorials·and believes that it should be based on the following principles:

118 (1) The maximum permitted period of tenure should be 25 years extendable at any time to a maximum of 25 years from the date of payment of the appropriate fee.

(2) The relevant Minister should approve the period of tenure for any particular cremation memorial.

(3) Where it is intended to re-develop the memorial feature renewals/extensions may be withheld with the offer of relocation to an alternative memorial.

(4) On expiry of the license period licensees should be given the opportunity to extend. A minimum period of grace should be allowed.

(5) Public announcements to be made when· the first licenses near expiry.

(6) The Trust shall attempt to contact the licensee.

(7) Where the license lapses the plaque will be removed and offered to the next-of-kin and niche-walls and other memorialization recycled. The ashes will be removed and scattered except where they are in bio degradable containers in the ground.

(8) Cremation memorials may be then re-used.

(9) Provision to be made for historically important cremation memorials.

(I 0) An alternative form of memorialisation such as a common plaque or Book of Remembrance may be used as a cheaper alternative to renewing the existing memorial.

The M.I.C.A. Committee does not feel it appropriate for cremation memorials that have been purchased "for ever" or "in perpetuity" to be cancelled by the provision of any new legislation. The M.I.C.A. Committee realises that such an action would free many cemetery trusts from an onerous financial burden, but does not believe it would be fair on those members of the public who entered into such contracts in good faith.

119 The M.I.C.A. Committee however proposes that all new cremation memorials with the exception of the Book of Remembrance be sold on a limited tenure basis with a maximum of 25 years with the option of further renewals upon payment of the appropriate fee. It is also proposed that the length of tenure of any particular cremation memorial be submitted for the approval of the relevant Minister in conjunction with the fees for such a service.

Recommendation

R.68 That all cremation memorials, except for the Book of Remembrance, be sold on a limited tenure basis with a maximum period of 25 years with the option of further renewals upon payment of the appropriate fee.

R.69 That the length of tenure of any particular cremation memorial be submitted to the relevant Minister for approval.

14.3.6 Historic Monuments

A general interpretation of the Cemeteries Act 1958 is that it is the responsibility of the holder of the right of burial or his executors/heirs to maintain in good repair any monument on the site. However, in many cases the holder of the right of burial can't be found.

Monuments of great historical value may be in a state of disrepair yet present legislation does not allow trusts to expend funds on the monuments even if the trusts were in a financial position to do so.

Community Groups, historical and other organisations, have already assisted in the preservation of noted graves in several cemeteries and of "Pioneer" graves located within old closed cemeteries. The M.I.C.A. Committee supports these efforts as it believes that it is an important contribution to our national heritage.

The M.I.C.A. Committee is also of the view that the trustees should have the power to expend their own funds on the preservation of historically significant monuments. The M.I.C.A. Committee has proposed that the trustees.be given this power in Chapter 8 of this Report and would reiterate that proposal here. It should of course be left to the discretion of the trustees to undertake any restoration work as appropriate.

120 Recommendation

R.70 That cemetery trusts have the power, at their discretion, to expend funds on the preservation of historicaJJy significant monuments.

14.4 Brief for Revised Act

The M.I.C.A. Committee's recommendations on memorial work have been incorporated into the following brief for a revised Cemeteries Act.

Memorial Work

(a) The trustees shall formulate standards for the design, erection and maintenance of memorial work permitted at the cemetery.

(b) These standards shall be submitted to the relevant Minister for his approval and form part of the rules and regulations of the cemetery.

(c) Where any person desires to erect or place any monument in any part of a cemetery, the person who is entitled to execute the right of burial shall before permission is given, make written application with the prescribed fee and submit a plan of the monument proposed to be erected or placed to the trustees of such cemetery, who may approve or withhold their permission, or revoke such approval and may prevent the erection or placing of any monument which in the opinion of the trustees appears not to comply with the rules and regulations of the cemetery.

(d) Where any monument has been placed without authority of the trust or erected contrary to the terms and conditions on which permission for the same was granted, or such terms and conditions and the regulations of the cemetery have not been complied with, the trustees may order in writing the holder of the right of burial to alter the monument. If this is not done within one month, the trustees may remove the monument and the costs of removal shall be recovered from the holder of the right of burial as a civil debt recoverable summarily.

121 (e) The holder of the right of burial shall ensure that any monumental work erected on the site is not in an unsafe or unkempt condition. Should this not be done, the trustees may by notice in writing require the holder of the right of burial to repair or remove the structure.

(f) In the event of a person failing to comply with the requirements of any certified notice given under sub-section (e) within one month the trustees may:

(1) repair the monument to which the notice relates; or

(2) with the consent of the relevant Department take down and remove any monument -

and may recover the cost and expenses of so doing from the person to whom the notice was sent before a Magistrates' Court as a civil debt recoverable summarily.

(g) Where in the opinion of the trustees any monument is in a state likely to cause imminent danger to the public, the trustees shall have power to remove the monument forthwith. The trustees shall cause a photograph of the monument to be taken before removing it and immediately notify in writing the holder of the right of burial. The photograph will become part of cemetery records and should be treated as such.

(h) Where after diligent inquiry the trustees are unable to discover the whereabouts of the holder of the right of burial in the grave concerned or where to the trustees there appears to be no such holder the trustees may repair the monument or with the approval of the relevant Minister remove the monument. Once the monument is removed it shall be kept for 12 months to give the holders of Right of Burial the opportunity to make arrangements for its disposal.

(i) In this section any act which may be performed by the trustees may be performed by an officer of the trustees authorized on that behalf by the trustees.

122 (j) All cremation memorials sold under this Act shall be subject to limited tenure with a maximum period of 25 years. The length and terms of tenure must have the prior approval in writing of the relevant Minister.

123

CHAP.TER FIFTEEN

RELIGIOUS CONSIDERATIONS

1.5.1 Introduction

The connection between religion and the burial of the dead is evident and has greatly affected the present cemeteries legislation, and consequently the method in which cemeteries are administered.

The system of "trusts" being responsible for cemeteries was initially largely based on the various religious denominations nominating members of their congregation to serve as trustees of cemeteries. They accepted this responsibility as a form of community and religious service, and took a particular interest in and responsibility for, the portions of the cemetery set aside for their particular denomination.

Many Victorian cemeteries still operate on this basis but there has also been a strong trend towards a more non-denominational administration of cemeteries, with trustees being selected because of their particular skills and abilities rather than their religious preference.

While the M.I.C.A. Committee recognises both the contribution that the church has made to cemetery management and the importance of safe-guarding religious practices in the burial of the dead, it believes that present legislation requires some modification to make it appropriate in these changed times. The M.I.C.A. Committee will recommend various amendments to the Act that should meet both these goals.

1.5.2 Cemeteries Act 19.58

The provisions of the Cemeteries Act 195& stipulate that:

the trustees of a cemetery shall not by any rule or regulation or action interfere directly or indirectly with the performance of any religious ceremony in the burial of the dead, or with the original distribution of land within the cemetery amongst distinct religious denominations;

125 the Minister of any denomination may have free access and admission to the portion of the cemetery set aside for such denomination at all times as he thinks fit;

such Minister shall freely exercise his spiritual functions within that area of the cemetery without any hindrance or disturbance by the trustees of the cemetery or any person;

the members of any religious denomination may erect, at their own expense, a mortuary church or chapel for the use of the members of the congregation in the burial of the dead; and

such a mortuary church can only be erected with the approval of the trustees after the trustees have examined a plan of the proposed works, and within the area of the cemetery set aside for that denomination.

15.3 Comments and Recommendations

15.3.1 Interference with the Performance of Religious Ceremonies

Section 15 of the Cemeteries Act 1958 states in part that "the trustees of any such cemetery shall not by any rule or regulation or any act matter or thing at any time interfere directly or indirectly with the performance of any religious ceremony in the burial of the dead according to the usage of the communion to which the deceased has belonged".

This provision has the potential to cause problems for cemetery administrators in that "the performance of any religious ceremony" could quite conceivably clash with the rules and regulations of the cemetery, its effective management and indeed the provisions of the Act.

An example would be the Moslem burial practice of burying their dead without a coffin and wrapped in a cotton shroud. Burying the body without a coffin is possible under present legislation, but would breach the rules and regulations of many cemeteries.

126 The M.I.C.A. Committee believes that this provision, which religious denominations have always enjoyed, should continue in the revised legislation but should be modified to the extent that the performance of any religious ceremony should not be allowed to interfere with the proper management of the cemetery.

There would also seem to be a need for trustees to have the power to exempt certain groups from the requirements of the cemetery's rules and regulations in the cases where the rules and regulations would prevent the performance of a religious ceremony. Again this exemption should only be granted if the religious ceremony would not detract from the proper management of the cemetery.

Recommendations

R.71 That trustees shall not by any rule or regulation interfere directly or indirectly with the performance of any religious ceremony in the disposal of the dead subject to the requirements of public health and decency and the proper management of the cemetery.

15.3.2 Minister of Religion to have Free Access to Cemetery

Section 16 of the Cemeteries Act 1958 grants Ministers of religion free access to the portion of the cemetery set aside for their particular religions. It also allows such Ministers to "freely exercise their spiritual functions therein without any hindrance or disturbance by the trustees of the said cemetery or any person whomsoever".

Both these powers would seem to the M.I.C.A. Committee to be unnecessary in the revised legislation. The latter because such f~eedom has been guaranteed in the proposed amendments in 15.3.1. The former because any member of the public has free access to the burial areas of the cemetery in conformity with the rules and regulations of the cemetery.

127 15.3.3 Denominational Areas in Cemetery

Present legislation states that trustees shall not interfere with the original distribution of land within the cemetery to various distinct religious denominations.

This provision has been the subject of complaint by different trusts in that it is felt that it is too restrictive. They argue that it impedes the viable operation of the cemetery by locking up areas for the sole use of members of a particular religious denomination, when there may be no demand for burial space from such a group.

While the legislation may well be somewhat restrictive the M.I.C.A. Committee has noted that Western Australian legislation, up until quite recently, gave the leaders of recognised religions the right to demand areas of cemeteries for the use of their congregations. This right has been partially abrogated by the present necessity for Governor-in-Council approval.

The M.J.C.A. Committee however recognises the apparent rigidity of the existing Act and proposes that trusts should be able to amend the internal divisions of the cemetery to meet present demands. They should not be restricted by boundaries drawn up during the last century based on religious populations of that era.

The M.I.C.A. Committee feels it appropriate that the trust should first discuss any proposed amendments to the internal divisions of the cemetery with the religious denominations involved and the relevant Department. The relevant Department should give approval for such a course of action before it is implemented.

Recommendation

R.73 That the trustees have the power, with the written approval of the relevant Department, to amend the internal divisions of the cemetery amongst separate denominational groups.

15.3.4 Mortuary Church

Section 29 of the Cemeteries Act 1958 states that the members of any religious denomination may erect at their own expense a mortuary church or chapel for the use of the members of their congregation in the burial of the dead.

128 It also stipulates that such a mortuary church can only be erected with the approval of the trustees after a plan of the proposed works has been examined. The church can only be constructed within the area of the cemetery set aside for that denomination.

The M.I.C.A. Committee is aware that the general trend is away from this sort of proposal and proposes that the current provisions relating to this matter be omitted from future legislation.

1.5.4 Brief for Revised Act

The M.l.C.A. Committee's recommendations on religious considerations have been incorporated into the following brief for a new Act.

Religious Considerations

(a) The trustees shall not by any rule or regulation interfere directly or indirectly with the performance of any religious ceremony in the disposal of the dead subject to the requirements of public health and decency and the proper management of the cemetery.

(b) The trustees shall have the power to exempt certain religious groups from the requirements of the rules and regulations of the cemetery to facilitate the performance of religious ceremonies that do not contravene the requirements of public health and decency and the proper management of the cemetery.

(c) The trustees shall have the power, with the written approval of the relevant Department, to amend the internal divisions of the cemetery amongst separate denominational groups.

129

CHAPTER SIXTEEN

DISPOSAL

16.1 Introduction

From its investigation of the Cemeteries Act 1958 it is the M.I.C.A. Committee's belief that the present legislation does not adequately set down guidelines for the disposal of the dead.

The current Act would appear to have shortcomings in the following areas:

no implicit duty on any person to dispose of the dead;

a lack of clarification of acceptable methods and places of disposal;

no direct statement of the public's right to dispense with the services of a funeral director in arranging a funeral;

no definition of what constitutes cremated remains and their legal status; and

the silence of the Act on whether or not the total volume of cremated remains recovered should be made available for collection.

This chapter of the Report contains various proposed amendments to current legislation which should assist in clarifying these matters.

16.2 Cemeteries Act 1958

The Cemeteries Act 1958 contains no direct provision that imposes a duty to dispose of the dead either by burial or cremation.

Section 47 of the Act indirectly implies such a responsibility by stating that any person who buries a dead body elsewhere than in a cemetery or in land specified by the Health

131 Department will be liable to a penalty of not more than $2,000.Sections 79 and 80 mirror this provision with regards to cremation by stating that a person who cremates a body in any place outside a cemetery without Health Department approval shall be liable to a penalty of not more than $5,000 or to imprisonment for a term of not more than five years.

Section 19 of the Act states that no corpse can be buried in a public cemetery until a permit has been signed by an officer of the cemetery trust with a penalty of not more than $2,000 for contravention.

Section 75 of the Act allows government authorities to arrange for the cremation of the body of any prisoner who died in jail whose consent had been given in writing to such a course of action.

16.3 Comments and Recommendations

16.3.1 Responsibility to Dispose of Bodies

That the Cemeteries Act 1958 contains no provisions that imply any responsibility on any person to dispose of dead bodies would appear to be a serious shortcoming in an Act that purports to concern the disposal of the dead.

The M.I.C.A. Committee believes that a revised Cemeteries Act should contain a provision that clearly creates a responsibility on the executor of the will of the deceased or the next of kin of the deceased to dispose of the body pursuant to legal requirements. This responsibility should only apply where such person is aware of the death and capable of arranging the disposal.

The disposal should be by:

burial in a public or private cemetery;

cremation in an approved crematorium; or

dispatch of the body out of Victoria for lawful disposal elsewhere.

132 The M.I.C.A. Committee believes that the disposal should betoria the 5 working days would be measured from the time of arrival of the body in Victoria. There would need to be power for the relevant Minister to vary the time limit in certain situations.

Recommendation

16.3.2 Burial at Sea

The present Cemeteries Act does not nominate burial at sea as an approved form of disposal of the dead. In some instances this form of disposal is approved of by the Commonwealth Government and is co-ordinated by the Marine Operations Centre of the Department of Transport.

The M.I.C.A. Committee is aware that the Health Department occasionally receives requests for this form of burial. While agreeing in principle with this form of disposal the M.I.C.A. Committee believes the following matters to be relevant:

problems associated with storing the body until appropriate shipping is available;

possible health risks where death was caused by infectious disease;

arranging for suitable weighting and wrapping of the body; and

public sensitivity to such a use of the oceans.

The M.I.C.A. Committee therefore proposes that burial at sea not be a permitted form of disposal in the revised Cemeteries Act. The M.I.C.A. Committee believes that the

133 scattering of cremated remains at sea is a sensible alternative. The families of those persons wishing to be buried at sea could of course approach the Commonwealth Government for approval.

Recommendation

R.75 That burial at sea not be a permitted form of disposal of the dead.

16.3.3 Burials on Private Property

Under the provisions of Section 47 of the present Act it is possible for a person to receive Health Department approval for the burial of a person on private property.

The Health Department has however adopted a policy of refusing to grant such approval for the following reasons:

lack of adequate burial records;

no security of tenure on the land with the possibility of future adverse land usage (e.g. building site);

difficulties in ensuring compliance with the requirements of the Registration of Births, Deaths and Marriage Act 1959; and

difficulties in ensuring compliance with the Cemeteries Act 1958 (e.g. depth of burial requirements).

These problems are overcome by ensuring that bodies are buried in public or private cemeteries and this would seem preferable to having graves arbitrarily spread over the countryside.

The M.I.C.A. Committee is therefore of the opinion that the provisions of the present Act allowing bodies to be buried on private property should be repealed. However the M.I.C.A. Committee believes that the possibility of burying cremated remains on private property is a viable alternative.

134 Recommendation

R.76 That burials on private property not be allowed.

16.3.4 Penalty for Burial in Private Property

The present Act stipulates a penalty of not more than $2,000 for burying a body elsewhere than in a cemetery without appro':'al. It does not however contain any power to force the reburial of the body in a cemetery.

The M.I.C.A. Committee believes that the penalty of $2,000 is not adequate as a deterrent to burying bodies on private property. In many instances burying a body in a public cemetery would cost at least $2,000 when all the costs were included.

The M.I.C.A. Committee therefore proposes that the revised Cemeteries Act should not only contain an increased penalty for burying a body on private property, but also give the power to the relevant Department to order the reburial or cremation of any body at the cost of the person who caused the interment.

Recommendation

R.77 That the relevant Minister have the power to order the reburial or cremation of any body buried on private property. The person who caused the interment will be liable for all costs as well as a severe penalty.

16.3• .5 Status of Cremated Remains

The Cemeteries Act 1958 does not define, clarify the status of, or regulate the method of disposal of, cremated remains.

The M.I.C.A. Committee believes that the revised Cemeteries Act should contain provisions that:

define cremated remains;

135 clarify who is entitled to collect them after cremation and within what period;

nominate the method of disposal of the cremated remains within the cemetery if other arrangements are not made;

clarify their legal status; and

ensure that the total volume of cremated remains recovered is made available for collection after cremation (at present this is not always the case).

Recommendation

16.3.6 Burials Without Funeral Directors

Submissions have been made to the M.I.C.A. Committee expressing concern at the misconceived necessity of using funeral directors to arrange burials and cremations. These submissions have expressed the desire that the next of kin of the deceased should be allowed to make all the necessary arrangements themselves.

These arrangements would include:

registering the death pursuant to the Registration of Births, Deaths and Marriages Act 1959;

storing the body at home until burial or cremation was arranged;

either buying or building a coffin;

making the necessary arrangements for burial or cremation with the cemetery trust;

136 transporting the coffin to the cemetery.

These submissions are to a certain extent ill-founded because the present Cemeteries Act contains no provisions that prevent a person from arranging the funeral of a family member. However, it is probably true to say that such people would not receive a great deal of encouragement from cemetery trusts, government departments, funeral directors and coffin manufacturers, in such a venture.

The M.I.C.A. Committee believes that the public should have the right to arrange the funerals of family members without the assistance of funeral directors as long as all the requirements of the Cemeteries Act 1958 and the Registration of Births, Deaths and Marriages Act 1959 are complied with. Commonly accepted standards of public decency should at all times be upheld.

The M.I.C.A. Committee would be most concerned at cemetery trusts creating difficulties for people in this situation and would expect the relevant Department to take appropriate action if such situation arose.

To further clarify the trust's responsibility in this situation, the M.I.C.A. Committee proposes an amendment to the Act that makes it obligatory for a trust to dispose of a body upon payment of the approved fees and being in conformity with the revised Act irrespective of the involvement of a funeral director.

Recommendation

R.79 That the trustees of a public cemetery shall not refuse to dispose of a body subject to the payment of approved fees and in conformity with the revised Cemeteries Act.

16.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on ti-)e disposal of the dead have been incorporated into the following brief for a new Act.

137 Disposal

(a) It shall be the duty of the executor of the will of the deceased or the next-of kin (where such person is aware of the death and capable of arranging disposal) or the Coroner to dispose of a human corpse within five working days from the date of death (where the deceased died in Victoria) by burial only in a public or private cemetery or by cremation in a crematorium or by dispatch out of Victoria.

Where the deceased died outside Victoria, disposal shall be effected as above within five working days of the human corpse entering Victoria. Exceptions with or without conditions should be made only with the approval of the relevant Minister or by Coroner's Order. (Penalty for contravention.)

(b) All burials shall take place in a public or private cemetery. Every person who buries or assists at the burial of any human corpse elsewhere shall be liable to a penalty.

(c) The relevant Minister shall have the power to order the exhumation and re burial or cremation in a public cemetery, approved private cemetery or crematorium of any human corpse buried contrary to the provisions of (b) with the costs of such to be recoverable from the person or persons who caused the interment.

(d) Except for overriding reasons of public health and with the authorization of the Minister no person shall cremate any human remains outside a crematorium. (Penalty for contravention.)

(e) The trustees of a public cemetery shall not refuse to dispose of a human corpse subject to the payment of approved fees as applicable and being in conformity with this Act and in accordance with the Rules and Regulations of the cemetery.

(f) After the cremation of a deceased person the cremated remains recovered

shall be given into the charge of the pe~son nominated by the applicant for cremation of the deceased on payment of the approved fee. If not, they shall be retained by the crematorium for a period of at least three months and in

138 the absence of any special arrangement for their burial or preservation, shall be interred in a burial ground or in land adjoining the crematorium reserved for the burial of cremated remains or may be scattered on the area. Two weeks notice must be given to the person who applied for the cremation before the remains are interred or scattered.

(g) Cremated remains recovered and disposed of within the grounds of the cemetery pursuant to sub-section (f) shall become the property of the trust. Cremated remains placed in grave-sites and cremation memorials become the property of the owners of such sites and may be removed with the prior approval in writing of the cemetery trust. (Penalty for contravention.)

(h) It shall be the responsibility of the cemetery trust to ensure that the total residual ash recovered from a cremation furnace is available for collection or memorialisation after the cremation.

(i) It shaH only be lawful for a cemetery trust to supply less than the total residual ash recovered from a cremation furnace with the written consent of the applicant for cremation.

{j) For the purposes of this Act cremated remains may be defined as: "residual ash after cremation of a human corpse recovered from the cremator."

139

CHAPTER SEVENTEEN

DOCUMENTATION

17.1 Introduction

The documentation necessary before burial or cremation is allowed has been the subject of many submissions to the M.I.C.A. Committee and is evidently in need of major review.

The submissions have highlighted the following matters:

major inconsistencies between the Cemeteries Act 1958 and other Victorian legislation dealing with the disposal of human remains;

discrepancies between documentation requirements for burial and cremation that appear to have no justification;

complex forms that are hard to interpret and are of doubtful relevance; and

the non-accountability of both cremation and death certificates.

The M.I.C.A. Committee is keen to simplify and deregulate the matter of documentation but is of course anxious to ensure that sufficient safeguards are retained in the system to prevent unauthorised or illegal disposal of bodies.

17.2 Cemeteries Act 1958

In respect of burials the Cemeteries Act 1958 imposes the condition that no body shall be buried in a cemetery until a permit has been signed by an officer of the trustees, authorised on that behalf by the trustees and the Health Department.

Such an officer shall sign or refuse to sign any such permit in accordance with any regulation made by the Governor-in-Council and directions given by the trustees.

141 However, in no case can such officer sign the permit until he has sighted:

a notice in the form prescribed pursuant to S.l9(l)(b) of the Registration of Births, Deaths and Marriages Act 1959 signed by a legally qualified medical practitioner (death certificate); or

a certificate of an order for burial in the form prescribed under Section 23 of the Coroner's Act 1985 permitting burial (Coroner's Order); or

a statutory declaration made by the funeral director, or other person conducting the burial, stating that owing to special circumstances it is not possible for a death certificate duly signed by a legally qualified medical practitioner to be produced at the time of burial (in this case the officer of the trustees must immediately give notice in writing of the signing of the permit to the Minister for Health).

Any person who in contravention of these provisions buries a body or caused a body to be buried or signs any permit shall be liable to a penalty of not more than $2,000.

With regards to cremation the Act states that:

the person who has the charge of a cremation shall forthwith send to the Government Statist a certificate signed by him, stating the name of the person whose body was cremated and the date and place of cremation;

such certificate shall include, where practicable, the names of the persons related to the deceased present at the cremation and the name of the Minister officiating at any religious ceremony upon such cremation;

the date and place of such cremation shall be entered in the registration of the death of such person;

every person who omits to cause such a certificate to be transmitted or to enter the date and place of cremation as previously mentioned shall be guilty of an offence and be liable to a penalty of not more than $500;

142 no corpse shall be cremated or otherwise destroyed by fire in any public cemetery until permission to cremate such corpse has been signed by an officer of the trustees of such cemetery; and

any such officer shaH on signing or refusing to sign such permission comply with such regulations as are made by the Governor-in-Council and with any directions given by the trustees.

No such officer shall give his permission for the cremation of a corpse untiJ he has received:

an application in the form of the Second Schedule to the Act (application for cremation); and

a duly completed document in the form of the Third Schedule to the Act (doctors' certificates); or

a duly completed document in the form prescribed under Section 23 of the Coroner's Act 1985 certifying that cremation is permitted (Coroner's Order); or

a certificate in the form of an authority to cremate under the hand of the Coroner, or other person permitted by the law of that State to authorise cremation where the deceased died in any other State of the Commonwealth.

With regards to the application for cremation, the Act stipulates that:

if it appears from the application that the deceased either in writing at any time, or orally in the presence of two or more witnesses during his last illness, has expressly or impliedly requested that his corpse be not cremated, the cemetery trust officer shall not give his permission for the cremation of the corpse;

Part A of the Third Schedule to this Act (the first doctor's certificate) shall be completed and signed by a legally qualified medical practitioner who has signed the notice prescribed under Section 19(1 )(b) of the

1lt3 Registration of Births, Deaths and Marriages Act 1959 in relation to the deceased;

Part B of the Third Schedule to this Act (the second doctor's certificate) shall be completed and signed by a legally qualified medical practitioner, who has not personally attended the deceased and who has been licensed by the Minister to give such certificates; a certificate in the form of Part B of the Third Schedule shall not be completed by a licensed medical practitioner unless Part A has previously been duly completed and unless any application for cremation in the form or to the effect of the Second Schedule has previously been duly completed; where a licensed medical practitioner declines to complete Part B of the Third Schedule he shall clearly endorse on Part A that he has declined to complete such certificate and in any such case no cremation shall be permitted without the order of a Coroner under the Coroner's Act 1985; the Minister may at any time grant a licence to any legally qualified rnedlcal practitioner authorising such practitioner to sign certificates for cremation in the form of Part B of the Third Schedule to the Act and may at any time revoke such licence; any such licence shall be for such period not exceeding three years as the Minister determines, but on the expiration of any such licence it may be renewed; and every person who wilfully makes any false statement in any certificate or application signed by him, or who makes use of any such certificate knowing any statements therein to be false, or who forges any such certificate or uses any such certificate known by him to be forged shall be guilty of an indictable offence and being convicted thereof shall be liable to imprisonment for a term of not more than ten years.

144 17.3 Comments and Recommendations

17 .3.1 Problems with Death and Cremation Certificates

As outlined in the previous section a burial cannot take place until a death certificate, in the form of the Fifth Schedule to the Births, Deaths and Marriages Regulations 1971, has been produced to the cemetery trustees. The only exceptions are a burial by Coroner's Order or, where a statutory declaration is made by the person conducting the burial, stating that owing to special circumstances it is not possible for the Fifth Schedule to be produced at the time of the burial.

With respect to cremation the current Act states that the trustees shall not give permission for the cremation of a corpse until they have received a cremation certificate in the form of the Second and Third Schedules to the Cemeteries Act 1958. The only exceptions are cremation by Coroner's Order or, where the deceased died in any other state of the Commonwealth, in the form of an authority to cremate under the hand of the Coroner, or other person permitted by the law of that State to authorise cremation.

Cemetery administrators, funeral directors and indeed the public have experienced problems with both the format and content of the cremation certificate and to a lesser extent the death certificate. In respect of the cremation certificate the problems include:

(1) The cumbersome nature of the form and difficulties experienced in interpreting it lead to frequent errors in completion. This in turn has led to cremation services being delayed or refused until the necessary documentation has been properly completed.

(2) Cases of medical practitioners being less than diligent in completing the necessary documents, possibly because of their complexity.

(3) The M.I.C.A. Committee is aware that in some cases medical practitioners regularly complete Part B of the Third Schedule to the Act without any adequate examination of either the body or the circumstances attending the death, as they are lawfully required to do.

145 (4) Crematoria have also complained of problems in keeping up to date with exactly which medical practitioners are licenced to sign such certificates. The very value of the Minister for Health authorising medical practitioners to sign such certificates is brought into question by the fact that apparently no medical practitioner has ever been refused such authorisation.

With regards to death certificates the problem areas reported to the M.I.C.A. Committee include:

(1) The present format of the death certificate does not require the signature of the attending medical practitioner on the section of the form that is required to be produced at the cemetery before a burial is permitted (Fifth Schedule). The medical practitioner only needs to sign the section of the form that is sent to the Government Statist (Fourth Schedule). This situation seems unsatisfactory to the M.I.C.A. Committee in that it would seem prudent for both sections of the form to be signed by the medical practitioner with his or her name clearly printed below the signature. This would assist cemetery trusts in checking on death certificates about which they had any doubts.

(2) Death certificates are not accountable in that they are not numbered and no records can thus be kept of which forms are issued to particular medical practitioners. Notwithstanding the increased administrative complexity (and cost) of numbering all death certificates and keeping accurate records of which medical pra~titioners the particular forms are issued to, the M.I.C.A. Committee believes that such changes should be made to assist in ensuring that no abuses to the system occur.

A consideration of the documentation requirements for burial and cremation reveals that the Victorian legislation considers that cremation requires much more stringent conditions than burial. This is also common to most other Australian states where medical referees or specially licenced medical practitioners must examine the body prior to cremation, as well as the attending medical practitioner.

The M.I.C.A. Committee questions the necessity for different documentation for burial and cremation and feels that the present legislation is cumbersome and a rellc from the time when cremation was first introduced. The M.I.C.A. Committee is not

146 alone in this view in that the South Australian Committee on the Disposal of Human Remains has recommended that legislation concerning the documentation necessary for both cremation and burial be identical.

The M.I.C.A. Committee also noted with interest the views on this matter of Mr. Jeremy Browne, the General Manager of Centennial Park Trust, as expressed to the M.I.C.A. Committee during its visit to Adelaide in 1986. Mr. Browne stated that the necessity for a second death certificate for cremation was a waste of time and that he could see no reason for differentiation in the paper work for burial and cremation.

The M.I.C.A. Committee is aware that discussions have been held between officers of the Health Department, Coroner's Court, Government Statist, and all Victorian Crematorium Managers with a view to streamlining the procedures for cremation and bring them into line with those for burial.

Agreement was reached between all parties to dispense with the present cremation certificate and to amend the Fifth Schedule to the Births, Deaths and Marriages Regulations 1971 to include the following statement to be made by the certifying medical practitioner:

"I certify that there is no circumstance surrounding the death of the deceased that requires investigating by a Coroner before the body is buried or cremated."

This amended death certificate would then be the document that would need to be produced prior to either burial or cremation and the present cremation certificate, and system of licensing medical practitioners to counter-sign these certificates, could be abolished.

This procedure should greatly simplify the requirements for cremation and bring them into line with those for burial. It should still however provide adequate safeguards bearing in mind the irreversible aspects of cremation.

Recommendations

R.80 That no officer of a cemetery trust shall give permission for the burial or cremation of any human corpse until he has received a notice in the form prescribed

147 pursuant to Section 19 of the Registration of Births, Deaths and Marriages Act 1959 signed by a legally qualified medical practitioner in accordance with the Act, such notice to be amended to state:-

"I certify that there is no circumstance surrounding the death of the deceased that requires investigating by a Coroner before the body is buried or cremated."

(or a Victorian Coroner's Order for Burial or Cremation).

R.81 That the Fourth and Fifth Schedules of the Births, Deaths and Marriages Regulations 1971 be amended to become accountable items (i.e. be serially numbered).

R.82 That the Fifth Schedule of the Births, Deaths and Marriages Regulations 1971 be amended to ensure that medical practitioners both sign and print their names on the form.

17 .3.2 Application for Burial or Cremation

In addition to the amended Fifth Schedule to the Births, Deaths and Marriages Regulations 1971 cemetery trusts would of course require certain additional information before allowing a burial or cremation to proceed.

This information should at least include:

written evidence of the identity of the deceased (including name, sex, date of birth and age);

a written statement from the executor of the deceased's estate or next of kin authorising the burial or cremation (in cases where this could not be obtained the Coroner may be required to order the burial); and

148 It would seem easiest from the point of view of the cemetery trust, funeral director and the public to have alJ this information incorporated into a single application form for burial or cremation. This form could be designed to suit the specific requirements of individual cemetery trusts and should be in the form of a statutory declaration.

The M.I.C.A. Committee is aware that the <;emeteries and Crematoria Association of Victoria has designed such a form for the use of their members and believes that the relevant Department should discuss with the Association the possibility of making this form available to all cemetery trusts.

The M.I.C.A. Committee believes that individual trusts who specifically wanted to use a particular form should retain that right but that it should contain the previously listed information. However, it is of the opinion that the majority of cemetery trusts would quite happily make use of the Cemeteries and Crematoria Association of Victoria's form.

Recommendations

R.83 That no cemetery trust officer give permission for the burial or cremation of any human corpse until he has received the amended death certificate as set out in Section 17.3.1 or a Victorian Coroner's Order for Burial or Cremation or the following information:

written evidence of the identity of the deceased (including name, sex and date of birth);

a written statement from the executor of the deceased's estate or next of kin authorising the burial or cremation; and

149 R.84 That the relevant Department, in conjunction with the Cemeteries and Crematoria Association of Victoria, make available a uniform "application for burial or cremation" form, for use by those cemetery trusts not wishing their own particular form.

17.3.3 Necessary Certification for Bodies from Interstate & Overseas

Under present legislation bodies originating interstate or overseas arriving in Victoria for disposal are subject to different requirements depending on whether they are to be cremated or buried.

All bodies originating overseas require a Coroner's Order for disposal in the absence of any specific instructions regarding certification in the Cemeteries Act 19 58. Bodies from interstate that are to be cremated can be cremated with the appropriate documentation for cremation from the state of origin whereas bodies for burial require a Coroner's Order, again due to the silence of the present Act on the matter.

Notwithstanding the differing documentation for burial and cremation it is of interest to note that most crematoria are unwilling to accept interstate documentation for cremation and prefer a Victorian Coroner's Order. The trusts are concerned at problems in verifying interstate documentation and in keeping abreast of legislative changes in the different states.

The M.I.C.A. Committee shares this concern and believes that all bodies entering Victoria for disposal, whether from interstate or overseas, should only be buried or cremated with the authority of a Victorian Coroner's Order. The Coroner would seem to be the person best placed to make such enquiries as he deems necessary in order to satisfy himself that there are no untoward circumstances surrounding the importation of the body, and that the necessary statutory procedures applicable in the place of death have been compJied with.

Recommendation

R.85 That bodies originating outside Victoria may only be buried or cremated on the authority of a Coroner's Order for burial or cremation.

150 17.3.4 Power for Minister for Health to order Cremation

Neither the Cemeteries Act 1958 nor the Health Act 1958 contain any provisions enabling authorised health authorities to order the cremation of a corpse in cases where public health is likely to be endangered. With the ever-increasing mobility of the public it is not unlikely that a person could contract overseas a highly dangerous infectious disease and then die in Victoria. The M.I.C.A. Committee believes that health authorities should have the power to order the immediate cremation of a body that could prove to be a serious risk to public health. It is accordingly proposed that the Minister for Health be given this power by amendment to the 19 58.

Recommendation

R.86 That the provisions of the Health Act 1958 be amended to allow the Minister for Health to order the immediate cremation of a corpse in cases where public health is likely to be endangered.

17.3.5 Disposal of Pre-Viable Human Tissue

In cases of still-born children of less than 20 weeks gestation or 400 grammes weight the provisions of the Registration of Births, Deaths and Marriages Act 1959 do not apply. The still-birth does not need to be registered and no death certificate is issued.

This has occasionaUy caused problems for parents, as cemetery trusts can only legaUy bury or cremate a human corpse upon the production of a cremation or death certificate and under present legislation such documents do not apply to pre-viable human tissue as defined above.

To overcome this problem the M.I.C.A. Committee proposes that the revised Cemeteries Act contains a provision that exempts pre-viable human tissue from the usual certification requirements for burial or cremation. In these cases the legislation will state that the tissue may be buried or cremated upon the production of a certificate issued by the medical practitioner who attended at the birth including details of the period of gestation (weeks), name of mother and surname of child.

151 Recommendation

17.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on documentation have been incorporated into the following brief for a revised Cemeteries Act.

Documentation

(a) No human corpse shall be buried in any public or private cemetery or cremated in a crematorium until the required permission has been given by an officer of the trustees of the cemetery authorised in that behalf by the trustees.

(b) Unless ordered by the Coroner in no case shall any such officer give such permission until he has received:

1. written evidence of the identity of the deceased {including name, sex and date of birth); and

2. a notice in the form prescribed pursuant to Section 19 (l)(b) of the Registration of Births, Deaths and Marriages Act 1959 signed by a legally qualified medical practitioner in accordance with the Act. Such notice to be amended to state -

"I certify that there is no circumstance surrounding the death of the deceased that requires investigating by a Coroner before the body is buried or cremated."

(or a Victorian Coroner's Order for Burial or Cremation); and

3. a written statement from the executor of the deceased's estate or next of-kin authorising the burial or cremation (in the form of a statutory declaration); or 152 4. a copy of an exhumation licence issued by the Health Department signed by an officer of the Health Department present at the exhumation and the documents listed in 1 and 3 above. Penalty for contravention.

(c) Before any corpse or cremated remains shall be buried or placed in any part of a cemetery which is the subject of a grant of exclusive right of burial the trustees or trust officer shall be provided to their satisfaction with evidence that the person entitled under such grant has consented or would not object to such burial taking place therein.

(d) Where:- 1. permission is sought from the trustees or their officer to bury or inter the body of a deceased person in a vault, grave or other place in a cemetery in respect of which an exclusive right of burial or interment has been granted by the trustees under the Cemeteries Act 19 58 or under any earlier legislation relating to a cemetery or cemeteries which was then in force;

2. the person to whom such exclusive right was granted is dead;

3. the body is the body of (i) the person to whom such exclusive right was granted; or

(ii) a person who was at the time of his or her death the widower or widow of the person to whom such exclusive right was granted; or (iii) a child or grand-child or other descendant of the person to whom such exclusive right was granted; and

4. the trustees or their officer have no knowledge of any claim or contention that such body should not be buried or interred in such vault, grave or place

the production by or on behalf of the person seeking permission to bury or inter the body in such vault grave or place to the trustees or their officer of the original document by which the exclusive right of burial or interment was granted or by which the granting of such exclusive right was evidenced shall be accepted by the trustees or their officer as satisfactory evidence that the

153 person for the time being entitled to such exclusive right of burial or interment has consented or would not object to the burial or interment of such body in such vault, grave or place."

(e) The medical practitioner who issues a Death Certificate or the Coroner who issues an Authority to Cremate shall indicate whether a body contains a cardiac pacemaker or implant prescribed by the Health Department. Where a body contains such cardiac pacemaker or prescribed implant the trustees shall have power to refuse such cremation.

(f) Where there is a conflict in dates of birth or address or in the spelling of two or more names, purporting to be the same deceased person, the senior authorised trust officer shall after due inquiry and if he is satisfied that such documents relate to the same deceased person permit the burial or cremation to take place and shall report the matter to the trust as soon as practicable.

(g) A Victorian Coroner's Order for Burial or Cremation shall be required before authority is given by the trust to bury or cremate the remains of a body arriving in Victoria from another country or interstate.

{h) The provisions of Section (b) shall not apply with respect to the burial or cremation of pre-viable foetal remains. In these cases, a certificate issued by the medical practitioner who attended at the birth must be produced to the officer authorised by the trustees. This certificate must include details of the period of gestation (weeks), name of mother, and surname of child.

(i) Every person who wilfully makes a false statement in any certificate or application signed by him for the purpose of this Part or for the purpose of obtaining such certificate or who makes use of any such certificate knowing any statements therein to be false or who forges any such certificate or uses any such certificate known by him to be forged shall be guilty of felony.

Proposed Amendments to Other Legislation

Health Act 1958

That the Minister for Health be empowered to order the immediate cremation of a human corpse in cases where public health is likely to be endangered. 154 Registration of Births, Deaths and Marriages Act 1959

That the Fifth Schedule of the Births, Deaths and Marriages Regulations 1971 be amended by the addition of:

a statement by the certifying medical practitioner to the effect -

''I certify that there is no circumstance surrounding the death of the deceased that requires investigating by a Coroner before the body is buried or cremated"; and

a provision for the certifying medical practitioner to both sign the form and clearly print his name below such signature.

That the Fourth and Fifth Schedules of the Births, Deaths and Marriages Regulations 1971 be serially numbered and be accountable items.

155

CHAPTER EIGHTEEN

PUBLIC BURIAL

18.1 Introduction

Since the M.I.C.A. Committee began its deliberations it has become increasingly aware both of the heavy burden that death causes to poor people and the unsatisfactory nature of the present system that many hospitals use when arranging for the burial of both still-born babies and babies who die soon after birth without having left the hospital.

With regards to cemetery legislation the M.I.C.A. Committee will propose various amendments to present legislation which should assist in ensuring that both deceased poor people and still-born babies are able to be buried in an inexpensive but dignified fashion.

18.2 Cemeteries Act 1958

The Cemeteries Act 1958 stipulates that the trustees of a public cemetery may permit any poor person to be buried free of any charge whatsoever. Upon the order of a Justice of the Peace the cemetery trust must permit the burial free of any charge.

If the deceased is known or believed to have belonged to any particular religious denomination he shall be buried in the portion of the cemetery (if any) set apart for such denomination.

Before a Justice signs an order for the burial of a deceased poor person he shall satisfy himself that such person died without sufficient means to the pay burial expenses and that his relatives and friends are unable to pay the charge.

157 18.3 Comments and Recommendations

18.3.1 Funeral Costs and the Poor

Death is a fact of life, and today it is quite often an expensive fact to face at a time of grief. Costs of funerals have escalated, along with other costs of living throughout the last several decades and the financial burden falls particularly heavy on those of the community with limited means.

Governments around the world have recognised the need to assist the financially disadvantaged with the cost of funerals, however the benefit payable in Australia has declined to a point where it bears no relationship to the cost of a funeral or to the needs of those who must meet such costs.

The M.I.C.A. Committee is particularly concerned at this situation and intends conducting a thorough review of the whole matter as soon as its current investigations have been concluded. Without pre-empting this investigation the M.I.C.A. Committee will propose several amendments to the present Cemeteries Act, which should assist those of limited means in providing both a cheaper and more dignified funeral for their next of kin.

18.3.2 Burial and Cremation of Deceased Poor People

As previously stated the Cemeteries Act 1958 enables the trustees of public cemeteries to bury deceased poor people free of any charge. The Act also states that upon an order signed by a Justice of the Peace the trust must permit the burial of a poor person at no cost. Before a Justice signs such an order he must satisfy himself that such a person died without sufficient means to pay burial expenses and that his relatives and friends are unable to pay the charge.

The M.I.C.A. Committee endorses this provision but can see no good reason why cremation of deceased poor people should not be possible under revised legislation. The wishes, if known, of the deceased or his .or her family should of course be respected in deciding whether the disposal will be by cremation or burial.

158 Cremation would have the advantage that if the family did not want the ashes scattered in the grounds of the crematorium they could bury or scatter the ashes at apoint of significance to the family outside the cemetery and memorialise it in whatever fashion they like.

Recommendation

R.88 That the trustees of any public cemetery shall permit any person so deemed on the order of a Justice of the Peace to be a poor person, to be buried in a section of the cemetery reserved for such burials or cremated, free of any charge whatsoever.

18.3.3 Trust Approved Memorials on Public Graves

Most cemeteries have areas set aside for public burials. These sites are provided free or at greatly reduced prices and no exclusive rights of burial are issued. In most cases several unrelated people are buried in the one grave. In general the people who are buried in these graves are destitute and buried under government contract, although in some cases their families simply cannot afford a private grave.

Because no exclusive right of burial is issued and several unrelated people are buried in the one grave many cemetery trusts have adopted a policy of refusing to allow any memorlalisation on such sites. This policy has occasionally greatly upset families who at some time after the burial have wished to erect some form of memorial on the site.

The M.I.C.A. Committee is concerned at this state of affairs and can see no valid reason why a trust approved plaque or some other form of simple memorial should not be allowed on or near the site and accordingly puts this forward as a proposed amendment to the Cemeteries Act.

The M.I.C.A. Committee would also urge the controlling Government Department to encourage cemetery trusts to maintain public burial areas in as good a state as the private areas of the cemetery. Public graves should not be second class graves.

Recommendation

R.89 That all cemetery trusts with public burial areas allow trust approved memorials to be erected on or near the graves.

159 18.3.4 Burial of Still-born Babies

The hospital arranged system of burial of still-born babies is usually achieved by a contract between the hospital and a funeral director whereby the babies are buried in unmarked graves with no ceremony at the grave site. The babies are usually kept at the hospital or funeral parlour until a group of 5 to 10 is accumulated and then buried in a grave which could contain scores of babies.

The system has the advantage of being much cheaper than the normal burial in a private grave and eliminates the need for the family to be involved in the funeral arrangements at a time of great emotional distress.

The disadvantages are that many families agree to a hospital arranged burial at the time of the death but at a later stage regret that they were not involved in the funeral and the associated grieving process. Frequent complaints relate to the inability to memorialise the death due to the mass nature of the grave and the poor condition of the area reserved for still-borns at some cemeteries.

The M.I.C.A. Committee has inspected areas of cemeteries set aside for still-born babies both in Victoria and on its interstate visits and has noted that in many cases such areas are in the less attractive portions of the cemeteries and have not been well maintained.

The M.I.C.A. Committee would strongly urge the relevant Department to educate cemetery administrators on the importance of ensuring that public burial areas are well maintained and not necessarily placed in the least attractive and accessible areas of the cemetery. The M.I.C.A. Committee also believes that the families of still-born babies should be able to memorialise the burial and wiJl propose this amendment to the Act in the ensuing section.

Unfortunately amendments to the Cemeteries Act cannot adequately guarantee that the parents are fully informed of all the options in this situation but the M.I,C.A. Committee would offer the following general comments in the hope that they will generate public discussion of this important matter.

The M.I.C.A. Committee believes that medical practitioners have a vital role in ensuring that families of still-born babies suffer as little as possible. They should

160 discuss funeral arrangements with the family or at least ensure that a competent social worker or lay person does so. Their responsibility should extend beyond the child's death and be alert to the health of the parents in the months following the death.

The M.I.C.A. Committee also strongly supports special counselling of parents of still born babies and to this end believes that hospitals should encourage access to individuals or agencies providing special services such as:

Still-birth and Neonatal Death Support groups;

Sudden Infant Death Syndrome Support groups; and

Funeral Directors Bereavement Educational Services.

In-service training programmes should be conducted for nurses in all hospitals likely to deal with still-births and management of death and grief should be included in the curriculum of all nursing students.

All services should be directed to minimise the distress of the bereaved family as babies who are still-born or die in the neonatal period are regarded by their parents as persons of equal importance as children of a greater age who die. Death of the newborn child should be handled in the same way as death in any other individual.

18.3.5 Memorialisation of Still-births Buried in Public Graves

As stated in the preceding section many still-births are buried in groups in public graves, either due to the parents wish for this cheap form of interment or as a result of their ignorance of other options.

In much the same manner as adult burials in public graves, because no exclusive rights of burial are issued and many unrelated still-borns are buried in the one grave, many cemetery trusts have adopted a policy of refusing to allow any memorialisation on such sites. This policy has occasionally greatly upset families who at some time after the burial have wished to erect some form of memorial on the site.

161 As stated in Section 18.3.3 the M.I.C.A. Committee can see no valid reason why a trust approved plaque or some other form of simple memorial should not be allowed on or near the site and accordingly puts this forward as a proposed amendment to the Act.

Recommendation

18.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the burial of deceased poor and still born babies have been incorporated into the following brief for a revised Cemeteries Act.

Burial/Cremation of Deceased Poor and Still-born Babies

(a) The trustees shall permit any person so deemed on the order of a Justice of the Peace to be a poor person to be cremated (and the ashes recovered to be interred in the public burial area) or buried in a section of the cemetery reserved for such burials, free of any charge whatsoever. Every Justice of the Peace before issuing such order shall satisfy himself that such person died without sufficient means to pay burial or cremation expenses.

(b) The trustees of cemeteries with public burial areas for the poor or still-born babies, shall provide for the erection of trust approved memorials within close proximity to such graves.

162 CHAPTER NINETEEN

CONSTRUCTION OF COFFINS/VAULTS

19.1 Introduction

When considering the construction of coffins the M.I.C.A. Committee's main concerns are to ensure that all coffins are fit for the purpose and that legislative provisions do not needlessly increase their cost to the public. Unless particularly strong arguments emerged for a tightening up of provisions relating to coffin construction the M.I.C.A. Committee would be loathe to recommend changes to the legislation that would add to the financial burden of arranging a funeral.

In this Chapter the M.I.C.A. Committee will contend that present provisions relating to standards for coffins are operating effectively and will only propose minor amendments. These will be designed to more adequately protect the safety of all persons involved in handling coffins during burial and cremation and require that all coffins bear a durable plate having the name of the deceased and the date of death distinctly engraved thereon.

The construction and sealing of vaults will also be discussed.

19.2 Cemeteries Act 19.58

With regards to the construction of coffins the Cemeteries Act 1958 stipulates that no human remains will be brought into or buried in or cremated in any cemetery except in a coffin which is:

soundly constructed of substantial wooden or other approved materials in such a way as to prevent the escape of offensive liquids or exhalations; and

so constructed as to prevent any person from seeing the contents thereof after the remains have been placed inside and the coffin closed.

163 With regards to brick or stone vaults the Act states that:

they shall be made and kept watertight by or at the expense of any person having for the time being the exclusive right of burial or interment in any such vault;

every coffin deposited in such a vault shall be built in and covered with a substantial slab of stone, slate or iron cemented in and shall be made and kept airtight and watertight;

any space surrounding such coffin shall.be filled up with charcoal, dry earth or other suitable material by or at the expense of any person having for the time being the exclusive right of burial in such vault;

in the event of any such person failing to comply with any of these provisions at the expiration of seven days after the date of receiving from the trustees of the cemetery notice in writing to do so or failing to fill up the vault with charcoal, dry earth or other suitable material he shall be liable to a penalty of not more than $500.

when the trustees of any public cemetery have reasonable grounds for believing that noxious exhalations or evaporations are escaping from any grave or vault, they may by a written notice require any person having the exclusive right of burial in such site to open it for examination on some specified day; and

in the event of such person failing to open such vault or to comply within seven days with any subsequent notice in writing to repair such vault or to fill it up with charcoal, dry earth or other suitable material so as to prevent the escape of any noxious exhalations or evaporations the trustees may open such vault to fill it up or repair it, and may recover the costs and expenses of so doing from such persons before a Magistrates' Court as a civil debt recoverable summarily.

164 19.3 Comments and Recommendations

19.3.1 Construction of Coffins

As stated in Section 19.2 the present legislation in effect sets general performance standards for the construction of coffins and does not set detailed minimum construction standards.

The M.I.C.A. Committee has considered the option of introducing legalJy binding minimum standards for coffins, but believes it should be rejected for the following reasons:

the lack of demonstrable problems with the present performance standards;

the possibility that restrictive standards could stifle innovative construction techniques and increase the cost of coffins;

difficulties in policing the standards; and

probable delays in amending the specifications as circumstances dictate.

The M.I.C.A. Committee believes that the provisions of the present legislation have served Victoria admirably in the past and are not in need of substantial amendment. The M.I.C.A. Committee is however aware that certain crematoria operators are concerned that the safety of their employees is not sufficiently protected by the present legislation in that certain types of coffins arguably comply with the present performance standards, but could possibly be a danger to the crematoria operators when inserting the coffins into the crematoria.

The M.I.C.A. Committee shares with cemetery administrators a concern with the health and safety of all cemetery employees and accordingly proposes that the provisions of the present Act be augmented by a provision that ensures that the

165 construction of any coffin does not endanger the safety of any person involved in a burial or cremation.

It is probably inevitable that disputes will arise from time to time between funeral directors and cemetery trusts as to whether or not a particular style of coffin complies with the provisions of the Act.

It is of course necessary for cemetery trusts to be the immediate arbiters of such disputes but in cases where the two parties cannot resolve the dispute the M.I.C.A. Committee proposes that the relevant Department be given authority to make the final decision as to whether or not a style of coffin complies with the Act.

Recommendations

R.91 That no human remains shall be brought into or buried in or cremated in any cemetery except in a coffin which is:

soundly constructed of substantial wooden or other approved materials;

in such a way as to prevent the escape of offensive liquids or exhalations;

so as to ensure the safety of aU persons involved in the burial or cremation; and

so constructed as to prevent any person from seeing the contents thereof after the remains have been placed inside and the coffin closed.

R.92 That the cemetery trust has the immediate power to decide whether or not a particular coffin complies with the Act and the relevant Department has the final power to rule as to compliance.

19.3.2 Name-plate on Coffins

The M.I.C.A. Committee noted when reviewing interstate legislation that in South Australia all coffins for cremation must bear a name-plate or inscription which states

166 the surname and at least one given name of the deceased person. The M.l.C.A. Committee strongly endorses this provision and proposes that it become a requirement in the new Victorian legislation. It would appear to be a valuable safeguard in helping to ensure that no irreversible mix-ups are made by either funeral directors or cemetery employees.

Recommendation

19.3.3 Construction Standards for Vaults

The M.I.C.A. Committee believes it appropriate that the provisions proposed in Chapter Fourteen concerning Memorial Work should also apply to any form of vault. Specifically the cemetery trustees should set minimum standards for the construction of vaults in cases where the trustees decide to allow the public to arrange for the construction of vaults on their grave-sites.

These standards should be submitted to the relevant Minister for his approval and form part of the Rules and Regulations of the cemetery. Applications for permits to construct vaults should be assessed against these minimum standards and the relevant Department should formulate a set of uniform minimum standards for vaults for use by cemeteries not wishing approval for their own particular standards.

With regards to unauthorised, unsafe or unsightly vaults, similar provisions should apply as do to documents. There is however need for special provisions to ensure that vaults are kept watertight and airtight to ensure that no liquids or offensive odours escape and pose a health hazard. These provisions will be discussed in the ensuing section.

19.3.4 Sealing of Vaults

As outlined in Section 19.2 the Cemeteries Act 1958 contains quite detailed provisions relating to vaults.

167 These provisions although complex are probably necessary to ensure that vaults do not pose any danger to public health. The M.I.C.A. Committee however is of the opinion that the more detailed requirements should form part of the Rules and Regulations of the individual cemetery trusts so that they can be easily amended to suit local conditions. For cemeteries not wishing to formulate their own particular standards the relevant department should formulate a set of uniform minimum standards for the proper sealing of vaults.

However it is the opinion of the M.I.C.A. Committee that it is necessary for power to be retained in the proposed Act for the trustees to take action against the holder of the right of burial in a vault from which they believe odours are escaping.

This action should be notice in writing requiring such person to cause the vault to be opened for examination on a specified day, not less than seven days from the delivery of the notice. After the examination by the trustees the person shall do whatever works the trustees deem necessary.

Recommendations

R.94 That every person who has the exclusive right of burial in a vault in a cemetery shall, at his own expense provide for the maintenance, sealing and deposition of coffins therein in accordance with the Rules and Regulations of the trustees.

19.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the construction of vaults and coffins have been incorporated into the following brief for a revised Cemeteries Act.

168 Construction of Coffins

(a) No human remains shall be brought into or buried in or cremated in any cemetery except in a coffin which is:

soundly constructed of substantial wooden or other material approved by the relevant Department;

in such a way as to prevent the escape of offensive liquids or exhala tions;

unless there is affixed to the lid of the coffin a durable plate having the name of the deceased and the date of death distinctly engraved thereon;

so as to ensure the safety of all persons involved in the burial or cremation; and

so constructed as to prevent any person from seeing the contents thereof after the remains have been placed inside and the coffin dosed.

(b) The cemetery trust has the immediate power to decide whether or not a particular coffin complies with the Act and the relevant Department has the final power to rule as to compliance.

Vaults

(c) Every person who has the exclusive right of burial in a vault in a cemetery shall, at his own expense provide for the maintenance, sealing and deposition of coffins therein in accordance with the Rules and Regulations of the cemetery.

(d) Every person who has the exclusive right of burial in a vault in a cemetery shall upon receiving notice in writing from the trustees that they believe that odours are escaping from such vault and requiring him to cause such vault to be opened for examination on a specified day, not less than seven days from the delivery of such notice, shall cause the same to be opened accordingly, and, if required by the trustees, shall do such works as the trustees deem necessary. 169

CHAPTER TWENTY

NON-COFFIN BURIALS

20.1 Introduction

The Islamic faith is a universal religion and is widespread in the Middle East. Migrants to Victoria of that faith came for example from countries such as Egypt, Iran and Armenia, others from places such as Fiji.

From the Islamic Society of Footscray and other·sources the M.I.C.A. Committee has been informed that Muslims have strict burial rites which commence at the moment of death with the positioning of the body and the recital of prayers. The family of the deceased is required to carry out the washing ritual and wrapping of the body in layers of cotton cloth, each cloth being of specified length and width depending on whether the deceased is male or female.

The burial requirements of Muslims dearly differ from other religious groups, not only because of the rituals associated with death and burial, but also because of the requirement by certain Muslim groups that the body not be buried in a coffin.

Following petitions from various Islamic people and organisations to the Health Department, the Minister for Health agreed to a change in legislation to accommodate this requirement in 1982.

This amendment allowed non-coffin burials subject to the body at all times being sealed in a bag of impervious material and being brought to the gravesite inside a disposable or reusable container kept in a hygienic state. Since the amendment to the Act approximately 100 burials have taken place in the described manner.

Notwithstanding the 1982 amendment to the Act there has been a continuing call from the more traditional Islamic groups for a further amendment to alleviate the necessity for sealing the body in a plastic bag. According to such groups the plastic liner is contrary to Islamic law as it prevents the body being in contact with the ground. Their petition is that the body should be able to be buried in the cotton shroud that the body is wrapped in after death.

171 20.2 Cemeteries Act 1958

Under the provisions of the Cemeteries Act 1958 no human remains shall be brought into or buried in or cremated in any cemetery except in a coffin which is-

(a) soundly constructed of substantial wooden or other approved materials in such a way as to prevent the escape of offensive liquids or exhalations; and

(b) so constructed as to prevent any person from seeing the contents thereof after the remains have been placed inside and the coffin closed.

However, where it is intended to bury the human remains in accordance with Islamic burial customs the following procedures shall be observed:-

(a) the body shall at all times be sealed in a bag of impervious material and brought to the gravesite inside a disposable or a reusable container kept in a hygenic state; and

(b) the body, or the container containing the body, shall be lowered into the grave and then entirely covered by pineboards treated against rot or by any other material approved by the Health Department, and the grave packed with earth.

20.3 Comments and Recommendations

In the M.I.C.A. Committee's Discussion Paper on a Review of Cemetery Legislation, some of the ramifications of the 1982 amendment to the Act allowing non-coffin burials were discussed. These included:-

reported restrictions on the freedom of choice of certain groups within the Islamic community who would prefer to be buried in a coffin as described in the M.I.C.A. Committee's Third Report to Parliament;

the involvement of the family and friends of the deceased in lowering the body into the grave and then filling it in is a source of concern to

172 cemetery trusts because of the potential for serious injury if the body was dropped, or the grave coJlapsed;

reported instances of family and friends slashing open the plastic liners before filling in the grave;

industrial relations problems with the Union representing cemetery employees and funeral directors assistants and the Australian Funeral Directors Association being opposed to non-coffin burials; and

problems in conducting exhumations of burials conducted in this manner.

The Committee's initial proposal was that the legislation alJowing non-coffin Islamic burials be repealed. However, the Committee received many submissions on this proposal and verbal evidence from representatives of the Islamic community and Victorian Ethnic Affairs Commission at the Public Hearing outlining their objections to the Committee's proposed amendment.

The Committee has been assured by the Islamic Council of Victoria that there are no restrictions placed on members of the Islamic community concerning an individual's freedom of choice of the mode of burial.

The Committee has also been informed by health and cemetery administrators that sealing the body in a plastic bag will change the nature of the decomposition process, probably with adverse long term effects.

Additionally, as the majority of coffins are chipboard and have a short life span once buried, their primary practical use is to contain the body during the journey to the cemetery and to alJow convenient handling by funeral directors and cemetery staff.

Normal procedure in an Islamic funeral is that two mourners enter the grave to receive the body. At this time there is some risk of the body being dropped onto them, in addition to the possibility of a mourner being accidentally pushed in during the lowering procedure at the time of the funeral service. The Islamic Council has advised Fawkner Cemetery Trust, where many of the Islamic burials occur, that it has insurance cover against this possibility and the Trust's insurance brokers are satisfied that it is adequate.

173 At Fawkner the normal staff complement is provided at each Islamic funeral although they are not required.

The Committee is aware that the Undertakers' Assistants and Cemeteries Employees' Union has refused to carry out burials using only a shroud, recognising the potential hazards to the health and safety of their members. However, if the body is contained in a coffin or other disposable or re-usable container up until burial by the mourners themselves then the Committee sees that a confrontation may be avoided.

The Committee ls deeply concerned about the possible transmission of disease from a dead body. The Committee has been assured that with the Muslim custom of washing the body and closing the orifices with cotton wool, no effluvia comes from the body even if it is wrapped in shrouds.

In the case of the deceased having or being suspected of having a contagious disease such as AIDS or Hepatitis B the Islamic Council of Victoria agree that the procedures for disposal as set by the Health Department must be carried out.

The Committee considers that religious tolerances must be upheld, that the Islamic community should be allowed to practice their religious observances regarding burial rites as they wish so long as these are not dangerous to public health and safety and will not create any nuisance.

To facilitate this, the Committee believes the legislation should be amended to allow burials in a shroud subject to certain conditions:-

(i) the remains will be contained in a coffin or other container at all times during transportation to the gravesite;

(ii) there must be a minimum number of able mourners present to lower the body into the grave. If these are not present then the burial must take place using the coffin and performed by staff of the cemetery;

(iii) a special license be obtained from· the cemetery trust to allow burial without a coffin.

174 The terms and conditions of the license should be set by the Health Department after consultation with the Cemeteries and Cremation Association of Victoria. The Committee believes that applications for the license should include the names, addresses and ages of the required number of mourners, together with signed statements of their intent to bury the deceased in the traditional Islamic fashion and their acknowledgement that the cemetery trust is not liable in the event of an accident occurring. Additionally, the applicants would need to produce evidence of adequate insurance cover for any accident occurring at the graveside.

The trust would consider the application and issue the license only if they were sure all conditions had been met and that no hazardous situations were prevalent, for example excessive rain causing dangerous soil conditions for a person in the grave.

Recommendation

R.96 That members of the Islamic faith be allowed to be buried in a cotton shroud (i.e. without a coffin) subject to the following conditions:-

(i) a special license be obtained from the cemetery trust to permit burial without a coffin;

(ii) the remains to be contained in a coffin or other disposable or re-usable container at all times during transportation to the gravesite;

(iii) there must be a minimum number of able mourners present to lower the body into the grave. If these are not present then the burial must take place using a coffin and performed by staff of the cemetery.

20.4 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on non-coffin burials have been incorporated into the following brief for a revised Cemeteries Act.

175 Non-Coffin burials

That members of the Islamic faith be allowed to be buried in a cotton shroud (i.e. without a coffin) subject to the following conditions:-

(i) a special license must be obtained from the cemetery trust to permit burial without a coffin;

(ii) the remains must be contained in a coffin or other disposable or re usable container at all times during transportation to the gravesite;

176 CHAPTER TWENTY-ONE

MISCELLANEOUS MATTERS

21.1 Introduction

In this Chapter various matters relating to the revised Act wllJ be discussed. These will include the questions of exhumation, minimum requirements for depth of burials, the permissabllity of advertising within cemeteries, definitions and the need for the revised Act to maintain legal continuity with regards to certain matters.

In respect of exhumation and depth of burials the M.I.C.A. Committee will argue that the present legislation requires fine-tuning rather than a full overhaul. This fine- tuning will include:

a clear definition of exhumation to overcome certain ambiguities that have developed in recent years as to what does or does not constitute an exhumation;

power for the relevant Minister to set a realistic fee for the issuance of an exhumation licence that fully covers the relevant Department's costs;

a limit on the length of time an exhumation licence remains valid; and

a standardisation of the depth requirements for the burial of adults and children whether or not the burial is in a vault or grave.

The Chapter also contains a full list of definitions that the M.I.C.A. Committee believes will be appropriate for the revised Act and lists the matters that are contained in the Cemeteries Act 1958 that may need to be replicated in the revised legislation to maintain legal continuity.

177 21.2 Cemeteries Act 1958

21.2.1 Depth of Burials

The Cemeteries Act 1958 stipulates that whenever a coffin or body is buried otherwise than in a vault it shall be:

placed in such a way that there shall be 150 mm. of closely packed earth between every part of it and every part of any other coffin or body below or alongside it;

so buried that no part of it shall be within one metre of the ordinary level of the ground unless it contains the body of a child under twelve years of age, when it shall be buried so that no part of it shall be within 900 mm. of that level; or

lt shall be buried at such depth below the ordinary level of the ground taking into account soil, drainage and slope of the ground, as shall be approved in advance by the Health Department with or without conditions.

21.2.2 Exhumation

The Cemeteries Act 1958 imposes the condition that no person shall remove any body, or the remains of any body, interred in any cemetery, burial ground or place of burial:

without license under the hand of the Minister; or

in the case of the holder of any such license without observing the conditions of the license.

The Act also states that:

a license under this section shall be subject to such conditions as the Minister thinks fit to impose and are expressed or referred to in the license;

178 every person who acts in contravention of any of the provisions of this section shall be liable to a penalty of not more than $2,000; and

the prescribed fee, which shall not exceed $40, shall be paid for a license under this section.

21.3 Comments and Recommendations

21.3.1 Definition of Exhumation

A shortcoming in the Cemeteries Act 1958 is the absence of any definition of exhumation. This has caused problems in assessing whether or not an exhumation license is needed in the following situations:

when cremated remains are to be removed from a grave site;

when babies coffins are to be moved to a pocket of the grave to allow room for further interments; and

on the rare occasions when requests are made to search coffins for articles of value that may have been interred inadvertently.

The M.I.C.A. Committee accordingly proposes that a suitable definition of exhumation be included in the revised Act.

Recommendation

R.97 That exhumation be defined as:

''the opening of any grave or vault to remove the coffin and remains of any human corpse."

21.3.2 Approval for Exhumation

In the light of any evidence to the contrary the M.I.C.A. Committee believes that the present system of the Minister for Health granting exhumation licenses is appropriate and should continue. 179 The provisions of the present Act give the Minister almost ultimate discretion to decide in which circumstances an exhumation is appropriate and under what conditions it will be carried out. This wide power is necessary due to the varied circumstances in which exhumations arise.

The M.I.C.A. Committee however believes that an improvement to the present system would be for exhumation licenses to have a time limit within which the exhumation must be conducted.

The M.I.C.A. Committee has been informed that in some cases people have come forward with exhumation licenses dating back many years and requesting that the exhumation proceed. In some cases however due to the lapse of time conditions have changed and the exhumation may no longer be appropriate. The M.I.C.A. Committee accordingly recommends that exhumation licenses only remain valid for six months from the date of issue.

The M.I.C.A. Committee has also been informed by Health Department officers that the present prescribed fee of $40 for an exhumation license in most cases would not nearly cover the Health Department's costs in issuing the license and then supervising the exhumation. This is particularly true for exhumations in the more remote areas of Victoria.

The M.I.C.A. Committee is of the view that the Minister should have the power to set an appropriate fee for the issuance of exhumation licenses and increase it as circumstances dictate. The Minister should ensure that notice of changes in the fee is placed in the Government Gazette.

Recommendations

R.98 That the relevant Minister may grant a license for the exhumation of any body.

R.99 That the Minister may set the fees payable for the issuance of any such license (notice of amendments to such fee to be placed in the Government Gazette).

180 R.IOO That an exhumation license shall be valid for a period not exceeding six months from the date of issue.

21.3.3 Depth of Burials

A consideration of interstate legislation relating to depth of burials reveals that 1.2m. is the most common minimum specified depth required between a coffin and the natural ground level. In contrast the Victorian legislation refers to a minimum depth of 1 m. for adults and 900mm. for children under twelve years of age. There is also provision for the Health Department to vary these requirements in certain situations.

The M.I.C.A. Committee is aware of dissatisfaction with the present arrangements and has received evidence from the major cemetery trusts supporting a lowering of the minimum depth from lm to 900mm. The M.I.C.A. Committee concurs with this alteration.

Recommendation

R.lOl That whenever a coffin is buried in a grave or vault it shall be:

placed in such a way that there shall be a minimum 75mm. of closely packed earth or other suitable material between every part of it and every part of any other coffin below or alongside it;

so buried that no part of it shall be within 900 mm of the ordinary level of the ground; or

21.3.4 Definitions

There are few definitions in the Cemeteries Act 1958 and this has led to ambiguity in interpretation of different sections of the Act.

181 When a term is not defined in an Act it is necessary to rely on dictionary definitions or legal precedent which can in some cases validate action which the legislation was designed to prohibit. In fact in some cases the only way that the meaning of a particular section of an Act can be clarified, if the terms are not suitably defined and a conflict between parties arises, is by legal action.

This situation is obviously undesirable and the M.I.C.A. Committee proposes that the definitions listed in Section 21.5 of this Chapter form part of a revised Cemeteries Act.

Recommendation

R.l02 That the definitions listed in Section 21.5 of this Chapter form part of the revised cemeteries legislation.

21.3.5 Advertising

The Cemeteries Regulations 1965 contain requirements that no person shall in any cemetery:

distribute any advertisement or written matter relating to the business of a funeral director, monumental mason or any other business whatsoever relating to the burial, interment or cremation of the dead;

solicit the custom of any person for the purposes of any such business; or

promote by advertising, solicitation, distribution of circulars or cards or by any other means of advertisement, or carry on any business, trade or calling except with the written authority of the trustees.

The M.I.C.A. Committee believes these provisions are a necessary part of the revised legislation and proposes they be replicated in the new Act.

l&2 21.3.6 Legal Continuity

The M.I.C.A. Committee is also aware of certain other provisions in the Cemeteries Act 1958 that may need to be replicated in revised legislation to maintain legal continuity. These include:

section 43 of the Act which enables burial grounds established prior to 1867 to be brought under present laws relating to cemeteries;

section 46A of the Act which allows burials to take place in the overlay areas at the Melbourne General Cemetery; and

sections 82 to 88 of the Act which relate to The Necropolis, Springvale, and the Fawkner Crematorium and Memorial Park.

Whilst it is arguable that some of these provisions will not be necessary in the revised legislation it is evident that those such as the section relating to the Melbourne General Cemetery will need to be replicated in the new Act.

The M.I.C.A. Committee believes that these matters will best be assessed by Parliamentary Counsel if the M.I.C.A. Committee's recommendations to Parliament on revised legislation is prepared for introduction into Parliament.

21.5 Brief for Revised Cemeteries Act

The M.I.C.A. Committee's recommendations on the various matters discussed in this Chapter have been incorporated into the following brief for a revised Cemeteries Act.

Exhumation

(a) The relevant Minister may grant a license for the exhumation of any body (whether buried in a cemetery or elsewhere):

where he is satisfied that the body has by mistake or inadvertance been buried in a wrong grave or vault; or

183 where he is satisfied that circumstances exist which render it desirable that the body should be exhumed or removed to another grave or vault; or

for the purpose of cremation, subject to the provisions of this Act.

(b) Such license may be issued subject to the observances of such precautions, conditions, or directions as are specified in the license, or are required or directed by the Minister.

(d) For the purposes of this Act exhumation will be defined as:

"the opening of any grave or vault to remove the coffin and remains of any human corpse."

(e) The relevant Minister may set the fee payable for the issuance of an exhumation license and ensure that notice of any amendments to the fee payable are placed in the Government Gazette.

(f) It shall be an offence to conduct any exhumation from any place whatsoever without an exhumation license or without observing any precautions, conditions or directions as are specified in the license.

Depth of Burials

(g) Whenever a coffin is buried in a grave or vault it shaH be:

placed in such a way that there shall be a minimum 7.5mm. of closely packed earth or other suitable material between every part of it and every part of any other coffin below or alongside it;

so buried that no part of it shall be within 900 mm of the ordinary level of the ground; or

184 it shaH be buried at such depth below the ordinary level of the ground taking into account soil, drainage and slope of the ground, as shaH be approved in advance by the relevant Department with or without conditions.

Definitions

(h) Approved- "means approved in writing by the trustees unless otherwise specified in this Act."

(i) Bury "to place a human corpse in the ground and to cover it in accordance with this Act and derivatives of 'bury' shaH have a corresponding meaning."

(j) Cemetery - "a place for the burial of human corpses."

(k) Cremated Remains- "residual ash after cremation of a human corpse recovered from the cremator."

(1) Crematorium - "a place furnished with apparatus for the purpose of reducing the human corpse to ashes after death and such purpose is in this Act referred to as 'cremation'."

(m) Exhumation - "the opening of any grave, or vault to remove the coffin and remains of any human corpse."

(n) Grave "any burial place formed in the ground by excavation other than a vault."

(o) Vault "any grave, wholly underground, lined with brick, stone, concrete or other approved lining."

(p) Monument- "a slab, headstone, tombstone, plaque or any approved memorial."

185 (q) Private "land other than Crown Land reserved, dedicated or Cemetery- acquired for the burial of the dead such land having been approved by the Minister for that purpose."

Public "Crown Land reserved, dedicated or acquired for the Cemetery- interment or cremation of the dead, such land having been approved by the Minister for that purpose."

(s) Register- "a permanent record in a book or other record including computer records, microfilm and microfiche.

( t) Remains- "remains of a complete or partial human corpse other than cremated remains"

(u) Right of "a contract for the use of a piece of land for burial of a Burial human corpse, interment of cremated remains and/or construction of a monument made between the trustees of a cemetery and the holder of a right of burial and to exercise a right of burial means to bury an uncremated human corpse within a grave or vault, interment of cremated remains within a grave or vault or erecting a monument on a grave or vault."

(v) Still- born Child, "any child born of its mother after the twentieth StiJl-birth week of pregnancy which did not at any time after being born breathe or show any other sign of life, and where the duration of pregnancy is not reliably ascertainable includes any foetus weighing not less than 400 grammes; and 'stiii-birth' has a corresponding interpretation."

(w) Trustees "means the persons or Council appointed by the Minister to be the trustees of the nominated public cemetery."

186 Advertising

(w) No person shall in any cemetery:

(1) circulate, distribute, or give away, or cause to be circulated, distributed or given away, any advertisement or any printed or written matter relating to the business of a funeral director or monumental mason or grave decorator or to any other business whatsoever (including any caUing, occupation or employment) providing for or in any way relating to the burial, interment, or cremation of the dead; or

(2) whether verbaHy or otherwise directly or indirectly solicit or attempt to solicit or cause to be solicited for the purposes of any such business the custom of any person; or

(3) promote by advertising, solicitation, distribution of circulars or cards or by any other means of advertisement, or carry on any business, trade or calling except with the written authority of the trustees. (Penalty for contravention).

COMMITTEE ROOM 29 April 1987

187

APPENDIX 1

LIST OF SUBMISSIONS

Shire of BaUan BaUaraat General Cemeteries Shire of BeUarine Shire of Benalla Bendigo Cemetery Trust Shire of Bet Bet Boroondara General Cemetery Box Hill Cemetery Trust Shire of Bright Broadmeadows Turkish Islamic Society Cemeteries and Crematoria Association of Victoria Cheltenham Cemetery Trust Creswick Cemetery Trust Mr. John Downey (Former Crown Solicitor for Victoria) Shire of Dunmunkle Shire of East Loddon Fawkner Crematorium and Memorial Park City of Footscray Geelong Cemeteries Trust Guildford Cemetery Trust Health Department Victoria Islamic Council of Victoria Imams' Board of Victoria Shire of Leigh The Memorial Park, Altona Shire of Metcalfe Mildura Turkish Islamic Society Minister for Conservation, Forests and Lands Municipal Association of Victoria Mooroopna, Goulburn Valley Islamic Society The Necropolis, Springvale Shire of Newham and Woodend The Ombudsman, Victoria Shire of Portland 190 Public Record Office Shire of Rochester Royal Historical Society of Victoria Shire of Rutherglen State Coroner Town of Stawell Stillbirth and Neonatal Death Support Inc. Tarrayoukyan Public Cemetery Trust Thomastown Turkish Society City of Traralgon Undertakers' Assistants and Cemetery Employees' Union of Australia United Turkish Islamic Societies of Australia Inc. United Turkish Islamic Society Upper Yarra Public Cemetery Trust Victorian Ethnic Affairs Commission City of Wangaratta Western Thrace Turks Islamic Society Shire of Wycheproof

191 APPENDIX 2

LIST OF WITNESSES

Public Hearing

Cemeteries and Crematoria Association of Victoria

:'vir T. O'Connor (President) Mr. G. Mac Gill (Immediate Past President) Mr. I. Keith (Secretary)

Mr. J. Downey

Former Crown Solicitor for Victoria

Fawkner Crematorium and Memorial Park Trust

Mr. I. RoddicK (General Manager) Mr. K. Joyce (Chairman of Trustees)

Imams' Board of Victoria

Sheikh Fehmi Imam (Honorary Secretary) Mr R. ldr izi (President) Mr. A. Efendira (Member)

The Necropolis Trust, Springvale

Or. N. Sloan (Acting Chairman) Mr. I. Mountford (General ,1_,\anager)

Public Record Office

Mr. C. Hurley (Keeper of Public Records) Ms. S. !VicKemmish (Director, Development and Consultancy)

192 Stillbirth and Neonatal Death Support Inc.

Ms. P. Brabin (President) Ms. R. Crowther (Secretary) Ms. G. Martin (Member)

Victorian Ethnic Affairs Commission

Mrs. M. JockeJ (Deputy Chairman) Mr. M. Morsy (Commissioner)

Private Hearing

Health Department Victoria

Mr. R. CurJey (Executive Director, Inspection and Regulation Unit)

193 APPENDIX 3

APPOINTMENT OF COMMITTEE MEMBERS EXTRACTS FROM THE VOTES AND PROCEEDINGS LEGISLATIVE ASSEMBLY AND MINUTES OF PROCEEDINGS LEGISLATIVE COUNCIL

EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY

TUESDAY, 24 FEBRUARY, 1987

17. MOI:UUARY INDUSTRY AND CEMETERIES ADMINISTRATION COMMITTEE - MEMBERSHIP - Motion made by leave, and question - That contingent on the resolution appointing the Mortuary Industry and Cemeteries Administration Committee being agreed to by the Legislative Council, Mr. Culpin, Mr. Cunningham, Mr.Evans (Gipps1and East), Mr. Kirkwood and 'vlr. Reynolds be appointed members of the Committee (Mr. Fordham) -put, after debate, and agreed to.

EXTRACTED FROM THE MINUTES OF PROCEEDINGS OF THE LEGISLATIVE COUNCIL

WEDNESDAY, 25 FEBRUARY, 1987

11. MORTUARY INDUSTRY AND CEMETERIES ADMINISTRATION COMMITTEE - The Honourable Evan Walker moved, by leave, That the Honourable J.G. Miles be a member of the Mortuary Industry and Cemeteries Administration Committee.

Question - put and resolved in the affirmative.

194